Appointment of Successors. If (i) the Registrar shall resign, shall be removed, shall be dissolved, or shall become otherwise incapable of acting hereunder, (ii) the Registrar shall be taken under the control of any public officer or officers, (iii) a receiver shall be appointed for the Registrar by a court, or (iv) the Registrar shall have an order for relief entered in any case commenced by or against it under the federal bankruptcy laws or commence a proceeding under any federal or state bankruptcy, insolvency, reorganization or similar law, or have such a proceeding commenced against it and either have an order of insolvency or reorganization entered against it or have the proceeding remain undismissed and unstayed for 90 days, then a successor Registrar shall be appointed by the Issuer, with the written consent of the Company and the Trustee; provided, that if a successor Registrar is not so appointed within ten days after (a) a notice of resignation or an instrument or document of removal is received by the Issuer, as provided above, or (b) the Registrar is dissolved, taken under control, becomes otherwise incapable of acting or a receiver is appointed, in each case, as provided above, then, if the Issuer shall not have appointed a successor Registrar, the Trustee or the Holders of a majority in aggregate principal amount of Bonds then Outstanding may designate a successor Registrar by an instrument or document or concurrent instruments or documents in writing signed by the Trustee, or in the case of the Holders, by or on behalf of those Holders. Every successor Registrar appointed hereunder shall execute and acknowledge, and shall deliver to its predecessor, the Issuer, the Trustee and the Company, an instrument or document accepting the appointment. Thereupon, without any further act, the successor shall become vested with all of the properties, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes of action, immunities, titles and interests of its predecessor. Upon the written request of its successor, the Issuer or the Company, a predecessor Registrar (i) shall execute and deliver an instrument or document transferring to its successor all of the properties, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes of action, immunities, titles and interests of it as predecessor Registrar hereunder, and (ii) shall take any other action necessary duly to assign, transfer and deliver to its successor all property and records (including without limitation, the Register and any cancelled Bonds) held by it as Registrar. Should any instrument or document from the Issuer be requested by any successor Registrar for vesting and conveying more fully and certainly in and to that successor the properties, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes of action, immunities, titles and interests vested or conveyed or intended to be vested or conveyed hereby in or to a predecessor Registrar, the Issuer shall execute, acknowledge and deliver that instrument or document.
Appears in 3 contracts
Samples: Trust Indenture (Hyco International, Inc.), Trust Indenture (Ocean Bio Chem Inc), Trust Indenture (Ocean Bio Chem Inc)
Appointment of Successors. If (i) the a Registrar shall resign, shall be removed, shall be dissolved, or shall become otherwise incapable of acting hereunder, (ii) the a Registrar shall be taken under the control of any public officer or officers, (iii) a receiver shall be appointed for the a Registrar by a court, or (iv) the a Registrar shall have an order for relief entered in any case commenced by or against it under the federal bankruptcy laws or commence a proceeding under any federal or state bankruptcy, insolvency, reorganization or similar law, or have such a proceeding commenced against it and either have an order of insolvency or reorganization entered against it or have the proceeding remain undismissed and unstayed for 90 ninety (90) days, then a successor Registrar shall be appointed by the Issuer, Executive of the Issuer with the written consent of the Company Bank, the Borrower and the Trustee; provided, that if a successor Registrar is is-not so appointed within ten (10) days after (a) a notice of resignation or an instrument or document of removal is received by the Issuer, as provided above, or (b) the Registrar is dissolved, taken under control, becomes otherwise incapable of acting or a receiver is appointed, in each case, as provided above, then, if the Executive of the Issuer shall not have appointed a successor Registrar, the Trustee or the Holders of at least a majority in aggregate principal amount of the Bonds then Outstanding outstanding for which it is Registrar may designate a successor Registrar by an instrument or document or concurrent instruments or documents in writing signed by the Trustee, or in the case of the Holders, by or on behalf of those Holders. Every successor Registrar appointed hereunder shall execute and acknowledge, acknowledge and shall deliver to its predecessor, the Issuer, the Trustee Bank, the Trustee, the Remarketing Agent, any Authenticating Agents, any Paying Agents and the CompanyBorrower, an instrument or document in writing accepting the appointment. Thereupon, without any further act, the successor shall become vested with all of the properties, remedies, powers, rights, duties, obligations, discretiondiscretions, privileges, claims, demands, causes of action, immunities, titles and interests of its predecessor. Upon the written request of its successor, the Issuer Issuer, the Bank or the CompanyBorrower, a predecessor Registrar (i) shall execute and deliver an instrument or document transferring to its successor all of the properties, remedies, powers, rights, duties, obligations, discretionprovisions, privileges, claims, demands, causes of action, immunities, titles and interests of it as predecessor Registrar hereunder, and (ii) shall take any other action necessary to duly to assign, transfer and deliver to its successor all property and records (including without limitation, the Register and any cancelled canceled Bonds) held by it as Registrar. Should any instrument or document in writing from the Issuer be requested by any successor Registrar for vesting and conveying more fully and certainly in and to that successor the properties, remedies, powers, rights, duties, obligations, discretiondiscretions, privileges, claims, demands, causes of action, immunities, titles and interests vested or conveyed or intended to be vested or conveyed hereby in or to a predecessor Registrar, the Issuer shall execute, acknowledge and deliver that instrument or document. The Borrower shall pay to any Registrar from time to time customary compensation as authorized in Section 6.03 hereof for its services. The provisions of Section 3.05 and Subsection 6.02(d) hereof shall be applicable to any Registrar.
Appears in 1 contract
Appointment of Successors. If (i) the Registrar shall resign, shall be removed, shall be dissolved, or shall become otherwise incapable of acting hereunder, (ii) the Registrar shall be taken under the control of any public officer or officers, (iii) a receiver shall be appointed for the Registrar by a court, or (iv) the Registrar shall have an order for relief entered in any case commenced by or against it under the federal bankruptcy laws or commence a proceeding under any federal or state bankruptcy, insolvency, reorganization or similar law, or have such a proceeding commenced against it and either have an order of insolvency or reorganization entered against it or have the proceeding remain undismissed and unstayed for 90 days, then a successor Registrar shall be appointed by the Issuer, with the written consent of the Company and the Trustee; provided, that if a successor Registrar is not so appointed within ten days after (a) a Upon the Servicer's receipt of notice of termination pursuant to Section 14.01 or the Servicer's resignation or an instrument or document in accordance with the terms of removal is received by the Issuer, as provided above, or (b) the Registrar is dissolved, taken under control, becomes otherwise incapable of acting or a receiver is appointed, in each case, as provided above, then, if the Issuer shall not have appointed a successor Registrarthis Agreement, the Trustee or the Holders of a majority in aggregate principal amount of Bonds then Outstanding may designate a successor Registrar by an instrument or document or concurrent instruments or documents in writing signed by the TrusteeServicer shall continue to perform its functions as Servicer under this Agreement, or in the case of termination, only until the Holdersdate specified in such termination notice (which date shall be at least 30 days after the date of such notice), or, if no such date is specified in a notice of termination, until receipt of such notice and, in the case of resignation, until the later of (x) the date thirty (30) days from the delivery to the Back-up Servicer, the Standby Servicer, the Indenture Trustee and the Insurer of written notice of such resignation (or the date of written confirmation of such notice prior to the expiration of the thirty (30) days) in accordance with the terms of this Agreement and (y) the date upon which the predecessor Servicer shall become unable to act as Servicer, as specified in the notice of resignation and accompanying Opinion of Counsel. In the event of the Servicer's resignation or termination hereunder, and unless the Controlling Party directs TRUST AND SERVICING AGREEMENT 86 otherwise, the Standby Servicer shall automatically be the successor Servicer under this Agreement and the transactions set forth or provided for herein and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Standby Servicer as Servicer by the terms and provisions hereof; provided, however, that neither the Standby Servicer, the Back-up Servicer nor any other successor Servicer shall be liable for any actions of the Servicer or any other predecessor Servicer prior to such succession or for any breach by the Servicer or any other predecessor Servicer of any of its representations, warranties or covenants contained in this Agreement or in any related document or agreement.
(b) Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties, and liabilities arising thereafter relating thereto placed on behalf the predecessor Servicer (subject to the modified duties of those Holders. Every successor Registrar appointed hereunder shall execute and acknowledgeSST set forth in Schedule C attached hereto), and shall deliver be entitled to its predecessor, the Issuer, the Trustee and the Company, an instrument Servicing Fee (or document accepting the appointment. Thereupon, without any further actwith respect to SST, the successor shall become vested with Servicer Fee set forth in Schedule C attached hereto) and all of the propertiesrights granted to the predecessor Servicer, remediesby the terms and provisions of this Agreement. The predecessor Servicer shall be entitled to be reimbursed for Outstanding Advances.
(c) In connection with such appointment, powersthe Indenture Trustee may make such arrangements for the successor Servicer out of payments on Receivables it and such successor Servicer shall agree; provided, rightshowever, duties, obligations, discretion, privileges, claims, demands, causes that no such compensation shall be in excess of that permitted the original Servicer under this Agreement. The Owner Trustee and such successor Servicer shall take such action, immunitiesconsistent with this Agreement, titles as shall be necessary to effectuate any such succession.
(d) To the extent that the Standby Servicer or the Back-up Servicer shall be entitled to any indemnity payment from the Servicer pursuant to Sections 13.02 or 14.03(i) and interests such indemnity payment has not been made within 30 calendar days of its predecessor. Upon the written request of its successordemand thereof, the Issuer Standby Servicer or the CompanyBack-up Servicer, a predecessor Registrar as applicable, shall be entitled to reimbursement for such unpaid amounts, to the extent of available funds, under priority (iii) or (i), respectively, of Section 8.05(a) shall execute and deliver an instrument or document transferring to its successor all of the propertiesIndenture.
(e) If the Standby Servicer becomes aware of any error or continuing error, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes which in the opinion of action, immunities, titles and interests of it as predecessor Registrar the Standby Servicer impairs its ability to perform its services hereunder, the Standby Servicer may undertake such data or records reconstruction as it deems appropriate to correct any such error or continued error and (ii) shall take any other action necessary duly to assign, transfer and deliver to its successor all property and records (including without limitationprevent future continuing error. To the extent it is not otherwise reimbursed under this Agreement, the Register and Standby Servicer shall be entitled to recover its costs incurred in correcting any cancelled Bonds) held by it as Registrar. Should any instrument such error or document from the Issuer be requested by any successor Registrar for vesting and conveying more fully and certainly in and to that successor the properties, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes of action, immunities, titles and interests vested or conveyed or intended to be vested or conveyed hereby in or to a predecessor Registrar, the Issuer shall execute, acknowledge and deliver that instrument or documentcontinuing error.
Appears in 1 contract
Samples: Trust and Servicing Agreement (Bay View Transaction Corp)
Appointment of Successors. If (i) the a Registrar shall resign, shall be removed, shall be dissolved, or shall become otherwise incapable of acting hereunder, (ii) the a Registrar shall be taken under the control of any public officer or officers, (iii) a receiver shall be appointed for the a Registrar by a court, court or (iv) the a Registrar shall have an order for relief entered in any case commenced by or against it under the federal bankruptcy laws or commence a proceeding under any federal or state bankruptcy, insolvency, reorganization or similar law, or have such a proceeding commenced against it and either have an order of insolvency or reorganization entered against it or have the proceeding remain undismissed and unstayed for 90 days, then a successor Registrar shall be appointed by the IssuerFiscal Officer, with the written consent of the Company and the Trustee; provideduntil a successor Registrar is appointed and accepts such appointment, the Trustee shall act as an interim Registrar, provided that if a successor Registrar is not so appointed within ten days after (a) a notice of resignation or an instrument or document of or removal is received by the IssuerUniversity, as provided above, above or (b) the Registrar is dissolved, taken under control, becomes otherwise incapable of acting or a receiver is appointed, appointed in each case, as provided above, then, if the Issuer University shall not have appointed a successor Registrar, the Trustee or the Holders of a majority in aggregate principal amount of Bonds Obligations then Outstanding may designate a successor Registrar by an instrument or document or concurrent instruments or documents in writing signed by the Trustee, or in the case of the Holders, by or on behalf of those Holders. Every successor Registrar appointed hereunder shall execute and acknowledge, and shall deliver to its predecessor, the Issuer, the Trustee University and the CompanyTrustee, an instrument or document in writing accepting the appointment. Thereupon, without any further act, the successor shall become vested with all of the properties, remedies, powers, rights, duties, obligations, discretiondiscretions, privileges, claims, demands, causes of action, immunities, titles and interests of its predecessor. Upon the written request of its successorsuccessor and payment of all fees and expenses owed to it, the Issuer University or the CompanyTrustee, a predecessor Registrar (i) shall execute and deliver an instrument or document transferring to its successor all of the properties, remedies, powers, rights, duties, obligations, discretiondiscretions, privileges, claims, demands, causes of action, immunities, titles and interests of it as predecessor Registrar hereunder, hereunder and (ii) shall take any other action necessary to duly to assign, transfer and deliver to its successor all property and records (including without limitation, limitation the Register and any cancelled Bondscanceled Obligation) held by it as Registrar. Should any instrument or document in writing from the Issuer University be requested by any successor Registrar for vesting and conveying more fully and certainly in and to that successor the properties, remedies, powers, rights, duties, obligations, discretiondiscretions, privileges, claims, demands, causes of action, immunities, titles and interests interest vested or conveyed or intended to be vested or conveyed hereby in or to a predecessor Registrar, ; the Issuer University shall execute, acknowledge and deliver that instrument or document.
Appears in 1 contract
Samples: Trust Agreement
Appointment of Successors. If (i) the Registrar shall resign, shall be removed, shall be dissolved, or shall become otherwise incapable of acting hereunder, (ii) the Registrar shall be taken under the control of any public officer or officers, (iii) a receiver shall be appointed for the Registrar by a court, or (iv) the Registrar shall have an order for relief entered in any case commenced by or against it under the federal bankruptcy laws or commence a proceeding under any federal or state bankruptcy, insolvency, reorganization or similar law, or have such a proceeding commenced against it and either have an order of insolvency or reorganization entered against it or have the proceeding remain undismissed and unstayed for 90 days, then a successor Registrar shall be appointed by the Issuer, with the written consent of the Company and the Trustee; provided, that if a successor Registrar is not so appointed within ten days after (a) a Upon the Servicer's receipt of notice of its termination from the Indenture Trustee pursuant to Section 14.01 hereof or the Servicer's resignation or an instrument or document in accordance with the terms of removal is received by the Issuer, as provided above, or (b) the Registrar is dissolved, taken under control, becomes otherwise incapable of acting or a receiver is appointed, in each case, as provided above, then, if the Issuer shall not have appointed a successor Registrarthis Agreement, the Trustee or the Holders of a majority in aggregate principal amount of Bonds then Outstanding may designate a successor Registrar by an instrument or document or concurrent instruments or documents in writing signed by the TrusteeServicer shall continue to perform its functions as Servicer under this Agreement, or in the case of termination, only until the Holdersdate specified in such termination notice (which date shall be at least 45 days after the date of such notice), or, if no such date is specified in a notice of termination, until the expiration of 45 days after receipt of such notice by the Servicer and, in the case of resignation, until the later of (x) the date forty-five (45) days from the delivery to the Back-up Servicer and the Indenture Trustee of written notice of such resignation (or the date of written confirmation of such notice prior to the expiration of the forty-five (45) days) in accordance with the terms of this Agreement and (y) the date upon which the predecessor Servicer shall become unable to act as Servicer, as specified in the notice of resignation and accompanying Opinion of Counsel. In the event of the Servicer's resignation or termination hereunder, and unless the Majority Controlling Noteholders directs otherwise, the Back-up Servicer shall, subject to the provisions of Section 14.01, automatically be the successor Servicer under this Agreement and the transactions set forth or provided for herein and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on behalf the Back-up Servicer as Servicer by the terms and provisions hereof; provided, however, that neither the Back-up Servicer, nor any other successor Servicer shall be liable for any actions of those Holders. Every the Servicer or any other predecessor Servicer prior to such succession or for any breach by the Servicer or any other predecessor Servicer of any of its representations, warranties or covenants contained in this Agreement or in any related document or agreement.
(b) Upon appointment, subject to the provisions of Section 14.01, the successor Registrar appointed hereunder Servicer shall execute be the successor in all respects to the predecessor Servicer and acknowledgeshall be subject to all the responsibilities, duties, and liabilities arising thereafter relating thereto placed on the Servicer, and shall deliver be entitled to the Servicer Fee and all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, notwithstanding any other provision of this Agreement or any other Basic Document, such responsibilities, duties and liabilities shall be amended as provided in Schedule E hereto. The predecessor Servicer shall be entitled to be reimbursed for Outstanding Advances.
(c) In connection with such appointment, the Indenture Trustee may make such arrangements for the successor Servicer to be compensated out of payments on Receivables as it and such successor Servicer shall agree; provided, however, that (except as provided in Schedule C with respect to the Back-up Servicer) no such compensation shall be in excess of that permitted the original Servicer under this Agreement. The Owner Trustee and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession.
(d) To the extent that the Back-up Servicer shall be entitled to any indemnity payment from the Servicer pursuant to Sections 13.02 or 14.03(i) hereof and such indemnity payment has not been made within 30 calendar days of demand thereof, the Back-up Servicer shall be entitled to reimbursement for such unpaid amounts, to the extent of available funds, as provided in Section 8.05 of the Indenture.
(e) If the Back-up Servicer becomes aware of any error or continuing error, which in the reasonable business judgment of the Back-up Servicer impairs its predecessorability to perform its services hereunder, the Back-up Servicer may undertake such data or records reconstruction as it deems appropriate to correct any such error or continued error and to prevent future continuing error. To the extent it is not otherwise reimbursed under this Agreement, the Back-up Servicer shall be entitled to recover its costs incurred in correcting any such error or continuing error.
(f) Upon the Back-up Servicer's receipt of notice of termination following a Back-up Servicer Default or the Back-up Servicer's resignation in accordance with the terms of this Agreement, the Back-up Servicer shall continue to perform its functions as Back-up Servicer or Servicer, as applicable, under this Agreement, in the case of termination, only until the date specified in such termination notice or, if no such date is specified in a notice of termination, until receipt of such notice and, in the case of resignation, until the later of (x) the date 30 days from the delivery to the Back-up Servicer, the Indenture Trustee and the Owner Trustee of written notice of such resignation (or the date of written confirmation of such notice prior to the expiration of the 30 days) in accordance with the terms of this Agreement and (y) the date upon which the Back-up Servicer shall become unable to act as Back-up Servicer or Servicer, as applicable, as specified in the notice of resignation and accompanying Opinion of Counsel.
(g) Upon receipt by any successor Servicer (other than the Back-up Servicer in accordance with Section 14.03(f) above) of notice of termination or such successor Servicer's resignation in accordance with the terms of this Agreement, such successor Servicer shall continue to perform its functions as Servicer under this Agreement, in the case of termination, only until the date specified in such termination notice or, if no such date is specified in a notice of termination, until receipt of such notice and, in the case of resignation, until the later of (x) the date 30 days from the delivery to the then acting Back-up Servicer, if any, and the Indenture Trustee of written notice of such resignation (or the date of written confirmation of such notice prior to the expiration of the 30 days) in accordance with the terms of this Agreement and (y) the date upon which such successor Servicer shall become unable to act as Servicer, as specified in the notice of resignation and accompanying Opinion of Counsel. In the event of such successor Servicer's resignation or termination hereunder, and if the Majority Controlling Noteholders so directs, the then acting Back-up Servicer, if any, shall be the successor in all respects to the Servicer under this Agreement and the transactions set forth or provided for herein and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof; provided, however, that the then acting Back-up Servicer shall not be liable for any actions of the predecessor Servicer prior to such succession or for any breach by the predecessor Servicer of any of its representations, warranties and covenants contained in this Agreement or in any related document or agreement.
(h) Notwithstanding the above, if the Servicer or Back-up Servicer, as applicable, is legally unable to so act or the Majority Controlling Noteholders otherwise directs in accordance with the terms of this Agreement, the Majority Controlling Noteholders shall appoint a successor Servicer or successor Back-up Servicer, as applicable. Otherwise, the Indenture Trustee shall appoint (after soliciting bids from potential servicers), or petition a court of competent jurisdiction to appoint, a Servicer (as successor Servicer) or Back-up Servicer (as successor Back-up Servicer) hereunder, in each case acceptable to the Majority Controlling Noteholders, in the assumption of all or any part of the responsibilities, duties or liabilities of the outgoing Servicer or Back-up Servicer, as applicable, hereunder.
(i) Any successor Servicer may accept and reasonably rely on all accounting and servicing records and other documentation provided to such successor Servicer in connection with succession to Servicer duties, including documents prepared or maintained by BVAC, the Transferor, or the Servicer, or any party providing services related to the Receivables (each, a "Third Party"). The initial Servicer shall indemnify and hold harmless CenterOne, in its capacity as Back-up Servicer or successor Servicer, as applicable, and its officers, employees and agents, the Issuer, the Trustee Indenture Trustee, the Noteholders, the Residual Interest Holders and the CompanyCertificateholders against any and all claims, an instrument losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, fees and expenses that CenterOne, in its capacity as Back-up Servicer or document accepting the appointment. Thereupon, without any further actsuccessor Servicer as applicable, the successor shall become vested with all of the properties, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes of action, immunities, titles and interests of its predecessor. Upon the written request of its successorIssuer, the Issuer or Indenture Trustee, the CompanyNoteholders, a predecessor Registrar the Residual Interest Holders and the Certificateholders may sustain in any way (i) shall execute and deliver an instrument solely related to the negligence or document transferring to its successor all willful misconduct of the properties, remedies, powers, rights, duties, obligations, discretion, privileges, Servicer or any such Third Party based upon any matter related to or arising out of this Agreement except for any claims, demandslosses, causes of actionpenalties, immunitiesfines, titles and interests of it as predecessor Registrar hereunderforfeitures, legal fees, and related costs and judgments arising from the gross negligence of or willful misconduct of CenterOne in its capacity as Back-up Servicer or successor Servicer, as applicable; or (ii) solely related to the conduct of CenterOne in its capacity as Back-up Servicer or successor Servicer, as applicable, undertaken at the direction of any party hereto or which relate to the transfer of servicing to CenterOne. The successor Servicer shall take have no duty, responsibility, obligation or liability (collectively "liability") for the acts or omissions of any Third Party. In the event that the initial Servicer fails to make any such indemnity payment to CenterOne pursuant to the terms hereof, and, with respect to each other action necessary duly successor Servicer hereunder, such successor Servicer shall be entitled to assign, transfer and deliver to its successor all property and records (including without limitation, the Register and any cancelled Bonds) held by it as Registrar. Should any instrument or document receive such payment from the Issuer, to the extent of Available Funds on each Payment Date, as provided in Section 8.05 of the Indenture; provided, that such Issuer be requested by any payment shall not relieve the initial Servicer from the responsibility for making such payment to CenterOne in its capacity as Back-up Servicer or successor Registrar for vesting Servicer and conveying more fully and certainly in and to that successor the properties, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes of action, immunities, titles and interests vested or conveyed or intended to be vested or conveyed hereby in or to a predecessor Registrar, the Issuer shall executebe subrogated to the rights of CenterOne with respect to such indemnity claim and shall have a direct right to institute proceedings against the initial Servicer for such payment. If any error, acknowledge inaccuracy or omission (collectively "error") exists in any information provided to CenterOne in its capacity as successor Servicer, and deliver such error causes or materially contributes to such successor Servicer making or continuing any error (a "continuing error"), such successor Servicer shall have no liability for such continuing error; provided, however, that instrument this provision shall not protect such successor Servicer against any liability arising from its willful misconduct bad faith or documentgross negligence in discovering or correcting or failing to discover or correct any error or in the performance of its other duties contemplated herein.
(j) Notwithstanding anything in the Basic Documents to the contrary, in no event shall the Indenture Trustee (i) be liable for, or obligated to pay, any Transition Costs or (ii) have any duty or obligation to act as successor Servicer, to act as successor Back-up Servicer or assume any servicing duties under the Basic Documents.
Appears in 1 contract
Samples: Trust and Servicing Agreement (Bay View Deposit CORP)
Appointment of Successors. If (i) the Registrar shall resign, shall be removed, shall be dissolved, or shall become otherwise incapable of acting hereunder, (ii) the Registrar shall be taken under the control of any public officer or officers, (iii) a receiver shall be appointed for the Registrar by a court, or (iv) the Registrar shall have an order for relief entered in any case commenced by or against it under the federal bankruptcy laws or commence a proceeding under any federal or state bankruptcy, insolvency, reorganization or similar law, or have such a proceeding commenced against it and either have an order of insolvency or reorganization entered against it or have the proceeding remain undismissed and unstayed for 90 days, then a successor Registrar shall be appointed by the Issuer, with the written consent of the Company and the Trustee; provided, that if a successor Registrar is not so appointed within ten days after (a) a Upon the Servicer’s receipt of notice of its termination from the Indenture Trustee pursuant to Section 14.01 hereof or the Servicer’s resignation or an instrument or document in accordance with the terms of removal is received by the Issuer, as provided above, or (b) the Registrar is dissolved, taken under control, becomes otherwise incapable of acting or a receiver is appointed, in each case, as provided above, then, if the Issuer shall not have appointed a successor Registrarthis Agreement, the Trustee or the Holders of a majority in aggregate principal amount of Bonds then Outstanding may designate a successor Registrar by an instrument or document or concurrent instruments or documents in writing signed by the TrusteeServicer shall continue to perform its functions as Servicer under this Agreement, or in the case of termination, only until the Holdersdate specified in such termination notice (which date shall be at least 45 days after the date of such notice), or, if no such date is specified in a notice of termination, until the expiration of 45 days after receipt of such notice by the Servicer and, in the case of resignation, until the later of (x) the date forty-five (45) days from the delivery to the Back-up Servicer, the Indenture Trustee and the Insurer of written notice of such resignation (or the date of written confirmation of such notice prior to the expiration of the forty-five (45) days) in accordance with the terms of this Agreement and (y) the date upon which the predecessor Servicer shall become unable to act as Servicer, as specified in the notice of resignation and accompanying Opinion of Counsel. In the event of the Servicer’s resignation or termination hereunder, and unless the Controlling Party directs otherwise, the Back-up Servicer shall, subject to the provisions of Section 14.01, automatically be the successor Servicer under this Agreement and the transactions set forth or provided for herein and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on behalf the Back-up Servicer as Servicer by the terms and provisions hereof; provided, however, that neither the Back-up Servicer, nor any other successor Servicer shall be liable for any actions of those Holders. Every the Servicer or any other predecessor Servicer prior to such succession or for any breach by the Servicer or any other predecessor Servicer of any of its representations, warranties or covenants contained in this Agreement or in any related document or agreement.
(b) Upon appointment, subject to the provisions of Section 14.01, the successor Registrar appointed hereunder Servicer shall execute be the successor in all respects to the predecessor Servicer and acknowledgeshall be subject to all the responsibilities, duties, and liabilities arising thereafter relating thereto placed on the Servicer, and shall deliver be entitled to its predecessor, the Issuer, the Trustee Servicer Fee and the Company, an instrument or document accepting the appointment. Thereupon, without any further act, the successor shall become vested with all of the propertiesrights granted to the predecessor Servicer, remediesby the terms and provisions of this Agreement; provided, powershowever, rightsnotwithstanding any other provision of this Agreement or any other Basic Document, dutiessuch responsibilities, obligationsduties and liabilities shall be amended as provided in Schedule E hereto. The predecessor Servicer shall be entitled to be reimbursed for Outstanding Advances.
(c) In connection with such appointment, discretionthe Indenture Trustee may make such arrangements for the successor Servicer to be compensated out of payments on Receivables as it and such successor Servicer shall agree; provided, privilegeshowever, claims, demands, causes that (except as provided in Schedule C with respect to the Back-up Servicer) no such compensation shall be in excess of that permitted the original Servicer under this Agreement. The Owner Trustee and such successor Servicer shall take such action, immunitiesconsistent with this Agreement, titles as shall be necessary to effectuate any such succession.
(d) To the extent that the Back-up Servicer shall be entitled to any indemnity payment from the Servicer pursuant to Sections 13.02 or 14.03(i) hereof and interests such indemnity payment has not been made within 30 calendar days of its predecessor. Upon the written request of its successordemand thereof, the Issuer or Back-up Servicer shall be entitled to reimbursement for such unpaid amounts, to the Companyextent of available funds, a predecessor Registrar (i) shall execute and deliver an instrument or document transferring to its successor all as provided in Section 8.05 of the propertiesIndenture.
(e) If the Back-up Servicer becomes aware of any error or continuing error, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes which in the reasonable business judgment of action, immunities, titles and interests of it as predecessor Registrar the Back-up Servicer impairs its ability to perform its services hereunder, the Back-up Servicer may undertake such data or records reconstruction as it deems appropriate to correct any such error or continued error and (ii) shall take any other action necessary duly to assign, transfer and deliver to its successor all property and records (including without limitationprevent future continuing error. To the extent it is not otherwise reimbursed under this Agreement, the Register and Back-up Servicer shall be entitled to recover its costs incurred in correcting any cancelled Bonds) held by it as Registrar. Should any instrument such error or document from the Issuer be requested by any successor Registrar for vesting and conveying more fully and certainly in and to that successor the properties, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes of action, immunities, titles and interests vested or conveyed or intended to be vested or conveyed hereby in or to a predecessor Registrar, the Issuer shall execute, acknowledge and deliver that instrument or documentcontinuing error.
Appears in 1 contract
Samples: Trust and Servicing Agreement (Bay View Deposit CORP)
Appointment of Successors. If (i) the Registrar shall resign, shall be removed, shall be dissolved, or shall become otherwise incapable of acting hereunder, (ii) the Registrar shall be taken under the control of any public officer or officers, (iii) a receiver shall be appointed for the Registrar by a court, or (iv) the Registrar shall have an order for relief entered in any case commenced by or against it under the federal bankruptcy laws or commence a proceeding under any federal or state bankruptcy, insolvency, reorganization or similar law, or have such a proceeding commenced against it and either have an order of insolvency or reorganization entered against it or have the proceeding remain undismissed and unstayed for 90 days, then a successor Registrar shall be appointed by the Issuer, with the written consent of the Company and the Trustee; provided, that if a successor Registrar is not so appointed within ten days after (a) a Upon the Servicer's receipt of notice of its termination from the Indenture Trustee pursuant to Section 14.01 hereof or the Servicer's resignation or an instrument or document in accordance with the terms of removal is received by the Issuer, as provided above, or (b) the Registrar is dissolved, taken under control, becomes otherwise incapable of acting or a receiver is appointed, in each case, as provided above, then, if the Issuer shall not have appointed a successor Registrarthis Agreement, the Trustee or the Holders of a majority in aggregate principal amount of Bonds then Outstanding may designate a successor Registrar by an instrument or document or concurrent instruments or documents in writing signed by the TrusteeServicer shall continue to perform its functions as Servicer under this Agreement, or in the case of termination, only until the Holdersdate specified in such termination notice (which date shall be at least 45 days after the date of such notice), or, if no such date is specified in a notice of termination, until the expiration of 45 days after receipt of such notice by the Servicer and, in the case of resignation, until the later of (x) the date forty-five (45) days from the delivery to the Back-up Servicer and the Indenture Trustee of written notice of such resignation (or the date of written confirmation of such notice prior to the expiration of the forty-five (45) days) in accordance with the terms of this Agreement and (y) the date upon which the predecessor Servicer shall become unable to act as Servicer, as specified in the notice of resignation and accompanying Opinion of Counsel. In the event of the Servicer's resignation or termination hereunder, and unless the Majority Controlling Noteholders directs otherwise, the Back-up Servicer shall, subject to the provisions of Section 14.01, automatically be the successor Servicer under this Agreement and the transactions set forth or provided for herein and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on behalf the Back-up Servicer as Servicer by the terms and provisions hereof; provided, however, that neither the Back-up Servicer, nor any other successor Servicer shall be liable for any actions of those Holders. Every the Servicer or any other predecessor Servicer prior to such succession or for any breach by the Servicer or any other predecessor Servicer of any of its representations, warranties or covenants contained in this Agreement or in any related document or agreement.
(b) Upon appointment, subject to the provisions of Section 14.01, the successor Registrar appointed hereunder Servicer shall execute be the successor in all respects to the predecessor Servicer and acknowledgeshall be subject to all the responsibilities, duties, and liabilities arising thereafter relating thereto placed on the Servicer, and shall deliver be entitled to its predecessorthe Servicer Fee and all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement; provided, however, notwithstanding any other provision of this Agreement or any other Basic Document, such responsibilities, duties and liabilities shall be amended as provided in Schedule E hereto. The predecessor Servicer shall be entitled to be reimbursed for Outstanding Advances.
(c) In connection with such appointment, the IssuerIndenture Trustee may make such arrangements for the successor Servicer to be compensated out of payments on Receivables as it and such successor Servicer shall agree; provided, however, that (except as provided in Schedule C with respect to the Back-up Servicer) no such compensation shall be in excess of that permitted the original Servicer under this Agreement. The Owner Trustee and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession.
(d) To the extent that the Back-up Servicer shall be entitled to any indemnity payment from the Servicer pursuant to Sections 13.02 or 14.03(i) hereof and such indemnity payment has not been made within 30 calendar days of demand thereof, the Back-up Servicer shall be entitled to reimbursement for such unpaid amounts, to the extent of available funds, as provided in Section 8.05 of the Indenture.
(e) If the Back-up Servicer becomes aware of any error or continuing error, which in the reasonable business judgment of the Back-up Servicer impairs its ability to perform its services hereunder, the Back-up Servicer may undertake such data or records reconstruction as it deems appropriate to correct any such error or continued error and to prevent future continuing error. To the extent it is not otherwise reimbursed under this Agreement, the Back-up Servicer shall be entitled to recover its costs incurred in correcting any such error or continuing error.
(f) Upon the Back-up Servicer's receipt of notice of termination following a Back-up Servicer Default or the Back-up Servicer's resignation in accordance with the terms of this Agreement, the Back-up Servicer shall continue to perform its functions as Back-up Servicer or Servicer, as applicable, under this Agreement, in the case of termination, only until the date specified in such termination notice or, if no such date is specified in a notice of termination, until receipt of such notice and, in the case of resignation, until the later of (x) the date 30 days from the delivery to the Back-up Servicer, the Indenture Trustee and the Company, an instrument Owner Trustee of written notice of such resignation (or document accepting the appointment. Thereupon, without any further act, date of written confirmation of such notice prior to the successor expiration of the 30 days) in accordance with the terms of this Agreement and (y) the date upon which the Back-up Servicer shall become vested with all unable to act as Back-up Servicer or Servicer, as applicable, as specified in the notice of the properties, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes resignation and accompanying Opinion of action, immunities, titles and interests of its predecessor. Counsel.
(g) Upon the written request of its successor, the Issuer or the Company, a predecessor Registrar (i) shall execute and deliver an instrument or document transferring to its successor all of the properties, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes of action, immunities, titles and interests of it as predecessor Registrar hereunder, and (ii) shall take any other action necessary duly to assign, transfer and deliver to its successor all property and records (including without limitation, the Register and any cancelled Bonds) held by it as Registrar. Should any instrument or document from the Issuer be requested receipt by any successor Registrar for vesting Servicer (other than the Back-up Servicer in accordance with Section 14.03(f) above) of notice of termination or such successor Servicer's resignation in accordance with the terms of this Agreement, such successor Servicer shall continue to perform its functions as Servicer under this Agreement, in the case of termination, only until the date specified in such termination notice or, if no such date is specified in a notice of termination, until receipt of such notice and, in the case of resignation, until the later of (x) the date 30 days from the delivery to the then acting Back-up Servicer, if any, and conveying more fully the Indenture Trustee of written notice of such resignation (or the date of written confirmation of such notice prior to the expiration of the 30 days) in accordance with the terms of this Agreement and certainly (y) the date upon which such successor Servicer shall become unable to act as Servicer, as specified in and to that successor the properties, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes of action, immunities, titles and interests vested or conveyed or intended to be vested or conveyed hereby in or to a predecessor Registrar, the Issuer shall execute, acknowledge and deliver that instrument or document.notice of
Appears in 1 contract
Samples: Trust and Servicing Agreement (Bay View Deposit CORP)
Appointment of Successors. If (i) the Registrar shall resign, shall be removed, shall be dissolved, or shall become otherwise incapable of acting hereunder, (ii) the Registrar shall be taken under the control of any public officer or officers, (iii) a receiver shall be appointed for the Registrar by a court, or (iv) the Registrar shall have an order for relief entered in any case commenced by or against it under the federal bankruptcy laws or commence a proceeding under any federal or state bankruptcy, insolvency, reorganization or similar law, or have such a proceeding commenced against it and either have an order of insolvency or reorganization entered against it or have the proceeding remain undismissed and unstayed for 90 days, then a successor Registrar shall be appointed by the Issuer, with the written consent of the Company and the Trustee; provided, that if a successor Registrar is not so appointed within ten days after (a) a Upon the Subservicer's receipt of notice of termination pursuant to Section 8.01 or the Subservicer's resignation or an instrument or document in accordance with the terms of removal is received by the Issuer, as provided above, or (b) the Registrar is dissolved, taken under control, becomes otherwise incapable of acting or a receiver is appointed, in each case, as provided above, then, if the Issuer shall not have appointed a successor Registrarthis Agreement, the Trustee or the Holders of a majority in aggregate principal amount of Bonds then Outstanding may designate a successor Registrar by an instrument or document or concurrent instruments or documents in writing signed by the TrusteeSubservicer shall continue to perform its functions as Servicer under this Agreement, or in the case of termination, only until the Holdersdate specified in such termination notice or, if no such date is specified in a notice of termination, until receipt of such notice and, in the case of resignation, until the later of (x) the date thirty (30) days from the delivery to the Master Servicer, as successor Servicer, and the Trust Collateral Agent, the Indenture Trustee and the Note Insurer of written notice of such resignation (or the date of written confirmation of such notice prior to the expiration of the thirty (30) days) in accordance with the terms of this Agreement and (y) the date upon which the Subservicer shall become unable to act as Servicer, as specified in the notice of resignation and accompanying Opinion of Counsel. In the event of the Subservicer's 100 resignation or termination hereunder, and unless the Controlling Party directs otherwise, the Master Servicer shall automatically be the successor Servicer under this Agreement and the transactions set forth or provided for herein and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Master Servicer as Servicer by the terms and provisions hereof; provided, however, that neither the Master Servicer nor any other successor Servicer shall be liable for any actions of the Subservicer or any other predecessor Servicer prior to such succession or for any breach by the Subservicer or any other predecessor Servicer of any of its representations, warranties or covenants contained in this Agreement or in any related document or agreement.
(b) To the extent that __________ shall be entitled to any indemnity payment from the Subservicer pursuant to Sections 7.03(a)(iii), 8.03(a) or 8.03(i) and such indemnity payment has not been made within 30 calendar days of demand thereof, __________ shall be entitled to reimbursement for such unpaid amounts, to the extent of available funds, under priority (_____) of Section 5.12(a) hereof.
(c) If the Master Servicer becomes aware of any error or continuing error which in the opinion of the Master Servicer impairs its ability to perform its services hereunder, the Master Servicer may undertake such data or records reconstruction as it deems appropriate to correct any such error or continued error and to prevent future continuing error. To the extent it is not otherwise reimbursed under this Agreement, the Master Servicer shall be entitled to recover its costs incurred in correcting any such error or continuing error.
(d) Upon the Master Servicer's receipt of notice of termination following a Master Servicer Default or the Master Servicer's resignation in accordance with the terms of this Agreement, the Master Servicer shall continue to perform its functions as Master Servicer or Servicer, as applicable, under this Agreement, in the case of termination, only until the date specified in such termination notice or, if no such date is specified in a notice of termination, until receipt of such notice and, in the case of resignation, until the later of (x) the date 30 days from the delivery to the Back-up Servicer, the Trust Collateral Agent, the Indenture Trustee and the Note Insurer of written notice of such resignation (or the date of written confirmation of such notice prior to the expiration of the 30 days) in accordance with the terms of this Agreement and (y) the date upon which the Master Servicer shall become unable to act as Servicer, as specified in the notice of resignation and accompanying Opinion of Counsel. In the event of the Master Servicer's resignation or termination hereunder, and if the Controlling Party so directs, the Back-up Servicer shall be the successor in all respects to the Master Servicer in its capacity as Master Servicer and, if applicable, Servicer under this Agreement and the transactions set forth or provided for herein and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on behalf the Master Servicer and, if applicable, the Servicer by the terms and provisions hereof; provided, however, that the Back-up Servicer shall not be liable for any actions of those Holdersthe Master Servicer prior to such succession or for any breach by the Master Servicer of any of its representations, warranties and covenants contained in this Agreement or in any related document or agreement.
(e) Upon receipt by any successor Servicer (other than the Master Servicer in accordance with Section 8.03(d) above) of notice of termination or such successor Servicer's resignation in accordance with the terms of this Agreement, such successor Servicer shall 101 continue to perform its functions as Servicer under this Agreement, in the case of termination, only until the date specified in such termination notice or, if no such date is specified in a notice of termination, until receipt of such notice and, in the case of resignation, until the later of (x) the date 30 days from the delivery to the Back-up Servicer, if any, the Trust Collateral Agent, the Indenture Trustee and the Note Insurer of written notice of such resignation (or the date of written confirmation of such notice prior to the expiration of the 30 days) in accordance with the terms of this Agreement and (y) the date upon which such successor Servicer shall become unable to act as Servicer, as specified in the notice of resignation and accompanying Opinion of Counsel. Every In the event of such successor Registrar Servicer's resignation or termination hereunder, and if the Controlling Party so directs, the Back-up Servicer, if any, shall be the successor in all respects to the Servicer under this Agreement and the transactions set forth or provided for herein and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof; provided, however, that the Back-up Servicer shall not be liable for any actions of the predecessor Servicer prior to such succession or for any breach by the predecessor Servicer of any of its representations, warranties and covenants contained in this Agreement or in any related document or agreement.
(f) Notwithstanding the above, if the Back-up Servicer is legally unable to so act or the Controlling Party otherwise directs in accordance with Section 4.03(d), the Controlling Party shall appoint a successor Servicer, successor Master Servicer or successor Back-up Servicer. Otherwise, the Trust Collateral Agent shall appoint (after soliciting bids from potential servicers), or petition a court of competent jurisdiction to appoint, a Servicer (as successor Servicer), Master Servicer (as successor Master Servicer) or Back-up Servicer (as successor Back-up Servicer) hereunder, in each case acceptable to the Controlling Party, in the assumption of all or any part of the responsibilities, duties or liabilities of the outgoing Servicer, Master Servicer or Back-up Servicer, as applicable, hereunder. The outgoing Servicer, Master Servicer or Back-up Servicer shall continue to act as such hereunder until a successor acceptable to the Controlling Party is appointed hereunder and assumes the obligations as successor Servicer, Master Servicer or Back-up Servicer, as applicable.
(g) Upon appointment, the successor Servicer, Master Servicer or Back-up Servicer, as applicable, shall execute and acknowledgebe the successor in all respects to the predecessor Servicer, Master Servicer or Back-up Servicer, as applicable, and shall deliver be subject to all the responsibilities, duties, and liabilities arising thereafter relating thereto placed on the predecessor Servicer, Master Servicer or Back-up Servicer, as applicable, and shall be entitled to compensation in accordance with Section 8.03(h) and Section 4.11, and all of the rights granted to the predecessor Servicer, Master Servicer or Back-up Servicer, as applicable, by the terms and provisions of this Agreement, provided that successor Servicer, Master Servicer or Back-up Servicer, as applicable, shall not be liable for the acts or omissions of any predecessor.
(h) If __________ is the successor Servicer, __________ shall be entitled to the Successor Servicer Fee as compensation. If __________ is the successor Servicer, it shall be entitled to the Successor Servicer Fee as compensation. In all other cases, in connection with such appointment, the Trust Collateral Agent may make such arrangements for the compensation of such successor Servicer out of payments on Receivables as it, the Controlling Party and such successor Servicer shall agree. The Trust Collateral Agent and any such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession.
(i) Any successor Servicer may accept and reasonably rely on all accounting and servicing records and other documentation provided to such successor Servicer in connection with succession to Servicer duties, including documents prepared or maintained by the Originator, the Transferor, or the Subservicer, or any party providing services related to the Receivables (each, a "Third Party"). The Subservicer shall indemnify and hold harmless the successor Servicer and its predecessorofficers, employees and agents, the Issuer, the Trustee Noteholders and the CompanyNote Insurer against any and all claims, an instrument or document accepting losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, fees and expenses that the appointment. Thereupon, without any further actsuccessor Servicer, the successor shall become vested with all of the properties, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes of action, immunities, titles and interests of its predecessor. Upon the written request of its successorIssuer, the Issuer or Noteholders and the Company, a predecessor Registrar Note Insurer may sustain in any way (i) shall execute and deliver an instrument solely related to the negligence or document transferring to its successor all misconduct of the properties, remedies, powers, rights, duties, obligations, discretion, privileges, Subservicer or any such Third Party based upon any matter related to or arising out of this Agreement except for any claims, demandslosses, causes of actionpenalties, immunitiesfines, titles and interests of it as predecessor Registrar hereunderforfeitures, legal fees, and related costs and judgments arising from such successor Servicer's own negligence or willful misconduct; or (ii) solely related to the conduct of such successor Servicer undertaken at the direction of any party hereto or which relate to the transfer of servicing to the successor Servicer. The successor Servicer shall take have no duty, responsibility, obligation or liability (collectively "liability") for the acts or omissions of any other action necessary duly to assignThird Party. If any error, transfer and deliver to its successor all property and records inaccuracy or omission (including without limitation, the Register and collectively "error") exists in any cancelled Bonds) held by it as Registrar. Should any instrument or document from the Issuer be requested by any successor Registrar for vesting and conveying more fully and certainly in and to that successor the properties, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes of action, immunities, titles and interests vested or conveyed or intended to be vested or conveyed hereby in or information provided to a predecessor Registrarsuccessor Servicer and such error causes or materially contributes to such successor Servicer making or continuing any error (a "continuing error"), such successor Servicer shall have no liability for such continuing error; provided, however, that this provision shall not protect such successor Servicer against any liability arising from its willful misconduct, bad faith or gross negligence in discovering or correcting or failing to discover or correct any error or in the Issuer shall execute, acknowledge and deliver that instrument or documentperformance of its other duties contemplated herein.
Appears in 1 contract
Samples: Sale and Servicing Agreement (United Fidelity Finance LLC)
Appointment of Successors. If (i) the a Registrar shall resign, shall be removed, shall be dissolved, or shall become otherwise incapable of acting hereunder, (ii) the a Registrar shall be taken under the control of any public officer or officers, (iii) a receiver shall be appointed for the a Registrar by a court, or (iv) the a Registrar shall have an order for relief entered in any case commenced by or against it under the federal bankruptcy laws or commence a proceeding under any federal or state bankruptcy, insolvency, reorganization or similar law, or have such a proceeding commenced against it and either have an order of insolvency or reorganization entered against it or have the proceeding remain undismissed and unstayed for 90 days, then a successor Registrar shall be appointed by the Issueran Authorized Officer, with the written consent of the Company and the Trustee; provided, provided that if a successor Registrar is not so appointed within ten days after (a) a notice of resignation or an instrument or document of removal is received by the IssuerState, as provided above, or (b) the Registrar is dissolved, taken under control, becomes otherwise incapable of acting or acting, a receiver is appointedappointed or any of the circumstances described in clause (iv) occur, in each case, as provided above, then, if the Issuer an Authorized Officer shall not have appointed a successor Registrar, the Trustee or the Holders of a majority in aggregate principal amount of Bonds then Outstanding outstanding may designate a successor Registrar by an instrument or document or concurrent instruments or documents in writing signed by the Trustee, or in the case of the Holders, by or on behalf of those Holders. Every successor Registrar appointed hereunder shall execute sign and acknowledge, and shall deliver to its predecessor, the IssuerState, the Trustee ABPC and the CompanyTrustee, an instrument or document in writing accepting the appointment. Thereupon, without any further act, the successor shall become vested with all of the properties, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes of action, immunities, titles discretions and interests privileges of its predecessor. Upon the written request of its successor, the Issuer successor or the CompanyState, a predecessor Registrar (i) shall execute sign and deliver an instrument or document transferring to its successor all of the properties, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes of action, immunities, titles discretions and interests privileges of it as predecessor Registrar hereunder, and (ii) shall take any other action necessary to duly to assign, transfer and deliver to its successor all property and records (including without limitation, the Register and any cancelled canceled Bonds) held by it as Registrar. Should any instrument or document in writing from the Issuer State be requested by any successor Registrar for vesting and conveying more fully and certainly in and to that successor the properties, remedies, powers, rights, duties, obligations, discretion, discretions and privileges, claims, demands, causes of action, immunities, titles and interests vested or conveyed or intended to be vested or conveyed hereby in or to a predecessor Registrar, the Issuer State shall executesign, acknowledge and deliver that instrument or document. The provisions of Sections 3.06 and 6.02(c), (d), (h) and (i) shall be applicable to the Registrar.
Appears in 1 contract
Appointment of Successors. If (i) the a Registrar shall resign, shall be removed, shall be dissolved, or shall become otherwise incapable of acting hereunder, (ii) the a Registrar shall be taken under the control of any public officer or officers, (iii) a receiver shall be appointed for the a Registrar by a court, or (iv) the a Registrar shall have an order for relief entered in any case commenced by or against it under the federal bankruptcy laws or commence a proceeding under any federal or state bankruptcy, insolvency, reorganization or similar law, or have such a proceeding commenced against it and either have an order of insolvency or reorganization entered against it or have the proceeding remain undismissed and unstayed for 90 ninety (90) days, then a successor Registrar shall be appointed by the Issuer, Executive with the written consent of the Company Borrower and the Trustee; provided, that if a successor Registrar is not so appointed within ten (10) days after (a) a notice of resignation or an instrument or document of removal is received by the Issuer, as provided above, or (b) the Registrar is dissolved, taken under control, becomes otherwise incapable of acting or a receiver is appointed, in each case, as provided above, then, if the Issuer Executive shall not have appointed a successor Registrar, the Trustee or the Holders of at least a majority in aggregate principal amount of the Bonds then Outstanding outstanding for which it is Registrar may designate a successor Registrar by an instrument or document or concurrent instruments or documents in writing signed by the Trustee, or in the case of the Holders, by or on behalf of those Holders. Every successor Registrar appointed hereunder shall execute and acknowledge, acknowledge and shall deliver to its predecessor, the Issuer, the Trustee Bank, the Trustee, the Remarketing Agent, any Authenticating Agents, any Paying Agents and the CompanyBorrower, an instrument or document in writing accepting the appointment. Thereupon, without any further act, the successor shall become vested with all of the properties, remedies, powers, rights, duties, obligations, discretiondiscretions, privileges, claims, demands, causes of action, immunities, titles and interests of its predecessor. Upon the written request of its successor, the Issuer Issuer, the Bank or the CompanyBorrower, a predecessor Registrar (i) shall execute and deliver an instrument or document transferring to its successor all of the properties, remedies, powers, rights, duties, obligations, discretionprovisions, privileges, claims, demands, causes of action, immunities, titles and interests of it as predecessor Registrar hereunder, and (ii) shall take any other action necessary to duly to assign, transfer and deliver to its successor all property and records (including without limitation, the Register and any cancelled canceled Bonds) held by it as Registrar. Should any instrument or document in writing from the Issuer be requested by any successor Registrar for vesting and conveying more fully and certainly in and to that successor the properties, remedies, powers, rights, duties, obligations, discretiondiscretions, privileges, claims, demands, causes of action, immunities, titles and interests vested or conveyed or intended to be vested or conveyed hereby in or to a predecessor Registrar, the Issuer shall execute, acknowledge and deliver that instrument or document. The Trustee shall pay to any Registrar from time to time reasonable compensation as authorized in Section 6.03 hereof for its services, and the Trustee shall be entitled to be reimbursed for such payments, subject to Section 6.03 hereof. The provisions of Section 3.05 and Subsection 6.02(d) hereof shall be applicable to any Registrar.
Appears in 1 contract
Samples: Trust Indenture (Escalade Inc)
Appointment of Successors. If (i) the a Registrar shall resign, shall be removed, shall be dissolved, or shall become otherwise completely incapable of acting hereunder, (ii) the a Registrar shall be taken under the control of any public officer or officers, (iii) a receiver shall be appointed for the a Registrar by a court, or (iv) the a Registrar shall have an order for relief entered in any case commenced by or against it under the federal bankruptcy laws or commence a proceeding under any federal or state bankruptcy, insolvency, reorganization or similar law, or have such a proceeding commenced against it and either have an order of insolvency or reorganization entered against it or have the proceeding remain undismissed and unstayed for 90 ninety days, then a successor Registrar shall be appointed by the IssuerAuthorized Official, with the written consent of the Company and the Trustee; provided, that if a successor Registrar is not so appointed within ten days after (a) a notice of resignation or an instrument or document of removal is received by the Issuer, as provided above, or (b) the Registrar is dissolved, taken under control, becomes otherwise incapable of acting or a receiver is appointed, in each case, as provided above, then, if the Issuer Authorized Official shall not have appointed a successor Registrar, the Trustee or the Holders of a majority in aggregate principal amount of Bonds then Outstanding outstanding may designate a successor Registrar by an instrument or document or concurrent instruments or documents in writing signed by the Trustee, or in the case of the Holders, by or on behalf of those Holders. Every successor Registrar appointed hereunder shall execute and acknowledge, and shall deliver to its predecessor, the Issuer, the Trustee and the Company, an instrument or document in writing accepting the appointment. Thereupon, without any further act, the successor shall become vested with all of the properties, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes of action, immunities, titles and interests of its predecessor. Upon the written request of its successor, the Issuer or the Company, a predecessor Registrar (i) shall execute (but need not prepare) and deliver an instrument or document transferring to its successor all of the properties, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes of action, immunities, titles and interests of it as predecessor Registrar hereunder, subject to the terms and conditions herein set forth, including, without limitation, the right of the predecessor Registrar to be paid and reimbursed in full for its reasonable charges and expenses, and (ii) shall take any other action necessary to duly to assign, transfer and deliver to its successor all property and records (including without limitation, the Register and any cancelled canceled Bonds) held by it as Registrar. Should any instrument or document in writing from the Issuer be requested by any successor Registrar for vesting and conveying more fully and certainly in and to that successor the properties, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes of action, immunities, titles and interests vested or conveyed or intended to be vested or conveyed hereby in or to a predecessor Registrar, the Issuer shall executeexecute (but need not prepare), acknowledge and deliver that instrument or document.
Appears in 1 contract
Appointment of Successors. If (i) the Registrar shall resign, shall be removed, shall be dissolved, or shall become otherwise incapable of acting hereunder, (ii) the Registrar shall be taken under the control of any public officer or officers, (iii) a receiver shall be appointed for the Registrar by a court, or (iv) the Registrar shall have an order for relief entered in any case commenced by or against it under the federal bankruptcy laws or commence a proceeding under any federal or state bankruptcy, insolvency, reorganization or similar law, or have such a proceeding commenced against it and either have an order of insolvency or reorganization entered against it or have the proceeding remain undismissed and unstayed for 90 days, then a successor Registrar shall be appointed by the Issuer, with the written consent of the Company and the Trustee; provided, that if a successor Registrar is not so appointed within ten days after (a) a Upon the Servicer's receipt of notice of termination pursuant to Section 14.01 or the Servicer's resignation or an instrument or document in accordance with the terms of removal is received by the Issuer, as provided above, or (b) the Registrar is dissolved, taken under control, becomes otherwise incapable of acting or a receiver is appointed, in each case, as provided above, then, if the Issuer shall not have appointed a successor Registrarthis Agreement, the Trustee or the Holders of a majority in aggregate principal amount of Bonds then Outstanding may designate a successor Registrar by an instrument or document or concurrent instruments or documents in writing signed by the TrusteeServicer shall continue to perform its functions as Servicer under this Agreement, or in the case of termination, only until the Holdersdate specified in such termination notice (which date shall be at least 30 days after the date of such notice) or, if no such date is specified in a notice of termination, until receipt of such notice and, in the case of resignation, until the later of (x) the date thirty (30) days from the delivery to the Back-up Servicer, the Standby Servicer, the Indenture Trustee and the Insurer of written notice of such resignation (or the date of written confirmation of such notice prior to the expiration of the thirty (30) days) in accordance with the terms of this Agreement and (y) the date upon which the Servicer shall become unable to act as Servicer, as specified in the notice of resignation and accompanying Opinion of Counsel. In the event of the Servicer's resignation or termination hereunder, and unless the Controlling Party directs otherwise, the Standby Servicer shall automatically be the successor Servicer under this Agreement and the transactions set forth or provided for herein and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Standby Servicer as Servicer by the terms and provisions hereof; provided, however, that neither the Standby Servicer, the Back-up Servicer nor any other successor Servicer shall be liable for any actions of the Servicer or any other predecessor Servicer prior to such succession or for any breach by the Servicer or any other predecessor Servicer of any of its representations, warranties or covenants contained in this Agreement or in any related document or agreement.
(b) Upon appointment, the successor Servicer shall be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties, and liabilities arising thereafter relating thereto placed on behalf the predecessor Servicer (subject to the modified duties of those Holders. Every successor Registrar appointed hereunder shall execute and acknowledgeSST set forth in Schedule C attached hereto), and shall deliver be entitled to the Servicing Fee (or with respect to SST, the successor Servicer fee set forth in Schedule C attached hereto) and all of the rights granted to the predecessor Servicer, by the terms and provisions of this Agreement. The predecessor Servicer shall be entitled to be reimbursed for Outstanding Advances.
(c) In connection with such appointment, the Indenture Trustee may make such arrangements for the successor Servicer out of payments on Receivables it and such successor Servicer shall agree; provided, however, that no such compensation shall be in excess of that permitted the original Servicer under this Agreement. The Owner Trustee and such successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession.
(d) To the extent that the Standby Servicer shall be entitled to any indemnity payment from the Servicer pursuant to Sections 13.02 or 14.03(i) and such indemnity payment has not been made within 30 calendar days of demand thereof, the Standby Servicer shall be entitled to reimbursement for such unpaid amounts, to the extent of available funds, under priority (viii) of Section 9.05(a) of the Indenture.
(e) If the Standby Servicer becomes aware of any error or continuing error which in the opinion of the Back-up Servicer impairs its predecessorability to perform its services hereunder, the Standby Servicer may undertake such data or records reconstruction as it deems appropriate to correct any such error or continued error and to prevent future continuing error. To the extent it is not otherwise reimbursed under this Agreement, the Standby Servicer shall be entitled to recover its costs incurred in correcting any such error or continuing error.
(f) Upon the Standby Servicer's receipt of notice of termination following a Standby Servicer Default or the Standby Servicer's resignation in accordance with the terms of this Agreement, the Back-up Servicer shall continue to perform its functions as Standby Servicer or Servicer, as applicable, under this Agreement, in the case of termination, only until the date specified in such termination notice or, if no such date is specified in a notice of termination, until receipt of such notice and, in the case of resignation, until the later of (x) the date 30 days from the delivery to the Standby Servicer, the Indenture Trustee, and the Insurer of written notice of such resignation (or the date of written confirmation of such notice prior to the expiration of the 30 days) in accordance with the terms of this Agreement and (y) the date upon which the Standby Servicer shall become unable to act as Servicer, as specified in the notice of resignation and accompanying Opinion of Counsel. In the event of the Standby Servicer's resignation or termination hereunder, and if the Controlling Party so directs, the Back-up Servicer shall be the successor in all respects to the Standby Servicer in its capacity as Standby Servicer and, if applicable, Servicer under this Agreement and the transactions set forth or provided for herein and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Standby Servicer and, if applicable, the Servicer by the terms and provisions hereof; provided, however, that the Back-up Servicer shall not be liable for any actions of the Standby Servicer prior to such succession or for any breach by the Standby Servicer of any of its representations, warranties and covenants contained in this Agreement or in any related document or agreement.
(g) Upon receipt by any successor Servicer (other than the Standby Servicer in accordance with Section 14.03(f) above) of notice of termination or such successor Servicer's resignation in accordance with the terms of this Agreement, such successor Servicer shall continue to perform its functions as Servicer under this Agreement, in the case of termination, only until the date specified in such termination notice or, if no such date is specified in a notice of termination, until receipt of such notice and, in the case of resignation, until the later of (x) the date 30 days from the delivery to the Back-up Servicer, if any, the Indenture Trustee and the Insurer of written notice of such resignation (or the date of written confirmation of such notice prior to the expiration of the 30 days) in accordance with the terms of this Agreement and (y) the date upon which such successor Servicer shall become unable to act as Servicer, as specified in the notice of resignation and accompanying Opinion of Counsel. In the event of such successor Servicer's resignation or termination hereunder, and if the Controlling Party so directs, the Back-up Servicer, if any, shall be the successor in all respects to the Servicer under this Agreement and the transactions set forth or provided for herein and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof; provided, however, that the Back-up Servicer shall not be liable for any actions of the predecessor Servicer prior to such succession or for any breach by the predecessor Servicer of any of its representations, warranties and covenants contained in this Agreement or in any related document or agreement.
(h) Notwithstanding the above, if the Back-up Servicer is legally unable to so act or the Controlling Party otherwise directs in accordance with Section 8.02(d), the Controlling Party shall appoint a successor Servicer, successor Back-up Servicer or successor Standby Servicer. Otherwise, the Indenture Trustee shall appoint (after soliciting bids from potential servicers), or petition a court of competent jurisdiction to appoint, a Servicer (as successor Servicer), Back-up Servicer (as successor Back-up Servicer) or Standby Servicer (as successor Standby Servicer) hereunder, in each case acceptable to the Controlling Party, in the assumption of all or any part of the responsibilities, duties or liabilities of the outgoing Servicer, Back-up Servicer or Standby Servicer, as applicable, hereunder. The outgoing Servicer, Back-up Servicer or Standby Servicer shall continue to act as such hereunder until a successor acceptable to the Controlling Party is appointed and assumes the obligations as successor Servicer, Back-up Servicer or Standby Servicer, as applicable.
(i) Any successor Servicer may accept and reasonably rely on all accounting and servicing records and other documentation provided to such successor Servicer in connection with succession to Servicer duties, including documents prepared or maintained by BVAC, the Transferor, or the Servicer, or any party providing services related to the Receivables (each, a "Third Party"). The Servicer shall indemnify and hold harmless the successor Servicer and its officers, employees and agents, the Issuer, the Trustee Noteholders and the CompanyInsurer against any and all claims, an instrument losses, penalties, fines, forfeitures, legal fees and related costs, judgments, and any other costs, fees and expenses that the successor Servicer, the Issuer, the Noteholders and the Insurer may sustain in any way (i) solely related to the negligence or document accepting misconduct of the appointmentServicer or any such Third Party based upon any matter related to or arising out of this Agreement except for any claims, losses, penalties, fines, forfeitures, legal fees, and related costs and judgments arising from such successor Servicer's own negligence or willful misconduct; or (ii) solely related to the conduct of such successor Servicer undertaken at the direction of any party hereto or which relate to the transfer of servicing to the successor Servicer. ThereuponThe successor Servicer shall have no duty, without responsibility, obligation or liability (collectively "liability") for the acts or omissions of any further actThird Party. In the event that the Servicer fails to make any such indemnity payment, the successor Servicer shall become vested with all be entitled to receive such payment from the Issuer, to the extent of Available Funds on each Payment Date, in the priorities set forth in Section 9.05(a) of the propertiesIndenture; provided, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes of action, immunities, titles and interests of its predecessor. Upon that such Issuer payment shall not relieve the written request of its successor, the Issuer or the Company, a predecessor Registrar (i) shall execute and deliver an instrument or document transferring to its successor all of the properties, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes of action, immunities, titles and interests of it as predecessor Registrar hereunder, and (ii) shall take any other action necessary duly to assign, transfer and deliver to its successor all property and records (including without limitation, the Register and any cancelled Bonds) held by it as Registrar. Should any instrument or document Servicer from the Issuer be requested by any successor Registrar responsibility for vesting making such payment and conveying more fully and certainly in and to that successor the properties, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes of action, immunities, titles and interests vested or conveyed or intended to be vested or conveyed hereby in or to a predecessor Registrar, the Issuer shall executebe subrogated to the rights of the successor Servicer with respect to such indemnity claim and shall have a direct right to institute proceedings against the Servicer for such payment. If any error, acknowledge inaccuracy or omission (collectively "error") exists in any information provided to a successor Servicer and deliver such error causes or materially contributes to such successor Servicer making or continuing any error (a "continuing error"), such successor Servicer shall have no liability for such continuing error; provided, however, that instrument this provision shall not protect such successor Servicer against any liability arising from its willful misconduct, bad faith or documentgross negligence in discovering or correcting or failing to discover or correct any error or in the performance of its other duties contemplated herein.
Appears in 1 contract
Samples: Trust and Servicing Agreement (Bay View Securitization Corp)
Appointment of Successors. If (i) the a Registrar shall resign, shall be removed, shall be dissolved, or shall become otherwise incapable of acting hereunder, (ii) the a Registrar shall be taken under the control of any public officer or officers, (iii) a receiver shall be appointed for the a Registrar by a court, or (iv) the a Registrar shall have an order for relief entered in any case commenced by or against it under the federal bankruptcy laws or commence a proceeding under any federal or state bankruptcy, insolvency, reorganization or similar law, or have such a proceeding commenced against it and either have an order of insolvency or reorganization entered against it or have the proceeding remain undismissed and unstayed for 90 days, then a successor Registrar shall be appointed by the Issueran Authorized Officer, with the written consent of the Company and the Trustee; provided, provided that if a successor Registrar is not so appointed within ten days twenty (20) Business Days after (aA) a notice of resignation or an instrument or document of removal is delivered or received by the IssuerAuthority, as provided above, or (bB) the Registrar is dissolved, taken under control, becomes otherwise incapable of acting or acting, a receiver is appointedappointed or any of the circumstances described in clause (iv) occur, in each case, as provided above, then, if the Issuer an Authorized Officer shall not have appointed a successor Registrar, the Trustee or the Holders of a majority in aggregate principal amount Aggregate Principal Amount of Bonds then Outstanding (excluding Bonds then owned by the Authority) may designate a successor Registrar by an instrument or document or concurrent instruments or documents in writing signed by the Trustee, or in the case of the Holders, by or on behalf of those Holders. Every successor Registrar appointed hereunder shall execute sign and acknowledge, and shall deliver to its predecessor, the Issuer, the Trustee Authority and the CompanyTrustee, an instrument or document in writing accepting the appointment. Thereupon, without any further act, the successor shall become vested with all of the properties, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes of action, immunities, titles discretions and interests privileges of its predecessor. Upon the written request of its successor, the Issuer successor or the CompanyAuthority, a predecessor Registrar (i) shall execute and deliver an instrument or document transferring to its successor all of the properties, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes of action, immunities, titles and interests of it as predecessor Registrar hereunder, and (ii) shall take any other action necessary duly to assign, transfer and deliver to its successor all property and records (including without limitation, the Register and any cancelled Bonds) held by it as Registrar. Should any instrument or document from the Issuer be requested by any successor Registrar for vesting and conveying more fully and certainly in and to that successor the properties, remedies, powers, rights, duties, obligations, discretion, privileges, claims, demands, causes of action, immunities, titles and interests vested or conveyed or intended to be vested or conveyed hereby in or to a predecessor Registrar, the Issuer shall execute, acknowledge and deliver that instrument or document.
Appears in 1 contract
