The Back. Up Servicer's appointment shall be irrevocable except that its appointment may be terminated by the Servicer provided that a replacement Back-Up Servicer is immediately appointed on the same terms as set out in this Clause 19.
The Back. Up Servicer shall act as the agent and attorney of the Servicer in carrying out the Services and performing the covenants of the Servicer under this Agreement on behalf of the Servicer PROVIDED THAT:
(a) it shall adhere to the Seller's Policy and any express instructions of the Servicer from time to time;
(b) to the extent that the Back-Up Servicer cannot act within the Seller's Policy, it shall request the Servicer to give it instructions as to the appropriate course of action;
(c) the terms of the appointment of the Back-Up Servicer shall require the Back-Up Servicer to undertake (unless the Security Trustee otherwise agrees) to the Issuer and the Security Trustee that, other than to the extent that they conflict with any instruction from the Servicer to the Back-Up Servicer, it shall use its reasonable endeavours to carry out its duties and obligations as Back-Up Servicer in such a way as to ensure that the Servicer performs and observes the Services and shall acknowledge that as between the Seller and the Borrowers, the Seller is responsible for the Services;
(d) it shall have no power to:
(i) set interest rates in respect of the Loans in accordance with Clause 4 (Issuer Standard Variable Rates); or
(ii) determine the Seller's Policy, which shall remain the sole responsibility of the Servicer and or the Seller, as applicable, at all times prior to the termination of the Servicer's appointment; and
(e) the Servicer shall remain responsible and liable to the Borrowers for its duties and obligations in respect of the Loans and Related Security except (as between the Servicer and Back-Up Servicer) to the extent any liability arises as a result of a breach of its duties by the Back-Up Servicer or its negligence or wilful default.
The Back up Manager agrees to, and hereby does, defend, indemnify, and hold harmless the Owners, the initial Manager, each Entitled Party, and its and their respective officers, directors, employees and agents (each of the foregoing, an "Indemnified Party") from and against any and all Claims incurred by or asserted against such Indemnified Party to the extent resulting or arising from (a) an action or inaction by the Back-up Manager that is contrary to the terms of this Agreement or the Management Agreement, (b) a breach by the Back-up Manager of its representations and covenants set forth in this Agreement which has a material adverse effect, or (c) any information certified in any schedule or report delivered by the Back-up Manager being untrue in any material respect as of the date of such certification, except for Claims which arise out of the application of Indemnified Party's willful misconduct, gross negligence, or failure to comply with or perform its obligations under any Related Document, provided that the foregoing indemnity shall in no way be deemed to impose on the Back-up Manager any obligation to reimburse an Indemnified Party for losses arising solely from the financial inability of the related User on a User Lease to make rental and other lease-related payments.
The Back. Up Servicer shall not be obligated to maintain the Lock- Box Account or to follow the WSC Servicing Guide, but may instead follow the Servicing Standards set forth in clauses (ii) through (iv) of such definition.
The Back up Manager shall not resign from the obligations and duties hereby imposed on it as Back-up Manager except (a) with the prior written consent of the Requisite Global Majority, or (b) upon determination that the performance of its duties hereunder is no longer permissible under Applicable Law. Any such determination permitting the resignation of the Back-up Manager shall be evidenced by an opinion of counsel to the Back-up Manager to such effect delivered to each Series Enhancer and to the Rating Agencies. Upon the Back-up Manager’s resignation or termination pursuant to Sections 4.1 or 4.3 hereof, the Back-up Manager shall comply with the provisions of this Agreement until the acceptance of appointment and commencement of the Back-up Manager’s duties by a successor Back-up Manager. Any such successor Back-up Manager shall be appointed by the Requisite Global Majority.
The Back up Manager represents and warrants to the Manager, the Indenture Trustee, the Deal Agent, each Series Enhancer, the Manager, and each Owner that:
(a) The Back-up Manager is a corporation duly organized, validly existing and in good standing under the laws of Delaware;
(b) The Back-up Manager has the requisite power and authority to enter into and perform its obligations under this Agreement, and all requisite corporate authorizations have been given for it to enter into this Agreement and to perform all the matters envisaged hereby. Upon due execution and delivery hereof this Agreement will constitute the valid, legally binding, and enforceable obligation of the Back-up Manager, subject to bankruptcy, insolvency, moratorium, reorganization, and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; and
(c) The Back-up Manager has not breached its certificate of incorporation or by-laws or any other agreement to which it is a party or by which it is bound in the course of conduct of its business and corporate affairs or any applicable laws and regulations in such manner as would in any such case have a materially adverse effect on its ability to perform its obligations under this Agreement.
The Back. Up Servicer shall upon reasonable notice and during normal business hours from the Bond Insurer, permit the Bond Insurer to review any books, records or reports of the Back-Up Servicer relating to its obligations under this Agreement.
The Back. Up Cash Manager shall provide to the Loan Note Issuer (and, following the delivery of a Loan Note Enforcement Notice, the Security Trustee) access to the documentation regarding the Secured Property which is under its control in such cases where the Loan Note Issuer (or any person acting on its behalf) or the Security Trustee (or any person acting on its behalf), as the case may be, is required:
2.3.1 in connection with its duties in respect of the rights of the Security Trustee and any other Secured Creditor;
2.3.2 by any Relevant Document or Series Document; or
2.3.3 by any applicable statutes or regulations, to review such documentation.
The Back. Up Cash Manager may engage and pay for the advice or service of a reputable firm of lawyers or any other professional advisers whose advice or services may to it seem reasonably necessary or expedient in connection with its assumption of the Back-Up Cash Manager Obligations pursuant to this Agreement, provided that the Back-Up Cash Manager shall not delegate its role hereunder. The Back-Up Cash Manager may rely and act upon any advice so obtained and shall not be responsible or liable for any loss occasioned by reasonably acting on such advice. For the avoidance of doubt, all reasonable costs and expenses of such engagement shall be paid by the Loan Note Issuer.
The Back. Up Servicer may employ agents to perform any or all of its obligations hereunder and the Back-Up Servicer shall not be responsible for the misconduct or negligence of agents appointed by it with due care; provided, however, the Back-Up Servicer shall (i) remain liable for the performance of all of its obligations hereunder and (ii) shall be liable for any acts or omissions by such agent to the extent the Back-Up Servicer would be liable therefor under the terms hereof if such act or omission had been performed by the Back-Up Servicer.
