Closing Requirements. The Mortgage Lender represents and warrants to the Servicer that on or prior to the Closing Date, each Mortgage Loan shall have the following: (a) A hazard insurance policy (providing fire and extended coverage, including wind damage, with an inflation adjustment provision) on the mortgaged property issued by a company: (1) qualified to do business in the State; and (2) approved by or acceptable to the PMI or GMI, as applicable. (b) If the Residence is located in an area having special flood hazards, as identified by the Secretary of HUD, flood insurance shall be maintained in the amount equal to the lesser of the outstanding principal balance of the Mortgage Loan or the insurable value, but never less than the amount sufficient to prevent application of any co-insurance clause; (c) Each Mortgage Loan (and all other documents in connection therewith, except the required appraisal) satisfies all applicable requirements set forth herein and in the Program Documents; (d) Each Mortgage Loan will be made by the Mortgage Lender at the price set under the Program Documents, will be secured by a Deed of Trust which shall constitute a first mortgage lien on a Single Family Residence occupied by Borrower as such Borrower's permanent place of residence and will be located within the boundaries of the State, will be made substantially in accordance with Mortgage Lender's then current standard underwriting policies, the underwriting standards set forth in Program Documents, and the requirements established hereby, subject to acceptance of insurer under the FHA Insurance, VA or RHS Guaranty or requirements of the PMI, will be made for the purpose of purchasing or providing permanent financing for such Residence and not for the purpose of refinancing any existing loan (except a construction period loan, a bridge loan or similar temporary initial financing which has a term of 24 months or less and that is acceptable to CDA), will have substantially level payments due the first day of each month, will have an original term of 360 months, will be made to an Eligible Borrower, as Borrower, and will contain the assumption restrictions required by Section 3.8 hereof and all other requirements of the Program Documents. (e) The principal amount of a Mortgage Loan will not exceed any applicable Loan-to-Value Ratios as established under the Program Documents and by the GMI, PMI and the applicable Mortgage Certificate; (f) As of the Purchase Date, the Mortgage Loan will be eligible for endorsement for insurance under either: (1) a binding commitment for FHA Insurance under Section 203(b), 203(k)or 234(c), of the National Housing Act of 1934; (2) a binding commitment for a VA or RHS Guaranty under the Serviceman's Readjustment Act of 1944; (3) a binding commitment for PMI; and such FHA Insurance, VA or RHS Guaranty, or Private Mortgage Guaranty shall be maintained in force and effect during all times such Mortgage Lender owns an interest in the Mortgage Loan under the Program; (g) As of the Purchase Date, the Mortgage Loan will be secured by the Deed of Trust as required under the Program Documents and must be current as to principal and interest payments due thereunder; (h) As of the Purchase Date, Mortgage Lender shall have in its possession with respect to the property financed by the Mortgage Loan and secured by the Deed of Trust, and an American Land Title Association approved mortgagee guarantee title insurance policy, preliminary policy or binder as required by and set forth in the Program Documents; (i) As of the Purchase Date, the improvements upon the real property subject to the Mortgage Loan will be covered by a valid and subsisting Standard Hazard Insurance Policy, condominium insurance and flood insurance, as applicable, and as required by the Program Documents; (j) The terms, covenants and conditions of the Mortgage Loan shall not have been and shall not prior to the Purchase be waived, altered, impaired or modified in any respect which would materially affect the value, validity, enforceability, prompt payment of the Mortgage Loan, or the enforceability of the lien securing the Mortgage Loan, except for such waivers, alterations and the like accomplished by Mortgage Lender prior to the Purchase Date acceptable under the Program Documents; (k) As of the Purchase Date, there shall be no delinquent tax or delinquent assessment lien against the property financed by the Mortgage Loan unless allowed by the Program Documents; (l) As of the Purchase Date, Mortgage Lender shall not have done any act to create an offset, defense or counterclaim to the Mortgage Loan, including the obligation of Borrower to pay the unpaid principal of and interest on the Mortgage Loan; (m) As of the Purchase Date, the Mortgage Loan must be secured by a residential first lien Deed of Trust or a subordinate lien Deed of Trust as specified in the Program Documents; (n) Mortgage Lender has reviewed applicable credit reports and related documents required in connection with any application by the potential Borrower to assure itself, prior to approving such application, that such potential Borrower has the capacity to repay the Mortgage Loan; (o) As of the Purchase Date, Mortgage Lender has no knowledge of any circumstances or condition with respect to Borrower, the Single Family Residence, the Mortgage Loan or any related document that could reasonably be expected to cause prudent private investors in the secondary market to regard the Mortgage Loan as an unacceptable investment, or cause the Mortgage Loan to become delinquent or to adversely affect the value or the marketability of the Mortgage Loan, and Mortgage Lender has no knowledge of any circumstances which would cause the invalidation or cancellation of the GMI or PMI of the Deed of Trust; (p) Borrower has agreed to make payments with respect to the Mortgage Loan in accordance with this Origination Agreement; (q) Each Mortgage and Assignment of Deed of Trust Note and Deed of Trust to Servicer shall have been executed and delivered to the Servicer (or filed and properly recorded, if required by the Servicer) prior to the Purchase of the related Mortgage Loan, and any different or other recording that might hereafter be required by Laws of the State to perfect the lien of real estate mortgages against the adverse or competing claims of third parties by giving public notice thereof shall also have been accomplished; (r) An assumption may only be permitted in accordance with Section 3.8 and the Program Documents; (s) As of the Purchase Date, the Mortgage Lender has no knowledge or other reason to believe that any of the representations or other statements contained in the affidavits of Seller, Borrower and Mortgage Lender are not true and correct; (t) To the best knowledge of the Mortgage Lender, Borrower has not assigned any of its rights, title or Interest into or under the Mortgage Loan; and (u) To the best knowledge of the Mortgage Lender, all closing costs, fees and charges in connection with the Mortgage Loan do not exceed the usual and reasonable costs which would be paid here financing is not provided through the use of the proceeds of tax exempt bonds. (Note: If such settlement and financing costs, fees or similar charges exceed the amount which is usual and reasonable, the Mortgage Loan application shall be deemed deficient and the Mortgage Lender notified of such deficiency.) It is understood and agreed that the representations, warranties and covenants set forth in this Section shall survive the sale of the Mortgage Loans by the Mortgage Lender to Servicer and that the representations, warranties and covenants shall inure to the benefit of the transferees and assigns of Servicer which, under the Indenture, include CDA, ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, GNMA, and the Trustee. Upon discovery by Mortgage Lender, ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, GNMA, Servicer or CDA of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interest of CDA in any Mortgage Loan, the party discovering such breach shall give prompt written notice to the others. Within 60 days of its discovery or its receipt of notice of breach, the Mortgage Lender shall cure such breach in all material respects or shall purchase the Mortgage Loan in the manner and in the amount set forth in Section 3.7 hereof. It is understood and agreed that the obligation of the Mortgage Lender to purchase the Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to CDA and Servicer where Mortgage Lender has acted in good faith.
Appears in 1 contract
Sources: Mortgage Origination Agreement
Closing Requirements. The Mortgage Lender represents and warrants to the Servicer that on or prior to the Closing Date, each Mortgage Loan shall have the following:
(a) A hazard insurance policy (providing fire and extended coverage, including wind damage, with an inflation adjustment provision) on the mortgaged property issued by a company:
(1) qualified to do business in the State; and
(2) approved by or acceptable to the PMI or GMI, as applicable.
(b) If the Residence is located in an area having special flood hazards, as identified by the Secretary of HUD, flood insurance shall be maintained in the amount equal to the lesser of the outstanding principal balance of the Mortgage Loan Loan, the maximum allowable under the National Flood Insurance Program, or the insurable value, but never less than the amount sufficient to prevent application of any co-insurance clause;
(c) Each Mortgage Loan (and all other documents in connection therewith, except the required appraisal) satisfies all applicable requirements set forth herein and in the Program Documents;
(d) Each Mortgage Loan will be made by the Mortgage Lender at the price set under the Program Documents, will be secured by a Deed of Trust which shall constitute a first mortgage lien on a Single Family Residence occupied by Borrower as such Borrower's permanent place of residence and will be located within the boundaries of the State, will be made substantially in accordance with Mortgage Lender's then current standard underwriting policies, the underwriting standards set forth in Program Documents, and the requirements established hereby, subject to acceptance of insurer under the FHA Insurance, VA or RHS Guaranty or requirements of the PMI, will be made for the purpose of purchasing or providing permanent financing for such Residence and not for the purpose of refinancing any existing loan (except a construction period loan, a bridge loan or similar temporary initial financing which has a term of 24 months or less and that is acceptable to CDA), will have substantially level payments due the first day of each month, will have an original term of 360 months, will be made to an Eligible Borrower, as Borrower, and will contain the assumption restrictions required by Section 3.8 hereof and all other requirements of the Program Documents.
(e) The principal amount of a Mortgage Loan will not exceed any applicable Loan-to-Value Ratios as established under the Program Documents and by the GMI, PMI and the applicable Mortgage Certificate;
(f) As of the Purchase Date, the Mortgage Loan will be eligible for endorsement for insurance under either:
(1) a binding commitment for FHA Insurance under Section 203(b), 203(k)or 234(c), of the National Housing Act of 1934;
(2) a binding commitment for a VA or RHS Guaranty under the Serviceman's Readjustment Act of 1944;
(3) a binding commitment for PMI; and such FHA Insurance, VA or RHS Guaranty, or Private Mortgage Guaranty shall be maintained in force and effect during all times such Mortgage Lender owns an interest in the Mortgage Loan under the Program;
(g) As of the Purchase Date, the Mortgage Loan will be secured by the Deed of Trust as required under the Program Documents and must be current as to principal and interest payments due thereunder;
(h) As of the Purchase Date, Mortgage Lender shall have in its possession with respect to the property financed by the Mortgage Loan and secured by the Deed of Trust, and an American Land Title Association approved mortgagee guarantee title insurance policy, preliminary policy or binder as required by and set forth in the Program Documents;
(i) As of the Purchase Date, the improvements upon the real property subject to the Mortgage Loan will be covered by a valid and subsisting Standard Hazard Insurance Policy, condominium insurance and flood insurance, as applicable, and as required by the Program Documents;
(j) The terms, covenants and conditions of the Mortgage Loan shall not have been and shall not prior to the Purchase be waived, altered, impaired or modified in any respect which would materially affect the value, validity, enforceability, prompt payment of the Mortgage Loan, or the enforceability of the lien securing the Mortgage Loan, except for such waivers, alterations and the like accomplished by Mortgage Lender prior to the Purchase Date acceptable under the Program Documents;
(k) As of the Purchase Date, there shall be no delinquent tax or delinquent assessment lien against the property financed by the Mortgage Loan unless allowed by the Program Documents;
(l) As of the Purchase Date, Mortgage Lender shall not have done any act to create an offset, defense or counterclaim to the Mortgage Loan, including the obligation of Borrower to pay the unpaid principal of and interest on the Mortgage Loan;
(m) As of the Purchase Date, the Mortgage Loan must be secured by a residential first lien Deed of Trust or a subordinate lien Deed of Trust as specified in the Program Documents;
(n) Mortgage Lender has reviewed applicable credit reports and related documents required in connection with any application by the potential Borrower to assure itself, prior to approving such application, that such potential Borrower has the capacity to repay the Mortgage Loan;
(o) As of the Purchase Date, Mortgage Lender has no knowledge of any circumstances or condition with respect to Borrower, the Single Family Residence, the Mortgage Loan or any related document that could reasonably be expected to cause prudent private investors in the secondary market to regard the Mortgage Loan as an unacceptable investment, or cause the Mortgage Loan to become delinquent or to adversely affect the value or the marketability of the Mortgage Loan, and Mortgage Lender has no knowledge of any circumstances which would cause the invalidation or cancellation of the GMI or PMI of the Deed of Trust;
(p) Borrower has agreed to make payments with respect to the Mortgage Loan in accordance with this Origination Agreement;
(q) Each Mortgage and Assignment of Deed of Trust Note and Deed of Trust to Servicer shall have been executed and delivered to the Servicer (or filed and properly recorded, if required by the Servicer) prior to the Purchase of the related Mortgage Loan, and any different or other recording that might hereafter be required by Laws of the State to perfect the lien of real estate mortgages against the adverse or competing claims of third parties by giving public notice thereof shall also have been accomplished;
(r) An assumption may only be permitted in accordance with Section 3.8 and the Program Documents;
(s) As of the Purchase Date, the Mortgage Lender has no knowledge or other reason to believe that any of the representations or other statements contained in the affidavits of Seller, Borrower and Mortgage Lender are not true and correct;
(t) To the best knowledge of the Mortgage Lender, Borrower has not assigned any of its rights, title or Interest into or under the Mortgage Loan; and
(u) To the best knowledge of the Mortgage Lender, all closing costs, fees and charges in connection with the Mortgage Loan do not exceed the usual and reasonable costs which would be paid here financing is not provided through the use of the proceeds of tax exempt bonds. (Note: If such settlement and financing costs, fees or similar charges exceed the amount which is usual and reasonable, the Mortgage Loan application shall be deemed deficient and the Mortgage Lender notified of such deficiency.) It is understood and agreed that the representations, warranties and covenants set forth in this Section shall survive the sale of the Mortgage Loans by the Mortgage Lender to Servicer and that the representations, warranties and covenants shall inure to the benefit of the transferees and assigns of Servicer which, under the Indenture, include CDA, ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, GNMA, and the Trustee. Upon discovery by Mortgage Lender, ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, GNMA, Servicer or CDA of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interest of CDA in any Mortgage Loan, the party discovering such breach shall give prompt written notice to the others. Within 60 days of its discovery or its receipt of notice of breach, the Mortgage Lender shall cure such breach in all material respects or shall purchase the Mortgage Loan in the manner and in the amount set forth in Section 3.7 hereof. It is understood and agreed that the obligation of the Mortgage Lender to purchase the Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to CDA and Servicer where Mortgage Lender has acted in good faith.
Appears in 1 contract
Sources: Mortgage Origination Agreement
Closing Requirements. The Mortgage Lender represents A. At the Closing, Seller shall execute and warrants deliver to Purchaser at Seller's sole cost:
(i) a bargain and sale deed with covenants against grantors acts as herein provided (hereinafter referred to as the "Deed");
(ii) an affidavit of title, the form and substance of which shall be subject to the Servicer reasonable approval of the Title Company;
(iii) a certification of non-foreign status in accordance with Section 1445 of the Internal Revenue Code of 1986, as amended;
(iv) Seller's certification that on the representations and warranties herein are true and accurate as of the Closing in material respects;
(v) originals of the Due Diligence Documents and all other documents and records relating to the Property as are in the possession of Seller and kept in the normal course of business;
(vi) a bill of sale, dated as of the Closing, in form and substance satisf▇▇▇▇ry to Purchaser, conveying all fixtures to Purchaser free and clear of any liens, charges or encumbrances;
(vii) keys to the Property (if any);
(viii) a certificate of occupancy for the Property, if required by the Borough of South Plainfield;
(ix) an assignment to Purchaser of the current lease between Seller and Able Laboratories, Inc.;
(x) an assignment to Purchaser of those service and maintenance agreements relative to the Property which Purchaser has elected in writing to assume, such other agreements to be cancelled by Seller prior to or as of Closing; and
(xi) such other instruments as may be reasonably required by Purchaser's attorney or the Title Company to effectuate the within transaction.
B. At the Closing, Purchaser shall execute and deliver to Seller:
(i) The Purchase Price in accordance with Paragraph 2 hereof;
(ii) such other documents and/or instruments as may be reasonably required by Seller's attorney or the Title Company to effectuate the within transaction.
C. Seller shall deliver drafts of the closing documents set forth in section A above at least three (3) days prior to the Closing Date, each Mortgage Loan shall have the following:
(a) A hazard insurance policy (providing fire and extended coverage, including wind damage, with an inflation adjustment provision) on the mortgaged property issued by a company:
(1) qualified to do business in the State; and
(2) approved by or acceptable to the PMI or GMI, as applicable.
(b) If the Residence is located in an area having special flood hazards, as identified by the Secretary of HUD, flood insurance shall be maintained in the amount equal to the lesser of the outstanding principal balance of the Mortgage Loan or the insurable value, but never less than the amount sufficient to prevent application of any co-insurance clause;
(c) Each Mortgage Loan (and all other documents in connection therewith, except the required appraisal) satisfies all applicable requirements set forth herein and in the Program Documents;
(d) Each Mortgage Loan will be made by the Mortgage Lender at the price set under the Program Documents, will be secured by a Deed of Trust which shall constitute a first mortgage lien on a Single Family Residence occupied by Borrower as such Borrower's permanent place of residence and will be located within the boundaries of the State, will be made substantially in accordance with Mortgage Lender's then current standard underwriting policies, the underwriting standards set forth in Program Documents, and the requirements established hereby, subject to acceptance of insurer under the FHA Insurance, VA or RHS Guaranty or requirements of the PMI, will be made for the purpose of purchasing or providing permanent financing for such Residence and not for the purpose of refinancing any existing loan (except a construction period loan, a bridge loan or similar temporary initial financing which has a term of 24 months or less and that is acceptable to CDA), will have substantially level payments due the first day of each month, will have an original term of 360 months, will be made to an Eligible Borrower, as Borrower, and will contain the assumption restrictions required by Section 3.8 hereof and all other requirements of the Program Documents.
(e) The principal amount of a Mortgage Loan will not exceed any applicable Loan-to-Value Ratios as established under the Program Documents and by the GMI, PMI and the applicable Mortgage Certificate;
(f) As of the Purchase Date, the Mortgage Loan will be eligible for endorsement for insurance under either:
(1) a binding commitment for FHA Insurance under Section 203(b), 203(k)or 234(c), of the National Housing Act of 1934;
(2) a binding commitment for a VA or RHS Guaranty under the Serviceman's Readjustment Act of 1944;
(3) a binding commitment for PMI; and such FHA Insurance, VA or RHS Guaranty, or Private Mortgage Guaranty shall be maintained in force and effect during all times such Mortgage Lender owns an interest in the Mortgage Loan under the Program;
(g) As of the Purchase Date, the Mortgage Loan will be secured by the Deed of Trust as required under the Program Documents and must be current as to principal and interest payments due thereunder;
(h) As of the Purchase Date, Mortgage Lender shall have in its possession with respect to the property financed by the Mortgage Loan and secured by the Deed of Trust, and an American Land Title Association approved mortgagee guarantee title insurance policy, preliminary policy or binder as required by and set forth in the Program Documents;
(i) As of the Purchase Date, the improvements upon the real property subject to the Mortgage Loan will be covered by a valid and subsisting Standard Hazard Insurance Policy, condominium insurance and flood insurance, as applicable, and as required by the Program Documents;
(j) The terms, covenants and conditions of the Mortgage Loan shall not have been and shall not prior to the Purchase be waived, altered, impaired or modified in any respect which would materially affect the value, validity, enforceability, prompt payment of the Mortgage Loan, or the enforceability of the lien securing the Mortgage Loan, except for such waivers, alterations and the like accomplished by Mortgage Lender prior to the Purchase Date acceptable under the Program Documents;
(k) As of the Purchase Date, there shall be no delinquent tax or delinquent assessment lien against the property financed by the Mortgage Loan unless allowed by the Program Documents;
(l) As of the Purchase Date, Mortgage Lender shall not have done any act to create an offset, defense or counterclaim to the Mortgage Loan, including the obligation of Borrower to pay the unpaid principal of and interest on the Mortgage Loan;
(m) As of the Purchase Date, the Mortgage Loan must be secured by a residential first lien Deed of Trust or a subordinate lien Deed of Trust as specified in the Program Documents;
(n) Mortgage Lender has reviewed applicable credit reports and related documents required in connection with any application by the potential Borrower to assure itself, prior to approving such application, that such potential Borrower has the capacity to repay the Mortgage Loan;
(o) As of the Purchase Date, Mortgage Lender has no knowledge of any circumstances or condition with respect to Borrower, the Single Family Residence, the Mortgage Loan or any related document that could reasonably be expected to cause prudent private investors in the secondary market to regard the Mortgage Loan as an unacceptable investment, or cause the Mortgage Loan to become delinquent or to adversely affect the value or the marketability of the Mortgage Loan, and Mortgage Lender has no knowledge of any circumstances which would cause the invalidation or cancellation of the GMI or PMI of the Deed of Trust;
(p) Borrower has agreed to make payments with respect to the Mortgage Loan in accordance with this Origination Agreement;
(q) Each Mortgage and Assignment of Deed of Trust Note and Deed of Trust to Servicer shall have been executed and delivered to the Servicer (or filed and properly recorded, if required by the Servicer) prior to the Purchase of the related Mortgage Loan, and any different or other recording that might hereafter be required by Laws of the State to perfect the lien of real estate mortgages against the adverse or competing claims of third parties by giving public notice thereof shall also have been accomplished;
(r) An assumption may only be permitted in accordance with Section 3.8 and the Program Documents;
(s) As of the Purchase Date, the Mortgage Lender has no knowledge or other reason to believe that any of the representations or other statements contained in the affidavits of Seller, Borrower and Mortgage Lender are not true and correct;
(t) To the best knowledge of the Mortgage Lender, Borrower has not assigned any of its rights, title or Interest into or under the Mortgage Loan; and
(u) To the best knowledge of the Mortgage Lender, all closing costs, fees and charges in connection with the Mortgage Loan do not exceed the usual and reasonable costs which would be paid here financing is not provided through the use of the proceeds of tax exempt bonds. (Note: If such settlement and financing costs, fees or similar charges exceed the amount which is usual and reasonable, the Mortgage Loan application shall be deemed deficient and the Mortgage Lender notified of such deficiency.) It is understood and agreed that the representations, warranties and covenants set forth in this Section shall survive the sale of the Mortgage Loans by the Mortgage Lender to Servicer and that the representations, warranties and covenants shall inure to the benefit of the transferees and assigns of Servicer which, under the Indenture, include CDA, ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, GNMA, and the Trustee. Upon discovery by Mortgage Lender, ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, GNMA, Servicer or CDA of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interest of CDA in any Mortgage Loan, the party discovering such breach shall give prompt written notice to the others. Within 60 days of its discovery or its receipt of notice of breach, the Mortgage Lender shall cure such breach in all material respects or shall purchase the Mortgage Loan in the manner and in the amount set forth in Section 3.7 hereof. It is understood and agreed that the obligation of the Mortgage Lender to purchase the Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to CDA and Servicer where Mortgage Lender has acted in good faith.
Appears in 1 contract
Closing Requirements. The Mortgage Lender represents and warrants to the Servicer that on or prior to the Closing Date, each Mortgage Loan shall have the following:
(a) A hazard insurance policy (providing fire and extended coverage, including wind damage, with an inflation adjustment provision) on the mortgaged property issued by a company:
(1) qualified to do business in the State; and
(2) approved by or acceptable to the PMI or GMI, as applicable.
(b) If the Residence is located in an area having special flood hazards, as identified by the Secretary of HUD, flood insurance shall be maintained in the amount equal to the lesser The consummation of the outstanding principal balance of the Mortgage Loan or the insurable value, but never less than the amount sufficient to prevent application of any co-insurance clause;
(c) Each Mortgage Loan (purchase and all other documents in connection therewith, except the required appraisal) satisfies all applicable requirements set forth herein and in the Program Documents;
(d) Each Mortgage Loan will be made by the Mortgage Lender at the price set under the Program Documents, will be secured by a Deed of Trust which shall constitute a first mortgage lien on a Single Family Residence occupied by Borrower as such Borrower's permanent place of residence and will be located within the boundaries of the State, will be made substantially in accordance with Mortgage Lender's then current standard underwriting policies, the underwriting standards set forth in Program Documents, and the requirements established hereby, subject to acceptance of insurer under the FHA Insurance, VA or RHS Guaranty or requirements of the PMI, will be made for the purpose of purchasing or providing permanent financing for such Residence and not for the purpose of refinancing any existing loan (except a construction period loan, a bridge loan or similar temporary initial financing which has a term of 24 months or less and that is acceptable to CDA), will have substantially level payments due the first day of each month, will have an original term of 360 months, will be made to an Eligible Borrower, as Borrower, and will contain the assumption restrictions required by Section 3.8 hereof and all other requirements of the Program Documents.
(e) The principal amount of a Mortgage Loan will not exceed any applicable Loan-to-Value Ratios as established under the Program Documents and by the GMI, PMI and the applicable Mortgage Certificate;
(f) As of the Purchase Date, the Mortgage Loan will be eligible for endorsement for insurance under either:
(1) a binding commitment for FHA Insurance under Section 203(b), 203(k)or 234(c), of the National Housing Act of 1934;
(2) a binding commitment for a VA or RHS Guaranty under the Serviceman's Readjustment Act of 1944;
(3) a binding commitment for PMI; and such FHA Insurance, VA or RHS Guaranty, or Private Mortgage Guaranty shall be maintained in force and effect during all times such Mortgage Lender owns an interest in the Mortgage Loan under the Program;
(g) As of the Purchase Date, the Mortgage Loan will be secured by the Deed of Trust as required under the Program Documents and must be current as to principal and interest payments due thereunder;
(h) As of the Purchase Date, Mortgage Lender shall have in its possession with respect to the property financed by the Mortgage Loan and secured by the Deed of Trust, and an American Land Title Association approved mortgagee guarantee title insurance policy, preliminary policy or binder as required by and set forth in the Program Documents;
(i) As of the Purchase Date, the improvements upon the real property subject to the Mortgage Loan will be covered by a valid and subsisting Standard Hazard Insurance Policy, condominium insurance and flood insurance, as applicable, and as required by the Program Documents;
(j) The terms, covenants and conditions of the Mortgage Loan shall not have been and shall not prior to the Purchase be waived, altered, impaired or modified in any respect which would materially affect the value, validity, enforceability, prompt payment of the Mortgage Loan, or the enforceability of the lien securing the Mortgage Loan, except for such waivers, alterations and the like accomplished by Mortgage Lender prior to the Purchase Date acceptable under the Program Documents;
(k) As of the Purchase Date, there shall be no delinquent tax or delinquent assessment lien against the property financed by the Mortgage Loan unless allowed by the Program Documents;
(l) As of the Purchase Date, Mortgage Lender shall not have done any act to create an offset, defense or counterclaim to the Mortgage Loan, including the obligation of Borrower to pay the unpaid principal of and interest on the Mortgage Loan;
(m) As of the Purchase Date, the Mortgage Loan must be secured by a residential first lien Deed of Trust or a subordinate lien Deed of Trust as specified in the Program Documents;
(n) Mortgage Lender has reviewed applicable credit reports and related documents required in connection with any application by the potential Borrower to assure itself, prior to approving such application, that such potential Borrower has the capacity to repay the Mortgage Loan;
(o) As of the Purchase Date, Mortgage Lender has no knowledge of any circumstances or condition with respect to Borrower, the Single Family Residence, the Mortgage Loan or any related document that could reasonably be expected to cause prudent private investors in the secondary market to regard the Mortgage Loan as an unacceptable investment, or cause the Mortgage Loan to become delinquent or to adversely affect the value or the marketability of the Mortgage Loan, and Mortgage Lender has no knowledge of any circumstances which would cause the invalidation or cancellation of the GMI or PMI of the Deed of Trust;
(p) Borrower has agreed to make payments with respect to the Mortgage Loan in accordance with this Origination Agreement;
(q) Each Mortgage and Assignment of Deed of Trust Note and Deed of Trust to Servicer shall have been executed and delivered to the Servicer (or filed and properly recorded, if required by the Servicer) prior to the Purchase of the related Mortgage Loan, and any different or other recording that might hereafter be required by Laws of the State to perfect the lien of real estate mortgages against the adverse or competing claims of third parties by giving public notice thereof shall also have been accomplished;
(r) An assumption may only be permitted in accordance with Section 3.8 and the Program Documents;
(s) As of the Purchase Date, the Mortgage Lender has no knowledge or other reason to believe that any of the representations or other statements contained in the affidavits of Seller, Borrower and Mortgage Lender are not true and correct;
(t) To the best knowledge of the Mortgage Lender, Borrower has not assigned any of its rights, title or Interest into or under the Mortgage Loan; and
(u) To the best knowledge of the Mortgage Lender, all closing costs, fees and charges in connection with the Mortgage Loan do not exceed the usual and reasonable costs which would be paid here financing is not provided through the use of the proceeds of tax exempt bonds. (Note: If such settlement and financing costs, fees or similar charges exceed the amount which is usual and reasonable, the Mortgage Loan application shall be deemed deficient and the Mortgage Lender notified of such deficiency.) It is understood and agreed that the representations, warranties and covenants set forth in this Section shall survive the sale of the Mortgage Loans by shall take place at 5:01 p.m. on January 31, 2006 (the Mortgage Lender to Servicer and that "Closing"), at the representationsoffices of Heritage Bank of Commerce, warranties and covenants shall inure to the benefit of the transferees and assigns of Servicer which, under the Indenture, include CDA, ▇▇▇ ▇▇▇▇▇▇▇ Mae▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ Mac, GNMA, and the Trustee. Upon discovery by Mortgage Lender, ▇▇▇▇▇▇ Mae; provided however, ▇▇▇▇▇▇▇ Macif the purchase and sale of the Loans are not consummated by January 31, GNMA2006, Servicer or CDA then Seller shall permit further due diligence of a the Loans by Purchaser.
(b) Purchaser shall pay to Seller an amount equal to the outstanding principal amount, also referred to as the “active balance” within Distinctive Solutions and such amounts within Seller’s ITI systems, of all the Loans as of the Closing, plus accrued interest, fees and expenses (Exhibit D) thereon (except the Purchase Price attributable to the Loan(s) to *** shall be the net principal balance after all prior charge offs, which as of the date hereof, equals *** as of January 31, 2006]) less any unearned loan fees to be paid to Seller by wire transfer of immediately available federal funds as Seller shall direct. Seller is to be reimbursed for any reasonable costs after the Closing directly relating to the Loans; provided however, such costs shall not include any costs resulting from any breach of this Purchase Agreement by Seller or any costs which are Seller’s responsibility under this Purchase Agreement.
(c) At Closing, and as a condition of Seller's obligations under this Purchase Agreement, any payments in respect of interest or other sums periodically due on the Loans which are paid or payable for the month in which the Closing occurs will be prorated as of the Closing.
(d) At Closing, all escrows, if any, then held by Seller and any account records reflecting amounts actually held in escrow by Seller at Closing, if any, for taxes, governmental assessments and insurance premiums, water, sewer and municipal charges, deposits, transferable security deposits, replacement reserves or other escrowed funds relating to the Loans shall be paid over to Purchaser.
(e) At or prior to Closing, Seller shall at its sole cost and expense prepare and mail to the insurer for the Loans, a notice of assignment and a request for an endorsement of each policy of insurance deleting Seller and naming Purchaser and its successors and/or assigns as the loss payee and additional insured named therein in a form satisfactory to Purchaser.
(f) At Closing, with respect to each Loan, Seller shall:
(i) deliver the original note for such Loan, endorsed without recourse by allonge in blank in substantially the form of Exhibit B annexed hereto, which allonge shall be firmly affixed to the note;
(ii) deliver the original mortgage (or a true and complete photocopy thereof) related to such Loan and an executed assignment of such mortgage and the other recorded Loan Documents in blank in substantially the form of Exhibit C annexed hereto, with such modifications as shall be customary and appropriate under local laws for recording in the land records in the jurisdiction in which the related mortgaged property is located (the "Assignment");
(iii) authorize assignments of UCC financing statements, if any, pertaining to the Loans;
(iv) with respect to any depository accounts, certificates of deposit and investment accounts which are a part of the collateral for any of the foregoing representationsLoans, warranties notify any depository bank or financial institution at which such depository accounts, certificates of deposit and covenants which materially investment accounts are located, that Seller’s rights therein have been assigned to Purchaser and adversely affects request acknowledgement of same to Purchaser and to request the value delivery of any Mortgage lockbox control agreements, securities account control agreements, operating account control agreements and deposit account control agreements (or an assignment or amendment thereto) with respect to any operating or deposit account control agreement, in form and substance reasonably satisfactory to Purchaser necessary to evidence Purchaser’s control of such accounts and arrange for the orderly transfer of any accounts that are held at Seller to Purchaser;
(v) deliver to Purchaser an original counterpart of each other Loan or the Document (including without limitation, any possessory collateral such as stock certificates, notes, instruments and/or title certificates for any motor vehicles (and/or cause such title certificates to be re-issued to evidence Purchaser’s security interest of CDA in any Mortgage Loantherein) or, the party discovering such breach shall give prompt written notice to the others. Within 60 days of its discovery or its receipt of notice of breach, the Mortgage Lender shall cure such breach in all material respects or shall purchase the Mortgage Loan in the manner event that Seller is unable to locate an original counterpart of any such Loan Document, a true and in complete photocopy thereof; and
(vi) deliver to Purchaser copies of all records concerning the amount set forth in Section 3.7 hereof. It is understood and agreed that Loans.
(g) At Closing, Purchaser shall:
(i) issue a back-up letter of credit for the benefit of Seller to each existing letter of credit issued by Seller for the benefit of any borrower or any other person or entity on account of or related to any obligation or liability arising under the Loan Documents; and
(ii) immediately notify all account debtors, or cause account debtors to be notified, of the Mortgage Lender transfer of the Loans hereunder and to purchase the Mortgage Loan as cause remittance checks to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available be made payable to CDA and Servicer where Mortgage Lender has acted in good faithPurchaser.
Appears in 1 contract
Closing Requirements. The Mortgage Lender represents and warrants to the Servicer that on or prior to the Closing DateAt Closing, each Mortgage Loan shall have the following:
(a) A hazard insurance policy (providing fire and extended coverage, including wind damage, with an inflation adjustment provision) on the mortgaged property issued by a company:
(1) qualified to do business in the State; and
(2) approved by or acceptable to the PMI or GMI, as applicable.
(b) If the Residence is located in an area having special flood hazards, as identified by the Secretary of HUD, flood insurance shall be maintained in the amount equal to the lesser of the outstanding principal balance of the Mortgage Loan or the insurable value, but never less than the amount sufficient to prevent application of any co-insurance clause;
(c) Each Mortgage Loan (and all other documents in connection therewith, except the required appraisal) satisfies all applicable requirements set forth herein and in the Program Documents;
(d) Each Mortgage Loan will be made by the Mortgage Lender at the price set under the Program Documents, will be secured by a Deed of Trust which shall constitute a first mortgage lien on a Single Family Residence occupied by Borrower as such Borrower's permanent place of residence and will be located within the boundaries of the State, will be made substantially in accordance with Mortgage Lender's then current standard underwriting policies, the underwriting standards set forth in Program Documents, and the requirements established hereby, subject to acceptance of insurer under the FHA Insurance, VA or RHS Guaranty or requirements of the PMI, will be made for the purpose of purchasing or providing permanent financing for such Residence and not for the purpose of refinancing any existing loan (except a construction period loan, a bridge loan or similar temporary initial financing which has a term of 24 months or less and that is acceptable to CDA), will have substantially level payments due the first day of each month, will have an original term of 360 months, will be made to an Eligible Borrower, as Borrower, and will contain the assumption restrictions required by Section 3.8 hereof and all other requirements of the Program Documents.
(e) The principal amount of a Mortgage Loan will not exceed any applicable Loan-to-Value Ratios as established under the Program Documents and by the GMI, PMI and the applicable Mortgage Certificate;
(f) As upon payment of the Purchase DatePrice as herein provided, the Mortgage Loan will be eligible for endorsement for insurance under either:
(1) Seller shall deliver to Purchaser a binding commitment for FHA Insurance under Section 203(b), 203(k)or 234(c), of the National Housing Act of 1934;
(2) a binding commitment for a VA or RHS Guaranty under the Serviceman's Readjustment Act of 1944;
(3) a binding commitment for PMI; fully and such FHA Insurance, VA or RHS Guaranty, or Private Mortgage Guaranty shall be maintained in force and effect during all times such Mortgage Lender owns an interest in the Mortgage Loan under the Program;
(g) As of the Purchase Date, the Mortgage Loan will be secured by the Deed of Trust as required under the Program Documents and must be current as to principal and interest payments due thereunder;
(h) As of the Purchase Date, Mortgage Lender shall have in its possession properly executed statutory warranty deed with respect to the property financed by Property (the Mortgage Loan “Deed”) which shall convey fee simple title to the Property, free of all claims, liens and secured by encumbrances of any kind or nature whatsoever other than the Deed Permitted Exceptions (as hereinafter defined). For the purposes of Trustthis Agreement, and an American Land Title Association approved mortgagee guarantee title insurance policy, preliminary policy or binder as required by and set forth in the Program Documents;
term “Permitted Exceptions” shall mean: (i) As then current city, state and county ad valorem taxes not yet due and payable; (ii) easements for the installation or maintenance of public utilities serving the Property; (iii) all other easements, restrictive covenants and other matters described in the current title insurance policy insuring the Property (other than any mortgage or other encumbrance securing money borrowed by Seller), a true and correct copy of which has been delivered to Purchaser (the “Current Title Policy”); (iv) all recorded (and, if created by Purchaser or its agents, employees or affiliates, unrecorded) easements, restrictive covenants, encumbrances and other matters of record (if any) that relate to the construction, financing, operation or use of the Purchase Dateparking deck facility that has been constructed on the Property with Purchaser’s consent as contemplated in and in accordance with the Office Lease, dated as of December 21, 2006, as heretofore amended, between Seller, as landlord, and Purchaser, as Tenant (as so amended, the improvements upon the real property subject “Lease”); (v) all other then existing leases with respect to the Mortgage Loan will be covered by a valid and subsisting Standard Hazard Insurance Policy, condominium insurance and flood insurance, as applicable, and as required by the Program Documents;
(j) The terms, covenants and conditions all or any portion of the Mortgage Loan shall not Property which (A) have been and shall not provided to Purchaser prior to the Purchase be waiveddate hereof (including, altered, impaired or modified in any respect which would materially affect the value, validity, enforceability, prompt payment of the Mortgage Loan, or the enforceability of the lien securing the Mortgage Loan, except for such waivers, alterations and the like accomplished by Mortgage Lender prior to the Purchase Date acceptable under the Program Documents;
(k) As of the Purchase Date, there shall be no delinquent tax or delinquent assessment lien against the property financed by the Mortgage Loan unless allowed by the Program Documents;
(l) As of the Purchase Date, Mortgage Lender shall not have done any act to create an offset, defense or counterclaim to the Mortgage Loan, including the obligation of Borrower to pay the unpaid principal of and interest on the Mortgage Loan;
(m) As of the Purchase Datewithout limitation, the Mortgage Loan must be secured by a residential first lien Deed of Trust or a subordinate lien Deed of Trust as specified lease currently in the Program Documents;
(n) Mortgage Lender has reviewed applicable credit reports and related documents required in connection with any application by the potential Borrower to assure itself, prior to approving such application, that such potential Borrower has the capacity to repay the Mortgage Loan;
(o) As of the Purchase Date, Mortgage Lender has no knowledge of any circumstances or condition with respect to Borrower, the Single Family Residence, the Mortgage Loan or any related document that could reasonably be expected to cause prudent private investors in the secondary market to regard the Mortgage Loan as an unacceptable investment, or cause the Mortgage Loan to become delinquent or to adversely affect the value or the marketability of the Mortgage Loan, and Mortgage Lender has no knowledge of any circumstances which would cause the invalidation or cancellation of the GMI or PMI of the Deed of Trust;
(p) Borrower has agreed to make payments effect with respect to the Mortgage Loan in accordance with this Origination Agreement;
(q) Each Mortgage and Assignment of Deed of Trust Note and Deed of Trust to Servicer shall have been executed and delivered space identified on Schedule 10 to the Servicer Lease (or filed and properly recorded, if required by the Servicer“Restaurant Lease”) prior to the Purchase of the related Mortgage Loan, and any different or other recording that might hereafter be required by Laws of the State to perfect the lien of real estate mortgages against the adverse or competing claims of third parties by giving public notice thereof shall also have been accomplished;
(r) An assumption may only be permitted in accordance with Section 3.8 and the Program Documents;
(s) As of the Purchase Date, the Mortgage Lender has no knowledge or other reason to believe that any of the representations or other statements contained in the affidavits of Seller, Borrower and Mortgage Lender are not true and correct;
(t) To the best knowledge of the Mortgage Lender, Borrower has not assigned any of its rights, title or Interest into or under the Mortgage Loan; and
(u) To the best knowledge of the Mortgage Lender, all closing costs, fees and charges in connection Renewal Lease with the Mortgage Loan do not exceed the usual and reasonable costs which would be paid here financing is not provided through the use of the proceeds of tax exempt bonds. (Note: If such settlement and financing costs, fees or similar charges exceed the amount which is usual and reasonable, the Mortgage Loan application shall be deemed deficient and the Mortgage Lender notified of such deficiency.) It is understood and agreed that the representations, warranties and covenants set forth in this Section shall survive the sale of the Mortgage Loans by the Mortgage Lender to Servicer and that the representations, warranties and covenants shall inure to the benefit of the transferees and assigns of Servicer which, under the Indenture, include CDA, ▇The ▇▇▇▇▇ MaeCompanies covering the location of a billboard or other signage purported to be located on the Property dated as of January 12, ▇▇▇2005 (the “Sign Lease”)) and (B) have been entered into by Seller in the ordinary course and upon commercially reasonable terms after Purchaser has waived its right to lease such space as contemplated in Section 32 of the Lease; and (vi) such other matters, if any, as may be acceptable to Purchaser in its sole discretion. In addition to the foregoing, Purchaser hereby agrees that any conveyance of the Property shall be subject to the surface and subsurface conditions affecting the Property, as they exist on the Closing Date without any representation or warranty by Seller with respect thereto. Accordingly, Purchaser hereby acknowledges and agrees that the Deed shall contain the following provision: “By acceptance of this deed, Grantee hereby covenants and agrees for itself and its successors, assigns, licensees, lessees, employees and agents that Grantor shall not be liable for, and no action shall be asserted against Grantor for, loss or damage on account of injuries to the property or to any buildings, improvements, or structures now or hereafter located upon the property, or on account of injuries to any owner, occupant, or other person in or upon said property, occurring on or after the date of this deed, which are caused by, or arise as a result of soil and/or subsurface conditions, known or unknown (including, without limitation, sinkholes, underground mines or other geological formations or conditions) under or on the property or any other property now or hereafter owned by Grantor, whether contiguous or non-contiguous to the property sold hereunder. For purposes of this paragraph, the term “Grantor” shall include (i) Liberty National Life Insurance Company, Stonegate Realty Company, LLC and SG/SPV Property I, LLC; (ii) the agents and employees of Liberty National Life Insurance Company, Stonegate Realty Company and SG/SPV Property I, LLC; (iii) the officers, directors, managers, contractors and subcontractors of Liberty National Life Insurance Company, Stonegate Realty Company, LLC and SG/SPV Property I, LLC; and (iv) any affiliates, successors or assigns of the interests of Liberty National Life Insurance Company, Stonegate Realty Company, LLC and SG/SPV Property I, LLC in real property (other than the property hereby conveyed). This covenant and agreement shall run with the land conveyed hereby as against Grantee, and all persons, firms, trusts, partnerships, limited partnerships, corporations or other entities holding under or through the Grantee.” In addition to the Deed called for herein, Seller shall also deliver to Purchaser on the Closing Date (i) a ▇▇▇▇ Macof sale in the form customarily used in transactions of this kind and nature, GNMAcovering all of Seller’s right, title and interest in and to the Trustee. Upon discovery fixtures and other personal property (if any) included in the Property, together with an assignment of leases with respect to all then-existing leases affecting the Property, in the form customarily used in transactions of this kind and nature, (ii) a Seller’s affidavit with respect to the Property and “gap” indemnity, in each case in the form customarily recognized and required by Mortgage Lenderthe Title Company, ▇▇▇▇▇▇ Mae(iii) a certificate and affidavit as to Seller’s residency and non-foreign person status, ▇▇▇▇▇▇▇ Mac, GNMA, Servicer or CDA (iv) a certificate to the effect that the representations and warranties of a breach of any Seller in this Agreement are true and correct as of the foregoing representationsClosing Date, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interest of CDA in any Mortgage Loan, the party discovering such breach shall give prompt written notice to the others. Within 60 days of its discovery or its receipt of notice of breach, the Mortgage Lender shall cure such breach in all material respects or shall purchase the Mortgage Loan in the manner and in the amount except as otherwise set forth in Section 3.7 10 hereof. It is understood , and agreed (v) evidence in form and substance reasonably satisfactory to Purchaser and the Title Company that Seller has the obligation power and authority to execute and enter into this Agreement and to consummate the sale of the Mortgage Lender Property, and that any and all actions required to purchase authorize and approve the Mortgage Loan as execution of and entry into this Agreement by Seller, the performance by Seller of all of Seller’s duties and obligations under this Agreement, and the execution and delivery by Seller of all documents and other items to which a breach has occurred be executed and is continuing shall constitute the sole remedy respecting such breach available delivered to CDA and Servicer where Mortgage Lender has acted in good faithPurchaser at Closing, have been accomplished.
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (Infinity Property & Casualty Corp)
Closing Requirements. The Mortgage Lender represents and warrants Upon the closing date of such purchase by the Tenant of the Leased Property pursuant to the Servicer that on purchase option contained in Article 15 of this Lease, such date being the Expiration Date, the Tenant shall pay to the Trustee or, if no Bonds shall be Outstanding, to the Landlord, or to any persons designated by the Landlord in a written notice delivered by the Landlord to the Tenant not less than three (3) days prior to the Closing Dateclosing date, each Mortgage Loan by certified check, bank check or in federal funds, as the Trustee or the Landlord may designate, at the place within the continental United States designated in such notice, the purchase price therefor specified in Section 15.2 herein, and the following shall have the followingthen occur:
(a) A hazard insurance policy (providing fire and extended coverageThe Landlord shall deliver to the Tenant such documents, including wind damagewithout limitation deeds, with an inflation adjustment provision) on assignments of leases and bills of sale, as shall be necessary to convey and transfer the mortgaged property issued by a company:
(1) qualified title to do business each Individual Property to the Tenant or, in the State; and
(2) approved case of any Individual Property which is ground leased by or acceptable the Landlord, to assign the Landlord's interest in such Individual Property to the PMI or GMITenant; PROVIDED, as applicable.HOWEVER, that in the case of the assignment of any such ground lease, the Landlord shall also provide to the Tenant evidence of the ground lessor's consent to such assignment;
(b) If The Tenant shall pay (or reimburse the Residence is located in an area having special flood hazardsLandlord for) all costs, as identified fees and charges incident to such conveyance and transfer, including, without limitation, reasonable counsel fees, escrow fees, recording fees, title insurance premiums, mortgage prepayment penalties and all applicable federal, state and local taxes (other than federal income taxes and state and local taxes imposed upon or measured by the Secretary net income) which may be incurred or imposed by reason of HUD, flood insurance shall be maintained in the amount equal to the lesser such conveyance and transfer and by reason of the outstanding principal balance delivery and/or recording of the Mortgage Loan or the insurable value, but never less than the amount sufficient to prevent application of any co-insurance clausesuch deed and such other instruments;
(c) Each Mortgage Loan (The Tenant shall transmit written notice to the Landlord directing the Landlord to cause the optional redemption of any and all other documents in connection therewith, except the required appraisal) satisfies all applicable requirements set forth herein and in the Program DocumentsBonds Outstanding;
(d) Each Mortgage Loan will be made Upon (i) receipt by the Mortgage Lender at the price set under the Program Documents, will be secured by a Deed of Trust which shall constitute a first mortgage lien on a Single Family Residence occupied by Borrower as such Borrower's permanent place of residence and will be located within the boundaries Landlord of the State, will be made substantially notice described in accordance with Mortgage Lender's then current standard underwriting policiesSection 21.2(c) and (ii) the receipt by the Trustee of the purchase price of the Leased Property, the underwriting standards set forth in Program Documents, Landlord shall promptly cause the Trustee to redeem any and all Bonds Outstanding pursuant to the requirements established hereby, subject to acceptance of insurer under the FHA Insurance, VA or RHS Guaranty or requirements terms of the PMI, will be made for the purpose of purchasing Indenture and to apply all or providing permanent financing for such Residence and not for the purpose of refinancing any existing loan (except a construction period loan, a bridge loan or similar temporary initial financing which has a term of 24 months or less and that is acceptable to CDA), will have substantially level payments due the first day of each month, will have an original term of 360 months, will be made to an Eligible Borrower, as Borrower, and will contain the assumption restrictions required by Section 3.8 hereof and all other requirements portion of the Program Documents.purchase price to the redemption of such Outstanding Bonds; and
(e) The principal amount of a Mortgage Loan will not exceed any applicable Loan-to-Value Ratios as established under the Program Documents and by the GMI, PMI and the applicable Mortgage Certificate;
Upon (fi) As completion of the Purchase Datepurchase of the Leased Property pursuant to this Article 21, (ii) the Mortgage Loan will be eligible for endorsement for insurance under either:
payment of the purchase price therefor specified herein, and (1iii) a binding commitment for FHA Insurance under Section 203(bthe optional redemption of all Bonds Outstanding, but not prior to the occurrence of (i), 203(k)or 234(c)(ii) and (iii) herein, of this Lease and all obligations hereunder (including the National Housing Act of 1934;
(2obligations to pay the Basic Rent and Supplemental Rent) a binding commitment for a VA or RHS Guaranty under the Serviceman's Readjustment Act of 1944;
(3) a binding commitment for PMI; and such FHA Insurance, VA or RHS Guaranty, or Private Mortgage Guaranty shall be maintained in force and effect during all times such Mortgage Lender owns an interest in the Mortgage Loan under the Program;
(g) As of the Purchase Date, the Mortgage Loan will be secured by the Deed of Trust as required under the Program Documents and must be current as to principal and interest payments due thereunder;
(h) As of the Purchase Date, Mortgage Lender shall have in its possession terminate with respect to the property financed by the Mortgage Loan and secured by the Deed of Trust, and an American Land Title Association approved mortgagee guarantee title insurance policy, preliminary policy or binder as required by and set forth in the Program Documents;
(i) As of the Purchase Date, the improvements upon the real property subject to the Mortgage Loan will be covered by a valid and subsisting Standard Hazard Insurance Policy, condominium insurance and flood insurance, as applicable, and as required by the Program Documents;
(j) The terms, covenants and conditions of the Mortgage Loan shall not have been and shall not prior to the Purchase be waived, altered, impaired or modified in any respect which would materially affect the value, validity, enforceability, prompt payment of the Mortgage Loan, or the enforceability of the lien securing the Mortgage Loan, Leased Property except for such waivers, alterations and the like accomplished by Mortgage Lender prior to the Purchase Date acceptable under the Program Documents;
(k) As of the Purchase Date, there shall be no delinquent tax or delinquent assessment lien against the property financed by the Mortgage Loan unless allowed by the Program Documents;
(l) As of the Purchase Date, Mortgage Lender shall not have done any act to create an offset, defense or counterclaim to the Mortgage Loan, including the obligation of Borrower to pay the unpaid principal of and interest on the Mortgage Loan;
(m) As of the Purchase Date, the Mortgage Loan must be secured by a residential first lien Deed of Trust or a subordinate lien Deed of Trust as specified in the Program Documents;
(n) Mortgage Lender has reviewed applicable credit reports and related documents required in connection with any application by the potential Borrower to assure itself, prior to approving such application, that such potential Borrower has the capacity to repay the Mortgage Loan;
(o) As of the Purchase Date, Mortgage Lender has no knowledge of any circumstances or condition with respect to Borrower, the Single Family Residence, the Mortgage Loan actual or any related document that could reasonably be expected to cause prudent private investors in the secondary market to regard the Mortgage Loan as an unacceptable investment, or cause the Mortgage Loan to become delinquent or to adversely affect the value or the marketability contingent obligations and liabilities of the Mortgage Loan, and Mortgage Lender has no knowledge of any circumstances Tenant under this Lease which would cause the invalidation arose on or cancellation of the GMI or PMI of the Deed of Trust;
(p) Borrower has agreed to make payments with respect to the Mortgage Loan in accordance with this Origination Agreement;
(q) Each Mortgage and Assignment of Deed of Trust Note and Deed of Trust to Servicer shall have been executed and delivered to the Servicer (or filed and properly recorded, if required by the Servicer) prior to the Purchase of the related Mortgage Loan, and any different or other recording that might hereafter be required by Laws of the State to perfect the lien of real estate mortgages against the adverse or competing claims of third parties by giving public notice thereof shall also have been accomplished;
(r) An assumption may only be permitted in accordance with Section 3.8 and the Program Documents;
(s) As of the Purchase Date, the Mortgage Lender has no knowledge or other reason to believe that any of the representations or other statements contained in the affidavits of Seller, Borrower and Mortgage Lender are not true and correct;
(t) To the best knowledge of the Mortgage Lender, Borrower has not assigned any of its rights, title or Interest into or under the Mortgage Loan; and
(u) To the best knowledge of the Mortgage Lender, all such closing costs, fees and charges in connection with the Mortgage Loan do not exceed the usual and reasonable costs which would be paid here financing is not provided through the use of the proceeds of tax exempt bonds. (Note: If such settlement and financing costs, fees or similar charges exceed the amount which is usual and reasonable, the Mortgage Loan application shall be deemed deficient and the Mortgage Lender notified of such deficiencydate.) It is understood and agreed that the representations, warranties and covenants set forth in this Section shall survive the sale of the Mortgage Loans by the Mortgage Lender to Servicer and that the representations, warranties and covenants shall inure to the benefit of the transferees and assigns of Servicer which, under the Indenture, include CDA, ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, GNMA, and the Trustee. Upon discovery by Mortgage Lender, ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, GNMA, Servicer or CDA of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interest of CDA in any Mortgage Loan, the party discovering such breach shall give prompt written notice to the others. Within 60 days of its discovery or its receipt of notice of breach, the Mortgage Lender shall cure such breach in all material respects or shall purchase the Mortgage Loan in the manner and in the amount set forth in Section 3.7 hereof. It is understood and agreed that the obligation of the Mortgage Lender to purchase the Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to CDA and Servicer where Mortgage Lender has acted in good faith.
Appears in 1 contract
Sources: Master Lease (Carmike Cinemas Inc)
Closing Requirements. The Mortgage Lender represents and warrants to the Servicer that on or prior to the Closing Date, each Mortgage Loan shall have the following:
(a) A hazard insurance policy (providing fire and extended coverage, including wind damage, with an inflation adjustment provision) on the mortgaged property issued by a company:
(1) qualified to do business in the State; and
(2) approved by or acceptable to the PMI or GMI, as applicable.
(b) If the Residence is located in an area having special flood hazards, as identified by the Secretary of HUD, flood insurance shall be maintained in the amount equal to the lesser of the outstanding principal balance of the Mortgage Loan or the insurable value, but never less than the amount sufficient to prevent application of any co-insurance clause;
(c) Each Mortgage Loan (and all other documents in connection therewith, except the required appraisal) satisfies all applicable requirements set forth herein and in the Program Documents;
(d) Each Mortgage Loan will be made by the Mortgage Lender at the price set under the Program Documents, will be secured by a Deed of Trust which shall constitute a first mortgage lien on a Single Family Residence occupied by Borrower as such Borrower's permanent place of residence and will be located within the boundaries of the State, will be made substantially in accordance with Mortgage Lender's then current standard underwriting policies, the underwriting standards set forth in Program Documents, and the requirements established hereby, subject to acceptance of insurer under the FHA Insurance, VA or RHS Guaranty or requirements of the PMI, will be made for the purpose of purchasing or providing permanent financing for such Residence and not for the purpose of refinancing any existing loan (except a construction period loan, a bridge loan or similar temporary initial financing which has a term of 24 months or less and that is acceptable to CDA), will have substantially level payments due the first day of each month, will have an original term of 360 months, will be made to an Eligible Borrower, as Borrower, and will contain the assumption restrictions required by Section 3.8 hereof and all other requirements of the Program Documents.
(e) The principal amount of a Mortgage Loan will not exceed any applicable Loan-to-Value Ratios as established under the Program Documents and by the GMI, PMI and the applicable Mortgage Certificate;
(f) As of the Purchase Date, the Mortgage Loan will be eligible for endorsement for insurance under either:
(1) a binding commitment for FHA Insurance under Section 203(b), 203(k)or 234(c), of the National Housing Act of 1934;
(2) a binding commitment for a VA or RHS Guaranty under the Serviceman's Readjustment Act of 1944;
(3) a binding commitment for PMI; and such FHA Insurance, VA or RHS Guaranty, or Private Mortgage Guaranty shall be maintained in force and effect during all times such Mortgage Lender owns an interest in the Mortgage Loan under the Program;
(g) As of the Purchase Date, the Mortgage Loan will be secured by the Deed of Trust as required under the Program Documents and must be current as to principal and interest payments due thereunder;
(h) As of the Purchase Date, Mortgage Lender shall have in its possession with respect to the property financed by the Mortgage Loan and secured by the Deed of Trust, and an American Land Title Association approved mortgagee guarantee title insurance policy, preliminary policy or binder as required by and set forth in the Program Documents;
(i) As of the Purchase Date, the improvements upon the real property subject to the Mortgage Loan will be covered by a valid and subsisting Standard Hazard Insurance Policy, condominium insurance and flood insurance, as applicable, and as required by the Program Documents;
(j) The terms, covenants and conditions of the Mortgage Loan shall not have been and shall not prior to the Purchase be waived, altered, impaired or modified in any respect which would materially affect the value, validity, enforceability, prompt payment of the Mortgage Loan, or the enforceability of the lien securing the Mortgage Loan, except for such waivers, alterations and the like accomplished by Mortgage Lender prior to the Purchase Date acceptable under the Program Documents;
(k) As of the Purchase Date, there shall be no delinquent tax or delinquent assessment lien against the property financed by the Mortgage Loan unless allowed by the Program Documents;
(l) As of the Purchase Date, Mortgage Lender shall not have done any act to create an offset, defense or counterclaim to the Mortgage Loan, including the obligation of Borrower to pay the unpaid principal of and interest on the Mortgage Loan;
(m) As of the Purchase Date, the Mortgage Loan must be secured by a residential first lien Deed of Trust or a subordinate lien Deed of Trust as specified in the Program Documents;
(n) Mortgage Lender has reviewed applicable credit reports and related documents required in connection with any application by the potential Borrower to assure itself, prior to approving such application, that such potential Borrower has the capacity to repay the Mortgage Loan;
(o) As of the Purchase Date, Mortgage Lender has no knowledge of any circumstances or condition with respect to Borrower, the Single Family Residence, the Mortgage Loan or any related document that could reasonably be expected to cause prudent private investors in the secondary market to regard the Mortgage Loan as an unacceptable investment, or cause the Mortgage Loan to become delinquent or to adversely affect the value or the marketability of the Mortgage Loan, and Mortgage Lender has no knowledge of any circumstances which would cause the invalidation or cancellation of the GMI or PMI of the Deed of Trust;
(p) Borrower has agreed to make payments with respect to the Mortgage Loan in accordance with this Origination Agreement;
(q) Each Mortgage and Assignment of Deed of Trust Note and Deed of Trust to Servicer shall have been executed and delivered to the Servicer (or filed and properly recorded, if required by the Servicer) prior to the Purchase of the related Mortgage Loan, and any different or other recording that might hereafter be required by Laws of the State to perfect the lien of real estate mortgages against the adverse or competing claims of third parties by giving public notice thereof shall also have been accomplished;
(r) An assumption may only be permitted in accordance with Section 3.8 and the Program Documents;
(s) As of the Purchase Date, the Mortgage Lender has no knowledge or other reason to believe that any of the representations or other statements contained in the affidavits of Seller, Borrower Hartman and Mortgage Lender are not true and correct;
(t) To Purchaser shall take the best knowledge of the Mortgage Lender, Borrower has not assigned any of its rights, title or Interest into or under the Mortgage Loan; and
(u) To the best knowledge of the Mortgage Lender, all closing costs, fees and charges in connection with the Mortgage Loan do not exceed the usual and reasonable costs which would be paid here financing is not provided through the use of the proceeds of tax exempt bonds. (Note: If such settlement and financing costs, fees or similar charges exceed the amount which is usual and reasonable, the Mortgage Loan application shall be deemed deficient and the Mortgage Lender notified of such deficiency.) It is understood and agreed that the representations, warranties and covenants set forth in this Section shall survive the sale of the Mortgage Loans by the Mortgage Lender to Servicer and that the representations, warranties and covenants shall inure to the benefit of the transferees and assigns of Servicer which, under the Indenture, include CDA, ▇▇▇▇▇▇ Mae, f▇▇▇▇▇▇▇ Mac▇g actions ("Closing Requirements") at or prior to the Closing:
4.2.1. Seller shall take such actions and execute and deliver to Purchaser such bills of sale, GNMAcertificates of title, endorsements, assignments, or other instruments, with all documentary or transfer taxes applicable thereto duly paid or provided for, as shall be necessary to vest in Purchaser at the Effective Time good and marketable title to the TrusteePurchased Assets and to assign to Purchaser such leases with respect to real property and other Purchased Contracts as are being assumed by Purchaser in connection herewith, together with all necessary consents of third parties applicable thereto, subject in each case to no liens, encumbrances, claims, restrictions, security interests, obligations, liabilities or rights in any other party whatsoever except for the Assumed Liabilities.
4.2.2. Upon discovery Seller shall have delivered to Purchaser a certified copy (certified by Mortgage Lenderthe Secretary of State of Florida) of Seller's Articles of Incorporation, ▇▇▇including all amendments thereto and restatements thereof.
4.2.3. Seller shall have delivered to Purchaser a certified copy (certified by the Secretary or other appropriate officer of Seller) of Seller's Bylaws, including all amendments thereto and restatements thereof.
4.2.4. Seller shall have delivered to Purchaser certified copies (certified by the Secretary or other appropriate officer of Seller) of resolutions and/or consents setting forth the authorization and approval of the Board of Directors and shareholders of Seller of the execution, delivery and performance of this Agreement and all other agreements, documents and transactions pertaining hereto or contemplated hereby.
4.2.5. Seller and Hartman shall have executed and delive▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, GNMA, Servicer or CDA of a breach of any of Purchaser the foregoing representations, warranties Noncompetition and covenants which materially and adversely affects the value of any Mortgage Loan or the interest of CDA in any Mortgage Loan, the party discovering such breach shall give prompt written notice to the others. Within 60 days of its discovery or its receipt of notice of breach, the Mortgage Lender shall cure such breach in all material respects or shall purchase the Mortgage Loan in the manner Confidentiality Agreement (as hereinafter defined and in the amount set forth in Section 3.7 hereofform of Exhibit A hereto).
4.2.6. It is understood and agreed that the obligation Seller shall have delivered to Purchaser a certificate of the Mortgage Lender to purchase Secretary or other appropriate office of Seller dated the Mortgage Loan Closing Date certifying as to which the incumbency of officers and Directors of Seller, the accuracy and completeness of the Articles of Incorporation and Bylaws of Seller, the continuing effectiveness of Seller's authorizing resolutions, and such additional matters as are customary for similar transactions and as Purchaser shall reasonably request.
4.2.7. Seller shall have delivered to Purchaser certificates of public officials as of a breach has occurred current date evidencing (a) the corporate existence of and is continuing compliance with all reporting requirements by Seller in the State of Florida, and (b) Seller's authorization to do business and good standing as a foreign corporation in the Commonwealth of Kentucky.
4.2.8. Purchaser shall constitute have delivered to Seller certified copies (certified by the Secretary or other appropriate officer of PMI Administration, Inc., the sole remedy respecting general partner of Purchaser) of resolutions and/or consents setting forth the authorization and approval of the Board of Directors of PMI Administration, Inc. as general partner of Purchaser of the execution, delivery and performance of this Agreement and all other agreements, documents and transactions pertaining hereto or contemplated hereby.
4.2.9. Purchaser shall pay the Purchase Price to Seller.
4.2.10. Seller and Purchaser shall mutually execute and deliver such breach available other agreements, instruments, certificates or other documents as shall be reasonably required or requested to CDA and Servicer where Mortgage Lender has acted in good faitheffect the transactions contemplated hereby.
Appears in 1 contract
Sources: Asset Purchase Agreement (Personnel Management Inc)
Closing Requirements. The Mortgage Lender represents issue and warrants sale of the Units and the release of the funds from the Escrow Account to the Servicer that on or prior Trust shall be subject to the accuracy on and as of the Closing DateDate of, and compliance on each Mortgage Loan shall have Closing Date 9 10 with, the followingrepresentations and warranties of the Managing Owner, the Selling Agent and the Clearing Broker herein and the performance by the Trust, the Managing Owner, the Selling Agent and the Clearing Broker of their obligations hereunder and the following conditions:
(a) A hazard insurance policy The Trust, the Selling Agent and the Clearing Broker shall have received a certificate of the Managing Owner executed by an officer of the Managing Owner, which shall state that (providing fire i) no order suspending the effectiveness of the Registration Statement, as it may be amended, or prohibiting the sale of the Units is in effect and extended coverageno proceedings for such purpose are pending before or, including wind damage, with an inflation adjustment provision) on the mortgaged property issued by a company:
(1) qualified to do business in the State; and
(2) approved by or acceptable to the PMI knowledge of such officers, threatened by the SEC, (ii) no adverse comments or GMIdeficiency notices relating to the Prospectus have been received from the CFTC or NFA which have not been responded to the satisfaction of such agencies and (iii) the representations and warranties of the Managing Owner contained herein are true and correct on and as of the Closing Date, and the Managing Owner and the Trust, as applicablethe case may be, have performed all covenants and agreements herein contained to be performed on their respective parts at or prior to the date of the certificate.
(b) If At the Residence is located in an area having special flood hazardsinitial Closing Date, as identified by the Secretary of HUDSidley & Austin, flood insurance shall be maintained in the amount equal counsel to the lesser Managing Owner, shall deliver to all the parties hereto its opinion, in form and substance satisfactory to each of the outstanding principal balance of the Mortgage Loan or the insurable valueparties hereto, but never less than the amount sufficient to prevent application of any co-insurance clause;
(c) Each Mortgage Loan (and all other documents in connection therewith, except the required appraisal) satisfies all applicable requirements set forth herein and in the Program Documents;
(d) Each Mortgage Loan will be made by the Mortgage Lender at the price set under the Program Documents, will be secured by a Deed of Trust which shall constitute a first mortgage lien on a Single Family Residence occupied by Borrower as such Borrower's permanent place of residence and will be located within the boundaries of the State, will be made substantially in accordance with Mortgage Lender's then current standard underwriting policies, the underwriting standards set forth in Program Documents, and the requirements established hereby, subject to acceptance of insurer under the FHA Insurance, VA or RHS Guaranty or requirements of the PMI, will be made for the purpose of purchasing or providing permanent financing for such Residence and not for the purpose of refinancing any existing loan (except a construction period loan, a bridge loan or similar temporary initial financing which has a term of 24 months or less and that is acceptable to CDA), will have substantially level payments due the first day of each month, will have an original term of 360 months, will be made to an Eligible Borrower, as Borrower, and will contain the assumption restrictions required by Section 3.8 hereof and all other requirements of the Program Documents.
(e) The principal amount of a Mortgage Loan will not exceed any applicable Loan-to-Value Ratios as established under the Program Documents and by the GMI, PMI and the applicable Mortgage Certificate;
(f) As of the Purchase Date, the Mortgage Loan will be eligible for endorsement for insurance under either:
(1) a binding commitment for FHA Insurance under Section 203(b), 203(k)or 234(c), of the National Housing Act of 1934;
(2) a binding commitment for a VA or RHS Guaranty under the Serviceman's Readjustment Act of 1944;
(3) a binding commitment for PMI; and such FHA Insurance, VA or RHS Guaranty, or Private Mortgage Guaranty shall be maintained in force and effect during all times such Mortgage Lender owns an interest in the Mortgage Loan under the Program;
(g) As of the Purchase Date, the Mortgage Loan will be secured by the Deed of Trust as required under the Program Documents and must be current as to principal and interest payments due thereunder;
(h) As of the Purchase Date, Mortgage Lender shall have in its possession with respect to the property financed by the Mortgage Loan and secured by the Deed of Trust, and an American Land Title Association approved mortgagee guarantee title insurance policy, preliminary policy or binder as required by and set forth in the Program Documents;effect that:
(i) As Upon payment of the Purchase Dateconsideration therefor specified in the accepted Subscription Agreements and Powers of Attorney, the improvements upon Units will constitute valid units of beneficial interest in the real property Trust and each subscriber who purchases Units will become a Unitholder, subject to the Mortgage Loan will be covered by a valid and subsisting Standard Hazard Insurance Policy, condominium insurance and flood insurance, as applicable, and as required by the Program Documents;
(j) The terms, covenants and conditions of the Mortgage Loan shall not have been and shall not prior to the Purchase be waived, altered, impaired or modified in any respect which would materially affect the value, validity, enforceability, prompt payment of the Mortgage Loan, or the enforceability of the lien securing the Mortgage Loan, except for requirement that each such waivers, alterations and the like accomplished by Mortgage Lender prior to the Purchase Date acceptable under the Program Documents;
(k) As of the Purchase Date, there shall be no delinquent tax or delinquent assessment lien against the property financed by the Mortgage Loan unless allowed by the Program Documents;
(l) As of the Purchase Date, Mortgage Lender shall not have done any act to create an offset, defense or counterclaim to the Mortgage Loan, including the obligation of Borrower to pay the unpaid principal of and interest on the Mortgage Loan;
(m) As of the Purchase Date, the Mortgage Loan must be secured by a residential first lien Deed of Trust or a subordinate lien Deed of Trust as specified in the Program Documents;
(n) Mortgage Lender has reviewed applicable credit reports and related documents required in connection with any application by the potential Borrower to assure itself, prior to approving such application, that such potential Borrower has the capacity to repay the Mortgage Loan;
(o) As of the Purchase Date, Mortgage Lender has no knowledge of any circumstances or condition with respect to Borrower, the Single Family Residence, the Mortgage Loan or any related document that could reasonably be expected to cause prudent private investors in the secondary market to regard the Mortgage Loan as an unacceptable investment, or cause the Mortgage Loan to become delinquent or to adversely affect the value or the marketability of the Mortgage Loan, and Mortgage Lender has no knowledge of any circumstances which would cause the invalidation or cancellation of the GMI or PMI of the Deed of Trust;
(p) Borrower has agreed to make payments with respect to the Mortgage Loan in accordance with this Origination Agreement;
(q) Each Mortgage and Assignment of Deed of Trust Note and Deed of Trust to Servicer purchaser shall have been duly completed, executed and delivered to the Servicer (or filed Trust a Subscription Agreement and properly recorded, if required by the Servicer) prior Power of Attorney relating to the Purchase Units purchased by such party, that such purchaser meets all applicable suitability standards as set forth in the Prospectus and that the representations and warranties of such purchaser in the Subscription Agreement and Power of Attorney are true and correct.
(ii) The Trust need not effect any other filings or qualifications under the laws of the related Mortgage Loan, United States and any different or other recording that might hereafter be required by Laws the States of Illinois and New York in order to preserve the status of the Trust as a business trust or to enable the Trust to perform its obligations under this Agreement and to conduct the business in which it proposes to be engaged as described in the Prospectus.
(iii) The Managing Owner is qualified to do business and is in good standing as a foreign corporation in each other jurisdiction in which the failure to so qualify might, in their opinion, reasonably be expected to result in material adverse consequences to the Trust.
(iv) Each of the Managing Owner (including the principals, as defined in the Commodity Act, of the Managing Owner) and the Trust has all Federal and Illinois and New York State governmental and regulatory licenses and approvals and has received or made all filings and registrations with Federal and Illinois and New York State governmental and regulatory agencies necessary in order for each of the Managing Owner and the Trust to perfect conduct its business as described in the lien Registration Statement and Prospectus, and, to the best of real estate mortgages against the adverse their knowledge, none of such approvals, licenses or competing claims of third parties by giving public notice thereof shall also registrations have been accomplished;rescinded or revoked.
(rv) An assumption Each of the Trust Agreement, the Customer Agreement and this Agreement, assuming that such agreements are legal, valid and binding on the other parties hereto and thereto, constitutes a legal, valid and binding agreement of the Managing Owner or the Trust (as the case may only be permitted be) enforceable in accordance with Section 3.8 its terms, except to the extent enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability relating to or affecting the enforcement of creditors' rights and by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(vi) The execution and delivery of this Agreement, the Trust Agreement and the Program Documents;Customer Agreement and the incurrence of the obligations herein and therein set forth and the consummation of the transactions contemplated herein and therein and in the Prospectus, to their knowledge, will not constitute a breach of, or default under, any instrument by which the Managing Owner or the Trust is 10 11 bound or any order, rule or regulation applicable to the Managing Owner or the Trust of any court or any governmental body or administrative agency having jurisdiction over the Managing Owner or the Trust.
(svii) As To their knowledge, there are no actions, claims or proceedings pending or threatened in any court or before or by any governmental or administrative body, nor have there been any such suits, claims or proceeding within the last five years, to which the Managing Owner (or any principal of the Purchase DateManaging Owner) or the Trust is or was a party, or to which any of their assets is or was subject, which are required to be, but are not disclosed in, the Mortgage Lender Registration Statement or Prospectus or which might reasonably be expected to materially adversely affect the condition (financial or otherwise), business or prospects of the Managing Owner or the Trust.
(viii) No authorization, approval or consent of any governmental authority or agency is necessary in connection with the subscription for and sale of the Units, except such as may be required under the Securities Act, the Commodity Act, NFA compliance rules or applicable securities or "Blue Sky" laws.
(ix) The terms and provisions of the Trust Agreement, the Customer Agreement and this Agreement conforms in all material respects to descriptions thereof contained in the Prospectus.
(x) The Registration Statement is effective under the Securities Act and, to the best of their knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act.
(xi) At the time the Registration Statement initially became effective and at the time any post-effective amendment thereto became effective, the Registration Statement, and at the time the Prospectus and any amendments or supplements thereto were first issued, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Rules and CFTC regulations. Nothing has no knowledge or other reason come to their attention that would lead them to believe that with respect to the Managing Owner and the Selling Agent (a) at the time the Registration Statement initially became effective and at the time any post-effective amendment thereto became effective, the Registration Statement contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (b) the Prospectus as first issued or as subsequently issued or at the initial Closing Date contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the representations circumstances under which they were made, not misleading; provided, however, that such counsel need express no opinion (A) as to the financial statements, notes thereto and other financial or other statements contained statistical data set forth in the affidavits Registration Statement and Prospectus or (B) as to any performance data set forth in the Registration Statement, and Prospectus, including the performance summaries (and the notes thereto) in the Registration Statement and Prospectus, except that such counsel shall opine, without rendering any opinion as to the accuracy of Sellerthe information in the performance summaries, Borrower and Mortgage Lender are not true and correct;that such the performance summaries comply as to form in all material respects with applicable CFTC rules.
(txii) Such counsel confirm their opinion, a form of which appears as Exhibit 8.01 to the Registration Statement, that the summary of Federal income tax consequences to Unitholders set forth under the caption "Federal Income Tax Aspects" in the Prospectus accurately describes the material tax consequences set forth therein and that such counsel further confirm their advice to the Managing Owner explicitly set forth therein and in such Exhibit 8.01.
(xiii) To the best knowledge of their knowledge, (a) there are no contracts, indentures, mortgages, loan agreements, leases or other documents of a character required to be described or referred to in the Mortgage LenderRegistration Statement or Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed as exhibits thereto, Borrower has not assigned any of its rightsand with respect to the existing contracts, title indentures, mortgages, loan agreements, leases and other documents so described, referred to or Interest into or under the Mortgage Loan; and
(u) To the best knowledge of the Mortgage Lender, all closing costs, fees and charges in connection with the Mortgage Loan do not exceed the usual and reasonable costs which would be paid here financing is not provided through the use of the proceeds of tax exempt bonds. (Note: If such settlement and financing costs, fees or similar charges exceed the amount which is usual and reasonablefiled, the Mortgage Loan application shall be deemed deficient and the Mortgage Lender notified of such deficiency.) It is understood and agreed that the representationsdescriptions thereof, warranties and covenants set forth in this Section shall survive the sale of the Mortgage Loans by the Mortgage Lender to Servicer and that the representations, warranties and covenants shall inure to the benefit of the transferees and assigns of Servicer which, under the Indenture, include CDA, ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, GNMA, and the Trustee. Upon discovery by Mortgage Lender, ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, GNMA, Servicer references thereto or CDA of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interest of CDA in any Mortgage Loan, the party discovering such breach shall give prompt written notice to the others. Within 60 days of its discovery or its receipt of notice of breach, the Mortgage Lender shall cure such breach copies so filed are correct in all material respects or shall purchase the Mortgage Loan in the manner and in the amount set forth in Section 3.7 hereof. It is understood and agreed that the obligation of the Mortgage Lender to purchase the Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to CDA and Servicer where Mortgage Lender has acted in good faith.material
Appears in 1 contract
Sources: Selling Agreement (Campbell Alternative Asset Trust)
Closing Requirements. At the Closing, the following shall occur:
(a) The Mortgage Lender represents and warrants Purchaser shall (A) pay to Parent (for subsequent distribution by Parent to the Servicer that Stock Sellers and the Business Sellers, under the sole responsibility of Parent, as set forth in Section 2.1), by wire transfer of immediately available funds to the account designated by Parent on or before the second Business Day prior to the Closing Date, each Mortgage Loan shall have the following:
(a) A hazard insurance policy (providing fire and extended coverage, including wind damage, with an inflation adjustment provision) any amount referred to in Article II as payable on the mortgaged property issued by a company:
Closing Date, and (1B) qualified deliver to do business in Parent the State; and
(2) approved by or acceptable to the PMI or GMI, as applicable.Note;
(b) If Subject to the Residence is located in an area having special flood hazardsterms and conditions hereof, Parent will cause the respective Stock Sellers and Business Sellers to, and the Purchaser will, consummate the transactions under the various Local Agreements, as identified by set forth on Schedule 8.6(b) hereto, providing for the Secretary of HUDsale, flood insurance shall be maintained in the amount equal to the lesser transfer, assignment or other direct or indirect conveyance of the outstanding principal balance Transferred Assets and the Transferred Stock to Purchaser, effective as of the Mortgage Loan or the insurable value, but never less than the amount sufficient to prevent application of any co-insurance clause;Closing Date.
(c) The parties shall execute and cause to be executed the following agreements: – The Transition Services Agreements (as defined in Section 6.11); – The transitional intellectual property license agreement referred to in Section 6.12; – The escrow agreement referred to in Section 6.2(b); and – The agreement relating to Parent’s indemnification of Purchaser for obligations arising under the German pension funds. Each Mortgage Loan (relevant Stock Seller shall deliver or cause to be delivered letters of resignation of the board members and all other documents auditors or, as the case may be, the general partner, of each relevant Transferred Subsidiary in connection therewith, except the required appraisal) satisfies all applicable requirements set forth herein and in the Program Documentsaccordance with Section 6.10;
(d) Each Mortgage Loan will be made Business Seller shall deliver, and each Stock Seller shall cause each Transferred Subsidiary to deliver, resolutions of the board of management, supervisory board, board of directors, or obtain a vote of shareholders at a general meeting of such shareholders of such Business Seller or such Transferred Subsidiary acknowledging or approving the transfer of the Transferred Stock and Transferred Assets and the assumption of the Assumed Liabilities, wherever any such acknowledgement or approval is required by the Mortgage Lender at the price set law or under the Program Documentsconstitutional documents of such Business Seller or Transferred Subsidiary; (f) Parent shall deliver to the Purchaser a certificate dated the Closing Date attesting the representations and warranties of Parent, will be secured by a Deed of Trust which shall constitute a first mortgage lien for its own account or on a Single Family Residence occupied by Borrower as such Borrower's permanent place of residence and will be located within the boundaries behalf of the State, will be made substantially in accordance with Mortgage Lender's then current standard underwriting policiesStock Sellers, the underwriting standards set forth Business Sellers or the Transferred Subsidiaries, contained in Program Documentsthis Agreement are true and correct in all respects, and the requirements established hereby, subject to acceptance of insurer under the FHA Insurance, VA or RHS Guaranty or requirements as of the PMI, will be made for the purpose of purchasing or providing permanent financing for such Residence and not for the purpose of refinancing any existing loan (except a construction period loan, a bridge loan or similar temporary initial financing which has a term of 24 months or less and that is acceptable to CDA), will have substantially level payments due the first day of each month, will have an original term of 360 months, will be made to an Eligible Borrower, as Borrower, and will contain the assumption restrictions required by Section 3.8 hereof and all other requirements time of the Program DocumentsClosing as though made as of such time.
(e) The principal amount Purchaser shall deliver to Parent a certificate dated the Closing Date attesting the representations and warranties of a Mortgage Loan will not exceed any applicable Loan-to-Value Ratios the Purchaser contained in this Agreement are true and correct in all respects, as established under of the Program Documents and by time of the GMI, PMI and the applicable Mortgage Certificate;Closing as though made as of such time.
(f) As Parent shall deliver to the Purchaser a certificate dated the Closing Date attesting all of the Purchase Dateobligations and covenants of Parent, for its own account or on behalf of the Stock Sellers, the Mortgage Loan will Business Sellers or the Transferred Subsidiaries, (including the Secondary Transfers) required to be eligible for endorsement for insurance under either:
(1) a binding commitment for FHA Insurance under Section 203(b), 203(k)or 234(c), of performed at or prior to the National Housing Act of 1934;
(2) a binding commitment for a VA or RHS Guaranty under Closing pursuant to the Serviceman's Readjustment Act of 1944;
(3) a binding commitment for PMI; and such FHA Insurance, VA or RHS Guaranty, or Private Mortgage Guaranty terms hereof shall be maintained have been duly performed in force and effect during all times such Mortgage Lender owns an interest in the Mortgage Loan under the Program;material respects.
(g) As The Purchaser shall deliver to Parent a certificate dated the Closing Date attesting all of the Purchase Date, obligations and covenants of the Mortgage Loan will Purchaser required to be secured by performed at or prior to the Deed of Trust as required under Closing pursuant to the Program Documents and must be current as to principal and interest payments due thereunder;terms hereof shall have been duly performed in all material respects.
(h) As of All other payments required to be made by a party on the Purchase Date, Mortgage Lender shall have in its possession with respect Closing Date pursuant to this Agreement or any other agreement signed prior to the property financed by Closing Date (including the Mortgage Loan and secured by one referred to in Section 6.6 (b) (iii) an the Deed of Trust, and an American Land Title Association approved mortgagee guarantee title insurance policy, preliminary policy or binder as required by and set forth one referred to in the Program DocumentsSection 6.7 (d)) shall be paid;
(i) As All other documents, instruments and writings required to be delivered by a party at or prior to the Closing Date pursuant to this Agreement shall be delivered (if not previously delivered) to the party entitled thereto, including, for the avoidance of doubt, all documents evidencing the satisfaction or waiver of the Purchase Date, the improvements upon the real property subject to the Mortgage Loan will be covered by a valid and subsisting Standard Hazard Insurance Policy, condominium insurance and flood insurance, as applicable, and as required by the Program Documents;conditions or requirements set forth in Article VIII: and
(j) The termsParent will cause each Stock Seller to cause each Transferred Subsidiary to deliver (i) resolutions of its respective board of management, covenants supervisory board or board of directors approving, for purposes of submission to the statutory auditors, the December 31, 2004 financial statements of such entity, (ii) the unaudited financial statements as of and conditions for December 31, 2004 and (iii) to the extent they can be prepared prior to completion of the Mortgage Loan shall not have been and shall not prior to audit by the Purchase be waivedstatutory auditors, altered, impaired or modified in any respect which would materially affect the value, validity, enforceability, prompt payment management reports (“rapport de gestion”)(and other documents required for purposes of the Mortgage Loan, or the enforceability of the lien securing the Mortgage Loan, except for statutory auditors’ review) on such waivers, alterations and the like accomplished by Mortgage Lender prior to the Purchase Date acceptable under the Program Documents;
(k) As of the Purchase Date, there shall be no delinquent tax or delinquent assessment lien against the property financed by the Mortgage Loan unless allowed by the Program Documents;
(l) As of the Purchase Date, Mortgage Lender shall not have done any act to create an offset, defense or counterclaim to the Mortgage Loan, including the obligation of Borrower to pay the unpaid principal of and interest on the Mortgage Loan;
(m) As of the Purchase Date, the Mortgage Loan must be secured by a residential first lien Deed of Trust or a subordinate lien Deed of Trust as specified in the Program Documents;
(n) Mortgage Lender has reviewed applicable credit reports and related documents required in connection with any application by the potential Borrower to assure itself, prior to approving such application, that such potential Borrower has the capacity to repay the Mortgage Loan;
(o) As of the Purchase Date, Mortgage Lender has no knowledge of any circumstances or condition with respect to Borrower, the Single Family Residence, the Mortgage Loan or any related document that could reasonably be expected to cause prudent private investors in the secondary market to regard the Mortgage Loan as an unacceptable investment, or cause the Mortgage Loan to become delinquent or to adversely affect the value or the marketability of the Mortgage Loan, and Mortgage Lender has no knowledge of any circumstances which would cause the invalidation or cancellation of the GMI or PMI of the Deed of Trust;
(p) Borrower has agreed to make payments with respect to the Mortgage Loan in accordance with this Origination Agreement;
(q) Each Mortgage and Assignment of Deed of Trust Note and Deed of Trust to Servicer shall have been executed and delivered to the Servicer (or filed and properly recorded, if required by the Servicer) prior to the Purchase of the related Mortgage Loan, and any different or other recording that might hereafter be required by Laws of the State to perfect the lien of real estate mortgages against the adverse or competing claims of third parties by giving public notice thereof shall also have been accomplished;
(r) An assumption may only be permitted in accordance with Section 3.8 and the Program Documents;
(s) As of the Purchase Date, the Mortgage Lender has no knowledge or other reason to believe that any of the representations or other statements contained in the affidavits of Seller, Borrower and Mortgage Lender are not true and correct;
(t) To the best knowledge of the Mortgage Lender, Borrower has not assigned any of its rights, title or Interest into or under the Mortgage Loan; and
(u) To the best knowledge of the Mortgage Lender, all closing costs, fees and charges in connection with the Mortgage Loan do not exceed the usual and reasonable costs which would be paid here financing is not provided through the use of the proceeds of tax exempt bonds. (Note: If such settlement and financing costs, fees or similar charges exceed the amount which is usual and reasonable, the Mortgage Loan application shall be deemed deficient and the Mortgage Lender notified of such deficiencyfinancial statements.) It is understood and agreed that the representations, warranties and covenants set forth in this Section shall survive the sale of the Mortgage Loans by the Mortgage Lender to Servicer and that the representations, warranties and covenants shall inure to the benefit of the transferees and assigns of Servicer which, under the Indenture, include CDA, ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, GNMA, and the Trustee. Upon discovery by Mortgage Lender, ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, GNMA, Servicer or CDA of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interest of CDA in any Mortgage Loan, the party discovering such breach shall give prompt written notice to the others. Within 60 days of its discovery or its receipt of notice of breach, the Mortgage Lender shall cure such breach in all material respects or shall purchase the Mortgage Loan in the manner and in the amount set forth in Section 3.7 hereof. It is understood and agreed that the obligation of the Mortgage Lender to purchase the Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to CDA and Servicer where Mortgage Lender has acted in good faith.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Newell Rubbermaid Inc)
Closing Requirements. At the Closing, each of the parties shall execute and deliver such instruments and documents and take such other actions as may, in the reasonable opinion of counsel for each, be required to complete the transactions under this Agreement. The Mortgage Lender represents following documents shall have been delivered and warrants the following activities shall be deemed to have taken place contemporaneously at the Closing:
a) the securities to be delivered pursuant to Subparagraph 2.1 have been delivered to the Servicer respective parties duly endorsed or issued as the case may be, pursuant to Subparagraphs 1.3 and 2.1.
b) delivery of all corporate records of Acquiree, including without limitation, corporate minute books (which shall contain copies of the Articles of Incorporation and Bylaws, as amended to the Closing), stock books, stock transfer books, corporate seals, and such other corporate books and records as may be reasonably requested for review by Acquiror;
c) delivery of the evidence of cancellation of debts and release of liens by the Debt Holders satisfactory to Acquiror pursuant to Subparagraph 1.1 hereof;
d) a certificate of the President and the Secretary of Acquiree to the effect that all representations and warranties of Acquiree made under this Agreement are reaffirmed on or prior to the Closing Date, each Mortgage Loan shall have the following:same as though originally given to Acquiror on said date as set forth herein; -------------------------------------------------------------------------------
(ae) A hazard insurance policy (providing fire the Subscription Agreements of the Stockholders;
f) a certificate from the West Virginia Secretary of State dated at or about the date of the Closing to the effect that Acquiree is in good standing under the laws of said State;
g) copies of resolutions by Acquiree's Board of Directors authorizing this Agreement;
h) resignations of all of the members of the Board of Directors and extended coverage, including wind damage, with an inflation adjustment provisionofficers of Acquiree effective as of the Closing Date;
i) a certificate of the President and the Secretary of Acquiror to the effect that all representations and warranties of Acquiror made under this Agreement are reaffirmed on the mortgaged property issued Closing Date, the same as though originally given to Acquiree and Stockholders on said date;
j) copies of resolutions by Acquiror's Board of Directors authorizing this Agreement;
k) a company:
(1) qualified certificate from the Secretary of State of Nevada dated at or about the date of Closing to do business the effect that Acquiror is in good standing under the laws of said State; and
(2) approved by or acceptable to the PMI or GMI, as applicable.
(b) If the Residence is located in an area having special flood hazards, as identified by the Secretary of HUD, flood insurance shall be maintained in the amount equal to the lesser of the outstanding principal balance of the Mortgage Loan or the insurable value, but never less than the amount sufficient to prevent application of any co-insurance clause;
(c) Each Mortgage Loan (and all other documents in connection therewith, except the required appraisal) satisfies all applicable requirements set forth herein and in the Program Documents;
(d) Each Mortgage Loan will be made by the Mortgage Lender at the price set under the Program Documents, will be secured by a Deed of Trust which shall constitute a first mortgage lien on a Single Family Residence occupied by Borrower as such Borrower's permanent place of residence and will be located within the boundaries of the State, will be made substantially in accordance with Mortgage Lender's then current standard underwriting policies, the underwriting standards set forth in Program Documents, and the requirements established hereby, subject to acceptance of insurer under the FHA Insurance, VA or RHS Guaranty or requirements of the PMI, will be made for the purpose of purchasing or providing permanent financing for such Residence and not for the purpose of refinancing any existing loan (except a construction period loan, a bridge loan or similar temporary initial financing which has a term of 24 months or less and that is acceptable to CDA), will have substantially level payments due the first day of each month, will have an original term of 360 months, will be made to an Eligible Borrower, as Borrower, and will contain the assumption restrictions required by Section 3.8 hereof and all other requirements of the Program Documents.
(e) The principal amount of a Mortgage Loan will not exceed any applicable Loan-to-Value Ratios as established under the Program Documents and by the GMI, PMI and the applicable Mortgage Certificate;
(f) As of the Purchase Date, the Mortgage Loan will be eligible for endorsement for insurance under either:
(1) a binding commitment for FHA Insurance under Section 203(b), 203(k)or 234(c), of the National Housing Act of 1934;
(2) a binding commitment for a VA or RHS Guaranty under the Serviceman's Readjustment Act of 1944;
(3) a binding commitment for PMI; and such FHA Insurance, VA or RHS Guaranty, or Private Mortgage Guaranty shall be maintained in force and effect during all times such Mortgage Lender owns an interest in the Mortgage Loan under the Program;
(g) As of the Purchase Date, the Mortgage Loan will be secured by the Deed of Trust as required under the Program Documents and must be current as to principal and interest payments due thereunder;
(h) As of the Purchase Date, Mortgage Lender shall have in its possession with respect to the property financed by the Mortgage Loan and secured by the Deed of Trust, and an American Land Title Association approved mortgagee guarantee title insurance policy, preliminary policy or binder as required by and set forth in the Program Documents;
(i) As of the Purchase Date, the improvements upon the real property subject to the Mortgage Loan will be covered by a valid and subsisting Standard Hazard Insurance Policy, condominium insurance and flood insurance, as applicable, and as required by the Program Documents;
(j) The terms, covenants and conditions of the Mortgage Loan shall not have been and shall not prior to the Purchase be waived, altered, impaired or modified in any respect which would materially affect the value, validity, enforceability, prompt payment of the Mortgage Loan, or the enforceability of the lien securing the Mortgage Loan, except for such waivers, alterations and the like accomplished by Mortgage Lender prior to the Purchase Date acceptable under the Program Documents;
(k) As of the Purchase Date, there shall be no delinquent tax or delinquent assessment lien against the property financed by the Mortgage Loan unless allowed by the Program Documents;
(l) As of the Purchase Date, Mortgage Lender shall not parties hereto have done any act to create an offset, defense or counterclaim to the Mortgage Loan, including the obligation of Borrower to pay the unpaid principal of and interest on the Mortgage Loan;
(m) As of the Purchase Date, the Mortgage Loan must be secured by a residential first lien Deed of Trust or a subordinate lien Deed of Trust as specified in the Program Documents;
(n) Mortgage Lender has reviewed applicable credit reports and related documents required in connection with any application by the potential Borrower to assure itself, prior to approving such application, that such potential Borrower has the capacity to repay the Mortgage Loan;
(o) As of the Purchase Date, Mortgage Lender has no knowledge of any circumstances or condition with respect to Borrower, the Single Family Residence, the Mortgage Loan or any related document that could reasonably be expected to cause prudent private investors in the secondary market to regard the Mortgage Loan as an unacceptable investment, or cause the Mortgage Loan to become delinquent or to adversely affect the value or the marketability of the Mortgage Loan, and Mortgage Lender has no knowledge of any circumstances which would cause the invalidation or cancellation of the GMI or PMI of the Deed of Trust;
(p) Borrower has agreed to make payments with respect to the Mortgage Loan in accordance with this Origination Agreement;
(q) Each Mortgage and Assignment of Deed of Trust Note and Deed of Trust to Servicer shall have been executed signed and delivered to the Servicer (or filed such other instruments and properly recordeddocuments, if required by any, relating to and effecting the Servicer) prior to the Purchase of the related Mortgage Loan, and any different or other recording that might hereafter be required by Laws of the State to perfect the lien of real estate mortgages against the adverse or competing claims of third parties by giving public notice thereof shall also have been accomplished;
(r) An assumption may only be permitted in accordance with Section 3.8 and the Program Documents;
(s) As of the Purchase Date, the Mortgage Lender has no knowledge or other reason to believe that any of the representations or other statements contained in the affidavits of Seller, Borrower and Mortgage Lender are not true and correct;
(t) To the best knowledge of the Mortgage Lender, Borrower has not assigned any of its rights, title or Interest into or under the Mortgage Loan; and
(u) To the best knowledge of the Mortgage Lender, all closing costs, fees and charges in connection with the Mortgage Loan do not exceed the usual and reasonable costs which would be paid here financing is not provided through the use of the proceeds of tax exempt bonds. (Note: If such settlement and financing costs, fees or similar charges exceed the amount which is usual and reasonable, the Mortgage Loan application shall be deemed deficient and the Mortgage Lender notified of such deficiencytransactions contemplated herein.) It is understood and agreed that the representations, warranties and covenants set forth in this Section shall survive the sale of the Mortgage Loans by the Mortgage Lender to Servicer and that the representations, warranties and covenants shall inure to the benefit of the transferees and assigns of Servicer which, under the Indenture, include CDA, ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, GNMA, and the Trustee. Upon discovery by Mortgage Lender, ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, GNMA, Servicer or CDA of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interest of CDA in any Mortgage Loan, the party discovering such breach shall give prompt written notice to the others. Within 60 days of its discovery or its receipt of notice of breach, the Mortgage Lender shall cure such breach in all material respects or shall purchase the Mortgage Loan in the manner and in the amount set forth in Section 3.7 hereof. It is understood and agreed that the obligation of the Mortgage Lender to purchase the Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to CDA and Servicer where Mortgage Lender has acted in good faith.
Appears in 1 contract
Sources: Acquisition Agreement (Integral Technologies Inc /Cn/)
Closing Requirements. The Mortgage Lender represents and warrants Upon the closing date of such purchase by the Tenant of the Leased Property pursuant to the Servicer that on purchase option contained in Article 15 of this Lease, such date being the Expiration Date, the Tenant shall pay to the Trustee or, if no Bonds shall be Outstanding, to the Landlord, or to any persons designated by the Landlord in a written notice delivered by the Landlord to the Tenant not less than three (3) days prior to the Closing Dateclosing date, each Mortgage Loan by certified check, bank check or in federal funds, as the Trustee or the Landlord may designate, at the place within the continental United States designated in such notice, the purchase price therefor specified in Section 15.2 herein, and the following shall have the followingthen occur:
(a) A hazard insurance policy (providing fire and extended coverageThe Landlord shall deliver to the Tenant such documents, including wind damagewithout limitation deeds, with an inflation adjustment provision) on assignments of leases and bills of sale, as shall be necessary to convey and transfer the mortgaged property issued by a company:
(1) qualified title to do business each Individual Property to the Tenant or, in the State; and
(2) approved case of any Individual Property which is ground leased by or acceptable the Landlord, to assign the Landlord's interest in such Individual Property to the PMI or GMITenant; provided, as applicable.however, that in the case of the assignment of any such ground lease, the Landlord shall also provide to the Tenant evidence of the ground lessor's consent to such assignment;
(b) If The Tenant shall pay (or reimburse the Residence is located in an area having special flood hazardsLandlord for) all costs, as identified fees and charges incident to such conveyance and transfer, including, without limitation, reasonable counsel fees, escrow fees, recording fees, title insurance premiums, mortgage prepayment penalties and all applicable federal, state and local taxes (other than federal income taxes and state and local taxes imposed upon or measured by the Secretary net income) which may be incurred or imposed by reason of HUD, flood insurance shall be maintained in the amount equal to the lesser such conveyance and transfer and by reason of the outstanding principal balance delivery and/or recording of the Mortgage Loan or the insurable value, but never less than the amount sufficient to prevent application of any co-insurance clausesuch deed and such other instruments;
(c) Each Mortgage Loan (The Tenant shall transmit written notice to the Landlord directing the Landlord to cause the optional redemption of any and all other documents in connection therewith, except the required appraisal) satisfies all applicable requirements set forth herein and in the Program DocumentsBonds Outstanding;
(d) Each Mortgage Loan will be made Upon (i) receipt by the Mortgage Lender at the price set under the Program Documents, will be secured by a Deed of Trust which shall constitute a first mortgage lien on a Single Family Residence occupied by Borrower as such Borrower's permanent place of residence and will be located within the boundaries Landlord of the State, will be made substantially notice described in accordance with Mortgage Lender's then current standard underwriting policiesSection 21.2(c) and (ii) the receipt by the Trustee of the purchase price of the Leased Property, the underwriting standards set forth in Program Documents, Landlord shall promptly cause the Trustee to redeem any and all Bonds Outstanding pursuant to the requirements established hereby, subject to acceptance of insurer under the FHA Insurance, VA or RHS Guaranty or requirements terms of the PMI, will be made for the purpose of purchasing Indenture and to apply all or providing permanent financing for such Residence and not for the purpose of refinancing any existing loan (except a construction period loan, a bridge loan or similar temporary initial financing which has a term of 24 months or less and that is acceptable to CDA), will have substantially level payments due the first day of each month, will have an original term of 360 months, will be made to an Eligible Borrower, as Borrower, and will contain the assumption restrictions required by Section 3.8 hereof and all other requirements portion of the Program Documents.purchase price to the redemption of such Outstanding Bonds; and
(e) The principal amount of a Mortgage Loan will not exceed any applicable Loan-to-Value Ratios as established under the Program Documents and by the GMI, PMI and the applicable Mortgage Certificate;
Upon (fi) As completion of the Purchase Datepurchase of the Leased Property pursuant to this Article 21, (ii) the Mortgage Loan will be eligible for endorsement for insurance under either:
payment of the purchase price therefor specified herein, and (1iii) a binding commitment for FHA Insurance under Section 203(bthe optional redemption of all Bonds Outstanding, but not prior to the occurrence of (i), 203(k)or 234(c)(ii) and (iii) herein, of this Lease and all obligations hereunder (including the National Housing Act of 1934;
(2obligations to pay the Basic Rent and Supplemental Rent) a binding commitment for a VA or RHS Guaranty under the Serviceman's Readjustment Act of 1944;
(3) a binding commitment for PMI; and such FHA Insurance, VA or RHS Guaranty, or Private Mortgage Guaranty shall be maintained in force and effect during all times such Mortgage Lender owns an interest in the Mortgage Loan under the Program;
(g) As of the Purchase Date, the Mortgage Loan will be secured by the Deed of Trust as required under the Program Documents and must be current as to principal and interest payments due thereunder;
(h) As of the Purchase Date, Mortgage Lender shall have in its possession terminate with respect to the property financed by the Mortgage Loan and secured by the Deed of Trust, and an American Land Title Association approved mortgagee guarantee title insurance policy, preliminary policy or binder as required by and set forth in the Program Documents;
(i) As of the Purchase Date, the improvements upon the real property subject to the Mortgage Loan will be covered by a valid and subsisting Standard Hazard Insurance Policy, condominium insurance and flood insurance, as applicable, and as required by the Program Documents;
(j) The terms, covenants and conditions of the Mortgage Loan shall not have been and shall not prior to the Purchase be waived, altered, impaired or modified in any respect which would materially affect the value, validity, enforceability, prompt payment of the Mortgage Loan, or the enforceability of the lien securing the Mortgage Loan, Leased Property except for such waivers, alterations and the like accomplished by Mortgage Lender prior to the Purchase Date acceptable under the Program Documents;
(k) As of the Purchase Date, there shall be no delinquent tax or delinquent assessment lien against the property financed by the Mortgage Loan unless allowed by the Program Documents;
(l) As of the Purchase Date, Mortgage Lender shall not have done any act to create an offset, defense or counterclaim to the Mortgage Loan, including the obligation of Borrower to pay the unpaid principal of and interest on the Mortgage Loan;
(m) As of the Purchase Date, the Mortgage Loan must be secured by a residential first lien Deed of Trust or a subordinate lien Deed of Trust as specified in the Program Documents;
(n) Mortgage Lender has reviewed applicable credit reports and related documents required in connection with any application by the potential Borrower to assure itself, prior to approving such application, that such potential Borrower has the capacity to repay the Mortgage Loan;
(o) As of the Purchase Date, Mortgage Lender has no knowledge of any circumstances or condition with respect to Borrower, the Single Family Residence, the Mortgage Loan actual or any related document that could reasonably be expected to cause prudent private investors in the secondary market to regard the Mortgage Loan as an unacceptable investment, or cause the Mortgage Loan to become delinquent or to adversely affect the value or the marketability contingent obligations and liabilities of the Mortgage Loan, and Mortgage Lender has no knowledge of any circumstances Tenant under this Lease which would cause the invalidation arose on or cancellation of the GMI or PMI of the Deed of Trust;
(p) Borrower has agreed to make payments with respect to the Mortgage Loan in accordance with this Origination Agreement;
(q) Each Mortgage and Assignment of Deed of Trust Note and Deed of Trust to Servicer shall have been executed and delivered to the Servicer (or filed and properly recorded, if required by the Servicer) prior to the Purchase of the related Mortgage Loan, and any different or other recording that might hereafter be required by Laws of the State to perfect the lien of real estate mortgages against the adverse or competing claims of third parties by giving public notice thereof shall also have been accomplished;
(r) An assumption may only be permitted in accordance with Section 3.8 and the Program Documents;
(s) As of the Purchase Date, the Mortgage Lender has no knowledge or other reason to believe that any of the representations or other statements contained in the affidavits of Seller, Borrower and Mortgage Lender are not true and correct;
(t) To the best knowledge of the Mortgage Lender, Borrower has not assigned any of its rights, title or Interest into or under the Mortgage Loan; and
(u) To the best knowledge of the Mortgage Lender, all such closing costs, fees and charges in connection with the Mortgage Loan do not exceed the usual and reasonable costs which would be paid here financing is not provided through the use of the proceeds of tax exempt bonds. (Note: If such settlement and financing costs, fees or similar charges exceed the amount which is usual and reasonable, the Mortgage Loan application shall be deemed deficient and the Mortgage Lender notified of such deficiencydate.) It is understood and agreed that the representations, warranties and covenants set forth in this Section shall survive the sale of the Mortgage Loans by the Mortgage Lender to Servicer and that the representations, warranties and covenants shall inure to the benefit of the transferees and assigns of Servicer which, under the Indenture, include CDA, ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, GNMA, and the Trustee. Upon discovery by Mortgage Lender, ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, GNMA, Servicer or CDA of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interest of CDA in any Mortgage Loan, the party discovering such breach shall give prompt written notice to the others. Within 60 days of its discovery or its receipt of notice of breach, the Mortgage Lender shall cure such breach in all material respects or shall purchase the Mortgage Loan in the manner and in the amount set forth in Section 3.7 hereof. It is understood and agreed that the obligation of the Mortgage Lender to purchase the Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to CDA and Servicer where Mortgage Lender has acted in good faith.
Appears in 1 contract
Sources: Master Lease (Helmstar Group Inc)
Closing Requirements. The Mortgage Lender represents issue and warrants sale of the Units and the release of the funds from the Escrow Account to the Servicer that on or prior Trust shall be subject to the accuracy on and as of the Closing DateDate of, and compliance on each Mortgage Loan shall have Closing Date with, the followingrepresentations and warranties of the Managing Owner, the Selling Agent and the Clearing Broker herein and the performance by the Trust, the Managing Owner, the Selling Agent and the Clearing Broker of their obligations hereunder and the following conditions:
(a) A hazard insurance policy The Trust, the Selling Agent and the Clearing Broker shall have received a certificate of the Managing Owner executed by an officer of the Managing Owner, which shall state that (providing fire i) no order suspending the effectiveness of the Registration Statement, as it may be amended, or prohibiting the sale of the Units is in effect and extended coverageno proceedings for such purpose are pending before or, including wind damage, with an inflation adjustment provision) on the mortgaged property issued by a company:
(1) qualified to do business in the State; and
(2) approved by or acceptable to the PMI knowledge of such officers, threatened by the SEC, (ii) no adverse comments or GMIdeficiency notices relating to the Prospectus have been received from the CFTC or NFA which have not been responded to the satisfaction of such agencies and (iii) the representations and warranties of the Managing Owner contained herein are true and correct on and as of the Closing Date, and the Managing Owner and the Trust, as applicablethe case may be, have performed all covenants and agreements herein contained to be performed on their respective parts at or prior to the date of the certificate.
(b) If At the Residence is located in an area having special flood hazardsinitial Closing Date, as identified by the Secretary of HUDSidley & Austin, flood insurance shall be maintained in the amount equal counsel to the lesser Managing Owner, shall deliver to all the parties hereto its opinion, in form and substance satisfactory to each of the outstanding principal balance of the Mortgage Loan or the insurable valueparties hereto, but never less than the amount sufficient to prevent application of any co-insurance clause;
(c) Each Mortgage Loan (and all other documents in connection therewith, except the required appraisal) satisfies all applicable requirements set forth herein and in the Program Documents;
(d) Each Mortgage Loan will be made by the Mortgage Lender at the price set under the Program Documents, will be secured by a Deed of Trust which shall constitute a first mortgage lien on a Single Family Residence occupied by Borrower as such Borrower's permanent place of residence and will be located within the boundaries of the State, will be made substantially in accordance with Mortgage Lender's then current standard underwriting policies, the underwriting standards set forth in Program Documents, and the requirements established hereby, subject to acceptance of insurer under the FHA Insurance, VA or RHS Guaranty or requirements of the PMI, will be made for the purpose of purchasing or providing permanent financing for such Residence and not for the purpose of refinancing any existing loan (except a construction period loan, a bridge loan or similar temporary initial financing which has a term of 24 months or less and that is acceptable to CDA), will have substantially level payments due the first day of each month, will have an original term of 360 months, will be made to an Eligible Borrower, as Borrower, and will contain the assumption restrictions required by Section 3.8 hereof and all other requirements of the Program Documents.
(e) The principal amount of a Mortgage Loan will not exceed any applicable Loan-to-Value Ratios as established under the Program Documents and by the GMI, PMI and the applicable Mortgage Certificate;
(f) As of the Purchase Date, the Mortgage Loan will be eligible for endorsement for insurance under either:
(1) a binding commitment for FHA Insurance under Section 203(b), 203(k)or 234(c), of the National Housing Act of 1934;
(2) a binding commitment for a VA or RHS Guaranty under the Serviceman's Readjustment Act of 1944;
(3) a binding commitment for PMI; and such FHA Insurance, VA or RHS Guaranty, or Private Mortgage Guaranty shall be maintained in force and effect during all times such Mortgage Lender owns an interest in the Mortgage Loan under the Program;
(g) As of the Purchase Date, the Mortgage Loan will be secured by the Deed of Trust as required under the Program Documents and must be current as to principal and interest payments due thereunder;
(h) As of the Purchase Date, Mortgage Lender shall have in its possession with respect to the property financed by the Mortgage Loan and secured by the Deed of Trust, and an American Land Title Association approved mortgagee guarantee title insurance policy, preliminary policy or binder as required by and set forth in the Program Documents;effect that:
(i) As Upon payment of the Purchase Dateconsideration therefor specified in the accepted Subscription Agreements and Powers of Attorney, the improvements upon Units will constitute valid units of beneficial interest in the real property Trust and each subscriber who purchases Units will become a Unitholder, subject to the Mortgage Loan will be covered by a valid and subsisting Standard Hazard Insurance Policy, condominium insurance and flood insurance, as applicable, and as required by the Program Documents;
(j) The terms, covenants and conditions of the Mortgage Loan shall not have been and shall not prior to the Purchase be waived, altered, impaired or modified in any respect which would materially affect the value, validity, enforceability, prompt payment of the Mortgage Loan, or the enforceability of the lien securing the Mortgage Loan, except for requirement that each such waivers, alterations and the like accomplished by Mortgage Lender prior to the Purchase Date acceptable under the Program Documents;
(k) As of the Purchase Date, there shall be no delinquent tax or delinquent assessment lien against the property financed by the Mortgage Loan unless allowed by the Program Documents;
(l) As of the Purchase Date, Mortgage Lender shall not have done any act to create an offset, defense or counterclaim to the Mortgage Loan, including the obligation of Borrower to pay the unpaid principal of and interest on the Mortgage Loan;
(m) As of the Purchase Date, the Mortgage Loan must be secured by a residential first lien Deed of Trust or a subordinate lien Deed of Trust as specified in the Program Documents;
(n) Mortgage Lender has reviewed applicable credit reports and related documents required in connection with any application by the potential Borrower to assure itself, prior to approving such application, that such potential Borrower has the capacity to repay the Mortgage Loan;
(o) As of the Purchase Date, Mortgage Lender has no knowledge of any circumstances or condition with respect to Borrower, the Single Family Residence, the Mortgage Loan or any related document that could reasonably be expected to cause prudent private investors in the secondary market to regard the Mortgage Loan as an unacceptable investment, or cause the Mortgage Loan to become delinquent or to adversely affect the value or the marketability of the Mortgage Loan, and Mortgage Lender has no knowledge of any circumstances which would cause the invalidation or cancellation of the GMI or PMI of the Deed of Trust;
(p) Borrower has agreed to make payments with respect to the Mortgage Loan in accordance with this Origination Agreement;
(q) Each Mortgage and Assignment of Deed of Trust Note and Deed of Trust to Servicer purchaser shall have been duly completed, executed and delivered to the Servicer (or filed Trust a Subscription Agreement and properly recorded, if required by the Servicer) prior Power of Attorney relating to the Purchase Units purchased by such party, that such purchaser meets all applicable suitability standards as set forth in the Prospectus and that the representations and warranties of such purchaser in the Subscription Agreement and Power of Attorney are true and correct.
(ii) The Trust need not effect any other filings or qualifications under the laws of the related Mortgage Loan, United States and any different or other recording that might hereafter be required by Laws the States of Illinois and New York in order to preserve the status of the Trust as a business trust or to enable the Trust to perform its obligations under this Agreement and to conduct the business in which it proposes to be engaged as described in the Prospectus.
(iii) The Managing Owner is qualified to do business and is in good standing as a foreign corporation in each other jurisdiction in which the failure to so qualify might, in their opinion, reasonably be expected to result in material adverse consequences to the Trust.
(iv) Each of the Managing Owner (including the principals, as defined in the Commodity Act, of the Managing Owner) and the Trust has all Federal and Illinois and New York State governmental and regulatory licenses and approvals and has received or made all filings and registrations with Federal and Illinois and New York State governmental and regulatory agencies necessary in order for each of the Managing Owner and the Trust to perfect conduct its business as described in the lien Registration Statement and Prospectus, and, to the best of real estate mortgages against the adverse their knowledge, none of such approvals, licenses or competing claims of third parties by giving public notice thereof shall also registrations have been accomplished;rescinded or revoked.
(rv) An assumption Each of the Trust Agreement, the Customer Agreement and this Agreement, assuming that such agreements are legal, valid and binding on the other parties hereto and thereto, constitutes a legal, valid and binding agreement of the Managing Owner or the Trust (as the case may only be permitted be) enforceable in accordance with Section 3.8 its terms, except to the extent enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability relating to 10 11 or affecting the enforcement of creditors' rights and by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(vi) The execution and delivery of this Agreement, the Trust Agreement and the Program Documents;Customer Agreement and the incurrence of the obligations herein and therein set forth and the consummation of the transactions contemplated herein and therein and in the Prospectus, to their knowledge, will not constitute a breach of, or default under, any instrument by which the Managing Owner or the Trust is bound or any order, rule or regulation applicable to the Managing Owner or the Trust of any court or any governmental body or administrative agency having jurisdiction over the Managing Owner or the Trust.
(svii) As To their knowledge, there are no actions, claims or proceedings pending or threatened in any court or before or by any governmental or administrative body, nor have there been any such suits, claims or proceeding within the last five years, to which the Managing Owner (or any principal of the Purchase DateManaging Owner) or the Trust is or was a party, or to which any of their assets is or was subject, which are required to be, but are not disclosed in, the Mortgage Lender Registration Statement or Prospectus or which might reasonably be expected to materially adversely affect the condition (financial or otherwise), business or prospects of the Managing Owner or the Trust.
(viii) No authorization, approval or consent of any governmental authority or agency is necessary in connection with the subscription for and sale of the Units, except such as may be required under the Securities Act, the Commodity Act, NFA compliance rules or applicable securities or "Blue Sky" laws.
(ix) The terms and provisions of the Trust Agreement, the Customer Agreement and this Agreement conforms in all material respects to descriptions thereof contained in the Prospectus.
(x) The Registration Statement is effective under the Securities Act and, to the best of their knowledge, no proceedings for a stop order are pending or threatened under Section 8(d) of the Securities Act.
(xi) At the time the Registration Statement initially became effective and at the time any post-effective amendment thereto became effective, the Registration Statement, and at the time the Prospectus and any amendments or supplements thereto were first issued, the Prospectus, complied as to form in all material respects with the requirements of the Securities Act, the Rules and CFTC regulations. Nothing has no knowledge or other reason come to their attention that would lead them to believe that with respect to the Managing Owner and the Selling Agent (a) at the time the Registration Statement initially became effective and at the time any post-effective amendment thereto became effective, the Registration Statement contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (b) the Prospectus as first issued or as subsequently issued or at the initial Closing Date contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the representations circumstances under which they were made, not misleading; provided, however, that such counsel need express no opinion (A) as to the financial statements, notes thereto and other financial or other statements contained statistical data set forth in the affidavits Registration Statement and Prospectus or (B) as to any performance data set forth in the Registration Statement, and Prospectus, including the performance summaries (and the notes thereto) in the Registration Statement and Prospectus, except that such counsel shall opine, without rendering any opinion as to the accuracy of Sellerthe information in the performance summaries, Borrower and Mortgage Lender are not true and correct;that such the performance summaries comply as to form in all material respects with applicable CFTC rules.
(txii) Such counsel confirm their opinion, a form of which appears as Exhibit 8.01 to the Registration Statement, that the summary of Federal income tax consequences to Unitholders set forth under the caption "Federal Income Tax Aspects" in the Prospectus accurately describes the material tax consequences set forth therein and that such counsel further confirm their advice to the Managing Owner explicitly set forth therein and in such Exhibit 8.01.
(xiii) To the best knowledge of their knowledge, (a) there are no contracts, indentures, mortgages, loan agreements, leases or other documents of a character required to be described or referred to in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed as exhibits thereto, and with respect to the existing contracts, indentures, mortgages, loan agreements, leases and other documents so described, referred to or filed, the descriptions thereof, references thereto or copies so filed are correct in all material respects, and (b) no material default on the part of the Mortgage LenderManaging Owner or the Trust exists in the due performance or observance of any material obligation, Borrower has not assigned agreement, covenant or condition contained in any of its rights, title contract or Interest into lease so described or under the Mortgage Loan; andfiled.
(uxiv) To the best knowledge of the Mortgage Lender, all closing costs, fees and charges Assuming operation in connection accordance with the Mortgage Loan do not exceed Prospectus, the usual and reasonable costs which would be paid here financing Trust, at the Closing Date, is not provided through an "investment company" as that term is defined in the use Investment Company Act of 1940, as amended.
(c) At the proceeds of tax exempt bonds. (Note: If such settlement and financing costsinitial Closing Date, fees or similar charges exceed the amount which is usual and reasonable, the Mortgage Loan application shall be deemed deficient and the Mortgage Lender notified of such deficiency.) It is understood and agreed that the representations, warranties and covenants set forth in this Section shall survive the sale of the Mortgage Loans by the Mortgage Lender to Servicer and that the representations, warranties and covenants shall inure to the benefit of the transferees and assigns of Servicer which, under the Indenture, include CDARich▇▇▇▇, ▇▇▇▇▇▇ Mae& ▇inger, ▇▇▇▇▇▇▇ Mac, GNMA, Delaware counsel to the Managing Owner and the Trustee. Upon discovery Trust, shall deliver to all the parties hereto its opinion, in form and substance satisfactory to each of the parties hereto, to the effect that:
(i) The Certificate of Trust pursuant to which the Trust has been formed and the Trust Agreement each provides for the subscription for and sale of the Units; all Delaware action required to be taken by Mortgage Lenderthe Managing Owner and the Trust as a condition to the subscription for and sale of the Units to qualified subscribers therefor has been taken; and, ▇▇▇▇▇▇ Maeupon payment of the consideration therefor specified in the accepted Subscription Agreements and Powers of Attorney, ▇▇▇▇▇▇▇ Macthe Units will constitute valid units of beneficial interest in the Trust and each subscriber who purchases Units will become a Unitholder, GNMAsubject to the requirement that each such purchaser shall have duly completed, Servicer executed and delivered to the Trust a Subscription Agreement and Power of Attorney relating to the Units purchased by such party, that such purchaser meets all applicable suitability standards as set forth in the Prospectus and that the representations and warranties of such purchaser in the Subscription Agreement and Power of Attorney are true and correct.
(ii) The Trust is a business trust duly organized pursuant to the Certificate of Trust, the Trust Agreement and the Delaware Business Trust Act and validly existing under the laws of the State of Delaware with trust power and authority to conduct the business in which it proposes to engage as described in the Prospectus; the Trust need not effect any other filings or CDA qualifications under the laws of the State of Delaware, in order to preserve the status of the Trust as a breach business trust or to enable the Trust to perform its obligations under this Agreement and to conduct the business in which it proposes to be engaged as described in the Prospectus.
(iii) The Trust has any Delaware licenses and approvals and has received or made all filings and registrations with Delaware governmental and regulatory agencies necessary in order for the Trust to conduct its business as described in the Registration Statement and Prospectus, and, to the best of their knowledge, none of such approvals, licenses or registrations have been rescinded or revoked.
(iv) Each of the Trust Agreement, the Customer Agreement and this Agreement has been duly and validly authorized, executed and delivered by or on behalf of the Trust and the Trust Agreement constitutes a legal, valid and binding agreement of the Trust (as the case may be) enforceable in accordance with its terms, except to the extent enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability relating to or affecting the enforcement of creditors' rights and by the effect of general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
(v) The execution and delivery of this Agreement, the Trust Agreement and the Customer Agreement and the incurrence of the obligations herein and therein set forth and the consummation of the transactions contemplated herein and therein and in the Prospectus will not be in contravention of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interest of CDA in any Mortgage Loan, the party discovering such breach shall give prompt written notice to the others. Within 60 days of its discovery or its receipt of notice of breach, the Mortgage Lender shall cure such breach in all material respects or shall purchase the Mortgage Loan in the manner and in the amount set forth in Section 3.7 hereof. It is understood and agreed that the obligation provisions of the Mortgage Lender Trust Agreement, and, to purchase the Mortgage Loan as to which their knowledge, will not constitute a breach has occurred and of, or default under, any instrument by which the Trust is continuing shall constitute the sole remedy respecting such breach available to CDA and Servicer where Mortgage Lender has acted in good faith.bound or any order, rule or regulation
Appears in 1 contract
Sources: Selling Agreement (Campbell Alternative Asset Trust)
Closing Requirements. At the Closing, each of the parties shall execute and deliver such instruments and documents and take such other actions as may, in the reasonable opinion of counsel for each, be required to complete the transactions under this Agreement. The Mortgage Lender represents following documents shall have been delivered and warrants the following activities shall be deemed to have taken place contemporaneously at the Closing:
a) the securities to be delivered pursuant to Subparagraph 2.1 have been delivered to the Servicer respective parties duly endorsed or issued as the case may be, pursuant to Subparagraphs 1.3 and 2.
b) delivery of all corporate records of Acquiree, including without limitation, corporate minute books (which shall contain copies of the Articles of Incorporation and Bylaws, as amended to the Closing), stock books, stock transfer books, corporate seals, contracts, licenses and sub-licenses, non-disclosure and confidentiality agreements, and such other corporate books and records as may be reasonably requested for review by Acquiror;
c) delivery of the evidence of cancellation of debts and release of liens by the Debt Holders satisfactory to Acquiror pursuant to Subparagraph 1.1 hereof;
d) a certificate of the President of Acquiree to the effect that all representations and warranties of Acquiree made under this Agreement are reaffirmed on or prior to the Closing Date, each Mortgage Loan shall have the following:same as though originally given to Acquiror on said date as set forth herein;
(ae) A hazard insurance policy (providing fire the Subscription Agreements of the Stockholders; ------------------------------------------------------------------------------- f) a certificate from the West Virginia Secretary of State dated at or about the date of the Closing to the effect that Acquiree is in good standing under the laws of said State;
g) copies of resolutions by Acquiree's Board of Directors authorizing this Agreement;
h) a certificate of the President of Acquiror to the effect that all representations and extended coverage, including wind damage, with an inflation adjustment provision) warranties of Acquiror made under this Agreement are reaffirmed on the mortgaged property issued Closing Date, the same as though originally given to Acquiree and Stockholders on said date;
i) copies of resolutions by Acquiror's Board of Directors authorizing this Agreement;
j) a company:certificate from the Secretary of State of Nevada dated at or about the date of Closing to the effect that Acquiror is in good standing under the laws of said State;
(1k) qualified to do business audited financial statements of Acquiree for the year ended June 30, 1997, and unaudited financial statements for the quarter ended September 30, 1997, meeting the requirements set forth in the StateSubparagraph 4.8; and
(2) approved by or acceptable to the PMI or GMI, as applicable.
(b) If the Residence is located in an area having special flood hazards, as identified by the Secretary of HUD, flood insurance shall be maintained in the amount equal to the lesser of the outstanding principal balance of the Mortgage Loan or the insurable value, but never less than the amount sufficient to prevent application of any co-insurance clause;
(c) Each Mortgage Loan (and all other documents in connection therewith, except the required appraisal) satisfies all applicable requirements set forth herein and in the Program Documents;
(d) Each Mortgage Loan will be made by the Mortgage Lender at the price set under the Program Documents, will be secured by a Deed of Trust which shall constitute a first mortgage lien on a Single Family Residence occupied by Borrower as such Borrower's permanent place of residence and will be located within the boundaries of the State, will be made substantially in accordance with Mortgage Lender's then current standard underwriting policies, the underwriting standards set forth in Program Documents, and the requirements established hereby, subject to acceptance of insurer under the FHA Insurance, VA or RHS Guaranty or requirements of the PMI, will be made for the purpose of purchasing or providing permanent financing for such Residence and not for the purpose of refinancing any existing loan (except a construction period loan, a bridge loan or similar temporary initial financing which has a term of 24 months or less and that is acceptable to CDA), will have substantially level payments due the first day of each month, will have an original term of 360 months, will be made to an Eligible Borrower, as Borrower, and will contain the assumption restrictions required by Section 3.8 hereof and all other requirements of the Program Documents.
(e) The principal amount of a Mortgage Loan will not exceed any applicable Loan-to-Value Ratios as established under the Program Documents and by the GMI, PMI and the applicable Mortgage Certificate;
(f) As of the Purchase Date, the Mortgage Loan will be eligible for endorsement for insurance under either:
(1) a binding commitment for FHA Insurance under Section 203(b), 203(k)or 234(c), of the National Housing Act of 1934;
(2) a binding commitment for a VA or RHS Guaranty under the Serviceman's Readjustment Act of 1944;
(3) a binding commitment for PMI; and such FHA Insurance, VA or RHS Guaranty, or Private Mortgage Guaranty shall be maintained in force and effect during all times such Mortgage Lender owns an interest in the Mortgage Loan under the Program;
(g) As of the Purchase Date, the Mortgage Loan will be secured by the Deed of Trust as required under the Program Documents and must be current as to principal and interest payments due thereunder;
(h) As of the Purchase Date, Mortgage Lender shall have in its possession with respect to the property financed by the Mortgage Loan and secured by the Deed of Trust, and an American Land Title Association approved mortgagee guarantee title insurance policy, preliminary policy or binder as required by and set forth in the Program Documents;
(i) As of the Purchase Date, the improvements upon the real property subject to the Mortgage Loan will be covered by a valid and subsisting Standard Hazard Insurance Policy, condominium insurance and flood insurance, as applicable, and as required by the Program Documents;
(j) The terms, covenants and conditions of the Mortgage Loan shall not have been and shall not prior to the Purchase be waived, altered, impaired or modified in any respect which would materially affect the value, validity, enforceability, prompt payment of the Mortgage Loan, or the enforceability of the lien securing the Mortgage Loan, except for such waivers, alterations and the like accomplished by Mortgage Lender prior to the Purchase Date acceptable under the Program Documents;
(k) As of the Purchase Date, there shall be no delinquent tax or delinquent assessment lien against the property financed by the Mortgage Loan unless allowed by the Program Documents;
(l) As of the Purchase Date, Mortgage Lender shall not parties hereto have done any act to create an offset, defense or counterclaim to the Mortgage Loan, including the obligation of Borrower to pay the unpaid principal of and interest on the Mortgage Loan;
(m) As of the Purchase Date, the Mortgage Loan must be secured by a residential first lien Deed of Trust or a subordinate lien Deed of Trust as specified in the Program Documents;
(n) Mortgage Lender has reviewed applicable credit reports and related documents required in connection with any application by the potential Borrower to assure itself, prior to approving such application, that such potential Borrower has the capacity to repay the Mortgage Loan;
(o) As of the Purchase Date, Mortgage Lender has no knowledge of any circumstances or condition with respect to Borrower, the Single Family Residence, the Mortgage Loan or any related document that could reasonably be expected to cause prudent private investors in the secondary market to regard the Mortgage Loan as an unacceptable investment, or cause the Mortgage Loan to become delinquent or to adversely affect the value or the marketability of the Mortgage Loan, and Mortgage Lender has no knowledge of any circumstances which would cause the invalidation or cancellation of the GMI or PMI of the Deed of Trust;
(p) Borrower has agreed to make payments with respect to the Mortgage Loan in accordance with this Origination Agreement;
(q) Each Mortgage and Assignment of Deed of Trust Note and Deed of Trust to Servicer shall have been executed signed and delivered to the Servicer (or filed such other instruments and properly recordeddocuments, if required by any, relating to and effecting the Servicer) prior to the Purchase of the related Mortgage Loan, and any different or other recording that might hereafter be required by Laws of the State to perfect the lien of real estate mortgages against the adverse or competing claims of third parties by giving public notice thereof shall also have been accomplished;
(r) An assumption may only be permitted in accordance with Section 3.8 and the Program Documents;
(s) As of the Purchase Date, the Mortgage Lender has no knowledge or other reason to believe that any of the representations or other statements contained in the affidavits of Seller, Borrower and Mortgage Lender are not true and correct;
(t) To the best knowledge of the Mortgage Lender, Borrower has not assigned any of its rights, title or Interest into or under the Mortgage Loan; and
(u) To the best knowledge of the Mortgage Lender, all closing costs, fees and charges in connection with the Mortgage Loan do not exceed the usual and reasonable costs which would be paid here financing is not provided through the use of the proceeds of tax exempt bonds. (Note: If such settlement and financing costs, fees or similar charges exceed the amount which is usual and reasonable, the Mortgage Loan application shall be deemed deficient and the Mortgage Lender notified of such deficiencytransactions contemplated herein.) It is understood and agreed that the representations, warranties and covenants set forth in this Section shall survive the sale of the Mortgage Loans by the Mortgage Lender to Servicer and that the representations, warranties and covenants shall inure to the benefit of the transferees and assigns of Servicer which, under the Indenture, include CDA, ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, GNMA, and the Trustee. Upon discovery by Mortgage Lender, ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, GNMA, Servicer or CDA of a breach of any of the foregoing representations, warranties and covenants which materially and adversely affects the value of any Mortgage Loan or the interest of CDA in any Mortgage Loan, the party discovering such breach shall give prompt written notice to the others. Within 60 days of its discovery or its receipt of notice of breach, the Mortgage Lender shall cure such breach in all material respects or shall purchase the Mortgage Loan in the manner and in the amount set forth in Section 3.7 hereof. It is understood and agreed that the obligation of the Mortgage Lender to purchase the Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy respecting such breach available to CDA and Servicer where Mortgage Lender has acted in good faith.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Integral Technologies Inc /Cn/)