LOAN TRUST AGREEMENT
Exhibit 10.30
EXECUTION VERSION
This Loan Trust Agreement (the “Trust Agreement”) is entered into as of February 5, 2015, between OneMain Financial Funding III, LLC, a Delaware limited liability company (the “Depositor”), and Xxxxx Fargo Bank, N.A., a national banking association duly organized and existing under the laws of the United States of America (“Xxxxx Fargo”), as Depositor Loan Trustee for the Depositor (the “Depositor Loan Trustee”).
WHEREAS, the Depositor, the Depositor Loan Trustee and the Sellers party thereto are party to the Loan Purchase Agreement, pursuant to which the Sellers have sold to the Depositor of all of their right, title and interest in and to the Loans;
WHEREAS, pursuant to this Trust Agreement, the Depositor desires the Depositor Loan Trustee to acquire and hold all right, title and interest in and to the Loans purchased by the Depositor pursuant to the Loan Purchase Agreement in trust for the benefit of the Depositor; and
WHEREAS, the parties hereto desire and intend to create the trusts set forth herein and the Depositor Loan Trustee agrees to be charged with and accept the trusts and duties set forth in this Trust Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants contained herein the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND INTENT
Section 1.1 Definitions. Certain capitalized terms in this Trust Agreement are defined in and shall have the respective meanings assigned to them in Part A of Schedule II (together with Part B of such Schedule II, the “Definitions Schedule”) to the Sale and Servicing Agreement of even date herewith among the Depositor, the Depositor Loan Trustee, OneMain Financial, Inc., a Delaware corporation, as servicer (in such capacity, the “Servicer”), the Subservicers party thereto, OneMain Financial Issuance Trust 2015-1, a statutory trust created under the laws of the State of Delaware (the “Issuer”) and Xxxxx Fargo, not in its individual capacity but solely as loan trustee for the benefit of the Issuer (in such capacity, the “Issuer Loan Trustee”). The rules of construction set forth in Part B of the Definitions Schedule shall be applicable to this Trust Agreement. In addition, with respect to all terms used in this Trust Agreement, the singular includes the plural and the plural includes the singular; words importing any gender include the other gender; references to “writing” include printing, typing, lithography and other means of reproducing words in a visible form; references to agreements and other contractual instruments include schedules and exhibits thereto and all subsequent amendments, modifications and changes thereto or therein entered into in accordance with their respective terms and not prohibited by this Trust Agreement; references to Persons include their permitted successors and assigns; and the terms “include” or “including” mean “include without limitation” or “including without limitation.”
In addition, the following terms used herein, including in the preamble, recitals, exhibits and schedules hereto, shall have the following meanings:
“Confidential Information” means non-public information relating to the Loans or the related Loan Obligors that is either written or stored electronically and marked “Confidential” by the Depositor, the Custodian, the Servicer or any Seller.
“Other Document” has the meaning specified in Section 2.6(c) of this Trust Agreement.
“Treasury Regulations” means the regulations promulgated under the Internal Revenue Code, as the same may be hereafter amended from time to time, or any successor or successors to such regulations.
Section 1.2 Intent of the Parties Hereto. This Trust Agreement and all documents, agreements, understandings and arrangements relating to this Trust Agreement which are executed by the Depositor Loan Trustee have been executed by the Depositor Loan Trustee solely for the purpose of having the legal and record title to the Loans held by a federal depository institution and the Depositor hereby agrees that the Depositor Loan Trustee shall be accorded appropriate protection for its limited role herein pursuant to the indemnity herein and that the Depositor Loan Trustee (its officers, directors, employees and agents) shall not have any liability thereunder or hereunder except as expressly set forth herein, including, without limitation, liability which may be incurred as a result of actions or inactions of the Depositor or any of its affiliates, subject to the terms of applicable laws, rules and regulations. The Depositor agrees that it will not seek recourse or commence any action against the Depositor Loan Trustee (or its officers, directors, employees or agents) or any of their personal assets for the performance or payment of any obligation thereunder or hereunder and the Depositor Loan Trustee shall not be liable for its actions or inactions, including its negligence, in the performance of its duties hereunder; provided that the Depositor Loan Trustee shall be liable for actual damages (but not consequential or exemplary damages) proximately caused by its gross negligence or willful misconduct in the performance of its duties hereunder. The parties hereto intend that this Trust Agreement is for their benefit only and not for the benefit of any third party. The parties hereto agree that each and every provision of this Trust Agreement is subject to this paragraph.
ARTICLE II
PURPOSE; CREATION OF TRUST; AUTHORITY TO ENTER INTO AND EXECUTE
DOCUMENTS; ACCEPTANCE OF TRUST
Section 2.1 Purpose. The trust hereby established shall be referred to as “OneMain Financial Depositor Loan Trust 2015-1” (the “Trust”). The Trust is formed, entered into and intended by the Depositor and the Depositor Loan Trustee for the purpose of (a) providing for the Depositor Loan Trustee to hold all right, title and interest to the Loans for the benefit of the Depositor and (b) the Depositor Loan Trustee to enter into and comply with the Loan Purchase Agreement, the Sale and Servicing Agreement and any other applicable Transaction Document.
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Section 2.2 Creation and Acceptance of Trust. The Depositor shall cause all legal and record right, title and interest in the Loans to be held by the Depositor Loan Trustee; which Loans shall be held, administered and pledged and the proceeds thereof applied in accordance with the terms of the Transaction Documents for the benefit of the Depositor. At the written request of the Depositor hereunder, the Depositor Loan Trustee hereby agrees to accept and hold all legal right, title and interest in the Loans without liability or responsibility at acceptance or otherwise for the condition or validity of such right, title and interest, in trust for the use and benefit of the Depositor.
Section 2.3 Authority to Enter Into and Execute Documents.
(a) The Depositor hereby authorizes and directs the Depositor Loan Trustee to enter into, execute and deliver any and all agreements, documents or certificates as the Depositor may request in writing from time to time which may be required in connection with performing its duties and obligations with respect to Loans under this Trust Agreement, the Loan Purchase Agreement, the Sale and Servicing Agreement, the Back-up Servicing Agreement or any other Transaction Document or otherwise to give effect to the transactions contemplated hereby and thereby. The Depositor hereby authorizes and directs the Depositor Loan Trustee to execute and deliver the Loan Purchase Agreement, the Sale and Servicing Agreement and the Back-up Servicing Agreement.
(b) The Depositor Loan Trustee hereby authorizes the Depositor to enter into, execute, deliver and perform any and all agreements, documents or certificates as the Depositor Loan Trustee may be requested or required to undertake in connection with performing its duties and obligations with respect to the Loans under any Transaction Document, including but not limited to the execution of each Additional Loan Assignment pursuant to the Loan Purchase Agreement. In connection with the enforcement of any rights of the Depositor Loan Trustee with respect to any Loan, the Depositor Loan Trustee shall furnish the Depositor with any powers of attorney in substantially the form attached as Exhibit A hereto and any other documents reasonably necessary or appropriate to enable the Depositor to enforce such rights on behalf of the Depositor Loan Trustee.
Section 2.4 Duties of the Depositor Loan Trustee. The Depositor Loan Trustee, by execution hereof, covenants, represents and agrees that:
(a) it shall accept and hold for the benefit of the Depositor as herein set forth all such legal and record right, title and interest in the Loans that are transferred and assigned to it at the request of the Depositor pursuant to this Trust Agreement;
(b) it is, and shall be, a “federal depository institution,” as defined in 12 U.S.C. Section 1813(c)(4) under the National Bank Act, as amended;
(c) if requested by the Depositor (with respect to Loans held on behalf of the Depositor under this Trust Agreement) in a reasonably detailed writing that sets forth sufficient information and instructions, the Depositor Loan Trustee shall take commercially reasonable efforts to execute, deliver and perform the Loan Purchase Agreement, the Sale and Servicing Agreement and the other Transaction Documents and
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all other agreements, documents or certificates required under the Loan Purchase Agreement, the Sale and Servicing Agreement and any other agreements, instruments or documents relating, directly or indirectly, to the servicing, administration, sale, exchange, assignment or transfer of Loans;
(d) at the written direction of the Depositor, the Depositor Loan Trustee shall take commercially reasonable efforts to sell, exchange or otherwise deal with the Loans;
(e) at the written direction of the Depositor, the Depositor Loan Trustee shall take commercially reasonable efforts to enter into the Loan Purchase Agreement and thereafter comply with the terms thereof and take such actions as are necessary and reasonably directed to convey, transfer, assign, pledge and xxxxx x xxxx on and security interest in all of its legal and record right, title and interest in and to the Loans in accordance with the Loan Purchase Agreement;
(f) at the written direction of the Depositor, the Depositor Loan Trustee shall take commercially reasonable efforts to take such actions as are necessary or appropriate in order for the Depositor to obtain the full value and benefits of the Loans held on behalf of the Depositor under this Trust Agreement;
(g) it shall hold all Confidential Information pertaining to the Loans in the same manner that it holds its own confidential information and it agrees not to use Confidential Information for any purpose other than for the limited purpose of performing its obligations under this Trust Agreement;
(h) it shall not take any action where it has actual knowledge that such action would cause it or the Depositor to be in breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default, under any Transaction Document; and
(i) it shall execute such agreements and documents as directed in writing by the Depositor providing for the administration of and receipt by the Depositor of the cash flows and other permissible interests in the Loans.
Section 2.5 Duties of the Depositor. The Depositor, by the execution hereof, covenants, represents, warrants and agrees that:
(a) it shall accept, hold and maintain the beneficial interest in each Loan free of any claims, liens or encumbrances;
(b) it shall promptly take all necessary actions to perform its obligations hereunder and to support the Depositor Loan Trustee in the prompt and full performance of its obligations hereunder;
(c) on an annual basis, but no later than June 30 of each year, beginning on June 30, 2015, it shall deliver a report to the Depositor Loan Trustee regarding servicing relationships and give notice to the Depositor Loan Trustee of any addition or termination of any servicer relationship and of any change in the performance status of the Servicer or the applicable Subservicer.
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(d) on an annual basis, but no later than June 30 of each year, beginning on June 30, 2015, it shall provide the Depositor Loan Trustee a certificate of an officer of the Depositor stating that the Depositor is not in default and has not been in default since the delivery of the last such certificate with respect to this Trust Agreement;
(e) it shall not use the name of the Depositor Loan Trustee in any promotional materials, brochures, web site or web site content, promotional or informational letters or other written materials or oral discussions, except that the Depositor may use the name of the Depositor Loan Trustee (i) to indicate in the relevant loan documentation the holder of legal and record title of such loans and (ii) in any documents in which the Depositor is required by law to specify the holder of legal and record title to the Loans. Specifically, the Depositor Loan Trustee expressly consents to the Depositor using the name of the Depositor Loan Trustee in any report or disclosure required by any Governmental Authority where the Depositor is required to specify the holder of legal and record title to the Loans. In so using the Depositor Loan Trustee’s name, it will ensure that there is no misconception as to the Depositor Loan Trustee’s role hereunder and that the Depositor Loan Trustee is acquiring the Loans solely as Depositor Loan Trustee for the benefit of the Depositor and not in its individual capacity;
(f) no information furnished by the Depositor to the Depositor Loan Trustee in connection with the negotiation of this Trust Agreement contains any material misstatement of fact or omitted to state any material fact necessary to make the statements contained herein not misleading; and
(g) it shall not direct the Depositor Loan Trustee to take any action hereunder that is not in compliance with any Transaction Document and it shall not direct the Depositor Loan Trustee to take any action that would cause the Depositor or the Depositor Loan Trustee to be in breach of any of the terms or provisions of, or constitute (with or without notice or lapse of time or both) a default, under any Transaction Document.
Section 2.6 Acceptance of Duties; Concerning the Depositor Loan Trustee.
(a) The Depositor Loan Trustee accepts the trusts hereby created and agrees to perform the duties and only the duties specifically set forth in this Trust Agreement and no implied covenants or obligations shall be read into the trust created hereby against the Depositor Loan Trustee. The Depositor Loan Trustee shall not be answerable or accountable under any circumstances except for its gross negligence or willful misconduct.
(b) In particular, but not by way of limitation:
(i) the Depositor Loan Trustee shall not be personally liable for any error of judgment made in good faith by any of its officers or employees absent gross negligence or willful misconduct;
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(ii) under no circumstances shall the Depositor Loan Trustee be personally liable for any representation, warranty, covenant, obligation or indebtedness or obligation of any other Person;
(iii) the Depositor Loan Trustee shall not be personally liable for or in respect of the validity or sufficiency of this Trust Agreement or for the due execution hereof by any other Person or for the value of the Trust property;
(iv) the Depositor Loan Trustee shall not be liable for the default or misconduct of the Depositor, the Servicer or any Subservicer and shall not be liable for any act or omission taken at the direction of the Depositor;
(v) the Depositor Loan Trustee shall not be personally liable for (x) punitive, special or consequential damages, however styled, including, without limitation, lost profits, (y) the acts or omissions of any nominee, correspondent, clearing agency or securities depository through which it holds the Trust’s assets or (z) any losses due to forces beyond the reasonable control of the Trustee, including, without limitation, strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services;
(vi) every provision of this Trust Agreement relating to the Depositor Loan Trustee shall be subject to the provisions of this Section 2.6.
(c) The Depositor Loan Trustee is authorized and directed to execute, deliver and perform (i) the Transaction Documents to which the Depositor Loan Trustee is a party and each certificate or other document attached as an exhibit to or contemplated by the Transaction Documents to which the Depositor Loan Trustee is to be a party and (ii) each other agreement, instrument, certificate or other document to which the Depositor Loan Trustee is to be a party in connection with the Transaction Documents (each, an “Other Document”) in such form as the Depositor shall approve and direct in writing. The execution and delivery of, and performance of the terms of, the Loan Purchase Agreement, the Sale and Servicing Agreement, the Back-up Servicing Agreement and each certificate or other document attached as an exhibit to or otherwise contemplated by the Loan Purchase Agreement to which the Depositor Loan Trustee is to be a party or any Other Document to which the Depositor Loan Trustee is to be a party shall be deemed not to conflict with or constitute a breach or default under this Trust Agreement.
(d) The Depositor Loan Trustee agrees that it will not manage, control, use, sell, dispose of or otherwise deal with the Trust assets except (i) as expressly required by the terms of this Trust Agreement or (ii) as expressly provided in written instructions from the Depositor.
(e) Except in accordance with the written instructions furnished by the Depositor, the Depositor Loan Trustee shall have no duty (i) to see to any recording or filing of any document, (ii) 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 or Trust assets, (iii) to confirm or verify any financial statements or any Person or (iv) to inspect the Depositor’s, the Servicer’s or any Subservicer’s books and records at any time.
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(f) The Depositor Loan Trustee shall have no responsibility for the accuracy of any information provided to any Person that has been obtained from, or provided to the Depositor Loan Trustee by, any other entity.
(g) The Depositor Loan Trustee shall not have any duty or obligation to manage, control, use, sell, dispose of or otherwise deal with the Trust assets or otherwise take or refrain from taking any action under this Trust Agreement except as expressly required by the terms hereof or as expressly provided in written instructions from the Depositor and no implied duties or obligations shall be read into this Trust Agreement against the Trustee. The Depositor Loan Trustee shall not be required to take any action at the direction of the Depositor under this Agreement unless the Depositor Loan Trustee shall have been indemnified, in manner and form satisfactory to the Depositor Loan Trustee, against any liability, cost or expense (including counsel fees and disbursements) which may be incurred in connection therewith.
(h) The Depositor Loan Trustee shall not be required to take any action under this Trust Agreement if the Depositor Loan Trustee shall have been advised by the written opinion of counsel that such action is contrary to the terms of this Trust Agreement or is otherwise contrary to law.
(i) Whenever the Depositor Loan Trustee is unable to decide between alternative courses of action permitted or required by the terms of this Trust Agreement, or is unsure as to the application, intent, interpretation or meaning of any provision hereof, the Depositor Loan Trustee may give notice (in such form as shall be appropriate under the circumstances) to the Depositor requesting instruction and to the extent the Depositor Loan Trustee acts in good faith in accordance with any such instruction received, the Depositor Loan Trustee shall not be liable on account of such action to any Person. The Depositor Loan Trustee shall be fully protected in refraining from taking any such action pending the receipt of direction from the Depositor.
(j) For the avoidance of doubt, prior to taking any action under this Trust Agreement, the Depositor Loan Trustee shall be entitled to receive written instructions of the Depositor. The Depositor Loan Trustee shall not be liable for any action that it takes or omits to take in good faith in reliance on the instructions of the Depositor. The Depositor Loan Trustee shall be entitled to assume that any direction from the Depositor is given in accordance with the Transaction Documents without independent verification; provided that if the Depositor Loan Trustee in good faith determines that any such direction is not given in accordance with the Transaction Documents or applicable law, then the Depositor Loan Trustee shall have no obligation to follow such direction.
(k) The Depositor Loan Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document.
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(l) The Depositor Loan Trustee shall have no liability for (x) the failure of the Servicer, any Subservicer, the Depositor or any sub-servicer, agent of or counsel to any of the foregoing to conduct a foreclosure in accordance with the terms of this Trust Agreement, the Loan Purchase Agreement, the Sale and Servicing Agreement or applicable law, or (y) the failure of realization in any foreclosure resulting from the failure to properly file or record any other transfer document and the Depositor Loan Trustee shall not be required to take any action in connection with any of the foregoing matters.
(m) The Depositor shall not be required to provide, on its own behalf, any surety bond or other kind of security in connection with the execution of any of its trust or powers under this Trust Agreement, the Loan Purchase Agreement or the performance of its duties hereunder.
(n) In order to help the U.S. government fight terrorism and money laundering, Federal law requires the Depositor to obtain, verify and record information that identifies each business or entity that opens an account or establishes a relationship. Thus, the Depositor may ask for the business name, a street address and tax identification number from any person that Federal law requires it to obtain.
(o) The parties expressly acknowledge and consent to Xxxxx Fargo Bank, N.A. acting as Depositor Loan Trustee and Xxxxx Fargo Bank, N.A. acting as Issuer Loan Trustee. Each of the Depositor Loan Trustee and the Issuer Loan Trustee may, in such capacity, discharge its separate functions fully, without hindrance or regard to conflict of principles, duty of loyalty principles or other breach of fiduciary duties to the extent any such conflict or breach arises from the performance by the Depositor Loan Trustee of express duties set forth in this Trust Agreement and the Issuer Loan Trustee of express duties set forth in the Issuer Loan Trust Agreement with respect thereto.
Section 2.7 Reliance on Certain Documents, Other Persons; Taxes. The Depositor Loan Trustee shall not incur any liability in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper believed by it to be genuine and believed by it to be signed by the proper party or parties. The Depositor Loan Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter, the manner of ascertainment of which is not specifically prescribed herein, the Depositor Loan Trustee may, for all purposes hereof, rely on a certificate, signed by the president or any vice president or by the treasurer or any assistant treasurer or the secretary or any assistant secretary of the relevant party, as to such fact or matter and such certificate shall constitute full protection to the Depositor Loan Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon. In the administration of its duties hereunder, the Depositor Loan Trustee may execute any of the trusts or powers hereof and perform its powers and duties hereunder directly or, at the expense of the Depositor, through other agents or attorneys and may, at the expense of the Depositor, seek advice of counsel, accountants and other skilled persons to be selected and employed by it and the Depositor Loan Trustee shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, accountants or other skilled persons.
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Except as expressly provided in this Trust Agreement, the Depositor Loan Trustee shall be under no duty to examine any report or statement or other document required or permitted to be filed with it by the Depositor.
The Depositor Loan Trustee shall not be liable for failure of the Depositor to pay any tax or taxes in respect of any property, or any part thereof, or the income therefrom or otherwise, nor shall the Loan Trust be under any duty in respect of any tax which may be assessed against it in respect of such property or the Loans.
Section 2.8 Security for Action. No provision hereof shall require the Depositor Loan Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
Section 2.9 Capacity. In accepting the trust hereby created, Xxxxx Fargo Bank, N.A. acts solely as Depositor Loan Trustee hereunder and not in its individual capacity and all persons having any claim against the Depositor Loan Trustee by reason of the transactions contemplated by this Trust Agreement shall look only to the Trust’s property for payment or satisfaction thereof, except in the case of gross negligence and willful misconduct on the part of the Depositor Loan Trustee.
Section 2.10 Compensation. The Depositor Loan Trustee shall be entitled to (a) an annual fee in the amount of $1,000, which shall be paid in equal monthly installments in accordance with the Priority of Payments on each Payment Date, for all services rendered by it hereunder with respect to Loans held on behalf of the Depositor under this Trust Agreement and (b) reimbursement of all of the Depositor Loan Trustee’s reasonable expenses, charges and other disbursements and those of its attorneys, agents and employees incurred in and about the administration and execution of the trust hereby created with respect to Loans held on behalf of the Depositor under this Trust Agreement. Amounts payable to the Depositor Loan Trustee hereunder are payable pursuant to Section 8.06 of the Indenture.
Section 2.11 Qualification. The Depositor Loan Trustee, including any successor, shall at all times be a “federal depository institution,” as defined in 12 U.S.C. §1813(c)(4) under the National Bank Act, as amended.
Section 2.12 Successors. (a) The Depositor Loan Trustee or any successor thereto may resign at any time without cause by giving at least 60 days’ prior written notice or may resign immediately if the Depositor breaches its obligations under Sections 2.13 and 2.14, in either case, such resignation to be effective only upon the acceptance of the trust created by Article II hereunder by any successor Depositor Loan Trustee meeting the requirements of Section 2.11 hereof and the requirements set forth for the Indenture Trustee in Section 6.11 of the Indenture and payment in full of all amounts due to the Depositor Loan Trustee. In addition, the Depositor may at any time remove the Depositor Loan Trustee without cause by an instrument in writing delivered to the Depositor Loan Trustee, such removal to be effective upon the acceptance of the trust created by Article II hereunder by a successor Depositor Loan Trustee meeting the requirements of Section 2.11 hereof and payment in full of all amounts due to the
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Depositor Loan Trustee. If no successor Depositor Loan Trustee has been appointed within 60 days after notice of resignation or removal, as the case may be, the Depositor Loan Trustee may request a court of competent jurisdiction to appoint a successor Depositor Loan Trustee meeting the requirements of Section 2.11 hereof; provided, however, that such right to appoint or to petition for the appointment of any such successor shall in no event relieve the resigning Depositor Loan Trustee from any obligations otherwise imposed on it under the Transaction Documents until such successor has assumed such appointment.
(b) Any successor Depositor Loan Trustee shall execute and deliver to the predecessor Depositor Loan Trustee an instrument accepting such appointment and, in cooperation with the Depositor Loan Trustee, shall take such further actions to ensure (i) that legal and record title to the Loans has been assigned to such successor Depositor Loan Trustee for the benefit of the Depositor and (ii) that the beneficial interest of the Depositor in the Loans is maintained; thereupon such successor Depositor Loan Trustee, without further act, shall become vested with all the estates, properties, rights, powers, duties and trusts of the predecessor Depositor Loan Trustee in the trust created by Article II hereunder with like effect as if originally named as the Depositor Loan Trustee herein; and
(c) Any bank, corporation or other entity into which the Depositor Loan Trustee may be merged or converted or with which it may be consolidated, or any bank, corporation or other entity resulting from any merger, conversion or consolidation to which the Depositor Loan Trustee shall be a party, or any bank, corporation or other entity to which substantially all the corporate trust business of the Depositor Loan Trustee may be transferred, shall be the Depositor Loan Trustee under this Trust Agreement without any further act, provided the resulting bank, corporation or other entity meets the qualification requirements of Section 2.11 hereof.
Section 2.13 Servicing of Loans. The Depositor acknowledges that due diligence must be used in the origination, servicing and collection of Loans and servicing of the Loans must be done in accordance with applicable law. The Depositor hereby acknowledges that it has selected, or will select, the Servicer (which may appoint a Subservicer) to service the Loans held by the Depositor Loan Trustee on behalf of the Depositor and on behalf of the Depositor Loan Trustee. The Depositor acknowledges that the Depositor Loan Trustee is not required by this Trust Agreement to monitor or supervise the actions taken by the Servicer and the Subservicers. The Depositor will cause an annual certification to be provided to the Depositor Loan Trustee by June 30 of each year, covering the twelve months ending March 31 preceding the date of such certification, that servicing of the Loans by the Servicer and the Subservicers has been conducted in accordance with the terms of the respective agreements that the Depositor has with the Servicer or the applicable Subservicer.
Section 2.14 Indemnification. The Issuer hereby agrees to indemnify and hold harmless the Depositor Loan Trustee (in its individual and trustee capacities) from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses or disbursements (including legal fees and expenses) of any kind and nature whatsoever which may be imposed on, incurred by or asserted against, the Depositor Loan Trustee in any way relating to or arising out of this Trust Agreement or any document relating to this Trust Agreement, or the performance or enforcement of any of the terms of any provision
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thereof, or in any way relating to or arising out of the administration of the trust estate or the action or inaction of the Depositor Loan Trustee hereunder, except only in the case of willful misconduct or gross negligence on the part of the Depositor Loan Trustee in the performance of its duties hereunder. In no event shall the Depositor Loan Trustee or its directors, officers, agents and employees be held liable for any punitive, special, indirect or consequential damages resulting from any action taken or omitted to be taken by it or them hereunder or in connection herewith even if advised of the possibility of such damages. The provisions of this Section 2.14 shall survive the resignation or removal of the Depositor Loan Trustee and the termination of this Trust Agreement. Amounts payable pursuant to this Section 2.14 will be paid to the Depositor Loan Trustee solely from funds paid pursuant to Section 8.06 of the Indenture.
Section 2.15 Representations and Warranties. The Depositor Loan Trustee hereby represents and warrants to the Depositor that:
(a) It is a national banking association duly formed and validly existing in good standing under the laws of the United States and has all requisite corporate power and authority to execute, deliver and perform its obligations under this Trust Agreement.
(b) It has taken all corporate action necessary to authorize the execution and delivery by it of this Trust Agreement and this Trust Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver this Trust Agreement on its behalf.
(c) This Trust Agreement constitutes a legal, valid and binding obligation of the Depositor Loan Trustee, enforceable against it in accordance with its terms, subject, as to enforceability, to applicable bankruptcy, insolvency, reorganization, conservatorship, receivership, liquidation and other similar laws affecting enforcement of the rights of creditors of banks generally and to equitable limitations on the availability of specific remedies.
(d) Neither the execution nor the delivery by it of this Trust Agreement, nor the consummation by it of the transactions contemplated hereby nor compliance by it with any of the terms or provisions hereof will contravene any applicable federal or state law, governmental rule or regulation governing the banking or trust powers of the Depositor Loan Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws.
(e) As of the Closing Date, it has under applicable federal law, designated the State of South Dakota as its main office.
Section 2.16 Depositor Loan Trustee Interest.
(a) Notwithstanding anything to the contrary herein (i) the Depositor Loan Trustee solely will hold legal title with respect to the Loans conveyed to the Depositor and the Depositor Loan Trustee for the benefit of the Depositor and will not have any other interest in respect of such Loans or any other Purchased Assets, (ii) the Depositor shall be the sole beneficial owner of such Loans and other Purchased Assets and (iii) any reference herein to the Depositor Loan Trustee’s interest in, or right with respect to, any Loan shall be deemed solely to refer to legal title with respect to the Loans.
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(b) Notwithstanding the fact that the Depositor Loan Trustee will hold legal title with respect to the Loans, the parties hereto each hereby acknowledge that:
(i) except as set forth in subclause (ii) below, the Depositor is entitled to all incidents, benefits and risks of ownership of the Loans, including, without limitation, the sole right to service, sell, lease, convey and otherwise transfer and dispose of the Loans; and
(ii) the Depositor Loan Trustee has no direct or indirect ownership or other interest in the Loans, except such rights and obligations with respect to the Loans as are required by the appointment of the Depositor Loan Trustee as legal titleholder with respect to the Loans as set forth herein and in the Loan Purchase Agreement.
ARTICLE III
COVENANTS
Section 3.1 Administration. The Depositor shall cause the Loans to be in compliance with each applicable Transaction Document. The Depositor Loan Trustee shall have no liability for any action or inaction, including its negligence, in the performance of its duties hereunder; provided that the Depositor Loan Trustee shall be liable for actual damages (but not consequential or exemplary damages) proximately caused by its gross negligence or willful misconduct in the performance of its duties hereunder. The Depositor Loan Trustee shall not be responsible for any action or inaction of the Depositor under this Trust Agreement. The Depositor Loan Trustee shall have no obligation to administer, service or collect the Loans or to maintain, supervise or monitor the administration, servicing or collection of the Loans.
ARTICLE IV
CERTAIN TAX MATTERS
Section 4.1 Grantor Trust Status. It is the intent of the parties hereto that the Trust be treated as a grantor trust for federal income tax purposes under subpart E, part I of subchapter J of the Internal Revenue Code and not as an association taxable as a corporation, a partnership, or any other “business entity” (within the meaning of Treasury Regulation § 301.7701-2(a)) and the provisions of this Trust Agreement shall be interpreted and applied consistently therewith. The Depositor Loan Trustee covenants that it shall perform and cause any agent of the Depositor Loan Trustee to perform, its obligations hereunder in a manner so as to maintain the status of the trust created hereunder as a grantor trust for federal income tax purposes under subpart E, part I of subchapter J of the Internal Revenue Code and not as an association taxable as a corporation, a partnership, or any other “business entity” (within the meaning of Treasury Regulation § 301.7701-2(a)), to the extent that maintaining such status and avoiding such taxes are reasonably within the control of the Depositor Loan Trustee.
Section 4.2 Restrictions on Depositor Loan Trustee’s Power to Vary the Trust’s Investments. Notwithstanding any provision of this Trust Agreement to the contrary, the Depositor Loan Trustee and any agent of the Depositor Loan Trustee shall not, except as
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otherwise directed in writing by the Depositor (or 100% of the beneficial owners of the Trust, as determined for U.S. federal income purposes, if other than the Depositor) or except pursuant to written advice of nationally recognized tax counsel that the acts in question will not cause the Trust to be treated as other than a grantor trust for federal income tax purposes under subpart E, part I of subchapter J of the Internal Revenue Code; (i) exchange any Loans for other property (other than cash to be distributed to the Depositor or remitted to the Indenture Trustee for deposit in the Collection Account in accordance with this Trust Agreement); (ii) acquire any other property with, or otherwise reinvest, any income, payments or proceeds received with respect to the Loans, including any proceeds from the sale of any Loans; (iii) accept any contributions of cash or property other than the Loans and income, payments, or proceeds received with respect to the Loans; (iv) modify the Loans, unless such modifications are required by law; or (v) otherwise acquire or agree to acquire, by contribution, purchase, exchange, borrowing, or otherwise, any cash or property other than the Loans and any income, payments, or proceeds received with respect to the Loans. This Section 4.2 is intended to ensure that no person has the power to vary the investments of the Trust within the meaning of Treasury Regulations § 301.7701-4(c) and shall be interpreted and applied consistently with such intent.
Section 4.3 Register. At all times during the term of this Trust Agreement, the Depositor Loan Trustee or its agent shall maintain a register (the “Register”) on which the name and address of each owner of beneficial interests in the Trust shall be recorded. The Register shall be updated for and shall reflect any transfers of beneficial interests in the Trust and no purported transfer of beneficial interests in the Trust shall be effective unless reflected in the Register. The entries in the Register shall be conclusive absent manifest error and each person whose name is recorded in the Register as an owner of the beneficial interests in the Trust shall be considered the owner of such interests for all purposes of this Trust Agreement notwithstanding any notice to the contrary. The provisions of this Section 4.3 are intended to comply with the requirements that the beneficial interests in the Trust must meet in order to be considered in “registered form” within the meaning of Treasury Regulation § 1.871-14(c) and (d) and shall be interpreted and applied consistently therewith.
ARTICLE V
MISCELLANEOUS
Section 5.1 Notices. All notices shall be in writing, mailed by regular mail, postage prepaid as follows:
| (a) | if to the Depositor Loan Trustee: |
Xxxxx Fargo Bank, N.A.
Attention: Corporate Trust Services/Structured Products Services
Sixth Street and Marquette Avenue
MAC N9311-161
Xxxxxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
xxxxxxxx.x.xxxxxxxx@xxxxxxxxxx.xxx
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or to such other address as may have been filed in writing with the Depositor;
| (b) | if to the Depositor: |
OneMain Financial Funding III, LLC
000 Xx. Xxxx Xxxxx
XXX00
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
with a copy to:
OneMain Financial, Inc.
000 Xx. Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Office of General Counsel
or to such other address as may have been filed in writing with the Depositor Loan Trustee.
Section 5.2 Partial Invalidity. Any provisions of this Trust Agreement which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section 5.3 Amendment.
(a) This Trust Agreement may only be amended or modified (i) by a written agreement executed by the Depositor and the Depositor Loan Trustee, (ii) upon the satisfaction of the Rating Agency Condition and (iii) with the consent of the Issuer.
(b) Promptly after the execution of any such amendment or consent, the Depositor shall furnish notification of the substance of such amendment to the Indenture Trustee and each Noteholder.
(c) The Depositor Loan Trustee may, but shall not be obligated to, enter into any amendment to this Trust Agreement that adversely affects its own rights, duties, liabilities, benefits, protections, privileges or immunities under this Trust Agreement or otherwise in any material respect.
(d) The Depositor Loan Trustee shall execute any amendment to the Transaction Documents at the direction of the Depositor; provided that the Depositor Loan Trustee shall not be obligated to execute any such amendment that adversely affects the Depositor Loan Trustee in any material respect.
Section 5.4 Termination. This Trust Agreement and the trust created by Article II hereunder (including all duties and obligations of the parties hereto) shall terminate upon the sale, transfer, final disposition, maturity, final payment or assignment of all Loans held by the Depositor Loan Trustee on behalf of the Depositor under this Trust Agreement and the termination of the Indenture.
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Section 5.5 Counterparts. This Trust Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
Section 5.6 Trust Binding Upon Successors and Assigns. All covenants and agreements contained herein shall be binding upon and inure to the benefit of, the Depositor Loan Trustee and the Depositor and their respective successors and assigns and to the Depositor and its successors and assigns.
Section 5.7 Headings. The headings of the various articles and sections herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof.
Section 5.8 Force Majeure. The Depositor Loan Trustee shall not be responsible for delays or failures in performance resulting from acts beyond its control. Such acts shall include, without limitation, acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, government regulations adopted after the date of this Trust Agreement, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters of a similar nature.
Section 5.9 Transfer to Issuer and Issuer Loan Trustee for the Benefit of the Issuer. By execution below, the Depositor Loan Trustee expressly acknowledges and agrees that all of Depositor’s right, title and interest in, to and under this Trust Agreement, as such right, title and interest relate to the Loans, shall be transferred by the Depositor to the Issuer and the Issuer Loan Trustee for the benefit of the Issuer pursuant to the Sale and Servicing Agreement and the Depositor Loan Trustee consents to such transfer.
Section 5.10 Limited Recourse.
(a) Notwithstanding anything to the contrary contained herein, no recourse under or with respect to any obligation, covenant or agreement of the Depositor as contained in this Trust Agreement or any of the other Transaction Documents or any other agreement, instrument or document to which the Depositor is a party shall be had against any incorporator, stockholder, affiliate, officer, employee or director of the Depositor by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that the agreements of the Depositor contained in this Trust Agreement and all other agreements, instruments and documents entered into pursuant hereto or in connection herewith are, in each case, solely corporate obligations of the Depositor. Notwithstanding any provisions contained in this Trust Agreement to the contrary, the Depositor shall not and shall not be obligated to, pay any fees, costs, indemnified amounts or expenses due pursuant to this Trust Agreement until payment in full of all amounts that the Depositor is obligated to deposit in the Collection Account and the Principal Distribution Account pursuant to the Loan Purchase Agreement or the Sale and Servicing Agreement; provided, however, that the Noteholders shall be entitled to the benefits of the subordination of the Collections allocable to
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the Trust Certificate to the extent provided in the Indenture. Any amount which the Depositor does not pay pursuant to the operation of the preceding sentence shall not constitute a claim (as defined in §101 of the United States Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et seq.), as amended from time to time) against or obligation of the Depositor for any such insufficiency unless and until funds are available for the payment of such amounts as aforesaid.
(b) Notwithstanding anything to the contrary contained herein, no recourse under or with respect to any obligation, covenant or agreement of the Issuer as contained in this Trust Agreement or any of the other Transaction Documents or any other agreement, instrument or document to which the Issuer is a party shall be had against any incorporator, stockholder, affiliate, officer, employee or director of the Issuer by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that the agreements of the Issuer contained in this Trust Agreement and all other agreements, instruments and documents entered into pursuant hereto or in connection herewith are, in each case, solely corporate obligations of the Issuer. Notwithstanding any provisions contained in this Trust Agreement to the contrary, the Issuer shall not and shall not be obligated to, pay any fees, costs, indemnified amounts or expenses due pursuant to this Trust Agreement other than in accordance with the order of priorities set forth in Section 8.06 of the Indenture. Any amount which the Issuer does not pay pursuant to the operation of the preceding sentence shall not constitute a claim (as defined in §101 of the United States Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et seq.), as amended from time to time) against or obligation of the Issuer for any such insufficiency unless and until funds are available for the payment of such amounts as aforesaid.
(c) The parties hereto agree that the provisions of this Section 5.10 shall survive the resignation or removal of any such party to this Trust Agreement and the termination of this Trust Agreement.
Section 5.11 No Petition.
(a) To the fullest extent permitted by law and notwithstanding any prior termination of this Trust Agreement, the Depositor Loan Trustee agrees that it shall not file, commence, join or acquiesce in a petition or proceeding, or cause the Depositor to file, commence, join or acquiesce in a petition or proceeding, that causes (i) the Depositor to be a debtor under any Debtor Relief Law or (ii) a trustee, conservator, receiver, liquidator or similar official to be appointed for the Depositor or any substantial part of its property.
(b) To the fullest extent permitted by law and notwithstanding any prior termination of this Trust Agreement, each of the Depositor and the Depositor Loan Trustee agree that it shall not file, commence, join or acquiesce in a petition or proceeding, or cause the Issuer to file, commence, join or acquiesce in a petition or proceeding, that causes (i) the Issuer to be a debtor under any Debtor Relief Law or (ii) a trustee, conservator, receiver, liquidator or similar official to be appointed for the Issuer or any substantial part of its property.
(c) The parties hereto agree that the provisions of this Section 5.11 shall survive the resignation or removal of any such party to this Trust Agreement and the termination of this Trust Agreement.
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Section 5.12 Governing Law. THIS TRUST AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
EACH OF THE PARTIES HERETO HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN THE COUNTY OF NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS TRUST AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO BRING ANY ACTION OR PROCEEDING AGAINST ANY OTHER PARTY HERETO OR ANY OF THEIR PROPERTY IN THE COURTS OF OTHER JURISDICTIONS.
EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, AMONG ANY OF THEM ARISING OUT OF, CONNECTED WITH, RELATING TO AND INCIDENT TO THE RELATIONSHIP BETWEEN THEM IN CONNECTION WITH THIS TRUST AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS.
Section 5.13 Limitation of Liability. It is expressly understood and agreed by the parties hereto that (i) this Trust Agreement is executed and delivered by Wilmington Trust, National Association, not individually or personally but solely as owner trustee (the “Owner Trustee”) of the Issuer, in the exercise of the powers and authority conferred and vested in it, (ii) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as personal representations, undertakings and agreements by the Owner Trustee but made and intended for the purpose of binding only the Issuer, (iii) nothing herein contained shall be construed as creating any liability on the Owner Trustee, individually or personally, to perform any covenants, either expressed or implied, contained herein, all personal liability, if any, being expressly waived by the parties hereto and by any person claiming by, through or under the parties hereto, (iv) the Owner Trustee has made no investigation as to the accuracy or completeness of any representations and warranties made by the Issuer in this Agreement and (v) under no circumstances shall the Owner Trustee be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Trust Agreement or any other related document.
Section 5.14 Reassignment to Sellers. For the avoidance of doubt, this Trust Agreement shall apply only to Loans conveyed to the Depositor pursuant to the Loan Purchase Agreement and shall cease to apply to any Loans that are reconveyed or reassigned to a Seller by the Depositor pursuant to the Loan Purchase Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be executed by a duly authorized officer as of the date first above written.
| XXXXX FARGO BANK, N.A., not in its individual capacity, but solely as Depositor Loan Trustee | ||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxxx X. Xxxxxxxx | ||
| Title: Vice President | ||
| ONEMAIN FINANCIAL FUNDING III, LLC, | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | ||
| Title: Vice President and Assistant Treasurer | ||
| ACKNOWLEDGED AND AGREED WITH RESPECT TO SECTION 2.14: | ||
| ONEMAIN FINANCIAL ISSUANCE | ||
| By: |
WILMINGTON TRUST, | |
| NATIONAL ASSOCIATION, of the Issuer | ||
| By: |
/s/ Xxxxxx X. Xxxxx | |
| Name: Xxxxxx X. Xxxxx | ||
| Title: Vice President | ||
[Signature Page—2015-1 Depositor Loan Trust Agreement]
EXHIBIT A
Form of Limited Power of Attorney
KNOW ALL PERSONS BY THESE PRESENT, that Xxxxx Fargo Bank, N.A., a national banking association duly organized and existing under the laws of the United States of America having its principal place of business at Sioux Falls, South Dakota, together with its respective subsidiary corporations and entities (collectively, “Xxxxx Fargo”), has and hereby affirms that it has made, constituted and appointed and by these presents does make, constitute and appoint OneMain Financial Funding III, LLC (“OneMain Financial Funding III” or “attorney-in- fact”), having its principal place of business at Baltimore, Maryland, Xxxxx Fargo’s true and lawful attorney-in-fact and in Xxxxx Fargo’s name, place and stead to act solely for the purpose of performing any or all of the acts described herein and permitted under the Transaction Documents in connection with the enforcement of rights with respect to any Loan pursuant to which legal title is held by Xxxxx Fargo pursuant to that certain Loan Trust Agreement, dated as of February 5, 2015, among OneMain Financial Funding III, LLC, as Depositor and Xxxxx Fargo Bank, N.A., as Depositor Loan Trustee for the benefit of the Depositor (as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof, the “Depositor Loan Trust Agreement”).
FIRST: Definitions. Each capitalized term used but not defined herein has the meaning given to such term in the Depositor Loan Trust Agreement.
SECOND: Limited Power of Attorney. Xxxxx Fargo hereby nominates, constitutes and appoints OneMain Financial Funding III as its true and lawful attorney-in-fact (with full power of substitution) and hereby authorizes OneMain Financial Funding III, in the name of and on behalf of Xxxxx Fargo, to execute, deliver, acknowledge, certify, file and record any document, to institute and prosecute any proceeding and to take any other action that OneMain Financial Funding III may deem appropriate for the purpose of (A) collecting, asserting, enforcing or perfecting any claim, right or interest of any kind that is included in or relates to any of the Loans, (B) defending or compromising any claim or proceeding relating to any of the Loans, or (C) otherwise carrying out or facilitating any of the transactions contemplated in the Depositor Loan Trust Agreement with respect to the enforcement of the Depositor Loan Trustee’s rights under the Loans. This Limited Power of Attorney is and shall be coupled with an interest and shall be irrevocable and shall survive the dissolution or insolvency of Xxxxx Fargo.
THIRD: Depositor Loan Trust Agreement. The execution and delivery of this Limited Power of Attorney by Xxxxx Fargo shall not be (or be deemed) a waiver or discharge of any representation, warranty, covenant or agreement of Xxxxx Fargo in or under the Depositor Loan Trust Agreement or any other Transaction Document and such execution and delivery shall not be (or be deemed) a modification or amendment of any provision of the Depositor Loan Trust Agreement or any other Transaction Document in any respect.
FOURTH: Waivers and Amendments. This Limited Power of Attorney may be amended, modified, supplemented or restated only by a written instrument executed by Xxxxx Fargo and OneMain Financial Funding III. The terms of this Limited Power of Attorney may be waived only by a written instrument executed by the party waiving compliance.
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FIFTH: Counterparts. This Limited Power of Attorney may be executed by a party hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same agreement and all signatures need not appear on any one counterpart.
SIXTH: Headings. The headings in this Limited Power of Attorney are for convenience of reference only and shall not define, limit or otherwise affect any of the terms or provisions hereof.
SEVENTH: Binding Effect; Successors and Assigns. This Limited Power of Attorney shall inure to the benefit of and be binding upon OneMain Financial Funding III and Xxxxx Fargo and their respective successors and permitted assigns.
EIGHTH: Governing Law. THIS LIMITED POWER OF ATTORNEY SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) THEREOF.
NINTH: Miscellaneous. The appointment made hereby is to be construed and interpreted as a Limited Power of Attorney. The enumeration of specific items, rights, acts or powers herein is not intended to, nor does it give rise to and it is not to be construed as, a general power or attorney.
Nothing contained herein shall be construed to grant OneMain Financial Funding III the power to initiate or defend any suit, litigation or proceeding brought against Xxxxx Fargo, as Depositor Loan Trustee. If OneMain Financial Funding III receives any notice of suit, litigation or proceeding in the name of Xxxxx Fargo, as Depositor Loan Trustee, then OneMain Financial Funding III will forward a copy of same to the Depositor Loan Trustee as soon as practicable.
Pursuant to the Depositor Loan Trust Agreement, OneMain Financial Funding III will indemnify and hold the Depositor Loan Trustee harmless from and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, expenses or disbursements of any kind or nature whatsoever incurred by reason of, as a result of, or in connection with the exercise by OneMain Financial Funding III of the powers granted to it hereunder. The foregoing indemnity will survive the termination of this Limited Power of Attorney or the earlier resignation or removal of the Depositor Loan Trustee.
This Limited Power of Attorney shall terminate automatically upon the termination of the Depositor Loan Trust Agreement or upon the resignation or removal of Xxxxx Fargo as Depositor Loan Trustee.
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IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney on behalf of Xxxxx Fargo as of this day of , .
| XXXXX FARGO BANK, N.A., a national banking association, as Depositor Loan Trustee | ||
| By: |
| |
| Name: | ||
| Title: | ||
State of )
County of )
On , 20 before me, , a notary public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
| Signature |
|
(Seal)
