Retention of Servicer Effective as of the Closing Date, to the fullest extent permitted under applicable Law and under the Serviced Corporate Trust Contract related to each Serviced Appointment, (a) Xxxxx Bank hereby engages the Bank Assets Purchaser and (b) Xxxxx Trust Company hereby engages Delaware Trust Assets Purchaser (or the Bank Assets Purchaser, if required by Section 3.3), in each case, as Servicer to perform and discharge the Serviced Duties in respect of each Serviced Appointment as agent of such Seller. To the fullest extent permitted under applicable Law and under such Serviced Corporate Trust Contract, this Agreement shall satisfy any requirement under any such Serviced Corporate Trust Contract for a written instrument of agency appointment with respect to any of the Serviced Appointments.
Replacement of Servicer (a) If a Servicer Termination Event shall have occurred and be continuing, the Indenture Trustee may, and at the direction of the Requisite Noteholders (or, if no Notes (other than Class XS Notes) are Outstanding, the Majority Certificateholders) shall, by notice given to the Servicer, the Owner Trustee, the Issuing Entity, the Administrator, the Certificateholders and the Noteholders, terminate the rights and obligations of the Servicer under this Agreement with respect to the Receivables. In the event the Servicer is removed or resigns as Servicer with respect to servicing the Receivables, all authority and power of the Servicer under this Agreement shall, without further action, pass to and be vested in (i) the Backup Servicer; or (ii) if the Backup Servicer has been terminated, such Successor Servicer as may be approved under clause (b) below.
(b) Upon the Servicer’s receipt of notice of termination pursuant to clause (a) above or the Servicer’s resignation in accordance with the terms of this Agreement, the predecessor Servicer shall continue to perform its functions as Servicer under this Agreement, only until the Backup Servicer (or another Successor Servicer) has assumed the obligations of the predecessor Servicer in the time period set forth in the Backup Servicing Agreement. The Indenture Trustee shall give the Backup Servicer written notice of the Servicer’s termination or resignation. In the event of termination or resignation of the Servicer hereunder, the Backup Servicer shall assume the obligations of Servicer hereunder (except to the extent otherwise set forth in the Backup Servicing Agreement) by the Appointment Effective Date set forth in the Backup Servicing Agreement. In the event the Backup Servicer does not assume the role of Successor Servicer, the Requisite Noteholders (or if the Notes (other than the Class XS Notes) have been paid in full, the Issuing Entity acting at the direction of the Majority Certificateholders) shall appoint another Person as Successor Servicer, who shall assume the obligations of Servicer hereunder (except to the extent otherwise set forth herein or within any agreement with such Successor Servicer) on the assumption date specified in such written notice (the “Assumption Date”) pursuant to this Agreement. The amount of the Servicing Fee payable to (1) the Backup Servicer as Successor Servicer shall be the Successor Servicing Fee Rate (Backup Servicer) and (2) any Successor Servicer (excluding the Backup Servicer) shall be any rate pursuant to this Agreement in an amount acceptable to the Requisite Noteholders and shall not exceed the Servicing Strip Amount unless otherwise agreed to by the Requisite Noteholders; provided that, in no event shall the amount of the Servicing Fee payable to the predecessor Servicer be less than the pro rata share of the Servicing Fee due to such predecessor Servicer based on the number of days such predecessor Servicer served as Servicer in the related Collection Period. The Backup Servicer shall act as Successor Servicer unless it is legally unable to do so, in which event the predecessor Servicer shall continue to act as Servicer until a successor acceptable to the Requisite Noteholders has been appointed and accepted such appointment. In the event that a successor Servicer has not been appointed and the Backup Servicer is legally unable to act at the time when the predecessor Servicer has ceased to act as Servicer in accordance with this Section 5.1, then the Indenture Trustee, the Issuing Entity or the Requisite Noteholders shall appoint, or petition a court of competent jurisdiction to appoint, a successor to the Servicer under this Agreement at the expense of the Issuing Entity and paid in accordance with Section 2.7 of the Indenture. If requested by the Issuing Entity, the Indenture Trustee, the Backup Servicer or the Successor Servicer, as applicable, to the extent not inconsistent with the Master Agency Agreement, the Servicer will terminate, or cause to be terminated, any arrangements relating to (A) the Depository Accounts; or (B) the Post-Office Boxes, and give notices thereunder or take other actions with respect thereto, and direct the Obligors to make all payments under the Receivables directly to or at the direction of the Successor Servicer at the predecessor Servicer’s expense (in which event the Successor Servicer shall process such payments directly, through a lock-box account with a lock-box bank or through a third-party payment processing system, in each case, at the direction of the Indenture Trustee acting at the direction of the Requisite Noteholders).
(c) If replaced, the Servicer agrees that it will use commercially reasonable efforts to effect the orderly and efficient transfer of the servicing of the Receivables to a Successor Servicer. All reasonable costs and expenses incurred in connection with transferring the Receivable Files and Servicer Files to the Successor Servicer and all other reasonable costs and expenses (including attorneys’ fees and disbursements) incurred in connection with the transfer to the Successor Servicer related to the performance by the Servicer hereunder will be paid by the predecessor Servicer (or, if not so paid by the predecessor Servicer, in accordance with the priorities set forth in Sections 2.7(c) or 2.7(e) of the Indenture, as applicable) upon presentation of reasonable documentation of such costs and expenses. The Successor Servicer, if the Backup Servicer, shall be entitled to payment for reasonable transaction expenses incurred in connection with acting as Successor Servicer in accordance with the priorities and limits set forth in Section 2.7(a) or 2.7(e) of the Indenture, as applicable. The Servicer shall grant the Issuing Entity, the Indenture Trustee and the Backup Servicer reasonable access to the Servicer’s premises at the predecessor Servicer’s expense as contemplated by, and subject the restrictions set forth in, Section 7.15.
(d) Upon the Appointment Effective Date or the Assumption Date, as applicable, the Backup Servicer or the Successor Servicer, as applicable, shall be the successor in all respects to the Servicer in its capacity as Servicer under this Agreement with respect to the Receivables, and shall be subject to all the responsibilities, duties and liabilities relating thereto, except with respect to the obligations of the predecessor Servicer that survive its termination as Servicer, including indemnification obligations as set forth in Section 4.2(c). In such event, the Indenture Trustee and the Owner Trustee are hereby authorized and empowered (but not obligated) to execute and deliver, on behalf of the predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such termination and replacement of the Servicer, whether to complete the transfer and endorsement of the Receivables and related documents, or otherwise. No Servicer shall resign or be relieved of its duties under this Agreement, as Servicer of the Receivables, until a newly appointed Servicer for the Receivables shall have assumed the responsibilities and obligations of the resigning or terminated Servicer under this Agreement. Without limiting any of the foregoing, under no circumstance shall Vervent Inc. (as Successor Servicer or otherwise) or any other Successor Servicer be deemed to have incurred any obligation to make any advance or provide indemnification for Actual Loss Amounts with respect to any Receivables or any liability or obligation with respect to any Servicer indemnification obligations of any prior servicer including the Initial Servicer.
(e) The Requisite Noteholders (or, if no Notes (other than Class XS Notes) are Outstanding, the Majority Certificateholders) may waive any Servicing Termination Event. Upon any such waiver, such Servicing Termination Event shall cease to exist and be deemed to have been cured and not to have occurred and any Servicing Termination Event arising therefrom shall be deemed not to have occurred for every purpose of this Agreement, but no such waiver shall extend to any prior, subsequent or other Servicing Termination Event or impair any right consequent thereto.
Limitation of Liability of the Administrator The duties of the Administrator shall be confined to those expressly set forth herein, and no implied duties are assumed by or may be asserted against the Administrator hereunder. The Administrator shall not be liable for any error of judgment or mistake of law or for any loss arising out of any act or omission in carrying out its duties hereunder, except a loss resulting from willful misfeasance, bad faith or negligence in the performance of its duties, or by reason of reckless disregard of its obligations and duties hereunder, except as may otherwise be provided under provisions of applicable law which cannot be waived or modified hereby. Any person, even though also an employee, or agent of the Administrator, who may be or become an officer, Trustee, employee or agent of the Trust or the Funds shall be deemed, when rendering services to the Trust or the Funds, or acting on any business of that party, to be rendering such services to or acting solely for that party and not as a partner, employee, or agent or one under the control or direction of the Administrator even though paid by it. So long as the Administrator acts in good faith and with due diligence and without negligence, the Trust assumes full responsibility and shall indemnify the Administrator, its employees, agents, directors, officers and nominees and hold them harmless from and against any and all actions, suits and claims, whether groundless or otherwise, and from and against any and all losses, damages, costs, charges, reasonable counsel fees and disbursements, payments, expenses and liabilities (including reasonable investigation expenses) arising directly or indirectly out of the Administrator’s actions taken or non-actions with respect to the performance of services hereunder. The indemnity and defense provisions set forth herein shall indefinitely survive the termination of this Agreement. The rights hereunder shall include the right to reasonable advances of defense expenses in the event of any pending or threatened litigation with respect to which indemnification hereunder may ultimately be merited. In order that the indemnification provision contained herein shall apply, however, it is understood that if in any case the Trust may be asked to indemnify or hold the Administrator harmless, the Trust shall be fully and promptly advised of all pertinent facts concerning the situation in question, and it is further understood that the Administrator will use all reasonable care to identify and notify the Trust promptly concerning any situation which presents or appears likely to present the probability of such a claim for indemnification against the Trust, but failure to do so in good faith shall not affect the rights hereunder. The Trust shall be entitled to participate at its own expense or, if it so elects, to assume the defense of any suit brought to enforce any claims subject to this indemnity provision. If the Trust elects to assume the defense of any such claim, the defense shall be conducted by counsel chosen by the Trust and satisfactory to the Administrator, whose approval shall not be unreasonably withheld. In the event that the Trust elects to assume the defense of any suit and retain counsel, the Administrator shall bear the fees and expenses of any additional counsel retained by it. If the Trust does not elect to assume the defense of a suit, it will reimburse the Administrator for the reasonable fees and expenses of any counsel retained by the Administrator. The Administrator may apply to the Trust at any time for instructions and may consult counsel for the Trust or its own counsel and with accountants and other experts with respect to any matter arising in connection with the Administrator’s duties, and the Administrator shall not be liable or accountable for any action taken or omitted by it in good faith in accordance with such instruction or with the opinion of such counsel, accountants or other experts. The Administrator shall be protected in acting upon any document which it reasonably believes to be genuine and to have been signed or presented by the proper person or persons. The Administrator will not be held to have notice of any change of authority of any officers, employees or agents of the Trust until receipt of written notice thereof from the Trust.
Retention of Sub-Adviser Subject to the Trust's obtaining the initial and periodic approvals required under Section 15 of the Act, the Adviser may retain one or more sub-advisers, at the Adviser's own cost and expense, for the purpose of managing the investments of the assets of one or more Funds of the Trust. Retention of one or more sub-advisers shall in no way reduce the responsibilities or obligations of the Adviser under this Agreement and the Adviser shall, subject to Section 11 of this Agreement, be responsible to the Trust for all acts or omissions of any sub-adviser in connection with the performance of the Adviser's duties hereunder.
Repurchase of Receivables Upon Breach Upon the occurrence of a Repurchase Event, Seller shall, unless the breach which is the subject of such Repurchase Event shall have been cured in all material respects, repurchase the Receivable relating thereto from the Issuer if and only if the interests of the Noteholders therein are materially and adversely affected by any such breach and, simultaneously with the repurchase of the Receivable, Seller shall deposit the Purchase Amount in full, without deduction or offset, to the Collection Account, pursuant to Section 3.2 of the Sale and Servicing Agreement. It is understood and agreed that, except as set forth in Section 6.1 hereof, the obligation of Seller to repurchase any Receivable, as to which a breach occurred and is continuing, shall, if such obligation is fulfilled, constitute the sole remedy against Seller for such breach available to Purchaser, the Issuer, the Noteholders, the Certificateholder, the Trust Collateral Agent on behalf of the Noteholders or the Owner Trustee on behalf of the Certificateholder. The provisions of this Section 5.1 are intended to grant the Issuer and the Trust Collateral Agent a direct right against Seller to demand performance hereunder, and in connection therewith, Seller waives any requirement of prior demand against Purchaser with respect to such repurchase obligation. Furthermore, any Person who may request that any Receivable be repurchased by the Seller or the Purchaser in accordance with Section 3.2 of the Sale and Servicing Agreement may request that the Seller repurchase the related Receivable due to the occurrence of a Repurchase Event, in the same manner that it would request such repurchase pursuant to Section 3.2 of the Sale and Servicing Agreement. Any repurchase hereunder shall take place in the manner specified in Section 3.2 of the Sale and Servicing Agreement. Notwithstanding any other provision of this Agreement or the Sale and Servicing Agreement to the contrary, the obligation of Seller under this Section shall not terminate upon a termination of Seller as Servicer under the Sale and Servicing Agreement and shall be performed in accordance with the terms hereof notwithstanding the failure of the Servicer or Purchaser to perform any of their respective obligations with respect to such Receivable under the Sale and Servicing Agreement. In addition to the foregoing and notwithstanding whether the related Receivable shall have been purchased by Seller, Seller shall indemnify the Issuer, the Trust Collateral Agent, the Trustee, the Owner Trustee, the Noteholders and the Certificateholder from and against all costs, expenses, losses, damages, claims and liabilities, including reasonable fees and expenses of counsel, which may be asserted against or incurred by any of them as a result of third party claims arising out of the events or facts giving rise to such Repurchase Events.
Valuation of Sub-Advisor Assets The Sub-Advisor agrees to monitor the Sub-Advisor Assets and to notify the Advisor or its designee on any day that the Sub-Advisor determines that a significant event has occurred with respect to one or more securities held in the Sub-Advisor Assets. As requested by the Advisor or the Trust’s Valuation Committee, the Sub-Advisor hereby agrees to provide additional assistance to the Valuation Committee of the Trust, the Advisor and the Trust’s pricing agents in valuing Sub-Advisor Assets held in the portfolio. Such assistance may include fair value pricing of portfolio securities, as requested by the Advisor. The Sub-Advisor agrees that it will act, at all times, in accordance with the Trust’s Valuation Procedures, and will provide such certifications or sub-certifications relating to its compliance with the Trust’s Valuation Procedures as reasonably may be requested, from time to time, by the Advisor or the Trust. The Sub-Advisor also will provide such information or perform such additional acts as are customarily performed by a Sub-Advisor and may be required for a Fund or the Advisor to comply with their respective obligations under applicable federal securities laws, including, without limitation, the 1940 Act, the Advisers Act, the 1934 Act, the Securities Act of 1933, as amended (the “Securities Act”), and any rule or regulation thereunder.
Waiver of Past Events of Servicing Termination The Holders of Notes evidencing not less than 51% of the Note Balance of the Controlling Class may, on behalf of all Noteholders, waive any Event of Servicing Termination and its consequences, except an event resulting from the failure to make any required deposits to or payments from the Collection Account, the Note Payment Account, the Certificate Payment Account or the Reserve Account in accordance with this Agreement. Upon any such waiver of an Event of Servicing Termination, such event shall cease to exist, and shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other event or impair any right arising therefrom, except to the extent expressly so waived.
Retention of the Administrator The Trust hereby retains the Administrator to act as the administrator of the Portfolios and to furnish the Portfolios with the management and administrative services as set forth in Article 2 below. The Administrator hereby accepts such employment to perform the duties set forth below. The Administrator shall, for all purposes herein, be deemed to be an independent contractor and, unless otherwise expressly provided or authorized, shall have no authority to act for or represent the Trust in any way and shall not be deemed an agent of the Trust.
Purchase of Receivables Upon Breach Upon discovery by any party hereto of a breach of any of the covenants set forth in Section 4.02, 4.03, 4.05 or 4.06 which materially and adversely affects the interests of the Issuer or the Noteholders, the party discovering such breach shall give prompt written notice thereof to the other parties hereto; provided, that delivery of a Servicer’s Certificate shall be deemed to constitute prompt written notice thereof to the other party; provided, further, that the failure to give such notice shall not affect any obligation of the Servicer under this Section 4.07. Following a breach described in the preceding sentence, the Servicer shall either (a) correct or cure such breach or (b) purchase any Receivable materially and adversely affected by such breach from the Issuer, in either case on or before the Payment Date following the end of the Collection Period which includes the 60th day (or, if the Servicer elects, an earlier Payment Date) after the date that the Servicer became aware or was notified of such breach. Any such breach or failure will be deemed not to materially and adversely affect the Noteholders or the Issuer if such breach or failure does not affect the ability of the Issuer or the Noteholders to receive and retain timely payment in full on such Receivable. Any such purchase by the Servicer shall be at a price equal to the Purchased Amount. In consideration for such repurchase, the Servicer shall make (or shall cause to be made) a payment to the Issuer equal to the Purchased Amount by depositing such amount into the Collection Account in accordance with Section 5.04 on the Business Day preceding such Payment Date (or, if the Servicer elects, an earlier Payment Date). Upon payment of such Purchased Amount by the Servicer, the Issuer and the Indenture Trustee shall release and shall execute and deliver such instruments of release, transfer or assignment, in each case without recourse or representation, as shall be reasonably necessary to vest in the Servicer or its designee any Receivable repurchased pursuant hereto. It is understood and agreed that the obligation of the Servicer to purchase any Receivable as described above shall constitute the sole remedy respecting such breach available to the Issuer, the Owner Trustee, the Certificateholders, the Noteholders and the Indenture Trustee.
Admission of Substitute Members If any Member Transfers such Member’s Interest to a transferee in accordance with Sections 6.01 or 6.02, then such transferee shall only be entitled to be admitted into the Company as a substitute Member if (i) the books and records of the Company are amended to reflect such admission; (ii) the Management Committee approves the admission of such transferee (but only in the event of a transfer in accordance with Section 6.01) and approves the form and content of the instrument of transfer; (iii) the transferor and transferee named therein execute and acknowledge such other instruments as the Management Committee may deem reasonably necessary to effectuate such admission; (iv) the transferee in writing accepts and adopts all of the terms and conditions of this Agreement, as the same may have been amended; and (v) the transferor pays, as the Management Committee may reasonably determine, all reasonable expenses incurred in connection with such admission, including, without limitation, legal fees and costs. In the event of a Transfer in part of a Member’s Interest under Section 6.02 and the admission of the transferee into the Company as a member, such transferee member shall be required to act together as one Person with the Person(s) holding the remainder of the entire Interest as of the date of this Agreement from whence such transferee member’s interest originally derived. To the fullest extent permitted by law, any transferee of an Interest who does not become a substituted Member shall have no right to require any information or account of the Company’s transactions, to inspect the Company books, or to vote on any of the matters as to which a Member would be entitled to vote under this Agreement. Any such transferee shall only be entitled to share, as an assignee, in such Net Profits and Net Losses, to receive such distributions, and to receive such allocations of income, gain, loss, deduction or credit or similar items to which the transferor was entitled, to the extent assigned. A Member that Transfers its Interest shall not cease to be a member of the Company until the admission of the transferee as a substituted member of the Company and, except as provided in the preceding sentence, shall continue to be entitled to exercise, and shall continue to be subject to, all of the rights, duties and obligations of such Member under this Agreement.
