Date of report (Date of earliest event reported): November 1, 2021
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Exeter Automobile Receivables Trust 2021-2
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(Exact name of Issuing Entity as specified in its charter)
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EFCAR, LLC
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(Exact name of Depositor / Registrant as specified in its charter)
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Exeter Finance LLC
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(Exact name of Sponsor as specified in its charter)
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Delaware
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(State or Other Jurisdiction of Incorporation)
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333-233850
333-233850-03
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45-2673519
86-6444999
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(Commission File Number)
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(IRS Employer Identification No.)
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2101 W. John Carpenter Freeway, Irving, Texas
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75063
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrant’s telephone number, including area code: (214) 572-8256
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Not Applicable
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(Former Name or Former Address, if Changed Since Last Report)
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[ ] |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Title of each class
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Trading Symbol(s)
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Name of each exchange on which registered
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Not applicable
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Not applicable
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Not applicable
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
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Emerging growth company [ ]
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 13(a) of the Exchange Act.
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[ ]
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(a) |
“Appointment” generally refers to the appointment of the Applicable Wells Fargo Entity to act in a Corporate Trust Capacity under any of the Corporate Trust Contracts of the corporate trust business,
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(b) |
“Corporate Trust Contracts” generally refer to the corporate trust contracts for the Appointments,
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(c) |
“Corporate Trust Capacity” generally refers to the Applicable Wells Fargo Entity’s roles under a Corporate Trust Contract,
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(d) |
“Excluded Appointments” and “Restricted Appointments,” and together, “Serviced Appointments,” generally describe those Appointments for which the Applicable Wells Fargo Entity has not transferred all
of its roles, and the rights, interests, obligations and duties associated with such roles, to the Applicable Computershare Entity, and the Applicable Computershare Entity is performing the duties related to the Applicable Wells Fargo
Entity’s Corporate Trust Capacities in such Appointments as its agent pursuant to the Servicing Agreement,
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(e) |
“Serviced Duties” generally refers to the duties and obligations of the Applicable Wells Fargo Entity in certain Corporate Trust Capacities under the Serviced Appointments that are performed by the
Applicable Computershare Entity pursuant to the Servicing Agreement,
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(f) |
a “Serviced Corporate Trust Contract” is generally a Corporate Trust Contract for which the Applicable Computershare Entity is performing the Serviced Duties related to the Applicable Wells Fargo
Entity’s Corporate Trust Capacities pursuant to the Servicing Agreement, and
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(g) |
“Retained Duties” generally refers to the duties of the Applicable Wells Fargo Entity in certain Corporate Trust Capacities under a Corporate Trust Contract that are not performed by the Applicable
Computershare Entity as part of its Serviced Duties.
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(a) |
Not applicable.
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(b) |
Not applicable.
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(c) |
Not applicable.
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(d) |
Exhibits:
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99.1 |
By: /s/ Ben Miller |
1. |
General Summary
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1.1 |
Servicing Agreement General Summary. The Sellers and the Purchasers intend this Agreement to amend and
restate that certain “Servicing Agreement,” dated March 23, 2021, for purposes of the Purchase Agreement and wish to set forth herein the terms upon which each Purchaser will, to the fullest extent permitted by applicable Law and the
applicable Corporate Trust Contract, and subject to the applicable provisions of this Agreement, assume the responsibility (as agent of the applicable Seller) to supervise, manage, administer and otherwise discharge the duties of the
applicable Seller in a Corporate Trust Capacity under (a) any Restricted Appointment and (b) any Excluded Appointment (collectively, the “Serviced Appointments”),
and the Purchasers will discharge and perform when due, and indemnify the Sellers for, the Assumed Servicing Liabilities.
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1.2 |
Effective Time. This Agreement shall be effective as of the Closing Date, subject to the consummation of
the Closing in accordance with the Purchase Agreement. In the event of termination of the Purchase Agreement prior to the Closing, this Agreement shall be deemed abandoned and shall automatically terminate and have no further force and
effect. No party shall have any obligation to any other party under this Agreement unless and until the Closing occurs.
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2. |
Interpretation
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2.1 |
Defined Terms. In this Agreement, the following terms have the meanings set forth below:
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(a) |
any Consent required to Transfer such Appointment to the applicable Purchaser without a breach of, or triggering a right of termination under, the relevant Corporate Trust Contracts
for such Appointment;
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(b) |
any authority to Transfer such Appointment to the applicable Purchaser contained in the Corporate Trust Contracts for such Appointment that does not require any Consent described in
clause (a), including provisions that permit or require the Transfer of such Appointment to the applicable Purchaser automatically upon a sale or transfer of all or substantially all of the Business or similar provisions; provided that the applicable Purchaser satisfies all Eligibility Requirements (including an Affiliate of such Purchaser satisfying such Eligibility
Requirements that are allowed to be satisfied by an Affiliate of such Purchaser) and all Administrative Requirements are satisfied;
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(c) |
any statutory, judicial or regulatory procedure or authorization available under applicable Law to Transfer such Appointment to the applicable Purchaser in lieu of the Consents or
authorizations referred to in clauses (a) and (b); or
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(d) |
any such other authority mutually agreed in writing by the applicable Purchaser and the Seller Representative that is permitted under applicable Law and the terms of the Corporate
Trust Contracts for such Appointment.
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(a) |
to the extent that the applicable Corporate Trust Contract requires such role to be performed by a deposit taking institution and to the extent that no Purchaser is eligible to serve
in such role (it being understood that, Purchasers and their Affiliates will not be required to accept and hold deposits from a third party unaffiliated with the Purchasers); or
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(b) |
to the extent that the Purchasers or their Affiliates would be required to fund or originate loans or other extensions of credit (provided that neither this clause (b) nor clause (c)
below shall limit Purchasers’ obligations to satisfy advancing obligations or backup advancing obligations with respect to servicing, master servicing, trustee, bond administration or backup advancing agent roles (or other similar roles) in
accordance with the terms of any applicable Corporate Trust Contract); or
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(c) |
to the extent that the applicable rating agency counterparty criteria are not satisfied so as to allow a Purchaser that is otherwise eligible to serve in such role to assume such
role without causing a rating agency in connection with such transaction to downgrade (or place on watch for downgrade) the rating assigned to the Securities issued pursuant to such Corporate Trust Contract (provided, that (i) this clause (c)
shall not require the Sellers to retain any obligation other than backup advancing or retain any role to the extent not directly related to backup advancing; (ii) notwithstanding anything to the contrary in this Agreement or the Purchase
Agreement, the retention by Sellers of any backup advancing obligations pursuant to this provision shall not be the basis, in and of itself, for treating an Appointment as a Restricted Appointment (rather than as a Transferred Asset); (iii)
if at any time the applicable rating agency counterparty criteria are satisfied so as to allow a Purchaser that is otherwise eligible to serve in such role to assume such role without causing a rating agency in connection with such
transaction to downgrade (or place on watch for downgrade) the rating assigned to the Securities issued pursuant to such Corporate Trust Contract, the backup advancing function will automatically cease to be a Retained Duty hereunder and the
applicable Purchaser shall thereafter be solely responsible for backup
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2.2 |
Rules of Construction; Headings. Unless the express context otherwise requires:
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(a). |
The words “hereof,” “herein”
and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this
Agreement.
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(b). |
The terms defined in the singular have a comparable meaning when used in the plural, and vice versa.
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(c). |
If a word or phrase is defined, the other grammatical forms of such word or phrase have a corresponding meaning.
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(d). |
The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement;
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(e). |
The terms “USD,” “Dollars”
and “$” mean United States Dollars.
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(f). |
Wherever the word “include,” “includes”
or “including” is used in this Agreement (except in the definition of the term “Agreement”), it shall be deemed to be followed by the words “without limitation”.
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(g). |
References to “as of the date hereof” shall mean, in all instances, the date of this Agreement.
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(h). |
References herein to any gender includes each other gender.
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(i). |
References to:
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i. |
a “person” include any individual, firm, company, joint venture, Government Authority, partnership or
unincorporated association (whether or not having separate legal personality); and
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ii. |
a “company” include any company, corporation or body corporate (including a limited liability company),
wherever incorporated or formed.
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(j). |
References to “subsidiary” mean, in respect of any person, any corporation, company (including any
limited liability company), association, partnership, joint venture or other business entity of which 50% or more of the total voting power of the voting stock is at the time owned or controlled, directly or indirectly.
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(k). |
References to “paragraphs,” “Clauses,”
“Sections,” “Recitals” and “Schedules” are to paragraphs, Clauses, Sections and Recitals of, and Schedules to this Agreement.
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(l). |
References to any Law (a) include a reference to the corresponding rules and regulations promulgated thereunder and (b) include a reference to each of them as amended, modified,
supplemented, consolidated, replaced or rewritten from time to time.
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(m). |
References to any section of any Law include any successor to such section.
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(n). |
References to a time of day are, unless otherwise specified, references to New York time.
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(o). |
References to a “party” herein refer to the Purchasers or the Sellers, as applicable.
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(p). |
References to writing shall include any mode of reproducing words in a legible and non-transitory form.
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(q). |
The word “or” shall not be exclusive.
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(r). |
The rule known as the ejusdem generis rule shall not apply, and accordingly, general words
introduced by the word “other” shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things.
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3. |
Duties of the Servicer
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3.1 |
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) Wells Bank hereby engages the Bank Assets Purchaser and (b) Wells 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.
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3.2 |
Acceptance and Performance of Duties under Serviced Appointments. With respect to each Serviced
Appointment of Wells Bank, the Bank Assets Purchaser hereby accepts its engagement as Servicer and agrees to perform and discharge all Serviced Duties consistent with the terms hereof. With respect to each Serviced Appointment of Wells Trust
Company, the Delaware Trust Assets Purchaser (or the Bank Assets Purchaser, if required by Section 3.3) hereby accepts its engagement as Servicer and agrees to
perform and discharge all Serviced Duties consistent with the terms hereof. On the terms and subject to the conditions set forth herein, including Article 8,
effective as of the Closing, the Purchasers agree to discharge and perform when due the Assumed Servicing Liabilities.
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3.3 |
Delaware Trust Assets Purchaser. The Delaware Trust Assets Purchaser shall be the Servicer engaged to
perform and discharge the Serviced Duties in respect of each Appointment of Wells Trust Company that continues to be treated as a Restricted Appointment.
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3.4 |
Delegation of Authority to Act; Specified Actions.
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3.4.1 |
Subject to Section 3.1 and Section
3.2, Wells Bank hereby grants to the Bank Assets Purchaser and Wells Trust Company hereby grants to the Delaware Trust Assets Purchaser (or the Bank Assets Purchaser, if required by Section 3.3), as Servicer hereunder, (a) the full right, power and authority to take any action (including any Specified Action) or to omit to take any action (including any Specified Action); provided that no such action or omission shall be taken
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3.4.2 |
On the Closing Date, Wells Bank shall execute and deliver to the Bank Assets Purchaser one or more legal powers of attorney in favor of the Bank Assets Purchaser and Wells Trust
Company shall execute and deliver to the Delaware Trust Assets Purchaser (or the Bank Assets Purchaser, if required by Section 3.3) one or more legal powers of
attorney in favor of the Delaware Trust Assets Purchaser (or the Bank Assets Purchaser, if required by Section 3.3), in each case, in form and content necessary and
effective to authorize such persons to take any action (including any Specified Action) or to omit to take any action (including any Specified Action) and to execute documents or other papers in the applicable Seller’s place and stead, to the
fullest extent necessary or appropriate for each applicable Purchaser to exercise the powers and perform the duties provided for hereunder, and following the Closing, the Sellers shall use reasonable best efforts to take all other such
actions and execute such other documents as the Purchasers may from time to time reasonably request in order for them to exercise the powers and perform the duties provided for hereunder. For purposes of this Agreement, and without limiting
the grant of authority in the preceding sentence, “Specified Action” means any action (including any determination to take no action) with respect to a Serviced
Appointment, including any action (or determination to take no action) requiring or permitting the exercise of judgment in connection with decisions between or among alternative courses of action, which may include determinations with respect
to the following:
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(a) |
the release or subordination of any lien on assets pledged to secure any Securities;
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(b) |
the sale or other disposition of any assets underlying or pledged to secure any Securities;
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(c) |
the creation or imposition of any Encumbrance (other than Encumbrances created by the Serviced Corporate Trust Contracts) upon any assets underlying or pledged to secure any
Securities;
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(d) |
the acceptance of any substitute collateral pledged for or assets underlying any Securities;
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(e) |
the acceptance of any substitute credit enhancement or liquidity facility (such as a replacement letter of credit, replacement standby bond purchase agreement or a reserve fund to be
substituted for a letter of credit) for any Securities;
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(f) |
the removal of any trustee, custodian or servicer (other than the Sellers) or any agent of a trustee, issuer, seller, servicer, depositor or any other person that is a party to any
Serviced Corporate Trust Contract (whether or not for cause) or to determine whether there is sufficient cause to remove any such person;
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(g) |
any waiver, amendment or modification of the terms of any Serviced Corporate Trust Contract, or any termination thereof;
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(h) |
any defeasance of obligations in respect of any Securities;
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(i) |
any plan of liquidation of a grantor or pass-through trust or other issuer of Securities;
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(j) |
the approval of the amount or kind of indemnity given or Security pledged, for the benefit of the Sellers;
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(k) |
the release of any documents from any custody arrangement established for the direct or indirect benefit of Securityholders;
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(l) |
taking any action that is not prohibited under any applicable Serviced Corporate Trust Contract requiring the exercise of discretion (either in carrying out the action or in deciding
whether to take the action) that is requested by a party to such Serviced Corporate Trust Contract or any Securityholder(s) that is not required to be taken under the terms of such Serviced Corporate Trust Contract;
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(m) |
taking any other action related to a default or the sending of default notices to issuers or Securityholders; or
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(n) |
taking any other action of a nature similar to any of the foregoing.
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3.4.3 |
Nothing contained in this Section 3.4 shall be construed to divest the Sellers of any power or authority
in respect of any Serviced Appointment that applicable Law would not permit the Sellers to divest.
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3.4.4 |
In the case of any action by the Purchasers in respect of a Serviced Appointment that requires related documentation to be executed by the Sellers, the Purchasers shall, at their
sole expense (as between the Sellers and the Purchasers), promptly prepare or cause to be prepared such documentation and shall deliver such documentation to the applicable Seller, and the applicable Seller shall promptly execute and deliver
such documentation to the Purchasers.
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3.4.5 |
Subject to the terms of the Corporate Trust Contracts and applicable Law, the Sellers shall provide such cooperation and assistance as may be reasonably requested by a Purchaser in
connection with demonstrating to a third party the Purchasers’ authority to perform the Serviced Duties and take actions that are authorized under this Agreement.
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3.4.6 |
The Sellers shall promptly notify the Purchasers of any instructions received by the Sellers pursuant to the Corporate Trust Contracts, including from any issuer, depositor, servicer
or other party thereto or any Securityholders. The instructions contemplated by this Section 3.4.6 shall not be instructions of the Sellers for purposes of Section 8.2.
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3.5 |
Servicer’s Standard of Care. In performing Serviced Duties hereunder with respect to any Serviced
Appointment, the Purchasers shall comply with the terms of the applicable Serviced Corporate Trust Contracts, including the standard of care set forth therein (including the standard that applies in the case of an event of default), and shall
perform the Serviced Duties in accordance with the terms of the applicable Serviced Corporate Trust Contracts and this Agreement and in compliance with applicable Law, including, as applicable, Item 1122 of Regulation AB and 12 C.F.R. Part 9,
as though the Purchasers were directly responsible for the Serviced Duties under the applicable Serviced Corporate Trust Contracts. Each of the Purchasers covenants and agrees that it shall perform the Serviced Duties in a manner consistent
with (and with a standard of care no less than) the Purchasers’ practices in servicing its own corporate trust business (including the Business acquired by the Purchasers), and, with respect to each Serviced Appointment, in accordance with
the applicable Serviced Corporate Trust Contract.
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3.6 |
The Purchasers May Act Through Agents. To the extent permitted under the applicable Serviced Corporate
Trust Contracts, the Purchasers may perform any of the Serviced Duties through agents, so long as the Purchasers exercise the degree of care required pursuant to Section 3.5
in selecting and supervising any such agents. The fees and expenses of any such agents shall be the obligations of the Purchasers, and the Sellers shall have no obligation with respect to any such fees or expenses. The Purchasers shall
remain fully obligated and responsible for the performance of all of its obligations under this Agreement, notwithstanding their engagement of any such agents.
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3.7 |
Termination of Serviced Duties. At the time all of the applicable Seller’s obligations under any
Serviced Appointment are terminated and/or of no further force and effect (the “Appointment Expiration Time”), including upon or following any (a) valid termination
or removal of the applicable Seller from all Corporate Trust Capacities with respect to a Serviced Appointment, whether as a Succeeded Appointment or otherwise, or (b) with the prior consent of the applicable Purchaser, resignation by,
assignment by or succession of the applicable Seller from all Corporate Trust Capacities with respect to a Serviced Appointment, whether as a Succeeded Appointment or otherwise, the Purchasers (i) shall have no further Serviced Duties under
this Agreement in connection with such Appointments and (ii) shall not be responsible hereunder for any of the duties, obligations or liabilities related to such Appointments accruing or arising on or after the Appointment Expiration Time, or
for any performance, duties or obligations related thereto arising prior
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3.8 |
Trust Assets. To the extent permitted by applicable Laws and in accordance with the Serviced Corporate
Trust Contracts for Serviced Appointments, Wells Bank hereby appoints the Bank Assets Purchaser and Wells Trust Company hereby appoints the Delaware Trust Assets Purchaser (or the Bank Assets Purchaser, if required by Section 3.3) as custodial agent to receive, hold, deposit, invest and transfer Trust Assets related to the Serviced Appointments of the Wells Bank and Wells Trust Company, respectively.
The Trust Assets shall be transferred after the Closing in accordance with the terms of the applicable Serviced Corporate Trust Contract. Each Purchaser represents and warrants to the applicable Seller that the accounts to which the Trust
Assets will be transferred satisfy all eligible accounts requirements under the terms of the applicable Serviced Corporate Trust Contract and applicable Law.
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3.9 |
Excluded Appointments. With respect to the Excluded Appointments, (a) nothing in this Agreement shall
give the Purchasers the right to control or defend any Proceeding to which any Seller or any of its Affiliates is a party to the extent such Proceedings have resulted in such Appointment being classified as an Excluded Appointment, and,
except as may otherwise be agreed between the parties hereto, the Sellers or their Affiliates shall be responsible for the control, defense and/or settlement any such Proceeding and (b) the Sellers or their Affiliates shall be responsible for
the control, defense and/or settlement of any matters that have resulted in such Appointment being treated as an Excluded Appointment because the Seller Representative reasonably determines that such appointment is required to be excluded
pursuant to applicable Law. Subject to Section 8.2, the Purchasers shall use reasonable best efforts to take any Specified Actions reasonably requested by the
Sellers in connection with the Sellers’ defense of such Proceedings or the settlement thereof; provided that the Sellers shall promptly reimburse the Purchasers for
any reasonable, documented out-of-pocket costs and expenses incurred by the Purchasers in connection with taking any such actions.
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3.10 |
Retained Duties. With respect to all Appointments, the Sellers shall continue to perform the Retained
Duties in accordance with the terms of the applicable Corporate Trust Contracts and this Agreement and in compliance with applicable Law. The Purchasers shall pay to the Sellers compensation for the Retained Duties on commercial terms that
are reasonably agreed between the Purchasers and the Sellers. The parties agree that the Sellers shall not receive any compensation with respect to any Retained Duties described in clause (c) of the definition thereof.
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4. |
Servicer’s Compensation and Expenses
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4.1 |
Compensation. The Purchasers shall receive and retain all fees, compensation, reimbursement for expenses
and other income related to the Serviced Appointments, including accounts receivables outstanding at the Effective Time (the “Fees”) paid to or
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4.2 |
Expenses. The expenses and costs allocable to all aspects of performing Serviced Duties shall be the
responsibility of, paid by and for the account of the Purchasers, except as otherwise provided in this Agreement. The obligation of the Purchasers to pay expenses and costs pursuant to this Section 4.2 will commence on the Closing Date and terminate upon the termination of this Agreement in accordance with Section 7.
Without limiting Purchasers’ obligations to indemnify the Sellers for the Assumed Servicing Liabilities pursuant to Section 8.1, the Purchasers may exercise, in
their reasonable discretion, any rights under a Serviced Corporate Trust Contract related to a Serviced Appointment to any refunds, claims, causes of action, indemnity, contribution, reimbursement rights of set off and rights of recoupment
recoverable from or against any third party, the Trust Assets or otherwise (including rights to insurance proceeds and rights under and pursuant to all warranties, representations and guarantees), in each case, to the extent related to any
Assumed Servicing Liability, including to obtain indemnification, reimbursement or recovery of costs or expenses of the Purchasers from the sponsor, issuer, obligor, depositor or other source of funds available under the terms of any such
Serviced Corporate Trust Contract, and in connection therewith the Sellers agree to file such notices and claims pursuant to such Serviced Corporate Trust Contracts as the Purchasers may reasonably request (and the Sellers shall not
separately exercise such rights, except as directed by the Purchasers, with respect to any Assumed Servicing Liability); provided that, solely with respect to any
Assumed Servicing Liability under the Serviced Appointments, the Purchasers shall promptly reimburse the Sellers for any reasonable, documented out-of-pocket costs and expenses incurred by the Sellers in connection with making any such
filings.
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4.3 |
Sellers’ Costs and Expenses. Except as may otherwise be provided in this Agreement, including Section 8.1, or in the Purchase Agreement, all expenses and costs incurred by the Sellers in connection with the performance of their obligations hereunder shall be the
responsibility of, paid by and for the account of the Sellers.
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5. |
Covenants of the Sellers
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5.1 |
Preservation of Serviced Appointments. Without the prior written consent of the Purchasers, the Sellers
shall not (a) amend or modify any Serviced Corporate Trust Contract with respect to any Serviced Appointment, (b) terminate, or consent to the termination of, any Serviced Corporate Trust Contract, (c) sell, transfer, assign or otherwise
dispose of any Serviced Appointment, or resign (or consent to removal) from any Serviced Appointment, except as permitted pursuant to Section 7.2.1 and except in
the event that the applicable Seller reasonably determines, in consultation with the Purchasers, that such Seller is required to resign from such Serviced Appointment based on a bona fide risk management decision of the Seller Group related to financial crimes compliance or financial crimes related matters, or (d) agree to do any of the foregoing, in each case, except as required to
comply with applicable Law or the requirements of a Government Authority of competent jurisdiction.
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5.2 |
Supplying Information. Each Seller shall deliver or provide access to such records, documents,
information and data to the applicable Purchaser as such Purchaser may reasonably request in order to properly and efficiently perform its obligations hereunder; provided, however, that the Sellers shall not be required to deliver or provide access to any records, documents, information or data
that (a) relates to a part of the business of the Seller Group that is not being serviced by the Purchasers pursuant to this Agreement, (b) in the Sellers’ reasonable determination could violate applicable Law, or could result in the loss or
waiver of any attorney-client, work product or similar legal privilege or (c) in the Sellers’ reasonable determination could violate any contractual obligation of
the Seller Group with respect to confidentiality; provided, however, the Sellers and the Purchasers shall cooperate in good faith to put in place appropriate substitute disclosure arrangements, including, in the case of clause (a), by separating or redacting the portion of the
information that relates to a part of the business of the Seller Group that is not being serviced by the Purchasers pursuant to this Agreement and, in the case of clauses (b) and (c), by using commercially reasonable efforts to obtain the
consent of such third party to such access.
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5.3 |
Notice of Defaults. Each Seller shall promptly notify the applicable Purchaser upon becoming aware of
any default or event of default under the Serviced Corporate Trust Contract relating to any Serviced Appointment, including any failure by the obligor under any Serviced Corporate Trust Contract to make any payment of principal or interest
when due and the receipt of notice under any such agreement that an event has occurred which, with the giving of notice or the lapse of time, or both, would constitute a default, termination or cancellation under such agreement.
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5.4 |
Notice of Litigation. Each Seller shall promptly notify the applicable Purchaser upon becoming aware of
any Proceedings or threatened Proceedings concerning any Serviced Appointment, in each case, excluding Proceedings in servicer-managed mortgage-level
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5.5 |
Notice of Complaints. Each Seller shall promptly notify the applicable Purchaser upon becoming aware of
any complaint concerning any Serviced Appointment made by any party to the Serviced Corporate Trust Contracts, any Securityholder, any Credit Enhancement Provider or any rating agency.
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5.6 |
Notice of Regulatory Action. To the extent permitted by applicable Law, each Seller shall promptly
notify the applicable Purchaser of any action, claim, inquiry, audit, investigation or examination taken or made by a Government Authority that may affect the conduct of a Serviced Appointment and shall consult with such Purchaser as to any
changes in duties or other arrangements hereunder to be taken in connection therewith.
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5.7 |
Notice of Certain Events. Each Seller shall promptly notify the applicable Purchaser upon receipt of
(a) any written claim or allegation asserted by a third party of any noncompliance by another party with any Serviced Corporate Trust Contract relating to any Serviced Appointment, and (b) any written claim by any Government Authority
responsible for the imposition of Taxes against any Trust Assets of any Serviced Appointment for additional Taxes, interest, penalties or additions to Tax, whether relating directly to a Tax liability of the Trust Assets or to an obligation
to file information returns or reports with respect to or in connection with such Trust Asset, its beneficiaries or other third parties.
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5.8 |
Confidentiality. Each Seller shall maintain the confidentiality of records, documents, information and
data made available to it by the Purchasers hereunder in accordance with the Annex B attached hereto.
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5.9 |
Compliance With Law. Each Seller shall comply with all Laws applicable to it insofar as such compliance
is material to its performance of its obligations hereunder. Each Seller shall at all times maintain all necessary Permits in order to be qualified to act as Appointed Trustees under the Serviced Corporate Trust Contracts relating to the
Serviced Appointments.
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5.10 |
Insurance. Each Seller shall at all times maintain insurance coverage against potential liabilities in
connection with the administration of the Serviced Appointments consistent with good custom and practice in the industry.
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6. |
Covenants of the Purchasers
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6.1 |
Preservation of Sellers’ Rights of Recovery. Without the prior written consent of the Sellers, the
Purchasers shall not amend or modify or grant a waiver under (or agree to amend or modify or grant a waiver under) any Serviced Corporate Trust Contract with respect to any Serviced Appointment in a manner that would materially reduce or
materially alter the rights of the Sellers to indemnification, reimbursement or recovery for any costs and expenses incurred by the Sellers or their Affiliates or agents (other than the Purchasers in their capacity as Servicer hereunder) from
the sponsor, issuer, obligor, depositor or other source of funds available under the terms of any such Serviced Corporate
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6.2 |
Supplying Information. Each Purchaser shall deliver such records, documents, information and data to the
applicable Seller as such Seller may reasonably request in order to properly and efficiently perform such Seller’s obligations hereunder or under any Serviced Corporate Trust Contract with respect to any Serviced Appointment (for clarity,
including in connection with the Seller Group’s governance and reporting mechanisms) or to defend, prosecute, appeal, pursue or cooperate with any judicial, arbitral or regulatory proceeding, audit, claim or investigation to which any Seller
or any of its Affiliates is a party with respect to any Serviced Appointment; provided, however, that the Purchasers shall not be required to deliver any records, documents, information or data that (a) in the Purchasers’ reasonable determination could violate applicable Law, or could result in the
loss or waiver of any attorney-client, work product or similar legal privilege or (b) in the Purchasers’ reasonable determination could violate any contractual
obligation of the Purchaser Group with respect to confidentiality; provided, however, that
with respect to clauses (a) and (b), the Sellers and the Purchasers shall cooperate in good faith to put in place appropriate substitute disclosure arrangements, including by using commercially reasonable efforts to obtain the
consent of such third party to such access.
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6.3 |
Notice of Defaults. Each Purchaser shall promptly notify the applicable Seller upon becoming aware of
any default or event of default under the Serviced Corporate Trust Contracts relating to any Serviced Appointment, including any failure by the obligor under any Serviced Corporate Trust Contract to make any payment of principal or interest
when due and the receipt of notice under any such agreement that an event has occurred which, with the giving of notice or the lapse of time, or both, would constitute a default, termination or cancellation under such agreement.
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6.4 |
Notice of Litigation. Each Purchaser shall promptly notify the applicable Seller upon becoming aware of
any Proceedings or threatened Proceedings concerning any Serviced Appointment (whether or not the Sellers are named in such Proceedings), in each case, excluding Proceedings in servicer-managed mortgage-level litigation with respect to
residential mortgage-backed securities transactions. Notices pursuant to this Section 6.4 will be delivered to the notice recipient designated on Annex B.
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6.5 |
Notice of Complaints. Each Purchaser shall promptly notify the applicable Seller upon becoming aware of
any complaint concerning any Serviced Appointment made by any party to the Serviced Corporate Trust Contract, any Securityholder, any Credit Enhancement Provider or any rating agency.
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6.6 |
Notice of Regulatory Action. To the extent permitted by applicable Law, each Purchaser shall promptly
notify the applicable Seller of any action, claim, inquiry, audit, investigation or examination taken or made by a Government Authority that may affect the conduct of a
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6.7 |
Notice of Certain Events. Each Purchaser shall promptly notify the applicable Seller upon receipt of
(a) any written claim or allegation asserted by a third party (including any ratings agency) of any noncompliance by another party (including such Purchaser) with any Serviced Corporate Trust Contract relating to any Serviced Appointment, and
(b) any written claim by any Government Authority responsible for the imposition of Taxes against any Trust Assets of any Serviced Appointment for additional Taxes, interest, penalties or additions to Tax, whether relating directly to a Tax
liability of the Trust Assets or to an obligation to file information returns or reports with respect to or in connection with such Trust Asset, its beneficiaries or other third parties.
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6.8 |
Confidentiality. Each Purchaser shall maintain the confidentiality of records, documents, information
and data made available to it by the Sellers hereunder in accordance with the Annex B attached hereto.
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6.9 |
Compliance With Law. Each Purchaser shall comply with all Laws applicable to it insofar as such
compliance is material to its performance of its obligations hereunder. As applicable, each Purchaser and its Affiliates shall at all times maintain all necessary Permits in order to be qualified to act hereunder as a Servicer and perform
and discharge all Serviced Duties consistent with the terms hereof. For the avoidance of doubt, without limiting the Purchasers’ obligations under the Purchase Agreement, this Section
6.9 shall not require Purchasers to obtain any new Permits.
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6.10 |
Insurance. Each Purchaser shall at all times maintain insurance coverage against potential liability in
connection with the administration of the Serviced Appointments consistent with good custom and practice in the industry.
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7. |
Termination; Resignation and Successions
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7.1 |
Final Termination. Unless terminated at an earlier date by mutual agreement of the parties hereto, this
Agreement shall terminate upon the first to occur of the following: (a) the last Serviced Appointment is terminated, matured or expired under the terms of the applicable Serviced Corporate Trust Contract and all Trust Assets in respect
thereof have been fully distributed, (b) the last Serviced Appointment is Transferred to the applicable Purchaser, (c) the applicable Seller has resigned from the last Serviced Appointment if permitted under Section 7.2 below or (d) the applicable Seller is removed from appointment or the applicable Seller’s appointment is terminated with respect to the last Serviced Appointment in accordance with
this Agreement, the applicable Serviced Corporate Trust Contract or any other agreement between the parties hereto entered into on or prior to the date hereof. Upon termination of this Agreement in accordance with this Section 7.1, each party’s further rights and obligations hereunder, other than the provisions of Section
8 and Section 9, shall terminate and be of no further force and effect and no party shall have any liability hereunder, except that neither the
Sellers nor the Purchasers shall be relieved or released from any liabilities or damages arising out of its breach of any provision of this Agreement prior to termination.
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7.2 |
Other Terminations.
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7.2.1 |
Partial Terminations by the Purchasers. In the event so instructed by the Purchasers in writing after
the Closing Date and at the Purchasers’ sole expense, each Seller shall execute documents prepared by the Purchasers and reasonably acceptable to such Seller resigning or appointing a successor Appointed Trustee under any Serviced Appointment
for which such Seller acts as Appointed Trustee (other than with respect to any Serviced Appointment that is an Excluded Appointment), and shall reasonably cooperate, at the Purchasers’ sole expense, as instructed by the Purchasers, in
finding a qualified successor Appointed Trustee, including executing any documents prepared by the Purchasers in connection with the application to a court of competent jurisdiction to appoint a successor Appointed Trustee.
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7.2.2 |
Clean-Up Terminations by the Sellers.
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7.2.3 |
Effect of Partial Terminations. Upon the earlier to occur of (a) the assignment of any Serviced
Appointment to the Purchasers or the effectiveness of the appointment of another person as the Appointed Trustee under the terms of the Serviced Corporate Trust Contract related to such Serviced Appointment, or (b) the termination in
accordance with its terms of any Serviced Corporate Trust Contract and the resulting termination of the Sellers’ duties as Appointed Trustee thereunder, the Purchasers’ duties and obligations hereunder with respect to such Serviced
Appointment shall terminate; provided, however, that nothing
in this Section 7.2.3 shall affect the Purchasers’ or Sellers’ obligations under Article 8
with respect to any such Serviced Corporate Trust Contract or Serviced Appointment.
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8. |
Indemnity
|
8.1 |
Indemnification by the Purchasers. Each of the Purchasers, severally and jointly, shall indemnify,
defend and hold harmless, without duplication, each Seller and each of the Sellers’ Affiliates, and each of their respective officers, employees, agents and representatives (collectively, the “Seller Indemnified Parties”), from and against all Losses
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8.2 |
Indemnification by the Sellers. Each of the Sellers, severally and jointly, shall indemnify, defend and
hold harmless, without duplication, the Purchasers, each of the Purchasers’ Affiliates and each of their respective officers, employees, agents and representatives (collectively, the “Purchaser Indemnified Parties,” and together with the Seller Indemnified Parties, the “Indemnified Parties”), from and against all Losses
that such Purchaser Indemnified Party may at any time suffer or incur, or become subject to, that, directly or indirectly, arise out of or relate to (a) any failure by the Sellers to perform their obligations under this Agreement in
accordance with the terms hereof, or any other breach or violation by the Sellers of the terms hereof, (b) the exercise by the Sellers of any right, power or discretion in relation to a Serviced Appointment, including (i) with respect to any
Retained Duties (except to the extent the Sellers were acting in accordance with the instructions of the Purchasers in performing the Retained Duties or were acting as backup advancing agent pursuant to clause (c) of the definition of
“Retained Duty”; provided that Sellers shall indemnify the Purchaser Indemnified Parties from and against all Losses that such Purchaser Indemnified Party may at any time suffer or incur, or become subject to, that, directly or indirectly,
arise out of or relate to any Losses arising out of or relate to the Sellers’ negligent failure to make a backup advance as required pursuant to such Retained Duty) or (ii) with respect to any Excluded Appointment, the matters for which
Seller and its Affiliates are responsible pursuant to Section 3.9 and (c) any action taken or omitted to be taken by the applicable Purchaser pursuant to and in accordance with a written direction given by any Seller (other than pursuant to Section 3.4.6), including any Specified Action taken (or omitted to be taken) by the Purchasers at the direction of the Sellers pursuant to Section 3.9, in each case of this clause (c) except to the extent the applicable Purchaser was negligent in taking or omitting to take such action.
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8.3 |
Claims Procedure.
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8.3.1 |
Notification by the Indemnified Party. If any Indemnified Party becomes aware of any fact,
matter or circumstance that has given or may reasonably be expected to give rise to a claim for indemnification under this Article 8, the Indemnified Party shall at
its own expense promptly (and in no event later than ten (10) Business Days after the applicable Indemnified Party becoming so aware) notify the Indemnifying Party in writing of any claim in respect of which
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8.3.2 |
Cooperation by the Indemnified Party. The Indemnified Party shall reasonably cooperate with
and assist the Indemnifying Party in determining the validity of any claim for indemnity by the Indemnified Party and in defending against a Third-Party Claim. In connection with any fact, matter, event or circumstance that may give rise to
a claim against any Indemnifying Party under this Agreement, the Indemnified Party shall ensure that each relevant member of the Indemnified Party’s Group: (i) shall preserve all material evidence relevant to the claim to the extent within
the control of the Indemnified Party’s Group, (ii) shall allow the Indemnifying Party to investigate the fact, matter, event or circumstance alleged to give rise to such claim and whether and to what extent any amount is payable in respect of
such claim, and (iii) shall (at the Indemnified Party’s expense) disclose to the Indemnifying Party all material of which it is aware which relates to the claim and provide, and procure that any other relevant members of the Indemnified
Party’s Group shall provide (at the Indemnified Party’s expense), all such information and assistance, including reasonable access to premises and personnel, and the right to examine and copy or photograph any assets, accounts, documents and
records, as the Indemnifying Party may reasonably request, subject to the Indemnifying Party agreeing in such form as the Indemnified Party may reasonably require to keep all such information confidential and to use it only for the purpose of
investigating and defending the claim in question; provided that the foregoing shall not require the Indemnified Party to disclose any documents or
information that may be reasonably expected to result in a violation of applicable Law or the loss or waiver of any attorney-client, work product or
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8.3.3 |
Assumption of Defense of a Third-Party Claim. Upon receipt of a notice of a claim for
indemnity from an Indemnified Party pursuant to Section 8.3.1 in respect of a Third-Party Claim, the Indemnifying Party may, by notice to the Indemnified Party
delivered within twenty (20) Business Days of the receipt of notice of such Third-Party Claim, assume the defense and control of any Third-Party Claim,
with its own counsel and at its own expense, but shall allow the Indemnified Party a reasonable opportunity to participate in the defense of such Third-Party Claim with its own counsel and at its own expense (subject to the Indemnifying Party
agreeing in writing that it is obligated to indemnify the Indemnified Party pursuant to, and subject to the limitations set forth in, this Article 8);provided,
however, the Indemnifying Party shall not be entitled to assume the defense (unless otherwise agreed to in writing by the Indemnified Party) of any criminal or regulatory action or claim, any claim seeking material non-monetary remedies, or
any claim where the indemnifiable amount, when taken together with all other outstanding claims for indemnification, would reasonably be expected to exceed twice the maximum amount for which the Indemnifying Party can be liable pursuant to
this Article 8. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed), consent to a settlement, compromise or discharge of, or
the entry of any judgment arising from, any Third-Party Claim, unless such settlement, compromise, discharge or entry of any judgment (i) does not involve any finding or admission of any violation of Law or admission of any wrongdoing by the
Indemnified Party and (ii) contains, as a condition of any settlement, compromise, discharge, entry of judgment (if applicable), or other resolution, an unconditional release of each Indemnified Party from any and all Liabilities in respect
of such Third-Party Claim.
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8.3.4 |
The Indemnified Party shall not settle, compromise or consent to the entry of any judgment with respect to any claim or demand for which it is seeking indemnification from the
Indemnifying Party or admit to any liability (or to actions or omissions which could reasonably be expected to result in such liability) with respect to such claim or demand without the prior written consent of the Indemnifying Party (which
consent shall not be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary contained in this Article 8, no Indemnifying Party
shall have any liability under this Article 8 for any Losses arising out of or in connection with any Third-Party Claim that is settled or compromised by an
Indemnified Party without the consent of such Indemnifying Party.
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8.3.5 |
For purposes of this Article 8, (a) the applicable Purchaser shall act on behalf of any Purchaser
Indemnified Party and (b) the applicable Seller shall act on
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8.4 |
Mitigation of Losses. The Indemnified Party shall procure that all reasonable steps are taken and all
reasonable assistance is given (including the taking of any actions reasonably requested by an Indemnifying Party) to avoid or mitigate any Losses, which in the absence of mitigation might give rise to or increase a Loss in respect of any
claim under this Article 8. Without limiting the foregoing, the Purchasers and the Sellers shall seek and collect any indemnification, reimbursement or other
recovery of Losses that may be available under any applicable Corporate Trust Contract in accordance with Section 4.2 and the applicable provisions of the Purchase
Agreement.
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8.5 |
No Duplication. The remedies provided in this Article 8 shall not be duplicative of any remedy available under the indemnification provisions of the Purchase Agreement.
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9. |
Additional Terms
|
9.1 |
Notices.
|
9.1.1 |
Any notice, request, claim, demand or other communication in connection with this Agreement (each, a “Notice”)
shall be:
|
(a) |
in writing in English; and
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(b) |
delivered by hand, registered mail or by courier using an internationally recognized courier company, or transmitted by email.
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9.1.2 |
Notices to the Sellers shall be delivered to the notice recipients designated on Annex B.
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9.1.3 |
Notices to the Purchasers shall be delivered to the notice recipients designated on Annex B.
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9.1.4 |
A Notice shall be effective upon receipt and shall be deemed to have been received:
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(a) |
if delivered by hand, registered post or courier, at the time of delivery; or
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(b) |
if sent by email, upon confirmation by telephone, fax or email from the receiving party (or its legal counsel) of receipt thereof (provided that if such confirmation is made by email, such confirmation shall only be deemed to have been made if such confirmatory email makes specific reference to this Section 9.1), excluding, however, any answer or confirmation automatically generated by electronic means (such as out-of-office replies).
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9.2 |
Further Assurances. Each of the parties shall from time to time execute, or procure the execution of,
such documents and instruments as any party may reasonably require to implement the terms and provisions of this Agreement.
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9.3 |
Confidential Supervisory Information. Notwithstanding any other provision of this Agreement, no
disclosure, representation or warranty shall be made (or other action taken) pursuant to this Agreement that would involve the disclosure of confidential supervisory information (including confidential supervisory information as defined in 12
C.F.R. § 261.2(c)) of a Government Authority by any party to this Agreement to the extent prohibited by applicable Law. To the extent legally permissible, appropriate substitute disclosures or actions shall be made or taken under
circumstances in which the limitations of the preceding sentence apply.
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9.4 |
Sale of Trust Business. The Purchasers shall be permitted to assign this Agreement to any person
acquiring all or substantially all of the corporate trust business of the Purchasers (or all or substantially all of the assets thereof or any entities owning such business or assets), whether structured as an asset sale, merger, change of
control or otherwise, subject to the prior consent of the Sellers; provided, that such consent shall not be unreasonably withheld, conditioned or delayed if the
Sellers have reasonable assurance that such person acquiring all or substantially all of the corporate trust business (a) will have (either by itself or through its Affiliates) credit ratings, capitalization and creditworthiness no less than
those of Purchasers (taking into account the guaranty provided by Guarantor pursuant to Section 9.5), (b) will provide a level of service quality no less than the
service quality provided by the Purchasers, (c) will pose no greater regulatory or reputational risks than the Purchasers and (d) will agree to use reasonable best efforts to obtain the Authorizations required to Transfer the Serviced
Appointments to such person on terms and conditions that are no less favorable to the Sellers than the obligations of the Purchasers set forth in the Purchase Agreement with respect to such Transfers.
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9.5 |
Guaranty.
|
9.5.1 |
Guarantor, in order to induce the Sellers to execute and deliver this Agreement, hereby absolutely, unconditionally and irrevocably, as primary obligor and not merely as surety,
guarantees each and every covenant, agreement and other obligation of the Purchasers, including (i) the due, punctual and full payment of all amounts due and payable by the Purchasers to the Sellers under or arising out of this Agreement and
(ii) the due and punctual performance, when and as due, of all obligations of the Purchasers under or arising out of this Agreement, in each case, subject to any and all limitations under this Agreement and the
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9.5.2 |
This Guaranty is a guarantee of payment and performance, and not of collection, and Guarantor acknowledges and agrees that this Guaranty is full and unconditional, and no release or
extinguishment of the Purchasers’ liabilities (other than in accordance with the terms of this Agreement or the Purchase Agreement), whether by decree in any bankruptcy Proceeding or otherwise, will affect the continuing validity and
enforceability of this Guaranty. The Purchasers hereby waives any right to require the Sellers, as a condition of payment or performance by the Purchasers of any obligations of the Purchasers hereunder, to proceed against the Purchasers or
pursue any other remedy whatsoever in the event that the Purchasers fails to perform its obligations hereunder.
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9.5.3 |
Guarantor represents and warrants to the Sellers that (i) Guarantor is duly organized and validly existing under the Laws of Australia, and has full corporate power and authority to
execute and deliver this Guaranty, and to perform its obligations hereunder, (ii) the execution, delivery and performance by Guarantor have been approved by the requisite corporate action, (iii) no other action on the part of Guarantor (or
its equityholders) is necessary to authorize the execution, delivery and performance by Guarantor of this Guaranty, and (iv) this Guaranty has been duly executed and delivered by Guarantor and, assuming the due authorization, execution and
delivery of this Agreement by the parties hereto, will be legal, valid and binding obligations of Guarantor enforceable in accordance with its terms, subject to the Bankruptcy and Equity Exception.
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9.6 |
Assignment. Except as otherwise expressly provided in this Agreement, no party may, without the prior
written consent of the other party, assign, grant any security interest over, hold on trust or otherwise transfer the benefit of the whole or any part of this Agreement. Any attempted assignment in violation of this Section 9.6 shall be null and void. This Agreement shall be binding upon, shall inure to the benefit of, and shall be enforceable by the parties hereto and their successors and permitted
assigns.
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9.7 |
No Third-Party Beneficiaries. Except as provided in Article 8, this Agreement is for the sole benefit of the parties hereto and their permitted assigns and nothing herein expressed or implied shall give or be construed to give to any person, other than the parties
hereto and such assigns, any legal or equitable rights hereunder.
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9.8 |
Whole Agreement
|
9.8.1 |
This Agreement, the Purchase Agreement and other Ancillary Agreements contain the whole agreement between the parties relating to the subject matter of this Agreement to the
exclusion of any terms implied by Law which may be
|
9.8.2 |
Each party acknowledges that it has not been induced to enter this Agreement by any representation, warranty, assurance, commitment, statement or undertaking not expressly
incorporated into this Agreement and agrees that it will not contend to the contrary.
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9.8.3 |
So far as is permitted by Law, other than in the case of actual or intentional fraud by the Sellers, the Purchasers agree and acknowledge that their only right and remedy in relation
to any provision of this Agreement shall be for breach of the terms of this Agreement pursuant to the procedures and subject to the limitations set forth herein to the exclusion of (i) any right to rescind this Agreement and (ii) any and all
other rights and remedies (including those in tort or arising under statute).
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9.8.4 |
In the event of any inconsistency between the Purchase Agreement and this Agreement, the provisions of the Purchase Agreement shall govern and control.
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9.9 |
Governing Law; Injunctive Relief; Consent to Jurisdiction; Waiver of Trial by Jury.
|
9.9.1 |
THIS AGREEMENT AND ANY NON-CONTRACTUAL OBLIGATIONS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK (WITHOUT REGARD TO ANY PRINCIPLES OF CONFLICTS OF LAW THAT WOULD HAVE THE EFFECT OF GIVING EFFECT TO THE LAWS OF ANOTHER JURISDICTION).
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9.9.2 |
Each party acknowledges that it would be impossible to determine the amount of damages that would result from any breach of any of the provisions of this Agreement and that the
remedy at Law for any breach, or threatened breach, of any of such provisions would likely be inadequate and, accordingly, agrees that each other party, in addition to any other rights or remedies which it may have, shall be entitled to seek
such equitable and injunctive relief as may be available from any court of competent jurisdiction to compel specific performance of, or restrain any party from violating, any of such provisions. In connection with any action or Proceeding for
equitable and injunctive relief permitted hereunder, each party hereby waives the claim or defense that a remedy at Law alone is adequate and, to the maximum extent permitted by Law, agrees to have each provision of this Agreement
specifically enforced against it, without the necessity of posting bond or other security against it, and consents to the entry of equitable and injunctive relief against it enjoining or restraining any breach or threatened breach of such
provisions of this Agreement.
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9.9.3 |
Each of the parties hereto (i) consents to submit itself to the personal jurisdiction of the Federal District Court for the Southern District of New York or the courts of the State
of New York sitting in the Borough of Manhattan in connection with any dispute that arises out of this Agreement or the Sale, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for
leave from any such court and (iii) agrees that it will not bring any action relating to this Agreement (or any other agreement contemplated hereby) in any court other than the Federal District Court for the Southern District of New York or
the courts of the State of New York sitting in the Borough of Manhattan unless venue would not be proper under rules applicable in such courts. Notwithstanding the previous sentence, a party may commence any such action in a court other than
the above-named courts solely for the purpose of enforcing an order or judgment issued by one of the above-named courts.
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9.9.4 |
EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT (OR ANY OTHER AGREEMENT CONTEMPLATED HEREBY).
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9.10 |
Counterparts. This Agreement shall be valid, binding and enforceable against a party only when executed
by an authorized individual on behalf of the party by means of (a) an electronic signature that complies with the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act,
or any other relevant and applicable electronic signatures law; (b) an original manual signature; or (c) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for
all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. This Agreement may be executed in one or more counterparts, including via facsimile or email (or any other electronic means such
as “.pdf” or “.tiff” files), each of which shall be deemed an original, and all of which shall constitute one and the same Agreement.
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9.11 |
Headings. The heading references herein are for convenience purposes only, and shall not be deemed to
limit or affect any of the provisions hereof.
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9.12 |
Severability. The provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any person or any circumstance, is invalid or unenforceable,
(a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and
the application of such provision to other persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the
application thereof, in any other jurisdiction.
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9.13 |
Amendments. Any provision of this Agreement may be amended if, and only if, such amendment is in writing
and signed by and on behalf of the Seller Representative and the Purchasers.
|
1) |
To the extent that the Purchaser is required pursuant to the terms of the applicable Corporate Trust Contract to make any backup advance and has failed to do so in accordance with
the terms hereof, the Seller shall make such backup advance when and as required by the terms of the applicable Corporate Trust Contract. Upon making any such backup advance, the Seller shall be entitled to reimbursement of any such backup
advance from the applicable trust or other securitization vehicle, with any applicable interest thereon, in the same manner and priority as the Purchaser would have been entitled under the applicable Corporate Trust Contract had it made such
backup advance.
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2) |
The Purchaser shall notify the Seller via email to the notice recipient designated on Annex B immediately once the Purchaser becomes aware of an obligation to make any advance under
a Corporate Trust Contract. If the Purchaser fails to make any such required advance, the Purchaser shall additionally notify the Seller of this failure via email to the notice recipient designated on Annex B (x) with respect to a servicing
advance, promptly after such failure and (y) with respect to a P&I advance, no later than 10:00 a.m. New York City time on the related distribution date, and in each case shall immediately furnish to the Seller any information requested
by the Seller to make a determination regarding recoverability thereof. Notwithstanding anything herein to the contrary, the Seller shall not be required to make any advance that it determines would, if made, constitute a nonrecoverable
advance. The Seller shall be entitled to conclusively rely on the Purchaser’s, or any applicable servicer’s determination that an advance is or would be a nonrecoverable advance. Advances required to be made by the Seller hereunder shall be
made no later than: (x) with respect to a required servicing advance, within ten (10) Business Days following the Seller’s receipt of the above-required notice of the Purchaser’s failure along with information requested by the Seller to make
a determination regarding recoverability thereof, and (y) with respect to a required P&I advance, by 1:00 p.m., New York City time, on the related distribution date. The Seller’s role and obligations hereunder do not eliminate or reduce
the Purchaser’s obligations to make any advances pursuant to the applicable Corporate Trust Contract.
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3) |
The Seller shall be entitled to all of the same rights, protections, immunities, and indemnities that the Purchaser is entitled to under the applicable Corporate Trust Contract, as
if it were the Purchaser.
|
I. |
DEFINITIONS
|
A. |
Capitalized Terms Generally. Capitalized terms used in this Annex A and not otherwise defined herein
have the meanings assigned to them in the Agreement.
|
B. |
Defined Terms. In this Annex A, the following terms have the meanings set forth below:
|
II. |
TERM AND TERMINATION
|
A. |
Termination Upon Major Default.
|
B. |
Insolvency.
|
C. |
Required Termination. If a court of competent jurisdiction or Government Authority issues a final
non-appealable order or judgment holding that all or part of the Agreement or all or a part of the Services offered under the Agreement are in violation of any Law (each, a “Judgment”),
the affected party has the right to terminate those portions of the Agreement that are part of such Judgment by providing the other party with written notice of its intent to terminate such portions of the Agreement, and subject to Section II.E, such termination of such portions of the Agreement will be effective as of the date specified in such notice.
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D. |
Obligations upon Termination.
|
E. |
Survival of Certain Provisions. Upon termination of the Agreement, (1) the rights and obligations of the
parties under the Agreement shall survive until the applicable Transition Effective Dates, (2) Article 8 of the Agreement shall survive for any Losses indemnifiable thereunder that were incurred prior to the applicable Transition Effective
Date until such time as any claim for indemnification under the Agreement with respect to such Losses is finally resolved, and (3) Article 9 of the Agreement, Section II
(including the obligation of the Sellers to make any termination payment owed hereunder) shall survive termination of the Agreement. In addition, all rights of action arising from or related to the Agreement that accrue prior to such
termination (or the applicable Transition Effective Date), and any remedies for such claims, both legal and equitable, will survive such termination.
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