comply with Section 10.11; (b) Custodian
is adjudged bankrupt or insolvent; (c) a receiver or other public officer takes
charge of Custodian or its property; or (d) Custodian otherwise becomes
incapable of acting.
If Custodian resigns or is removed or if a vacancy exists
in the office of Custodian for any reason (Custodian in such event being
referred to herein as the retiring Custodian), Buyer shall promptly appoint a
successor Custodian.
A successor Custodian shall deliver a written acceptance
of its appointment to the retiring Custodian and to Customer, and Buyer.
Thereupon the resignation or removal of the retiring Custodian shall become
effective, and the successor Custodian shall have all the rights, powers and
duties of Custodian under this Agreement.
The successor Custodian shall mail a
notice of its succession to Buyer and each Purchaser Representative.
The
retiring Custodian shall promptly transfer all Warehouse Assets or other
property held by it as Custodian pursuant hereto to the successor Custodian.
All out-of-pocket expenses of Custodian incurred in connection with such
transfer (other than a transfer upon a removal of Custodian for cause) shall be
reimbursed by Customer.
If a successor Custodian does not take office within
sixty (60) days after the retiring Custodian resigns or is removed, the retiring
Custodian, Buyer may petition any court of competent jurisdiction for the
appointment of a successor Custodian.
Notwithstanding the replacement of Custodian pursuant to this Section 10.8,
Customer's and Servicer's obligations under Section 10.7 shall continue for the
benefit of the retiring Custodian.
Custodian shall not be liable for the acts
or omissions of any successor Custodian.
SECTION 10.9.
SUCCESSOR CUSTODIAN BY MERGER.
IF
CUSTODIAN CONSOLIDATES WITH, MERGES OR CONVERTS INTO, OR TRANSFERS ALL OR
SUBSTANTIALLY ALL ITS CORPORATE TRUST BUSINESS OR ASSETS TO, ANOTHER CORPORATION
OR BANKING ASSOCIATION, THE RESULTING, SURVIVING OR TRANSFEREE CORPORATION
WITHOUT ANY FURTHER ACT SHALL BE THE SUCCESSOR CUSTODIAN; PROVIDED, THAT SUCH
CORPORATION OR BANKING ASSOCIATION SHALL BE OTHERWISE QUALIFIED AND ELIGIBLE
UNDER SECTION 10.11.
SECTION 10.10.
APPOINTMENT OF CO-CUSTODIAN OR SEPARATE
CUSTODIAN.
(A)
NOTWITHSTANDING ANY OTHER PROVISIONS OF
THIS AGREEMENT, AT ANY TIME, FOR THE PURPOSE OF MEETING ANY LEGAL REQUIREMENT OF
ANY JURISDICTION IN WHICH ANY PART OF THE WAREHOUSE ASSETS MAY AT THE TIME BE
LOCATED, CUSTODIAN SHALL HAVE THE POWER AND MAY EXECUTE AND DELIVER ALL
INSTRUMENTS TO APPOINT ONE OR MORE PERSONS TO ACT AS A CO-CUSTODIAN OR
CO-CUSTODIANS, OR SEPARATE CUSTODIAN OR SEPARATE CUSTODIANS, OF ALL OR ANY PART
OF THE WAREHOUSE ASSETS, AND TO VEST IN SUCH PERSON OR PERSONS, IN SUCH CAPACITY
AND FOR THE BENEFIT OF BUYER, SUCH TITLE TO THE WAREHOUSE ASSETS, OR ANY PART
HEREOF, AND, SUBJECT TO THE OTHER PROVISIONS OF THIS SECTION 10.10, SUCH POWERS,
DUTIES, OBLIGATIONS, RIGHTS AND TRUSTS AS CUSTODIAN MAY CONSIDER NECESSARY OR
DESIRABLE.
NO CO-CUSTODIAN OR SEPARATE CUSTODIAN HEREUNDER SHALL BE REQUIRED TO
MEET THE TERMS OF ELIGIBILITY AS A SUCCESSOR CUSTODIAN UNDER SECTION 10.11.
(B)
EVERY SEPARATE CUSTODIAN AND CO-CUSTODIAN
SHALL, TO THE EXTENT PERMITTED BY LAW, BE APPOINTED AND