Although parties may contractually agree to undertake a separate obligation, the breach of which does not arise until some future date, the repurchase obligation undertaken by DBSP does not fit this description. To support its contrary position, the Trust relies on our decision in Bulova Watch Co. v <**25>Celotex Corp. (46 NY2d 606 ), where we considered whether the separate repair clause in a contract for the sale of a roof constituted a future promise of performance, the breach of which created a cause of action. The separate clause the seller included in that contract was a “20-Year Guaranty Bond,” which “expressly guaranteed that [the seller] would ‘at its own expense make any repairs . . . that may become necessary to maintain said Roof’ ” (id. at 608-609) Faunsdale Alabama payday loan reviews.

I kept the be sure “embod[ied] a binding agreement unlike the latest package available roof product,” the infraction where brought about the new law out-of limits anew (id. at 610). It was so since the offender into the Bulova Observe “failed to just make sure the position otherwise show of one’s services and products, but offered to manage a help” (id. at the 612). One service are the separate and you may type of vow to repair a faulty roof-a life threatening component of brand new parties’ price and you can “a separate, independent and extra extra to shop for” the fresh new defendant’s product (id. within 611). Correctly, this new “plans considering properties . . . was basically susceptible to a six-seasons statute . . . powering age occasioned when a violation of one’s obligation to help you fix this new bonded rooftop took place” (id.).

DBSP’s clean out or repurchase responsibility try the fresh Trust’s remedy for an effective violation ones representations and you may guarantees, not a pledge of loans’ coming performance

The fresh new remedial condition inside Bulova Watch explicitly guaranteed coming abilities out of the new rooftop and you will undertook a promise to correct this new rooftop if the they didn’t fulfill the seller’s be sure. It [*7] depicted and warranted certain factual statements about the brand new loans’ functions since , when the MLPA and PSA was done, and expressly stated that those individuals representations and you can guarantees did not endure the newest closure time. In the place of the fresh separate make sure in Bulova See, DBSP’s eliminate otherwise repurchase obligation couldn’t fairly be viewed since a definite promise off coming results. It was determined by, and even by-product away from, DBSP’s representations and you can warranties, and this failed to endure the newest closure and you will had been broken, if at all, on that day. [FN3]

In reality, nothing regarding deal specified that the reduce otherwise repurchase responsibility create last for living of fund

And it makes sense that DBSP, as sponsor and seller, would not guarantee future performance of the mortgage loans, which <**25>might default 10 or 20 years after issuance for reasons entirely unrelated to the sponsor’s representations and warranties. The sponsor merely warrants certain characteristics of the loans, and promises that if those warranties and representations are materially false, it will cure or repurchase the non-conforming loans within the same statutory period in which remedies for breach of contract (i.e., rescission and expectation damages) could have been sought. [FN4]

If the cure or repurchase obligation did not exist, the Trust’s only recourse would have been to bring an action against DBSP for breach of the representations and warranties. That action could only have been brought within six years of the date of contract execution. The cure or repurchase obligation is an alternative remedy, or recourse, for the Trust, but the underlying act the Trust complains of is the same: the quality of the loans and their conformity with the representations and warranties. The Trust argues, in effect, that the cure or repurchase <**25>obligation transformed a standard breach of contract remedy, i.e. damages, into one that lasted for the life of the investment-decades past the statutory period. But nothing in the parties’ agreement evidences such an intent. Historically, we have been