Duties with Respect to the Related Agreements and the Transaction Documents. (i) The Administrator shall perform all its duties as Administrator under the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuer or the Owner Trustee under the Related Agreements. The Administrator shall monitor the performance of the Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuer’s or the Owner Trustee’s duties under the Related Agreements. The Administrator shall prepare for execution by the Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of, all such documents, reports, filings, instruments, certificates and opinions that it shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that the Issuer or the Owner Trustee is obligated to take (other than any obligation to make any payment required to be made by the Issuer under any Related Agreements) pursuant to the Indenture and the Asset Representations Review Agreement, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references are to sections of the Indenture): (A) the duty to cause the Note Register to be kept and to give the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.5); (B) the notification of Noteholders of the final principal payment on their Notes (Section 2.8(g)); (C) the preparation of or obtaining of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee (Sections 2.2, 2.3, 2.6 and 2.13); (D) the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13); (E) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of collateral (Section 2.10); (F) the maintenance of an office or agency in St. Xxxx, Minnesota, where Notes may be surrendered for registration of transfer or exchange (Section 3.2); (G) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3); (H) the direction to the Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3); (I) the obtaining and preservation of the Issuer’s existence and qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument or agreement included in the Trust Estate (Section 3.4); (J) the preparation of all supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments and the taking of such other action as is necessary or advisable to protect the Trust Estate (Section 3.5); (K) the duty to use best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in the Indenture and the other Transaction Documents (Section 3.7(a)); (L) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements as to compliance with the Indenture (Sections 3.6 and 3.9); (M) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuer has contracted to perform its duties under the Indenture (Section 3.7(b)); (N) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing Agreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d)); (O) the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any termination of the Servicer’s rights and powers under the Sale and Servicing Agreement and the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any appointment of a Successor Servicer under the Sale and Servicing Agreement (Section 3.7(f)); (P) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14); (Q) the preparation and obtaining of documents and instruments required for the consolidation or merger of the Issuer (Section 3.10(a)(vi)) or the conveyance or transfer by the Issuer of its properties or assets (Section 3.10(b)); (R) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of each Event of Default under the Indenture, each default by the Depositor or the Servicer under the Sale and Servicing Agreement and each default by the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.18); (S) upon the request of the Indenture Trustee, the duty to execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of the Indenture (Section 3.20); (T) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1); (U) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate at one or more public or private sales called and conducted in any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4); (V) the duty to take various lawful actions upon the request of the Indenture Trustee in connection with compelling or securing the performance and observance by the Depositor and the Servicer of their respective obligations to the Issuer under or in connection with the Sale and Servicing Agreement or by the Seller of its obligations under or in connection with the Receivables Purchase Agreement (Section 5.16); (W) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8); (X) the preparation of any written instruments required to confirm more fully the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of any co-trustee or separate trustee (Section 6.10); (Y) the maintenance of the effectiveness of the sales finance company licenses required under the Maryland Code and the Pennsylvania Motor Vehicle Sales Finance Company Act (Section 3.21); (Z) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1); (AA) the preparation and, after execution by the Issuer, filing with the Commission, any applicable state agencies and the Indenture Trustee of documents required to be filed on a periodic basis with, and summaries thereof as may be required by the rules and regulations of, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3); (BB) the duty to send to the Servicer any request of a Note Owner to communicate with other Noteholders or Note Owners about a possible exercise of rights under the Transaction Documents (Section 7.5(b)); (CC) the duty to remove the Asset Representations Reviewer or appoint a replacement Asset Representations Reviewer (which costs associated with the termination of the Asset Representations Reviewer and the appointment of a successor shall be borne by the Administrator) and cause the retiring Asset Representations Reviewer to provide the successor Asset Representations Reviewer with any information relating to an ongoing Asset Representations Review and providing a copy of any Asset Representations Review Notice to the Seller, the Depositor and the Servicer (Section 7.6); (DD) the opening of one or more accounts in the Indenture Trustee’s name, the preparation and delivery of Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Collection Account and the Reserve Account (Sections 8.2 and 8.3); (EE) the preparation and delivery of an Issuer Request and Officer’s Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate (Sections 8.4 and 8.5); (FF) the preparation and delivery of Issuer Orders and the obtaining of an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3); (GG) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6); (HH) the duty to notify Noteholders of redemption of the Notes or to cause the Indenture Trustee to provide such notification (Section 10.2); (II) the preparation and delivery of Officer’s Certificates and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, with respect to any requests by the Issuer to the Indenture Trustee to take any action under the Indenture (Sections 11.1(a), (c), (d) and (e)); (JJ) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the lien of the Indenture (Section 11.1(e)); (KK) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4); (LL) the preparation and delivery to the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.6); and (MM) the recording of the Indenture, if applicable (Section 11.15). (ii) The Administrator (but not the Indenture Trustee if it is then acting as the successor Administrator) shall: (A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in a separate fee schedule between the Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (B) except as otherwise expressly provided in the Indenture, reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; (C) indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and (D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
Appears in 12 contracts
Samples: Administration Agreement (Carmax Auto Funding LLC), Administration Agreement (Carmax Auto Funding LLC), Administration Agreement (Carmax Auto Funding LLC)
Duties with Respect to the Related Agreements and the Transaction Documents. (i) The Administrator shall perform all its duties as Administrator under the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuer or the Owner Trustee under the Related Agreements. The Administrator shall monitor the performance of the Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuer’s or the Owner Trustee’s duties under the Related Agreements. The Administrator shall prepare for execution by the Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of, all such documents, reports, filings, instruments, certificates and opinions that it shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that the Issuer or the Owner Trustee is obligated to take (other than any obligation to make any payment required to be made by the Issuer under any Related Agreements) pursuant to the Indenture and the Asset Representations Review Agreement, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.5);
(B) the notification of Noteholders of the final principal payment on their Notes (Section 2.8(g));
(C) the preparation of or obtaining of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee (Sections 2.2, 2.3, 2.6 and 2.13);
(D) the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(E) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of collateral (Section 2.10);
(F) the duty to give the Indenture Trustee notice of any appointment of a new Calculation Agent (Section 3.1):
(G) the duty to determine a Benchmark Transition Event, Benchmark Replacement Date, Benchmark Replacement, Benchmark Replacement Adjustment, Benchmark Replacement Conforming Changes, SOFR Adjustment Conforming Change or any other matters related to or arising in connection with the foregoing and provide such information to the Servicer for inclusion in the Servicer’s Certificate (Section 3.1);
(H) the maintenance of an office or agency in St. Xxxx, Minnesota, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(GI) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(HJ) the direction to the Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(IK) the obtaining and preservation of the Issuer’s existence and qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument or agreement included in the Trust Estate (Section 3.4);
(JL) the preparation of all supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments and the taking of such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(KM) the duty to use best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in the Indenture and the other Transaction Documents (Section 3.7(a));
(LN) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(MO) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(NP) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing Agreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(OQ) the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any termination of the Servicer’s rights and powers under the Sale and Servicing Agreement and the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any appointment of a Successor Servicer under the Sale and Servicing Agreement (Section 3.7(f));
(PR) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(QS) the preparation and obtaining of documents and instruments required for the consolidation or merger of the Issuer (Section 3.10(a)(vi)) or the conveyance or transfer by the Issuer of its properties or assets (Section 3.10(b));
(RT) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of each Event of Default under the Indenture, each default by the Depositor or the Servicer under the Sale and Servicing Agreement and each default by the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.18);
(SU) upon the request of the Indenture Trustee, the duty to execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of the Indenture (Section 3.20);
(TV) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(UW) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate at one or more public or private sales called and conducted in any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(VX) the duty to take various lawful actions upon the request of the Indenture Trustee in connection with compelling or securing the performance and observance by the Depositor and the Servicer of their respective obligations to the Issuer under or in connection with the Sale and Servicing Agreement or by the Seller of its obligations under or in connection with the Receivables Purchase Agreement (Section 5.16);
(WY) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(XZ) the preparation of any written instruments required to confirm more fully the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of any co-trustee or separate trustee (Section 6.10);
(YAA) the maintenance of the effectiveness of the sales finance company licenses required under the Maryland Code and the Pennsylvania Motor Vehicle Sales Finance Company Act (Section 3.21);
(ZBB) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(AACC) the preparation and, after execution by the Issuer, filing with the Commission, any applicable state agencies and the Indenture Trustee of documents required to be filed on a periodic basis with, and summaries thereof as may be required by the rules and regulations of, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(BBDD) the duty to send to the Servicer any request of a Note Owner to communicate with other Noteholders or Note Owners about a possible exercise of rights under the Transaction Documents (Section 7.5(b));
(CCEE) the duty to remove the Asset Representations Reviewer or appoint a replacement Asset Representations Reviewer (which costs associated with the termination of the Asset Representations Reviewer and the appointment of a successor shall be borne by the Administrator) and cause the retiring Asset Representations Reviewer to provide the successor Asset Representations Reviewer with any information relating to an ongoing Asset Representations Review and providing a copy of any Asset Representations Review Notice to the Seller, the Depositor and the Servicer (Section 7.6);
(DDFF) the opening of one or more trust accounts in the Indenture Trustee’s name, the preparation and delivery of Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(EEGG) the preparation and delivery of an Issuer Request and Officer’s Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate (Sections 8.4 and 8.5);
(FFHH) the preparation and delivery of Issuer Orders and the obtaining of an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(GGII) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(HHJJ) the duty to notify Noteholders of redemption of the Notes or to cause the Indenture Trustee to provide such notification (Section 10.2);
(IIKK) the preparation and delivery of Officer’s Certificates and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, with respect to any requests by the Issuer to the Indenture Trustee to take any action under the Indenture (Sections 11.1(a), (c), (d) and (e));
(JJLL) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the lien of the Indenture (Section 11.1(e));
(KKMM) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(LLNN) the preparation and delivery to the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.6); and
(MMOO) the recording of the Indenture, if applicable (Section 11.15).
(ii) The Administrator (but not the Indenture Trustee if it is then acting as the successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in a separate fee schedule between the Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
Appears in 12 contracts
Samples: Administration Agreement (CarMax Auto Owner Trust 2024-4), Administration Agreement (Carmax Auto Funding LLC), Administration Agreement (CarMax Auto Owner Trust 2024-3)
Duties with Respect to the Related Agreements and the Transaction Documents. (i) The Administrator shall perform all its duties as Administrator under the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuer or the Owner Trustee under the Related Agreements. The Administrator shall monitor the performance of the Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuer’s or the Owner Trustee’s duties under the Related Agreements. The Administrator shall prepare for execution by the Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of, all such documents, reports, filings, instruments, certificates and opinions that it shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that the Issuer or the Owner Trustee is obligated to take (other than any obligation to make any payment required to be made by the Issuer under any Related Agreements) pursuant to the Indenture and the Asset Representations Review Agreement, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.5);
(B) the notification of Noteholders of the final principal payment on their Notes (Section 2.8(g));
(C) the preparation of or obtaining of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee (Sections 2.2, 2.3, 2.6 and 2.13);
(D) the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(E) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of collateral (Section 2.10);
(F) the duty to give the Indenture Trustee notice of any appointment of a new Calculation Agent (Section 3.1):
(G) the duty to determine a Benchmark Transition Event, Benchmark Replacement Date, Benchmark Replacement, Benchmark Replacement Adjustment, Benchmark Replacement Conforming Changes, SOFR Adjustment Conforming Change or any other matters related to or arising in connection with the foregoing and provide such information to the Servicer for inclusion in the Servicer’s Certificate (Section 3.1);
(H) the maintenance of an office or agency in St. XxxxWilmington, MinnesotaDelaware, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(GI) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(HJ) the direction to the Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(IK) the obtaining and preservation of the Issuer’s existence and qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument or agreement included in the Trust Estate (Section 3.4);
(JL) the preparation of all supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments and the taking of such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(KM) the duty to use best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in the Indenture and the other Transaction Documents (Section 3.7(a));
(LN) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(MO) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(NP) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing Agreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(OQ) the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any termination of the Servicer’s rights and powers under the Sale and Servicing Agreement and the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any appointment of a Successor Servicer under the Sale and Servicing Agreement (Section 3.7(f));
(PR) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(QS) the preparation and obtaining of documents and instruments required for the consolidation or merger of the Issuer (Section 3.10(a)(vi)) or the conveyance or transfer by the Issuer of its properties or assets (Section 3.10(b));
(RT) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of each Event of Default under the Indenture, each default by the Depositor or the Servicer under the Sale and Servicing Agreement and each default by the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.18);
(SU) upon the request of the Indenture Trustee, the duty to execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of the Indenture (Section 3.20);
(TV) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(UW) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate at one or more public or private sales called and conducted in any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(VX) the duty to take various lawful actions upon the request of the Indenture Trustee in connection with compelling or securing the performance and observance by the Depositor and the Servicer of their respective obligations to the Issuer under or in connection with the Sale and Servicing Agreement or by the Seller of its obligations under or in connection with the Receivables Purchase Agreement (Section 5.16);
(WY) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(XZ) the preparation of any written instruments required to confirm more fully the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of any co-trustee or separate trustee (Section 6.10);
(YAA) the maintenance of the effectiveness of the sales finance company licenses required under the Maryland Code and the Pennsylvania Motor Vehicle Sales Finance Company Act (Section 3.21);
(ZBB) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(AACC) the preparation and, after execution by the Issuer, filing with the Commission, any applicable state agencies and the Indenture Trustee of documents required to be filed on a periodic basis with, and summaries thereof as may be required by the rules and regulations of, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(BBDD) the duty to send to the Servicer any request of a Note Owner to communicate with other Noteholders or Note Owners about a possible exercise of rights under the Transaction Documents (Section 7.5(b));
(CCEE) the duty to remove the Asset Representations Reviewer or appoint a replacement Asset Representations Reviewer (which costs associated with the termination of the Asset Representations Reviewer and the appointment of a successor shall be borne by the Administrator) and cause the retiring Asset Representations Reviewer to provide the successor Asset Representations Reviewer with any information relating to an ongoing Asset Representations Review and providing a copy of any Asset Representations Review Notice to the Seller, the Depositor and the Servicer (Section 7.6);
(DDFF) the opening of one or more trust accounts in the Indenture Trustee’s name, the preparation and delivery of Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(EEGG) the preparation and delivery of an Issuer Request and Officer’s Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate (Sections 8.4 and 8.5);
(FFHH) the preparation and delivery of Issuer Orders and the obtaining of an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(GGII) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(HHJJ) the duty to notify Noteholders of redemption of the Notes or to cause the Indenture Trustee to provide such notification (Section 10.2);
(IIKK) the preparation and delivery of Officer’s Certificates and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, with respect to any requests by the Issuer to the Indenture Trustee to take any action under the Indenture (Sections 11.1(a), (c), (d) and (e));
(JJLL) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the lien of the Indenture (Section 11.1(e));
(KKMM) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(LLNN) the preparation and delivery to the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.6); and
(MMOO) the recording of the Indenture, if applicable (Section 11.15).
(ii) The Administrator (but not the Indenture Trustee if it is then acting as the successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in a separate fee schedule between the Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
Appears in 10 contracts
Samples: Administration Agreement (Carmax Auto Funding LLC), Administration Agreement (Carmax Auto Funding LLC), Administration Agreement (Carmax Auto Funding LLC)
Duties with Respect to the Related Agreements and the Transaction Documents. (i) The Administrator shall perform all its duties as Administrator under the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuer or the Owner Trustee under the Related Agreements. The Administrator shall monitor the performance of the Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuer’s or the Owner Trustee’s duties under the Related Agreements. The Administrator shall prepare for execution by the Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of, all such documents, reports, filings, instruments, certificates and opinions that it shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that the Issuer or the Owner Trustee is obligated to take (other than any obligation to make any payment required to be made by the Issuer under any Related Agreements) pursuant to the Indenture and the Asset Representations Review Agreement, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.5);
(B) the notification of Noteholders of the final principal payment on their Notes (Section 2.8(g));
(C) the preparation of or obtaining of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee (Sections 2.2, 2.3, 2.6 and 2.13);
(D) the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(E) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of collateral (Section 2.10);
(F) the maintenance of an office or agency in St. XxxxWilmington, MinnesotaDelaware, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(G) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(H) the direction to the Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(I) the obtaining and preservation of the Issuer’s existence and qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument or agreement included in the Trust Estate (Section 3.4);
(J) the preparation of all supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments and the taking of such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(K) the duty to use best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in the Indenture and the other Transaction Documents (Section 3.7(a));
(L) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(M) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(N) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing Agreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(O) the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any termination of the Servicer’s rights and powers under the Sale and Servicing Agreement and the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any appointment of a Successor Servicer under the Sale and Servicing Agreement (Section 3.7(f));
(P) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(Q) the preparation and obtaining of documents and instruments required for the consolidation or merger of the Issuer (Section 3.10(a)(vi)) or the conveyance or transfer by the Issuer of its properties or assets (Section 3.10(b));
(R) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of each Event of Default under the Indenture, each default by the Depositor or the Servicer under the Sale and Servicing Agreement and each default by the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.18);
(S) upon the request of the Indenture Trustee, the duty to execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of the Indenture (Section 3.20);
(T) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(U) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate at one or more public or private sales called and conducted in any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(V) the duty to take various lawful actions upon the request of the Indenture Trustee in connection with compelling or securing the performance and observance by the Depositor and the Servicer of their respective obligations to the Issuer under or in connection with the Sale and Servicing Agreement or by the Seller of its obligations under or in connection with the Receivables Purchase Agreement (Section 5.16);
(W) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(X) the preparation of any written instruments required to confirm more fully the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of any co-trustee or separate trustee (Section 6.10);
(Y) the maintenance of the effectiveness of the sales finance company licenses required under the Maryland Code and the Pennsylvania Motor Vehicle Sales Finance Company Act (Section 3.21);
(Z) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(AA) the preparation and, after execution by the Issuer, filing with the Commission, any applicable state agencies and the Indenture Trustee of documents required to be filed on a periodic basis with, and summaries thereof as may be required by the rules and regulations of, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(BB) the duty to send to the Servicer any request of a Note Owner to communicate with other Noteholders or Note Owners about a possible exercise of rights under the Transaction Documents (Section 7.5(b));
(CC) the duty to remove the Asset Representations Reviewer or appoint a replacement Asset Representations Reviewer (which costs associated with the termination of the Asset Representations Reviewer and the appointment of a successor shall be borne by the Administrator) and cause the retiring Asset Representations Reviewer to provide the successor Asset Representations Reviewer with any information relating to an ongoing Asset Representations Review and providing a copy of any Asset Representations Review Notice to the Seller, the Depositor and the Servicer (Section 7.6);
(DD) the opening of one or more trust accounts in the Indenture Trustee’s name, the preparation and delivery of Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(EE) the preparation and delivery of an Issuer Request and Officer’s Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate (Sections 8.4 and 8.5);
(FF) the preparation and delivery of Issuer Orders and the obtaining of an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(GG) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(HH) the duty to notify Noteholders of redemption of the Notes or to cause the Indenture Trustee to provide such notification (Section 10.2);
(II) the preparation and delivery of Officer’s Certificates and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, with respect to any requests by the Issuer to the Indenture Trustee to take any action under the Indenture (Sections 11.1(a), (c), (d) and (e));
(JJ) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the lien of the Indenture (Section 11.1(e));
(KK) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(LL) the preparation and delivery to the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.6); and
(MM) the recording of the Indenture, if applicable (Section 11.15).
(ii) The Administrator (but not the Indenture Trustee if it is then acting as the successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in a separate fee schedule between the Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
Appears in 8 contracts
Samples: Administration Agreement (Carmax Auto Funding LLC), Administration Agreement (Carmax Auto Funding LLC), Administration Agreement (Carmax Auto Funding LLC)
Duties with Respect to the Related Agreements and the Transaction Documents. (i) The Administrator shall perform all its duties as Administrator under the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuer or the Owner Trustee under the Related Agreements. The Administrator shall monitor the performance of the Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuer’s or the Owner Trustee’s duties under the Related Agreements. The Administrator shall prepare for execution by the Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of, all such documents, reports, filings, instruments, certificates and opinions that it shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that the Issuer or the Owner Trustee is obligated to take (other than any obligation to make any payment required to be made by the Issuer under any Related Agreements) pursuant to the Indenture and the Asset Representations Review Agreement, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.5);
(B) the notification of Noteholders of the final principal payment on their Notes (Section 2.8(g));
(C) the preparation of or obtaining of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee (Sections 2.2, 2.3, 2.6 and 2.13);
(D) the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(E) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of collateral (Section 2.10);
(F) the determination of a Benchmark Transition Event, Benchmark, its related Benchmark Replacement Date and any Benchmark Replacement Conforming Changes (Section 2.16);
(G) the maintenance of an office or agency in St. XxxxWilmington, MinnesotaDelaware, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(GH) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(HI) the direction to the Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(IJ) the obtaining and preservation of the Issuer’s existence and qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument or agreement included in the Trust Estate (Section 3.4);
(JK) the preparation of all supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments and the taking of such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(KL) the duty to use best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in the Indenture and the other Transaction Documents (Section 3.7(a));
(LM) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(MN) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(NO) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing Agreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(OP) the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any termination of the Servicer’s rights and powers under the Sale and Servicing Agreement and the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any appointment of a Successor Servicer under the Sale and Servicing Agreement (Section 3.7(f));
(PQ) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(QR) the preparation and obtaining of documents and instruments required for the consolidation or merger of the Issuer (Section 3.10(a)(vi)) or the conveyance or transfer by the Issuer of its properties or assets (Section 3.10(b));
(RS) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of each Event of Default under the Indenture, each default by the Depositor or the Servicer under the Sale and Servicing Agreement and each default by the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.18);
(ST) upon the request of the Indenture Trustee, the duty to execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of the Indenture (Section 3.20);
(TU) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(UV) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate at one or more public or private sales called and conducted in any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(VW) the duty to take various lawful actions upon the request of the Indenture Trustee in connection with compelling or securing the performance and observance by the Depositor and the Servicer of their respective obligations to the Issuer under or in connection with the Sale and Servicing Agreement or by the Seller of its obligations under or in connection with the Receivables Purchase Agreement (Section 5.16);
(WX) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(XY) the preparation of any written instruments required to confirm more fully the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of any co-trustee or separate trustee (Section 6.10);
(YZ) the maintenance of the effectiveness of the sales finance company licenses required under the Maryland Code and the Pennsylvania Motor Vehicle Sales Finance Company Act (Section 3.21);
(ZAA) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(AABB) the preparation and, after execution by the Issuer, filing with the Commission, any applicable state agencies and the Indenture Trustee of documents required to be filed on a periodic basis with, and summaries thereof as may be required by the rules and regulations of, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(BBCC) the duty to send to the Servicer any request of a Note Owner to communicate with other Noteholders or Note Owners about a possible exercise of rights under the Transaction Documents (Section 7.5(b));
(CCDD) the duty to remove the Asset Representations Reviewer or appoint a replacement Asset Representations Reviewer (which costs associated with the termination of the Asset Representations Reviewer and the appointment of a successor shall be borne by the Administrator) and cause the retiring Asset Representations Reviewer to provide the successor Asset Representations Reviewer with any information relating to an ongoing Asset Representations Review and providing a copy of any Asset Representations Review Notice to the Seller, the Depositor and the Servicer (Section 7.6);
(DDEE) the opening of one or more trust accounts in the Indenture Trustee’s name, the preparation and delivery of Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(EEFF) the preparation and delivery of an Issuer Request and Officer’s Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate (Sections 8.4 and 8.5);
; (FFGG) the preparation and delivery of Issuer Orders and the obtaining of an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(GGHH) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(HHII) the duty to notify Noteholders of redemption of the Notes or to cause the Indenture Trustee to provide such notification (Section 10.2);
(IIJJ) the preparation and delivery of Officer’s Certificates and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, with respect to any requests by the Issuer to the Indenture Trustee to take any action under the Indenture (Sections 11.1(a), (c), (d) and (e));
(JJKK) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the lien of the Indenture (Section 11.1(e));
(KKLL) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(LLMM) the preparation and delivery to the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.6); and
(MMNN) the recording of the Indenture, if applicable (Section 11.15).
(ii) The Administrator (but not the Indenture Trustee if it is then acting as the successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in a separate fee schedule between the Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
Appears in 6 contracts
Samples: Administration Agreement (Carmax Auto Funding LLC), Administration Agreement (Carmax Auto Funding LLC), Administration Agreement (Carmax Auto Funding LLC)
Duties with Respect to the Related Agreements and the Transaction Documents. (i) The Administrator shall perform all its duties as Administrator under the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuer or the Owner Trustee under the Related Agreements. The Administrator shall monitor the performance of the Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuer’s or the Owner Trustee’s duties under the Related Agreements. The Administrator shall prepare for execution by the Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of, all such documents, reports, filings, instruments, certificates and opinions that it shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that the Issuer or the Owner Trustee is obligated to take (other than any obligation to make any payment required to be made by the Issuer under any Related Agreements) pursuant to the Indenture and the Asset Representations Review Agreement, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.5);
(B) the notification of Noteholders of the final principal payment on their Notes (Section 2.8(g));
(C) the preparation of or obtaining of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee (Sections 2.2, 2.3, 2.6 and 2.13);
(D) the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(E) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of collateral (Section 2.10);
(F) the determination of a Benchmark Transition Event, Benchmark, its related Benchmark Replacement Date and any Benchmark Replacement Conforming Changes (Section 2.16);
(G) the maintenance of an office or agency in St. St Xxxx, Minnesota, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(GH) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(HI) the direction to the Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(IJ) the obtaining and preservation of the Issuer’s existence and qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument or agreement included in the Trust Estate (Section 3.4);
(JK) the preparation of all supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments and the taking of such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(KL) the duty to use best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in the Indenture and the other Transaction Documents (Section 3.7(a));
(LM) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(MN) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(NO) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing Agreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(OP) the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any termination of the Servicer’s rights and powers under the Sale and Servicing Agreement and the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any appointment of a Successor Servicer under the Sale and Servicing Agreement (Section 3.7(f));
(PQ) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(QR) the preparation and obtaining of documents and instruments required for the consolidation or merger of the Issuer (Section 3.10(a)(vi)) or the conveyance or transfer by the Issuer of its properties or assets (Section 3.10(b));
(RS) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of each Event of Default under the Indenture, each default by the Depositor or the Servicer under the Sale and Servicing Agreement and each default by the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.18);
(ST) upon the request of the Indenture Trustee, the duty to execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of the Indenture (Section 3.20);
(TU) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(UV) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate at one or more public or private sales called and conducted in any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(VW) the duty to take various lawful actions upon the request of the Indenture Trustee in connection with compelling or securing the performance and observance by the Depositor and the Servicer of their respective obligations to the Issuer under or in connection with the Sale and Servicing Agreement or by the Seller of its obligations under or in connection with the Receivables Purchase Agreement (Section 5.16);
(WX) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(XY) the preparation of any written instruments required to confirm more fully the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of any co-trustee or separate trustee (Section 6.10);
(YZ) the maintenance of the effectiveness of the sales finance company licenses required under the Maryland Code and the Pennsylvania Motor Vehicle Sales Finance Company Act (Section 3.21);
(ZAA) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(AABB) the preparation and, after execution by the Issuer, filing with the Commission, any applicable state agencies and the Indenture Trustee of documents required to be filed on a periodic basis with, and summaries thereof as may be required by the rules and regulations of, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(BBCC) the duty to send to the Servicer any request of a Note Owner to communicate with other Noteholders or Note Owners about a possible exercise of rights under the Transaction Documents (Section 7.5(b));
(CCDD) the duty to remove the Asset Representations Reviewer or appoint a replacement Asset Representations Reviewer (which costs associated with the termination of the Asset Representations Reviewer and the appointment of a successor shall be borne by the Administrator) and cause the retiring Asset Representations Reviewer to provide the successor Asset Representations Reviewer with any information relating to an ongoing Asset Representations Review and providing a copy of any Asset Representations Review Notice to the Seller, the Depositor and the Servicer (Section 7.6);
(DDEE) the opening of one or more trust accounts in the Indenture Trustee’s name, the preparation and delivery of Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(EEFF) the preparation and delivery of an Issuer Request and Officer’s Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate (Sections 8.4 and 8.5);
; (FFGG) the preparation and delivery of Issuer Orders and the obtaining of an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(GGHH) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(HHII) the duty to notify Noteholders of redemption of the Notes or to cause the Indenture Trustee to provide such notification (Section 10.2);
(IIJJ) the preparation and delivery of Officer’s Certificates and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, with respect to any requests by the Issuer to the Indenture Trustee to take any action under the Indenture (Sections 11.1(a), (c), (d) and (e));
(JJKK) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the lien of the Indenture (Section 11.1(e));
(KKLL) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(LLMM) the preparation and delivery to the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.6); and
(MMNN) the recording of the Indenture, if applicable (Section 11.15).
(ii) The Administrator (but not the Indenture Trustee if it is then acting as the successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in a separate fee schedule between the Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
Appears in 4 contracts
Samples: Administration Agreement (Carmax Auto Funding LLC), Administration Agreement (Carmax Auto Funding LLC), Administration Agreement (Carmax Auto Funding LLC)
Duties with Respect to the Related Agreements and the Transaction Documents. (i) The Administrator shall perform all its duties as Administrator under the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuer or the Owner Trustee under the Related Agreements. The Administrator shall monitor the performance of the Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuer’s or the Owner Trustee’s duties under the Related Agreements. The Administrator shall prepare for execution by the Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of, all such documents, reports, filings, instruments, certificates and opinions that it shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that the Issuer or the Owner Trustee is obligated to take (other than any obligation to make any payment required to be made by the Issuer under any Related Agreements) pursuant to the Indenture and the Asset Representations Review Agreement, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.5);
(B) the notification of Noteholders of the final principal payment on their Notes (Section 2.8(g));
(C) the preparation of or obtaining of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee (Sections 2.2, 2.3, 2.6 and 2.13);
(D) the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(E) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of collateral (Section 2.10);
(F) the maintenance of an office or agency in St. Xxxx, Minnesota, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(G) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(H) the direction to the Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(I) the obtaining and preservation of the Issuer’s existence and qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument or agreement included in the Trust Estate (Section 3.4);
(J) the preparation of all supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments and the taking of such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(K) the duty to use best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in the Indenture and the other Transaction Documents (Section 3.7(a));
(L) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(M) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(N) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing Agreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(O) the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any termination of the Servicer’s rights and powers under the Sale and Servicing Agreement and the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any appointment of a Successor Servicer under the Sale and Servicing Agreement (Section 3.7(f));
(P) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(Q) the preparation and obtaining of documents and instruments required for the consolidation or merger of the Issuer (Section 3.10(a)(vi)) or the conveyance or transfer by the Issuer of its properties or assets (Section 3.10(b));
(R) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of each Event of Default under the Indenture, each default by the Depositor or the Servicer under the Sale and Servicing Agreement and each default by the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.18);
(S) upon the request of the Indenture Trustee, the duty to execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of the Indenture (Section 3.20);
(T) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(U) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate at one or more public or private sales called and conducted in any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(V) the duty to take various lawful actions upon the request of the Indenture Trustee in connection with compelling or securing the performance and observance by the Depositor and the Servicer of their respective obligations to the Issuer under or in connection with the Sale and Servicing Agreement or by the Seller of its obligations under or in connection with the Receivables Purchase Agreement (Section 5.16);
(W) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(X) the preparation of any written instruments required to confirm more fully the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of any co-trustee or separate trustee (Section 6.10);
(Y) the maintenance of the effectiveness of the sales finance company licenses required under the Maryland Code and the Pennsylvania Motor Vehicle Sales Finance Company Act (Section 3.21);
(Z) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(AA) the preparation and, after execution by the Issuer, filing with the Commission, any applicable state agencies and the Indenture Trustee of documents required to be filed on a periodic basis with, and summaries thereof as may be required by the rules and regulations of, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(BB) the duty to send to the Servicer any request of a Note Owner to communicate with other Noteholders or Note Owners about a possible exercise of rights under the Transaction Documents (Section 7.5(b));
(CC) the duty to remove the Asset Representations Reviewer or appoint a replacement Asset Representations Reviewer (which costs associated with the termination of the Asset Representations Reviewer and the appointment of a successor shall be borne by the Administrator) and cause the retiring Asset Representations Reviewer to provide the successor Asset Representations Reviewer with any information relating to an ongoing Asset Representations Review and providing a copy of any Asset Representations Review Notice to the Seller, the Depositor and the Servicer (Section 7.6);
(DD) the opening of one or more trust accounts in the Indenture Trustee’s name, the preparation and delivery of Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(EE) the preparation and delivery of an Issuer Request and Officer’s Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate (Sections 8.4 and 8.5);
(FF) the preparation and delivery of Issuer Orders and the obtaining of an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(GG) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(HH) the duty to notify Noteholders of redemption of the Notes or to cause the Indenture Trustee to provide such notification (Section 10.2);
(II) the preparation and delivery of Officer’s Certificates and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, with respect to any requests by the Issuer to the Indenture Trustee to take any action under the Indenture (Sections 11.1(a), (c), (d) and (e));
(JJ) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the lien of the Indenture (Section 11.1(e));
(KK) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(LL) the preparation and delivery to the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.6); and
(MM) the recording of the Indenture, if applicable (Section 11.15).
(ii) The Administrator (but not the Indenture Trustee if it is then acting as the successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in a separate fee schedule between the Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
Appears in 4 contracts
Samples: Administration Agreement (Carmax Auto Funding LLC), Administration Agreement (Carmax Auto Funding LLC), Administration Agreement (Carmax Auto Funding LLC)
Duties with Respect to the Related Agreements and the Transaction Documents. (i) The Administrator shall perform all its duties as Administrator under the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuer or the Owner Trustee under the Related Agreements. The Administrator shall monitor the performance of the Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuer’s or the Owner Trustee’s duties under the Related Agreements. The Administrator shall prepare for execution by the Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of, all such documents, reports, filings, instruments, certificates and opinions that it shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that the Issuer or the Owner Trustee is obligated to take (other than any obligation to make any payment required to be made by the Issuer under any Related Agreements) pursuant to the Indenture and the Asset Representations Review Agreement, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.5);
(B) the notification of Noteholders of the final principal payment on their Notes (Section 2.8(g));
(C) the preparation of or obtaining of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee (Sections 2.2, 2.3, 2.6 and 2.13);
(D) the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(E) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of collateral (Section 2.10);
(F) the determination of a Benchmark Transition Event, Benchmark, its related Benchmark Replacement Date and any Benchmark Replacement Conforming Changes (Section 2.16)
(G) the maintenance of an office or agency in St. Xxxx, Minnesota, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(GH) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(HI) the direction to the Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(IJ) the obtaining and preservation of the Issuer’s existence and qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument or agreement included in the Trust Estate (Section 3.4);
(JK) the preparation of all supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments and the taking of such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(KL) the duty to use best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in the Indenture and the other Transaction Documents (Section 3.7(a));
(LM) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(MN) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(NO) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing Agreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(OP) the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any termination of the Servicer’s rights and powers under the Sale and Servicing Agreement and the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any appointment of a Successor Servicer under the Sale and Servicing Agreement (Section 3.7(f));
(PQ) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(QR) the preparation and obtaining of documents and instruments required for the consolidation or merger of the Issuer (Section 3.10(a)(vi)) or the conveyance or transfer by the Issuer of its properties or assets (Section 3.10(b));
(RS) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of each Event of Default under the Indenture, each default by the Depositor or the Servicer under the Sale and Servicing Agreement and each default by the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.18);
(ST) upon the request of the Indenture Trustee, the duty to execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of the Indenture (Section 3.20);
(TU) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(UV) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate at one or more public or private sales called and conducted in any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(VW) the duty to take various lawful actions upon the request of the Indenture Trustee in connection with compelling or securing the performance and observance by the Depositor and the Servicer of their respective obligations to the Issuer under or in connection with the Sale and Servicing Agreement or by the Seller of its obligations under or in connection with the Receivables Purchase Agreement (Section 5.16);
(WX) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(XY) the preparation of any written instruments required to confirm more fully the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of any co-trustee or separate trustee (Section 6.10);
(YZ) the maintenance of the effectiveness of the sales finance company licenses required under the Maryland Code and the Pennsylvania Motor Vehicle Sales Finance Company Act (Section 3.21);
(ZAA) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(AABB) the preparation and, after execution by the Issuer, filing with the Commission, any applicable state agencies and the Indenture Trustee of documents required to be filed on a periodic basis with, and summaries thereof as may be required by the rules and regulations of, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(BBCC) the duty to send to the Servicer any request of a Note Owner to communicate with other Noteholders or Note Owners about a possible exercise of rights under the Transaction Documents (Section 7.5(b));
(CCDD) the duty to remove the Asset Representations Reviewer or appoint a replacement Asset Representations Reviewer (which costs associated with the termination of the Asset Representations Reviewer and the appointment of a successor shall be borne by the Administrator) and cause the retiring Asset Representations Reviewer to provide the successor Asset Representations Reviewer with any information relating to an ongoing Asset Representations Review and providing a copy of any Asset Representations Review Notice to the Seller, the Depositor and the Servicer (Section 7.6);
(DDEE) the opening of one or more trust accounts in the Indenture Trustee’s name, the preparation and delivery of Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(EEFF) the preparation and delivery of an Issuer Request and Officer’s Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate (Sections 8.4 and 8.5);
; (FFGG) the preparation and delivery of Issuer Orders and the obtaining of an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(GGHH) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(HHII) the duty to notify Noteholders of redemption of the Notes or to cause the Indenture Trustee to provide such notification (Section 10.2);
(IIJJ) the preparation and delivery of Officer’s Certificates and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, with respect to any requests by the Issuer to the Indenture Trustee to take any action under the Indenture (Sections 11.1(a), (c), (d) and (e));
(JJKK) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the lien of the Indenture (Section 11.1(e));
(KKLL) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(LLMM) the preparation and delivery to the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.6); and
(MMNN) the recording of the Indenture, if applicable (Section 11.15).
(ii) The Administrator (but not the Indenture Trustee if it is then acting as the successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in a separate fee schedule between the Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
Appears in 4 contracts
Samples: Administration Agreement (Carmax Auto Funding LLC), Administration Agreement (Carmax Auto Funding LLC), Administration Agreement (Carmax Auto Funding LLC)
Duties with Respect to the Related Agreements and the Transaction Documents. (i) The Administrator shall perform all its duties as Administrator under the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuer or the Owner Trustee under the Related Agreements. The Administrator shall monitor the performance of the Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuer’s or the Owner Trustee’s duties under the Related Agreements. The Administrator shall prepare for execution by the Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of, all such documents, reports, filings, instruments, certificates and opinions that it shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that the Issuer or the Owner Trustee is obligated to take (other than any obligation to make any payment required to be made by the Issuer under any Related Agreements) pursuant to the Indenture and the Asset Representations Review Agreement, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.5);
(B) the notification of Noteholders of the final principal payment on their Notes (Section 2.8(g));
(C) the preparation of or obtaining of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee (Sections 2.2, 2.3, 2.6 and 2.13);
(D) the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(E) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of collateral (Section 2.10);
(F) the maintenance of an office or agency in St. Xxxxthe Borough of Manhattan, MinnesotaThe City of New York, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(G) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(H) the direction to the Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(I) the obtaining and preservation of the Issuer’s existence and qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument or agreement included in the Trust Estate (Section 3.4);
(J) the preparation of all supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments and the taking of such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(K) the duty to use best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in the Indenture and the other Transaction Documents (Section 3.7(a));
(L) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(M) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(N) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing Agreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(O) the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any termination of the Servicer’s rights and powers under the Sale and Servicing Agreement and the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any appointment of a Successor Servicer under the Sale and Servicing Agreement (Section 3.7(f));
(P) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(Q) the preparation and obtaining of documents and instruments required for the consolidation or merger of the Issuer (Section 3.10(a)(vi)) or the conveyance or transfer by the Issuer of its properties or assets (Section 3.10(b));
(R) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of each Event of Default under the Indenture, each default by the Depositor or the Servicer under the Sale and Servicing Agreement and each default by the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.18);
(S) upon the request of the Indenture Trustee, the duty to execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of the Indenture (Section 3.20);
(T) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(U) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate at one or more public or private sales called and conducted in any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(V) the duty to take various lawful actions upon the request of the Indenture Trustee in connection with compelling or securing the performance and observance by the Depositor and the Servicer of their respective obligations to the Issuer under or in connection with the Sale and Servicing Agreement or by the Seller of its obligations under or in connection with the Receivables Purchase Agreement (Section 5.16);
(W) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(X) the preparation of any written instruments required to confirm more fully the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of any co-trustee or separate trustee (Section 6.10);
(Y) the maintenance of the effectiveness of the sales finance company licenses required under the Maryland Code and the Pennsylvania Motor Vehicle Sales Finance Company Act (Section 3.21);
(Z) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(AA) the preparation and, after execution by the Issuer, filing with the Commission, any applicable state agencies and the Indenture Trustee of documents required to be filed on a periodic basis with, and summaries thereof as may be required by the rules and regulations of, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(BB) the duty to send to the Servicer any request of a Note Owner to communicate with other Noteholders or Note Owners about a possible exercise of rights under the Transaction Documents (Section 7.5(b));
(CC) the duty to remove the Asset Representations Reviewer or appoint a replacement Asset Representations Reviewer (which costs associated with the termination of the Asset Representations Reviewer and the appointment of a successor shall be borne by the Administrator) and cause the retiring Asset Representations Reviewer to provide the successor Asset Representations Reviewer with any information relating to an ongoing Asset Representations Review and providing a copy of any Asset Representations Review Notice to the Seller, the Depositor and the Servicer (Section 7.6);
(DD) the opening of one or more accounts in the Indenture Trustee’s name, the preparation and delivery of Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(EE) the preparation and delivery of an Issuer Request and Officer’s Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate (Sections 8.4 and 8.5);
(FF) the preparation and delivery of Issuer Orders and the obtaining of an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(GG) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(HH) the duty to notify Noteholders of redemption of the Notes or to cause the Indenture Trustee to provide such notification (Section 10.2);
(II) the preparation and delivery of Officer’s Certificates and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, with respect to any requests by the Issuer to the Indenture Trustee to take any action under the Indenture (Sections 11.1(a), (c), (d) and (e));
(JJ) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the lien of the Indenture (Section 11.1(e));
(KK) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(LL) the preparation and delivery to the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.6); and
(MM) the recording of the Indenture, if applicable (Section 11.15).
(ii) The Administrator (but not the Indenture Trustee if it is then acting as the successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in a separate fee schedule between the Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
Appears in 2 contracts
Samples: Administration Agreement (Carmax Auto Funding LLC), Administration Agreement (Carmax Auto Funding LLC)
Duties with Respect to the Related Agreements and the Transaction Documents. (i) The Administrator shall perform all its duties as Administrator under the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuer or the Owner Trustee under the Related Agreements. The Administrator shall monitor the performance of the Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuer’s or the Owner Trustee’s duties under the Related Agreements. The Administrator shall prepare for execution by the Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of, all such documents, reports, filings, instruments, certificates and opinions that it shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that the Issuer or the Owner Trustee is obligated to take (other than any obligation to make any payment required to be made by the Issuer under any Related Agreements) pursuant to the Indenture and the Asset Representations Review Agreement, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.5);
(B) the notification of Noteholders of the final principal payment on their Notes (Section 2.8(g));
(C) the preparation of or obtaining of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee (Sections 2.2, 2.3, 2.6 and 2.13);
(D) the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(E) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of collateral (Section 2.10);
(F) the maintenance of an office or agency in St. St Xxxx, Minnesota, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(G) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(H) the direction to the Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(I) the obtaining and preservation of the Issuer’s existence and qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument or agreement included in the Trust Estate (Section 3.4);
(J) the preparation of all supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments and the taking of such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(K) the duty to use best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in the Indenture and the other Transaction Documents (Section 3.7(a));
(L) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(M) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(N) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing Agreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(O) the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any termination of the Servicer’s rights and powers under the Sale and Servicing Agreement and the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any appointment of a Successor Servicer under the Sale and Servicing Agreement (Section 3.7(f));
(P) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(Q) the preparation and obtaining of documents and instruments required for the consolidation or merger of the Issuer (Section 3.10(a)(vi)) or the conveyance or transfer by the Issuer of its properties or assets (Section 3.10(b));
(R) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of each Event of Default under the Indenture, each default by the Depositor or the Servicer under the Sale and Servicing Agreement and each default by the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.18);
(S) upon the request of the Indenture Trustee, the duty to execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of the Indenture (Section 3.20);
(T) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(U) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate at one or more public or private sales called and conducted in any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(V) the duty to take various lawful actions upon the request of the Indenture Trustee in connection with compelling or securing the performance and observance by the Depositor and the Servicer of their respective obligations to the Issuer under or in connection with the Sale and Servicing Agreement or by the Seller of its obligations under or in connection with the Receivables Purchase Agreement (Section 5.16);
(W) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(X) the preparation of any written instruments required to confirm more fully the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of any co-trustee or separate trustee (Section 6.10);
(Y) the maintenance of the effectiveness of the sales finance company licenses required under the Maryland Code and the Pennsylvania Motor Vehicle Sales Finance Company Act (Section 3.21);
(Z) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(AA) the preparation and, after execution by the Issuer, filing with the Commission, any applicable state agencies and the Indenture Trustee of documents required to be filed on a periodic basis with, and summaries thereof as may be required by the rules and regulations of, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(BB) the duty to send to the Servicer any request of a Note Owner to communicate with other Noteholders or Note Owners about a possible exercise of rights under the Transaction Documents (Section 7.5(b));
(CC) the duty to remove the Asset Representations Reviewer or appoint a replacement Asset Representations Reviewer (which costs associated with the termination of the Asset Representations Reviewer and the appointment of a successor shall be borne by the Administrator) and cause the retiring Asset Representations Reviewer to provide the successor Asset Representations Reviewer with any information relating to an ongoing Asset Representations Review and providing a copy of any Asset Representations Review Notice to the Seller, the Depositor and the Servicer (Section 7.6);
(DD) the opening of one or more trust accounts in the Indenture Trustee’s name, the preparation and delivery of Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(EE) the preparation and delivery of an Issuer Request and Officer’s Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate (Sections 8.4 and 8.5);
(FF) the preparation and delivery of Issuer Orders and the obtaining of an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(GG) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(HH) the duty to notify Noteholders of redemption of the Notes or to cause the Indenture Trustee to provide such notification (Section 10.2);
(II) the preparation and delivery of Officer’s Certificates and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, with respect to any requests by the Issuer to the Indenture Trustee to take any action under the Indenture (Sections 11.1(a), (c), (d) and (e));
(JJ) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the lien of the Indenture (Section 11.1(e));
(KK) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(LL) the preparation and delivery to the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.6); and
(MM) the recording of the Indenture, if applicable (Section 11.15).
(ii) The Administrator (but not the Indenture Trustee if it is then acting as the successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in a separate fee schedule between the Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
Appears in 2 contracts
Samples: Administration Agreement (Carmax Auto Funding LLC), Administration Agreement (Carmax Auto Funding LLC)
Duties with Respect to the Related Agreements and the Transaction Documents. (i) The Administrator shall perform all its duties as Administrator under the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuer or the Owner Trustee under the Related Agreements. The Administrator shall monitor the performance of the Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuer’s or the Owner Trustee’s duties under the Related Agreements. The Administrator shall prepare for execution by the Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of, all such documents, reports, filings, instruments, certificates and opinions that it shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that the Issuer or the Owner Trustee is obligated to take (other than any obligation to make any payment required to be made by the Issuer under any Related Agreements) pursuant to the Indenture and the Asset Representations Review Agreement, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.5);
(B) the notification of Noteholders of the final principal payment on their Notes (Section 2.8(g));
(C) the preparation of or obtaining of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee (Sections 2.2, 2.3, 2.6 and 2.13);
(D) the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(E) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of collateral (Section 2.10);
(F) the duty to give the Indenture Trustee notice of any appointment of a new Calculation Agent (Section 3.1):
(G) the duty to determine a Benchmark Transition Event, Benchmark Replacement Date, Benchmark Replacement, Benchmark Replacement Adjustment, Benchmark Replacement Conforming Changes or any other matters related to or arising in connection with the foregoing and provide such information to the Servicer for inclusion in the Servicer’s Certificate (Section 3.1);
(H) the maintenance of an office or agency in St. St Xxxx, Minnesota, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(GI) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(HJ) the direction to the Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(IK) the obtaining and preservation of the Issuer’s existence and qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument or agreement included in the Trust Estate (Section 3.4);
(JL) the preparation of all supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments and the taking of such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(KM) the duty to use best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in the Indenture and the other Transaction Documents (Section 3.7(a));
(LN) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(MO) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(NP) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing Agreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(OQ) the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any termination of the Servicer’s rights and powers under the Sale and Servicing Agreement and the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any appointment of a Successor Servicer under the Sale and Servicing Agreement (Section 3.7(f));
(PR) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(QS) the preparation and obtaining of documents and instruments required for the consolidation or merger of the Issuer (Section 3.10(a)(vi)) or the conveyance or transfer by the Issuer of its properties or assets (Section 3.10(b));
(RT) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of each Event of Default under the Indenture, each default by the Depositor or the Servicer under the Sale and Servicing Agreement and each default by the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.18);
(SU) upon the request of the Indenture Trustee, the duty to execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of the Indenture (Section 3.20);
(TV) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(UW) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate at one or more public or private sales called and conducted in any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(VX) the duty to take various lawful actions upon the request of the Indenture Trustee in connection with compelling or securing the performance and observance by the Depositor and the Servicer of their respective obligations to the Issuer under or in connection with the Sale and Servicing Agreement or by the Seller of its obligations under or in connection with the Receivables Purchase Agreement (Section 5.16);
(WY) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(XZ) the preparation of any written instruments required to confirm more fully the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of any co-trustee or separate trustee (Section 6.10);
(YAA) the maintenance of the effectiveness of the sales finance company licenses required under the Maryland Code and the Pennsylvania Motor Vehicle Sales Finance Company Act (Section 3.21);
(ZBB) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(AACC) the preparation and, after execution by the Issuer, filing with the Commission, any applicable state agencies and the Indenture Trustee of documents required to be filed on a periodic basis with, and summaries thereof as may be required by the rules and regulations of, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(BBDD) the duty to send to the Servicer any request of a Note Owner to communicate with other Noteholders or Note Owners about a possible exercise of rights under the Transaction Documents (Section 7.5(b));
(CCEE) the duty to remove the Asset Representations Reviewer or appoint a replacement Asset Representations Reviewer (which costs associated with the termination of the Asset Representations Reviewer and the appointment of a successor shall be borne by the Administrator) and cause the retiring Asset Representations Reviewer to provide the successor Asset Representations Reviewer with any information relating to an ongoing Asset Representations Review and providing a copy of any Asset Representations Review Notice to the Seller, the Depositor and the Servicer (Section 7.6);
(DDFF) the opening of one or more trust accounts in the Indenture Trustee’s name, the preparation and delivery of Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(EEGG) the preparation and delivery of an Issuer Request and Officer’s Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate (Sections 8.4 and 8.5);
(FFHH) the preparation and delivery of Issuer Orders and the obtaining of an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(GGII) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(HHJJ) the duty to notify Noteholders of redemption of the Notes or to cause the Indenture Trustee to provide such notification (Section 10.2);
(IIKK) the preparation and delivery of Officer’s Certificates and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, with respect to any requests by the Issuer to the Indenture Trustee to take any action under the Indenture (Sections 11.1(a), (c), (d) and (e));
(JJLL) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the lien of the Indenture (Section 11.1(e));
(KKMM) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(LLNN) the preparation and delivery to the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.6); and
(MMOO) the recording of the Indenture, if applicable (Section 11.15).
(ii) The Administrator (but not the Indenture Trustee if it is then acting as the successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in a separate fee schedule between the Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
Appears in 2 contracts
Samples: Administration Agreement (CarMax Auto Owner Trust 2022-2), Administration Agreement (CarMax Auto Owner Trust 2022-2)
Duties with Respect to the Related Agreements and the Transaction Documents. (i) The Administrator shall perform all its duties as Administrator under the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuer or the Owner Trustee under the Related Agreements. The Administrator shall monitor the performance of the Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuer’s or the Owner Trustee’s duties under the Related Agreements. The Administrator shall prepare for execution by the Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of, all such documents, reports, filings, instruments, certificates and opinions that it shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that the Issuer or the Owner Trustee is obligated to take (other than any obligation to make any payment required to be made by the Issuer under any Related Agreements) pursuant to the Indenture and the Asset Representations Review Agreement, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.5);
(B) the notification of Noteholders of the final principal payment on their Notes (Section 2.8(g));
(C) the preparation of or obtaining of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee (Sections 2.2, 2.3, 2.6 and 2.13);
(D) the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(E) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of collateral (Section 2.10);
(F) the maintenance of an office or agency in St. Xxxxthe Borough of Manhattan, MinnesotaThe City of New York, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(G) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(H) the direction to the Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(I) the obtaining and preservation of the Issuer’s existence and qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument or agreement included in the Trust Estate (Section 3.4);
(J) the preparation of all supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments and the taking of such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(K) the duty to use best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in the Indenture and the other Transaction Documents (Section 3.7(a));
(L) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(M) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(N) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing Agreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(O) the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any termination of the Servicer’s rights and powers under the Sale and Servicing Agreement and the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any appointment of a Successor Servicer under the Sale and Servicing Agreement (Section 3.7(f));
(P) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(Q) the preparation and obtaining of documents and instruments required for the consolidation or merger of the Issuer (Section 3.10(a)(vi)) or the conveyance or transfer by the Issuer of its properties or assets (Section 3.10(b));
(R) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of each Event of Default under the Indenture, each default by the Depositor or the Servicer under the Sale and Servicing Agreement and each default by the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.18);
(S) upon the request of the Indenture Trustee, the duty to execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of the Indenture (Section 3.20);
(T) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(U) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate at one or more public or private sales called and conducted in any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(V) the duty to take various lawful actions upon the request of the Indenture Trustee in connection with compelling or securing the performance and observance by the Depositor and the Servicer of their respective obligations to the Issuer under or in connection with the Sale and Servicing Agreement or by the Seller of its obligations under or in connection with the Receivables Purchase Agreement (Section 5.16);
(W) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(X) the preparation of any written instruments required to confirm more fully the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of any co-trustee or separate trustee (Section 6.10);
(Y) the maintenance of the effectiveness of the sales finance company licenses required under the Maryland Code and the Pennsylvania Motor Vehicle Sales Finance Company Act (Section 3.21);
(Z) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(AA) the preparation and, after execution by the Issuer, filing with the Commission, any applicable state agencies and the Indenture Trustee of documents required to be filed on a periodic basis with, and summaries thereof as may be required by the rules and regulations of, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(BB) the duty to send to the Servicer any request of a Note Owner to communicate with other Noteholders or Note Owners about a possible exercise of rights under the Transaction Documents (Section 7.5(b));
(CC) the duty to remove the Asset Representations Reviewer or appoint a replacement Asset Representations Reviewer (which costs associated with the termination of the Asset Representations Reviewer and the appointment of a successor shall be borne by the Administrator) and cause the retiring Asset Representations Reviewer to provide the successor Asset Representations Reviewer with any information relating to an ongoing Asset Representations Review and providing a copy of any Asset Representations Representation Review Notice to the Seller, the Depositor and the Servicer (Section 7.6);
(DD) the opening of one or more accounts in the Indenture Trustee’s name, the preparation and delivery of Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(EE) the preparation and delivery of an Issuer Request and Officer’s Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate (Sections 8.4 and 8.5);
(FF) the preparation and delivery of Issuer Orders and the obtaining of an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(GG) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(HH) the duty to notify Noteholders of redemption of the Notes or to cause the Indenture Trustee to provide such notification (Section 10.2);
(II) the preparation and delivery of Officer’s Certificates and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, with respect to any requests by the Issuer to the Indenture Trustee to take any action under the Indenture (Sections 11.1(a), (c), (d) and (e));
(JJ) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the lien of the Indenture (Section 11.1(e));
(KK) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(LL) the preparation and delivery to the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.6); and
(MM) the recording of the Indenture, if applicable (Section 11.15).
(ii) The Administrator (but not the Indenture Trustee if it is then acting as the successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in a separate fee schedule between the Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
Appears in 2 contracts
Samples: Administration Agreement (CarMax Auto Owner Trust 2016-1), Administration Agreement (CarMax Auto Owner Trust 2016-1)
Duties with Respect to the Related Agreements and the Transaction Documents. (i) The Administrator shall perform all its duties as Administrator under the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuer or the Owner Trustee under the Related Agreements. The Administrator shall monitor the performance of the Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuer’s or the Owner Trustee’s duties under the Related Agreements. The Administrator shall prepare for execution by the Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of, all such documents, reports, filings, instruments, certificates and opinions that it shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that the Issuer or the Owner Trustee is obligated to take (other than any obligation to make any payment required to be made by the Issuer under any Related Agreements) pursuant to the Indenture and the Asset Representations Review Agreement, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.5);
(B) the notification of Noteholders of the final principal payment on their Notes (Section 2.8(g));
(C) the preparation of or obtaining of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee (Sections 2.2, 2.3, 2.6 and 2.13);
(D) the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(E) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of collateral (Section 2.10);
(F) [reserved];
(G) the maintenance of an office or agency in St. XxxxWilmington, MinnesotaDelaware, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(GH) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(HI) the direction to the Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(IJ) the obtaining and preservation of the Issuer’s existence and qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument or agreement included in the Trust Estate (Section 3.4);
(JK) the preparation of all supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments and the taking of such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(KL) the duty to use best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in the Indenture and the other Transaction Documents (Section 3.7(a));
(LM) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(MN) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(NO) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing Agreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(OP) the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any termination of the Servicer’s rights and powers under the Sale and Servicing Agreement and the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any appointment of a Successor Servicer under the Sale and Servicing Agreement (Section 3.7(f));
(PQ) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(QR) the preparation and obtaining of documents and instruments required for the consolidation or merger of the Issuer (Section 3.10(a)(vi)) or the conveyance or transfer by the Issuer of its properties or assets (Section 3.10(b));
(RS) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of each Event of Default under the Indenture, each default by the Depositor or the Servicer under the Sale and Servicing Agreement and each default by the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.18);
(ST) upon the request of the Indenture Trustee, the duty to execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of the Indenture (Section 3.20);
(TU) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(UV) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate at one or more public or private sales called and conducted in any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(VW) the duty to take various lawful actions upon the request of the Indenture Trustee in connection with compelling or securing the performance and observance by the Depositor and the Servicer of their respective obligations to the Issuer under or in connection with the Sale and Servicing Agreement or by the Seller of its obligations under or in connection with the Receivables Purchase Agreement (Section 5.16);
(WX) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(XY) the preparation of any written instruments required to confirm more fully the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of any co-trustee or separate trustee (Section 6.10);
(YZ) the maintenance of the effectiveness of the sales finance company licenses required under the Maryland Code and the Pennsylvania Motor Vehicle Sales Finance Company Act (Section 3.21);
(ZAA) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(AABB) the preparation and, after execution by the Issuer, filing with the Commission, any applicable state agencies and the Indenture Trustee of documents required to be filed on a periodic basis with, and summaries thereof as may be required by the rules and regulations of, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(BBCC) the duty to send to the Servicer any request of a Note Owner to communicate with other Noteholders or Note Owners about a possible exercise of rights under the Transaction Documents (Section 7.5(b));
(CCDD) the duty to remove the Asset Representations Reviewer or appoint a replacement Asset Representations Reviewer (which costs associated with the termination of the Asset Representations Reviewer and the appointment of a successor shall be borne by the Administrator) and cause the retiring Asset Representations Reviewer to provide the successor Asset Representations Reviewer with any information relating to an ongoing Asset Representations Review and providing a copy of any Asset Representations Review Notice to the Seller, the Depositor and the Servicer (Section 7.6);
(DDEE) the opening of one or more trust accounts in the Indenture Trustee’s name, the preparation and delivery of Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(EEFF) the preparation and delivery of an Issuer Request and Officer’s Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate (Sections 8.4 and 8.5);
; (FFGG) the preparation and delivery of Issuer Orders and the obtaining of an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(GGHH) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(HHII) the duty to notify Noteholders of redemption of the Notes or to cause the Indenture Trustee to provide such notification (Section 10.2);
(IIJJ) the preparation and delivery of Officer’s Certificates and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, with respect to any requests by the Issuer to the Indenture Trustee to take any action under the Indenture (Sections 11.1(a), (c), (d) and (e));
(JJKK) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the lien of the Indenture (Section 11.1(e));
(KKLL) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(LLMM) the preparation and delivery to the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.6); and
(MMNN) the recording of the Indenture, if applicable (Section 11.15).
(ii) The Administrator (but not the Indenture Trustee if it is then acting as the successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in a separate fee schedule between the Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
Appears in 2 contracts
Samples: Administration Agreement (Carmax Auto Funding LLC), Administration Agreement (Carmax Auto Funding LLC)
Duties with Respect to the Related Agreements and the Transaction Documents. (i) The Administrator shall perform all its duties as Administrator under the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuer or the Owner Trustee under the Related Agreements. The Administrator shall monitor the performance of the Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuer’s or the Owner Trustee’s duties under the Related Agreements. The Administrator shall prepare for execution by the Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of, all such documents, reports, filings, instruments, certificates and opinions that it shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that the Issuer or the Owner Trustee is obligated to take (other than any obligation to make any payment required to be made by the Issuer under any Related Agreements) pursuant to the Indenture and the Asset Representations Review Agreement, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.5);
(B) the notification of Noteholders of the final principal payment on their Notes (Section 2.8(g));
(C) the preparation of or obtaining of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee (Sections 2.2, 2.3, 2.6 and 2.13);
(D) the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(E) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of collateral (Section 2.10);
(F) the determination of a Benchmark Transition Event, Benchmark, its related Benchmark Replacement Date and any Benchmark Replacement Conforming Changes (Section 2.16);
(G) the maintenance of an office or agency in St. XxxxWilmington, MinnesotaDelaware, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(GH) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(HI) the direction to the Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(IJ) the obtaining and preservation of the Issuer’s existence and qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument or agreement included in the Trust Estate (Section 3.4);
(JK) the preparation of all supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments and the taking of such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(KL) the duty to use best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in the Indenture and the other Transaction Documents (Section 3.7(a));
(LM) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(MN) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(NO) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing Agreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(OP) the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any termination of the Servicer’s rights and powers under the Sale and Servicing Agreement and the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any appointment of a Successor Servicer under the Sale and Servicing Agreement (Section 3.7(f));
(PQ) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(QR) the preparation and obtaining of documents and instruments required for the consolidation or merger of the Issuer (Section 3.10(a)(vi)) or the conveyance or transfer by the Issuer of its properties or assets (Section 3.10(b));
(RS) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of each Event of Default under the Indenture, each default by the Depositor or the Servicer under the Sale and Servicing Agreement and each default by the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.18);
(ST) upon the request of the Indenture Trustee, the duty to execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of the Indenture (Section 3.20);
(TU) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(UV) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate at one or more public or private sales called and conducted in any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(VW) the duty to take various lawful actions upon the request of the Indenture Trustee in connection with compelling or securing the performance and observance by the Depositor and the Servicer of their respective obligations to the Issuer under or in connection with the Sale and Servicing Agreement or by the Seller of its obligations under or in connection with the Receivables Purchase Agreement (Section 5.16);
(WX) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(XY) the preparation of any written instruments required to confirm more fully the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of any co-trustee or separate trustee (Section 6.10);
(YZ) the maintenance of the effectiveness of the sales finance company licenses required under the Maryland Code and the Pennsylvania Motor Vehicle Sales Finance Company Act (Section 3.21);
(ZAA) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(AABB) the preparation and, after execution by the Issuer, filing with the Commission, any applicable state agencies and the Indenture Trustee of documents required to be filed on a periodic basis with, and summaries thereof as may be required by the rules and regulations of, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(BBCC) the duty to send to the Servicer any request of a Note Owner to communicate with other Noteholders or Note Owners about a possible exercise of rights under the Transaction Documents (Section 7.5(b));
(CCDD) the duty to remove the Asset Representations Reviewer or appoint a replacement Asset Representations Reviewer (which costs associated with the termination of the Asset Representations Reviewer and the appointment of a successor shall be borne by the Administrator) and cause the retiring Asset Representations Reviewer to provide the successor Asset Representations Reviewer with any information relating to an ongoing Asset Representations Review and providing a copy of any Asset Representations Review Notice to the Seller, the Depositor and the Servicer (Section 7.6);
(DDEE) the opening of one or more trust accounts in the Indenture Trustee’s name, the preparation and delivery of Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(EEFF) the preparation and delivery of an Issuer Request and Officer’s Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate (Sections 8.4 and 8.5);
; (FFGG) the preparation and delivery of Issuer Orders and the obtaining of an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(GGHH) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(HHII) the duty to notify Noteholders of redemption of the Notes or to cause the Indenture Trustee to provide such notification (Section 10.2);
(IIXX) the preparation and delivery of Officer’s Certificates and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, with respect to any requests by the Issuer to the Indenture Trustee to take any action under the Indenture (Sections 11.1(a), (c), (d) and (e));
(JJKK) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the lien of the Indenture (Section 11.1(e));
(KKLL) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(LLMM) the preparation and delivery to the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.6); and
(MMNN) the recording of the Indenture, if applicable (Section 11.15).
(ii) The Administrator (but not the Indenture Trustee if it is then acting as the successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in a separate fee schedule between the Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
Appears in 2 contracts
Samples: Administration Agreement (Carmax Auto Funding LLC), Administration Agreement (Carmax Auto Funding LLC)
Duties with Respect to the Related Agreements and the Transaction Documents. (i) The Administrator shall perform all its duties as Administrator under the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuer or the Owner Trustee under the Related Agreements. The Administrator shall monitor the performance of the Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuer’s or the Owner Trustee’s duties under the Related Agreements. The Administrator shall prepare for execution by the Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of, all such documents, reports, filings, instruments, certificates and opinions that it shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that the Issuer or the Owner Trustee is obligated to take (other than any obligation to make any payment required to be made by the Issuer under any Related Agreements) pursuant to the Indenture and the Asset Representations Review Agreement, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.5);
(B) the notification of Noteholders of the final principal payment on their Notes (Section 2.8(g));
(C) the preparation of or obtaining of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee (Sections 2.2, 2.3, 2.6 and 2.13);
(D) the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(E) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of collateral (Section 2.10);
(F) the maintenance of an office or agency in St. Xxxx, Minnesota[_______], where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(G) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(H) the direction to the Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(I) the obtaining and preservation of the Issuer’s existence and qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument or agreement included in the Trust Estate (Section 3.4);
(J) the preparation of all supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments and the taking of such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(K) the duty to use best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in the Indenture and the other Transaction Documents (Section 3.7(a));
(L) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(M) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(N) the preparation and delivery of written notice to the Indenture Trustee[, the Backup Servicer][, the Swap Counterparty], the Depositor and the Rating Agencies of an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing Agreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(O) the preparation and delivery of written notice to the Depositor, the Indenture Trustee Trustee[, the Backup Servicer][, the Swap Counterparty] and the Rating Agencies of any termination of the Servicer’s rights and powers under the Sale and Servicing Agreement and the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of [the Backup Servicer becoming the Servicer or] any appointment of a Successor Servicer under the Sale and Servicing Agreement (Section 3.7(f));
(P) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(Q) the preparation and obtaining of documents and instruments required for the consolidation or merger of the Issuer (Section 3.10(a)(vi)) or the conveyance or transfer by the Issuer of its properties or assets (Section 3.10(b));
(R) the preparation and delivery of written notice to the Indenture Trustee, [the Backup Servicer,] [the Swap Counterparty,] the Depositor and the Rating Agencies of each Event of Default under the Indenture, each default by the Depositor Depositor, [or] the Servicer [or the Servicer Backup Servicer] under the Sale and Servicing Agreement and each default by the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.18);
(S) upon the request of the Indenture Trustee, the duty to execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of the Indenture (Section 3.20);
(T) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(U) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate at one or more public or private sales called and conducted in any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(V) the duty to take various lawful actions upon the request of the Indenture Trustee in connection with compelling or securing the performance and observance by the Depositor and the Servicer of their respective obligations to the Issuer under or in connection with the Sale and Servicing Agreement or by the Seller of its obligations under or in connection with the Receivables Purchase Agreement (Section 5.16);
(W) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(X) the preparation of any written instruments required to confirm more fully the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of any co-trustee or separate trustee (Section 6.10);
(Y) the maintenance of the effectiveness of the sales finance company licenses required under the Maryland Code and the Pennsylvania Motor Vehicle Sales Finance Company Act (Section 3.21);
(Z) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(AA) the preparation and, after execution by the Issuer, filing with the Commission, any applicable state agencies and the Indenture Trustee of documents required to be filed on a periodic basis with, and summaries thereof as may be required by the rules and regulations of, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(BB) the duty to send to the Servicer any request of a Note Owner to communicate with other Noteholders or Note Owners about a possible exercise of rights under the Transaction Documents (Section 7.5(b));
(CC) the duty to remove the Asset Representations Reviewer or appoint a replacement Asset Representations Reviewer (which costs associated with the termination of the Asset Representations Reviewer and the appointment of a successor shall be borne by the Administrator) and cause the retiring Asset Representations Reviewer to provide the successor Asset Representations Reviewer with any information relating to an ongoing Asset Representations Review and providing a copy of any Asset Representations Review Notice to the Seller, the Depositor and the Servicer (Section 7.6);
(DD) the opening of one or more trust accounts in the Indenture Trustee’s name, the preparation and delivery of Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(EE) the preparation and delivery of an Issuer Request and Officer’s Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate (Sections 8.4 and 8.5);
(FF) the preparation and delivery of Issuer Orders and the obtaining of an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders Noteholders[, the Swap Counterparty] and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(GG) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(HH) the duty to notify Noteholders [and the Swap Counterparty] of redemption of the Notes or to cause the Indenture Trustee to provide such notification (Section 10.2);
(II) the preparation and delivery of Officer’s Certificates and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, with respect to any requests by the Issuer to the Indenture Trustee to take any action under the Indenture (Sections 11.1(a), (c), (d) and (e));
(JJ) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the lien of the Indenture (Section 11.1(e));
(KK) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(LL) the preparation and delivery to the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.6); and
(MM) the recording of the Indenture, if applicable (Section 11.15).
(ii) The Administrator (but not the Indenture Trustee if it is then acting as the successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in a separate fee schedule between the Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
Appears in 2 contracts
Samples: Administration Agreement (Carmax Auto Funding LLC), Administration Agreement (Carmax Auto Funding LLC)
Duties with Respect to the Related Agreements and the Transaction Documents. (i) The Administrator shall perform all its duties as Administrator under the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuer or the Owner Trustee under the Related Agreements. The Administrator shall monitor the performance of the Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuer’s or the Owner Trustee’s duties under the Related Agreements. The Administrator shall prepare for execution by the Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of, all such documents, reports, filings, instruments, certificates and opinions that it shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that the Issuer or the Owner Trustee is obligated to take (other than any obligation to make any payment required to be made by the Issuer under any Related Agreements) pursuant to the Indenture and the Asset Representations Review AgreementIndenture, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.5);
(B) the notification of Noteholders of the final principal payment on their Notes (Section 2.8(g));
(C) the preparation of or obtaining of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee (Sections 2.2, 2.3, 2.6 and 2.13);
(D) the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(E) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of collateral (Section 2.10);
(F) the maintenance of an office or agency in St. Xxxxthe Borough of Manhattan, MinnesotaThe City of New York, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(G) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(H) the direction to the Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(I) the obtaining and preservation of the Issuer’s existence and qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument or agreement included in the Trust Estate (Section 3.4);
(J) the preparation of all supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments and the taking of such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(K) the duty to use best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in the Indenture and the other Transaction Documents (Section 3.7(a));
(L) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(M) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(N) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing Agreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(O) the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any termination of the Servicer’s rights and powers under the Sale and Servicing Agreement and the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of any appointment of a Successor Servicer under the Sale and Servicing Agreement (Section 3.7(f));
(P) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(Q) the preparation and obtaining of documents and instruments required for the consolidation or merger of the Issuer (Section 3.10(a)(vi)) or the conveyance or transfer by the Issuer of its properties or assets (Section 3.10(b));
(R) the preparation and delivery of written notice to the Indenture Trustee, the Depositor and the Rating Agencies of each Event of Default under the Indenture, each default by the Depositor or the Servicer under the Sale and Servicing Agreement and each default by the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.18);
(S) upon the request of the Indenture Trustee, the duty to execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of the Indenture (Section 3.20);
(T) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(U) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate at one or more public or private sales called and conducted in any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(V) the duty to take various lawful actions upon the request of the Indenture Trustee in connection with compelling or securing the performance and observance by the Depositor and the Servicer of their respective obligations to the Issuer under or in connection with the Sale and Servicing Agreement or by the Seller of its obligations under or in connection with the Receivables Purchase Agreement (Section 5.16);
(W) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(X) the preparation of any written instruments required to confirm more fully the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of any co-trustee or separate trustee (Section 6.10);
(Y) the maintenance of the effectiveness of the sales finance company licenses required under the Maryland Code and the Pennsylvania Motor Vehicle Sales Finance Company Act (Section 3.21);
(Z) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(AA) the preparation and, after execution by the Issuer, filing with the Commission, any applicable state agencies and the Indenture Trustee of documents required to be filed on a periodic basis with, and summaries thereof as may be required by the rules and regulations of, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(BB) the duty to send to the Servicer any request of a Note Owner to communicate with other Noteholders or Note Owners about a possible exercise of rights under the Transaction Documents (Section 7.5(b));
(CC) the duty to remove the Asset Representations Reviewer or appoint a replacement Asset Representations Reviewer (which costs associated with the termination of the Asset Representations Reviewer and the appointment of a successor shall be borne by the Administrator) and cause the retiring Asset Representations Reviewer to provide the successor Asset Representations Reviewer with any information relating to an ongoing Asset Representations Review and providing a copy of any Asset Representations Review Notice to the Seller, the Depositor and the Servicer (Section 7.6);
(DD) the opening of one or more accounts in the Indenture Trustee’s name, the preparation and delivery of Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(EECC) the preparation and delivery of an Issuer Request and Officer’s Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate (Sections 8.4 and 8.5);
(FFDD) the preparation and delivery of Issuer Orders and the obtaining of an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(GGEE) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(HHFF) the duty to notify Noteholders of redemption of the Notes or to cause the Indenture Trustee to provide such notification (Section 10.2);
(IIGG) the preparation and delivery of Officer’s Certificates and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, with respect to any requests by the Issuer to the Indenture Trustee to take any action under the Indenture (Sections 11.1(a), (c), (d) and (e));
(JJHH) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the lien of the Indenture (Section 11.1(e));
(KKII) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(LLJJ) the preparation and delivery to the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.6); and
(MMKK) the recording of the Indenture, if applicable (Section 11.15).
(ii) The Administrator (but not the Indenture Trustee if it is then acting as the successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in a separate fee schedule between the Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
Appears in 1 contract
Samples: Administration Agreement (CarMax Auto Owner Trust 2015-4)
Duties with Respect to the Related Agreements and the Transaction Documents. (i) The Administrator shall perform all its duties as Administrator under the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuer or the Owner Trustee under the Related Agreements. The Administrator shall monitor the performance of the Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuer’s or the Owner Trustee’s duties under the Related Agreements. The Administrator shall prepare for execution by the Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of, all such documents, reports, filings, instruments, certificates and opinions that it shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that the Issuer or the Owner Trustee is obligated to take (other than any obligation to make any payment required to be made by the Issuer under any Related Agreements) pursuant to the Indenture and the Asset Representations Review Agreement, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.5);
(B) the notification of Noteholders of the final principal payment on their Notes (Section 2.8(g));
(C) the preparation of or obtaining of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee (Sections 2.2, 2.3, 2.6 and 2.13);
(D) the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(E) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of collateral (Section 2.10);
(F) the duty to give the Indenture Trustee notice of any appointment of a new Calculation Agent (Section 3.1);
(G) the duty to determine a Benchmark Transition Event, Benchmark Replacement Date, Benchmark Replacement, Benchmark Replacement Adjustment, Benchmark Replacement Conforming Changes, [SOFR] Adjustment Confirming Change or any other matters related to or arising in connection with the foregoing and provide such information to the Servicer for inclusion in the Servicer’s Certificate (Section 3.1);
(H) the maintenance of an office or agency in St. Xxxx, Minnesota[_______], where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(GI) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(HJ) the direction to the Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(IK) the obtaining and preservation of the Issuer’s existence and qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument or agreement included in the Trust Estate (Section 3.4);
(JL) the preparation of all supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments and the taking of such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(KM) the duty to use best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in the Indenture and the other Transaction Documents (Section 3.7(a));
(LN) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(MO) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(NP) the preparation and delivery of written notice to the Indenture Trustee[, the Backup Servicer][, the Swap Counterparty], the Depositor and the Rating Agencies of an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing Agreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(OQ) the preparation and delivery of written notice to the Depositor, the Indenture Trustee Trustee[, the Backup Servicer][, the Swap Counterparty] and the Rating Agencies of any termination of the Servicer’s rights and powers under the Sale and Servicing Agreement and the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of [the Backup Servicer becoming the Servicer or] any appointment of a Successor Servicer under the Sale and Servicing Agreement (Section 3.7(f));
(PR) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(QS) the preparation and obtaining of documents and instruments required for the consolidation or merger of the Issuer (Section 3.10(a)(vi)) or the conveyance or transfer by the Issuer of its properties or assets (Section 3.10(b));
(RT) the preparation and delivery of written notice to the Indenture Trustee, [the Backup Servicer,] [the Swap Counterparty,] the Depositor and the Rating Agencies of each Event of Default under the Indenture, each default by the Depositor Depositor, [or] the Servicer [or the Servicer Backup Servicer] under the Sale and Servicing Agreement and each default by the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.18);
(SU) upon the request of the Indenture Trustee, the duty to execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of the Indenture (Section 3.20);
(TV) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(UW) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate at one or more public or private sales called and conducted in any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(VX) the duty to take various lawful actions upon the request of the Indenture Trustee in connection with compelling or securing the performance and observance by the Depositor and the Servicer of their respective obligations to the Issuer under or in connection with the Sale and Servicing Agreement or by the Seller of its obligations under or in connection with the Receivables Purchase Agreement (Section 5.16);
(WY) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(XZ) the preparation of any written instruments required to confirm more fully the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of any co-trustee or separate trustee (Section 6.10);
(YAA) the maintenance of the effectiveness of the sales finance company licenses required under the Maryland Code and the Pennsylvania Motor Vehicle Sales Finance Company Act (Section 3.21);
(ZBB) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(AACC) the preparation and, after execution by the Issuer, filing with the Commission, any applicable state agencies and the Indenture Trustee of documents required to be filed on a periodic basis with, and summaries thereof as may be required by the rules and regulations of, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(BBDD) the duty to send to the Servicer any request of a Note Owner to communicate with other Noteholders or Note Owners about a possible exercise of rights under the Transaction Documents (Section 7.5(b));
(CCEE) the duty to remove the Asset Representations Reviewer or appoint a replacement Asset Representations Reviewer (which costs associated with the termination of the Asset Representations Reviewer and the appointment of a successor shall be borne by the Administrator) and cause the retiring Asset Representations Reviewer to provide the successor Asset Representations Reviewer with any information relating to an ongoing Asset Representations Review and providing a copy of any Asset Representations Review Notice to the Seller, the Depositor and the Servicer (Section 7.6);
(DDFF) the opening of one or more trust accounts in the Indenture Trustee’s name, the preparation and delivery of Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(EEGG) the preparation and delivery of an Issuer Request and Officer’s Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate (Sections 8.4 and 8.5);
(FFHH) the preparation and delivery of Issuer Orders and the obtaining of an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders Noteholders[, the Swap Counterparty] and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(GGII) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(HHJJ) the duty to notify Noteholders [and the Swap Counterparty] of redemption of the Notes or to cause the Indenture Trustee to provide such notification (Section 10.2);
(IIKK) the preparation and delivery of Officer’s Certificates and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, with respect to any requests by the Issuer to the Indenture Trustee to take any action under the Indenture (Sections 11.1(a), (c), (d) and (e));
(JJLL) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the lien of the Indenture (Section 11.1(e));
(KKMM) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(LLNN) the preparation and delivery to the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.6); and
(MMOO) the recording of the Indenture, if applicable (Section 11.15).
(ii) The Administrator (but not the Indenture Trustee if it is then acting as the successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in a separate fee schedule between the Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
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Duties with Respect to the Related Agreements and the Transaction Documents. (i) The Administrator shall perform all its duties as Administrator under the Note Depository Agreement. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuer or the Owner Trustee under the Related Agreements. The Administrator shall monitor the performance of the Issuer and shall advise the Owner Trustee when action is necessary to comply with the Issuer’s or the Owner Trustee’s duties under the Related Agreements. The Administrator shall prepare for execution by the Issuer or the Owner Trustee, or shall cause the preparation by other appropriate persons of, all such documents, reports, filings, instruments, certificates and opinions that it shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the Related Agreements. In furtherance of the foregoing, the Administrator shall take all appropriate action that the Issuer or the Owner Trustee is obligated to take (other than any obligation to make any payment required to be made by the Issuer under any Related Agreements) pursuant to the Indenture and the Asset Representations Review AgreementIndenture, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references are to sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.5);
(B) the notification of Noteholders of the final principal payment on their Notes (Section 2.8(g));
(C) the preparation of or obtaining of the documents and instruments required for authentication of the Notes and delivery of the same to the Indenture Trustee (Sections 2.2, 2.3, 2.6 and 2.13);
(D) the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.13);
(E) the preparation, obtaining or filing of the instruments, opinions, certificates and other documents required for the release of collateral (Section 2.10);
(F) the maintenance of an office or agency in St. Xxxxthe Borough of Manhattan, MinnesotaThe City of New York, where Notes may be surrendered for registration of transfer or exchange (Section 3.2);
(G) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.3);
(H) the direction to the Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.3);
(I) the obtaining and preservation of the Issuer’s existence and qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument or agreement included in the Trust Estate (Section 3.4);
(J) the preparation of all supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments and the taking of such other action as is necessary or advisable to protect the Trust Estate (Section 3.5);
(K) the duty to use best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in the Indenture and the other Transaction Documents (Section 3.7(a));
(L) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel as to the Trust Estate, and the annual delivery of the Officer’s Certificate and certain other statements as to compliance with the Indenture (Sections 3.6 and 3.9);
(M) the identification to the Indenture Trustee in an Officer’s Certificate of a Person with whom the Issuer has contracted to perform its duties under the Indenture (Section 3.7(b));
(N) the preparation and delivery of written notice to the Indenture Trustee[, the Backup Servicer][, the Swap Counterparty], the Depositor and the Rating Agencies of an Event of Servicing Termination under the Sale and Servicing Agreement and, if such Event of Servicing Termination arises from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing Agreement with respect to the Receivables, the taking of all reasonable steps available to remedy such failure (Section 3.7(d));
(O) the preparation and delivery of written notice to the Depositor, the Indenture Trustee Trustee[, the Backup Servicer][, the Swap Counterparty] and the Rating Agencies of any termination of the Servicer’s rights and powers under the Sale and Servicing Agreement and the preparation and delivery of written notice to the Depositor, the Indenture Trustee and the Rating Agencies of [the Backup Servicer becoming the Servicer or] any appointment of a Successor Servicer under the Sale and Servicing Agreement (Section 3.7(f));
(P) the duty to cause the Servicer to comply with Sections 3.7, 3.9, 3.10, 3.11, 3.12, 3.13 and 3.14 and Article VII of the Sale and Servicing Agreement (Section 3.14);
(Q) the preparation and obtaining of documents and instruments required for the consolidation or merger of the Issuer (Section 3.10(a)(vi)) or the conveyance or transfer by the Issuer of its properties or assets (Section 3.10(b));
(R) the preparation and delivery of written notice to the Indenture Trustee, [the Backup Servicer,] [the Swap Counterparty,] the Depositor and the Rating Agencies of each Event of Default under the Indenture, each default by the Depositor Depositor, [or] the Servicer [or the Servicer Backup Servicer] under the Sale and Servicing Agreement and each default by the Seller or the Depositor under the Receivables Purchase Agreement (Section 3.18);
(S) upon the request of the Indenture Trustee, the duty to execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of the Indenture (Section 3.20);
(T) the monitoring of the Issuer’s obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer’s Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate (if required) relating thereto (Section 4.1);
(U) the compliance with any written directive of the Indenture Trustee with respect to the sale of the Trust Estate at one or more public or private sales called and conducted in any manner permitted by law if an Event of Default shall have occurred and be continuing under the Indenture (Section 5.4);
(V) the duty to take various lawful actions upon the request of the Indenture Trustee in connection with compelling or securing the performance and observance by the Depositor and the Servicer of their respective obligations to the Issuer under or in connection with the Sale and Servicing Agreement or by the Seller of its obligations under or in connection with the Receivables Purchase Agreement (Section 5.16);
(W) the preparation and delivery of written notice to the Noteholders of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.8);
(X) the preparation of any written instruments required to confirm more fully the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of any co-trustee or separate trustee (Section 6.10);
(Y) the maintenance of the effectiveness of the sales finance company licenses required under the Maryland Code and the Pennsylvania Motor Vehicle Sales Finance Company Act (Section 3.21);
(Z) the furnishing or causing to be furnished to the Indenture Trustee of the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.1);
(AA) the preparation and, after execution by the Issuer, filing with the Commission, any applicable state agencies and the Indenture Trustee of documents required to be filed on a periodic basis with, and summaries thereof as may be required by the rules and regulations of, the Commission and any applicable state agencies and the transmission of such summaries, as necessary, to the Noteholders (Section 7.3);
(BB) the duty to send to the Servicer any request of a Note Owner to communicate with other Noteholders or Note Owners about a possible exercise of rights under the Transaction Documents (Section 7.5(b));
(CC) the duty to remove the Asset Representations Reviewer or appoint a replacement Asset Representations Reviewer (which costs associated with the termination of the Asset Representations Reviewer and the appointment of a successor shall be borne by the Administrator) and cause the retiring Asset Representations Reviewer to provide the successor Asset Representations Reviewer with any information relating to an ongoing Asset Representations Review and providing a copy of any Asset Representations Review Notice to the Seller, the Depositor and the Servicer (Section 7.67.5 of the Indenture);
(DDCC) the opening of one or more accounts in the Indenture Trustee’s name, the preparation and delivery of Issuer Orders, Officer’s Certificates and Opinions of Counsel and all other actions necessary with respect to the investment and reinvestment of funds in the Collection Account and the Reserve Account (Sections 8.2 and 8.3);
(EEDD) the preparation and delivery of an Issuer Request and Officer’s Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Trust Estate (Sections 8.4 and 8.5);
(FFEE) the preparation and delivery of Issuer Orders and the obtaining of an Opinion of Counsel with respect to the execution of supplemental indentures and the mailing to the Noteholders Noteholders[, the Swap Counterparty] and the Rating Agencies, as applicable, of notices with respect to such supplemental indentures (Sections 9.1, 9.2 and 9.3);
(GGFF) the execution and delivery of new Notes conforming to any supplemental indenture (Section 9.6);
(HHGG) the duty to notify Noteholders [and the Swap Counterparty] of redemption of the Notes or to cause the Indenture Trustee to provide such notification (Section 10.2);
(IIHH) the preparation and delivery of Officer’s Certificates and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, with respect to any requests by the Issuer to the Indenture Trustee to take any action under the Indenture (Sections 11.1(a), (c), (d) and (e));
(JJII) the preparation and delivery of Officer’s Certificates and the obtaining of Opinions of Counsel and Independent Certificates, if necessary, for the release of property from the lien of the Indenture (Section 11.1(e));
(KKJJ) the preparation and delivery of written notice to the Rating Agencies, upon the failure of the Indenture Trustee to give such notification, of the information required pursuant to the Indenture (Section 11.4);
(LLKK) the preparation and delivery to the Indenture Trustee of any agreements with respect to alternate payment and notice provisions (Section 11.6); and
(MMLL) the recording of the Indenture, if applicable (Section 11.15).
(ii) The Administrator (but not the Indenture Trustee if it is then acting as the successor Administrator) shall:
(A) pay the Indenture Trustee from time to time such compensation and fees for all services rendered by the Indenture Trustee under the Indenture as have been agreed to in a separate fee schedule between the Administrator and the Indenture Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(B) except as otherwise expressly provided in the Indenture, reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Indenture Trustee in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith;
(C) indemnify the Indenture Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Indenture; and
(D) indemnify the Owner Trustee and its agents for, and hold them harmless against, any loss, liability or expense incurred without negligence or bad faith on their part arising out of or in connection with the acceptance or administration of the transactions contemplated by the Trust Agreement, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties under the Trust Agreement.
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