Breach of Certain Representations and Warranties. If on any day an Asset is (or becomes) a Warranty Asset, no later than two Business Days following the earlier of knowledge by the Seller of such Asset becoming a Warranty Asset or receipt by the Seller from the Administrative Agent or the Servicer of written notice thereof, the Seller shall either: (a) make a deposit to the Collection Account (for allocation pursuant to Section 2.9 or Section 2.10, as applicable) in immediately available funds in an amount equal to the sum (the “Retransfer Price”) of (i) if such deposit is made during the Revolving Period, the amount which, if deposited to the Collection Account on such date, would cause the Availability as of such date (after giving effect to such Warranty Asset ceasing to be an Eligible Asset) to be greater than or equal to zero, (ii) if such deposit is made during the Amortization Period, an amount equal to the product of the Outstanding Asset Balance of such Warranty Asset (without giving effect to either of the provisos in the definition of Outstanding Asset Balance) multiplied by the Advance Rate applicable to such Warranty Asset on the Funding Date thereof, (iii) any outstanding Servicer Advances thereon, (iv) any accrued and unpaid interest on such Warranty Asset, (v) all Hedge Breakage Costs owed to the relevant Hedge Counterparty for any termination of one or more Hedge Transactions, in whole or in part, as required by the terms of any Hedging Agreement and
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Samples: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc)
Breach of Certain Representations and Warranties. If on any day an Asset is (or becomes) a Warranty Asset, no later than two Business Days following the earlier of knowledge by the Seller of such Asset becoming a Warranty Asset or receipt by the Seller from the Administrative Agent or the Servicer of written notice thereof, the Seller shall either: (a) make a deposit to the Collection Account (for allocation pursuant to Section 2.9 or Section 2.10, as applicable) in immediately available funds in an amount equal to the sum (the “Retransfer Price”) of (i) if such deposit is made during the Revolving Period, the amount which, if deposited to the Collection Account on such date, would cause the Availability as of such date (after giving effect to such Warranty Asset ceasing to be an Eligible Asset) to be greater than or equal to zero, (ii) if such deposit is made during the Amortization Period, an amount equal to the product of the Outstanding Asset Balance of such Warranty Asset (without giving effect to either of the provisos in the definition of Outstanding Asset Balance) multiplied by the Advance Rate applicable to such Warranty Asset on the Funding Date thereof, (iii) any outstanding Servicer Advances thereon, (iv) any accrued and unpaid interest on such Warranty Asset, (v) all Hedge Breakage Costs owed to the relevant Hedge Counterparty for any termination of one or more Hedge Transactions, in whole or in part, as required by the terms of any Hedging Agreement and (vi in the case of a Loan, any costs and damages incurred in connection with any violation by such Loan of any predatory- or abusive-lending law; or (b) subject to the satisfaction of the conditions in Section 2.18, substitute for such Warranty Asset a Substitute Asset. In either of the foregoing instances, the Seller may (in its discretion) accept retransfer of each such Warranty Asset and any Related Security and the Borrowing Base shall be reduced by the Outstanding Asset Balance of each such Warranty Asset and, if applicable, increased by the Outstanding Asset Balance of each Substitute Asset. Upon confirmation of the deposit of such Retransfer Price into the Collection Account or the delivery by the Seller of a Substitute Asset for each Warranty Asset (the "Retransfer Date”), such Warranty Asset shall not be included in the Borrowing Base (and, if and when the Seller elects to accept the retransfer of such Warranty Asset, the Collateral) and, as applicable, the Substitute Asset shall be included in the Collateral. Upon the Retransfer Date of each Warranty Asset, the Administrative Agent, as agent for the Secured Parties, shall (if and when the Seller elects to accept the retransfer of such Warranty Asset) automatically and without further action be deemed to transfer, assign and set-over to the Seller, without recourse, representation or warranty, all the right, title and interest of the Administrative Agent, as agent for the Secured Parties in, to and under such Warranty Asset and all future monies due or to become due with respect thereto, the Related Security, all Proceeds of such Warranty Asset, Recoveries and Insurance Proceeds relating thereto, all rights to security for any such Warranty Asset, and all Proceeds and products of the foregoing. The Administrative Agent, as agent for the Secured Parties, shall (if and when the Seller elects to accept the retransfer of such Warranty Asset), at the sole expense of the Servicer, execute such documents and instruments of transfer as may be prepared by the Servicer on behalf of the Seller and take other such actions as shall reasonably be requested by the Seller to effect the transfer of such Warranty Asset pursuant to this Section 4.6.
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Breach of Certain Representations and Warranties. If on (a) In the event of a breach of any day representation or warranty set forth in Section 4.2 with respect to a Transferred Loan, Related Property and other related Collateral (each such Loan, Related Property and other related Collateral, an Asset is (or becomes) a Warranty Asset“Ineligible Loan”), no later than two Business Days following thirty (30) days after the earlier of (i) knowledge of such breach on the part of the Borrower and (ii) receipt by the Seller Borrower of written notice thereof given by the Agent the Borrower shall either (a) repay Advances Outstanding in an amount equal to the aggregate Retransfer Price of such Asset becoming Ineligible Loan(s) to which such breach relates on the terms and conditions set forth below, or (b) substitute for such Ineligible Loan a Warranty Asset Substitute Loan; provided, however, that no such repayment shall be required to be made with respect to such Ineligible Loan (and such Loan shall cease to be an Ineligible Loan) if, on or before the expiration of such thirty (30) day period, the representations and warranties in Section 4.2 with respect to such Ineligible Loan shall be made true and correct in all material respects with respect to such Ineligible Loan as if such Ineligible Loan had become part of the Collateral on such day. Notwithstanding anything contained in this Section 4.3 to the contrary, in the event of a breach of any representation and warranty set forth in Section 4.2 with respect to each Transferred Loan, Related Property and other related Collateral having been (A) granted to the Agent, on behalf of the Secured Parties, free and clear of any Lien of any Person claiming through or under the Borrower and its Affiliates and (B) in compliance, in all material respects, with all requirements of laws applicable to the Borrower, immediately upon the earlier to occur of the discovery of such breach by the Borrower or receipt by the Seller from the Administrative Agent or the Servicer Borrower of written notice thereofof such breach given by the Agent, the Seller Borrower shall either: (a) make a deposit to the Collection Account (for allocation pursuant to Section 2.9 or Section 2.10, as applicable) in immediately available funds repay Advances Outstanding in an amount equal to the sum (the “Retransfer Price”) of (i) if such deposit is made during the Revolving Period, the amount which, if deposited to the Collection Account on such date, would cause the Availability as aggregate Outstanding Loan Balance of such date (after giving effect to such Warranty Asset ceasing to be an Eligible Asset) to be greater than or equal to zeroIneligible Loan(s), (ii) if such deposit is made during the Amortization Period, an amount equal to the product of the Outstanding Asset Balance of such Warranty Asset (without giving effect to either of the provisos in the definition of Outstanding Asset Balance) multiplied by the Advance Rate applicable to such Warranty Asset on the Funding Date thereofany accrued and unpaid interest thereon, (iii) any outstanding Servicer Advances thereon, (iv) any accrued and unpaid interest on such Warranty Asset, (v) all Hedge Breakage Costs owed to the relevant Hedge Counterparty for any termination of one or more Hedge Transactions, in whole or in part, as required by the terms of any Hedging Hedge Agreement andand (v) any Breakage Costs, incurred in connection with the retransfer of such Loan pursuant to this Section 4.3 and the termination of any Hedge Transactions in whole or in part in connection therewith. (collectively, the “Retransfer Price”), and the Agent and the Secured Parties shall release to Borrower any such Ineligible Loan(s) and relinquish any Lien created pursuant to this Agreement or otherwise, and the Secured Parties shall, in connection with such conveyance and without further action, be deemed to represent and warrant that they have the corporate authority and has taken all necessary corporate action to accomplish such release, but without any other representation or warranty, express or implied. In the foregoing instances, the Borrower shall make such repayment and on and after the date of such repayment, each Ineligible Loan so repaid shall not be included in the Collateral. In consideration of any such release by the Secured Parties, the Borrower shall, on the date of such repayment, remit to the Agent, on behalf of the Secured Parties, in immediately available funds an amount equal to the Retransfer Price therefore. Upon each such repayment, the Agent, on behalf of the Secured Parties, shall automatically and without further action be deemed to release to the Borrower all the right, title and interest of the Secured Parties in, to and under such Ineligible Loan(s) and all monies due or to become due with respect thereto, all proceeds thereof and all rights to security for any such Ineligible Loan, and all proceeds and products of the foregoing. The Agent shall, at the sole expense of the Borrower, execute such documents and instruments of transfer as may be prepared by the Borrower and take such other actions as shall reasonably be requested by the Borrower to effect the transfer of such Ineligible Loan pursuant to this Section 4.3.
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Samples: Funding and Servicing Agreement (American Capital Strategies LTD)
Breach of Certain Representations and Warranties. If on any day an Asset is (or becomes) a Warranty Asset, no later than two Business Days following the earlier of knowledge by the Seller of such Asset becoming a Warranty Asset or receipt by the Seller from the Administrative Agent or the Servicer of written notice thereof, the Seller shall either: (a) make a deposit to the Collection Account (for allocation pursuant to Section 2.9 or Section 2.10, as applicable) in immediately available funds in an amount equal to the sum (the “Retransfer Price”) of (i) if such deposit is made during the Revolving Period, the amount which, if deposited to the Collection Account on such date, would cause the Availability as of such date (after giving effect to such Warranty Asset ceasing to be an Eligible Asset) to be greater than or equal to zero, (ii) if such deposit is made during the Amortization Period or the Turbo Period, an amount equal to the product of the Outstanding Asset Balance of such Warranty Asset (without giving effect to either of the first two provisos in the definition of Outstanding Asset Balance) multiplied by the Advance Rate applicable to such Warranty Asset on the Funding Date thereof, (iii) any outstanding Servicer Advances thereon, (iv) any accrued and unpaid interest on such Warranty Asset, (v) all Hedge Breakage Costs owed to the relevant Hedge Counterparty for any termination of one or more Hedge Transactions, in whole or in part, as required by the terms of any Hedging Agreement and (vi in the case of a Loan, any costs and damages incurred in connection with any violation by such Loan of any predatory- or abusive-lending law; or (b) subject to the satisfaction of the conditions in Section 2.18, substitute for such Warranty Asset a Substitute Asset. In either of the foregoing instances, the Seller may (in its discretion) accept retransfer of each such Warranty Asset and any Related Security and the Borrowing Base shall be reduced by the Outstanding Asset Balance of each such Warranty Asset and, if applicable, increased by the Outstanding Asset Balance of each Substitute Asset. Upon confirmation of the deposit of such Retransfer Price into the Collection Account or the delivery by the Seller of a Substitute Asset for each Warranty Asset (the “Retransfer Date”), such Warranty Asset shall not be included in the Borrowing Base (and, if and when the Seller elects to accept the retransfer of such Warranty Asset, the Collateral) and, as applicable, the Substitute Asset shall be included in the Collateral. Upon the Retransfer Date of each Warranty Asset, the Administrative Agent, as agent for the Secured Parties, shall (if and when the Seller elects to accept the retransfer of such Warranty Asset) automatically and without further action be deemed to transfer, assign and set-over to the Seller, without recourse, representation or warranty, all the right, title and interest of the Administrative Agent, as agent for the Secured Parties in, to and under such Warranty Asset and all future monies due or to become due with respect thereto, the Related Security, all Proceeds of such Warranty Asset, Recoveries and Insurance Proceeds relating thereto, all rights to security for any such Warranty Asset, and all Proceeds and products of the foregoing. The Administrative Agent, as agent for the Secured Parties, shall (if and when the Seller elects to accept the retransfer of such Warranty Asset), at the sole expense of the Servicer, execute such documents and instruments of transfer as may be prepared by the Servicer on behalf of the Seller and take other such actions as shall reasonably be requested by the Seller to effect the transfer of such Warranty Asset pursuant to this Section 4.6.
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Breach of Certain Representations and Warranties. If on (a) In the event of a breach of any day representation or warranty set forth in Section 4.32 with respect to a Pledged Loan, Related Property and other related Collateral (each such Pledged Loan, Related Property and other related Collateral, an Asset is (or becomes) a Warranty Asset“Ineligible Loan”), no later than two Business Days following ten (10) days after the earlier of (i) knowledge of such breach on the part of the Borrower and (ii) receipt by the Seller Borrower of written notice thereof given by the Administrative Agent the Borrower shall either (a) repay Advances Outstanding in an amount equal to the aggregate Retransfer Amount of such Asset becoming Ineligible Loan(s) to which such breach relates on the terms and conditions set forth below, or (b) substitute for such Ineligible Loan a Warranty Asset substitute Pledged Loan; provided, however, that no such repayment shall be required to be made with respect to such Ineligible Loan (and such Pledged Loan shall cease to be an Ineligible Loan) if, on or before the expiration of such ten (10) day period, the representations and warranties in Section 4.32 with respect to such Ineligible Loan shall be made true and correct in all material respects with respect to such Ineligible Loan as if such Ineligible Loan had become part of the Collateral on such day. Notwithstanding anything contained in this Section 4.33 to the contrary, in the event of a breach of any representation and warranty set forth in Section 4.32 with respect to each Pledged Loan, Related Property and other related Collateral having been (A) granted to the Administrative Agent, on behalf of the Secured Parties, free and clear of any Lien of any Person claiming through or under the Borrower and its Affiliates and (B) in compliance, in all material respects, with all requirements of laws applicable to the Borrower, immediately upon the earlier to occur of the discovery of such breach by the Borrower or receipt by the Seller from the Administrative Agent or the Servicer Borrower of written notice thereofof such breach given by the Administrative Agent, the Seller Borrower shall either: (a) make a deposit to the Collection Account (for allocation pursuant to Section 2.9 or Section 2.10, as applicable) in immediately available funds repay Advances Outstanding in an amount equal to the sum (the “Retransfer Price”) of (i) if such deposit is made during the Revolving Period, the amount which, if deposited to the Collection Account on such date, would cause the Availability as aggregate Outstanding Loan Balance of such date (after giving effect to such Warranty Asset ceasing to be an Eligible Asset) to be greater than or equal to zeroIneligible Loan(s), (ii) if such deposit is made during the Amortization Period, an amount equal to the product of the Outstanding Asset Balance of such Warranty Asset (without giving effect to either of the provisos in the definition of Outstanding Asset Balance) multiplied by the Advance Rate applicable to such Warranty Asset on the Funding Date thereof, (iii) any outstanding Servicer Advances thereon, (iv) any accrued and unpaid interest on such Warranty Assetthereon, and (viii) all Hedge Breakage Costs owed to the relevant Hedge Counterparty for any termination of one or more Hedge Transactions, in whole or in part, as required by the terms of any Hedging Hedge Agreement and(collectively, the “Retransfer Amount”), and the Administrative Agent and the Secured Parties shall release to Borrower any such Ineligible Loan(s) and relinquish any Lien created pursuant to this Agreement or otherwise, and the Secured Parties shall, in connection with such conveyance and without further action, be deemed to represent and warrant that they have the corporate authority and has taken all necessary corporate action to accomplish such release, but without any other representation or warranty, express or implied. In the foregoing instances, the Borrower shall make such repayment and on and after the date of such repayment, each Ineligible Loan so repaid shall not be included in the Collateral. In consideration of any such release by the Secured Parties, the Borrower shall, on the date of such repayment, remit to the Administrative Agent, on behalf of the Secured Parties, in immediately available funds an amount equal to the Retransfer Amount therefore. Upon each such repayment, the Administrative Agent, on behalf of the Secured Parties, shall automatically and without further action be deemed to release to the Borrower all the right, title and interest of the Secured Parties in, to and under such Ineligible Loan(s) and all monies due or to become due with respect thereto, all proceeds thereof and all rights to security for any such Ineligible Loan, and all proceeds and products of the foregoing. The Administrative Agent shall, at the sole expense of the Borrower, execute such documents and instruments of transfer as may be prepared by the Borrower and take such other actions as shall reasonably be requested by the Borrower to effect the transfer of such Ineligible Loan pursuant to this Section 4.33.
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