Duties of the Trust Collateral Agent and the Custodian. (a) The Trust Collateral Agent and the Custodian, both prior to the occurrence of an Event of Default and after an Event of Default shall have been cured or waived, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Default shall have occurred and shall not have been cured or waived, the Trust Collateral Agent and the Custodian may, and at the direction of the Note Insurer (or, if a Note Insurer Default shall have occurred and is continuing, the Majorityholders), shall exercise such of the rights and powers vested in it by this Agreement and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of its own affairs. (b) The Trust Collateral Agent and the Custodian, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trust Collateral Agent and the Custodian that shall be specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement; provided, however, that, neither the Trust Collateral Agent nor the Custodian shall be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument. If any such instrument is found not to conform in any material respect to the requirements of this Agreement, the Trust Collateral Agent or the Custodian, as applicable, shall notify the Note Insurer and the Noteholders of such instrument in the event that the Trust Collateral Agent or the Custodian, after so requesting, does not receive a satisfactorily corrected instrument. (c) The Trust Collateral Agent shall take and maintain custody of the Schedule of Receivables included as Schedule A to this Agreement and shall retain copies of all Servicer's Certificates prepared hereunder. (d) No provision of this Agreement shall be construed to relieve the Trust Collateral Agent or the Custodian from liability for its own negligent action, its own negligent failure to act, or its own bad faith; provided, however, that: (i) Prior to the occurrence of an Event of Default and after the curing or waiving of all such Events of Default that may have occurred, the duties and obligations of the Trust Collateral Agent and the Custodian shall be determined solely by the express provisions of this Agreement, neither the Trust Collateral Agent nor the Custodian shall be liable except for the performance of such duties and obligations as shall be specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trust Collateral Agent or the Custodian and, in the absence of bad faith on the part of the Trust Collateral Agent or the Custodian, the Trust Collateral Agent and the Custodian, as applicable, may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Trust Collateral Agent or the Custodian and conforming to the requirements of this Agreement; (ii) Neither the Trust Collateral Agent nor the Custodian shall be liable for an error of judgment made in good faith by a Responsible Officer or officer of the Custodian, respectively, unless it shall be proved that the Trust Collateral Agent or the Custodian, respectively shall have been negligent in ascertaining the pertinent facts; (iii) Neither the Trust Collateral Agent nor the Custodian shall be liable with respect to any action taken, suffered, or omitted to be taken in good faith in accordance with this Agreement or at the direction of the Note Insurer or, after a Note Insurer Default, the Class A Noteholders evidencing not less than 25% of the Class A Note Balance or, after the Policy Expiration Date, by the Class B Noteholders evidencing not less than 25% of the Class B Note Balance, relating to the time, method, and place of conducting any proceeding for any remedy available to the Trust Collateral Agent or the Custodian, or exercising any trust or power conferred upon the Trust Collateral Agent or the Custodian, as applicable, under this Agreement; (iv) Neither the Trust Collateral Agent nor the Custodian shall be charged with knowledge of any Servicer Termination Event or Event of Default, unless a Responsible Officer assigned to the Trust Collateral Agent's Corporate Trust Office or an officer of the Custodian receives written notice of such Servicer Termination Event or Event of Default from the Servicer, the Transferor, the Note Insurer or, after a Note Insurer Default, the Class A Noteholders evidencing not less than 25% of the Class A Note Balance or, after the Policy Expiration Date, by the Class B Noteholders evidencing not less than 25% of the Class B Note Balance (such notice shall constitute actual knowledge of a Servicer Termination Event or Event of Default by the Trust Collateral Agent); and (v) Neither the Trust Collateral Agent nor the Custodian shall be liable for any action taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement. (e) The Trust Collateral Agent and the Custodian may, but shall not be required to, expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, unless it shall have been provided with indemnity against such risk or liability in form and substance satisfactory to the Trust Collateral Agent or Custodian, as applicable, and none of the provisions contained in this Agreement shall in any event require the Trust Collateral Agent or Custodian to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement except during such time, if any, as the Trust Collateral Agent, in its capacity as Back-up Servicer, shall be the successor to, and be vested with the rights, duties, powers, and privileges of, the Servicer in accordance with the terms of this Agreement. (f) Except for actions expressly authorized by this Agreement, neither the Trust Collateral Agent nor the Custodian shall take action reasonably likely to impair the security interests created or existing under any Receivable or Financed Vehicle or to impair the value of any Receivable or Financed Vehicle. (g) All information obtained by the Trust Collateral Agent or the Custodian regarding the Obligors and the Receivables, whether upon the exercise of its rights under this Agreement or otherwise, shall be maintained by the Trust Collateral Agent or the Custodian, as applicable, in confidence and shall not be disclosed to any other Person, all in accordance with the Federal Financial Privacy Law; provided that, nothing herein shall prevent the Trust Collateral Agent or Custodian from delivering copies of such information whether or not constituting Confidential Information, and disclosing other information, whether or not Confidential Information, to (i) its directors, officers, employees, agents and professional consultants to the extent necessary to carry on the Trust Collateral Agent's or the Custodian's business in the ordinary course, (ii) any Noteholder or the Note Insurer to the extent that such Noteholder or the Note Insurer is entitled to such information under this Agreement or any other Basic Document, but not otherwise, (iii) any governmental authority which specifically requests (or as to which applicable regulations require) such information, (iv) any nationally recognized rating agency in connection with the rating of the Notes by such agency, or (v) any other Person to which such delivery or disclosure may be necessary or appropriate (a) in compliance with any applicable law, rule, regulation or order, (b) in response to any subpoena or other legal process, (c) in connection with any litigation to which the Trust Collateral Agent or the Custodian is a party, (d) in order to enforce the rights of the Noteholders and the Note Insurer hereunder or under any other Basic Document, or (e) otherwise, in accordance with the Federal Financial Privacy Law; provided, that, prior to any such disclosure, the Trust Collateral Agent or the Custodian, as applicable, shall inform each such party (other than any Noteholder, the Note Insurer or any other party to the Basic Documents) that receives Confidential Information of the foregoing requirements and shall use its commercially reasonable best efforts to cause such party to comply with such requirements. (h) Money held in trust by the Trust Collateral Agent or the Custodian need not be segregated from other funds except to the extent required by law or the terms of this Agreement or the Indenture. (i) Every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Trust Collateral Agent or the Custodian shall be subject to the provisions of this Section 10.1.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Long Beach Acceptance Corp), Sale and Servicing Agreement (Long Beach Acceptance Corp)
Duties of the Trust Collateral Agent and the Custodian. (a) The Trust Collateral Agent and the Custodian, both prior to the occurrence of an Event of Default and after an Event of Default shall have been cured or waived, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Default shall have occurred and shall not have been cured or waived, the Trust Collateral Agent and the Custodian may, and at the direction of [the Note Insurer (or, if a Note Insurer Default shall have occurred and is continuing, ,] the Majorityholders), shall exercise such of the rights and powers vested in it by this Agreement and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of its own affairs.
(b) The Trust Collateral Agent and the Custodian, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trust Collateral Agent and the Custodian that shall be specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement; provided, however, that, neither the Trust Collateral Agent nor the Custodian shall be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument. If any such instrument is found not to conform in any material respect to the requirements of this Agreement, the Trust Collateral Agent or the Custodian, as applicable, shall notify [the Note Insurer and and] the Noteholders of such instrument in the event that the Trust Collateral Agent or the Custodian, after so requesting, does not receive a satisfactorily corrected instrument.
(c) The Trust Collateral Agent shall take and maintain custody of the Schedule of Receivables included as Schedule A to this Agreement and shall retain copies of all Servicer's Certificates prepared hereunder.
(d) No provision of this Agreement shall be construed to relieve the Trust Collateral Agent or the Custodian from liability for its own negligent action, its own negligent failure to act, or its own bad faith; provided, however, that:
(i) Prior to the occurrence of an Event of Default and after the curing or waiving of all such Events of Default that may have occurred, the duties and obligations of the Trust Collateral Agent and the Custodian shall be determined solely by the express provisions of this Agreement, neither the Trust Collateral Agent nor the Custodian shall be liable except for the performance of such duties and obligations as shall be specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trust Collateral Agent or the Custodian and, in the absence of bad faith on the part of the Trust Collateral Agent or the Custodian, the Trust Collateral Agent and the Custodian, as applicable, may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Trust Collateral Agent or the Custodian and conforming to the requirements of this Agreement;
(ii) Neither the Trust Collateral Agent nor the Custodian shall be liable for an error of judgment made in good faith by a Responsible Officer or officer of the Custodian, respectively, unless it shall be proved that the Trust Collateral Agent or the Custodian, respectively shall have been negligent in ascertaining the pertinent facts;
(iii) Neither the Trust Collateral Agent nor the Custodian shall be liable with respect to any action taken, suffered, or omitted to be taken in good faith in accordance with this Agreement or at the direction of [the Note Insurer or, after a Note Insurer Default, ,] the Class A Noteholders evidencing not less than 25% of the Class A Note Balance or, after the Policy Expiration Date, by the Class B Noteholders evidencing not less than 25% of the Class B Note Balance, relating to the time, method, and place of conducting any proceeding for any remedy available to the Trust Collateral Agent or the Custodian, or exercising any trust or power conferred upon the Trust Collateral Agent or the Custodian, as applicable, under this Agreement;
(iv) Neither the Trust Collateral Agent nor the Custodian shall be charged with knowledge of any Servicer Termination Event or Event of Default, unless a Responsible Officer assigned to the Trust Collateral Agent's Corporate Trust Office or an officer of the Custodian receives written notice of such Servicer Termination Event or Event of Default from the Servicer, the Transferor, [the Note Insurer or, after a Note Insurer Default, ,] the Class A Noteholders evidencing not less than 25% of the Class A Note Balance or, after the Policy Expiration Date, by the Class B Noteholders evidencing not less than 25% of the Class B Note Balance (such notice shall constitute actual knowledge of a Servicer Termination Event or Event of Default by the Trust Collateral Agent); and
(v) Neither the Trust Collateral Agent nor the Custodian shall be liable for any action taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement.
(e) The Trust Collateral Agent and the Custodian may, but shall not be required to, expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, unless it shall have been provided with indemnity against such risk or liability in form and substance satisfactory to the Trust Collateral Agent or Custodian, as applicable, and none of the provisions contained in this Agreement shall in any event require the Trust Collateral Agent or Custodian to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement except during such time, if any, as the Trust Collateral Agent, in its capacity as Back-up Servicer, shall be the successor to, and be vested with the rights, duties, powers, and privileges of, the Servicer in accordance with the terms of this Agreement.
(f) Except for actions expressly authorized by this Agreement, neither the Trust Collateral Agent nor the Custodian shall take action reasonably likely to impair the security interests created or existing under any Receivable or Financed Vehicle or to impair the value of any Receivable or Financed Vehicle.
(g) All information obtained by the Trust Collateral Agent or the Custodian regarding the Obligors and the Receivables, whether upon the exercise of its rights under this Agreement or otherwise, shall be maintained by the Trust Collateral Agent or the Custodian, as applicable, in confidence and shall not be disclosed to any other Person, all in accordance with the Federal Financial Privacy Law; provided that, nothing herein shall prevent the Trust Collateral Agent or Custodian from delivering copies of such information whether or not constituting Confidential Informationconfidential information, and disclosing other information, whether or not Confidential Information, confidential information to (i) its directors, officers, employees, agents and professional consultants to the extent necessary to carry on the Trust Collateral Agent's or the Custodian's business in the ordinary course, (ii) any Noteholder [or the Note Insurer Insurer] to the extent that such Noteholder [or the Note Insurer Insurer] is entitled to such information under this Agreement or any other Basic DocumentAgreement, but not otherwise, (iii) any governmental authority which specifically requests (or as to which applicable regulations require) such information, (iv) any nationally recognized rating agency in connection with the rating of the Notes by such agency, or (v) any other Person to which such delivery or disclosure may be necessary or appropriate appropriate, (a) in compliance with any applicable law, rule, regulation or order, (b) in response to any subpoena or other legal process, (c) in connection with any litigation to which the Trust Collateral Agent or the Custodian is a party, party or (d) in order to protect or enforce the rights of the Noteholders [and the Note Insurer hereunder or Insurer] under any other Basic Document, or (e) otherwise, in accordance with the Federal Financial Privacy Law; provided, that, prior to any such disclosure, the Trust Collateral Agent or the Custodian, as applicable, shall inform each such party (other than any Noteholder, the Note Insurer or any other party to the Basic Documents) that receives Confidential Information of the foregoing requirements and shall use its commercially reasonable best efforts to cause such party to comply with such requirementsIssuer established hereunder.
(h) Money held in trust by the Trust Collateral Agent or the Custodian need not be segregated from other funds except to the extent required by law or the terms of this Agreement or the Indenture.
(i) Every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Trust Collateral Agent or the Custodian shall be subject to the provisions of this Section 10.1.
(j) The Trust Collateral Agent and the Custodian each shall, and each hereby agrees that it will, perform all of the obligations and duties required of it under the Sale and Servicing Agreement.
(k) [The Trust Collateral Agent shall, and hereby agrees that it will, hold the Note Policy in trust, and will hold any proceeds of any claim on the Note Policy in trust, solely for the use and benefit of the Noteholders.]
(l) Without limiting the generality of this Section 10.1, the Trust Collateral Agent and the Custodian each shall have no duty (i) to see to any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement evidencing a security interest in the Financed Vehicles, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof, (ii) to see to any insurance of the Financed Vehicles or Obligors or to effect or maintain any such insurance, (iii) to see to the payment or discharge of any tax, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against any part of the Pledged Property, (iv) to confirm or verify the contents of any reports or certificates delivered to the Trust Collateral Agent or the Servicer pursuant to this Agreement or the Trust Agreement believed by the Trust Collateral Agent or the Custodian, as applicable, to be genuine and to have been signed or presented by the proper party or parties, or (v) to inspect the Financed Vehicles at any time or ascertain or inquire as to the performance of observance of any of the Issuer's, the Transferor's or the Servicer's representations, warranties or covenants or the Servicer's duties and obligations as servicer and as custodian of the Receivable Files under the Sale and Servicing Agreement.
(m) In no event shall [Name of indenture trustee], in any of its capacities hereunder, be deemed to have assumed any duties of the Owner Trustee under the Delaware Business Trust Statute, common law, or the Trust Agreement.
(n) Neither the Trust Collateral Agent nor the Custodian shall be required to give any bond or surety in respect of the powers granted to it under this Agreement.
Appears in 2 contracts
Samples: Sale and Servicing Agreement (Long Beach Acceptance Receivables Corp. II), Sale and Servicing Agreement (Long Beach Acceptance Receivables Corp.)
Duties of the Trust Collateral Agent and the Custodian. (a) The Trust Collateral Agent and the Custodian, both prior to the occurrence of an Event of Default and after an Event of Default shall have been cured or waived, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Default shall have occurred and shall not have been cured or waived, the Trust Collateral Agent and the Custodian may, and at the direction of the Note Insurer (or, if a Note Insurer Default shall have occurred and is continuing, the Majorityholders), shall exercise such of the rights and powers vested in it by this Agreement and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of its own affairs.
(b) The Trust Collateral Agent and the Custodian, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the 58 Trust Collateral Agent and the Custodian that shall be specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement; providedPROVIDED, howeverHOWEVER, that, neither the Trust Collateral Agent nor the Custodian shall be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument. If any such instrument is found not to conform in any material respect to the requirements of this Agreement, the Trust Collateral Agent or the Custodian, as applicable, shall notify the Note Insurer and the Noteholders of such instrument in the event that the Trust Collateral Agent or the Custodian, after so requesting, does not receive a satisfactorily corrected instrument.
(c) The Trust Collateral Agent shall take and maintain custody of the Schedule of Receivables included as Schedule A to this Agreement and shall retain copies of all Servicer's Certificates prepared hereunder.
(d) No provision of this Agreement shall be construed to relieve the Trust Collateral Agent or the Custodian from liability for its own negligent action, its own negligent failure to act, or its own bad faith; providedPROVIDED, howeverHOWEVER, that:
(i) Prior to the occurrence of an Event of Default and after the curing or waiving of all such Events of Default that may have occurred, the duties and obligations of the Trust Collateral Agent and the Custodian shall be determined solely by the express provisions of this Agreement, neither the Trust Collateral Agent nor the Custodian shall be liable except for the performance of such duties and obligations as shall be specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trust Collateral Agent or the Custodian and, in the absence of bad faith on the part of the Trust Collateral Agent or the Custodian, the Trust Collateral Agent and the Custodian, as applicable, may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Trust Collateral Agent or the Custodian and conforming to the requirements of this Agreement;
(ii) Neither the Trust Collateral Agent nor the Custodian shall be liable for an error of judgment made in good faith by a Responsible Officer or officer of the Custodian, respectively, unless it shall be proved that the Trust Collateral Agent or the Custodian, respectively shall have been negligent in ascertaining the pertinent facts;
(iii) Neither the Trust Collateral Agent nor the Custodian shall be liable with respect to any action taken, suffered, or omitted to be taken in good faith in accordance with this Agreement or at the direction of the Note Insurer or, after a Note Insurer Default, the Class A Noteholders evidencing not less than 25% of the Class A Note Balance or, after the Policy Expiration Date, by the Class B Noteholders Noteholders, evidencing not less than 25% of the Class B Note Balance, relating to the time, method, and place of conducting any proceeding for any remedy available to the Trust Collateral Agent or the Custodian, or exercising any trust or power conferred upon the Trust Collateral Agent or the Custodian, as applicable, under this Agreement;
(iv) Neither the Trust Collateral Agent nor the Custodian shall be charged with knowledge of any Servicer Termination Event or Event of Default, unless a Responsible Officer assigned to the Trust Collateral Agent's Corporate Trust Office or an officer of the Custodian receives written notice of such Servicer Termination Event or Event of Default from the Servicer, the Transferor, the Note Insurer or, after a Note Insurer Default, the Class A Noteholders evidencing not less than 25% of the Class A Note Balance or, after the Policy Expiration Date, by the Class B Noteholders Noteholders, evidencing not less than 25% of the Class B Note Balance (such notice shall constitute actual knowledge of a Servicer Termination Event or Event of Default by the Trust Collateral Agent); and
(v) Neither the Trust Collateral Agent nor the Custodian shall be liable for any action taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement.
(e) The Trust Collateral Agent and the Custodian may, but shall not be required to, expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, unless it shall have been provided with indemnity against such risk or liability in form and substance satisfactory to the Trust Collateral Agent or Custodian, as applicable, and none of the provisions contained in this Agreement shall in any event require the Trust Collateral Agent or Custodian to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement except during such time, if any, as the Trust Collateral Agent, in its capacity as Back-up Servicer, shall be the successor to, and be vested with the rights, duties, powers, and privileges of, the Servicer in accordance with the terms of this Agreement.
(f) Except for actions expressly authorized by this Agreement, neither the Trust Collateral Agent nor the Custodian shall take action reasonably likely to impair the security interests created or existing under any Receivable or Financed Vehicle or to impair the value of any Receivable or Financed Vehicle.
(g) All information obtained by the Trust Collateral Agent or the Custodian regarding the Obligors and the Receivables, whether upon the exercise of its rights under this Agreement or otherwise, shall be maintained by the Trust Collateral Agent or the Custodian, as applicable, in confidence and shall not be disclosed to any other Person, all in accordance with the Federal Financial Privacy Law; provided PROVIDED that, nothing herein shall prevent the Trust Collateral Agent or Custodian from delivering copies of such information whether or not constituting Confidential Informationconfidential information, and disclosing other information, whether or not Confidential Information, confidential information to (i) its directors, officers, employees, agents and professional consultants to the extent necessary to carry on the Trust Collateral Agent's or the Custodian's business in the ordinary course, (ii) any Noteholder or the Note Insurer to the extent that such Noteholder or the Note Insurer is entitled to such information under this Agreement or any other Basic DocumentAgreement, but not otherwise, (iii) any governmental authority which specifically requests (or as to which applicable regulations require) such information, (iv) any nationally recognized rating agency in connection with the rating of the Notes by such agency, or (v) any other Person to which such delivery or disclosure may be necessary or appropriate appropriate, (a) in compliance with any applicable law, rule, regulation or order, (b) in response to any subpoena or other legal process, (c) in connection with any litigation to which the Trust Collateral Agent or the Custodian is a party, party or (d) in order to protect 60 or enforce the rights of the Noteholders and the Note Insurer hereunder or under any other Basic Document, or (e) otherwise, in accordance with the Federal Financial Privacy Law; provided, that, prior to any such disclosure, the Trust Collateral Agent or the Custodian, as applicable, shall inform each such party (other than any Noteholder, the Note Insurer or any other party to the Basic Documents) that receives Confidential Information of the foregoing requirements and shall use its commercially reasonable best efforts to cause such party to comply with such requirementsIssuer established hereunder.
(h) Money held in trust by the Trust Collateral Agent or the Custodian need not be segregated from other funds except to the extent required by law or the terms of this Agreement or the Indenture.
(i) Every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Trust Collateral Agent or the Custodian shall be subject to the provisions of this Section 10.1.
(j) The Trust Collateral Agent and the Custodian each shall, and each hereby agrees that it will, perform all of the obligations and duties required of it under the Sale and Servicing Agreement.
(k) The Trust Collateral Agent shall, and hereby agrees that it will, hold the Note Policy in trust, and will hold any proceeds of any claim on the Note Policy in trust, solely for the use and benefit of the Class A Noteholders.
(l) Without limiting the generality of this Section 10.1, the Trust Collateral Agent and the Custodian each shall have no duty (i) to see to any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement evidencing a security interest in the Financed Vehicles, or to see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof, (ii) to see to any insurance of the Financed Vehicles or Obligors or to effect or maintain any such insurance, (iii) to see to the payment or discharge of any tax, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against any part of the Pledged Property, (iv) to confirm or verify the contents of any reports or certificates delivered to the Trust Collateral Agent or the Servicer pursuant to this Agreement or the Trust Agreement believed by the Trust Collateral Agent or the Custodian, as applicable, to be genuine and to have been signed or presented by the proper party or parties, or (v) to inspect the Financed Vehicles at any time or ascertain or inquire as to the performance of observance of any of the Issuer's, the Transferor's or the Servicer's representations, warranties or covenants or the Servicer's duties and obligations as servicer and as custodian of the Receivable Files under the Sale and Servicing Agreement.
(m) In no event shall The Chase Manhattan Bank, in any of its capacities hereunder, be deemed to have assumed any duties of the Owner Trustee under the Delaware Business Trust Statute, common law, or the Trust Agreement.
(n) Neither the Trust Collateral Agent nor the Custodian shall be required to give any bond or surety in respect of the powers granted to it under this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Long Beach Holdings Corp)
Duties of the Trust Collateral Agent and the Custodian. (a) The Trust Collateral Agent and the Custodian, both prior to the occurrence of an Event of Default and after an Event of Default shall have been cured or waived, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Default shall have occurred and shall not have been cured or waived, the Trust Collateral Agent and the Custodian may, and at the direction of the Note Insurer (or, if a Note Insurer Default shall have occurred and is continuing, the Majorityholders), shall exercise such of the rights and powers vested in it by this Agreement and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of its own affairs.
(b) The Trust Collateral Agent and the Custodian, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trust Collateral Agent and the Custodian that shall be specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement; providedPROVIDED, howeverHOWEVER, that, neither the Trust Collateral Agent nor the Custodian shall be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument. If any such instrument is found not to conform in any material respect to the requirements of this Agreement, the Trust Collateral Agent or the Custodian, as applicable, shall notify the Note Insurer and the Noteholders of such instrument in the event that the Trust Collateral Agent or the Custodian, after so requesting, does not receive a satisfactorily corrected instrument.
(c) The Trust Collateral Agent shall take and maintain custody of the Schedule of Receivables included as Schedule A to this Agreement and shall retain copies of all Servicer's Certificates prepared hereunder.
(d) No provision of this Agreement shall be construed to relieve the Trust Collateral Agent or the Custodian from liability for its own negligent action, its own negligent failure to act, or its own bad faith; providedPROVIDED, howeverHOWEVER, that:
(i) Prior to the occurrence of an Event of Default and after the curing or waiving of all such Events of Default that may have occurred, the duties and obligations of the Trust Collateral Agent and the Custodian shall be determined solely by the express provisions of this Agreement, neither the Trust Collateral Agent nor the Custodian shall be liable except for the performance of such duties and obligations as shall be specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trust Collateral Agent or the Custodian and, in the absence of bad faith on the part of the Trust Collateral Agent or the Custodian, the Trust Collateral Agent and the Custodian, as applicable, may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Trust Collateral Agent or the Custodian and conforming to the requirements of this Agreement;
(ii) Neither the Trust Collateral Agent nor the Custodian shall be liable for an error of judgment made in good faith by a Responsible Officer or officer of the Custodian, respectively, unless it shall be proved that the Trust Collateral Agent or the Custodian, respectively shall have been negligent in ascertaining the pertinent facts;
(iii) Neither the Trust Collateral Agent nor the Custodian shall be liable with respect to any action taken, suffered, or omitted to be taken in good faith in accordance with this Agreement or at the direction of the Note Insurer or, after a Note Insurer Default, the Class A Noteholders evidencing not less than 25% of the Class A Note Balance or, after the Policy Expiration Date, by the Class B Noteholders Noteholders, evidencing not less than 25% of the Class B Note Balance, relating to the time, method, and place of conducting any proceeding for any remedy available to the Trust Collateral Agent or the Custodian, or exercising any trust or power conferred upon the Trust Collateral Agent or the Custodian, as applicable, under this Agreement;
(iv) Neither the Trust Collateral Agent nor the Custodian shall be charged with knowledge of any Servicer Termination Event or Event of Default, unless a Responsible Officer assigned to the Trust Collateral Agent's Corporate Trust Office or an officer of the Custodian receives written notice of such Servicer Termination Event or Event of Default from the Servicer, the Transferor, the Note Insurer or, after a Note Insurer Default, the Class A Noteholders evidencing not less than 25% of the Class A Note Balance or, after the Policy Expiration Date, by the Class B Noteholders Noteholders, evidencing not less than 25% of the Class B Note Balance (such notice shall constitute actual knowledge of a Servicer Termination Event or Event of Default by the Trust Collateral Agent); and
(v) Neither the Trust Collateral Agent nor the Custodian shall be liable for any action taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement.
(e) The Trust Collateral Agent and the Custodian may, but shall not be required to, expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, unless it shall have been provided with indemnity against such risk or liability in form and substance satisfactory to the Trust Collateral Agent or Custodian, as applicable, and none of the provisions contained in this Agreement shall in any event require the Trust Collateral Agent or Custodian to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement except during such time, if any, as the Trust Collateral Agent, in its capacity as Back-Back- up Servicer, shall be the successor to, and be vested with the rights, duties, powers, and privileges of, the Servicer in accordance with the terms of this Agreement.
(f) Except for actions expressly authorized by this Agreement, neither the Trust Collateral Agent nor the Custodian shall take action reasonably likely to impair the security interests created or existing under any Receivable or Financed Vehicle or to impair the value of any Receivable or Financed Vehicle.
(g) All information obtained by the Trust Collateral Agent or the Custodian regarding the Obligors and the Receivables, whether upon the exercise of its rights under this Agreement or otherwise, shall be maintained by the Trust Collateral Agent or the Custodian, as applicable, in confidence and shall not be disclosed to any other Person, all in accordance with the Federal Financial Privacy Law; provided PROVIDED that, nothing herein shall prevent the Trust Collateral Agent or Custodian from delivering copies of such information whether or not constituting Confidential Informationconfidential information, and disclosing other information, whether or not Confidential Information, confidential information to (i) its directors, officers, employees, agents and professional consultants to the extent necessary to carry on the Trust Collateral Agent's or the Custodian's business in the ordinary course, (ii) any Noteholder or the Note Insurer to the extent that such Noteholder or the Note Insurer is entitled to such information under this Agreement or any other Basic DocumentAgreement, but not otherwise, (iii) any governmental authority which specifically requests (or as to which applicable regulations require) such information, (iv) any nationally recognized rating agency in connection with the rating of the Notes by such agency, or (v) any other Person to which such delivery or disclosure may be necessary or appropriate appropriate, (a) in compliance with any applicable law, rule, regulation or order, (b) in response to any subpoena or other legal process, (c) in connection with any litigation to which the Trust Collateral Agent or the Custodian is a party, party or (d) in order to protect or enforce the rights of the Noteholders and the Note Insurer hereunder or under any other Basic Document, or (e) otherwise, in accordance with the Federal Financial Privacy Law; provided, that, prior to any such disclosure, the Trust Collateral Agent or the Custodian, as applicable, shall inform each such party (other than any Noteholder, the Note Insurer or any other party to the Basic Documents) that receives Confidential Information of the foregoing requirements and shall use its commercially reasonable best efforts to cause such party to comply with such requirementsIssuer established hereunder.
(h) Money held in trust by the Trust Collateral Agent or the Custodian need not be segregated from other funds except to the extent required by law or the terms of this Agreement or the Indenture.
(i) Every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Trust Collateral Agent or the Custodian shall be subject to the provisions of this Section 10.1.
(j) The Trust Collateral Agent and the Custodian each shall, and each hereby agrees that it will, perform all of the obligations and duties required of it under the Sale and Servicing Agreement.
(k) The Trust Collateral Agent shall, and hereby agrees that it will, hold the Note Policy in trust, and will hold any proceeds of any claim on the Note Policy in trust, solely for the use and benefit of the Class A Noteholders.
(l) Without limiting the generality of this Section 10.1, the Trust Collateral Agent and the Custodian each shall have no duty (i) to see to any recording, filing or depositing of this Agreement or any agreement referred to herein or any financing statement evidencing a security interest in the Financed Vehicles, or to see to the maintenance of any such recording or filing or 60 depositing or to any recording, refiling or redepositing of any thereof, (ii) to see to any insurance of the Financed Vehicles or Obligors or to effect or maintain any such insurance, (iii) to see to the payment or discharge of any tax, assessment or other governmental charge or any Lien or encumbrance of any kind owing with respect to, assessed or levied against any part of the Pledged Property, (iv) to confirm or verify the contents of any reports or certificates delivered to the Trust Collateral Agent or the Servicer pursuant to this Agreement or the Trust Agreement believed by the Trust Collateral Agent or the Custodian, as applicable, to be genuine and to have been signed or presented by the proper party or parties, or (v) to inspect the Financed Vehicles at any time or ascertain or inquire as to the performance of observance of any of the Issuer's, the Transferor's or the Servicer's representations, warranties or covenants or the Servicer's duties and obligations as servicer and as custodian of the Receivable Files under the Sale and Servicing Agreement.
(m) In no event shall The Chase Manhattan Bank, in any of its capacities hereunder, be deemed to have assumed any duties of the Owner Trustee under the Delaware Business Trust Statute, common law, or the Trust Agreement.
(n) Neither the Trust Collateral Agent nor the Custodian shall be required to give any bond or surety in respect of the powers granted to it under this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Long Beach Holdings Corp)
Duties of the Trust Collateral Agent and the Custodian. (a) The Trust Collateral Agent and the Custodian, both prior to the occurrence of an Event of Default and after an Event of Default shall have been cured or waived, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Default shall have occurred and shall not have been cured or waived, the Trust Collateral Agent and the Custodian may, and at the direction of the Note Insurer (or, if a Note Insurer Default shall have occurred and is continuing, the Majorityholders), shall exercise such of the rights and powers vested in it by this Agreement and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of its own affairs.
(b) The Trust Collateral Agent and the Custodian, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trust Collateral Agent and the Custodian that shall be specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement; providedPROVIDED, howeverHOWEVER, that, neither the Trust Collateral Agent nor the Custodian shall be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument. If any such instrument is found not to conform in any material respect to the requirements of this Agreement, the Trust Collateral Agent or the Custodian, as applicable, shall notify the Note Insurer and the Noteholders of such instrument in the event that the Trust Collateral Agent or the Custodian, after so requesting, does not receive a satisfactorily corrected instrument.
(c) The Trust Collateral Agent shall take and maintain custody of the Schedule of Receivables included as Schedule A to this Agreement and shall retain copies of all Servicer's Certificates prepared hereunder.
(d) No provision of this Agreement shall be construed to relieve the Trust Collateral Agent or the Custodian from liability for its own negligent action, its own negligent failure to act, or its own bad faith; providedPROVIDED, howeverHOWEVER, that:
(i) Prior to the occurrence of an Event of Default and after the curing or waiving of all such Events of Default that may have occurred, the duties and obligations of the Trust Collateral Agent and the Custodian shall be determined solely by the express provisions of this Agreement, neither the Trust Collateral Agent nor the Custodian shall be liable except for the performance of such duties and obligations as shall be specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trust Collateral Agent or the Custodian and, in the absence of bad faith on the part of the Trust Collateral Agent or the Custodian, the Trust Collateral Agent and the Custodian, as applicable, may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Trust Collateral Agent or the Custodian and conforming to the requirements of this Agreement;
(ii) Neither the Trust Collateral Agent nor the Custodian shall be liable for an error of judgment made in good faith by a Responsible Officer or officer of the Custodian, respectively, unless it shall be proved that the Trust Collateral Agent or the Custodian, respectively shall have been negligent in ascertaining the pertinent facts;
(iii) Neither the Trust Collateral Agent nor the Custodian shall be liable with respect to any action taken, suffered, or omitted to be taken in good faith in accordance with this Agreement or at the direction of the Note Insurer or, after a Note Insurer Default, the Class A Noteholders evidencing not less than 25% of the Class A Note Balance or, after the Policy Expiration Date, by the Class B Noteholders evidencing not less than 25% of the Class B Note Balance, relating to the time, method, and place of conducting any proceeding for any remedy available to the Trust Collateral Agent or the Custodian, or exercising any trust or power conferred upon the Trust Collateral Agent or the Custodian, as applicable, under this Agreement;
(iv) Neither the Trust Collateral Agent nor the Custodian shall be charged with knowledge of any Servicer Termination Event or Event of Default, unless a Responsible Officer assigned to the Trust Collateral Agent's Corporate Trust Office or an officer of the Custodian receives written notice of such Servicer Termination Event or Event of Default from the Servicer, the Transferor, the Note Insurer or, after a Note Insurer Default, the Class A Noteholders evidencing not less than 25% of the Class A Note Balance or, after the Policy Expiration Date, by the Class B Noteholders evidencing not less than 25% of the Class B Note Balance (such notice shall constitute actual knowledge of a Servicer Termination Event or Event of Default by the Trust Collateral Agent); and
(v) Neither the Trust Collateral Agent nor the Custodian shall be liable for any action taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement.
(e) The Trust Collateral Agent and the Custodian may, but shall not be required to, expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, unless it shall have been provided with indemnity against such risk or liability in form and substance satisfactory to the Trust Collateral Agent or Custodian, as applicable, and none of the provisions contained in this Agreement shall in any event require the Trust Collateral Agent or Custodian to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement except during such time, if any, as the Trust Collateral Agent, in its capacity as Back-up Servicer, shall be the successor to, and be vested with the rights, duties, powers, and privileges of, the Servicer in accordance with the terms of this Agreement.
(f) Except for actions expressly authorized by this Agreement, neither the Trust Collateral Agent nor the Custodian shall take action reasonably likely to impair the security interests created or existing under any Receivable or Financed Vehicle or to impair the value of any Receivable or Financed Vehicle.
(g) All information obtained by the Trust Collateral Agent or the Custodian regarding the Obligors and the Receivables, whether upon the exercise of its rights under this Agreement or otherwise, shall be maintained by the Trust Collateral Agent or the Custodian, as applicable, in confidence and shall not be disclosed to any other Person, all in accordance with the Federal Financial Privacy Law; provided PROVIDED that, nothing herein shall prevent the Trust Collateral Agent or Custodian from delivering copies of such information whether or not constituting Confidential Information, and disclosing other information, whether or not Confidential Information, to (i) its directors, officers, employees, agents and professional consultants to the extent necessary to carry on the Trust Collateral Agent's or the Custodian's business in the ordinary course, (ii) any Noteholder or the Note Insurer to the extent that such Noteholder or the Note Insurer is entitled to such information under this Agreement or any other Basic Document, but not otherwise, (iii) any governmental authority which specifically requests (or as to which applicable regulations require) such information, (iv) any nationally recognized rating agency in connection with the rating of the Notes by such agency, or (v) any other Person to which such delivery or disclosure may be necessary or appropriate (a) in compliance with any applicable law, rule, regulation or order, (b) in response to any subpoena or other legal process, (c) in connection with any litigation to which the Trust Collateral Agent or the Custodian is a party, (d) in order to enforce the rights of the Noteholders and the Note Insurer hereunder or under any other Basic Document, or (e) otherwise, in accordance with the Federal Financial Privacy Law; providedPROVIDED, that, prior to any such disclosure, the Trust Collateral Agent or the Custodian, as applicable, shall inform each such party (other than any Noteholder, the Note Insurer or any other party to the Basic Documents) that receives Confidential Information of the foregoing requirements and shall use its commercially reasonable best efforts to cause such party to comply with such requirements.
(h) Money held in trust by the Trust Collateral Agent or the Custodian need not be segregated from other funds except to the extent required by law or the terms of this Agreement or the Indenture.
(i) Every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Trust Collateral Agent or the Custodian shall be subject to the provisions of this Section 10.1.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Long Beach Holdings Corp)
Duties of the Trust Collateral Agent and the Custodian. (a) The Trust Collateral Agent and the Custodian, both prior to the occurrence of an Event of Default and after an Event of Default shall have been cured or waived, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Default shall have occurred and shall not have been cured or waived, the Trust Collateral Agent and the Custodian may, and at the direction of the Note Insurer (or, if a Note Insurer Default shall have occurred and is continuing, the Majorityholders), shall exercise such of the rights and powers vested in it by this Agreement and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of its own affairs.
(b) The Trust Collateral Agent and the Custodian, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trust Collateral Agent and the Custodian that shall be specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement; providedPROVIDED, howeverHOWEVER, that, neither the Trust Collateral Agent nor the Custodian shall be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument. If any such instrument is found not to conform in any material respect to the requirements of this Agreement, the Trust Collateral Agent or the Custodian, as applicable, shall notify the Note Insurer and the Noteholders of such instrument in the event that the Trust Collateral Agent or the Custodian, after so requesting, does not receive a satisfactorily corrected instrument.
(c) The Trust Collateral Agent shall take and maintain custody of the Schedule of Receivables included as Schedule A to this Agreement and shall retain copies of all Servicer's Certificates prepared hereunder.
(d) No provision of this Agreement shall be construed to relieve the Trust Collateral Agent or the Custodian from liability for its own negligent action, its own negligent failure to act, or its own bad faith; providedPROVIDED, howeverHOWEVER, that:
(i) Prior to the occurrence of an Event of Default and after the curing or waiving of all such Events of Default that may have occurred, the duties and obligations of the Trust Collateral Agent and the Custodian shall be determined solely by the express provisions of this Agreement, neither the Trust Collateral Agent nor the Custodian shall be liable except for the performance of such duties and obligations as shall be specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trust Collateral Agent or the Custodian and, in the absence of bad faith on the part of the Trust Collateral Agent or the Custodian, the Trust Collateral Agent and the Custodian, as applicable, may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Trust Collateral Agent or the Custodian and conforming to the requirements of this Agreement;
(ii) Neither the Trust Collateral Agent nor the Custodian shall be liable for an error of judgment made in good faith by a Responsible Officer or officer of the Custodian, respectively, unless it shall be proved that the Trust Collateral Agent or the Custodian, respectively shall have been negligent in ascertaining the pertinent facts;
(iii) Neither the Trust Collateral Agent nor the Custodian shall be liable with respect to any action taken, suffered, or omitted to be taken in good faith in accordance with this Agreement or at the direction of the Note Insurer or, after a Note Insurer Default, the Class A Noteholders evidencing not less than 25% of the Class A Note Balance or, after the Policy Expiration Date, by the Class B Noteholders evidencing not less than 25% of the Class B Note Balance, relating to the time, method, and place of conducting any proceeding for any remedy available to the Trust Collateral Agent or the Custodian, or exercising any trust or power conferred upon the Trust Collateral Agent or the Custodian, as applicable, under this Agreement;
(iv) Neither the Trust Collateral Agent nor the Custodian shall be charged with knowledge of any Servicer Termination Event or Event of Default, unless a Responsible Officer assigned to the Trust Collateral Agent's Corporate Trust Office or an officer of the Custodian receives written notice of such Servicer Termination Event or Event of Default from the Servicer, the Transferor, the Note Insurer or, after a Note Insurer Default, the Class A Noteholders evidencing not less than 25% of the Class A Note Balance or, after the Policy Expiration Date, by the Class B Noteholders evidencing not less than 25% of the Class B Note Balance (such notice shall constitute actual knowledge of a Servicer Termination Event or Event of Default by the Trust Collateral Agent); and
(v) Neither the Trust Collateral Agent nor the Custodian shall be liable for any action taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement.
(e) The Trust Collateral Agent and the Custodian may, but shall not be required to, expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, unless it shall have been provided with indemnity against such risk or liability in form and substance satisfactory to the Trust Collateral Agent or Custodian, as applicable, and none of the provisions contained in this Agreement shall in any event require the Trust Collateral Agent or Custodian to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement except during such time, if any, as the Trust Collateral Agent, in its capacity as Back-up Servicer, shall be the successor to, and be vested with the rights, duties, powers, and privileges of, the Servicer in accordance with the terms of this Agreement.
(f) Except for actions expressly authorized by this Agreement, neither the Trust Collateral Agent nor the Custodian shall take action reasonably likely to impair the security interests created or existing under any Receivable or Financed Vehicle or to impair the value of any Receivable or Financed Vehicle.
(g) All information obtained by the Trust Collateral Agent or the Custodian regarding the Obligors and the Receivables, whether upon the exercise of its rights under this Agreement or otherwise, shall be maintained by the Trust Collateral Agent or the Custodian, as applicable, in confidence and shall not be disclosed to any other Person, all in accordance with the Federal Financial Privacy Law; provided PROVIDED that, nothing herein shall prevent the Trust Collateral Agent or Custodian from delivering copies of such information whether or not constituting Confidential Informationconfidential information, and disclosing other information, whether or not Confidential Information, confidential information to (i) its directors, officers, employees, agents and professional consultants to the extent necessary to carry on the Trust Collateral Agent's or the Custodian's business in the ordinary course, (ii) any Noteholder or the Note Insurer to the extent that such Noteholder or the Note Insurer is entitled to such information under this Agreement or any other Basic DocumentAgreement, but not otherwise, (iii) any governmental authority which specifically requests (or as to which applicable regulations require) such information, (iv) any nationally recognized rating agency in connection with the rating of the Notes by such agency, or (v) any other Person to which such delivery or disclosure may be necessary or appropriate appropriate, (a) in compliance with any applicable law, rule, regulation or order, (b) in response to any subpoena or other legal process, (c) in connection with any litigation to which the Trust Collateral Agent or the Custodian is a party, party or (d) in order to protect or enforce the rights of the Noteholders and the Note Insurer hereunder or under any other Basic Document, or (e) otherwise, in accordance with the Federal Financial Privacy Law; provided, that, prior to any such disclosure, the Trust Collateral Agent or the Custodian, as applicable, shall inform each such party (other than any Noteholder, the Note Insurer or any other party to the Basic Documents) that receives Confidential Information of the foregoing requirements and shall use its commercially reasonable best efforts to cause such party to comply with such requirementsIssuer established hereunder.
(h) Money held in trust by the Trust Collateral Agent or the Custodian need not be segregated from other funds except to the extent required by law or the terms of this Agreement or the Indenture.
(i) Every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Trust Collateral Agent or the Custodian shall be subject to the provisions of this Section 10.1.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Long Beach Holdings Corp)
Duties of the Trust Collateral Agent and the Custodian. (a) The Trust Collateral Agent and the Custodian, both prior to the occurrence of an Event of Default and after an Event of Default shall have been cured or waived, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Default shall have occurred and shall not have been cured or waived, the Trust Collateral Agent and the Custodian may, and at the direction of the Note Insurer (or, if a Note Insurer Default shall have occurred and is continuing, the Majorityholders), shall exercise such of the rights and powers vested in it by this Agreement and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of its own affairs.
(b) The Trust Collateral Agent and the Custodian, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trust Collateral Agent and the Custodian that shall be specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement; providedPROVIDED, howeverHOWEVER, that, neither the Trust Collateral Agent nor the Custodian shall be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument. If any such instrument is found not to conform in any material respect to the requirements of this Agreement, the Trust Collateral Agent or the Custodian, as applicable, shall notify the Note Insurer and the Noteholders of such instrument in the event that the Trust Collateral Agent or the Custodian, after so requesting, does not receive a satisfactorily corrected instrument.
(c) The Trust Collateral Agent shall take and maintain custody of the Schedule of Receivables included as Schedule A to this Agreement and shall retain copies of all Servicer's Certificates prepared hereunder.
(d) No provision of this Agreement shall be construed to relieve the Trust Collateral Agent or the Custodian from liability for its own negligent action, its own negligent failure to act, or its own bad faith; provided, however, that:
(i) Prior to the occurrence of an Event of Default and after the curing or waiving of all such Events of Default that may have occurred, the duties and obligations of the Trust Collateral Agent and the Custodian shall be determined solely by the express provisions of this Agreement, neither the Trust Collateral Agent nor the Custodian shall be liable except for the performance of such duties and obligations as shall be specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trust Collateral Agent or the Custodian and, in the absence of bad faith on the part of the Trust Collateral Agent or the Custodian, the Trust Collateral Agent and the Custodian, as applicable, may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Trust Collateral Agent or the Custodian and conforming to the requirements of this Agreement;
(ii) Neither the Trust Collateral Agent nor the Custodian shall be liable for an error of judgment made in good faith by a Responsible Officer or officer of the Custodian, respectively, unless it shall be proved that the Trust Collateral Agent or the Custodian, respectively shall have been negligent in ascertaining the pertinent facts;
(iii) Neither the Trust Collateral Agent nor the Custodian shall be liable with respect to any action taken, suffered, or omitted to be taken in good faith in accordance with this Agreement or at the direction of the Note Insurer or, after a Note Insurer Default, the Class A Noteholders evidencing not less than 25% of the Class A Note Balance or, after the Policy Expiration Date, by the Class B Noteholders evidencing not less than 25% of the Class B Note Balance, relating to the time, method, and place of conducting any proceeding for any remedy available to the Trust Collateral Agent or the Custodian, or exercising any trust or power conferred upon the Trust Collateral Agent or the Custodian, as applicable, under this Agreement;
(iv) Neither the Trust Collateral Agent nor the Custodian shall be charged with knowledge of any Servicer Termination Event or Event of Default, unless a Responsible Officer assigned to the Trust Collateral Agent's Corporate Trust Office or an officer of the Custodian receives written notice of such Servicer Termination Event or Event of Default from the Servicer, the Transferor, the Note Insurer or, after a Note Insurer Default, the Class A Noteholders evidencing not less than 25% of the Class A Note Balance or, after the Policy Expiration Date, by the Class B Noteholders evidencing not less than 25% of the Class B Note Balance (such notice shall constitute actual knowledge of a Servicer Termination Event or Event of Default by the Trust Collateral Agent); and
(v) Neither the Trust Collateral Agent nor the Custodian shall be liable for any action taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement.
(e) The Trust Collateral Agent and the Custodian may, but shall not be required to, expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, unless it shall have been provided with indemnity against such risk or liability in form and substance satisfactory to the Trust Collateral Agent or Custodian, as applicable, and none of the provisions contained in this Agreement shall in any event require the Trust Collateral Agent or Custodian to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement except during such time, if any, as the Trust Collateral Agent, in its capacity as Back-up Servicer, shall be the successor to, and be vested with the rights, duties, powers, and privileges of, the Servicer in accordance with the terms of this Agreement.
(f) Except for actions expressly authorized by this Agreement, neither the Trust Collateral Agent nor the Custodian shall take action reasonably likely to impair the security interests created or existing under any Receivable or Financed Vehicle or to impair the value of any Receivable or Financed Vehicle.
(g) All information obtained by the Trust Collateral Agent or the Custodian regarding the Obligors and the Receivables, whether upon the exercise of its rights under this Agreement or otherwise, shall be maintained by the Trust Collateral Agent or the Custodian, as applicable, in confidence and shall not be disclosed to any other Person, all in accordance with the Federal Financial Privacy Law; provided that, nothing herein shall prevent the Trust Collateral Agent or Custodian from delivering copies of such information whether or not constituting Confidential Information, and disclosing other information, whether or not Confidential Information, to (i) its directors, officers, employees, agents and professional consultants to the extent necessary to carry on the Trust Collateral Agent's or the Custodian's business in the ordinary course, (ii) any Noteholder or the Note Insurer to the extent that such Noteholder or the Note Insurer is entitled to such information under this Agreement or any other Basic Document, but not otherwise, (iii) any governmental authority which specifically requests (or as to which applicable regulations require) such information, (iv) any nationally recognized rating agency in connection with the rating of the Notes by such agency, or (v) any other Person to which such delivery or disclosure may be necessary or appropriate (a) in compliance with any applicable law, rule, regulation or order, (b) in response to any subpoena or other legal process, (c) in connection with any litigation to which the Trust Collateral Agent or the Custodian is a party, (d) in order to enforce the rights of the Noteholders and the Note Insurer hereunder or under any other Basic Document, or (e) otherwise, in accordance with the Federal Financial Privacy Law; provided, that, prior to any such disclosure, the Trust Collateral Agent or the Custodian, as applicable, shall inform each such party (other than any Noteholder, the Note Insurer or any other party to the Basic Documents) that receives Confidential Information of the foregoing requirements and shall use its commercially reasonable best efforts to cause such party to comply with such requirements.
(h) Money held in trust by the Trust Collateral Agent or the Custodian need not be segregated from other funds except to the extent required by law or the terms of this Agreement or the Indenture.
(i) Every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Trust Collateral Agent or the Custodian shall be subject to the provisions of this Section 10.1.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Long Beach Holdings Corp)
Duties of the Trust Collateral Agent and the Custodian. (a) The Trust Collateral Agent and the Custodian, both prior to the occurrence of an Event of Default and after an Event of Default shall have been cured or waived, shall undertake to perform such duties and only such duties as are specifically set forth in this Agreement. If an Event of Default shall have occurred and shall not have been cured or waived, the Trust Collateral Agent and the Custodian may, and at the direction of [the Note Insurer (or, if a Note Insurer Default shall have occurred and is continuing, ,] the Majorityholders), shall exercise such of the rights and powers vested in it by this Agreement and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of its own affairs.
(b) The Trust Collateral Agent and the Custodian, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Trust Collateral Agent and the Custodian that shall be specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform to the requirements of this Agreement; provided, however, that, neither the Trust Collateral Agent nor the Custodian shall be responsible for the accuracy or content of any such resolution, certificate, statement, opinion, report, document, order or other instrument. If any such instrument is found not to conform in any material respect to the requirements of this Agreement, the Trust Collateral Agent or the Custodian, as applicable, shall notify [the Note Insurer and and] the Noteholders of such instrument in the event that the Trust Collateral Agent or the Custodian, after so requesting, does not receive a satisfactorily corrected instrument.
(c) The Trust Collateral Agent shall take and maintain custody of the Schedule of Receivables included as Schedule A to this Agreement and shall retain copies of all Servicer's Certificates prepared hereunder.
(d) No provision of this Agreement shall be construed to relieve the Trust Collateral Agent or the Custodian from liability for its own negligent action, its own negligent failure to act, or its own bad faith; provided, however, that:
(i) Prior to the occurrence of an Event of Default and after the curing or waiving of all such Events of Default that may have occurred, the duties and obligations of the Trust Collateral Agent and the Custodian shall be determined solely by the express provisions of this Agreement, neither the Trust Collateral Agent nor the Custodian shall be liable except for the performance of such duties and obligations as shall be specifically set forth in this Agreement, no implied covenants or obligations shall be read into this Agreement against the Trust Collateral Agent or the Custodian and, in the absence of bad faith on the part of the Trust Collateral Agent or the Custodian, the Trust Collateral Agent and the Custodian, as applicable, may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Trust Collateral Agent or the Custodian and conforming to the requirements of this Agreement;
(ii) Neither the Trust Collateral Agent nor the Custodian shall be liable for an error of judgment made in good faith by a Responsible Officer or officer of the Custodian, respectively, unless it shall be proved that the Trust Collateral Agent or the Custodian, respectively shall have been negligent in ascertaining the pertinent facts;
(iii) Neither the Trust Collateral Agent nor the Custodian shall be liable with respect to any action taken, suffered, or omitted to be taken in good faith in accordance with this Agreement or at the direction of [the Note Insurer or, after a Note Insurer Default, ,] the Class A Noteholders evidencing not less than 25% of the Class A Note Balance or, after the Policy Expiration Date, by the Class B Noteholders evidencing not less than 25% of the Class B Note Balance, relating to the time, method, and place of conducting any proceeding for any remedy available to the Trust Collateral Agent or the Custodian, or exercising any trust or power conferred upon the Trust Collateral Agent or the Custodian, as applicable, under this Agreement;
(iv) Neither the Trust Collateral Agent nor the Custodian shall be charged with knowledge of any Servicer Termination Event or Event of Default, unless a Responsible Officer assigned to the Trust Collateral Agent's Corporate Trust Office or an officer of the Custodian receives written notice of such Servicer Termination Event or Event of Default from the Servicer, the Transferor, [the Note Insurer or, after a Note Insurer Default, ,] the Class A Noteholders evidencing not less than 25% of the Class A Note Balance or, after the Policy Expiration Date, by the Class B Noteholders evidencing not less than 25% of the Class B Note Balance (such notice shall constitute actual knowledge of a Servicer Termination Event or Event of Default by the Trust Collateral Agent); and
(v) Neither the Trust Collateral Agent nor the Custodian shall be liable for any action taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement.
(e) The Trust Collateral Agent and the Custodian may, but shall not be required to, expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, unless it shall have been provided with indemnity against such risk or liability in form and substance satisfactory to the Trust Collateral Agent or Custodian, as applicable, and none of the provisions contained in this Agreement shall in any event require the Trust Collateral Agent or Custodian to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Agreement except during such time, if any, as the Trust Collateral Agent, in its capacity as Back-up Servicer, shall be the successor to, and be vested with the rights, duties, powers, and privileges of, the Servicer in accordance with the terms of this Agreement.
(f) Except for actions expressly authorized by this Agreement, neither the Trust Collateral Agent nor the Custodian shall take action reasonably likely to impair the security interests created or existing under any Receivable or Financed Vehicle or to impair the value of any Receivable or Financed Vehicle.
(g) All information obtained by the Trust Collateral Agent or the Custodian regarding the Obligors and the Receivables, whether upon the exercise of its rights under this Agreement or otherwise, shall be maintained by the Trust Collateral Agent or the Custodian, as applicable, in confidence and shall not be disclosed to any other Person, all in accordance with the Federal Financial Privacy Law; provided that, nothing herein shall prevent the Trust Collateral Agent or Custodian from delivering copies of such information whether or not constituting Confidential Informationconfidential information, and disclosing other information, whether or not Confidential Information, confidential information to (i) its directors, officers, employees, agents and professional consultants to the extent necessary to carry on the Trust Collateral Agent's or the Custodian's business in the ordinary course, (ii) any Noteholder [or the Note Insurer Insurer] to the extent that such Noteholder [or the Note Insurer Insurer] is entitled to such information under this Agreement or any other Basic DocumentAgreement, but not otherwise, (iii) any governmental authority which specifically requests (or as to which applicable regulations require) such information, (iv) any nationally recognized rating agency in connection with the rating of the Notes by such agency, or (v) any other Person to which such delivery or disclosure may be necessary or appropriate appropriate, (a) in compliance with any applicable law, rule, regulation or order, (b) in response to any subpoena or other legal process, (c) in connection with any litigation to which the Trust Collateral Agent or the Custodian is a party, party or (d) in order to protect or enforce the rights of the Noteholders [and the Note Insurer hereunder or Insurer] under any other Basic Document, or (e) otherwise, in accordance with the Federal Financial Privacy Law; provided, that, prior to any such disclosure, the Trust Collateral Agent or the Custodian, as applicable, shall inform each such party (other than any Noteholder, the Note Insurer or any other party to the Basic Documents) that receives Confidential Information of the foregoing requirements and shall use its commercially reasonable best efforts to cause such party to comply with such requirementsIssuer established hereunder.
(h) Money held in trust by the Trust Collateral Agent or the Custodian need not be segregated from other funds except to the extent required by law or the terms of this Agreement or the Indenture.
(i) Every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Trust Collateral Agent or the Custodian shall be subject to the provisions of this Section 10.1.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Long Beach Acceptance Corp)
