Covenants of the Custodian. (a) The Custodian, either directly or by acting through an agent or nominee (which agent shall not be the Originator or any Affiliate thereof, except as provided in Section 10.8(e) hereof), shall hold the Legal File and all other documents relating to any Receivable that comes into its possession for the exclusive use and benefit of the Issuer and shall make disposition thereof only in accordance with the provisions of this Agreement. The Custodian shall maintain continuous custody of the Legal File and such other documents received by it in secure facilities in accordance with customary standards for such custody and shall not release such documents or transfer such documents to any other party, including any subcustodian, except as otherwise expressly provided herein. (b) The Custodian covenants and warrants to the Issuer, the Trust Collateral Agent, the Servicer and the Note Insurer that to the knowledge of its Responsible Officers, as of the related date on which the Custodian makes the certification required under Section 3.4 with respect to the Legal Files, it holds no adverse interest, by way of security or otherwise, in any Receivable. (c) Instructions to the Custodian relating to this Agreement will be carried out by the Custodian, in accordance with the terms and provisions of this Agreement. The Custodian is authorized to conclusively rely on any such instruction that it believes in good faith to have been given by the Servicer pursuant to and in accordance with the terms and provisions of this Agreement. The Custodian may record any such instructions given by telephone, and any other telephone discussions with respect to this Agreement. (d) The Custodian shall not by reason of this Agreement have a fiduciary relationship in respect of the Servicer or LBAC or any Affiliate thereof, and nothing in this Agreement, express or implied, is intended to or shall be so construed so as to impose upon the Custodian any obligations in respect of this Agreement except as expressly set forth in it. The Custodian, acting as custodian, shall have no responsibility for (i) ascertaining or taking action with respect to exchanges, maturities, tenders or other matters relative to any Receivables, whether or not the Custodian has or is deemed to have knowledge of such matters or (ii) taking any necessary steps to preserve rights against any parties with respect to any Receivables, except as otherwise expressly set forth herein in its capacity as Custodian. The Custodian does not assume and shall have no responsibility for, and makes no representations as to, monitoring the value of the Receivables and the related Legal Files. The Custodian may rely upon the validity of documents delivered to it, without investigation as to their authority or legal effectiveness. (e) Each of the Servicer, the Issuer, the Transferor and LBAC acknowledges and agrees that the Custodian: (i) shall not be responsible for any of the agreements set forth in the Purchase Agreement or any other documents or instruments other than this Agreement, including its Exhibits, but shall be obligated only for the performance of such duties as are specifically set forth in this Agreement; (ii) shall not be under any obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct, or defend any litigation under this Agreement or in relation to this Agreement, at the request, order or direction of any of the Noteholders or the Note Insurer pursuant to the provisions of this Agreement, unless such Noteholders or the Note Insurer shall have offered to the Custodian reasonable security or indemnity in form and substance reasonably satisfactory to the Custodian, against the costs, expenses and liabilities that may be incurred therein or thereby; (iii) may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, Servicer's Certificate, certificate of auditors, or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond, or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties, and shall have no responsibility for determining the accuracy thereof (except pursuant to Section 10.3(iv)); and (iv) may consult with counsel, and any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it under this Agreement in good faith and in accordance with such Opinion of Counsel. (f) If the Custodian shall request instructions from the Servicer or LBAC with respect to any act or action (including failure to act) in connection with this Agreement, the Custodian shall be entitled to refrain from such act or taking such action unless and until the Custodian shall have received instructions from such Person; and the Custodian shall not incur liability to such Person or any other Person by reason of so refraining. Without limiting the foregoing, neither the Servicer, nor LBAC, nor any other Person shall have any right of action whatsoever against the Custodian as a result of the Custodian's acting or refraining from acting in accordance with the Servicer's instructions hereunder, other than any such action arising out of the Custodian's negligence, bad faith or willful misconduct in so acting or refraining from acting. (g) The Custodian shall physically segregate the Legal Files for the Receivables from all other instruments similar in nature to such Legal Files in its possession, and shall hold the Legal Files so as to reflect the ownership of the Issuer. The Custodian shall xxxx its books, accounts and records to reflect such fact. At its own expense, the Custodian shall maintain at all times during which this Agreement is in effect, fidelity insurance in amounts customary for similar transactions. Such insurance may be maintained by the Custodian in the form of self-insurance.
Appears in 4 contracts
Samples: Sale and Servicing Agreement (Long Beach Holdings Corp), Sale and Servicing Agreement (Long Beach Holdings Corp), Sale and Servicing Agreement (Long Beach Holdings Corp)
Covenants of the Custodian. (a) The Custodian, either directly or by acting through an agent or nominee (which agent shall not be the Originator or any Affiliate thereof, except as provided in Section 10.8(e) hereof), shall hold the Legal File and all other documents relating to any Receivable that comes into its possession for the exclusive use and benefit of the Issuer and shall make disposition thereof only in accordance with the provisions of this Agreement. The Custodian shall maintain continuous custody of the Legal File and such other documents received by it in secure facilities in accordance with customary standards for such custody and shall not release such documents or transfer such documents to any other party, including any subcustodian, except as otherwise expressly provided herein.
(b) The Custodian covenants and warrants to the Issuer, the Trust Collateral Agent, the Servicer and the Note Insurer that to the knowledge of its Responsible Officers, as of the related date on which the Custodian makes the certification required under Section 3.4 with respect to the Legal Files, it holds no adverse interest, by way of security or otherwise, in any Receivable.
(c) Instructions to the Custodian relating to this Agreement will be carried out by the Custodian, in accordance with the terms and provisions of this Agreement. The Custodian is authorized to conclusively rely on any such instruction that it believes in good faith to have been given by the Servicer pursuant to and in accordance with the terms and provisions of this Agreement. The Custodian may record any such instructions given by telephone, and any other telephone discussions with respect to this Agreement.
(d) The Custodian shall not by reason of this Agreement have a fiduciary relationship in respect of the Servicer or LBAC or any Affiliate thereof, and nothing in this Agreement, express or implied, is intended to or shall be so construed so as to impose upon the Custodian any obligations in respect of this Agreement except as expressly set forth in it. The Custodian, acting as custodian, shall have no responsibility for (i) ascertaining or taking action with respect to exchanges, maturities, tenders or other matters relative to any Receivables, whether or not the Custodian has or is deemed to have knowledge of such matters or (ii) taking any necessary steps to preserve rights against any parties with respect to any Receivables, except as otherwise expressly set forth herein in its capacity as Custodian. The Custodian does not assume and shall have no responsibility for, and makes no representations as to, monitoring the value of the Receivables and the related Legal Files. The Custodian may rely upon the validity of documents delivered to it, without investigation as to their authority or legal effectiveness.
(e) Each of the Servicer, the Issuer, the Transferor and LBAC acknowledges and agrees that the Custodian:
(i) shall not be responsible for any of the agreements set forth in the Purchase Agreement or any other documents or instruments other than this Agreement, including its Exhibits, but shall be obligated only for the performance of such duties as are specifically set forth in this Agreement;
(ii) shall not be under any obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct, or defend any litigation under this Agreement or in relation to this Agreement, at the request, order or direction of any of the Noteholders or the Note Insurer pursuant to the provisions of this Agreement, unless such Noteholders or the Note Insurer shall have offered to the Custodian reasonable security or indemnity in form and substance reasonably satisfactory to the Custodian, against the costs, expenses and liabilities that may be incurred therein or thereby;
(iii) may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, Servicer's Certificate, certificate of auditors, or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond, or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties, and shall have no responsibility for determining the accuracy thereof (except pursuant to Section 10.3(iv)); and
(iv) may consult with counsel, and any Advice of such counsel or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it under this Agreement in good faith and in accordance with such Advice or Opinion of Counsel.
(f) If the Custodian shall request instructions from the Servicer or LBAC with respect to any act or action (including failure to act) in connection with this Agreement, the Custodian shall be entitled to refrain from such act or taking such action unless and until the Custodian shall have received instructions from such Person; and the Custodian shall not incur liability to such Person or any other Person by reason of so refraining. Without limiting the foregoing, neither the Servicer, nor LBAC, nor any other Person shall have any right of action whatsoever against the Custodian as a result of the Custodian's acting or refraining from acting in accordance with the Servicer's instructions hereunder, other than any such action arising out of the Custodian's negligence, bad faith or willful misconduct in so acting or refraining from acting.
(g) The Custodian shall physically segregate the Legal Files for the Receivables from all other instruments similar in nature to such Legal Files in its possession, and shall hold the Legal Files so as to reflect the ownership of the Issuer. The Custodian shall xxxx its books, accounts and records to reflect such fact. At its own expense, the Custodian shall maintain at all times during which this Agreement is in effect, fidelity insurance in amounts customary for similar transactions. Such insurance may be maintained by the Custodian in the form of self-insurance.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Long Beach Acceptance Corp), Sale and Servicing Agreement (Long Beach Acceptance Corp)
Covenants of the Custodian. (a) The Custodian, either directly or by acting through an agent or nominee (which agent shall not be the Originator or any Affiliate thereof, except as provided in Section 10.8(e) hereof), shall hold the Legal File and all other documents relating to any Receivable that comes into its possession for the exclusive use and benefit of the Issuer and shall make disposition thereof only in accordance with the provisions of this Agreement. The Custodian shall maintain continuous custody of the Legal File and such other documents received by it in secure facilities in accordance with customary standards for such custody and shall not release such documents or transfer such documents to any other party, including any subcustodian, except as otherwise expressly provided herein.
(b) The Custodian covenants and warrants to the Issuer, the Trust Collateral Agent, the Servicer [and the Note Insurer Insurer] that to the knowledge of its Responsible Officers, as of the related date on which the Custodian makes the certification required under Section 3.4 with respect to the Legal Files, it holds no adverse interest, by way of security or otherwise, in any Receivable.
(c) Instructions to the Custodian relating to this Agreement will be carried out by the Custodian, in accordance with the terms and provisions of this Agreement. The Custodian is authorized to conclusively rely on any such instruction that it believes in good faith to have been given by the Servicer pursuant to and in accordance with the terms and provisions of this Agreement. The Custodian may record any such instructions given by telephone, and any other telephone discussions with respect to this Agreement.
(d) The Custodian shall not by reason of this Agreement have a fiduciary relationship in respect of the Servicer or LBAC or any Affiliate thereof, and nothing in this Agreement, express or implied, is intended to or shall be so construed so as to impose upon the Custodian any obligations in respect of this Agreement except as expressly set forth in it. The Custodian, acting as custodian, shall have no responsibility for (i) ascertaining or taking action with respect to exchanges, maturities, tenders or other matters relative to any Receivables, whether or not the Custodian has or is deemed to have knowledge of such matters or (ii) taking any necessary steps to preserve rights against any parties with respect to any Receivables, except as otherwise expressly set forth herein in its capacity as Custodian. The Custodian does not assume and shall have no responsibility for, and makes no representations as to, monitoring the value of the Receivables and the related Legal Files. The Custodian may rely upon the validity of documents delivered to it, without investigation as to their authority or legal effectiveness.
(e) Each of the Servicer, the Issuer, the Transferor and LBAC acknowledges and agrees that the Custodian:
(i) shall not be responsible for any of the agreements set forth in the Purchase Agreement or any other documents or instruments other than this Agreement, including its Exhibits, but shall be obligated only for the performance of such duties as are specifically set forth in this Agreement;
(ii) shall not be under any obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct, or defend any litigation under this Agreement or in relation to this Agreement, at the request, order or direction of any of the Noteholders [or the Note Insurer Insurer] pursuant to the provisions of this Agreement, unless such Noteholders [or the Note Insurer Insurer] shall have offered to the Custodian reasonable security or indemnity in form and substance reasonably satisfactory to the Custodian, against the costs, expenses and liabilities that may be incurred therein or thereby;
(iii) may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, Servicer's Certificate, certificate of auditors, or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond, or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties, and shall have no responsibility for determining the accuracy thereof (except pursuant to Section 10.3(iv)); and
(iv) may consult with counsel, and any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it under this Agreement in good faith and in accordance with such Opinion of Counsel.
(f) If the Custodian shall request instructions from the Servicer or LBAC with respect to any act or action (including failure to act) in connection with this Agreement, the Custodian shall be entitled to refrain from such act or taking such action unless and until the Custodian shall have received instructions from such Person; and the Custodian shall not incur liability to such Person or any other Person by reason of so refraining. Without limiting the foregoing, neither the Servicer, nor LBAC, nor any other Person shall have any right of action whatsoever against the Custodian as a result of the Custodian's acting or refraining from acting in accordance with the Servicer's instructions hereunder, other than any such action arising out of the Custodian's negligence, bad faith or willful misconduct in so acting or refraining from acting.
(g) The Custodian shall physically segregate the Legal Files for the Receivables from all other instruments similar in nature to such Legal Files in its possession, and shall hold the Legal Files so as to reflect the ownership of the Issuer. The Custodian shall xxxx its books, accounts and records to reflect such fact. At its own expense, the Custodian shall maintain at all times during which this Agreement is in effect, fidelity insurance in amounts customary for similar transactions. Such insurance may be maintained by the Custodian in the form of self-insurance.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Long Beach Acceptance Receivables Corp.), Sale and Servicing Agreement (Long Beach Acceptance Corp)
Covenants of the Custodian. (a) The Custodian, either directly or by acting through an agent or nominee (which agent shall not be the Originator or any Affiliate thereof, except as provided in Section 10.8(e) hereof), shall hold the Legal File and all other documents relating to any Receivable that comes into its possession for the exclusive use and benefit of the Issuer and shall make disposition thereof only in accordance with the provisions of this Agreement. The Custodian shall maintain continuous custody of the Legal File and such other documents received by it in secure facilities in accordance with customary standards for such custody and shall not release such documents or transfer such documents to any other party, including any subcustodian, except as otherwise expressly provided herein.
(b) The Custodian covenants and warrants to the Issuer, the Trust Collateral Agent, the Servicer and the Note Insurer that to the knowledge of its Responsible Officers, as of the related date on which the Custodian makes the certification required under Section 3.4 with respect to the Legal Files, it holds no adverse interest, by way of security or otherwise, in any Receivable.
(c) Instructions to the Custodian relating to this Agreement will be carried out by the Custodian, in accordance with the terms and provisions of this Agreement. The Custodian is authorized to conclusively rely on any such instruction that it believes in good faith to have been given by the Servicer pursuant to and in accordance with the terms and provisions of this Agreement. The Custodian may record any such instructions given by telephone, and any other telephone discussions with respect to this Agreement.
(d) The Custodian shall not by reason of this Agreement have a fiduciary relationship in respect of the Servicer or LBAC or any Affiliate thereof, and nothing in this Agreement, express or implied, is intended to or shall be so construed so as to impose upon the Custodian any obligations in respect of this Agreement except as expressly set forth in it. The Custodian, acting as custodian, shall have no responsibility for (i) ascertaining or taking action with respect to exchanges, maturities, tenders or other matters relative to any Receivables, whether or not the Custodian has or is deemed to have knowledge of such matters or (ii) taking any necessary steps to preserve rights against any parties with respect to any Receivables, except as otherwise expressly set forth herein in its capacity as Custodian. The Custodian does not assume and shall have no responsibility for, and makes no representations as to, monitoring the value of the Receivables and the related Legal Files. The Custodian may rely upon the validity of documents delivered to it, without investigation as to their authority or legal effectiveness.
(e) Each of the Servicer, the Issuer, the Transferor and LBAC acknowledges and agrees that the Custodian:
(i) shall not be responsible for any of the agreements set forth in the Purchase Agreement or any other documents or instruments other than this Agreement, including its Exhibits, but shall be obligated only for the performance of such duties as are specifically set forth in this Agreement;
(ii) shall not be under any obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct, or defend any litigation under this Agreement or in relation to this Agreement, at the request, order or direction of any of the Noteholders or the Note Insurer pursuant to the provisions of this Agreement, unless such Noteholders or the Note Insurer shall have offered to the Custodian reasonable security or indemnity in form and substance reasonably satisfactory to the Custodian, against the costs, expenses and liabilities that may be incurred therein or thereby;
(iii) may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, Servicer's Certificate, certificate of auditors, or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond, or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties, and shall have no responsibility for determining the accuracy thereof (except pursuant to Section 10.3(iv)); and
(iv) may consult with counsel, and any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it under this Agreement in good faith and in accordance with such Opinion of Counsel.
(f) If the Custodian shall request instructions from the Servicer or LBAC with respect to any act or action (including failure to act) in connection with this Agreement, the Custodian shall be entitled to refrain from such act or taking such action unless and until the Custodian shall have received instructions from such Person; and the Custodian shall not incur liability to such Person or any other Person by reason of so refraining. Without limiting the foregoing, neither the Servicer, nor LBAC, nor any other Person shall have any right of action whatsoever against the Custodian as a result of the Custodian's acting or refraining from acting in accordance with the Servicer's instructions hereunder, other than any such action arising out of the Custodian's negligence, bad faith or willful misconduct in so acting or refraining from acting.
(g) The Custodian shall physically segregate the Legal Files for the Receivables from all other instruments similar in nature to such Legal Files in its possession, and shall hold the Legal Files so as to reflect the ownership of the Issuer. The Custodian shall xxxx its books, accounts and records to reflect such fact. At its own expense, the Custodian shall maintain at all times during which this Agreement is in effect, fidelity insurance in amounts customary for similar transactions. Such insurance may be maintained by the Custodian in the form of self-insurance.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Long Beach Holdings Corp)
Covenants of the Custodian. (a) The Custodian, either directly or by acting through an agent or nominee (which agent shall not be the Originator or any Affiliate thereof, except as provided in Section 10.8(e) hereof), shall hold the Legal File and all other documents relating to any Receivable that comes into its possession for the exclusive use and benefit of the Issuer and shall make disposition thereof only in accordance with the provisions of this Agreement. The Custodian shall maintain continuous custody of the Legal File and such other documents received by it in secure facilities in accordance with customary standards for such custody and shall not release such documents or transfer such documents to any other party, including any subcustodian, except as otherwise expressly provided herein.
(b) The Custodian covenants and warrants to the Issuer, the Trust Collateral Agent, the Servicer [and the Note Insurer Insurer] that to the knowledge of its Responsible Officers, as of the related date on which the Custodian makes the certification required under Section 3.4 with respect to the Legal Files, it holds no adverse interest, by way of security or otherwise, in any Receivable.
(c) Instructions to the Custodian relating to this Agreement will be carried out by the Custodian, in accordance with the terms and provisions of this Agreement. The Custodian is authorized to conclusively rely on any such instruction that it believes in good faith to have been given by the Servicer pursuant to and in accordance with the terms and provisions of this Agreement. The Custodian may record any such instructions given by telephone, and any other telephone discussions with respect to this Agreement.
(d) The Custodian shall not by reason of this Agreement have a fiduciary relationship in respect of the Servicer or LBAC or any Affiliate thereof, and nothing in this Agreement, express or implied, is intended to or shall be so construed so as to impose upon the Custodian any obligations in respect of this Agreement except as expressly set forth in it. The Custodian, acting as custodian, shall have no responsibility for (i) ascertaining or taking action with respect to exchanges, maturities, tenders or other matters relative to any Receivables, whether or not the Custodian has or is deemed to have knowledge of such matters or (ii) taking any necessary steps to preserve rights against any parties with respect to any Receivables, except as otherwise expressly set forth herein in its capacity as Custodian. The Custodian does not assume and shall have no responsibility for, and makes no representations as to, monitoring the value of the Receivables and the related Legal Files. The Custodian may rely upon the validity of documents delivered to it, without investigation as to their authority or legal effectiveness.
(e) Each of the Servicer, the Issuer, the Transferor and LBAC acknowledges and agrees that the Custodian:
(i) shall not be responsible for any of the agreements set forth in the Purchase Agreement or any other documents or instruments other than this Agreement, including its Exhibits, but shall be obligated only for the performance of such duties as are specifically set forth in this Agreement;
(ii) shall not be under any obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct, or defend any litigation under this Agreement or in relation to this Agreement, at the request, order or direction of any of the Noteholders [or the Note Insurer Insurer] pursuant to the provisions of this Agreement, unless such Noteholders [or the Note Insurer Insurer] shall have offered to the Custodian reasonable security or indemnity in form and substance reasonably satisfactory to the Custodian, against the costs, expenses and liabilities that may be incurred therein or thereby;
(iii) may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, Servicer's Certificate, certificate of auditors, or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond, or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties, and shall have no responsibility for determining the accuracy thereof (except pursuant to Section 10.3(iv)); and
(iv) may consult with counsel, and any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it under this Agreement in good faith and in accordance with such Opinion of Counsel.
(f) If the Custodian shall request instructions from the Servicer or LBAC with respect to any act or action (including failure to act) in connection with this Agreement, the Custodian shall be entitled to refrain from such act or taking such action unless and until the Custodian shall have received instructions from such Person; and the Custodian shall not incur liability to such Person or any other Person by reason of so refraining. Without limiting the foregoing, neither the Servicer, nor LBAC, nor any other Person shall have any right of action whatsoever against the Custodian as a result of the Custodian's acting or refraining from acting in accordance with the Servicer's instructions hereunder, other than any such action arising out of the Custodian's negligence, bad faith or willful misconduct in so acting or refraining from acting.
(g) The Custodian shall physically segregate the Legal Files for the Receivables from all other instruments similar in nature to such Legal Files in its possession, and shall hold the Legal Files so as to reflect the ownership of the Issuer. The Custodian shall xxxx mxxx its books, accounts and records to reflect such fact. At its own expense, the Custodian shall maintain at all times during which this Agreement is in effect, fidelity insurance in amounts customary for similar transactions. Such insurance may be maintained by the Custodian in the form of self-insurance.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Long Beach Acceptance Receivables Corp. II)
Covenants of the Custodian. (a) The Custodian, either directly or by acting through an agent or nominee (which agent shall not be the Originator or any Affiliate thereof, except as provided in Section 10.8(e) hereof), shall hold the Legal File and all other documents relating to any Receivable that comes into its possession for the exclusive use and benefit of the Issuer Trust and shall make disposition thereof only in accordance with the provisions of this Agreement. The Custodian shall segregate the Legal Files and such other documents from all other motor vehicle retail installment sale contracts and similar documents in its possession and maintain continuous custody of the Legal File and such other documents received by it in secure facilities in accordance with customary standards for such custody and shall not release such documents or transfer such documents to any other party, including any subcustodian, except as otherwise expressly provided herein.
(b) The Custodian covenants and warrants to the Issuer, the Trust Collateral AgentTrustee, the Servicer and the Note Certificate Insurer that to the knowledge of its Responsible Officers, as of the related date on which the Custodian makes the certification required under Section 3.4 2.7 with respect to the Legal Files, it holds no adverse interest, by way of security or otherwise, in any Receivable, except as Trustee on behalf of the Trust.
(c) Instructions to the Custodian relating to this Agreement will be carried out by the Custodian, in accordance with the terms and provisions of this Agreement. The Custodian is authorized to conclusively rely on any such instruction that it believes in good faith to have been given by the Servicer pursuant to and in accordance with the terms and provisions of this Agreement. The Custodian may record any such instructions given by telephone, and any other telephone discussions with respect to this Agreement.
(d) The Custodian shall not by reason of this Agreement have a fiduciary relationship in respect of the Servicer or LBAC or any Affiliate thereof, and nothing in this Agreement, express or implied, is intended to or shall be so construed so as to impose upon the Custodian any obligations in respect of this Agreement except as expressly set forth in it. The Custodian, acting as custodian, shall have no responsibility for (i) ascertaining or taking action with respect to exchanges, maturities, tenders or other matters relative to any Receivables, whether or not the Custodian has or is deemed to have knowledge of such matters matters, or (ii) taking any necessary steps to preserve rights against any parties with respect to any Receivables, except as otherwise expressly set forth herein in its capacity as Trustee of the Trust or as Custodian. The Custodian Custodian, acting as custodian, does not assume and shall have no responsibility for, and makes no representations as to, monitoring the value of the Receivables and the related Legal Files. The Custodian Custodian, acting as custodian, may rely upon the validity of documents delivered to it, without investigation as to their authority or legal effectiveness.
(e) Each of the Servicer, the Issuer, the Transferor Depositor and LBAC acknowledges and agrees that the Custodian:
(i) shall not be responsible for any of the agreements set forth in the Purchase Agreement or any other documents or instruments other than this Agreement, including its Exhibits, but shall be obligated only for the performance of such duties as are specifically set forth in this Agreement;
(ii) shall not be under obligated to take any obligation to exercise legal or other action that, in its judgment, might involve any of the rights expense or powers vested in liability unless it by this Agreement, or to institute, conduct, or defend any litigation under this Agreement or in relation to this Agreement, at the request, order or direction of any of the Noteholders or the Note Insurer pursuant to the provisions of this Agreement, unless such Noteholders or the Note Insurer shall have offered to the Custodian reasonable security or indemnity been furnished with indemnification acceptable in form and substance reasonably satisfactory to the Custodian, against the costs, expenses and liabilities that may be incurred therein or thereby;
(iii) may rely on, and shall be protected in acting or refraining from acting upon in good faith on, any resolutionwritten notice, Officer's Certificateinstruction, Servicer's Certificate, certificate of auditors, or any other certificateinstrument, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond, or other paper request or document furnished to it under this Agreement and reasonably believed by it to be genuine and to have been signed or presented by the proper party or partiesPerson, and shall have no responsibility for determining the accuracy thereof (except pursuant to Section 10.3(iv)); thereof, and
(iv) may consult with counsel satisfactory to it, including in-house counsel, and any Opinion the opinion of Counsel such counsel shall be full and complete authorization and protection in respect of any action taken or reasonably taken, suffered or omitted by it under this Agreement in good faith and in accordance with the opinion of such Opinion of Counselcounsel.
(f) If the Custodian shall request instructions from the Servicer or LBAC with respect to any act or action (including failure to act) in connection with this Agreement, the Custodian shall be entitled to refrain from such act or taking such action unless and until the Custodian shall have received instructions from such Person; and the Custodian shall not incur liability to such Person or any other Person by reason of so refraining. Without limiting the foregoing, neither the Servicer, nor LBAC, nor any other Person shall have any right of action whatsoever against the Custodian as a result of the Custodian's acting or refraining from acting in accordance with the Servicer's instructions hereunder, other than any such action arising out of the Custodian's negligence, bad faith or willful misconduct in so acting or refraining from acting.
(g) The Custodian shall physically segregate the Legal Files for the Receivables from all other instruments similar in nature to such Legal Files in its possession, and shall hold the Legal Files so as to reflect the ownership of the IssuerTrust. The Custodian shall xxxx its books, accounts and records to reflect such fact. At its own expense, the Custodian shall maintain at all times during which this Agreement is in effect, fidelity insurance in amounts customary for similar transactions. Such insurance may be maintained by the Custodian in the form of self-insurance.
(h) The Trustee's Fee payable to Chase Texas, as Trustee, pursuant to Section 4.6(c)(ii), shall be the only amount payable to the Custodian for its services as Custodian hereunder.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Long Beach Holdings Corp)
Covenants of the Custodian. (a) The Custodian, either directly or by acting through an agent or nominee (which agent shall not be the Originator or any Affiliate thereof, except as provided in Section 10.8(e) hereof), shall hold the Legal File and all other documents relating to any Receivable that comes into its possession for the exclusive use and benefit of the Issuer Trust and shall make disposition thereof only in accordance with the provisions of this Agreement. The Custodian shall segregate the Legal Files and such other documents from all other motor vehicle retail installment sale contracts and similar documents in its possession and maintain continuous custody of the Legal File and such other documents received by it in secure facilities in accordance with customary standards for such custody and shall not release such documents or transfer such documents to any other party, including any subcustodian, except as otherwise expressly provided herein.
(b) The Custodian covenants and warrants to the Issuer, the Trust Collateral AgentTrustee, the Servicer [and the Note Insurer Certificate Insurer] that to the knowledge of its Responsible Officers, as of the related date on which the Custodian makes the certification required under Section 3.4 2.7 with respect to the Legal Files, it holds no adverse interest, by way of security or otherwise, in any Receivable, except as Trustee on behalf of the Trust.
(c) Instructions to the Custodian relating to this Agreement will be carried out by the Custodian, in accordance with the terms and provisions of this Agreement. The Custodian is authorized to conclusively rely on any such instruction that it believes in good faith to have been given by the Servicer pursuant to and in accordance with the terms and provisions of this Agreement. The Custodian may record any such instructions given by telephone, and any other telephone discussions with respect to this Agreement.
(d) The Custodian shall not by reason of this Agreement have a fiduciary relationship in respect of the Servicer or LBAC or any Affiliate thereof, and nothing in this Agreement, express or implied, is intended to or shall be so construed so as to impose upon the Custodian any obligations in respect of this Agreement except as expressly set forth in it. The Custodian, acting as custodian, shall have no responsibility for (i) ascertaining or taking action with respect to exchanges, maturities, tenders or other matters relative to any Receivables, whether or not the Custodian has or is deemed to have knowledge of such matters matters, or (ii) taking any necessary steps to preserve rights against any parties with respect to any Receivables, except as otherwise expressly set forth herein in its capacity as Trustee of the Trust or as Custodian. The Custodian Custodian, acting as custodian, does not assume and shall have no responsibility for, and makes no representations as to, monitoring the value of the Receivables and the related Legal Files. The Custodian Custodian, acting as custodian, may rely upon the validity of documents delivered to it, without investigation as to their authority or legal effectiveness.
(e) Each of the Servicer, the Issuer, the Transferor Depositor and LBAC acknowledges and agrees that the Custodian:
(i) shall not be responsible for any of the agreements set forth in the Purchase Agreement or any other documents or instruments other than this Agreement, including its Exhibits, but shall be obligated only for the performance of such duties as are specifically set forth in this Agreement;
(ii) shall not be under obligated to take any obligation to exercise legal or other action that, in its judgment, might involve any of the rights expense or powers vested in liability unless it by this Agreement, or to institute, conduct, or defend any litigation under this Agreement or in relation to this Agreement, at the request, order or direction of any of the Noteholders or the Note Insurer pursuant to the provisions of this Agreement, unless such Noteholders or the Note Insurer shall have offered to the Custodian reasonable security or indemnity been furnished with indemnification acceptable in form and substance reasonably satisfactory to the Custodian, against the costs, expenses and liabilities that may be incurred therein or thereby;
(iii) may rely on, and shall be protected in acting or refraining from acting upon in good faith on, any resolutionwritten notice, Officer's Certificateinstruction, Servicer's Certificate, certificate of auditors, or any other certificateinstrument, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond, or other paper request or document furnished to it under this Agreement and reasonably believed by it to be genuine and to have been signed or presented by the proper party or partiesPerson, and shall have no responsibility for determining the accuracy thereof (except pursuant to Section 10.3(iv)); thereof, and
(iv) may consult with counsel satisfactory to it, including in-house counsel, and any Opinion the opinion of Counsel such counsel shall be full and complete authorization and protection in respect of any action taken or reasonably taken, suffered or omitted by it under this Agreement in good faith and in accordance with the opinion of such Opinion of Counselcounsel.
(f) If the Custodian shall request instructions from the Servicer or LBAC with respect to any act or action (including failure to act) in connection with this Agreement, the Custodian shall be entitled to refrain from such act or taking such action unless and until the Custodian shall have received instructions from such Person; and the Custodian shall not incur liability to such Person or any other Person by reason of so refraining. Without limiting the foregoing, neither the Servicer, nor LBAC, nor any other Person shall have any right of action whatsoever against the Custodian as a result of the Custodian's acting or refraining from acting in accordance with the Servicer's instructions hereunder, other than any such action arising out of the Custodian's negligence, bad faith or willful misconduct in so acting or refraining from acting.
(g) The Custodian shall physically segregate the Legal Files for the Receivables from all other instruments similar in nature to such Legal Files in its possession, and shall hold the Legal Files so as to reflect the ownership of the IssuerTrust. The Custodian shall xxxx its books, accounts and records to reflect such fact. At its own expense, the Custodian shall maintain at all times during which this Agreement is in effect, fidelity insurance in amounts customary for similar transactions. Such insurance may be maintained by the Custodian in the form of self-insurance.
(h) The Trustee's Fee payable to [Name of trustee], as Trustee, pursuant to Section 4.6(c)(ii), shall be the only amount payable to the Custodian for its services as Custodian hereunder.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Long Beach Acceptance Corp)
Covenants of the Custodian. During the term of this Custodial Agreement, the Custodian hereby covenants that:
(a) The Custodianin carrying out its obligations hereunder, either directly or by acting through an agent or nominee (which agent the Custodian shall not be take any action that is (i) contrary to the Originator terms of any of the Operative Documents to which it is a party or (ii) would result in the Trust being in default under the terms of any Affiliate thereof, of the Operative Documents except as provided in Section 10.8(e) hereof), shall hold the Legal File and all other documents relating to any Receivable that comes into its possession for the exclusive use and benefit of the Issuer and shall make disposition thereof only in accordance with the provisions of this Agreement. The Custodian shall maintain continuous custody of the Legal File and such other documents received required by it in secure facilities in accordance with customary standards for such custody and shall not release such documents or transfer such documents to any other party, including any subcustodian, except as otherwise expressly provided herein.Applicable Law;
(b) The Custodian covenants and warrants to the Issuer, the Trust Collateral Agent, the Servicer and the Note Insurer that to the knowledge of its Responsible Officers, as of the related date on which the Custodian makes shall at all times be a trust company or an Affiliate of a financial institution, with a Net Worth in excess of $100,000,000, determined in accordance with IFRS or, if does not have a Net Worth in excess of $100,000,000, during the certification required under Section 3.4 with respect to term of this Custodial Agreement and for the Legal Filespurpose of this Custodial Agreement, it holds no adverse interest, by way shall at all times maintain a long-term committed line of security or otherwise, in credit with a Schedule I Bank under the Bank Act (Canada) the available amount of which at any Receivable.one time when added to its Net Worth as determined above shall exceed $100,000,000;
(c) Instructions to the Custodian relating to this Agreement will be carried out by the Custodian, in accordance shall not commingle its assets with the terms and provisions of this Agreement. The Custodian is authorized to conclusively rely on any such instruction that it believes in good faith to have been given by the Servicer pursuant to and in accordance with the terms and provisions of this Agreement. The Custodian may record any such instructions given by telephone, and any other telephone discussions with respect to this Agreement.Trust Property;
(d) The the Custodian shall not by reason of this Agreement have a fiduciary relationship in respect maintain its books and records relating to its other clients separate and apart from those of the Servicer or LBAC or any Affiliate thereofTrust and shall ensure that all records of the Trust that it maintains are maintained in Canada, and nothing in this Agreementthe cost of such maintenance of the records of the Trust (including, express or impliedwithout limitation, is intended all costs associated with the acquisition, maintenance, repair and replacement from time to or time, as may be required, of any dedicated server) shall be so construed so as to impose upon the Custodian any obligations in respect of this Agreement except as expressly set forth in it. The Custodian, acting as custodian, shall have no sole responsibility for (i) ascertaining or taking action with respect to exchanges, maturities, tenders or other matters relative to any Receivables, whether or not the Custodian has or is deemed to have knowledge of such matters or (ii) taking any necessary steps to preserve rights against any parties with respect to any Receivables, except as otherwise expressly set forth herein in its capacity as Custodian. The Custodian does not assume and shall have no responsibility for, and makes no representations as to, monitoring the value of the Receivables and the related Legal Files. The Custodian may rely upon the validity of documents delivered to it, without investigation as to their authority or legal effectiveness.Custodian;
(e) Each the Custodian shall not permit any of the Servicer, Custodial Services to be provided from a jurisdiction other than Canada;
(f) the Issuer, Custodian shall not hold itself out as able to bind the Transferor and LBAC acknowledges and agrees that Trust;
(g) the Custodian:Custodian shall not cause the Trust to become indebted to any Person;
(h) the Custodian shall not cause the Trust to pay or be liable to pay any fees or compensation to any Person;
(i) the Custodian shall not be responsible for any of at all times hold itself out to the agreements set forth in the Purchase Agreement or public as separate and distinct from any other documents or instruments other than this AgreementPerson, including its Exhibitswithout limitation, but shall be obligated only for the performance of such duties as are specifically set forth in this AgreementTrust;
(iij) the Custodian shall not at all times ensure that any and all Trust Property that it holds in accounts maintained with a third party financial institution shall be held in segregated trust accounts of such financial institution;
(k) the Custodian shall at all times maintain insurance coverage, including professional liability insurance, that is reasonably required under normal prudent business practices of a trust company that provides custodial services, shall disclose the general terms and conditions of such coverage upon request from the Trust or the Guarantor, shall provide any obligation to exercise any of document or other material evidencing that the rights or powers vested in it by this Agreement, or to institute, conduct, or defend any litigation under this Agreement or in relation to this Agreement, Custodian has complied with such covenant at the request, order or direction request of any of the Noteholders or the Note Insurer pursuant to the provisions of this Agreement, unless such Noteholders or the Note Insurer shall have offered to the Custodian reasonable security or indemnity in form and substance reasonably satisfactory to the Custodian, against the costs, expenses and liabilities that may be incurred therein or thereby;
(iii) may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, Servicer's Certificate, certificate of auditors, or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond, or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties, and shall have no responsibility for determining inform the accuracy thereof (except pursuant to Trust and Guarantor of any significant change in any insurance coverage in accordance with Section 10.3(iv))11.1 hereof; and
(ivl) may consult with counsel, and any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it under this Agreement in good faith and in accordance with such Opinion of Counsel.
(f) If the Custodian shall upon a reasonable request instructions from the Servicer Trust or LBAC with respect the Guarantor to any act or action modify the Protection Policies (including failure to act) in connection with this Agreementadditions thereto), the Custodian shall be entitled to refrain from such act cooperate with the Trust or taking such action unless and until the Custodian shall have received instructions from such Person; and the Custodian shall not incur liability Guarantor, as applicable, with respect to such Person or any other Person by reason of so refraining. Without limiting the foregoing, neither the Servicer, nor LBAC, nor any other Person shall have any right of action whatsoever against the Custodian as a result of the Custodian's acting or refraining from acting in accordance with the Servicer's instructions hereunder, other than any such action arising out of the Custodian's negligence, bad faith or willful misconduct in so acting or refraining from actingrequest.
(g) The Custodian shall physically segregate the Legal Files for the Receivables from all other instruments similar in nature to such Legal Files in its possession, and shall hold the Legal Files so as to reflect the ownership of the Issuer. The Custodian shall xxxx its books, accounts and records to reflect such fact. At its own expense, the Custodian shall maintain at all times during which this Agreement is in effect, fidelity insurance in amounts customary for similar transactions. Such insurance may be maintained by the Custodian in the form of self-insurance.
Appears in 1 contract
Samples: Custodial Agreement
Covenants of the Custodian. (a) The Custodian, either directly or by acting through an agent or nominee (which agent shall not be the Originator or any Affiliate thereof, except as provided in Section 10.8(e) hereof), shall hold the Legal File and all other documents relating to any Receivable that comes into its possession for the exclusive use and benefit of the Issuer Trust and shall make disposition thereof only in accordance with the provisions of this Agreement. The Custodian shall segregate the Legal Files and such other documents from all other motor vehicle retail installment sale contracts and similar documents in its possession and maintain continuous custody of the Legal File and such other documents received by it in secure facilities in accordance with customary standards for such custody and shall not release such documents or transfer such documents to any other party, including any subcustodian, except as otherwise expressly provided herein.
(b) The Custodian covenants and warrants to the Issuer, the Trust Collateral AgentTrustee, the Servicer and the Note Certificate Insurer that to the knowledge of its Responsible Officers, as of the related date on which the Custodian makes the certification required under Section 3.4 2.7 with respect to the Legal Files, it holds no adverse interest, by way of security or otherwise, in any Receivable, except as Trustee on behalf of the Trust.
(c) Instructions to the Custodian relating to this Agreement will be carried out by the Custodian, in accordance with the terms and provisions of this Agreement. The Custodian is authorized to conclusively rely on any such instruction that it believes in good faith to have been given by the Servicer pursuant to and in accordance with the 41 terms and provisions of this Agreement. The Custodian may record any such instructions given by telephone, and any other telephone discussions with respect to this Agreement.
(d) The Custodian shall not by reason of this Agreement have a fiduciary relationship in respect of the Servicer or LBAC or any Affiliate thereof, and nothing in this Agreement, express or implied, is intended to or shall be so construed so as to impose upon the Custodian any obligations in respect of this Agreement except as expressly set forth in it. The Custodian, acting as custodian, shall have no responsibility for (i) ascertaining or taking action with respect to exchanges, maturities, tenders or other matters relative to any Receivables, whether or not the Custodian has or is deemed to have knowledge of such matters matters, or (ii) taking any necessary steps to preserve rights against any parties with respect to any Receivables, except as otherwise expressly set forth herein in its capacity as Trustee of the Trust or as Custodian. The Custodian Custodian, acting as custodian, does not assume and shall have no responsibility for, and makes no representations as to, monitoring the value of the Receivables and the related Legal Files. The Custodian Custodian, acting as custodian, may rely upon the validity of documents delivered to it, without investigation as to their authority or legal effectiveness.
(e) Each of the Servicer, the Issuer, the Transferor Depositor and LBAC acknowledges and agrees that the Custodian:
(i) shall not be responsible for any of the agreements set forth in the Purchase Agreement or any other documents or instruments other than this Agreement, including its Exhibits, but shall be obligated only for the performance of such duties as are specifically set forth in this Agreement;
(ii) shall not be under obligated to take any obligation to exercise legal or other action that, in its judgment, might involve any of the rights expense or powers vested in liability unless it by this Agreement, or to institute, conduct, or defend any litigation under this Agreement or in relation to this Agreement, at the request, order or direction of any of the Noteholders or the Note Insurer pursuant to the provisions of this Agreement, unless such Noteholders or the Note Insurer shall have offered to the Custodian reasonable security or indemnity been furnished with indemnification acceptable in form and substance reasonably satisfactory to the Custodian, against the costs, expenses and liabilities that may be incurred therein or thereby;
(iii) may rely on, and shall be protected in acting or refraining from acting upon in good faith on, any resolutionwritten notice, Officer's Certificateinstruction, Servicer's Certificate, certificate of auditors, or any other certificateinstrument, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond, or other paper request or document furnished to it under this Agreement and reasonably believed by it to be genuine and to have been signed or presented by the proper party or partiesPerson, and shall have no responsibility for determining the accuracy thereof (except pursuant to Section 10.3(iv)); thereof, and
(iv) may consult with counsel satisfactory to it, including in-house counsel, and any Opinion the opinion of Counsel such counsel shall be full and complete authorization and protection in respect of any action taken or reasonably taken, suffered or omitted by it under this Agreement in good faith and in accordance with the opinion of such Opinion of Counselcounsel.
(f) If the Custodian shall request instructions from the Servicer or LBAC with respect to any act or action (including failure to act) in connection with this Agreement, the Custodian shall be entitled to refrain from such act or taking such action unless and until the Custodian shall have received instructions from such Person; and the Custodian shall not incur liability to such Person or any other Person by reason of so refraining. 42 Without limiting the foregoing, neither the Servicer, nor LBAC, nor any other Person shall have any right of action whatsoever against the Custodian as a result of the Custodian's acting or refraining from acting in accordance with the Servicer's instructions hereunder, other than any such action arising out of the Custodian's negligence, bad faith or willful misconduct in so acting or refraining from acting.
(g) The Custodian shall physically segregate the Legal Files for the Receivables from all other instruments similar in nature to such Legal Files in its possession, and shall hold the Legal Files so as to reflect the ownership of the IssuerTrust. The Custodian shall xxxx its books, accounts and records to reflect such fact. At its own expense, the Custodian shall maintain at all times during which this Agreement is in effect, fidelity insurance in amounts customary for similar transactions. Such insurance may be maintained by the Custodian in the form of self-insurance.
(h) The Trustee's Fee payable to Chase Texas, as Trustee, pursuant to Section 4.6(c)(ii), shall be the only amount payable to the Custodian for its services as Custodian hereunder.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Long Beach Holdings Corp)
