Repurchase of Receivables Upon Breach of Warranty Upon discovery by the Seller, the Depositor, the Servicer, the Owner Trustee or the Indenture Trustee of a breach of any of the representations and warranties in Section 3.01 of the Pooling Agreement or in Section 2.03 or Section 3.01 of this Agreement that materially and adversely affects the interests of the Noteholders or the Certificateholders in any Receivable, the party discovering such breach shall give prompt written notice thereof to the others. As of the last day of the second Monthly Period following its discovery or its receipt of notice of such breach (or, at the Depositor’s election, the last day of the first Monthly Period following such discovery or receipt of notice), unless such breach shall have been cured in all material respects, in the event of a breach of the representations and warranties made by the Depositor in Section 2.03 or Section 3.01, the Depositor shall repurchase, or in the event of a breach of a representation and warranty under Section 3.01 of the Pooling Agreement, the Depositor shall use reasonable efforts to enforce the obligation of the Seller under Section 4.04 of the Pooling Agreement to repurchase such Receivable from the Issuing Entity on the related Distribution Date. The repurchase price to be paid by the breaching party (the “Warranty Purchaser”) shall be an amount equal to the Warranty Payment calculated as of the last day of the related Monthly Period. It is understood and agreed that the obligation of the Warranty Purchaser to repurchase any Receivable as to which a breach has occurred and is continuing, and the obligation of the Depositor to enforce the Seller’s obligation to repurchase such Receivables pursuant to the Pooling Agreement shall, if such obligations are fulfilled, constitute the sole remedy against the Depositor or the Seller for such breach available to the Issuing Entity, the Financial Parties, the Owner Trustee or the Indenture Trustee.
Purchase of Receivables Upon Breach of Covenant Upon discovery by any of the Servicer, a Responsible Officer of the Trust Collateral Agent, the Owner Trustee or a Responsible Officer of the Trustee of a breach of any of the covenants set forth in Sections 3.4, 3.5, 3.6, 4.5(a) or 4.6 that materially and adversely affects the interests of the Noteholders in any Receivable (including any Liquidated Receivable), the party discovering such breach shall give prompt written notice to the others; provided, however, that the failure to give any such notice shall not affect any obligation of GM Financial as Servicer under this Section. As of the second Accounting Date following its discovery or receipt of notice of any breach of any covenant set forth in Sections 3.4, 3.5, 3.6, 4.5(a) or 4.6 which materially and adversely affects the interests of the Noteholders in any Receivable (including any Liquidated Receivable) (or, at GM Financial’s election, the first Accounting Date so following) or the related Financed Vehicle, GM Financial shall, unless such breach shall have been cured in all material respects, purchase from the Trust the Receivable affected by such breach and, on the related Determination Date, GM Financial shall pay the related Purchase Amount. It is understood and agreed that the obligation of GM Financial to purchase any Receivable (including any Liquidated Receivable) with respect to which such a breach has occurred and is continuing shall, if such obligation is fulfilled, constitute the sole remedy against GM Financial for such breach available to the Noteholders, the Issuer, the Owner Trustee or the Trust Collateral Agent; provided, however, that GM Financial shall indemnify the Trust, the Owner Trustee, the Trust Collateral Agent, the Trustee and the Noteholders from and against all costs, expenses, losses, damages, claims and liabilities, including reasonable fees and expenses of counsel, which may be asserted against or incurred by any of them as a result of third-party claims arising out of the events or facts giving rise to such breach.
Repurchase upon Breach (a) The Seller, the Servicer or the Trustee, as the case may be, shall inform the other parties to this Agreement and the Indenture Trustee promptly, in writing, upon the discovery of any breach of the Seller’s representations and warranties made pursuant to Section 3.1 or Section 6.1, or CNHICA’s representations and warranties made pursuant to Section 3.2(b) of the Purchase Agreement. Unless a breach pursuant to the sections and documents referenced in the preceding sentence shall have been cured by the last day of the second Collection Period after such breach is discovered by the Servicer or the Trustee or in which the Trustee receives written notice from the Seller or the Servicer of such breach, the Seller shall be obligated, and, if necessary, the Seller or the Trustee shall enforce the obligation of CNHICA under the Purchase Agreement to repurchase any Receivable materially and adversely affected by any such breach as of such last day. As consideration for the repurchase of the Receivable, the Seller shall remit the Purchase Amount in the manner specified in Section 5.5; provided, however, that the obligation of the Seller to repurchase any Receivable arising solely as a result of a breach of CNHICA’s representations and warranties pursuant to Section 3.2(b) of the Purchase Agreement is subject to the receipt by the Seller of the Purchase Amount from CNHICA. Subject to the provisions of Section 6.3, the sole remedy of the Issuing Entity, the Trustee, the Indenture Trustee, the Noteholders or the Certificateholders with respect to a breach of the representations and warranties pursuant to Section 3.1 and the agreement contained in this Section shall be to require the Seller to repurchase Receivables pursuant to this Section, subject to the conditions contained herein, and to enforce CNHICA’s obligation to the Seller to repurchase such Receivables pursuant to the Purchase Agreement.
(b) Upon the delivery by the Asset Representations Reviewer of a Review Report, the Servicer shall evaluate the findings contained in the Review Report and determine whether a breach of any of the representations and warranties made by the Seller and/or CNHICA has occurred and whether such breach requires the Seller and/or CNHICA to repurchase such Receivables pursuant to the provisions of this Section 3.2.
(c) With respect to all Receivables purchased or repurchased by, or otherwise transferred to (including Liquidated Receivables transferred under Section 4.3, 4.6 and 9.1) CNHICA, the Servicer, the Seller or their Affiliate pursuant to this Agreement or the Purchase Agreement: (i) the Issuing Entity, the Seller and the Indenture Trustee shall sell, transfer, assign, set over and otherwise convey to CNHICA, the Servicer, the Seller or their Affiliate, as applicable, without recourse, representation or warranty, all of the Issuing Entity’s, the Seller’s and the Indenture Trustee’s right, title and interest in, to and under such Receivables, related Financed Equipment, and all other CNHCR Assets related thereto, including all security and documents relating thereto, and (ii) the Issuing Entity, the Seller, and the Indenture Trustee shall be deemed to have released any security interest and any other claim under this Agreement and the Basic Documents in such Receivables, related Financed Equipment, and all other CNHCR Assets related thereto, including all security and documents relating thereto, without any further act or deed, and such Receivables, related Financed Equipment, and all security and documents relating thereto will be free of the Grant contained in the Indenture.
Repurchase of Receivables Upon Breach Upon the occurrence of a Repurchase Event, Seller shall, unless the breach which is the subject of such Repurchase Event shall have been cured in all material respects, repurchase the Receivable relating thereto from the Issuer if and only if the interests of the Noteholders therein are materially and adversely affected by any such breach and, simultaneously with the repurchase of the Receivable, Seller shall deposit the Purchase Amount in full, without deduction or offset, to the Collection Account, pursuant to Section 3.2 of the Sale and Servicing Agreement. It is understood and agreed that, except as set forth in Section 6.1 hereof, the obligation of Seller to repurchase any Receivable, as to which a breach occurred and is continuing, shall, if such obligation is fulfilled, constitute the sole remedy against Seller for such breach available to Purchaser, the Issuer, the Noteholders, the Certificateholder, the Trust Collateral Agent on behalf of the Noteholders or the Owner Trustee on behalf of the Certificateholder. The provisions of this Section 5.1 are intended to grant the Issuer and the Trust Collateral Agent a direct right against Seller to demand performance hereunder, and in connection therewith, Seller waives any requirement of prior demand against Purchaser with respect to such repurchase obligation. Furthermore, any Person who may request that any Receivable be repurchased by the Seller or the Purchaser in accordance with Section 3.2 of the Sale and Servicing Agreement may request that the Seller repurchase the related Receivable due to the occurrence of a Repurchase Event, in the same manner that it would request such repurchase pursuant to Section 3.2 of the Sale and Servicing Agreement. Any repurchase hereunder shall take place in the manner specified in Section 3.2 of the Sale and Servicing Agreement. Notwithstanding any other provision of this Agreement or the Sale and Servicing Agreement to the contrary, the obligation of Seller under this Section shall not terminate upon a termination of Seller as Servicer under the Sale and Servicing Agreement and shall be performed in accordance with the terms hereof notwithstanding the failure of the Servicer or Purchaser to perform any of their respective obligations with respect to such Receivable under the Sale and Servicing Agreement. In addition to the foregoing and notwithstanding whether the related Receivable shall have been purchased by Seller, Seller shall indemnify the Issuer, the Trust Collateral Agent, the Trustee, the Owner Trustee, the Noteholders and the Certificateholder from and against all costs, expenses, losses, damages, claims and liabilities, including reasonable fees and expenses of counsel, which may be asserted against or incurred by any of them as a result of third party claims arising out of the events or facts giving rise to such Repurchase Events.
Purchase of Receivables Upon Breach Upon discovery by any party hereto of a breach of any of the covenants set forth in Section 4.02, 4.03, 4.05 or 4.06 which materially and adversely affects the interests of the Issuer or the Noteholders, the party discovering such breach shall give prompt written notice thereof to the other parties hereto; provided, that delivery of a Servicer’s Certificate shall be deemed to constitute prompt written notice thereof to the other party; provided, further, that the failure to give such notice shall not affect any obligation of the Servicer under this Section 4.07. Following a breach described in the preceding sentence, the Servicer shall either (a) correct or cure such breach or (b) purchase any Receivable materially and adversely affected by such breach from the Issuer, in either case on or before the Payment Date following the end of the Collection Period which includes the 60th day (or, if the Servicer elects, an earlier Payment Date) after the date that the Servicer became aware or was notified of such breach. Any such breach or failure will be deemed not to materially and adversely affect the Noteholders or the Issuer if such breach or failure does not affect the ability of the Issuer or the Noteholders to receive and retain timely payment in full on such Receivable. Any such purchase by the Servicer shall be at a price equal to the Purchased Amount. In consideration for such repurchase, the Servicer shall make (or shall cause to be made) a payment to the Issuer equal to the Purchased Amount by depositing such amount into the Collection Account in accordance with Section 5.04 on the Business Day preceding such Payment Date (or, if the Servicer elects, an earlier Payment Date). Upon payment of such Purchased Amount by the Servicer, the Issuer and the Indenture Trustee shall release and shall execute and deliver such instruments of release, transfer or assignment, in each case without recourse or representation, as shall be reasonably necessary to vest in the Servicer or its designee any Receivable repurchased pursuant hereto. It is understood and agreed that the obligation of the Servicer to purchase any Receivable as described above shall constitute the sole remedy respecting such breach available to the Issuer, the Owner Trustee, the Certificateholders, the Noteholders and the Indenture Trustee.
Purchase by Servicer upon Breach The Depositor, the Servicer or the Administrator (on behalf of the Trust), as the case may be, shall inform the other parties to this Agreement, the Seller and the Indenture Trustee promptly, in writing, upon the discovery of any breach of Sections 3.2, 3.5 or 3.6. If such breach shall not have been cured by the close of business on the last day of the Collection Period which includes the 60th day after the date on which the Servicer becomes aware of, or receives written notice from the Depositor or the Administrator (on behalf of the Trust) of, such breach, and such breach materially and adversely affects the interest of the Trust in a Receivable, the Servicer shall purchase such Receivable from the Trust on the Distribution Date following such Collection Period; provided, however, that with respect to a breach of Section 3.2, the Servicer shall purchase the affected Receivable from the Trust at the end of the Collection Period in which such breach occurs. Any such breach or failure will be deemed not to have a material and adverse effect if such breach or failure has not affected the ability of the Issuer to receive and retain payment in full on such Receivable. In consideration of the purchase of a Receivable hereunder, the Servicer shall remit the Purchase Amount of such Receivable in the manner specified in Section 4.5. The sole remedy of the Trust, the Administrator, the Owner Trustee, the Indenture Trustee, the Noteholders and the Certificateholders with respect to a breach of Sections 3.2, 3.5 or 3.6 shall be to require the Servicer to purchase Receivables pursuant to this Section 3.7. None of the Administrator, the Owner Trustee or the Indenture Trustee shall have any duty to conduct an affirmative investigation as to the occurrence of any condition requiring the purchase of any Receivable pursuant to this Section 3.7.
Actions Upon Breach Should any Second Priority Representative or any Second Priority Debt Party, contrary to this Agreement, in any way take, attempt to take or threaten to take any action with respect to the Shared Collateral (including any attempt to realize upon or enforce any remedy with respect to this Agreement) or fail to take any action required by this Agreement, any Senior Representative or other Senior Secured Party (in its or their own name or in the name of the Borrower or any other Grantor) or the Borrower may obtain relief against such Second Priority Representative or such Second Priority Debt Party by injunction, specific performance or other appropriate equitable relief. Each Second Priority Representative, on behalf of itself and each Second Priority Debt Party under its Second Priority Facility, hereby (i) agrees that the Senior Secured Parties’ damages from the actions of the Second Priority Representatives or any Second Priority Debt Party may at that time be difficult to ascertain and may be irreparable and waives any defense that the Borrower, any other Grantor or the Senior Secured Parties cannot demonstrate damage or be made whole by the awarding of damages and (ii) irrevocably waives any defense based on the adequacy of a remedy at law and any other defense that might be asserted to bar the remedy of specific performance in any action that may be brought by any Senior Representative or any other Senior Secured Party.
Options upon Breach by Consultant If Consultant materially breaches any of the terms of this Agreement, City’s remedies shall include, but not be limited to, any or all of the following:
8.6.1 Immediate cancellation of the Agreement;
8.6.2 Retention of the plans, specifications, drawings, reports, design documents, and any other work product prepared by Consultant pursuant to this Agreement prior to cancellation; and
8.6.3 Retention of a different consultant at Consultant’s cost to complete the work described in Exhibit A not finished by Consultant.
REMEDY FOR BREACH OF WARRANTY 3.1. Subject to the exclusions and limitations set out above, if the Product fails to comply with the Limited Warranty in clauses 1.2 or 1.3, BYD will repair or replace the non-conforming Product or parts thereof within the warranty term at no charge (or provide a partial refund) on the following conditions.
3.2. Whether to repair or replace the Product will be determined by BYD in its sole discretion.
3.3. The Product or any of its parts to be replaced will have the same performance and reliability as the original Product. If the Production of the relevant type of the Product or any of its parts has been discontinued, withdrawn from the market, or are otherwise unavailable, BYD may replace the Product or parts with a similar Product or part (which may include previously used parts that are equivalent to new in performance and reliability).
3.4. If BYD does not repair or replace the defective Product or parts, BYD will refund You an amount of money calculated as follows:
a) If the Product fails to comply with the Limited Performance Warranty in clause 1.3, BYD may calculate the refund using one of the two refund formulas below:
i) Refund = maximum claim amount* x (warranted Minimum Throughput Energy - output energy of the Product recorded in the control module of the Product)/ warranted Minimum Throughput Energy; or
ii) Refund = maximum claim amount* x (warranted remaining Useable Energy - remaining Useable Energy)/ warranted Usable Energy; and
b) If the Product cannot be operated, BYD will calculate the refund as follows: Refund = (maximum claim amount*/120) x (120 - number of months since Warranty Start Date). *The maximum claim amount is the market value of the Product (or an equivalent Product) determined by BYD if it were purchased new with no defects.
3.5. The remedies as set out above are the sole and exclusive obligations of BYD to You under this Limited Warranty, and BYD will have no other liability to You if the Product fails to comply with the Limited Warranty.
Repurchase Obligation for Defective Documentation and for Breach of Representation and Warranty It is understood and agreed that the representations and warranties set forth in Section 5 shall survive the sale of the Mortgage Loans to the Purchaser and shall inure to the benefit of the Purchaser and any assignee, transferee or designee of the Purchaser, including the Trustee for the benefit of holders of the Mortgage Pass-Through Certificates evidencing an interest in all or a portion of the Mortgage Loans, notwithstanding any restrictive or qualified endorsement on any Mortgage Note or Assignment or the examination or lack of examination of any Mortgage File. With respect to the representations and warranties contained herein that are made to the knowledge or the best knowledge of the Seller, or as to which the Seller has no knowledge, if it is discovered that the substance of any such representation and warranty is inaccurate and the inaccuracy materially and adversely affects the value of the related Mortgage Loan, or the interest therein of the Purchaser or the Purchaser’s assignee, designee or transferee, then notwithstanding the Seller’s lack of knowledge with respect to the substance of such representation and 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 the following paragraphs of this Section 6 in respect of such Mortgage Loan. Upon discovery by either the Seller or the Purchaser of a breach of any of the foregoing representations and warranties made by the Seller that materially and adversely affects the value of the Mortgage Loans or the interest of the Purchaser (or which materially and adversely affects the interests of the Purchaser in the related Mortgage Loan in the case of a representation and warranty relating to a particular Mortgage Loan), the party discovering such breach shall give prompt written notice to the other. Within 90 days of the earlier of either discovery by or notice to the Seller of any breach of a representation or warranty made by the Seller that materially and adversely affects the value of a Mortgage Loan or the Mortgage Loans or the interest therein of the Purchaser, the Seller shall use its best efforts promptly to cure such breach in all material respects and, if such breach cannot be cured, the Seller shall, at the Purchaser’s option, repurchase such Mortgage Loan at the Purchase Price. The Seller may, at the request of the Purchaser and assuming the Seller has a Qualified Substitute Mortgage Loan, rather than repurchase a deficient Mortgage Loan as provided above, remove such Mortgage Loan and substitute in its place a Qualified Substitute Mortgage Loan or Loans. If the Seller does not provide a Qualified Substitute Mortgage Loan or Loans, it shall repurchase the deficient Mortgage Loan. Any repurchase of a Mortgage Loan(s) pursuant to the foregoing provisions of this Section 6 shall occur on a date designated by the Purchaser and shall be accomplished by deposit in accordance with Section 2.03 of the Pooling and Servicing Agreement. Any repurchase or substitution required by this Section shall be made in a manner consistent with Section 2.03 of the Pooling and Servicing Agreement. At the time of substitution or repurchase by the Seller of any deficient Mortgage Loan, the Purchaser and the Seller shall arrange for the reassignment of the repurchased or substituted Mortgage Loan to the Seller and the delivery to the Seller of any documents held by the Trustee relating to the deficient or repurchased Mortgage Loan. In the event the Purchase Price is deposited in the Collection Account. The Seller shall, simultaneously with such deposit, give written notice to the Purchaser that such deposit has taken place. Upon such repurchase, the Mortgage Loan Schedule shall be amended to reflect the withdrawal of the repurchased Mortgage Loan from this Agreement. As to any Deleted Mortgage Loan for which the Seller substitutes a Qualified Substitute Mortgage Loan or Loans, the Seller shall effect such substitution by delivering to the Purchaser or its designee for such Qualified Substitute Mortgage Loan or Loans the Mortgage Note, the Mortgage, the Assignment and such other documents and agreements as are required by the Pooling and Servicing Agreement, with the Mortgage Note endorsed as required therein. The Seller shall remit for deposit in the Collection Account the Monthly Payment due on such Qualified Substitute Mortgage Loan or Loans in the month following the date of such substitution. Monthly payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution will be retained by the Seller. For the month of substitution, distributions to the Purchaser will include the Monthly Payment due on such Deleted Mortgage Loan in the month of substitution, and the Seller shall thereafter be entitled to retain all amounts subsequently received by the Seller in respect of such Deleted Mortgage Loan. Upon such substitution, the Qualified Substitute Mortgage 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 Qualified Substitute Mortgage Loan or Loans as of the date of substitution, the covenants, representations and warranties set forth in Section 5. It is understood and agreed that the representations and warranties set forth in Section 5 shall survive delivery of the respective Mortgage Files to the Trustee on behalf of the Purchaser. It is understood and agreed that (i) the obligations of the Seller set forth in this Section 6 to cure, repurchase and substitute for a defective Mortgage Loan and (ii) the obligations of the Seller as provided in the next sentence constitute the sole remedies of the Purchaser respecting a missing or defective document or a breach of the representations and warranties contained in Section 5. The Seller shall indemnify the Purchaser and hold it harmless against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and other costs and expenses resulting from any claim, demand, defense or assertion based on or grounded upon, or resulting from, a breach of the representations and warranties contained in Sections 5(a), (c), (d) and (e) this Agreement.
