Representations, Warranties and Covenants of the Seller. The Seller acknowledges and agrees that the Depositor has assigned, transferred and conveyed to the Trustee all the Depositor's rights under the Mortgage Sale Agreement including, without limitation, the representations and warranties of the Seller contained therein (a copy of which representations and warranties is attached hereto as Exhibit AA). The Seller further acknowledges and agrees that the Trustee, as assignee of all of the Depositor's rights under the Mortgage Sale Agreement, may enforce all the covenants of the Seller therein contained and all remedies for deficient documentation and breaches of the representations and warranties contained therein (and in Exhibit AA hereof) directly against the Seller. The Seller further acknowledges and agrees that, pursuant to the Mortgage Sale Agreement, within 90 days of the earlier of its discovery or its receipt of written notice from any party of a breach of any representation or warranty set forth in Article III thereof (and contained in Exhibit AA hereof) that materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, it shall cure such breach in all material respects and, if such breach is not so cured, shall, (i) if such 90-day period expires prior to the second anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and substitute in its place a Replacement Mortgage Loan, in the manner and subject to the conditions set forth in this Section 2.04; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner set forth below; provided, however, that any such substitution pursuant to (i) above or repurchase pursuant to (ii) above shall not be effected prior to the delivery to the Trustee of the Opinion of Counsel required by Section 2.05 hereof and any such substitution pursuant to (i) above shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form thereof attached as an exhibit to the Custodial Agreement. The Seller shall promptly reimburse the Master Servicer and the Trustee for any expenses reasonably incurred by the Master Servicer and/or the Trustee enforcing the remedies for such breach. With respect to the representations and warranties described in Article III of the Mortgage Sale Agreement that are made to the best of the Seller's knowledge, if it is discovered by any of the Depositor, the Seller or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, notwithstanding the Seller's lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Replacement Mortgage Loan or Loans, the Seller shall deliver to the Trustee for the benefit of the Certificateholders, the related Mortgage Note, Mortgage and assignment of the Mortgage, and such other documents and agreements as are required by Section 2.01 hereof, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01. No substitution will be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Replacement Mortgage Loans in the month of substitution shall not be part of the Trust Fund and will be distributed to the Seller on the next succeeding Distribution Date. For the month of substitution, distributions to Certificateholders will include the Scheduled Payment due on any Deleted Mortgage Loan for such month and thereafter the Seller shall be entitled to retain all amounts received in respect of such Deleted Mortgage Loan. The Master Servicer shall amend the Mortgage Loan Schedule for the benefit of the Certificateholders to reflect the removal of such Deleted Mortgage Loan and the substitution of the Replacement Mortgage Loan or Loans and the Master Servicer shall deliver the amended Mortgage Loan Schedule to the Trustee. Upon such substitution, the Replacement Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Replacement Mortgage Loan or Loans, as of the date of substitution, the representations and warranties set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) with respect to such Mortgage Loan. Upon any such substitution and the deposit to the Certificate Account of the amount required to be deposited therein in connection with such substitution as described in the following paragraph, the Trustee shall release to the Seller the Mortgage File relating to such Deleted Mortgage Loan and held for the benefit of the Certificateholders and shall execute and deliver at the Master Servicer's direction such instruments of transfer or assignment as have been prepared by the Master Servicer, in each case without recourse, as shall be necessary to vest in the Seller, or its respective designee, title to the Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to this Section 2.04. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution is less than the aggregate Stated Principal Balance (after application of the scheduled principal portion of the monthly payments due in the month of substitution) of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be deposited into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. In the event that the Seller shall have purchased a Mortgage Loan, the Purchase Price therefor shall be deposited in the Certificate Account pursuant to Section 3.09 on the Determination Date for the Distribution Date in the month following the month during which the Seller became obligated under the Mortgage Sale Agreement to purchase or replace such Mortgage Loan and upon such deposit of the Purchase Price and receipt of a Request for Release in the form thereof attached as an exhibit to the Custodial Agreement, the Trustee shall release the related Mortgage File held for the benefit of the Certificateholders to the Seller, and the Trustee shall execute and deliver at the Seller's direction the related instruments of transfer or assignment prepared by the Seller, in each case without recourse, as shall be necessary to transfer title from the Trustee for the benefit of the Certificateholders and transfer the Trustee's interest to the Seller with respect to any Mortgage Loan purchased or substituted for pursuant to this Section 2.04. It is understood and agreed that the obligation under this Agreement of the Seller to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy against the Seller respecting such breach available to Certificateholders, the Depositor or the Trustee on their behalf. It is understood and agreed that the representations and warranties of the Seller set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) shall survive delivery of the Mortgage Files to, or upon the director of, the Trustee. Upon discovery by the Depositor or the Trustee of a breach of any of the foregoing representations and warranties, which breach materially and adversely affects value of a Mortgage Loan or the interest therein of the Certificateholders, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Greenwich Capital Acceptance Inc), Pooling and Servicing Agreement (Greenwich Capital Acceptance Inc)
Representations, Warranties and Covenants of the Seller. The and Master Servicer. -------------------
(a) Countrywide Home Loans, Inc., in its capacities as Seller acknowledges and agrees that the Depositor has assignedMaster Servicer, transferred and conveyed to the Trustee all the Depositor's rights under the Mortgage Sale Agreement including, without limitation, hereby makes the representations and warranties of set forth in Schedule II hereto, and by this reference incorporated herein, to the Seller contained therein (a copy of which representations Depositor and warranties is attached hereto as Exhibit AA). The Seller further acknowledges and agrees that the Trustee, as assignee of all of the Depositor's rights under the Mortgage Sale AgreementClosing Date, may enforce all the covenants or if so specified therein, as of the Seller therein contained and all remedies for deficient documentation and breaches of Cut-off Date.
(b) The Seller, in its capacity as Seller, hereby makes the representations and warranties contained therein set forth in Schedule III hereto, and by this reference incorporated herein, to the Depositor and the Trustee, as of the Closing Date, or if so specified therein, as of the Cut-off Date.
(c) Upon discovery by any of the parties hereto of a breach of a representation or warranty made pursuant to Section 2.03(b) that materially and adversely affects the interests of the Certificateholders in Exhibit AA hereof) directly against any Mortgage Loan, the Sellerparty discovering such breach shall give prompt notice thereof to the other parties. The Seller further acknowledges and agrees that, pursuant to the Mortgage Sale Agreement, hereby covenants that within 90 days of the earlier of its discovery or its receipt of written notice from any party of a breach of any representation or warranty set forth in Article III thereof (and contained in Exhibit AA hereofmade pursuant to Section 2.03(b) that which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, it shall cure such breach in all material respects andrespects, and if such breach is not so cured, shall, (i) if such 90-day period expires prior to the second anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from --------------------- the Trust Fund and substitute in its place a Replacement Substitute Mortgage Loan, in the manner and subject to the conditions set forth in this Section 2.04Section; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner set forth below; provided, however, that any such -------- ------- substitution pursuant to (i) above or repurchase pursuant to (ii) above shall not be effected prior to the delivery to the Trustee of the Opinion of Counsel required by Section 2.05 hereof hereof, if any, and any such substitution pursuant to (i) above shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form thereof attached as an exhibit to of Exhibit N and the Custodial AgreementMortgage File for any such Substitute Mortgage Loan. The Seller shall promptly reimburse the Master Servicer and the Trustee for any expenses reasonably incurred by the Master Servicer and/or or the Trustee in respect of enforcing the remedies for such breach. With respect to the representations and warranties described in Article III of the Mortgage Sale Agreement that this Section which are made to the best of the Seller's knowledge, if it is discovered by any of either the Depositor, the Seller or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage LoanLoan or the interests of the Certificateholders therein, notwithstanding the Seller's lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Replacement Substitute Mortgage Loan or Loans, the Seller shall deliver to the Trustee for the benefit of the CertificateholdersCertificateholders the Mortgage Note, the Mortgage, the related Mortgage Note, Mortgage and assignment of the Mortgage, and such other documents and agreements as are required by Section 2.01 hereof2.01, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01. No substitution will is permitted to be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Replacement Substitute Mortgage Loans in the month of substitution shall not be part of the Trust Fund and will be distributed to retained by the Seller on the next succeeding Distribution Date. For the month of substitution, distributions to Certificateholders will include the Scheduled Payment monthly payment due on any Deleted Mortgage Loan for such month and thereafter the Seller shall be entitled to retain all amounts received in respect of such Deleted Mortgage Loan. The Master Servicer shall amend the Mortgage Loan Schedule for the benefit of the Certificateholders to reflect the removal of such Deleted Mortgage Loan and the substitution of the Replacement Substitute Mortgage Loan or Loans and the Master Servicer shall deliver the amended Mortgage Loan Schedule to the Trustee. Upon such substitution, the Replacement Substitute Mortgage Loan or Loans shall be subject to to-the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Replacement Substitute Mortgage Loan or Loans, as of the date of substitution, the representations and warranties set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereofmade pursuant to Section 2.03(b) with respect to such Mortgage Loan. Upon any such substitution and the deposit to the Certificate Account of the amount required to be deposited therein in connection with such substitution as described in the following paragraph, the Trustee shall release to the Seller the Mortgage File relating to such Deleted Mortgage Loan and held for the benefit of the Certificateholders relating to such Deleted Mortgage Loan to the Seller and shall execute and deliver at the Master ServicerSeller's direction such instruments of transfer or assignment as have been prepared by the Master ServicerSeller, in each case without recourse, as shall be necessary to vest title in the Seller, or its respective designee, title to the Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to this Section 2.042.03. For any month in which the Seller substitutes one or more Replacement Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine the amount (if any) by which the aggregate principal balance of all such Replacement Substitute Mortgage Loans as of the date of substitution is less than the aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after application of the scheduled principal portion of the monthly payments due in the month of substitution). The amount of such shortage (the "Substitution ------------ Adjustment Amount") of all such Deleted Mortgage Loans. An plus an amount equal to the aggregate of the deficiencies described in the preceding sentence (any unreimbursed ------------------ Advances with respect to such amount, the "Substitution Adjustment Amount") Deleted Mortgage Loans shall be deposited into in the Certificate Account by the Seller on or before the Determination Distribution Account Deposit Date for the Distribution Date relating to in the Prepayment Period month succeeding the calendar month during which the related Mortgage Loan became required to be purchased or replaced hereunder. In the event that the Seller shall have purchased repurchased a Mortgage Loan, the Purchase Price therefor shall be deposited in the Certificate Account pursuant to Section 3.09 3.05 on or before the Determination Distribution Account Deposit Date for the Distribution Date in the month following the month during which the Seller became obligated under the Mortgage Sale Agreement hereunder to purchase repurchase or replace such Mortgage Loan and upon such deposit of the Purchase Price Price, the delivery of the Opinion of Counsel required by Section 2.05 and receipt of a Request for Release in the form thereof attached as an exhibit to the Custodial Agreementof Exhibit N hereto, the Trustee shall release the related Mortgage File held for the benefit of the Certificateholders to the Sellersuch Person, and the Trustee shall execute and deliver at the Sellersuch Person's direction the related such instruments of transfer or assignment prepared by the Sellersuch Person, in each case without recourse, as shall be necessary to transfer title from the Trustee for the benefit of the Certificateholders and transfer the Trustee's interest to the Seller with respect to any Mortgage Loan purchased or substituted for pursuant to this Section 2.04. It is understood and agreed that the obligation under this Agreement of the Seller any Person to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy against the Seller such Persons respecting such breach available to Certificateholders, the Depositor or the Trustee on their behalf. It is understood and agreed that the The representations and warranties of the Seller set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) made pursuant to this Section 2.03 shall survive delivery of the respective Mortgage Files to, or upon the director of, the Trustee. Upon discovery by the Depositor or to the Trustee of a breach of any of for the foregoing representations and warranties, which breach materially and adversely affects value of a Mortgage Loan or the interest therein benefit of the Certificateholders, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (CWMBS Inc), Pooling and Servicing Agreement (CWMBS Inc)
Representations, Warranties and Covenants of the Seller. and Master Servicer. -------------------
(a) The Seller acknowledges and agrees that the Depositor has assigned, transferred and conveyed to the Trustee all the Depositor's rights under the Mortgage Sale Agreement including, without limitation, hereby makes the representations and warranties of set forth in (i) Schedule II hereto, and by this reference incorporated in this Agreement to the Seller contained therein (a copy of which representations Master Servicer, the Depositor and warranties is attached hereto as Exhibit AA). The Seller further acknowledges and agrees that the Trustee, as assignee of all of the Closing Date and (ii) Schedule IV hereto, and by this reference incorporated in this Agreement, to the Depositor's rights under , the Master Servicer and the Trustee, as of the Closing Date, or if so specified therein, as of the Cut-off Date with respect to the Mortgage Sale Agreement, may enforce all the covenants of the Seller therein contained and all remedies for deficient documentation and breaches of Loans.
(b) The Master Servicer hereby makes the representations and warranties contained therein set forth in Schedule III to this Agreement, and by this reference incorporated in this Agreement, to the Depositor, the Seller and the Trustee, as of the Closing Date.
(c) Upon discovery by any of the parties hereto of a breach of a representation or warranty made pursuant to Section 2.03(a)(ii) that materially and adversely affects the interests of the Certificateholders in Exhibit AA hereof) directly against any Mortgage Loan, the Sellerparty discovering such breach shall give prompt notice thereof to the other parties. The Seller further acknowledges and agrees that, pursuant to the Mortgage Sale Agreement, hereby covenants that within 90 days of the earlier of its discovery or its receipt of written notice from any party of a breach of any representation or warranty set forth in Article III thereof (and contained in Exhibit AA hereofmade pursuant Section 2.03(a)(ii) that materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, it shall cure such breach in all material respects andrespects, and if such breach is not so cured, shall, (i) if such 90-day period expires prior to the second anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and substitute in its place a Replacement Substitute Mortgage Loan, in the manner and subject to the conditions set forth in this Section 2.04Section; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner set forth below; provided, however, that any such substitution pursuant to (i) above or repurchase pursuant to (ii) above shall not be effected prior to the delivery to the Trustee of the Opinion of Counsel required by Section 2.05 hereof 2.05, if any, and any such substitution pursuant to (i) above shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form thereof attached as an exhibit to of Exhibit N and the Custodial AgreementMortgage File for any such Substitute Mortgage Loan. The Seller shall promptly reimburse the Master Servicer and the Trustee for any expenses reasonably incurred by the Master Servicer and/or or the Trustee in respect of enforcing the remedies for such breach. With respect to the representations and warranties described in Article III of the Mortgage Sale Agreement that this Section which are made to the best of the Seller's knowledge, if it is discovered by any of either the Depositor, the Seller or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage LoanLoan or the interests of the Certificateholders therein, notwithstanding the Seller's lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Replacement Substitute Mortgage Loan or Loans, the Seller shall deliver to the Trustee for the benefit of the CertificateholdersCertificateholders the Mortgage Note, the Mortgage, the related Mortgage Note, Mortgage and assignment of the Mortgage, and such other documents and agreements as are required by Section 2.01 hereof2.01, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01. No substitution will is permitted to be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Replacement Substitute Mortgage Loans in the month of substitution shall not be part of the Trust Fund and will be distributed to retained by the Seller on the next succeeding Distribution Date. For the month of substitution, distributions to Certificateholders will include the Scheduled Payment monthly payment due on any Deleted Mortgage Loan for such month and thereafter the Seller shall be entitled to retain all amounts received in respect of such Deleted Mortgage Loan. The Master Servicer shall amend the Mortgage Loan Schedule for the benefit of the Certificateholders to reflect the removal of such Deleted Mortgage Loan and the substitution of the Replacement Substitute Mortgage Loan or Loans and the Master Servicer shall deliver the amended Mortgage Loan Schedule to the Trustee. Upon such substitution, the Replacement Substitute Mortgage Loan or Loans shall be subject to to-the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Replacement Substitute Mortgage Loan or Loans, as of the date of substitution, the representations and warranties set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereofmade pursuant to Section 2.03(b) with respect to such Mortgage Loan. Upon any such substitution and the deposit to the Certificate Account of the amount required to be deposited therein in connection with such substitution as described in the following paragraph, the Trustee shall release to the Seller the Mortgage File relating to such Deleted Mortgage Loan and held for the benefit of the Certificateholders relating to such Deleted Mortgage Loan to the Seller and shall execute and deliver at the Master ServicerSeller's direction such instruments of transfer or assignment as have been prepared by the Master ServicerSeller, in each case without recourse, as shall be necessary to vest title in the Seller, or its respective designee, title to the Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to this Section 2.042.03. For any month in which the Seller substitutes one or more Replacement Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine the amount (if any) by which the aggregate principal balance Stated Principal Balances of all such Replacement Substitute Mortgage Loans as of the date of substitution is less than the aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after application of the scheduled principal portion of the monthly payments due in the month of substitution) ). The amount of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence shortage (such amount, the "Substitution Adjustment Amount") plus an amount equal to the aggregate of any unreimbursed Advances with respect to such Deleted Mortgage Loans shall be deposited into in the Certificate Account by the Seller on or before the Determination Distribution Account Deposit Date for the Distribution Date relating to in the Prepayment Period month succeeding the calendar month during which the related Mortgage Loan became required to be purchased or replaced hereunder. In the event that the Seller shall have purchased repurchased a Mortgage Loan, the Purchase Price therefor shall be deposited in the Certificate Account pursuant to Section 3.09 3.05 on or before the Determination Distribution Account Deposit Date for the Distribution Date in the month following the month during which the Seller became obligated under the Mortgage Sale Agreement hereunder to purchase repurchase or replace such Mortgage Loan and upon such deposit of the Purchase Price Price, the delivery of the Opinion of Counsel required by Section 2.05 and receipt of a Request for Release in the form thereof attached as an exhibit to the Custodial Agreementof Exhibit N hereto, the Trustee shall release the related Mortgage File held for the benefit of the Certificateholders to the Sellersuch Person, and the Trustee shall execute and deliver at the Sellersuch Person's direction the related such instruments of transfer or assignment prepared by the Sellersuch Person, in each case without recourse, as shall be necessary to transfer title from the Trustee for the benefit of the Certificateholders and transfer the Trustee's interest to the Seller with respect to any Mortgage Loan purchased or substituted for pursuant to this Section 2.04. It is understood and agreed that the obligation under this Agreement of the Seller any Person to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy against the Seller such Persons respecting such breach available to Certificateholders, the Depositor or the Trustee on their behalf. It is understood and agreed that the The representations and warranties of the Seller set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) made pursuant to this Section 2.03 shall survive delivery of the respective Mortgage Files to, or upon the director of, the Trustee. Upon discovery by the Depositor or to the Trustee of a breach of any of for the foregoing representations and warranties, which breach materially and adversely affects value of a Mortgage Loan or the interest therein benefit of the Certificateholders, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (CWMBS Inc), Pooling and Servicing Agreement (CWMBS Inc)
Representations, Warranties and Covenants of the Seller. The Seller acknowledges represents, warrants and agrees covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(a) The Registration Statement, including the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of the Notes has been filed with the Commission and the Registration Statement, as amended, has become effective and remains effective, and the conditions to the use of such Registration Statement, as set forth in the General Instructions to Form SF-3, and the conditions of Rule 415 under the Act have been satisfied with respect to the Registration Statement;
(b) As of the Closing Date, the Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Disclosure Materials that have previously been furnished to the Representatives) as the Seller has advised the Representatives, before such time, will be included or made therein;
(A) On the effective date of the Registration Statement, the Registration Statement (1) complied in all material respects with the applicable requirements of the Act and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (B) as of its date, the Prospectus (1) complied in all material respects with the applicable requirements of the Act and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (C) on the Closing Date, the Registration Statement and the Prospectus (1) will comply in all material respects with the applicable requirements of the Act and (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the Depositor has assignedSeller makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with Underwriter Information (as defined below);
(A) The Time of Sale Information, transferred did not, as of the respective dates of the components thereof and conveyed at the Time of Sale, and will not, on the Closing Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the Trustee all omission of pricing and price-dependent information, which information shall of necessity appear only in the Depositor's rights final Prospectus) and (B) the Preliminary Prospectus (when taken together with the Ratings Issuer Free Writing Prospectus), did not, as of the Time of Sale, and will not, on the Closing Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Seller makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with Underwriter Information (as defined below); and
(e) Other than the Time of Sale Information and the Prospectus, the Seller (including its co-registrants, agents and representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Mortgage Sale Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Seller or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about September 27, 2023 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Bank to rate the Notes (the “Hired NRSROs”).
(f) The Seller is a limited liability company validly existing and in good standing under the laws of the State of Delaware and has, in all material respects, all power and authority to carry on its business as it is now conducted. The Seller has obtained all necessary licenses, consents, approvals, or order of, or filing with, any United States governmental agency or authority or any United States federal court in each jurisdiction where the failure to do so would materially and adversely affect the ability of the Seller to perform its obligations under the Transaction Documents.
(g) The execution, delivery and performance by the Seller of this Agreement includingand each Transaction Document to which it is a party, without limitationthe issuance of the Issued Notes, the sale of the Notes, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Seller. Neither the execution and delivery by the Seller of such instruments, nor the performance by the Seller of the transactions herein or therein contemplated, nor the compliance by the Seller with the provisions hereof or thereof, will (i) contravene or constitute a default under (A) any applicable order, law, rule, regulation, judgment or decree, (B) its organizational documents or (C) any material agreement, contract, order or other instrument to which it is a party or its property is subject (other than violations which do not affect the legality, validity or enforceability of such agreements or which, individually or in the aggregate, would not materially and adversely affect the transactions contemplated by, or the Seller’s ability to perform its obligations under, the Transaction Documents), or (ii) result in the creation or imposition of any lien, charge or encumbrance upon any of the Seller’s property pursuant to the terms of any such material agreement, contract, order or other instrument.
(h) The Seller has duly executed and delivered this Agreement and, as of the Closing Date, each of the Seller and the Issuer has duly executed and delivered each Transaction Document to which it is a party.
(i) The Seller has authorized the conveyance of the Receivables and other related property to the Issuer.
(j) The Issued Notes, when validly issued pursuant to the Indenture, and the Notes, when sold to the Underwriters pursuant to this Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. When executed and delivered by the parties thereto, each Transaction Document to which the Seller is a party will constitute a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization and issuance of the Issued Notes pursuant to the Indenture and the sale of the Notes pursuant to this Agreement have been or will be taken or obtained on or before the Closing Date.
(k) Neither the Seller nor the Issuer is now, and following the issuance of the Issued Notes, neither will be, required to be registered under the 1940 Act and, although there may be additional exclusions or exemptions available to the Issuer, the Issuer will rely on the exclusion or exemption from the definition of “investment company” under the 1940 Act contained in Section 3(c)(5) of the 1940 Act. The Issuer is structured so as not to constitute a “covered fund” as defined in the final regulation issued December 10, 2013, implementing the “Xxxxxxx Rule” (Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act).
(l) Based on information currently available to, and in the reasonable belief of, the Seller, the Seller is not engaged (whether as defendant or otherwise) in, nor has the Seller knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Receivables.
(m) Except for the Underwriters, neither the Seller nor the Issuer has employed or retained a broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Seller nor the Issuer is under any obligation to pay any broker’s fee or commission in connection with such sale.
(n) No Event of Default or Servicer Replacement Event or any event which after any applicable grace period or the giving of notice, or both, would constitute an Event of Default or Servicer Replacement Event, has occurred.
(o) Based on information currently available to, and in the reasonable belief of the Seller, the Seller is not engaged (whether as defendant or otherwise) in, nor has the Seller knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders (as defined below).
(p) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Seller of this Agreement and each Transaction Document to which it is a party shall have been paid or will be paid by the Seller at or before the Closing Date to the extent then due.
(q) As of the Closing Date, the representations and warranties of the Seller contained therein and the Issuer in the Transaction Documents to which it is a party will be true and correct in all material respects.
(a copy of which representations and warranties is attached hereto as Exhibit AA). r) The Seller further acknowledges and agrees that was not, on the Trustee, as assignee of all date on which the first bona fide offer of the Depositor's rights Notes sold pursuant to this Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Mortgage Sale Agreement, may enforce all the covenants Act.
(s) The Seller has complied with Rule 193 of the Seller therein contained and all remedies for deficient documentation and breaches of the representations and warranties contained therein (and in Exhibit AA hereof) directly against the Seller. The Seller further acknowledges and agrees that, pursuant to the Mortgage Sale Agreement, within 90 days of the earlier of its discovery or its receipt of written notice from any party of a breach of any representation or warranty set forth in Article III thereof (and contained in Exhibit AA hereof) that materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, it shall cure such breach Act in all material respects andin connection with the offering of the Notes. Neither the Seller nor the Bank has engaged any person to provide third-party “due diligence services” (as defined in Rule 17g-10 under the Exchange Act) relating to the Notes, if such breach is not so curedother than the Accounting Firm. The Seller obtained the Accountant’s Due Diligence Report, shall, and neither the Bank nor the Seller has received any “third-party due diligence report” (as defined in Rule 15Ga-2) other than the Accountant’s Due Diligence Report.
(t) The Seller has (i) if furnished to the Commission a Form ABS-15G (the “Form ABS-15G”) containing the findings and conclusions of the Accountant’s Due Diligence Report and has complied with all other requirements of Rule 15Ga-2, including by furnishing such 90-day Form ABS-15G to the Commission on XXXXX within the time period expires required by Rule 15Ga-2, (ii) provided a draft of the Form ABS-15G, not materially different from the Form ABS-15G furnished to the Commission, to counsel for the Underwriters and to the Representatives a reasonable period of time prior to the second anniversary furnishing of the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and substitute in its place a Replacement Mortgage Loan, in the manner and subject Form ABS-15G to the conditions Commission as set forth in this Section 2.04; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner set forth below; provided, however, that any such substitution pursuant to clause (i) above or repurchase pursuant to and (iiiii) above shall not be effected prior to the delivery to the Trustee of the Opinion of Counsel required by Section 2.05 hereof and any such substitution pursuant to (i) above shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form thereof attached as an exhibit to the Custodial Agreement. The Seller shall promptly reimburse the Master Servicer and the Trustee for any expenses reasonably incurred by the Master Servicer and/or the Trustee enforcing the remedies for such breach. With respect to the representations and warranties described in Article III of the Mortgage Sale Agreement that are made to the best of the Seller's knowledge, if it is discovered by any of the Depositor, the Seller or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, notwithstanding the Seller's lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Replacement Mortgage Loan or Loans, the Seller shall deliver to the Trustee for the benefit of the Certificateholders, the related Mortgage Note, Mortgage and assignment of the Mortgage, and such other documents and agreements as are required by Section 2.01 hereof, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01. No substitution will be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Replacement Mortgage Loans in the month of substitution shall not be part of the Trust Fund and will be distributed to the Seller on the next succeeding Distribution Date. For the month of substitution, distributions to Certificateholders will include the Scheduled Payment due on any Deleted Mortgage Loan for such month and thereafter the Seller shall be entitled to retain all amounts received in respect of such Deleted Mortgage Loan. The Master Servicer shall amend the Mortgage Loan Schedule for the benefit of the Certificateholders to reflect the removal of such Deleted Mortgage Loan and the substitution of the Replacement Mortgage Loan or Loans and the Master Servicer shall deliver the amended Mortgage Loan Schedule to the Trustee. Upon such substitution, the Replacement Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Replacement Mortgage Loan or Loans, as of the date of substitution, the representations and warranties set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) with respect to such Mortgage Loan. Upon any such substitution and the deposit to the Certificate Account of the amount required to be deposited therein in connection with such substitution as described in the following paragraph, the Trustee shall release to the Seller the Mortgage File relating to such Deleted Mortgage Loan and held for the benefit of the Certificateholders and shall execute and deliver at the Master Servicer's direction such instruments of transfer or assignment as have been prepared by the Master Servicer, in each case without recourse, as shall be necessary to vest in the Seller, or its respective designee, title to the Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to this Section 2.04. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution is less than the aggregate Stated Principal Balance (after application of the scheduled principal no portion of the monthly payments due in the month of substitution) of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amountForm ABS-15G contains any names, the "Substitution Adjustment Amount") shall be deposited into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased addresses, other personal identifiers or replaced hereunder. In the event that the Seller shall have purchased a Mortgage Loan, the Purchase Price therefor shall be deposited in the Certificate Account pursuant to Section 3.09 on the Determination Date for the Distribution Date in the month following the month during which the Seller became obligated under the Mortgage Sale Agreement to purchase or replace such Mortgage Loan and upon such deposit of the Purchase Price and receipt of a Request for Release in the form thereof attached as an exhibit to the Custodial Agreement, the Trustee shall release the related Mortgage File held for the benefit of the Certificateholders to the Seller, and the Trustee shall execute and deliver at the Seller's direction the related instruments of transfer or assignment prepared by the Seller, in each case without recourse, as shall be necessary to transfer title from the Trustee for the benefit of the Certificateholders and transfer the Trustee's interest to the Seller zip codes with respect to any Mortgage Loan purchased individuals, or substituted for pursuant to this Section 2.04. It is understood and agreed any other personally identifiable or other information that would be associated with an individual, including without limitation any “nonpublic personal information” within the obligation under this Agreement meaning of Title V of the Seller to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy against the Seller respecting such breach available to Certificateholders, the Depositor or the Trustee on their behalf. It is understood and agreed that the representations and warranties Xxxxx-Xxxxx-Xxxxxx Financial Services Modernization Act of the Seller set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) shall survive delivery of the Mortgage Files to, or upon the director of, the Trustee. Upon discovery by the Depositor or the Trustee of a breach of any of the foregoing representations and warranties, which breach materially and adversely affects value of a Mortgage Loan or the interest therein of the Certificateholders, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency1999.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Prime Auto Receivables Trust 2023-2)
Representations, Warranties and Covenants of the Seller. The Seller acknowledges represents, warrants and agrees covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(a) The Registration Statement, including the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of the Notes has been filed with the Commission and the Registration Statement, as amended, has become effective and remains effective, and the conditions to the use of such Registration Statement, as set forth in the General Instructions to Form SF-3, and the conditions of Rule 415 under the Act have been satisfied with respect to the Registration Statement;
(b) As of the Closing Date, the Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Disclosure Materials that have previously been furnished to the Representatives) as the Seller has advised the Representatives, before such time, will be included or made therein;
(A) On the effective date of the Registration Statement, the Registration Statement (1) complied in all material respects with the applicable requirements of the Act and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (B) as of its date, the Prospectus (1) complied in all material respects with the applicable requirements of the Act and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (C) on the Closing Date, the Registration Statement and the Prospectus (1) will comply in all material respects with the applicable requirements of the Act and (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the Depositor has assignedSeller makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with Underwriter Information (as defined below);
(A) The Time of Sale Information, transferred did not, as of the respective dates of the components thereof and conveyed at the Time of Sale, and will not, on the Closing Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the Trustee all omission of pricing and price-dependent information, which information shall of necessity appear only in the Depositor's rights final Prospectus) and (B) the Preliminary Prospectus (when taken together with the Ratings Issuer Free Writing Prospectus), did not, as of the Time of Sale, and will not, on the Closing Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Seller makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with Underwriter Information (as defined below); and
(e) Other than the Time of Sale Information and the Prospectus, the Seller (including its co-registrants, agents and representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Mortgage Sale Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Seller or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about April 21, 2022 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Bank to rate the Notes (the “Hired NRSROs”).
(f) The Seller is a limited liability company validly existing and in good standing under the laws of the State of Delaware and has, in all material respects, all power and authority to carry on its business as it is now conducted. The Seller has obtained all necessary licenses, consents, approvals, or order of, or filing with, any United States governmental agency or authority or any United States federal court in each jurisdiction where the failure to do so would materially and adversely affect the ability of the Seller to perform its obligations under the Transaction Documents.
(g) The execution, delivery and performance by the Seller of this Agreement includingand each Transaction Document to which it is a party, without limitationthe issuance of the Issued Notes, the sale of the Notes, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Seller. Neither the execution and delivery by the Seller of such instruments, nor the performance by the Seller of the transactions herein or therein contemplated, nor the compliance by the Seller with the provisions hereof or thereof, will (i) contravene or constitute a default under (A) any applicable order, law, rule, regulation, judgment or decree, (B) its organizational documents or (C) any material agreement, contract, order or other instrument to which it is a party or its property is subject (other than violations which do not affect the legality, validity or enforceability of such agreements or which, individually or in the aggregate, would not materially and adversely affect the transactions contemplated by, or the Seller’s ability to perform its obligations under, the Transaction Documents), or (ii) result in the creation or imposition of any lien, charge or encumbrance upon any of the Seller’s property pursuant to the terms of any such material agreement, contract, order or other instrument.
(h) The Seller has duly executed and delivered this Agreement and, as of the Closing Date, each of the Seller and the Issuer has duly executed and delivered each Transaction Document to which it is a party.
(i) The Seller has authorized the conveyance of the Receivables and other related property to the Issuer.
(j) The Issued Notes, when validly issued pursuant to the Indenture, and the Notes, when sold to the Underwriters pursuant to this Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. When executed and delivered by the parties thereto, each Transaction Document to which the Seller is a party will constitute a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization and issuance of the Issued Notes pursuant to the Indenture and the sale of the Notes pursuant to this Agreement have been or will be taken or obtained on or before the Closing Date.
(k) Neither the Seller nor the Issuer is now, and following the issuance of the Issued Notes, neither will be, required to be registered under the 1940 Act and, although there may be additional exclusions or exemptions available to the Issuer, the Issuer will rely on the exclusion or exemption from the definition of “investment company” under the 1940 Act contained in Section 3(c)(5) of the 0000 Xxx. The Issuer is structured so as not to constitute a “covered fund” as defined in the final regulation issued December 10, 2013, implementing the “Xxxxxxx Rule” (Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act).
(l) Based on information currently available to, and in the reasonable belief of, the Seller, the Seller is not engaged (whether as defendant or otherwise) in, nor has the Seller knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Receivables.
(m) Except for the Underwriters, neither the Seller nor the Issuer has employed or retained a broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Seller nor the Issuer is under any obligation to pay any broker’s fee or commission in connection with such sale.
(n) No Event of Default or Servicer Replacement Event or any event which after any applicable grace period or the giving of notice, or both, would constitute an Event of Default or Servicer Replacement Event, has occurred.
(o) Based on information currently available to, and in the reasonable belief of the Seller, the Seller is not engaged (whether as defendant or otherwise) in, nor has the Seller knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders (as defined below).
(p) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Seller of this Agreement and each Transaction Document to which it is a party shall have been paid or will be paid by the Seller at or before the Closing Date to the extent then due.
(q) As of the Closing Date, the representations and warranties of the Seller contained therein and the Issuer in the Transaction Documents to which it is a party will be true and correct in all material respects.
(a copy of which representations and warranties is attached hereto as Exhibit AA). r) The Seller further acknowledges and agrees that was not, on the Trustee, as assignee of all date on which the first bona fide offer of the Depositor's rights Notes sold pursuant to this Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Mortgage Sale Agreement, may enforce all the covenants Act.
(s) The Seller has complied with Rule 193 of the Seller therein contained and all remedies for deficient documentation and breaches of the representations and warranties contained therein (and in Exhibit AA hereof) directly against the Seller. The Seller further acknowledges and agrees that, pursuant to the Mortgage Sale Agreement, within 90 days of the earlier of its discovery or its receipt of written notice from any party of a breach of any representation or warranty set forth in Article III thereof (and contained in Exhibit AA hereof) that materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, it shall cure such breach Act in all material respects andin connection with the offering of the Notes. Neither the Seller nor the Bank has engaged any person to provide third-party “due diligence services” (as defined in Rule 17g-10 under the Exchange Act) relating to the Notes, if such breach is not so curedother than the Accounting Firm. The Seller obtained the Accountant’s Due Diligence Report, shall, and neither the Bank nor the Seller has received any “third-party due diligence report” (as defined in Rule 15Ga-2) other than the Accountant’s Due Diligence Report.
(t) The Seller has (i) if furnished to the Commission a Form ABS-15G (the “Form ABS-15G”) containing the findings and conclusions of the Accountant’s Due Diligence Report and has complied with all other requirements of Rule 15Ga-2, including by furnishing such 90-day Form ABS-15G to the Commission on XXXXX within the time period expires required by Rule 15Ga-2, (ii) provided a draft of the Form ABS-15G, not materially different from the Form ABS-15G furnished to the Commission, to counsel for the Underwriters and to the Representatives a reasonable period of time prior to the second anniversary furnishing of the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and substitute in its place a Replacement Mortgage Loan, in the manner and subject Form ABS-15G to the conditions Commission as set forth in this Section 2.04; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner set forth below; provided, however, that any such substitution pursuant to clause (i) above or repurchase pursuant to and (iiiii) above shall not be effected prior to the delivery to the Trustee of the Opinion of Counsel required by Section 2.05 hereof and any such substitution pursuant to (i) above shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form thereof attached as an exhibit to the Custodial Agreement. The Seller shall promptly reimburse the Master Servicer and the Trustee for any expenses reasonably incurred by the Master Servicer and/or the Trustee enforcing the remedies for such breach. With respect to the representations and warranties described in Article III of the Mortgage Sale Agreement that are made to the best of the Seller's knowledge, if it is discovered by any of the Depositor, the Seller or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, notwithstanding the Seller's lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Replacement Mortgage Loan or Loans, the Seller shall deliver to the Trustee for the benefit of the Certificateholders, the related Mortgage Note, Mortgage and assignment of the Mortgage, and such other documents and agreements as are required by Section 2.01 hereof, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01. No substitution will be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Replacement Mortgage Loans in the month of substitution shall not be part of the Trust Fund and will be distributed to the Seller on the next succeeding Distribution Date. For the month of substitution, distributions to Certificateholders will include the Scheduled Payment due on any Deleted Mortgage Loan for such month and thereafter the Seller shall be entitled to retain all amounts received in respect of such Deleted Mortgage Loan. The Master Servicer shall amend the Mortgage Loan Schedule for the benefit of the Certificateholders to reflect the removal of such Deleted Mortgage Loan and the substitution of the Replacement Mortgage Loan or Loans and the Master Servicer shall deliver the amended Mortgage Loan Schedule to the Trustee. Upon such substitution, the Replacement Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Replacement Mortgage Loan or Loans, as of the date of substitution, the representations and warranties set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) with respect to such Mortgage Loan. Upon any such substitution and the deposit to the Certificate Account of the amount required to be deposited therein in connection with such substitution as described in the following paragraph, the Trustee shall release to the Seller the Mortgage File relating to such Deleted Mortgage Loan and held for the benefit of the Certificateholders and shall execute and deliver at the Master Servicer's direction such instruments of transfer or assignment as have been prepared by the Master Servicer, in each case without recourse, as shall be necessary to vest in the Seller, or its respective designee, title to the Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to this Section 2.04. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution is less than the aggregate Stated Principal Balance (after application of the scheduled principal no portion of the monthly payments due in the month of substitution) of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amountForm ABS-15G contains any names, the "Substitution Adjustment Amount") shall be deposited into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased addresses, other personal identifiers or replaced hereunder. In the event that the Seller shall have purchased a Mortgage Loan, the Purchase Price therefor shall be deposited in the Certificate Account pursuant to Section 3.09 on the Determination Date for the Distribution Date in the month following the month during which the Seller became obligated under the Mortgage Sale Agreement to purchase or replace such Mortgage Loan and upon such deposit of the Purchase Price and receipt of a Request for Release in the form thereof attached as an exhibit to the Custodial Agreement, the Trustee shall release the related Mortgage File held for the benefit of the Certificateholders to the Seller, and the Trustee shall execute and deliver at the Seller's direction the related instruments of transfer or assignment prepared by the Seller, in each case without recourse, as shall be necessary to transfer title from the Trustee for the benefit of the Certificateholders and transfer the Trustee's interest to the Seller zip codes with respect to any Mortgage Loan purchased individuals, or substituted for pursuant to this Section 2.04. It is understood and agreed any other personally identifiable or other information that would be associated with an individual, including without limitation any “nonpublic personal information” within the obligation under this Agreement meaning of Title V of the Seller to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy against the Seller respecting such breach available to Certificateholders, the Depositor or the Trustee on their behalf. It is understood and agreed that the representations and warranties Xxxxx-Xxxxx-Xxxxxx Financial Services Modernization Act of the Seller set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) shall survive delivery of the Mortgage Files to, or upon the director of, the Trustee. Upon discovery by the Depositor or the Trustee of a breach of any of the foregoing representations and warranties, which breach materially and adversely affects value of a Mortgage Loan or the interest therein of the Certificateholders, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency1999.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Prime Auto Receivables Trust 2022-1)
Representations, Warranties and Covenants of the Seller. The Seller acknowledges represents, warrants and agrees covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(a) The Registration Statement, including the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of the Notes has been filed with the Commission and the Registration Statement, as amended, has become effective and remains effective, and the conditions to the use of such Registration Statement, as set forth in the General Instructions to Form SF-3, and the conditions of Rule 415 under the Act have been satisfied with respect to the Registration Statement;
(b) As of the Closing Date, the Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Disclosure Materials that have previously been furnished to the Representatives) as the Seller has advised the Representatives, before such time, will be included or made therein;
(A) On the effective date of the Registration Statement, the Registration Statement (1) complied in all material respects with the applicable requirements of the Act and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (B) as of its date, the Prospectus (1) complied in all material respects with the applicable requirements of the Act and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (C) on the Closing Date, the Registration Statement and the Prospectus (1) will comply in all material respects with the applicable requirements of the Act and (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the Depositor has assignedSeller makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with Underwriter Information (as defined below);
(A) The Time of Sale Information, transferred did not, as of the respective dates of the components thereof and conveyed at the Time of Sale, and will not, on the Closing Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the Trustee all omission of pricing and price-dependent information, which information shall of necessity appear only in the Depositor's rights final Prospectus) and (B) the Preliminary Prospectus (when taken together with the Ratings Issuer Free Writing Prospectus), did not, as of the Time of Sale, and will not, on the Closing Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Seller makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with Underwriter Information (as defined below); and
(e) Other than the Time of Sale Information and the Prospectus, the Seller (including its co-registrants, agents and representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Mortgage Sale Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Seller or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about May 14, 2019 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Bank to rate the Notes (the “Hired NRSROs”).
(f) The Seller is a limited liability company validly existing and in good standing under the laws of the State of Delaware and has, in all material respects, all power and authority to carry on its business as it is now conducted. The Seller has obtained all necessary licenses and approvals in each jurisdiction where the failure to do so would materially and adversely affect the ability of the Seller to perform its obligations under the Transaction Documents.
(g) The execution, delivery and performance by the Seller of this Agreement includingand each Transaction Document to which it is a party, without limitationthe issuance of the Issued Notes, the sale of the Notes, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Seller. Neither the execution and delivery by the Seller of such instruments, nor the performance by the Seller of the transactions herein or therein contemplated, nor the compliance by the Seller with the provisions hereof or thereof, will (i) contravene or constitute a default under (A) any applicable order, law, rule, regulation, judgment or decree, (B) its organizational documents or (C) any material agreement, contract, order or other instrument to which it is a party or its property is subject (other than violations which do not affect the legality, validity or enforceability of such agreements or which, individually or in the aggregate, would not materially and adversely affect the transactions contemplated by, or the Seller’s ability to perform its obligations under, the Transaction Documents), or (ii) result in the creation or imposition of any lien, charge or encumbrance upon any of the Seller’s property pursuant to the terms of any such material agreement, contract, order or other instrument.
(h) The Seller has duly executed and delivered this Agreement and, as of the Closing Date, each of the Seller and the Issuer has duly executed and delivered each Transaction Document to which it is a party.
(i) The Seller has authorized the conveyance of the Receivables and other related property to the Issuer.
(j) The Issued Notes, when validly issued pursuant to the Indenture, and the Notes, when sold to the Underwriters pursuant to this Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. When executed and delivered by the parties thereto, each Transaction Document to which the Seller is a party will constitute a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization and issuance of the Issued Notes pursuant to the Indenture and the sale of the Notes pursuant to this Agreement have been or will be taken or obtained on or before the Closing Date.
(k) Neither the Seller nor the Issuer is now, and following the issuance of the Issued Notes, neither will be, required to be registered under the 1940 Act and, although there may be additional exclusions or exemptions available to the Issuer, the Issuer will rely on the exclusion or exemption from the definition of “investment company” under the 1940 Act contained in Section 3(c)(5) of the 1940 Act. The Issuer is structured so as not to constitute a “covered fund” as defined in the final regulation issued December 10, 2013, implementing the “Xxxxxxx Rule” (Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act).
(l) Based on information currently available to, and in the reasonable belief of, the Seller, the Seller is not engaged (whether as defendant or otherwise) in, nor has the Seller knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Receivables.
(m) Except for the Underwriters, neither the Seller nor the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Seller nor the Issuer is under any obligation to pay any broker’s fee or commission in connection with such sale.
(n) No Event of Default or Servicer Replacement Event or any event which after any applicable grace period or the giving of notice, or both, would constitute an Event of Default or Servicer Replacement Event, has occurred.
(o) Based on information currently available to, and in the reasonable belief of the Seller, the Seller is not engaged (whether as defendant or otherwise) in, nor has the Seller knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders (as defined below).
(p) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Seller of this Agreement and each Transaction Document to which it is a party shall have been paid or will be paid by the Seller at or before the Closing Date to the extent then due.
(q) As of the Closing Date, the representations and warranties of the Seller contained therein and the Issuer in the Transaction Documents to which it is a party will be true and correct in all material respects.
(a copy of which representations and warranties is attached hereto as Exhibit AA). r) The Seller further acknowledges and agrees that was not, on the Trustee, as assignee of all date on which the first bona fide offer of the Depositor's rights Notes sold pursuant to this Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Mortgage Sale Agreement, may enforce all the covenants Act.
(s) The Seller has complied with Rule 193 of the Seller therein contained and all remedies for deficient documentation and breaches of the representations and warranties contained therein (and in Exhibit AA hereof) directly against the Seller. The Seller further acknowledges and agrees that, pursuant to the Mortgage Sale Agreement, within 90 days of the earlier of its discovery or its receipt of written notice from any party of a breach of any representation or warranty set forth in Article III thereof (and contained in Exhibit AA hereof) that materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, it shall cure such breach Act in all material respects andin connection with the offering of the Notes. Neither the Seller nor the Bank has engaged any person to provide third-party “due diligence services” (as defined in Rule 17g-10 under the Exchange Act) relating to the Notes, if such breach is not so curedother than the Accounting Firm. The Seller obtained the Accountant’s Due Diligence Report, shall, and neither the Bank nor the Seller has received any “third-party due diligence report” (as defined in Rule 15Ga-2) other than the Accountant’s Due Diligence Report.
(t) The Seller has (i) if furnished to the Commission a Form ABS-15G (the “Form ABS-15G”) containing the findings and conclusions of the Accountant’s Due Diligence Report and has complied with all other requirements of Rule 15Ga-2, including by furnishing such 90-day Form ABS-15G to the Commission on XXXXX within the time period expires required by Rule 15Ga-2, (ii) provided a draft of the Form ABS-15G, not materially different from the Form ABS-15G furnished to the Commission, to counsel for the Underwriters and to the Representatives a reasonable period of time prior to the second anniversary furnishing of the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and substitute in its place a Replacement Mortgage Loan, in the manner and subject Form ABS-15G to the conditions Commission as set forth in this Section 2.04; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner set forth below; provided, however, that any such substitution pursuant to clause (i) above or repurchase pursuant to and (iiiii) above shall not be effected prior to the delivery to the Trustee of the Opinion of Counsel required by Section 2.05 hereof and any such substitution pursuant to (i) above shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form thereof attached as an exhibit to the Custodial Agreement. The Seller shall promptly reimburse the Master Servicer and the Trustee for any expenses reasonably incurred by the Master Servicer and/or the Trustee enforcing the remedies for such breach. With respect to the representations and warranties described in Article III of the Mortgage Sale Agreement that are made to the best of the Seller's knowledge, if it is discovered by any of the Depositor, the Seller or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, notwithstanding the Seller's lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Replacement Mortgage Loan or Loans, the Seller shall deliver to the Trustee for the benefit of the Certificateholders, the related Mortgage Note, Mortgage and assignment of the Mortgage, and such other documents and agreements as are required by Section 2.01 hereof, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01. No substitution will be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Replacement Mortgage Loans in the month of substitution shall not be part of the Trust Fund and will be distributed to the Seller on the next succeeding Distribution Date. For the month of substitution, distributions to Certificateholders will include the Scheduled Payment due on any Deleted Mortgage Loan for such month and thereafter the Seller shall be entitled to retain all amounts received in respect of such Deleted Mortgage Loan. The Master Servicer shall amend the Mortgage Loan Schedule for the benefit of the Certificateholders to reflect the removal of such Deleted Mortgage Loan and the substitution of the Replacement Mortgage Loan or Loans and the Master Servicer shall deliver the amended Mortgage Loan Schedule to the Trustee. Upon such substitution, the Replacement Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Replacement Mortgage Loan or Loans, as of the date of substitution, the representations and warranties set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) with respect to such Mortgage Loan. Upon any such substitution and the deposit to the Certificate Account of the amount required to be deposited therein in connection with such substitution as described in the following paragraph, the Trustee shall release to the Seller the Mortgage File relating to such Deleted Mortgage Loan and held for the benefit of the Certificateholders and shall execute and deliver at the Master Servicer's direction such instruments of transfer or assignment as have been prepared by the Master Servicer, in each case without recourse, as shall be necessary to vest in the Seller, or its respective designee, title to the Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to this Section 2.04. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution is less than the aggregate Stated Principal Balance (after application of the scheduled principal no portion of the monthly payments due in the month of substitution) of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amountForm ABS-15G contains any names, the "Substitution Adjustment Amount") shall be deposited into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased addresses, other personal identifiers or replaced hereunder. In the event that the Seller shall have purchased a Mortgage Loan, the Purchase Price therefor shall be deposited in the Certificate Account pursuant to Section 3.09 on the Determination Date for the Distribution Date in the month following the month during which the Seller became obligated under the Mortgage Sale Agreement to purchase or replace such Mortgage Loan and upon such deposit of the Purchase Price and receipt of a Request for Release in the form thereof attached as an exhibit to the Custodial Agreement, the Trustee shall release the related Mortgage File held for the benefit of the Certificateholders to the Seller, and the Trustee shall execute and deliver at the Seller's direction the related instruments of transfer or assignment prepared by the Seller, in each case without recourse, as shall be necessary to transfer title from the Trustee for the benefit of the Certificateholders and transfer the Trustee's interest to the Seller zip codes with respect to any Mortgage Loan purchased individuals, or substituted for pursuant to this Section 2.04. It is understood and agreed any other personally identifiable or other information that would be associated with an individual, including without limitation any “nonpublic personal information” within the obligation under this Agreement meaning of Title V of the Seller to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy against the Seller respecting such breach available to Certificateholders, the Depositor or the Trustee on their behalf. It is understood and agreed that the representations and warranties Xxxxx-Xxxxx-Xxxxxx Financial Services Modernization Act of the Seller set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) shall survive delivery of the Mortgage Files to, or upon the director of, the Trustee. Upon discovery by the Depositor or the Trustee of a breach of any of the foregoing representations and warranties, which breach materially and adversely affects value of a Mortgage Loan or the interest therein of the Certificateholders, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency1999.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Prime Auto Receivables Trust 2019-1)
Representations, Warranties and Covenants of the Seller. The Seller acknowledges represents, warrants and agrees covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(a) The Registration Statement, including the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of the Notes has been filed with the Commission and the Registration Statement, as amended, has become effective and remains effective, and the conditions to the use of such Registration Statement, as set forth in the General Instructions to Form SF-3, and the conditions of Rule 415 under the Act have been satisfied with respect to the Registration Statement;
(b) As of the Closing Date, the Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Disclosure Materials that have previously been furnished to the Representatives) as the Seller has advised the Representatives, before such time, will be included or made therein;
(A) On the effective date of the Registration Statement, the Registration Statement (1) complied in all material respects with the applicable requirements of the Act and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (B) as of its date, the Prospectus (1) complied in all material respects with the applicable requirements of the Act and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (C) on the Closing Date, the Registration Statement and the Prospectus (1) will comply in all material respects with the applicable requirements of the Act and (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the Depositor has assignedSeller makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with Underwriter Information (as defined below);
(A) The Time of Sale Information, transferred did not, as of the respective dates of the components thereof and conveyed at the Time of Sale, and will not, on the Closing Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the Trustee all omission of pricing and price-dependent information, which information shall of necessity appear only in the Depositor's rights final Prospectus) and (B) the Preliminary Prospectus (when taken together with the Ratings Issuer Free Writing Prospectus), did not, as of the Time of Sale, and will not, on the Closing Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Seller makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with Underwriter Information (as defined below); and
(e) Other than the Time of Sale Information and the Prospectus, the Seller (including its co-registrants, agents and representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Mortgage Sale Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Seller or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about October 13, 2021 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Bank to rate the Notes (the “Hired NRSROs”).
(f) The Seller is a limited liability company validly existing and in good standing under the laws of the State of Delaware and has, in all material respects, all power and authority to carry on its business as it is now conducted. The Seller has obtained all necessary licenses, consents, approvals, or order of, or filing with, any United States governmental agency or authority or any United States federal court in each jurisdiction where the failure to do so would materially and adversely affect the ability of the Seller to perform its obligations under the Transaction Documents.
(g) The execution, delivery and performance by the Seller of this Agreement includingand each Transaction Document to which it is a party, without limitationthe issuance of the Issued Notes, the sale of the Notes, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Seller. Neither the execution and delivery by the Seller of such instruments, nor the performance by the Seller of the transactions herein or therein contemplated, nor the compliance by the Seller with the provisions hereof or thereof, will (i) contravene or constitute a default under (A) any applicable order, law, rule, regulation, judgment or decree, (B) its organizational documents or (C) any material agreement, contract, order or other instrument to which it is a party or its property is subject (other than violations which do not affect the legality, validity or enforceability of such agreements or which, individually or in the aggregate, would not materially and adversely affect the transactions contemplated by, or the Seller’s ability to perform its obligations under, the Transaction Documents), or (ii) result in the creation or imposition of any lien, charge or encumbrance upon any of the Seller’s property pursuant to the terms of any such material agreement, contract, order or other instrument.
(h) The Seller has duly executed and delivered this Agreement and, as of the Closing Date, each of the Seller and the Issuer has duly executed and delivered each Transaction Document to which it is a party.
(i) The Seller has authorized the conveyance of the Receivables and other related property to the Issuer.
(j) The Issued Notes, when validly issued pursuant to the Indenture, and the Notes, when sold to the Underwriters pursuant to this Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. When executed and delivered by the parties thereto, each Transaction Document to which the Seller is a party will constitute a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization and issuance of the Issued Notes pursuant to the Indenture and the sale of the Notes pursuant to this Agreement have been or will be taken or obtained on or before the Closing Date.
(k) Neither the Seller nor the Issuer is now, and following the issuance of the Issued Notes, neither will be, required to be registered under the 1940 Act and, although there may be additional exclusions or exemptions available to the Issuer, the Issuer will rely on the exclusion or exemption from the definition of “investment company” under the 1940 Act contained in Section 3(c)(5) of the 1940 Act. The Issuer is structured so as not to constitute a “covered fund” as defined in the final regulation issued December 10, 2013, implementing the “Xxxxxxx Rule” (Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act).
(l) Based on information currently available to, and in the reasonable belief of, the Seller, the Seller is not engaged (whether as defendant or otherwise) in, nor has the Seller knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Receivables.
(m) Except for the Underwriters, neither the Seller nor the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Seller nor the Issuer is under any obligation to pay any broker’s fee or commission in connection with such sale.
(n) No Event of Default or Servicer Replacement Event or any event which after any applicable grace period or the giving of notice, or both, would constitute an Event of Default or Servicer Replacement Event, has occurred.
(o) Based on information currently available to, and in the reasonable belief of the Seller, the Seller is not engaged (whether as defendant or otherwise) in, nor has the Seller knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders (as defined below).
(p) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Seller of this Agreement and each Transaction Document to which it is a party shall have been paid or will be paid by the Seller at or before the Closing Date to the extent then due.
(q) As of the Closing Date, the representations and warranties of the Seller contained therein and the Issuer in the Transaction Documents to which it is a party will be true and correct in all material respects.
(a copy of which representations and warranties is attached hereto as Exhibit AA). r) The Seller further acknowledges and agrees that was not, on the Trustee, as assignee of all date on which the first bona fide offer of the Depositor's rights Notes sold pursuant to this Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Mortgage Sale Agreement, may enforce all the covenants Act.
(s) The Seller has complied with Rule 193 of the Seller therein contained and all remedies for deficient documentation and breaches of the representations and warranties contained therein (and in Exhibit AA hereof) directly against the Seller. The Seller further acknowledges and agrees that, pursuant to the Mortgage Sale Agreement, within 90 days of the earlier of its discovery or its receipt of written notice from any party of a breach of any representation or warranty set forth in Article III thereof (and contained in Exhibit AA hereof) that materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, it shall cure such breach Act in all material respects andin connection with the offering of the Notes. Neither the Seller nor the Bank has engaged any person to provide third-party “due diligence services” (as defined in Rule 17g-10 under the Exchange Act) relating to the Notes, if such breach is not so curedother than the Accounting Firm. The Seller obtained the Accountant’s Due Diligence Report, shall, and neither the Bank nor the Seller has received any “third-party due diligence report” (as defined in Rule 15Ga-2) other than the Accountant’s Due Diligence Report.
(t) The Seller has (i) if furnished to the Commission a Form ABS-15G (the “Form ABS-15G”) containing the findings and conclusions of the Accountant’s Due Diligence Report and has complied with all other requirements of Rule 15Ga-2, including by furnishing such 90-day Form ABS-15G to the Commission on XXXXX within the time period expires required by Rule 15Ga-2, (ii) provided a draft of the Form ABS-15G, not materially different from the Form ABS-15G furnished to the Commission, to counsel for the Underwriters and to the Representatives a reasonable period of time prior to the second anniversary furnishing of the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and substitute in its place a Replacement Mortgage Loan, in the manner and subject Form ABS-15G to the conditions Commission as set forth in this Section 2.04; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner set forth below; provided, however, that any such substitution pursuant to clause (i) above or repurchase pursuant to and (iiiii) above shall not be effected prior to the delivery to the Trustee of the Opinion of Counsel required by Section 2.05 hereof and any such substitution pursuant to (i) above shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form thereof attached as an exhibit to the Custodial Agreement. The Seller shall promptly reimburse the Master Servicer and the Trustee for any expenses reasonably incurred by the Master Servicer and/or the Trustee enforcing the remedies for such breach. With respect to the representations and warranties described in Article III of the Mortgage Sale Agreement that are made to the best of the Seller's knowledge, if it is discovered by any of the Depositor, the Seller or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, notwithstanding the Seller's lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Replacement Mortgage Loan or Loans, the Seller shall deliver to the Trustee for the benefit of the Certificateholders, the related Mortgage Note, Mortgage and assignment of the Mortgage, and such other documents and agreements as are required by Section 2.01 hereof, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01. No substitution will be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Replacement Mortgage Loans in the month of substitution shall not be part of the Trust Fund and will be distributed to the Seller on the next succeeding Distribution Date. For the month of substitution, distributions to Certificateholders will include the Scheduled Payment due on any Deleted Mortgage Loan for such month and thereafter the Seller shall be entitled to retain all amounts received in respect of such Deleted Mortgage Loan. The Master Servicer shall amend the Mortgage Loan Schedule for the benefit of the Certificateholders to reflect the removal of such Deleted Mortgage Loan and the substitution of the Replacement Mortgage Loan or Loans and the Master Servicer shall deliver the amended Mortgage Loan Schedule to the Trustee. Upon such substitution, the Replacement Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Replacement Mortgage Loan or Loans, as of the date of substitution, the representations and warranties set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) with respect to such Mortgage Loan. Upon any such substitution and the deposit to the Certificate Account of the amount required to be deposited therein in connection with such substitution as described in the following paragraph, the Trustee shall release to the Seller the Mortgage File relating to such Deleted Mortgage Loan and held for the benefit of the Certificateholders and shall execute and deliver at the Master Servicer's direction such instruments of transfer or assignment as have been prepared by the Master Servicer, in each case without recourse, as shall be necessary to vest in the Seller, or its respective designee, title to the Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to this Section 2.04. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution is less than the aggregate Stated Principal Balance (after application of the scheduled principal no portion of the monthly payments due in the month of substitution) of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amountForm ABS-15G contains any names, the "Substitution Adjustment Amount") shall be deposited into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased addresses, other personal identifiers or replaced hereunder. In the event that the Seller shall have purchased a Mortgage Loan, the Purchase Price therefor shall be deposited in the Certificate Account pursuant to Section 3.09 on the Determination Date for the Distribution Date in the month following the month during which the Seller became obligated under the Mortgage Sale Agreement to purchase or replace such Mortgage Loan and upon such deposit of the Purchase Price and receipt of a Request for Release in the form thereof attached as an exhibit to the Custodial Agreement, the Trustee shall release the related Mortgage File held for the benefit of the Certificateholders to the Seller, and the Trustee shall execute and deliver at the Seller's direction the related instruments of transfer or assignment prepared by the Seller, in each case without recourse, as shall be necessary to transfer title from the Trustee for the benefit of the Certificateholders and transfer the Trustee's interest to the Seller zip codes with respect to any Mortgage Loan purchased individuals, or substituted for pursuant to this Section 2.04. It is understood and agreed any other personally identifiable or other information that would be associated with an individual, including without limitation any “nonpublic personal information” within the obligation under this Agreement meaning of Title V of the Seller to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy against the Seller respecting such breach available to Certificateholders, the Depositor or the Trustee on their behalf. It is understood and agreed that the representations and warranties Xxxxx-Xxxxx-Xxxxxx Financial Services Modernization Act of the Seller set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) shall survive delivery of the Mortgage Files to, or upon the director of, the Trustee. Upon discovery by the Depositor or the Trustee of a breach of any of the foregoing representations and warranties, which breach materially and adversely affects value of a Mortgage Loan or the interest therein of the Certificateholders, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency1999.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Prime Auto Receivables Trust 2021-1)
Representations, Warranties and Covenants of the Seller. (i) The Seller acknowledges and agrees that the Depositor has assigned, transferred and conveyed to the Trustee all the Depositor's rights under the Mortgage Sale Agreement including, without limitation, hereby makes the representations and warranties of set forth in Schedule II A and hereto, and by this reference incorporated herein, to the Seller contained therein (a copy of which representations Depositor and warranties is attached hereto as Exhibit AA). The Seller further acknowledges and agrees that the Trustee, as assignee of all of the Depositor's rights under the Mortgage Sale AgreementClosing Date, may enforce all the covenants or if so specified therein, as of the Seller therein contained and all remedies for deficient documentation and breaches of Cut-off Date.
(ii) The Seller, hereby makes the representations and warranties contained therein set forth in Schedule III hereto, and by this reference incorporated herein, to the Depositor and the Trustee, as of the Closing Date, or if so specified therein, as of the Cut-off Date.
(iii) Upon discovery by any of the parties hereto of a breach of a representation or warranty made pursuant to Section 2(d)(ii) that materially and adversely affects the interests of the Securityholders in Exhibit AA hereof) directly against any Mortgage Loan, the Sellerparty discovering such breach shall give prompt notice thereof to the other parties. The Seller further acknowledges and agrees that, pursuant to the Mortgage Sale Agreement, hereby covenants that within 90 days of the earlier of its discovery or its receipt of written notice from any party of a breach of any representation or warranty set forth in Article III thereof (and contained in Exhibit AA hereofmade pursuant to Section 2(d)(ii) that which materially and adversely affects the interests of the Certificateholders Securityholders in any Mortgage Loan, it shall cure such breach in all material respects andrespects, and if such breach is not so cured, shall, (i) if such 90-day period expires prior to the second anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund Issuer and substitute in its place a Replacement Substitute Mortgage Loan, in the manner and subject to the conditions set forth in this Section 2.04Section; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner set forth below; provided, however, that any such substitution pursuant to (i) above or repurchase pursuant to (ii) above shall not be effected prior to the delivery to the Trustee Trustees of the Opinion of Counsel required by [Section 2.05 hereof ____ {delivery of opinion}] hereof, if any, and any such substitution pursuant to (i) above shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form thereof attached as an exhibit to of Exhibit D and the Custodial AgreementMortgage File for any such Substitute Mortgage Loan. The Seller shall promptly reimburse the Master Servicer and the Trustee for any expenses reasonably incurred by the Master Servicer and/or the or any Trustee in respect of enforcing the remedies for such breach. With respect to the representations and warranties described in Article III of the Mortgage Sale Agreement that this Section which are made to the best of the Seller's knowledge, if it is discovered by any of either the Depositor, the Seller or the any Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage LoanLoan or the interests of the Securityholders therein, notwithstanding the Seller's lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Replacement Substitute Mortgage Loan or Loans, the Seller shall deliver to the Trustee for the benefit of the CertificateholdersSecurityholders the Mortgage Note, the Mortgage, the related Mortgage Note, Mortgage and assignment of the Mortgage, and such other documents and agreements as are required by Section 2.01 hereof2(a), with the Mortgage Note endorsed and the Mortgage assigned as required by Section 2.012(a). No substitution will substittution is permitted to be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Replacement Substitute Mortgage Loans in the month of substitution shall not be part of the Trust Fund Issuer and will be distributed to retained by the Seller on the next succeeding Distribution Date. For the month of substitution, distributions to Certificateholders Securityholders will include the Scheduled Payment monthly payment due on any Deleted Mortgage Loan for such month and thereafter the Seller shall be entitled to retain all amounts received in respect of such Deleted Mortgage Loan. The Master Servicer shall amend the Mortgage Loan Schedule for the benefit of the Certificateholders Securityholders to reflect the removal of such Deleted Mortgage Loan and the substitution of the Replacement Substitute Mortgage Loan or Loans and the Master Servicer shall deliver the amended Mortgage Loan Schedule to the TrusteeTrustees. Upon such substitution, the Replacement Substitute Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Replacement Substitute Mortgage Loan or Loans, as of the date of substitution, the representations and warranties set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereofmade pursuant to Section 2(d)(ii) with respect to such Mortgage Loan. Upon any such substitution and the deposit to the Certificate Collection Account of the amount required to be deposited therein in connection with such substitution as described in the following paragraph, the Trustee shall release to the Seller the Mortgage File held for the benefit of the Securityholders relating to such Deleted Mortgage Loan and held for to the benefit of the Certificateholders Seller and shall execute and deliver at the Master ServicerSeller's direction such instruments of transfer or assignment as have been prepared by the Master ServicerSeller, in each case without recourse, as shall be necessary to vest title in the Seller, or its respective designee, title to the Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to this Section 2.042(d). For any month in which the Seller substitutes one or more Replacement Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine the amount (if any) by which the aggregate principal balance of all such Replacement Substitute Mortgage Loans as of the date of substitution is less than the aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after application of the scheduled principal portion of the monthly payments due in the month of substitution) ). The amount of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence shortage (such amount, the "Substitution Adjustment Amount") plus an amount equal to the aggregate of any unreimbursed Advances with respect to such Deleted Mortgage Loans shall be deposited into in the Certificate Collection Account by the Seller on or before the Determination Payment Account Deposit Date for the Distribution Date relating to in the Prepayment Period month succeeding the calendar month during which the related Mortgage Loan became required to be purchased or replaced hereunder. In the event that the Seller shall have purchased repurchased a Mortgage Loan, the Purchase Price therefor shall be deposited in the Certificate Collection Account pursuant to Section 3.09 3(h) on or before the Determination Payment Account Deposit Date for the Distribution Date in the month following the month during which the Seller became obligated under the Mortgage Sale Agreement hereunder to purchase repurchase or replace such Mortgage Loan and upon such deposit of the Purchase Price Price, the delivery of the Opinion of Counsel required by Section 2(d) and receipt of a Request for Release in the form thereof attached as an exhibit to the Custodial Agreementof Exhibit D hereto, the Trustee shall release the related Mortgage File held for the benefit of the Certificateholders Securityholders to the Sellersuch Person, and the Trustee shall execute and deliver at the Sellersuch Person's direction the related such instruments of transfer or assignment prepared by the Sellersuch Person, in each case without recourse, as shall be necessary to transfer title from the Trustee for the benefit of the Certificateholders and transfer the Trustee's interest to the Seller with respect to any Mortgage Loan purchased or substituted for pursuant to this Section 2.04. It is understood and agreed that the obligation under this Agreement of the Seller any Person to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy against the Seller such Persons respecting such breach available to CertificateholdersSecurityholders, the Depositor or the Trustee Trustees on their behalf. It is understood and agreed that the The representations and warranties of the Seller set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereofmade pursuant to this Section 2(d) shall survive delivery of the respective Mortgage Files to, or upon the director of, the Trustee. Upon discovery by the Depositor or to the Trustee of a breach of any for the benefit of the foregoing representations and warranties, which breach materially and adversely affects value of a Mortgage Loan or the interest therein of the Certificateholders, the party discovering such breach shall give prompt written notice to the others and to each Rating AgencySecurityholders.
Appears in 1 contract
Samples: Master Servicing Agreement (Directors Asset Conduit Corp)
Representations, Warranties and Covenants of the Seller. and Master Servicer. -------------------
(a) The Seller acknowledges and agrees that the Depositor has assigned, transferred and conveyed to the Trustee all the Depositor's rights under the Mortgage Sale Agreement including, without limitation, hereby makes the representations and warranties of set forth in (i) Schedule II hereto, and by this reference incorporated herein, to the Seller contained therein (a copy of which representations Depositor, the Master Servicer and warranties is attached hereto as Exhibit AA). The Seller further acknowledges and agrees that the Trustee, as assignee of all of the Closing Date and (ii) Schedule III hereto, and by this reference incorporated herein, to the Depositor's rights under , the Mortgage Sale AgreementMaster Servicer and the Trustee, may enforce all the covenants as of the Seller therein contained Closing Date, or if so specified therein, as of the Initial Cut-off Date with respect to the Initial Mortgage Loans and all remedies for deficient documentation and breaches as of the related Supplemental Cut-off Date with respect to the Supplemental Mortgage Loans.
(b) The Master Servicer hereby makes the representations and warranties contained therein set forth in Schedule IV hereto, and by this reference incorporated herein, to the Depositor and the Trustee, as of the Closing Date.
(c) Upon discovery by any of the parties hereto of a breach of a representation or warranty made pursuant to Section 2.03(a)(ii) or a breach of a representation or warranty with respect to a Supplemental Mortgage Loan under Section 2.01(e)(i) that materially and adversely affects the interests of the Certificateholders in Exhibit AA hereof) directly against any Mortgage Loan, the Sellerparty discovering such breach shall give prompt notice thereof to the other parties. The Seller further acknowledges and agrees that, pursuant to the Mortgage Sale Agreement, hereby covenants that within 90 days of the earlier of its discovery or its receipt of written notice from any party of a breach of any representation or warranty set forth in Article III thereof (made pursuant to Section 2.03(a)(ii) and contained in Exhibit AA hereofwith respect to a breach of a representation and warranty with respect to a Supplemental Mortgage Loan under Section 2.01(e)(i) that which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, it shall cure such breach in all material respects andrespects, and if such breach is not so cured, shall, (i) if such 90-day period expires prior to the second anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and substitute in its place a Replacement Substitute Mortgage Loan, in the manner and subject to the conditions set forth in this Section 2.04Section; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner set forth below; provided, however, that any such substitution pursuant to (i) above or repurchase pursuant to (ii) above shall not be effected prior to the delivery to the Trustee of the Opinion of Counsel required by Section 2.05 hereof hereof, if any, and any such substitution pursuant to (i) above shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form thereof attached as an exhibit to of Exhibit N and the Custodial AgreementMortgage File for any such Substitute Mortgage Loan. The Seller shall promptly reimburse the Master Servicer and the Trustee for any expenses reasonably incurred by the Master Servicer and/or or the Trustee in respect of enforcing the remedies for such breach. With respect to the representations and warranties described in Article III of the Mortgage Sale Agreement that this Section which are made to the best of the Seller's knowledge, if it is discovered by any of either the Depositor, the Seller or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage LoanLoan or the interests of the Certificateholders therein, notwithstanding the Seller's lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Replacement Substitute Mortgage Loan or Loans, the Seller shall deliver to the Trustee for the benefit of the CertificateholdersCertificateholders the Mortgage Note, the Mortgage, the related Mortgage Note, Mortgage and assignment of the Mortgage, and such other documents and agreements as are required by Section 2.01 hereof2.01, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01. No substitution will is permitted to be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Replacement Substitute Mortgage Loans in the month of substitution shall not be part of the Trust Fund and will be distributed to retained by the Seller on the next succeeding Distribution Date. For the month of substitution, distributions to Certificateholders will include the Scheduled Payment monthly payment due on any Deleted Mortgage Loan for such month and thereafter the Seller shall be entitled to retain all amounts received in respect of such Deleted Mortgage Loan. The Master Servicer shall amend the Mortgage Loan Schedule for the benefit of the Certificateholders to reflect the removal of such Deleted Mortgage Loan and the substitution of the Replacement Substitute Mortgage Loan or Loans and the Master Servicer shall deliver the amended Mortgage Loan Schedule to the Trustee. Upon such substitution, the Replacement Substitute Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Replacement Substitute Mortgage Loan or Loans, as of the date of substitution, the representations and warranties set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereofmade pursuant to Section 2.03(a)(ii) with respect to such Mortgage Loan. Upon any such substitution and the deposit to the Certificate Account of the amount required to be deposited therein in connection with such substitution as described in the following paragraph, the Trustee shall release to the Seller the Mortgage File relating to such Deleted Mortgage Loan and held for the benefit of the Certificateholders relating to such Deleted Mortgage Loan to the Seller and shall execute and deliver at the Master ServicerSeller's direction such instruments of transfer or assignment as have been prepared by the Master ServicerSeller, in each case without recourse, as shall be necessary to vest title in the Seller, or its respective designee, title to the Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to this Section 2.042.03. For any month in which the Seller substitutes one or more Replacement Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine the amount (if any) by which the aggregate principal balance of all such Replacement Substitute Mortgage Loans as of the date of substitution is less than the aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after application of the scheduled principal portion of the monthly payments due in the month of substitution) ). The amount of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence shortage (such amount, the "Substitution Adjustment Amount") plus an amount equal to the aggregate of any unreimbursed Advances with respect to such Deleted Mortgage Loans shall be deposited into in the Certificate Account by the Seller on or before the Determination Distribution Account Deposit Date for the Distribution Date relating to in the Prepayment Period month succeeding the calendar month during which the related Mortgage Loan became required to be purchased or replaced hereunder. In the event that the Seller shall have purchased repurchased a Mortgage Loan, the Purchase Price therefor shall be deposited in the Certificate Account pursuant to Section 3.09 3.05 on or before the Determination Distribution Account Deposit Date for the Distribution Date in the month following the month during which the Seller became obligated under the Mortgage Sale Agreement hereunder to purchase repurchase or replace such Mortgage Loan and upon such deposit of the Purchase Price Price, the delivery of the Opinion of Counsel required by Section 2.05 and receipt of a Request for Release in the form thereof attached as an exhibit to the Custodial Agreementof Exhibit N hereto, the Trustee shall release the related Mortgage File held for the benefit of the Certificateholders to the Sellersuch Person, and the Trustee shall execute and deliver at the Sellersuch Person's direction the related such instruments of transfer or assignment prepared by the Sellersuch Person, in each case without recourse, as shall be necessary to transfer title from the Trustee for the benefit of the Certificateholders and transfer the Trustee's interest to the Seller with respect to any Mortgage Loan purchased or substituted for pursuant to this Section 2.04. It is understood and agreed that the obligation under this Agreement of the Seller any Person to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy against the Seller such Persons respecting such breach available to Certificateholders, the Depositor or the Trustee on their behalf. It is understood and agreed that the The representations and warranties of the Seller set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) made pursuant to this Section 2.03 shall survive delivery of the respective Mortgage Files to, or upon the director of, the Trustee. Upon discovery by the Depositor or to the Trustee of a breach of any of for the foregoing representations and warranties, which breach materially and adversely affects value of a Mortgage Loan or the interest therein benefit of the Certificateholders, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency.
Appears in 1 contract
Representations, Warranties and Covenants of the Seller. (a) The Seller acknowledges hereby represents and agrees that the Depositor has assigned, transferred and conveyed warrants to the Guarantor and the Trustee all for the Depositor's rights under benefit of the Certificateholders that as of the Closing Date or as of such other date specifically provided herein:
(i) The representations and warranties made by the Seller pursuant to Section 3.01 and Section 3.02 of the Mortgage Sale Loan Purchase Agreement includingare hereby being made to the Guarantor and the Trustee for the benefit of the Certificateholders and are true and correct as of the Closing Date or as of such other date specifically provided therein.
(ii) Any written agreement between the Mortgagor in respect of a Mortgage Loan and the Seller or the Master Servicer modifying such Mortgagor's obligation to make payments under such Mortgage Loan involved the application of the Seller's or the Master Servicer's underwriting standards or some assessment of such Mortgagor's ability to repay the modified Mortgage Loan and, without limitationin the case of any PMI Mortgage Loan, complies with the requirements set forth in the PMI Policy. It is understood and agreed that the representations and warranties set forth in this Section 2.04 shall survive delivery of the Mortgage Files to the Trustee and shall inure to the benefit of the Certificateholders and the Guarantor notwithstanding any restrictive or qualified endorsement or assignment. Upon discovery by any of the Depositor, the Guarantor, the NIMS Insurer, the Master Servicer, the Seller contained therein (or the Trustee of a copy breach of which any of the foregoing representations and warranties is attached hereto as Exhibit AA). The Seller further acknowledges which materially and agrees that adversely affects the Trustee, as assignee value of all any Mortgage Loan or the interests therein of the Depositor's rights under Certificateholders or the Mortgage Sale AgreementGuarantor, may enforce all the covenants of party discovering such breach shall give prompt written notice to the Seller therein contained other parties and all remedies for deficient documentation and breaches of the representations and warranties contained therein (Guarantor, and in Exhibit AA hereof) directly against no event later than two Business Days from the Sellerdate of such discovery. The Seller further acknowledges and agrees that, pursuant to the Mortgage Sale Agreement, within Within 90 days of the earlier of its discovery or its receipt of written notice of any such missing or materially defective documentation or any such breach of a representation or warranty, the Seller shall promptly deliver such missing document or cure such defect or breach in all material respects, or in the event such defect or breach cannot be cured, the Seller shall repurchase the affected Mortgage Loan or cause the removal of such Mortgage Loan from any party the Trust Fund and substitute for it one or more Qualified Substitute Mortgage Loans, in either case, in accordance with Section 2.03. It is understood and agreed that the obligations of the Seller set forth in Section 2.03(a) to cure, substitute for or repurchase a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement constitute the sole remedies available to the Certificateholders, the Guarantor or to the Trustee on their behalf respecting a breach of the representations and warranties contained in this Section 2.04.
(b) The Seller hereby covenants that it will not sell, pledge, assign or transfer to any representation other Person, or grant, create, incur, assume or suffer to exist any lien on any Mortgage Loan, or any interest therein; the Seller will notify the Trustee, as assignee of the Depositor, the Guarantor and the NIMS Insurer of the existence of any lien on any Mortgage Loan immediately upon discovery thereof, and the Seller will defend the right, title and interest of the Trust, as assignee of the Depositor, in, to and under the Mortgage Loans, against all claims of third parties claiming through or under the Seller.
(c) Promptly, but in no event later than 90 days following the earlier of discovery by the Seller or receipt of notice by the Seller of the breach of any representation, warranty or covenant of the Seller set forth in Article III thereof (and contained in Exhibit AA hereof) that this Section 2.04 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, it the Seller shall cure such breach in all material respects and, if such breach is not so cured, shall, (i) if such 90-day period expires prior to the second anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and substitute in its place a Replacement Mortgage Loan, in the manner and subject to the conditions set forth in this Section 2.04; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner set forth below; provided, however, that any such substitution pursuant to (i) above or repurchase pursuant to (ii) above shall not be effected prior to the delivery to the Trustee of the Opinion of Counsel required by Section 2.05 hereof and any such substitution pursuant to (i) above shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form thereof attached as an exhibit to the Custodial Agreement. The Seller shall promptly reimburse the Master Servicer and the Trustee for any expenses reasonably incurred by the Master Servicer and/or the Trustee enforcing the remedies for such breach. With respect to the representations and warranties described in Article III of the Mortgage Sale Agreement that are made to the best of the Seller's knowledge, if it is discovered by any of the Depositor, the Seller or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, notwithstanding the Seller's lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Replacement Mortgage Loan or Loans, the Seller shall deliver to the Trustee for the benefit of the Certificateholders, the related Mortgage Note, Mortgage and assignment of the Mortgage, and such other documents and agreements as are required by Section 2.01 hereof, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01. No substitution will be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Replacement Mortgage Loans in the month of substitution shall not be part of the Trust Fund and will be distributed to the Seller on the next succeeding Distribution Date. For the month of substitution, distributions to Certificateholders will include the Scheduled Payment due on any Deleted Mortgage Loan for such month and thereafter the Seller shall be entitled to retain all amounts received in respect of such Deleted Mortgage Loan. The Master Servicer shall amend the Mortgage Loan Schedule for the benefit of the Certificateholders to reflect the removal of such Deleted Mortgage Loan and the substitution of the Replacement Mortgage Loan or Loans and the Master Servicer shall deliver the amended Mortgage Loan Schedule to the Trustee. Upon such substitution, the Replacement Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Replacement Mortgage Loan or Loans, as of the date of substitution, the representations and warranties set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) with respect to such Mortgage Loan. Upon any such substitution and the deposit to the Certificate Account of the amount required to be deposited therein in connection with such substitution as described in the following paragraph, the Trustee shall release to the Seller the Mortgage File relating to such Deleted Mortgage Loan and held for the benefit of the Certificateholders and shall execute and deliver at the Master Servicer's direction such instruments of transfer or assignment as have been prepared by the Master Servicer, in each case without recourse, as shall be necessary to vest in the Seller, or its respective designee, title to the Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to this Section 2.04. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution is less than the aggregate Stated Principal Balance (after application of the scheduled principal portion of the monthly payments due in the month of substitution) of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be deposited into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. In the event that the Seller shall have purchased a Mortgage Loan, the Purchase Price therefor shall be deposited in the Certificate Account pursuant to Section 3.09 on the Determination Date for the Distribution Date in the month following the month during which the Seller became obligated under the Mortgage Sale Agreement to purchase or replace such Mortgage Loan and upon such deposit of the Purchase Price and receipt of a Request for Release in the form thereof attached as an exhibit to the Custodial Agreement, the Trustee shall release the related Mortgage File held for the benefit of the Certificateholders to the Seller, and the Trustee shall execute and deliver at the Seller's direction the related instruments of transfer or assignment prepared by the Seller, in each case without recourse, as shall be necessary to transfer title from the Trustee for the benefit of the Certificateholders and transfer the Trustee's interest to the Seller with respect to any Mortgage Loan purchased or substituted for pursuant to this Section 2.04. It is understood and agreed that the obligation under this Agreement of the Seller to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy against the Seller respecting such breach available to Certificateholders, the Depositor or the Trustee on their behalf. It is understood and agreed that the representations and warranties of the Seller set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) shall survive delivery of the Mortgage Files to, or upon the director of, the Trustee. Upon discovery by the Depositor or the Trustee of a breach of any of the foregoing representations and warranties, which breach materially and adversely affects value of a Mortgage Loan or the interest therein of the Certificateholders, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ameriquest Mortgage Sec Inc Asst Back Ps THR Cert Ser 2002 D)
Representations, Warranties and Covenants of the Seller. The Seller acknowledges represents, warrants and agrees covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(a) The Registration Statement, including the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of the Notes has been filed with the Commission and the Registration Statement, as amended, has become effective and remains effective, and the conditions to the use of such Registration Statement, as set forth in the General Instructions to Form SF-3, and the conditions of Rule 415 under the Act have been satisfied with respect to the Registration Statement;
(b) As of the Closing Date, the Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Disclosure Materials that have previously been furnished to the Representatives) as the Seller has advised the Representatives, before such time, will be included or made therein;
(A) On the effective date of the Registration Statement, the Registration Statement (1) complied in all material respects with the applicable requirements of the Act and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (B) as of its date, the Prospectus (1) complied in all material respects with the applicable requirements of the Act and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (C) on the Closing Date, the Registration Statement and the Prospectus (1) will comply in all material respects with the applicable requirements of the Act and (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the Depositor has assignedSeller makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with Underwriter Information (as defined below);
(A) The Time of Sale Information, transferred did not, as of the respective dates of the components thereof and conveyed at the Time of Sale, and will not, on the Closing Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the Trustee all omission of pricing and price-dependent information, which information shall of necessity appear only in the Depositor's rights final Prospectus) and (B) the Preliminary Prospectus (when taken together with the Ratings Issuer Free Writing Prospectus), did not, as of the Time of Sale, and will not, on the Closing Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Seller makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with Underwriter Information (as defined below); and
(e) Other than the Time of Sale Information and the Prospectus, the Seller (including its co-registrants, agents and representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Mortgage Sale Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Seller or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about September 3, 2019 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Bank to rate the Notes (the “Hired NRSROs”).
(f) The Seller is a limited liability company validly existing and in good standing under the laws of the State of Delaware and has, in all material respects, all power and authority to carry on its business as it is now conducted. The Seller has obtained all necessary licenses and approvals in each jurisdiction where the failure to do so would materially and adversely affect the ability of the Seller to perform its obligations under the Transaction Documents.
(g) The execution, delivery and performance by the Seller of this Agreement includingand each Transaction Document to which it is a party, without limitationthe issuance of the Issued Notes, the sale of the Notes, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Seller. Neither the execution and delivery by the Seller of such instruments, nor the performance by the Seller of the transactions herein or therein contemplated, nor the compliance by the Seller with the provisions hereof or thereof, will (i) contravene or constitute a default under (A) any applicable order, law, rule, regulation, judgment or decree, (B) its organizational documents or (C) any material agreement, contract, order or other instrument to which it is a party or its property is subject (other than violations which do not affect the legality, validity or enforceability of such agreements or which, individually or in the aggregate, would not materially and adversely affect the transactions contemplated by, or the Seller’s ability to perform its obligations under, the Transaction Documents), or (ii) result in the creation or imposition of any lien, charge or encumbrance upon any of the Seller’s property pursuant to the terms of any such material agreement, contract, order or other instrument.
(h) The Seller has duly executed and delivered this Agreement and, as of the Closing Date, each of the Seller and the Issuer has duly executed and delivered each Transaction Document to which it is a party.
(i) The Seller has authorized the conveyance of the Receivables and other related property to the Issuer.
(j) The Issued Notes, when validly issued pursuant to the Indenture, and the Notes, when sold to the Underwriters pursuant to this Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. When executed and delivered by the parties thereto, each Transaction Document to which the Seller is a party will constitute a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization and issuance of the Issued Notes pursuant to the Indenture and the sale of the Notes pursuant to this Agreement have been or will be taken or obtained on or before the Closing Date.
(k) Neither the Seller nor the Issuer is now, and following the issuance of the Issued Notes, neither will be, required to be registered under the 1940 Act and, although there may be additional exclusions or exemptions available to the Issuer, the Issuer will rely on the exclusion or exemption from the definition of “investment company” under the 1940 Act contained in Section 3(c)(5) of the 1940 Act. The Issuer is structured so as not to constitute a “covered fund” as defined in the final regulation issued December 10, 2013, implementing the “Xxxxxxx Rule” (Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act).
(l) Based on information currently available to, and in the reasonable belief of, the Seller, the Seller is not engaged (whether as defendant or otherwise) in, nor has the Seller knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Receivables.
(m) Except for the Underwriters, neither the Seller nor the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Seller nor the Issuer is under any obligation to pay any broker’s fee or commission in connection with such sale.
(n) No Event of Default or Servicer Replacement Event or any event which after any applicable grace period or the giving of notice, or both, would constitute an Event of Default or Servicer Replacement Event, has occurred.
(o) Based on information currently available to, and in the reasonable belief of the Seller, the Seller is not engaged (whether as defendant or otherwise) in, nor has the Seller knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders (as defined below).
(p) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Seller of this Agreement and each Transaction Document to which it is a party shall have been paid or will be paid by the Seller at or before the Closing Date to the extent then due.
(q) As of the Closing Date, the representations and warranties of the Seller contained therein and the Issuer in the Transaction Documents to which it is a party will be true and correct in all material respects.
(a copy of which representations and warranties is attached hereto as Exhibit AA). r) The Seller further acknowledges and agrees that was not, on the Trustee, as assignee of all date on which the first bona fide offer of the Depositor's rights Notes sold pursuant to this Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Mortgage Sale Agreement, may enforce all the covenants Act.
(s) The Seller has complied with Rule 193 of the Seller therein contained and all remedies for deficient documentation and breaches of the representations and warranties contained therein (and in Exhibit AA hereof) directly against the Seller. The Seller further acknowledges and agrees that, pursuant to the Mortgage Sale Agreement, within 90 days of the earlier of its discovery or its receipt of written notice from any party of a breach of any representation or warranty set forth in Article III thereof (and contained in Exhibit AA hereof) that materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, it shall cure such breach Act in all material respects andin connection with the offering of the Notes. Neither the Seller nor the Bank has engaged any person to provide third-party “due diligence services” (as defined in Rule 17g-10 under the Exchange Act) relating to the Notes, if such breach is not so curedother than the Accounting Firm. The Seller obtained the Accountant’s Due Diligence Report, shall, and neither the Bank nor the Seller has received any “third-party due diligence report” (as defined in Rule 15Ga-2) other than the Accountant’s Due Diligence Report.
(t) The Seller has (i) if furnished to the Commission a Form ABS-15G (the “Form ABS-15G”) containing the findings and conclusions of the Accountant’s Due Diligence Report and has complied with all other requirements of Rule 15Ga-2, including by furnishing such 90-day Form ABS-15G to the Commission on XXXXX within the time period expires required by Rule 15Ga-2, (ii) provided a draft of the Form ABS-15G, not materially different from the Form ABS-15G furnished to the Commission, to counsel for the Underwriters and to the Representatives a reasonable period of time prior to the second anniversary furnishing of the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and substitute in its place a Replacement Mortgage Loan, in the manner and subject Form ABS-15G to the conditions Commission as set forth in this Section 2.04; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner set forth below; provided, however, that any such substitution pursuant to clause (i) above or repurchase pursuant to and (iiiii) above shall not be effected prior to the delivery to the Trustee of the Opinion of Counsel required by Section 2.05 hereof and any such substitution pursuant to (i) above shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form thereof attached as an exhibit to the Custodial Agreement. The Seller shall promptly reimburse the Master Servicer and the Trustee for any expenses reasonably incurred by the Master Servicer and/or the Trustee enforcing the remedies for such breach. With respect to the representations and warranties described in Article III of the Mortgage Sale Agreement that are made to the best of the Seller's knowledge, if it is discovered by any of the Depositor, the Seller or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, notwithstanding the Seller's lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Replacement Mortgage Loan or Loans, the Seller shall deliver to the Trustee for the benefit of the Certificateholders, the related Mortgage Note, Mortgage and assignment of the Mortgage, and such other documents and agreements as are required by Section 2.01 hereof, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01. No substitution will be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Replacement Mortgage Loans in the month of substitution shall not be part of the Trust Fund and will be distributed to the Seller on the next succeeding Distribution Date. For the month of substitution, distributions to Certificateholders will include the Scheduled Payment due on any Deleted Mortgage Loan for such month and thereafter the Seller shall be entitled to retain all amounts received in respect of such Deleted Mortgage Loan. The Master Servicer shall amend the Mortgage Loan Schedule for the benefit of the Certificateholders to reflect the removal of such Deleted Mortgage Loan and the substitution of the Replacement Mortgage Loan or Loans and the Master Servicer shall deliver the amended Mortgage Loan Schedule to the Trustee. Upon such substitution, the Replacement Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Replacement Mortgage Loan or Loans, as of the date of substitution, the representations and warranties set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) with respect to such Mortgage Loan. Upon any such substitution and the deposit to the Certificate Account of the amount required to be deposited therein in connection with such substitution as described in the following paragraph, the Trustee shall release to the Seller the Mortgage File relating to such Deleted Mortgage Loan and held for the benefit of the Certificateholders and shall execute and deliver at the Master Servicer's direction such instruments of transfer or assignment as have been prepared by the Master Servicer, in each case without recourse, as shall be necessary to vest in the Seller, or its respective designee, title to the Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to this Section 2.04. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution is less than the aggregate Stated Principal Balance (after application of the scheduled principal no portion of the monthly payments due in the month of substitution) of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amountForm ABS-15G contains any names, the "Substitution Adjustment Amount") shall be deposited into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased addresses, other personal identifiers or replaced hereunder. In the event that the Seller shall have purchased a Mortgage Loan, the Purchase Price therefor shall be deposited in the Certificate Account pursuant to Section 3.09 on the Determination Date for the Distribution Date in the month following the month during which the Seller became obligated under the Mortgage Sale Agreement to purchase or replace such Mortgage Loan and upon such deposit of the Purchase Price and receipt of a Request for Release in the form thereof attached as an exhibit to the Custodial Agreement, the Trustee shall release the related Mortgage File held for the benefit of the Certificateholders to the Seller, and the Trustee shall execute and deliver at the Seller's direction the related instruments of transfer or assignment prepared by the Seller, in each case without recourse, as shall be necessary to transfer title from the Trustee for the benefit of the Certificateholders and transfer the Trustee's interest to the Seller zip codes with respect to any Mortgage Loan purchased individuals, or substituted for pursuant to this Section 2.04. It is understood and agreed any other personally identifiable or other information that would be associated with an individual, including without limitation any “nonpublic personal information” within the obligation under this Agreement meaning of Title V of the Seller to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy against the Seller respecting such breach available to Certificateholders, the Depositor or the Trustee on their behalf. It is understood and agreed that the representations and warranties Xxxxx-Xxxxx-Xxxxxx Financial Services Modernization Act of the Seller set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) shall survive delivery of the Mortgage Files to, or upon the director of, the Trustee. Upon discovery by the Depositor or the Trustee of a breach of any of the foregoing representations and warranties, which breach materially and adversely affects value of a Mortgage Loan or the interest therein of the Certificateholders, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency1999.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Prime Auto Receivables Trust 2019-2)
Representations, Warranties and Covenants of the Seller. The Seller acknowledges represents, warrants and agrees covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(a) The Registration Statement, including the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of the Notes has been filed with the Commission and the Registration Statement, as amended, has become effective and remains effective, and the conditions to the use of such Registration Statement, as set forth in the General Instructions to Form SF-3, and the conditions of Rule 415 under the Act have been satisfied with respect to the Registration Statement;
(b) As of the Closing Date, the Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Disclosure Materials that have previously been furnished to the Representatives) as the Seller has advised the Representatives, before such time, will be included or made therein;
(A) On the effective date of the Registration Statement, the Registration Statement (1) complied in all material respects with the applicable requirements of the Act and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (B) as of its date, the Prospectus (1) complied in all material respects with the applicable requirements of the Act and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (C) on the Closing Date, the Registration Statement and the Prospectus (1) will comply in all material respects with the applicable requirements of the Act and (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the Depositor has assignedSeller makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with Underwriter Information (as defined below);
(A) The Time of Sale Information, transferred did not, as of the respective dates of the components thereof and conveyed at the Time of Sale, and will not, on the Closing Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the Trustee all omission of pricing and price-dependent information, which information shall of necessity appear only in the Depositor's rights final Prospectus) and (B) the Preliminary Prospectus (when taken together with the Ratings Issuer Free Writing Prospectus), did not, as of the Time of Sale, and will not, on the Closing Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Seller makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with Underwriter Information (as defined below); and
(e) Other than the Time of Sale Information and the Prospectus, the Seller (including its co-registrants, agents and representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Mortgage Sale Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Seller or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about February 5, 2020 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Bank to rate the Notes (the “Hired NRSROs”).
(f) The Seller is a limited liability company validly existing and in good standing under the laws of the State of Delaware and has, in all material respects, all power and authority to carry on its business as it is now conducted. The Seller has obtained all necessary licenses and approvals in each jurisdiction where the failure to do so would materially and adversely affect the ability of the Seller to perform its obligations under the Transaction Documents.
(g) The execution, delivery and performance by the Seller of this Agreement includingand each Transaction Document to which it is a party, without limitationthe issuance of the Issued Notes, the sale of the Notes, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Seller. Neither the execution and delivery by the Seller of such instruments, nor the performance by the Seller of the transactions herein or therein contemplated, nor the compliance by the Seller with the provisions hereof or thereof, will (i) contravene or constitute a default under (A) any applicable order, law, rule, regulation, judgment or decree, (B) its organizational documents or (C) any material agreement, contract, order or other instrument to which it is a party or its property is subject (other than violations which do not affect the legality, validity or enforceability of such agreements or which, individually or in the aggregate, would not materially and adversely affect the transactions contemplated by, or the Seller’s ability to perform its obligations under, the Transaction Documents), or (ii) result in the creation or imposition of any lien, charge or encumbrance upon any of the Seller’s property pursuant to the terms of any such material agreement, contract, order or other instrument.
(h) The Seller has duly executed and delivered this Agreement and, as of the Closing Date, each of the Seller and the Issuer has duly executed and delivered each Transaction Document to which it is a party.
(i) The Seller has authorized the conveyance of the Receivables and other related property to the Issuer.
(j) The Issued Notes, when validly issued pursuant to the Indenture, and the Notes, when sold to the Underwriters pursuant to this Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. When executed and delivered by the parties thereto, each Transaction Document to which the Seller is a party will constitute a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization and issuance of the Issued Notes pursuant to the Indenture and the sale of the Notes pursuant to this Agreement have been or will be taken or obtained on or before the Closing Date.
(k) Neither the Seller nor the Issuer is now, and following the issuance of the Issued Notes, neither will be, required to be registered under the 1940 Act and, although there may be additional exclusions or exemptions available to the Issuer, the Issuer will rely on the exclusion or exemption from the definition of “investment company” under the 1940 Act contained in Section 3(c)(5) of the 1940 Act. The Issuer is structured so as not to constitute a “covered fund” as defined in the final regulation issued December 10, 2013, implementing the “Xxxxxxx Rule” (Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act).
(l) Based on information currently available to, and in the reasonable belief of, the Seller, the Seller is not engaged (whether as defendant or otherwise) in, nor has the Seller knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Receivables.
(m) Except for the Underwriters, neither the Seller nor the Issuer has employed or retained no broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Seller nor the Issuer is under any obligation to pay any broker’s fee or commission in connection with such sale.
(n) No Event of Default or Servicer Replacement Event or any event which after any applicable grace period or the giving of notice, or both, would constitute an Event of Default or Servicer Replacement Event, has occurred.
(o) Based on information currently available to, and in the reasonable belief of the Seller, the Seller is not engaged (whether as defendant or otherwise) in, nor has the Seller knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders (as defined below).
(p) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Seller of this Agreement and each Transaction Document to which it is a party shall have been paid or will be paid by the Seller at or before the Closing Date to the extent then due.
(q) As of the Closing Date, the representations and warranties of the Seller contained therein and the Issuer in the Transaction Documents to which it is a party will be true and correct in all material respects.
(a copy of which representations and warranties is attached hereto as Exhibit AA). r) The Seller further acknowledges and agrees that was not, on the Trustee, as assignee of all date on which the first bona fide offer of the Depositor's rights Notes sold pursuant to this Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Mortgage Sale Agreement, may enforce all the covenants Act.
(s) The Seller has complied with Rule 193 of the Seller therein contained and all remedies for deficient documentation and breaches of the representations and warranties contained therein (and in Exhibit AA hereof) directly against the Seller. The Seller further acknowledges and agrees that, pursuant to the Mortgage Sale Agreement, within 90 days of the earlier of its discovery or its receipt of written notice from any party of a breach of any representation or warranty set forth in Article III thereof (and contained in Exhibit AA hereof) that materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, it shall cure such breach Act in all material respects andin connection with the offering of the Notes. Neither the Seller nor the Bank has engaged any person to provide third-party “due diligence services” (as defined in Rule 17g-10 under the Exchange Act) relating to the Notes, if such breach is not so curedother than the Accounting Firm. The Seller obtained the Accountant’s Due Diligence Report, shall, and neither the Bank nor the Seller has received any “third-party due diligence report” (as defined in Rule 15Ga-2) other than the Accountant’s Due Diligence Report.
(t) The Seller has (i) if furnished to the Commission a Form ABS-15G (the “Form ABS-15G”) containing the findings and conclusions of the Accountant’s Due Diligence Report and has complied with all other requirements of Rule 15Ga-2, including by furnishing such 90-day Form ABS-15G to the Commission on XXXXX within the time period expires required by Rule 15Ga-2, (ii) provided a draft of the Form ABS-15G, not materially different from the Form ABS-15G furnished to the Commission, to counsel for the Underwriters and to the Representatives a reasonable period of time prior to the second anniversary furnishing of the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and substitute in its place a Replacement Mortgage Loan, in the manner and subject Form ABS-15G to the conditions Commission as set forth in this Section 2.04; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner set forth below; provided, however, that any such substitution pursuant to clause (i) above or repurchase pursuant to and (iiiii) above shall not be effected prior to the delivery to the Trustee of the Opinion of Counsel required by Section 2.05 hereof and any such substitution pursuant to (i) above shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form thereof attached as an exhibit to the Custodial Agreement. The Seller shall promptly reimburse the Master Servicer and the Trustee for any expenses reasonably incurred by the Master Servicer and/or the Trustee enforcing the remedies for such breach. With respect to the representations and warranties described in Article III of the Mortgage Sale Agreement that are made to the best of the Seller's knowledge, if it is discovered by any of the Depositor, the Seller or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, notwithstanding the Seller's lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Replacement Mortgage Loan or Loans, the Seller shall deliver to the Trustee for the benefit of the Certificateholders, the related Mortgage Note, Mortgage and assignment of the Mortgage, and such other documents and agreements as are required by Section 2.01 hereof, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01. No substitution will be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Replacement Mortgage Loans in the month of substitution shall not be part of the Trust Fund and will be distributed to the Seller on the next succeeding Distribution Date. For the month of substitution, distributions to Certificateholders will include the Scheduled Payment due on any Deleted Mortgage Loan for such month and thereafter the Seller shall be entitled to retain all amounts received in respect of such Deleted Mortgage Loan. The Master Servicer shall amend the Mortgage Loan Schedule for the benefit of the Certificateholders to reflect the removal of such Deleted Mortgage Loan and the substitution of the Replacement Mortgage Loan or Loans and the Master Servicer shall deliver the amended Mortgage Loan Schedule to the Trustee. Upon such substitution, the Replacement Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Replacement Mortgage Loan or Loans, as of the date of substitution, the representations and warranties set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) with respect to such Mortgage Loan. Upon any such substitution and the deposit to the Certificate Account of the amount required to be deposited therein in connection with such substitution as described in the following paragraph, the Trustee shall release to the Seller the Mortgage File relating to such Deleted Mortgage Loan and held for the benefit of the Certificateholders and shall execute and deliver at the Master Servicer's direction such instruments of transfer or assignment as have been prepared by the Master Servicer, in each case without recourse, as shall be necessary to vest in the Seller, or its respective designee, title to the Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to this Section 2.04. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution is less than the aggregate Stated Principal Balance (after application of the scheduled principal no portion of the monthly payments due in the month of substitution) of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amountForm ABS-15G contains any names, the "Substitution Adjustment Amount") shall be deposited into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased addresses, other personal identifiers or replaced hereunder. In the event that the Seller shall have purchased a Mortgage Loan, the Purchase Price therefor shall be deposited in the Certificate Account pursuant to Section 3.09 on the Determination Date for the Distribution Date in the month following the month during which the Seller became obligated under the Mortgage Sale Agreement to purchase or replace such Mortgage Loan and upon such deposit of the Purchase Price and receipt of a Request for Release in the form thereof attached as an exhibit to the Custodial Agreement, the Trustee shall release the related Mortgage File held for the benefit of the Certificateholders to the Seller, and the Trustee shall execute and deliver at the Seller's direction the related instruments of transfer or assignment prepared by the Seller, in each case without recourse, as shall be necessary to transfer title from the Trustee for the benefit of the Certificateholders and transfer the Trustee's interest to the Seller zip codes with respect to any Mortgage Loan purchased individuals, or substituted for pursuant to this Section 2.04. It is understood and agreed any other personally identifiable or other information that would be associated with an individual, including without limitation any “nonpublic personal information” within the obligation under this Agreement meaning of Title V of the Seller to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy against the Seller respecting such breach available to Certificateholders, the Depositor or the Trustee on their behalf. It is understood and agreed that the representations and warranties Xxxxx-Xxxxx-Xxxxxx Financial Services Modernization Act of the Seller set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) shall survive delivery of the Mortgage Files to, or upon the director of, the Trustee. Upon discovery by the Depositor or the Trustee of a breach of any of the foregoing representations and warranties, which breach materially and adversely affects value of a Mortgage Loan or the interest therein of the Certificateholders, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency1999.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Prime Auto Receivables Trust 2020-1)
Representations, Warranties and Covenants of the Seller. The Seller acknowledges represents, warrants and agrees covenants to each Underwriter as of the date hereof and as of the Closing Date (unless otherwise specified) as follows:
(a) The Registration Statement, including the form of prospectus and such amendments thereto as may have been required to the date hereof, relating to the offering of the Notes has been filed with the Commission and the Registration Statement, as amended, has become effective and remains effective, and the conditions to the use of such Registration Statement, as set forth in the General Instructions to Form SF-3, and the conditions of Rule 415 under the Act have been satisfied with respect to the Registration Statement;
(b) As of the Closing Date, the Disclosure Materials, except with respect to any modification to which the Representatives have agreed in writing, shall be in all substantive respects in the form furnished to the Representatives before such date or, to the extent not completed on such date, shall contain only such specific additional information and other changes (beyond that contained in the latest Disclosure Materials that have previously been furnished to the Representatives) as the Seller has advised the Representatives, before such time, will be included or made therein;
(A) On the effective date of the Registration Statement, the Registration Statement (1) complied in all material respects with the applicable requirements of the Act and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (B) as of its date, the Prospectus (1) complied in all material respects with the applicable requirements of the Act and (2) did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (C) on the Closing Date, the Registration Statement and the Prospectus (1) will comply in all material respects with the applicable requirements of the Act and (2) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that the Depositor has assignedSeller makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with Underwriter Information (as defined below);
(A) The Time of Sale Information, transferred did not, as of the respective dates of the components thereof and conveyed at the Time of Sale, and will not, on the Closing Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the Trustee all omission of pricing and price-dependent information, which information shall of necessity appear only in the Depositor's rights final Prospectus) and (B) the Preliminary Prospectus (when taken together with the Ratings Issuer Free Writing Prospectus), did not, as of the Time of Sale, and will not, on the Closing Date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (it being understood that no representation or warranty is made with respect to the omission of pricing and price-dependent information, which information shall of necessity appear only in the final Prospectus); provided, however, that the Seller makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with Underwriter Information (as defined below); and
(e) Other than the Time of Sale Information and the Prospectus, the Seller (including its co-registrants, agents and representatives, other than the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Mortgage Sale Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes, other than any issuer free writing prospectus, as defined in Rule 433(h) under the Act, approved in advance by the Underwriters and filed by the Seller or any of its co-registrants with the Commission in accordance with Rule 433 under the Act on or about February 8, 2023 (the “Ratings Issuer Free Writing Prospectus”), which discloses the ratings issued on the Notes by the nationally recognized statistical rating organizations hired by the Bank to rate the Notes (the “Hired NRSROs”).
(f) The Seller is a limited liability company validly existing and in good standing under the laws of the State of Delaware and has, in all material respects, all power and authority to carry on its business as it is now conducted. The Seller has obtained all necessary licenses, consents, approvals, or order of, or filing with, any United States governmental agency or authority or any United States federal court in each jurisdiction where the failure to do so would materially and adversely affect the ability of the Seller to perform its obligations under the Transaction Documents.
(g) The execution, delivery and performance by the Seller of this Agreement includingand each Transaction Document to which it is a party, without limitationthe issuance of the Issued Notes, the sale of the Notes, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of the Seller. Neither the execution and delivery by the Seller of such instruments, nor the performance by the Seller of the transactions herein or therein contemplated, nor the compliance by the Seller with the provisions hereof or thereof, will (i) contravene or constitute a default under (A) any applicable order, law, rule, regulation, judgment or decree, (B) its organizational documents or (C) any material agreement, contract, order or other instrument to which it is a party or its property is subject (other than violations which do not affect the legality, validity or enforceability of such agreements or which, individually or in the aggregate, would not materially and adversely affect the transactions contemplated by, or the Seller’s ability to perform its obligations under, the Transaction Documents), or (ii) result in the creation or imposition of any lien, charge or encumbrance upon any of the Seller’s property pursuant to the terms of any such material agreement, contract, order or other instrument.
(h) The Seller has duly executed and delivered this Agreement and, as of the Closing Date, each of the Seller and the Issuer has duly executed and delivered each Transaction Document to which it is a party.
(i) The Seller has authorized the conveyance of the Receivables and other related property to the Issuer.
(j) The Issued Notes, when validly issued pursuant to the Indenture, and the Notes, when sold to the Underwriters pursuant to this Agreement, will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus and will be validly issued and entitled to the benefits and security afforded by the Indenture. When executed and delivered by the parties thereto, each Transaction Document to which the Seller is a party will constitute a legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except to the extent that the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, receivership, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights in general, as such laws would apply in the event of the insolvency, liquidation or reorganization or other similar occurrence with respect to the Seller or in the event of any moratorium or similar occurrence affecting the Seller and to general principles of equity. All approvals, authorizations, consents, orders or other actions of any person, corporation or other organization, or of any court, governmental agency or body or official (except with respect to the securities laws of any foreign jurisdiction or the state securities or Blue Sky laws of various jurisdictions), required in connection with the valid and proper authorization and issuance of the Issued Notes pursuant to the Indenture and the sale of the Notes pursuant to this Agreement have been or will be taken or obtained on or before the Closing Date.
(k) Neither the Seller nor the Issuer is now, and following the issuance of the Issued Notes, neither will be, required to be registered under the 1940 Act and, although there may be additional exclusions or exemptions available to the Issuer, the Issuer will rely on the exclusion or exemption from the definition of “investment company” under the 1940 Act contained in Section 3(c)(5) of the 1940 Act. The Issuer is structured so as not to constitute a “covered fund” as defined in the final regulation issued December 10, 2013, implementing the “Xxxxxxx Rule” (Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act).
(l) Based on information currently available to, and in the reasonable belief of, the Seller, the Seller is not engaged (whether as defendant or otherwise) in, nor has the Seller knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Receivables.
(m) Except for the Underwriters, neither the Seller nor the Issuer has employed or retained a broker, finder, commission agent or other person in connection with the sale of the Notes, and neither the Seller nor the Issuer is under any obligation to pay any broker’s fee or commission in connection with such sale.
(n) No Event of Default or Servicer Replacement Event or any event which after any applicable grace period or the giving of notice, or both, would constitute an Event of Default or Servicer Replacement Event, has occurred.
(o) Based on information currently available to, and in the reasonable belief of the Seller, the Seller is not engaged (whether as defendant or otherwise) in, nor has the Seller knowledge of the existence of, or any threat of, any legal, arbitration, administrative or other proceedings the result of which might have a material adverse effect on the Noteholders (as defined below).
(p) Any taxes, fees and other governmental charges in connection with the execution, delivery and performance by the Seller of this Agreement and each Transaction Document to which it is a party shall have been paid or will be paid by the Seller at or before the Closing Date to the extent then due.
(q) As of the Closing Date, the representations and warranties of the Seller contained therein and the Issuer in the Transaction Documents to which it is a party will be true and correct in all material respects.
(a copy of which representations and warranties is attached hereto as Exhibit AA). r) The Seller further acknowledges and agrees that was not, on the Trustee, as assignee of all date on which the first bona fide offer of the Depositor's rights Notes sold pursuant to this Agreement was made, an “ineligible issuer” as defined in Rule 405 under the Mortgage Sale Agreement, may enforce all the covenants Act.
(s) The Seller has complied with Rule 193 of the Seller therein contained and all remedies for deficient documentation and breaches of the representations and warranties contained therein (and in Exhibit AA hereof) directly against the Seller. The Seller further acknowledges and agrees that, pursuant to the Mortgage Sale Agreement, within 90 days of the earlier of its discovery or its receipt of written notice from any party of a breach of any representation or warranty set forth in Article III thereof (and contained in Exhibit AA hereof) that materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, it shall cure such breach Act in all material respects andin connection with the offering of the Notes. Neither the Seller nor the Bank has engaged any person to provide third-party “due diligence services” (as defined in Rule 17g-10 under the Exchange Act) relating to the Notes, if such breach is not so curedother than the Accounting Firm. The Seller obtained the Accountant’s Due Diligence Report, shall, and neither the Bank nor the Seller has received any “third-party due diligence report” (as defined in Rule 15Ga-2) other than the Accountant’s Due Diligence Report.
(t) The Seller has (i) if furnished to the Commission a Form ABS-15G (the “Form ABS-15G”) containing the findings and conclusions of the Accountant’s Due Diligence Report and has complied with all other requirements of Rule 15Ga-2, including by furnishing such 90-day Form ABS-15G to the Commission on XXXXX within the time period expires required by Rule 15Ga-2, (ii) provided a draft of the Form ABS-15G, not materially different from the Form ABS-15G furnished to the Commission, to counsel for the Underwriters and to the Representatives a reasonable period of time prior to the second anniversary furnishing of the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and substitute in its place a Replacement Mortgage Loan, in the manner and subject Form ABS-15G to the conditions Commission as set forth in this Section 2.04; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner set forth below; provided, however, that any such substitution pursuant to clause (i) above or repurchase pursuant to and (iiiii) above shall not be effected prior to the delivery to the Trustee of the Opinion of Counsel required by Section 2.05 hereof and any such substitution pursuant to (i) above shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form thereof attached as an exhibit to the Custodial Agreement. The Seller shall promptly reimburse the Master Servicer and the Trustee for any expenses reasonably incurred by the Master Servicer and/or the Trustee enforcing the remedies for such breach. With respect to the representations and warranties described in Article III of the Mortgage Sale Agreement that are made to the best of the Seller's knowledge, if it is discovered by any of the Depositor, the Seller or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, notwithstanding the Seller's lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Replacement Mortgage Loan or Loans, the Seller shall deliver to the Trustee for the benefit of the Certificateholders, the related Mortgage Note, Mortgage and assignment of the Mortgage, and such other documents and agreements as are required by Section 2.01 hereof, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01. No substitution will be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Replacement Mortgage Loans in the month of substitution shall not be part of the Trust Fund and will be distributed to the Seller on the next succeeding Distribution Date. For the month of substitution, distributions to Certificateholders will include the Scheduled Payment due on any Deleted Mortgage Loan for such month and thereafter the Seller shall be entitled to retain all amounts received in respect of such Deleted Mortgage Loan. The Master Servicer shall amend the Mortgage Loan Schedule for the benefit of the Certificateholders to reflect the removal of such Deleted Mortgage Loan and the substitution of the Replacement Mortgage Loan or Loans and the Master Servicer shall deliver the amended Mortgage Loan Schedule to the Trustee. Upon such substitution, the Replacement Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Replacement Mortgage Loan or Loans, as of the date of substitution, the representations and warranties set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) with respect to such Mortgage Loan. Upon any such substitution and the deposit to the Certificate Account of the amount required to be deposited therein in connection with such substitution as described in the following paragraph, the Trustee shall release to the Seller the Mortgage File relating to such Deleted Mortgage Loan and held for the benefit of the Certificateholders and shall execute and deliver at the Master Servicer's direction such instruments of transfer or assignment as have been prepared by the Master Servicer, in each case without recourse, as shall be necessary to vest in the Seller, or its respective designee, title to the Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to this Section 2.04. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution is less than the aggregate Stated Principal Balance (after application of the scheduled principal no portion of the monthly payments due in the month of substitution) of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amountForm ABS-15G contains any names, the "Substitution Adjustment Amount") shall be deposited into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased addresses, other personal identifiers or replaced hereunder. In the event that the Seller shall have purchased a Mortgage Loan, the Purchase Price therefor shall be deposited in the Certificate Account pursuant to Section 3.09 on the Determination Date for the Distribution Date in the month following the month during which the Seller became obligated under the Mortgage Sale Agreement to purchase or replace such Mortgage Loan and upon such deposit of the Purchase Price and receipt of a Request for Release in the form thereof attached as an exhibit to the Custodial Agreement, the Trustee shall release the related Mortgage File held for the benefit of the Certificateholders to the Seller, and the Trustee shall execute and deliver at the Seller's direction the related instruments of transfer or assignment prepared by the Seller, in each case without recourse, as shall be necessary to transfer title from the Trustee for the benefit of the Certificateholders and transfer the Trustee's interest to the Seller zip codes with respect to any Mortgage Loan purchased individuals, or substituted for pursuant to this Section 2.04. It is understood and agreed any other personally identifiable or other information that would be associated with an individual, including without limitation any “nonpublic personal information” within the obligation under this Agreement meaning of Title V of the Seller to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy against the Seller respecting such breach available to Certificateholders, the Depositor or the Trustee on their behalf. It is understood and agreed that the representations and warranties Xxxxx-Xxxxx-Xxxxxx Financial Services Modernization Act of the Seller set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) shall survive delivery of the Mortgage Files to, or upon the director of, the Trustee. Upon discovery by the Depositor or the Trustee of a breach of any of the foregoing representations and warranties, which breach materially and adversely affects value of a Mortgage Loan or the interest therein of the Certificateholders, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency1999.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Prime Auto Receivables Trust 2023-1)
Representations, Warranties and Covenants of the Seller. The and Master Servicer. -------------------
(a) Countrywide Home Loans, Inc., in its capacities as Seller acknowledges and agrees that the Depositor has assignedMaster Servicer, transferred and conveyed to the Trustee all the Depositor's rights under the Mortgage Sale Agreement including, without limitation, hereby makes the representations and warranties of set forth in Schedule II hereto, and by this reference incorporated herein, to the Seller contained therein (a copy of which representations Depositor and warranties is attached hereto as Exhibit AA). The Seller further acknowledges and agrees that the Trustee, as assignee of all of the Depositor's rights under the Mortgage Sale AgreementClosing Date, may enforce all the covenants or if so specified therein, as of the Seller therein contained and all remedies for deficient documentation and breaches of Cut-off Date.
(b) The Seller, in its capacity as Seller, hereby makes the representations and warranties contained therein set forth in Schedule III hereto, and by this reference incorporated herein, to the Depositor and the Trustee, as of the Closing Date, or if so specified therein, as of the Cut-off Date.
(c) Upon discovery by any of the parties hereto of a breach of a representation or warranty made pursuant to Section 2.03(b) that materially and adversely affects the interests of the Certificateholders in Exhibit AA hereof) directly against any Mortgage Loan, the Sellerparty discovering such breach shall give prompt notice thereof to the other parties. The Seller further acknowledges and agrees that, pursuant to the Mortgage Sale Agreement, hereby covenants that within 90 days of the earlier of its discovery or its receipt of written notice from any party of a breach of any representation or warranty set forth in Article III thereof (and contained in Exhibit AA hereofmade pursuant to Section 2.03(b) that which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, it shall cure such breach in all material respects andrespects, and if such breach is not so cured, shall, (i) if such 90-day period expires prior to the second anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and substitute in its place a Replacement Substitute Mortgage Loan, in the manner and subject to the conditions set forth in this Section 2.04Section; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner set forth below; provided, however, that any such substitution pursuant to (i) above or repurchase pursuant to (ii) above shall not be effected prior to the delivery to the Trustee of the Opinion of Counsel required by Section 2.05 hereof hereof, if any, and any such substitution pursuant to (i) above shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form thereof attached as an exhibit to of Exhibit N and the Custodial AgreementMortgage File for any such Substitute Mortgage Loan. The Seller shall promptly reimburse the Master Servicer and the Trustee for any expenses reasonably incurred by the Master Servicer and/or or the Trustee in respect of enforcing the remedies for such breach. With respect to the representations and warranties described in Article III of the Mortgage Sale Agreement that this Section which are made to the best of the Seller's knowledge, if it is discovered by any of either the Depositor, the Seller or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage LoanLoan or the interests of the Certificateholders therein, notwithstanding the Seller's lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Replacement Substitute Mortgage Loan or Loans, the Seller shall deliver to the Trustee for the benefit of the CertificateholdersCertificateholders the Mortgage Note, the Mortgage, the related Mortgage Note, Mortgage and assignment of the Mortgage, and such other documents and agreements as are required by Section 2.01 hereof2.01, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01. No substitution will is permitted to be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Replacement Substitute Mortgage Loans in the month of substitution shall not be part of the Trust Fund and will be distributed to retained by the Seller on the next succeeding Distribution Date. For the month of substitution, distributions to Certificateholders will include the Scheduled Payment monthly payment due on any Deleted Mortgage Loan for such month and thereafter the Seller shall be entitled to retain all amounts received in respect of such Deleted Mortgage Loan. The Master Servicer shall amend the Mortgage Loan Schedule for the benefit of the Certificateholders to reflect the removal of such Deleted Mortgage Loan and the substitution of the Replacement Substitute Mortgage Loan or Loans and the Master Servicer shall deliver the amended Mortgage Loan Schedule to the Trustee. Upon such substitution, the Replacement Substitute Mortgage Loan or Loans shall be subject to to-the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Replacement Substitute Mortgage Loan or Loans, as of the date of substitution, the representations and warranties set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereofmade pursuant to Section 2.03(b) with respect to such Mortgage Loan. Upon any such substitution and the deposit to the Certificate Account of the amount required to be deposited therein in connection with such substitution as described in the following paragraph, the Trustee shall release to the Seller the Mortgage File relating to such Deleted Mortgage Loan and held for the benefit of the Certificateholders relating to such Deleted Mortgage Loan to the Seller and shall execute and deliver at the Master ServicerSeller's direction such instruments of transfer or assignment as have been prepared by the Master ServicerSeller, in each case without recourse, as shall be necessary to vest title in the Seller, or its respective designee, title to the Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to this Section 2.042.03. For any month in which the Seller substitutes one or more Replacement Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine the amount (if any) by which the aggregate principal balance of all such Replacement Substitute Mortgage Loans as of the date of substitution is less than the aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after application of the scheduled principal portion of the monthly payments due in the month of substitution) ). The amount of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence shortage (such amount, the "Substitution Adjustment Amount") plus an amount equal to the aggregate of any unreimbursed Advances with respect to such Deleted Mortgage Loans shall be deposited into in the Certificate Account by the Seller on or before the Determination Distribution Account Deposit Date for the Distribution Date relating to in the Prepayment Period month succeeding the calendar month during which the related Mortgage Loan became required to be purchased or replaced hereunder. In the event that the Seller shall have purchased repurchased a Mortgage Loan, the Purchase Price therefor shall be deposited in the Certificate Account pursuant to Section 3.09 3.05 on or before the Determination Distribution Account Deposit Date for the Distribution Date in the month following the month during which the Seller became obligated under the Mortgage Sale Agreement hereunder to purchase repurchase or replace such Mortgage Loan and upon such deposit of the Purchase Price Price, the delivery of the Opinion of Counsel required by Section 2.05 and receipt of a Request for Release in the form thereof attached as an exhibit to the Custodial Agreementof Exhibit N hereto, the Trustee shall release the related Mortgage File held for the benefit of the Certificateholders to the Sellersuch Person, and the Trustee shall execute and deliver at the Sellersuch Person's direction the related such instruments of transfer or assignment prepared by the Sellersuch Person, in each case without recourse, as shall be necessary to transfer title from the Trustee for the benefit of the Certificateholders and transfer the Trustee's interest to the Seller with respect to any Mortgage Loan purchased or substituted for pursuant to this Section 2.04. It is understood and agreed that the obligation under this Agreement of the Seller any Person to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy against the Seller such Persons respecting such breach available to Certificateholders, the Depositor or the Trustee on their behalf. It is understood and agreed that the The representations and warranties of the Seller set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) made pursuant to this Section 2.03 shall survive delivery of the respective Mortgage Files to, or upon the director of, the Trustee. Upon discovery by the Depositor or to the Trustee of a breach of any of for the foregoing representations and warranties, which breach materially and adversely affects value of a Mortgage Loan or the interest therein benefit of the Certificateholders, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency.
Appears in 1 contract
Representations, Warranties and Covenants of the Seller. and ----------------------------------------------------------- Master Servicer. ---------------
(a) The Seller acknowledges and agrees that the Depositor has assigned, transferred and conveyed to the Trustee all the Depositor's rights under the Mortgage Sale Agreement including, without limitation, hereby makes the representations and warranties of set forth in (i) Schedule II hereto, and by this reference incorporated herein, to the Seller contained therein (a copy of which representations Depositor, the Master Servicer and warranties is attached hereto as Exhibit AA). The Seller further acknowledges and agrees that the Trustee, as assignee of all of the Closing Date and (ii) Schedule III hereto, and by this reference incorporated herein, to the Depositor's rights under , the Mortgage Sale AgreementMaster Servicer and the Trustee, may enforce all the covenants as of the Seller therein contained Closing Date, or if so specified therein, as of the Initial Cut-off Date with respect to the Initial Mortgage Loans and all remedies for deficient documentation and breaches as of the related Cut-off Date with respect to the Supplemental Mortgage Loans.
(b) The Master Servicer hereby makes the representations and warranties contained therein set forth in Schedule IV hereto, and by this reference incorporated herein, to the Depositor, the Seller and the Trustee, as of the Closing Date.
(c) Upon discovery by any of the parties hereto of a breach of a representation or warranty made pursuant to Section 2.03(a)(ii) or a breach of a representation or warranty with respect to a Supplemental Mortgage Loan under Section 2.01 (e)(i) that materially and adversely affects the interests of the Certificateholders in Exhibit AA hereof) directly against any Mortgage Loan, the Sellerparty discovering such breach shall give prompt notice thereof to the other parties. The Seller further acknowledges and agrees that, pursuant to the Mortgage Sale Agreement, hereby covenants that within 90 days of the earlier of its discovery or its receipt of written notice from any party of a breach of any representation or warranty set forth in Article III thereof (made pursuant to Section 2.03(a)(ii) and contained in Exhibit AA hereofwith respect to a breach of a representation and warranty with respect to a Supplemental Mortgage Loan under Section 2.01(e)(i) that which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, it shall cure such breach in all material respects andrespects, and if such breach is not so cured, shall, (i) if such 90-day period expires prior to the second anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and substitute in its place a Replacement Substitute Mortgage Loan, in the manner and subject to the conditions set forth in this Section 2.04Section; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner set forth below; provided, however, that any such substitution pursuant to (i) above or repurchase pursuant to (ii) above shall not be effected prior to the delivery to the Trustee of the Opinion of Counsel required by Section 2.05 hereof hereof, if any, and any such substitution pursuant to (i) above shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form thereof attached as an exhibit to of Exhibit N and the Custodial AgreementMortgage File for any such Substitute Mortgage Loan. The Seller shall promptly reimburse the Master Servicer and the Trustee for any expenses reasonably incurred by the Master Servicer and/or or the Trustee in respect of enforcing the remedies for such breach. With respect to the representations and warranties described in Article III of the Mortgage Sale Agreement that this Section which are made to the best of the Seller's knowledge, if it is discovered by any of either the Depositor, the Seller or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage LoanLoan or the interests of the Certificateholders therein, notwithstanding the Seller's lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Replacement Substitute Mortgage Loan or Loans, the Seller shall deliver to the Trustee for the benefit of the CertificateholdersCertificateholders the Mortgage Note, the Mortgage, the related Mortgage Note, Mortgage and assignment of the Mortgage, and such other documents and agreements as are required by Section 2.01 hereof2.01, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01. No substitution will is permitted to be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Replacement Substitute Mortgage Loans in the month of substitution shall not be part of the Trust Fund and will be distributed to retained by the Seller on the next succeeding Distribution Date. For the month of substitution, distributions to Certificateholders will include the Scheduled Payment monthly payment due on any Deleted Mortgage Loan for such month and thereafter the Seller shall be entitled to retain all amounts received in respect of such Deleted Mortgage Loan. The Master Servicer shall amend the Mortgage Loan Schedule for the benefit of the Certificateholders to reflect the removal of such Deleted Mortgage Loan and the substitution of the Replacement Substitute Mortgage Loan or Loans and the Master Servicer shall deliver the amended Mortgage Loan Schedule to the Trustee. Upon such substitution, the Replacement Substitute Mortgage Loan or Loans shall be subject to to-the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Replacement Substitute Mortgage Loan or Loans, as of the date of substitution, the representations and warranties set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereofmade pursuant to Section 2.03(a)(ii) with respect to such Mortgage Loan. Upon any such substitution and the deposit to the Certificate Account of the amount required to be deposited therein in connection with such substitution as described in the following paragraph, the Trustee shall release to the Seller the Mortgage File relating to such Deleted Mortgage Loan and held for the benefit of the Certificateholders relating to such Deleted Mortgage Loan to the Seller and shall execute and deliver at the Master ServicerSeller's direction such instruments of transfer or assignment as have been prepared by the Master ServicerSeller, in each case without recourse, as shall be necessary to vest title in the Seller, or its respective designee, title to the Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to this Section 2.042.03. For any month in which the Seller substitutes one or more Replacement Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine the amount (if any) by which the aggregate principal balance of all such Replacement Substitute Mortgage Loans as of the date of substitution is less than the aggregate Stated Principal Balance of all such Deleted Mortgage Loans (after application of the scheduled principal portion of the monthly payments due in the month of substitution) ). The amount of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence shortage (such amount, the "Substitution Adjustment Amount") plus an amount equal to the aggregate of any unreimbursed Advances with respect to such Deleted Mortgage Loans shall be deposited into in the Certificate Account by the Seller on or before the Determination Distribution Account Deposit Date for the Distribution Date relating to in the Prepayment Period month succeeding the calendar month during which the related Mortgage Loan became required to be purchased or replaced hereunder. In the event that the Seller shall have purchased repurchased a Mortgage Loan, the Purchase Price therefor shall be deposited in the Certificate Account pursuant to Section 3.09 3.05 on or before the Determination Distribution Account Deposit Date for the Distribution Date in the month following the month during which the Seller became obligated under the Mortgage Sale Agreement hereunder to purchase repurchase or replace such Mortgage Loan and upon such deposit of the Purchase Price Price, the delivery of the Opinion of Counsel required by Section 2.05 and receipt of a Request for Release in the form thereof attached as an exhibit to the Custodial Agreementof Exhibit N hereto, the Trustee shall release the related Mortgage File held for the benefit of the Certificateholders to the Sellersuch Person, and the Trustee shall execute and deliver at the Sellersuch Person's direction the related such instruments of transfer or assignment prepared by the Sellersuch Person, in each case without recourse, as shall be necessary to transfer title from the Trustee for the benefit of the Certificateholders and transfer the Trustee's interest to the Seller with respect to any Mortgage Loan purchased or substituted for pursuant to this Section 2.04. It is understood and agreed that the obligation under this Agreement of the Seller any Person to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy against the Seller such Persons respecting such breach available to Certificateholders, the Depositor or the Trustee on their behalf. It is understood and agreed that the The representations and warranties of the Seller set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) made pursuant to this Section 2.03 shall survive delivery of the respective Mortgage Files to, or upon the director of, the Trustee. Upon discovery by the Depositor or to the Trustee of a breach of any of for the foregoing representations and warranties, which breach materially and adversely affects value of a Mortgage Loan or the interest therein benefit of the Certificateholders, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency.
Appears in 1 contract
Representations, Warranties and Covenants of the Seller. The Seller acknowledges hereby represents, warrants and agrees that the Depositor has assigned, transferred and conveyed covenants to the Trustee all the Depositor's rights under the Mortgage Sale Agreement including, without limitation, the representations and warranties of the Seller contained therein (a copy of which representations and warranties is attached hereto as Exhibit AA). The Seller further acknowledges and agrees that the Trustee, as assignee for the benefit of all each of the Depositor's rights under Trustee and the Mortgage Sale Agreement, may enforce all Certificateholders and to the covenants Depositor that as of the Seller therein contained and all remedies for deficient documentation and breaches Closing Date or as of such date specifically provided herein:
(a) To the best of the representations Seller's knowledge, nothing has occurred in the period of time from the date each representation and warranties contained therein (and in Exhibit AA hereof) directly against warranty was assigned to the Seller. The Seller further acknowledges and agrees that, Depositor pursuant to the related Assignment Agreement to the Closing Date which would cause such representation and warranty to be untrue in any material respect on the Closing Date.
(b) To the best knowledge of the Seller, each Mortgage Sale AgreementLoan at the time it was made complied in all material respects with applicable local, within state and federal laws, including, but not limited to, all applicable predatory and abusive lending laws.
(c) None of the mortgage loans are (i) "High Cost" as such term is defined in the Home Ownership Protection Act of 1994 ("HOEPA") or (ii) a reasonably equivalent provision as defined by the applicable predatory and abusive lending laws. Within 90 days of the earlier of its discovery by the Seller or its receipt of written notice from any party by the Seller of a the breach of any representation representation, warranty or warranty covenant of the Seller set forth in Article III thereof (and contained in Exhibit AA hereof) that this Section 2.04, which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, it the Seller shall cure take such action described in Section 2.03 in respect of such ResMae Mortgage Loan. Notwithstanding anything to the contrary set forth in Section 2.03, with respect to any breach in all material respects andby the Seller of a representation or warranty made by the Seller under this Section 2.04 that materially and adversely affects the value of a Mortgage Loan or the Mortgage Loans or the interest therein of the Certificateholders, if the Seller would not be in breach of such representation or warranty but for a breach is not so cured, shall, (i) if such 90-day period expires prior to the second anniversary by one of the Closing DateOriginators of a representation and warranty made by such Originator in the related Master Agreement, remove then such Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and substitute in its place a Replacement Mortgage LoanOriginator thereunder, in the manner and subject to the conditions extent set forth in this Section 2.04; or (ii) repurchase therein, and not the affected Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner set forth below; providedSeller, however, that any such substitution pursuant hereunder shall be required to (i) above or repurchase pursuant to (ii) above shall not be effected prior to the delivery to the Trustee of the Opinion of Counsel required by Section 2.05 hereof and any such substitution pursuant to (i) above shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form thereof attached as an exhibit to the Custodial Agreement. The Seller shall promptly reimburse the Master Servicer and the Trustee for any expenses reasonably incurred by the Master Servicer and/or the Trustee enforcing the remedies for remedy such breach. With respect to the representations and warranties described contained in Article III of the Mortgage Sale Agreement this Section 2.04 that are made to the knowledge or the best knowledge of the Seller's , or as to which the Seller has no knowledge, if it is discovered by any of the Depositor, the Seller or the Trustee that the substance of any such representation and warranty is inaccurate and such the inaccuracy materially and adversely affects the value of the related Mortgage Loan, or the interest therein of the Certificateholder, then notwithstanding the Seller's lack of knowledge with respect to the substance of such representation or warrantyand warranty being inaccurate at the time the representation and warranty was made, such inaccuracy shall be deemed a breach of the applicable representation and warranty and the Seller shall take such action described in Section 2.03 in respect of such Mortgage Loan. In addition to the foregoing, within 90 days of the earlier of discovery by the Seller or warranty. With respect to receipt of notice by the Seller of (i) the breach of any Replacement representation or warranty of Residential Mortgage Assistance Enterprise, LLC set forth in Section 7.02 of the ResMae Master Agreement which materially and adversely affects the interests of the Certificateholders in any ResMae Mortgage Loan and for which Residential Mortgage Assistance Enterprise, LLC has failed to cure such breach in accordance with the terms of the ResMae Master Agreement and (ii) the fact that Residential Mortgage Assistance Enterprise, LLC is no longer an operating company or Loansan Officers' Certificate certifying to the fact that Residential Mortgage Assistance Enterprise, LLC is financially unable to cure such breach pursuant to the terms of the ResMae Master Agreement, the Seller shall deliver to the Trustee for the benefit of the Certificateholders, the related Mortgage Note, Mortgage and assignment of the Mortgage, and take such other documents and agreements as are required by action described in Section 2.01 hereof, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01. No substitution will be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Replacement Mortgage Loans in the month of substitution shall not be part of the Trust Fund and will be distributed to the Seller on the next succeeding Distribution Date. For the month of substitution, distributions to Certificateholders will include the Scheduled Payment due on any Deleted Mortgage Loan for such month and thereafter the Seller shall be entitled to retain all amounts received 2.03 in respect of such Deleted ResMae Mortgage Loan. The Master Servicer shall amend the Mortgage Loan Schedule for the benefit Such obligation of the Certificateholders to reflect the removal of Seller shall continue until such Deleted Mortgage Loan and the substitution of the Replacement Mortgage Loan or Loans and the Master Servicer shall deliver the amended Mortgage Loan Schedule to time that Fitch informs the Trustee. Upon such substitution, the Replacement Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, Depositor and the Seller shall be deemed in writing that such obligation is no longer required in order for Fitch to have made with respect to such Replacement Mortgage Loan or Loans, as of the date of substitution, the representations and warranties set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) with respect to such Mortgage Loan. Upon any such substitution and the deposit to the Certificate Account of the amount required to be deposited therein in connection with such substitution as described in the following paragraph, the Trustee shall release to the Seller the Mortgage File relating to such Deleted Mortgage Loan and held for the benefit of the Certificateholders and shall execute and deliver at the Master Servicer's direction such instruments of transfer or assignment as have been prepared by the Master Servicer, in each case without recourse, as shall be necessary to vest in the Seller, or maintain its respective designee, title to the Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to this Section 2.04. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution is less than the aggregate Stated Principal Balance (after application of the scheduled principal portion of the monthly payments due in the month of substitution) of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be deposited into the Certificate Account by the Seller then-current ratings on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. In the event that the Seller shall have purchased a Mortgage Loan, the Purchase Price therefor shall be deposited in the Certificate Account pursuant to Section 3.09 on the Determination Date for the Distribution Date in the month following the month during which the Seller became obligated under the Mortgage Sale Agreement to purchase or replace such Mortgage Loan and upon such deposit of the Purchase Price and receipt of a Request for Release in the form thereof attached as an exhibit to the Custodial Agreement, the Trustee shall release the related Mortgage File held for the benefit of the Certificateholders to the Seller, and the Trustee shall execute and deliver at the Seller's direction the related instruments of transfer or assignment prepared by the Seller, in each case without recourse, as shall be necessary to transfer title from the Trustee for the benefit of the Certificateholders and transfer the Trustee's interest to the Seller with respect to any Mortgage Loan purchased or substituted for pursuant to this Section 2.04. It is understood and agreed that the obligation under this Agreement of the Seller to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy against the Seller respecting such breach available to Certificateholders, the Depositor or the Trustee on their behalf. It is understood and agreed that the representations and warranties of the Seller set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) shall survive delivery of the Mortgage Files to, or upon the director of, the Trustee. Upon discovery by the Depositor or the Trustee of a breach of any of the foregoing representations and warranties, which breach materially and adversely affects value of a Mortgage Loan or the interest therein of the Certificateholders, the party discovering such breach shall give prompt written notice to the others and to each Rating AgencyCertificates.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Financial Asset Sec Corp Asset Back Certs Ser 2003-2)
Representations, Warranties and Covenants of the Seller. (a) The Seller acknowledges hereby represents and agrees that the Depositor has assigned, transferred and conveyed warrants to the Guarantor and the Trustee all for the Depositor's rights under benefit of the Certificateholders that as of the Closing Date or as of such other date specifically provided herein:
(i) The representations and warranties made by the Seller pursuant to Section 3.01 and Section 3.02 of the Mortgage Sale Loan Purchase Agreement including, without limitation, are hereby being made to the Guarantor and the Trustee for the benefit of the Certificateholders and are true and correct as of the Closing Date or as of such other date specifically provided therein.
(ii) Any written agreement between the Mortgagor in respect of a Mortgage Loan and the Seller or the Master Servicer modifying such Mortgagor's obligation to make payments under such Mortgage Loan involved the application of the Seller's or the Master Servicer's underwriting standards or some assessment of such Mortgagor's ability to repay the modified Mortgage Loan. It is understood and agreed that the representations and warranties set forth in this Section 2.04 shall survive delivery of the Mortgage Files to the Trustee and shall inure to the benefit of the Certificateholders and the Guarantor notwithstanding any restrictive or qualified endorsement or assignment. Upon discovery by any of the Depositor, the Guarantor, the NIMS Insurer, the Master Servicer, the Seller contained therein (or the Trustee of a copy breach of which any of the foregoing representations and warranties is attached hereto as Exhibit AA). The Seller further acknowledges which materially and agrees that adversely affects the Trustee, as assignee value of all any Mortgage Loan or the interests therein of the Depositor's rights under Certificateholders or the Mortgage Sale AgreementGuarantor, may enforce all the covenants of party discovering such breach shall give prompt written notice to the Seller therein contained other parties and all remedies for deficient documentation and breaches of the representations and warranties contained therein (Guarantor, and in Exhibit AA hereof) directly against no event later than two Business Days from the Sellerdate of such discovery. The Seller further acknowledges and agrees that, pursuant to the Mortgage Sale Agreement, within Within 90 days of the earlier of its discovery or its receipt of written notice of any such missing or materially defective documentation or any such breach of a representation or warranty, the Seller shall promptly deliver such missing document or cure such defect or breach in all material respects, or in the event such defect or breach cannot be cured, the Seller shall repurchase the affected Mortgage Loan or cause the removal of such Mortgage Loan from any party the Trust Fund and substitute for it one or more Qualified Substitute Mortgage Loans, in either case, in accordance with Section 2.03. It is understood and agreed that the obligations of the Seller set forth in Section 2.03(a) to cure, substitute for or repurchase a Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement constitute the sole remedies available to the Certificateholders, the Guarantor or to the Trustee on their behalf respecting a breach of the representations and warranties contained in this Section 2.04.
(b) The Seller hereby covenants that it will not sell, pledge, assign or transfer to any representation other Person, or grant, create, incur, assume or suffer to exist any lien on any Mortgage Loan, or any interest therein; the Seller will notify the Trustee, as assignee of the Depositor, the Guarantor and the NIMS Insurer of the existence of any lien on any Mortgage Loan immediately upon discovery thereof, and the Seller will defend the right, title and interest of the Trust, as assignee of the Depositor, in, to and under the Mortgage Loans, against all claims of third parties claiming through or under the Seller.
(c) Promptly, but in no event later than 90 days following the earlier of discovery by the Seller or receipt of notice by the Seller of the breach of any representation, warranty or covenant of the Seller set forth in Article III thereof (and contained in Exhibit AA hereof) that this Section 2.04 which materially and adversely affects the interests of the Certificateholders in any Mortgage Loan, it the Seller shall cure such breach in all material respects and, if such breach is not so cured, shall, (i) if such 90-day period expires prior to the second anniversary of the Closing Date, remove such Mortgage Loan (a "Deleted Mortgage Loan") from the Trust Fund and substitute in its place a Replacement Mortgage Loan, in the manner and subject to the conditions set forth in this Section 2.04; or (ii) repurchase the affected Mortgage Loan or Mortgage Loans from the Trustee at the Purchase Price in the manner set forth below; provided, however, that any such substitution pursuant to (i) above or repurchase pursuant to (ii) above shall not be effected prior to the delivery to the Trustee of the Opinion of Counsel required by Section 2.05 hereof and any such substitution pursuant to (i) above shall not be effected prior to the additional delivery to the Trustee of a Request for Release substantially in the form thereof attached as an exhibit to the Custodial Agreement. The Seller shall promptly reimburse the Master Servicer and the Trustee for any expenses reasonably incurred by the Master Servicer and/or the Trustee enforcing the remedies for such breach. With respect to the representations and warranties described in Article III of the Mortgage Sale Agreement that are made to the best of the Seller's knowledge, if it is discovered by any of the Depositor, the Seller or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan, notwithstanding the Seller's lack of knowledge with respect to the substance of such representation or warranty, such inaccuracy shall be deemed a breach of the applicable representation or warranty. With respect to any Replacement Mortgage Loan or Loans, the Seller shall deliver to the Trustee for the benefit of the Certificateholders, the related Mortgage Note, Mortgage and assignment of the Mortgage, and such other documents and agreements as are required by Section 2.01 hereof, with the Mortgage Note endorsed and the Mortgage assigned as required by Section 2.01. No substitution will be made in any calendar month after the Determination Date for such month. Scheduled Payments due with respect to Replacement Mortgage Loans in the month of substitution shall not be part of the Trust Fund and will be distributed to the Seller on the next succeeding Distribution Date. For the month of substitution, distributions to Certificateholders will include the Scheduled Payment due on any Deleted Mortgage Loan for such month and thereafter the Seller shall be entitled to retain all amounts received in respect of such Deleted Mortgage Loan. The Master Servicer shall amend the Mortgage Loan Schedule for the benefit of the Certificateholders to reflect the removal of such Deleted Mortgage Loan and the substitution of the Replacement Mortgage Loan or Loans and the Master Servicer shall deliver the amended Mortgage Loan Schedule to the Trustee. Upon such substitution, the Replacement Mortgage Loan or Loans shall be subject to the terms of this Agreement in all respects, and the Seller shall be deemed to have made with respect to such Replacement Mortgage Loan or Loans, as of the date of substitution, the representations and warranties set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) with respect to such Mortgage Loan. Upon any such substitution and the deposit to the Certificate Account of the amount required to be deposited therein in connection with such substitution as described in the following paragraph, the Trustee shall release to the Seller the Mortgage File relating to such Deleted Mortgage Loan and held for the benefit of the Certificateholders and shall execute and deliver at the Master Servicer's direction such instruments of transfer or assignment as have been prepared by the Master Servicer, in each case without recourse, as shall be necessary to vest in the Seller, or its respective designee, title to the Trustee's interest in any Deleted Mortgage Loan substituted for pursuant to this Section 2.04. For any month in which the Seller substitutes one or more Replacement Mortgage Loans for one or more Deleted Mortgage Loans, the Master Servicer will determine the amount (if any) by which the aggregate principal balance of all such Replacement Mortgage Loans as of the date of substitution is less than the aggregate Stated Principal Balance (after application of the scheduled principal portion of the monthly payments due in the month of substitution) of all such Deleted Mortgage Loans. An amount equal to the aggregate of the deficiencies described in the preceding sentence (such amount, the "Substitution Adjustment Amount") shall be deposited into the Certificate Account by the Seller on the Determination Date for the Distribution Date relating to the Prepayment Period during which the related Mortgage Loan became required to be purchased or replaced hereunder. In the event that the Seller shall have purchased a Mortgage Loan, the Purchase Price therefor shall be deposited in the Certificate Account pursuant to Section 3.09 on the Determination Date for the Distribution Date in the month following the month during which the Seller became obligated under the Mortgage Sale Agreement to purchase or replace such Mortgage Loan and upon such deposit of the Purchase Price and receipt of a Request for Release in the form thereof attached as an exhibit to the Custodial Agreement, the Trustee shall release the related Mortgage File held for the benefit of the Certificateholders to the Seller, and the Trustee shall execute and deliver at the Seller's direction the related instruments of transfer or assignment prepared by the Seller, in each case without recourse, as shall be necessary to transfer title from the Trustee for the benefit of the Certificateholders and transfer the Trustee's interest to the Seller with respect to any Mortgage Loan purchased or substituted for pursuant to this Section 2.04. It is understood and agreed that the obligation under this Agreement of the Seller to cure, repurchase or replace any Mortgage Loan as to which a breach has occurred and is continuing shall constitute the sole remedy against the Seller respecting such breach available to Certificateholders, the Depositor or the Trustee on their behalf. It is understood and agreed that the representations and warranties of the Seller set forth in Article III of the Mortgage Sale Agreement (and contained in Exhibit AA hereof) shall survive delivery of the Mortgage Files to, or upon the director of, the Trustee. Upon discovery by the Depositor or the Trustee of a breach of any of the foregoing representations and warranties, which breach materially and adversely affects value of a Mortgage Loan or the interest therein of the Certificateholders, the party discovering such breach shall give prompt written notice to the others and to each Rating Agency.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ameriquest Mort Sec Inc Asset Bk Pass THR Cert Ser 2002-C)
