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).

I kept that make certain “embod[ied] an agreement different from the latest bargain to supply roof material,” the breach where triggered the fresh new statute of limits anew (id. during the 610). This was so because defendant in Bulova Check out “did not merely ensure the position or results of one’s goods, but agreed to create a help” (id. within 612). You to definitely service try the brand new separate and you can collection of promise to fix a great bad roof-a life threatening component of new parties’ deal and you can “an alternate, independent and extra bonus to acquire” the brand new defendant’s device (id. from the 611). Properly, the fresh new “preparations considering attributes . . . were subject to a six-season statute . . . powering ages occasioned each time a violation of your obligations in order to fix the brand new bonded rooftop occurred” (id.).

DBSP’s treat or repurchase responsibility are the fresh Trust’s remedy for good breach of those representations and you can warranties, maybe https://paydayloanalabama.com/coaling/ not a pledge of loans’ upcoming results

This new corrective condition inside Bulova Watch explicitly guaranteed future efficiency from the new roof and you will undertook a hope to correct brand new rooftop if they didn’t satisfy the seller’s verify. They [*7] illustrated and rationalized certain information about the newest loans’ features at the time of , in the event the MLPA and you may PSA had been performed, and you can expressly stated that those people representations and guarantees failed to survive the brand new closure time. Instead of the fresh new independent make certain into the Bulova Watch, DBSP’s clean out otherwise repurchase duty cannot fairly be viewed because a distinct pledge from upcoming efficiency. It absolutely was influenced by, and even derivative out-of, DBSP’s representations and guarantees, which failed to endure the brand new closing and you may was basically broken, if at all, thereon day. [FN3]

In fact, little from the package specified that dump otherwise repurchase obligation create last for living of your funds

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