Duties of Administrator (a) DUTIES WITH RESPECT TO THE RELATED AGREEMENTS. Administrator shall consult with Owner Trustee regarding the duties of Issuer and Owner Trustee under the Related Agreements. Administrator shall monitor the performance of Issuer and shall advise Owner Trustee when action is necessary to comply with Issuer's or Owner Trustee's duties under the Related Agreements. Administrator shall prepare for execution by Issuer or Owner Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, orders, certificates and opinions as it shall be the duty of Issuer or Owner Trustee to prepare, file or deliver pursuant to any Related Agreement. In furtherance of the foregoing, Administrator shall take all appropriate action that it is the duty of Issuer or Owner Trustee to take pursuant to the Indenture including such of the foregoing as are required with respect to the following matters under the Indenture (references are to sections of the Indenture):
(i) the preparation of or obtaining of the documents and instruments required for execution, authentication and delivery of the Notes (whether upon initial issuance, transfer or exchange, or otherwise), if any, and delivery of the same to Indenture Trustee (if applicable) (SECTIONS 2.3, 2.5, 2.6, 2.11(c) or 2.14);
(ii) the duty to cause the Note Register to be kept, to appoint a successor Transfer Agent and Registrar, if necessary, and to give Indenture Trustee notice of any appointment of a new Transfer Agent and Registrar and the location, or change in location, of the Note Register (SECTION 2.5);
(iii) the furnishing of Indenture Trustee, Servicer, any Noteholder or the Paying Agent with the names and addresses of Noteholders after receipt of a written request therefor from Indenture Trustee, Servicer, any Noteholder or the Paying Agent, respectively, or as otherwise specified in the Indenture (SECTIONS 2.9(a) and 7.1);
(iv) the preparation, obtaining or filing of the instruments, opinions and certificates and other documents required for the release of collateral (SECTION 8.7);
(v) the duty to cause Issuer to maintain an office or agency within New York (and as otherwise set forth in an Indenture Supplement) and to give Indenture Trustee and the Noteholders notice of the location, or change in location, of such office or agency (SECTION 3.2);
(vi) the duty to direct Indenture Trustee to deposit with any Paying Agent the sums specified in the Indenture and the preparation of an Issuer Order directing the investment of such funds in Permitted Investments (SECTION 3.3);
(vii) the duty to cause newly appointed Paying Agents, if any, to deliver to Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (SECTION 3.3);
(viii) the direction to Paying Agents to pay to Indenture Trustee all sums held in trust by such Paying Agents (SECTION 3.3);
(ix) the duty to cause Issuer to keep in full force its existence, rights and franchises as a Delaware business trust and the obtaining and preservation of Issuer's 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 related instrument and agreement (SECTION 3.4);
(x) the preparation of all supplements, amendments, financing statements, continuation statements, if any, instruments of further assurance and other instruments necessary to protect, maintain and enforce the Collateral (SECTION 3.5);
(xi) the obtaining of the Opinion of Counsel on each Closing Date and the annual delivery of Opinions of Counsel as to the Collateral, and the annual delivery of the Officer's Certificate (SECTIONS 3.6 and 3.9);
(xii) the identification to Indenture Trustee in an Officer's Certificate of a Person with whom Issuer has contracted to assist it in performing its duties under the Indenture (SECTION 3.7(b));
(xiii) causing the delivery of notice by Indenture Trustee to the Rating Agencies of the occurrence of any Servicer Default of which Issuer has knowledge and the action, if any, being taken in connection with such default (SECTION 3.7(d));
(xiv) the delivery to Indenture Trustee, within 120 days after the end of each fiscal year of Issuer of an Officer's Certificate with respect to various matters relating to compliance with the Indenture (SECTION 3.9);
(xv) the preparation and obtaining of documents, certificates, opinions and instruments required in connection with the consolidation or merger by Issuer with or into any other Person or the sale of Issuer's assets substantially as an entirety to any Person (SECTION 3.10);
(xvi) the delivery of notice to Indenture Trustee and the Rating Agencies of (1) each Event of Default, (2) each default by Servicer or Transferor under the Transfer and Servicing Agreement (SECTION 3.18) and (3) each default by the RPA Seller under the Receivables Purchase Agreement;
(xvii) the monitoring of 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 relating thereto (SECTION 4.1);
(xviii) the compliance with any directive of Indenture Trustee with respect to the sale of the Collateral if an Event of Default shall have occurred and be continuing and the Notes have been accelerated (SECTION 5.5);
(xix) the preparation of an Officer's Certificate to be delivered to Indenture Trustee and the delivery of such Officer's Certificate to the Noteholders (SECTION 6.3(b));
(xx) the removal of Indenture Trustee, if necessary and in compliance with the Indenture, and the appointment of a successor (SECTION 6.8);
(xxi) the preparation of various reports to be filed with Indenture Trustee and the Commission, as applicable (SECTION 7.3);
(xxii) notifying Indenture Trustee if and when the Notes are listed on any stock exchange (SECTION 7.4);
(xxiii) the preparation of an Issuer Order and Officer's Certificate and the obtaining of an Opinion of Counsel and Independent Certificates, if necessary, for the release of the Collateral (SECTIONS 8.7 and 8.8);
(xxiv) the preparation of Issuer Orders, agreements, certificates, instruments, consents and other documents and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures (SECTIONS 3.7(f), 10.1, 10.2 and 10.3);
(xxv) the execution of new Notes conforming to any supplemental indenture (SECTION 10.6);
(xxvi) the preparation of all Officers' Certificates, Opinions of Counsel and, if necessary, Independent Certificates with respect to any requests by Issuer to Indenture Trustee to take any action under the Indenture (SECTION 12.1(a));
(xxvii) the preparation and delivery of Officers' Certificates and the obtaining of Independent Certificates, if necessary, in connection with the deposit of any Collateral or other property or securities with Indenture Trustee that is to be made the basis for the release of property from the lien of the Indenture (SECTION 12.1(b));
(xxviii) the preparation and delivery to Noteholders and Indenture Trustee of any agreements with respect to alternate payment and notice provisions (SECTION 12.6); and
(xxix) compliance with the provisions of the Transfer and Servicing Agreement, Indenture Supplement and Trust Agreement applicable to Issuer.
Removal of Administrator So long as any Notes are Outstanding, the Issuer shall not remove the Administrator without cause unless the Rating Agency Condition shall have been satisfied in connection with such removal.
Liability of Administrator Notwithstanding any provision of this Agreement, the Administrator shall not have any obligations under this Agreement other than those specifically set forth herein, and no implied obligations of the Administrator shall be read into this Agreement. Neither the Administrator nor any of its directors, officers, agents or employees shall be liable for any action taken or omitted to be taken in good faith by it or them under or in connection with this Agreement, except for its or their own negligence or willful misconduct and in no event shall the Administrator be liable under or in connection with this Agreement for indirect, special or consequential losses or damages of any kind, including lost profits, even if advised of the possibility thereof and regardless of the form of action by which such losses or damages may be claimed. Without limiting the foregoing, the Administrator may (a) consult with legal counsel (including counsel for the Issuer), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts and (b) shall incur no liability under or in respect of this Agreement by acting upon any notice (including notice by telephone), consent, certificate or other instrument or writing (which may be by facsimile) believed by it to be genuine and signed or sent by the proper party or parties.
Selection of Administrator The Parties have jointly selected CPT Group, Inc. to serve as the Administrator and verified that, as a condition of appointment, CPT Group, Inc. agrees to be bound by this Agreement and to perform, as a fiduciary, all duties specified in this Agreement in exchange for payment of Administration Expenses. The Parties and their Counsel represent that they have no interest or relationship, financial or otherwise, with the Administrator other than a professional relationship arising out of prior experiences administering settlements.
RESPONSIBILITY OF ADMINISTRATOR A. The Company shall not be liable for any error of judgment or mistake of law or for any loss suffered by the Investment Company in connection with the matters to which this Agreement relates, except a loss resulting from willful misfeasance, bad faith or gross negligence on its part in the performance of its duties or from reckless disregard by it of its obligations and duties under this Agreement. The Company shall be entitled to rely on and may act upon advice of counsel (who may be counsel for the Investment Company) on all matters, and shall be without liability for any action reasonably taken or omitted pursuant to such advice. Any person, even though also an officer, director, trustee, partner, employee or agent of the Company, who may be or become an officer, director, trustee, partner, employee or agent of the Investment Company, shall be deemed, when rendering services to the Investment Company or acting on any business of the Investment Company (other than services or business in connection with the duties of the Company hereunder) to be rendering such services to or acting solely for the Investment Company and not as an officer, director, trustee, partner, employee or agent or one under the control or direction of the Company even though paid by the Company.
B. The Company shall be kept indemnified by the Investment Company and be without liability for any action taken or thing done by it in performing the Administrative Services in accordance with the above standards. In order that the indemnification provisions contained in this Article 10 shall apply, however, it is understood that if in any case the Investment Company may be asked to indemnify or hold the Company harmless, the Investment Company shall be fully and promptly advised of all pertinent facts concerning the situation in question, and it is further understood that the Company will use all reasonable care to identify and notify the Investment Company promptly concerning any situation which presents or appears likely to present the probability of such a claim for indemnification against the Investment Company. The Investment Company shall have the option to defend the Company against any claim which may be the subject of this indemnification. In the event that the Investment Company so elects, it will so notify the Company and thereupon the Investment Company shall take over complete defense of the claim, and the Company shall in such situation initiate no further legal or other expenses for which it shall seek indemnification under this Article. The Company shall in no case confess any claim or make any compromise in any case in which the Investment Company will be asked to indemnify the Company except with the Investment Company's written consent. SECTION THREE: TRANSFER AGENCY SERVICES.
Appointment of Administrator Each Trust hereby appoints EIS as Administrator of the Trust and each of its series listed on SCHEDULE A attached hereto on the terms and conditions set forth in this Agreement; and EIS hereby accepts such appointment and agrees to perform the services and duties set forth in Section 2 of this Agreement in consideration of the compensation provided for in Section 4 hereof.
Other Activities of Administrator Nothing herein shall prevent the Administrator or its Affiliates from engaging in other businesses or, in its or their sole discretion, from acting as an administrator for any other person or entity, or in a similar capacity therefor, even though such person or entity may engage in business activities similar to those of the Issuer, the Owner Trustee or the Indenture Trustee.
Engagement of Administrator The Issuer and the Owner Trustee engage the Administrator to perform the obligations of the Issuer and the Owner Trustee under the Transaction Documents as described in this Agreement, and the Administrator accepts the engagement.
Employment of Administrator The Company hereby employs the Administrator to act as administrator of the Company, and to furnish, or arrange for others to furnish, the administrative services, personnel and facilities described below, subject to review by and the overall control of the Board of Directors of the Company (the “Board”), for the period and on the terms and conditions set forth in this Agreement. The Administrator hereby accepts such employment and agrees during such period to render, or arrange for the rendering of, such services and to assume the obligations herein set forth subject to the reimbursement of costs and expenses provided for below. The Administrator and such others shall for all purposes herein be deemed to be independent contractors and shall, unless otherwise expressly provided or authorized herein, have no authority to act for or represent the Company in any way or otherwise be deemed agents of the Company.
Certain Matters Affecting the Securities Administrator Except as otherwise provided in Section 10.01:
(i) the Securities Administrator may request and conclusively rely upon and shall be fully protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties and the Securities Administrator shall have no responsibility to ascertain or confirm the genuineness of any signature of any such party or parties;
(ii) the Securities Administrator may consult with counsel, financial advisers or accountants and the advice of any such counsel, financial advisers or accountants and any advice or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(iii) the Securities Administrator shall not be liable for any action or inaction taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement;
(iv) the Securities Administrator shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing so to do by Holders of Certificates evidencing not less than 25% of the Voting Rights allocated to each Class of Certificates; provided, however, that if the payment within a reasonable time to the Securities Administrator of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Securities Administrator, not reasonably assured to the Securities Administrator by the security afforded to it by the terms of this Agreement, the Securities Administrator may require reasonable indemnity against such expense or liability as a condition to so proceeding. Nothing in this clause (iv) shall derogate from the obligation of the Master Servicer to observe any applicable law prohibiting disclosure of information regarding the Mortgagors, provided that the Master Servicer shall have no liability for disclosure required by this Agreement;
(v) the Securities Administrator may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian and the Securities Administrator shall not be responsible for any misconduct or negligence on the part of any such agent, attorney or custodian appointed by the Securities Administrator with due care;
(vi) the Securities Administrator shall not be required to risk or expend its own funds or otherwise incur any financial liability in the performance of any of its duties or in the exercise of any of its rights or powers hereunder if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not assured to it, and none of the provisions contained in this Agreement shall in any event require the Securities Administrator to perform, or be responsible for the manner of performance of, any of the obligations of any Servicer under this Agreement;
(vii) the Securities Administrator shall be under no obligation to exercise any of the trusts, rights or powers vested in it by this Agreement or to institute, conduct or defend any litigation hereunder or in relation hereto at the request, order or direction of any of the Certificateholders, pursuant to the provisions of this Agreement, unless such Certificateholders shall have offered to the Securities Administrator reasonable security or indemnity satisfactory to the Securities Administrator against the costs, expenses and liabilities which may be incurred therein or thereby; and
(viii) the Securities Administrator shall have no obligation to appear in, prosecute or defend any legal action that is not incidental to its duties hereunder and which in its opinion may involve it in any expense or liability; provided, however, that the Securities Administrator may in its discretion undertake any such action that it may deem necessary or desirable in respect of this Agreement and the rights and duties of the parties hereto and the interests of the Trustee and the Certificateholders hereunder. In such event, the legal expenses and costs of such action and any liability resulting therefrom shall be expenses, costs and liabilities of the Trust Fund, and the Securities Administrator shall be entitled to be reimbursed therefor out of the Collection Account. The Securities Administrator shall have no duty (A) to see to any recording, filing, or depositing of this Agreement or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing thereof, (B) to see to the provision of any insurance or (C) to see to the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Fund other than from funds available in the Distribution Account.
