Common use of Appointment of the Placement Agent Clause in Contracts

Appointment of the Placement Agent. The Seller and the Servicer each hereby appoints the Administrative Agent (in such capacity, or any Affiliate designated by the Administrative Agent, the “Placement Agent”) as the sole lead manager on any term takeout of Loans financed pursuant to this Agreement (a “Refinancing”), whether through the asset-backed securities market, in connection with Term Asset-Backed Securities Loan Facility program provided by The Federal Reserve Bank of New York (the “TALF Program”), or otherwise. For the avoidance of doubt, the Seller and Servicer hereby acknowledge that the appointment of the Placement Agent is a separate engagement from the “Liquidity Bank” role and arrangement provided by Citibank, N.A. or any of its affiliates and such appointment has been directed by the Seller in its sole discretion. In connection with such Refinancing, the Placement Agent shall, in its reasonable judgment and in consultation with the Seller, determine the timing, terms and Assets to be included in any such Refinancing; including any determination that the entry into such Refinancing would achieve extended terms and a lower cost of funds with respect to financing of the subject Loans than the existing terms hereunder. Upon receiving notice from the Placement Agent of a proposed Refinancing, the Seller, the Servicer and the Originator each agrees to cooperate with the Placement Agent and its designees, consistent with their rights hereunder and the terms hereof, to the extent necessary or appropriate to effectuate any Refinancing by the Placement Agent pursuant to the terms of this Section 2.22, including cooperating in making available to the Placement Agent the Asset Files and servicing records relating to the Loans. In consideration of the benefits received from the Administrative Agent hereunder, the Seller, the Servicer and Originator each hereby agrees and covenants that in connection with each Refinancing, it shall, at the request of the Placement Agent, make such representations and warranties concerning the Loans as of the “cutoff date” of the related Refinancing to or as directed by the Placement Agent as may be reasonably necessary, in the reasonable opinion of the Placement Agent, to effect such Refinancing, including any representations and warranties that may be required under the TALF Program. In addition, the Seller, the Servicer and Originator shall (A) cooperate with the Placement Agent in effecting any such Refinancing, including the transfer of all Asset Files with respect to the Loans and shall cooperate to implement all requirements imposed by any rating agency involved in any Refinancing; (B) supply such information, opinions of counsel, letters from law and/or accounting firms (including any certifications, opinions and auditor attestations required under the TALF Program) and other documentation and certificates regarding the origination of the Loans as the Placement Agent or any prospective purchaser or investor shall reasonably request to effect a Refinancing, and enter into such indemnification agreements customary for such transaction (and substantially similar to indemnification agreements provided for in similar transactions among the parties to the Refinancing) relating to or in connection with the Refinancing as the Placement Agent may reasonably require, including certifications, agreements and documents that may be required under the TALF Program; (C) make itself available for and engage in good faith consultation with the Placement Agent and prospective purchasers or investors concerning information to be contained in any document, agreement, private placement memorandum, prospectus, prospectus supplement or similar document or filing with The Federal Reserve Bank of New York, the Securities and Exchange Commission or such other governmental or regulatory entity relating to the Seller or the related Loans and use reasonable efforts to compile any information and prepare any reports and certificates, into a form, whether written or electronic, suitable for inclusion in such documentation, including certifications, agreements and documents that may be required under the TALF Program; and (D) to implement the foregoing and to otherwise effect any such Refinancing, enter into, or cause its Affiliates to enter into insurance and indemnity agreements, underwriting or placement agreements, servicing agreements, purchase agreements and any other documentation which may be reasonably required by the Placement Agent in order to effect any such Refinancing; and take such further actions as may be reasonably necessary to effect the foregoing; provided, that, (a) the Seller shall not have any liability for the Loans arising from or relating to the ongoing ability of the related obligors to pay under the Loans; (b) none of the indemnities hereunder shall constitute an unconditional guarantee by the Seller of collectibility of the Loans; (c) the Seller shall not have any obligation with respect to the financial inability of any obligor to pay principal, interest or other amount owing by such obligor under a Loan, (d) the Seller, the Servicer and the Originator shall not be obligated to make any representation or warranty that is not true, noting that the Seller, the Servicer and the Originator shall make reasonable efforts to take all applicable actions which would make such representation or warranty to be true, and (e) the Seller, the Servicer and the Originator shall not be required to breach any confidentiality agreement by which it is bound, noting that the Seller, the Servicer and the Originator shall make reasonable efforts similar to efforts made in previous transactions between the parties to obtain permissions to take the applicable action which would otherwise have been a breach of such confidentiality agreement. All costs and expenses in connection with this Section 2.22 shall be the sole responsibility of the Seller.

Appointment of the Placement Agent. The Seller and the Servicer each hereby appoints the Administrative Agent (in such capacity, or any Affiliate designated by the Administrative Agent, the “Placement Agent”) as the sole lead manager on any term takeout of Loans financed pursuant to this Agreement (a “Refinancing”), whether through the asset-backed securities market, in connection with Term Asset-Backed Securities Loan Facility program provided by The Federal Reserve Bank of New York (the “TALF Program”), or otherwise. For the avoidance of doubt, the Seller and Servicer hereby acknowledge that the appointment of the Placement Agent is a separate engagement from the “Liquidity Bank” role and arrangement provided by Citibank, N.A. or any of its affiliates and such appointment has been directed by the Seller in its sole discretion. In connection with any such Refinancing, the Placement Agent shall, in its reasonable judgment and in consultation with the Seller, determine the timing, terms and Assets to be included in any such Refinancing; including any determination that the entry into such Refinancing would achieve extended terms and a lower cost of funds with respect to financing of the subject Loans than the existing terms hereunder. Upon receiving notice from the Placement Agent of a proposed Refinancing, the Seller, the Servicer and the Originator each agrees to cooperate with the Placement Agent and its designees, consistent with their rights hereunder and the terms hereof, to the extent necessary or appropriate to effectuate any Refinancing by the Placement Agent pursuant to the terms of this Section 2.22, including cooperating in making available to the Placement Agent the Asset Files and servicing records relating to the Loans. In consideration of the benefits received from the Administrative Agent hereunder, the Seller, the Servicer and Originator each hereby agrees and covenants that in connection with each Refinancing, it shall, at the request of the Placement Agent, make such representations and warranties concerning the Loans as of the “cutoff date” of the related Refinancing to or as directed by the Placement Agent as may be reasonably necessary, in the reasonable opinion of the Placement Agent, to effect such Refinancing, including any representations and warranties that may be required under the TALF Program. In addition, the Seller, the Servicer and Originator shall (A) cooperate with the Placement Agent in effecting any such Refinancing, including the transfer of all Asset Files with respect to the Loans and shall cooperate to implement all requirements imposed by any rating agency involved in any Refinancing; (B) supply such information, opinions of counsel, letters from law and/or accounting firms (including any certifications, opinions and auditor attestations required under the TALF Program) and other documentation and certificates regarding the origination of the Loans as the Placement Agent or any prospective purchaser or investor shall reasonably request to effect a Refinancing, and enter into such indemnification agreements customary for such transaction (and substantially similar to indemnification agreements provided for in similar transactions among the parties to the Refinancing) relating to or in connection with the Refinancing as the Placement Agent may reasonably require, including certifications, agreements and documents that may be required under the TALF Program; (C) make itself available for and engage in good faith consultation with the Placement Agent and prospective purchasers or investors concerning information to be contained in any document, agreement, private placement memorandum, prospectus, prospectus supplement or similar document or filing with The Federal Reserve Bank of New York, the Securities and Exchange Commission or such other governmental or regulatory entity relating to the Seller or the related Loans and use reasonable efforts to compile any information and prepare any reports and certificates, into a form, whether written or electronic, suitable for inclusion in such documentation, including certifications, agreements and documents that may be required under the TALF Program; and (D) to implement the foregoing and to otherwise effect any such Refinancing, enter into, or cause its Affiliates to enter into insurance and indemnity agreements, underwriting or placement agreements, servicing agreements, purchase agreements and any other documentation which may be reasonably required by the Placement Agent in order to effect any such Refinancing; and take such further actions as may be reasonably necessary to effect the foregoing; provided, that, (a) the Seller shall not have any liability for the Loans arising from or relating to the ongoing ability of the related obligors to pay under the Loans; (b) none of the indemnities hereunder shall constitute an unconditional guarantee by the Seller of collectibility of the Loans; (c) the Seller shall not have any obligation with respect to the financial inability of any obligor to pay principal, interest or other amount owing by such obligor under a Loan, (d) the Seller, the Servicer and the Originator shall not be obligated to make any representation or warranty that is not true, noting that the Seller, the Servicer and the Originator shall make reasonable efforts to take all applicable actions which would make such representation or warranty to be true, and (e) the Seller, the Servicer and the Originator shall not be required to breach any confidentiality agreement by which it is bound, noting that the Seller, the Servicer and the Originator shall make reasonable efforts similar to efforts made in previous transactions between the parties to obtain permissions to take the applicable action which would otherwise have been a breach of such confidentiality agreement. All costs and expenses in connection with this Section 2.22 shall be the sole responsibility of the Seller.

Appointment of the Placement Agent. The Seller and the Servicer each hereby appoints the Administrative Agent (in such capacity, or any Affiliate designated by the Administrative Agent, the “Placement Agent”) as the sole lead manager on any term takeout of Loans financed pursuant to this Agreement (a “Refinancing”), whether through the asset-backed securities market, in connection with Term Asset-Backed Securities Loan Facility program provided by The Federal Reserve Bank of New York (the “TALF Program”), or otherwise. For the avoidance of doubt, the Seller and Servicer hereby acknowledge that the appointment of the Placement Agent is a separate engagement from the “Liquidity Bank” role and arrangement provided by Citibank, N.A. or any of its affiliates and such appointment has been directed by the Seller in its sole discretion. In connection with any such Refinancing, the Placement Agent shall, in its reasonable judgment and in consultation with the Seller, determine the timing, terms and Assets to be included in any such Refinancing; including any determination that the entry into such Refinancing would achieve extended terms and a lower cost of funds with respect to financing of the subject Loans than the existing terms hereunder. Upon receiving notice from the Placement Agent of a proposed Refinancing, the Seller, the Servicer and the Originator each agrees to cooperate with the Placement Agent and its designees, consistent with their rights hereunder and the terms hereof, to the extent necessary or appropriate to effectuate any Refinancing by the Placement Agent pursuant to the terms of this Section 2.22, including cooperating in making available to the Placement Agent the Asset Files and servicing records relating to the Loans. In consideration of the benefits received from the Administrative Agent hereunder, the Seller, the Servicer and Originator each hereby agrees and covenants that in connection with each Refinancing, it shall, at the request of the Placement Agent, make such representations and warranties concerning the Loans as of the “cutoff date” of the related Refinancing to or as directed by the Placement Agent as may be reasonably necessary, in the reasonable opinion of the Placement Agent, to effect such Refinancing, including any representations and warranties that may be required under the TALF Program. In addition, the Seller, the Servicer and Originator shall (A) cooperate with the Placement Agent in effecting any such Refinancing, including the transfer of all Asset Files with respect to the Loans and shall cooperate to implement all requirements imposed by any rating agency involved in any Refinancing; (B) supply such information, opinions of counsel, letters from law and/or accounting firms (including any certifications, opinions and auditor attestations required under the TALF Program) and other documentation and certificates regarding the origination of the Loans as the Placement Agent or any prospective purchaser or investor shall reasonably request to effect a Refinancing, and enter into such indemnification agreements customary for such transaction (and substantially similar to indemnification agreements provided for in similar transactions among the parties to the Refinancing) relating to or in connection with the Refinancing as the Placement Agent may reasonably require, including certifications, agreements and documents that may be required under the TALF Program; (C) make itself available for and engage in good faith consultation with the Placement Agent and prospective purchasers or investors concerning information to be contained in any document, agreement, private placement memorandum, prospectus, 66 prospectus supplement or similar document or filing with The Federal Reserve Bank of New York, the Securities and Exchange Commission or such other governmental or regulatory entity relating to the Seller or the related Loans and use reasonable efforts to compile any information and prepare any reports and certificates, into a form, whether written or electronic, suitable for inclusion in such documentation, including certifications, agreements and documents that may be required under the TALF Program; and (D) to implement the foregoing and to otherwise effect any such Refinancing, enter into, or cause its Affiliates to enter into insurance and indemnity agreements, underwriting or placement agreements, servicing agreements, purchase agreements and any other documentation which may be reasonably required by the Placement Agent in order to effect any such Refinancing; and take such further actions as may be reasonably necessary to effect the foregoing; provided, that, (a) the Seller shall not have any liability for the Loans arising from or relating to the ongoing ability of the related obligors to pay under the Loans; (b) none of the indemnities hereunder shall constitute an unconditional guarantee by the Seller of collectibility of the Loans; (c) the Seller shall not have any obligation with respect to the financial inability of any obligor to pay principal, interest or other amount owing by such obligor under a Loan, (d) the Seller, the Servicer and the Originator shall not be obligated to make any representation or warranty that is not true, noting that the Seller, the Servicer and the Originator shall make reasonable efforts to take all applicable actions which would make such representation or warranty to be true, and (e) the Seller, the Servicer and the Originator shall not be required to breach any confidentiality agreement by which it is bound, noting that the Seller, the Servicer and the Originator shall make reasonable efforts similar to efforts made in previous transactions between the parties to obtain permissions to take the applicable action which would otherwise have been a breach of such confidentiality agreement. All costs and expenses in connection with this Section 2.22 shall be the sole responsibility of the Seller.