Appointment of Sellers’ Representative (a) By delivery of a duly executed Letter of Transmittal, each of the Sellers irrevocably appoints Fremont Investors II, L.L.C., a Delaware limited liability company, as its true and lawful attorney-in-fact, to act as its representative ("Sellers' Representative") under this Agreement and, as such, to act, as such Seller's agent (with full power of substitution), to take such action on such Seller's behalf with respect to all matters relating to this Agreement and the Transactions, including without limitation, to negotiate, defend, settle and compromise indemnification claims, to sign receipts, consents and other documents to effect any of the Transactions and to take all actions necessary or appropriate in connection with the foregoing. All decisions and actions by the Sellers' Representative, including any agreement between the Sellers' Representative and the Purchaser relating to indemnification obligations of the Sellers under Article VI, including the defense or settlement of any claims and the making of payments with respect hereto, shall be binding upon all of the Sellers, and no Seller shall have the right to object, dissent, protest or otherwise contest the same. The Sellers' Representative shall incur no liability to the Sellers with respect to any action taken or suffered by the Sellers in reliance upon any notice, direction, instruction, consent, statement or other documents believed by the Sellers' Representative to be genuinely and duly authorized, nor for any other action or inaction with respect to the indemnification obligations of the Sellers under Article VI, including the defense or settlement of any claims and the making of payments with respect thereto. The Sellers' Representative may, in all questions arising under this Agreement rely on the advice of counsel, and for anything done, omitted or suffered in good faith by the Sellers' Representative shall not be liable to the Sellers. Sellers' Representative shall not have any duties or responsibilities except those expressly set forth in this Agreement, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or shall otherwise exist against the Sellers' Representative.
Acknowledgment of Seller Seller hereby acknowledges the provisions of this Agreement, including the obligations under Sections 2.1(a), 2.2, 2.3(b) and 8.11 of this Agreement and further acknowledges the Depositor's assignment of its rights and remedies for the breach of the representations and warranties made by the Seller under the MLPA. * * * * * *
Status of Seller The Seller is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended. The Seller is not subject to regulation as a “holding company”, an “affiliate” of a “holding company”, or a “subsidiary company” of a “holding company”, within the meaning of the Public Utility Holding Company Act of 1935, as amended.
Covenant of Seller The Seller shall not amend Article Third of its Certificate of Incorporation without the prior written consent of each Rating Agency rating the Certificates.
Authority of Sellers Each Seller and Parent have all necessary corporate power and authority to enter into this Agreement and the Ancillary Agreements to which such Seller or Parent, as applicable, is a party, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by such Seller and Parent of this Agreement and any Ancillary Agreement to which such Seller or Parent, as applicable, is a party, the performance by such Seller and Parent, as applicable, of their obligations hereunder and thereunder and the consummation by such Seller and Parent of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate action on the part of such Seller and Parent, as applicable. This Agreement has been duly executed and delivered by each Seller and Parent, and (assuming due authorization, execution and delivery by Buyer) this Agreement constitutes a legal, valid and binding obligation of each Seller and Parent, enforceable against each Seller and Parent, as applicable, in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a Proceeding at Law or in equity). When each of the Ancillary Agreements to which each Seller or Parent, as applicable, is a party has been duly executed and delivered by such Seller or Parent, as applicable (assuming due authorization, execution and delivery by each other party thereto), such Ancillary Agreement constitutes a legal and binding obligation of such Seller and Parent, as applicable, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a Proceeding at law or in equity).
SELLER’S ENGAGEMENT OF SERVICER TO PERFORM SERVICING RESPONSIBILITIES Section 2.01. Contract for Servicing; Possession of Custodial Files, Maintenance of Retained Mortgage Files and Servicing Files. The Seller, by execution and delivery of this Agreement, does hereby contract with the Servicer as an independent contractor, subject to the terms of this Agreement, for the continued servicing of the Mortgage Loans. On or before the Closing Date, the Servicer shall have in its possession the Servicing Files with respect to the Mortgage Loans listed on the Mortgage Loan Schedule. The Servicer shall maintain a Servicing File with respect to each Mortgage Loan in order to service such Mortgage Loans pursuant to this Agreement and each Servicing File in its possession shall be held in trust by the Servicer for the benefit of the Trustee; provided, however, that the Servicer shall have no liability for any Servicing Files (or portions thereof) not delivered by the Seller. The Servicer’s possession of any portion of the Mortgage Loan documents shall be at the will of the Trustee for the sole purpose of facilitating servicing of the related Mortgage Loan pursuant to this Agreement, and such retention and possession by the Servicer shall be in a custodial capacity only. The ownership of each Mortgage Note, Mortgage and the contents of the Servicing File shall be vested in the Trustee and the ownership of all records and documents with respect to the related Mortgage Loan prepared by or which come into the possession of the Servicer shall immediately vest in the Trustee and shall be retained and maintained, in trust, by the Servicer at the will of the Trustee in such custodial capacity only. The portion of each Servicing File retained by the Servicer pursuant to this Agreement shall be appropriately marked to clearly reflect the ownership of the related Mortgage Loan by the Trustee. The Servicer shall release from its custody the contents of any Servicing File retained by it only in accordance with this Agreement. Pursuant to the Mortgage Loan Purchase Agreement, the Seller will have delivered the Custodial Files to the Custodian. In addition, each Retained Mortgage File not delivered to the Custodian pursuant to the Mortgage Loan Purchase Agreement are and shall be held in trust by the Servicer for the benefit of the Trustee as the owner thereof. The possession of each Retained Mortgage File held by the Servicer is in a custodial capacity only. The ownership of each Retained Mortgage File shall be vested in the Trustee. The Servicer shall release its custody of the contents of any Retained Mortgage File only in accordance with written instructions from the Trustee, unless such release is required pursuant to Section 5.02 or if a Document Transfer Event occurs. Upon the occurrence of a Document Transfer Event, the party first discovering such event shall promptly notify the Master Servicer, the Servicer, the Trustee and the Custodian, as applicable, and, with respect to each Mortgage Loan, deliver to the Custodian, within 60 days, the Retained Mortgage Files pursuant to the terms of the Custodial Agreement.
Indemnification of Sellers Parent, LuxCo and BHN, jointly and severally hereby agree to indemnify and hold harmless Sellers, each of its Affiliates, and each of its members, managers, partners, directors, officers, employees, attorneys and agents and permitted assignees (the “Sellers Indemnitees”) against and in respect of any Losses incurred or sustained by any Sellers Indemnitee as a result of any breach, inaccuracy or nonfulfillment or the alleged breach, of any of the representations, warranties and covenants of LuxCo contained herein. The total payments made by Parent, LuxCo or BHN to Sellers Indemnitees with respect to Losses shall not exceed the Indemnifiable Loss Limit; provided, however, Sellers Indemnitees shall not be entitled to indemnification pursuant to this Section 10.2 unless and until the aggregate amount of Losses to Sellers Indemnitees equals at least the Basket, at which time, subject to the Indemnifiable Loss Limit, the Sellers Indemnitees shall be entitled to indemnification for the total amount of such Losses. Notwithstanding anything set forth in this Section 10.2, any Losses incurred by any Sellers Indemnitee arising out of the failure of Parent, LuxCo or BHN to perform any covenant or obligation to be performed by it at or after the Closing Date including payment of the Purchase Price, shall not be subject to or applied against the Indemnifiable Loss Limit or the Basket, respectively.
Limitation of Seller's Liability No general or limited partner of Seller, nor any of its respective beneficiaries, shareholders, partners, officers, agents, employees, heirs, successors or assigns shall have any personal liability of any kind or nature for or by reason of any matter or thing whatsoever under, in connection with, arising out of or in any way related to this Agreement and the transactions contemplated herein, and Purchaser hereby waives for itself and anyone who may claim by, through or under Purchaser any and all rights to sue or recover on account of any xxch alleged personal liability.
Responsibilities of Seller Anything herein to the contrary notwithstanding, the exercise by the Agent and the Purchasers of their rights hereunder shall not release the Servicer, Originator or Seller from any of their duties or obligations with respect to any Receivables or under the related Contracts. The Purchasers shall have no obligation or liability with respect to any Receivables or related Contracts, nor shall any of them be obligated to perform the obligations of Seller.
Liability of Seller Seller shall be liable in accordance herewith only to the extent of the obligations in this Agreement specifically undertaken by Seller and the representations and warranties of Seller.
