Backup Servicer. If a Servicer Default shall occur, then the Lender may, by notice to the Servicer, the Borrower and the Backup Servicer, terminate all of the rights and obligations of the Servicer under this Agreement. Upon the delivery to the Servicer of such notice, all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Assets or otherwise, shall pass to and be vested in the Backup Servicer pursuant to and under this Section (unless the Lender shall have appointed a different successor Servicer pursuant to Section 6.01 hereof or the Backup Servicer is unable to act as Servicer and a successor is appointed as provided in the fourth paragraph of this Section 6.13), and, without limitation, the Backup Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination or to perform the duties of the Servicer under this Agreement including, without limitation, to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06. The Servicer agrees to cooperate with the Lender and the Backup Servicer in effecting the termination of the Servicer’s responsibilities and rights hereunder, including, without limitation, providing notification to the Obligors of the assignment of the servicing function, providing notification to the Lender’s Bank of the Backup Servicer’s right to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06, providing the Backup Servicer, at the Servicer’s expense, with all records, in electronic or other form, reasonably requested by the Backup Servicer, in such form as the Backup Servicer may reasonably request and at such times as the Backup Servicer may reasonably request, to enable the Backup Servicer to assume the servicing functions hereunder and the transfer to the Backup Servicer for administration by it of all cash amounts which at the time should be or should have been deposited by the Servicer in the Collection Account or thereafter be received by the Servicer with respect to the Pledged Receivables. Additionally, the Servicer agrees to cooperate in providing, at the Servicer’s expense, the Backup Servicer as successor Servicer, with reasonable access (including at the premises of the Servicer) to Servicer’s employees and any and all books, records or other information reasonably requested by it to enable the Backup Servicer, as successor Servicer, to assume the servicing functions hereunder. Neither the Lender nor the Backup Servicer shall be deemed to have breached any obligation hereunder as a result of a failure to make or delay in making any distribution as and when required hereunder caused by the failure of the Servicer to remit any amounts received by it or to deliver any documents held by it with respect to the Pledged Assets. The Backup Servicer (including as successor Servicer) undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. The Active Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) on and after the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. The Standby Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) prior to the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. Any obligations of LEAF Financial under any Transaction Document other than in its capacity as Servicer shall continue in effect notwithstanding LEAF Financial’s termination as Servicer. On and after the time the Servicer receives a notice of termination pursuant to this Section 6.13, the Backup Servicer shall be (and the Backup Servicer hereby agrees to be) the successor in all respects to the Servicer in its capacity as Servicer under this Agreement and the transactions set forth or provided for herein and shall have all the rights and powers and be subject thereafter to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof; provided, however, that any failure to perform such duties or responsibilities caused by the Servicer’s failure to provide information required by this Section 6.13 shall not be considered a default by the Backup Servicer hereunder; provided, further, however, that the Backup Servicer, as successor Servicer, shall have (i) no liability with respect to any obligation which was required to be performed by the terminated Servicer prior to the date that the Backup Servicer becomes the successor to the Servicer or any claim of a third party based on any alleged action or inaction of the terminated Servicer, (ii) no obligation to perform any repurchase or advancing obligations, if any, of the Servicer, (iii) no obligation to pay any taxes required to be paid by the Servicer (provided that the Backup Servicer shall pay any income taxes for which it is liable), (iv) no obligation to pay any of the fees and expenses of any other party to the transactions contemplated hereby, and (v) no liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer, including the original Servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer, are expressly limited to those arising on account of its failure to act in good faith and with reasonable care under the circumstances. In addition, the Backup Servicer shall have no liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, the Lender may, or shall, if the Backup Servicer is unable to so act, appoint itself, or appoint any other established servicing institution acceptable to the Lender in its sole discretion, as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. Pending appointment of a successor to the Servicer hereunder, and after the Lender notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer (or the Lender if there is no Backup Servicer) shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the Lender may make such arrangements for the compensation of such successor out of payments on Pledged Receivables as it and such successor shall agree; provided, however, that, except as provided herein, no such compensation shall be in excess of that permitted the Servicer hereunder, unless (i) agreed to by the Lender and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the Lender and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The parties hereto agree that in no event will the Backup Servicer be liable for any special, indirect or consequential damages. The Backup Servicer hereby agrees that it shall, and shall take all actions necessary so that it shall at all times be ready to, assume all the rights and powers and all of the responsibilities, obligations and duties of the Servicer hereunder, within ten (10) Business Days of receiving from the Lender a notice requesting the Backup Servicer to do so. Notwithstanding anything contained in this Agreement to the contrary, absent specific knowledge by any Lyon Financial Services, Inc. account representative assigned to this transaction from time to time, or written notice detailing specific Errors (as defined below) or other deficiencies, Lyon Financial Services, Inc., as successor Servicer, is authorized to accept and rely on all accounting records (including computer records) and work product of the prior Servicer hereunder relating to the Contracts (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and Lyon Financial Services, Inc. shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer. If any error, inaccuracy, commission or incorrect or nonstandard practice or procedure (collectively, “Errors”) exists in any Predecessor Servicer Work Product and such Errors cause Lyon Financial Services, Inc. to make or continue any errors (collectively, “Continued Errors”), Lyon Financial Services, Inc. shall have no liability for such Continued Errors; provided, however, that Lyon Financial Services, Inc. agrees to use its best efforts to prevent Continued Errors. In the event that Lyon Financial Services, Inc. becomes aware of Errors or Continued Errors, Lyon Financial Services, Inc. shall, with the prior consent of the Lender, use commercially reasonable efforts to reconstruct and reconcile any affected data to correct such Errors and Continued Errors and to prevent future Continued Errors. Lyon Financial Services, Inc. shall be entitled to recover its costs thereby expended as Servicer Advances in accordance with Section 2.04(c) hereof. Within four (4) Business Days after each Remittance Date, provided that the Backup Servicer shall have received the information specified in Section 6.10(d) within the time specified therein, the Backup Servicer shall compare the information on the computer tape or diskette (or other means of electronic transmission acceptable to the Backup Servicer) most recently delivered to the Backup Servicer by the Servicer pursuant to Section 6.10(d) with respect to such Remittance Date to the corresponding Monthly Remittance Report delivered to the Backup Servicer by the Servicer pursuant to Section 6.10(d) and shall: (a) confirm that such Monthly Remittance Report is complete on its face; (b) confirm the distributions to be made on such Remittance Date pursuant to Section 2.04(c) hereof to the extent the Backup Servicer is able to do so given the information provided to it by the Servicer (it being hereby agreed that the Backup Servicer shall promptly notify the Servicer and the Lender if such information is insufficient and that the Servicer shall promptly provide to the Backup Servicer any additional information required by the Backup Servicer); (c) confirm the mathematical computations of information in such Monthly Remittance Report; and (d) confirm such other information as the Backup Servicer and the Lender may agree. In the event of any discrepancy between the information set forth in subparagraphs (b) or (c) above as calculated by the Servicer and that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly report such discrepancy to the Servicer and the Lender. In the event of a discrepancy as described in the preceding sentence, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy within five (5) Business Days after reporting such discrepancy, but in the absence of a reconciliation, distributions on the related Remittance Date shall be made consistent with the information calculated by the Servicer, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy prior to the next Remittance Date, and the Servicer shall promptly report to the Lender regarding the progress, if any, which shall have been made in reconciling such discrepancy. If the Backup Servicer and the Servicer are unable to reconcile such discrepancy with respect to such Monthly Remittance Report by the next Remittance Date that falls in April, July, October or January, the Servicer shall cause independent accountants acceptable to the Lender, at the Servicer’s expense, to examine such Monthly Remittance Report and attempt to reconcile such discrepancy at the earliest possible date (and the Servicer shall promptly provide the Lender with a report regarding such event). The effect, if any, of such reconciliation shall be reflected in the Monthly Remittance Report for the next succeeding Remittance Date. The provisions of this paragraph shall be referred to herein as the “Discrepancy Procedure”. Other than as specifically set forth in this Agreement, the Backup Servicer shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer and shall have no liability for any action taken or omitted by the Servicer. The Backup Servicer may allow a subservicer to perform any and all of its duties and responsibilities hereunder, including but not limited to its duties as successor Servicer hereunder, should the Backup Servicer become the successor Servicer pursuant to the terms of this Agreement; provided, however, that the Backup Servicer shall remain liable for the performance of all of its duties and obligations hereunder to the same extent as if no such subservicing had occurred. In no event shall the Backup Servicer (either prior to or after its appointment hereunder as Servicer) be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including without limitation, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God.

Appears in 3 contracts

Sources: Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.), Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.), Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.)

Backup Servicer. If a Servicer Default shall occur, then the ~~Lender~~ Controlling Holders may, by notice to the Servicer, the Borrower and the Backup Servicer, terminate all of the rights and obligations of the Servicer under this Agreement. Upon the delivery to the Servicer of such notice, all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Assets or otherwise, shall pass to and be vested in the Backup Servicer or any other successor Servicer appointed by the Controlling Holders pursuant to and under this Section (unless the Lender shall have appointed a different successor Servicer pursuant to Section 6.01 hereof or the Backup Servicer is unable to act as Servicer and a successor is appointed as provided in the fourth paragraph of this Section 6.13)Section, and, without limitation, the Backup Servicer or any other successor Servicer appointed hereunder is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination or to perform the duties of the Servicer under this ~~Agreement including, without limitation, to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06~~Agreement. The Servicer agrees to cooperate with the ~~Lender~~ Lenders and the Backup Servicer or other successor Servicer in effecting the termination of the Servicer’s responsibilities and rights hereunder, including, without limitation, providing notification to the Obligors of the assignment of the servicing function, providing ~~notification to the Lender’s Bank of~~ the Backup ~~Servicer’s right to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06, providing the Backup~~ Servicer or such other successor Servicer, at the Servicer’s expense, with all records, in electronic or other form, reasonably requested by the Backup Servicer or such other successor Servicer, in such form as the Backup Servicer may reasonably request and at such times as the Backup Servicer or such other successor Servicer may reasonably request, to enable ~~the Backup Servicer~~ such Person to assume the servicing functions hereunder and the transfer to ~~the Backup Servicer~~ such Person for administration by it of all cash amounts which at the time should be or should have been deposited by the Servicer in the Collection Account or thereafter be received by the Servicer with respect to the Pledged Receivables. Additionally, the Servicer agrees to cooperate in providing, at the Servicer’s expense, the Backup Servicer or any other successor Servicer as successor Servicer, with reasonable access (including at the premises of the Servicer) to Servicer’s employees and any and all books, records or other information reasonably requested by it to enable the Backup Servicer or such other successor Servicer, as successor Servicer, to assume the servicing functions hereunder. Neither ~~the~~ any Lender nor the Backup Servicer or any other successor Servicer shall be deemed to have breached any obligation hereunder as a result of a failure to make or delay in making any distribution as and when required hereunder caused by the failure of the Servicer to remit any amounts received by it or to deliver any documents held by it with respect to the Pledged Assets. The Backup Servicer (including as successor Servicer) or any other successor Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer or such other successor Servicer hereunder. The Active Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section ~~2.04(c~~2.04(a) on and after the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. The Standby Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section ~~2.04(c~~2.04(a) prior to the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. Any obligations of LEAF Financial under any Transaction Document other than in its capacity as Servicer shall continue in effect notwithstanding LEAF Financial’s termination as Servicer. On and after the time the Servicer receives a notice of termination (with a copy delivered to the Backup Servicer) pursuant to this Section 6.13, the Backup Servicer shall be (and the Backup Servicer hereby agrees to be) the successor in all respects to the Servicer in its capacity as Servicer under this Agreement and the transactions set forth or provided for herein and shall have all the rights and powers and be subject thereafter to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof; provided, however, that any failure to perform such duties or responsibilities caused by the Servicer’s failure to provide information required by this Section 6.13 shall not be considered a default by the Backup Servicer or any other successor Servicer hereunder; provided, further, however, that the Backup Servicer or such other successor Servicer, as successor Servicer, shall have (i) no liability with respect to any obligation which was required to be performed by the terminated Servicer prior to the date that the Backup Servicer or such other successor Servicer becomes the successor to the Servicer or any claim of a third party based on any alleged action or inaction of the terminated Servicer, (ii) no obligation to perform any repurchase or advancing obligations, if any, of the Servicer, (iii) no obligation to pay any taxes required to be paid by the Servicer (provided that the Backup Servicer or such other successor Servicer shall pay any income taxes for which it is liable), (iv) no obligation to pay any of the fees and expenses of any other party to the transactions contemplated hereby, and (v) no liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer, including the original Servicer. The indemnification obligations of the Backup Servicer or any other successor Servicer, upon becoming a successor Servicer, are expressly limited to those arising on account of its failure to act in good faith and with reasonable care under the circumstances. In addition, neither the Backup Servicer nor any other successor Servicer shall have no any liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (or, following the Collateral Split Effective Date, the Primary Lender under the related Loan Agreement) may, or shall, if the Backup Servicer or any other successor Servicer is unable to so act, appoint itself, or appoint any other established servicing institution acceptable to the ~~Lender~~ Lenders in ~~its~~ their sole discretion, as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. Pending appointment of a successor to the Servicer hereunder, and after the ~~Lender notifies~~ Lenders notify the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer or any other successor Servicer (or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (or, following the Collateral Split Effective Date, the Primary Lender under the related Loan Agreement) if there is no Backup Servicer or other successor Servicer) shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the ~~Lender~~ Lenders may make such arrangements for the compensation of such successor out of payments on Pledged Receivables as it and such successor shall agree; provided, however, that, except as provided herein, no such compensation shall be in excess of that permitted the Servicer hereunder, unless (i) agreed to by the ~~Lender~~ Lenders and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the ~~Lender~~ Lenders and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The parties hereto agree that in no event will the Backup Servicer or any other successor Servicer be liable for any special, indirect or consequential damages. ~~The~~ Each of the Backup Servicer and any other successor Servicer hereby agrees that it shall, and shall take all actions necessary so that it shall at all times be ready to, assume all the rights and powers and all of the responsibilities, obligations and duties of the Servicer hereunder, within ten (10) Business Days of receiving from ~~the~~ a Lender a notice requesting the Backup Servicer or such other successor Servicer to do so. Notwithstanding anything contained in this Agreement to the contrary, absent specific knowledge by any Lyon Financial Services, Inc. account representative assigned to this transaction from time to time, or written notice detailing specific Errors (as defined below) or other deficiencies, Lyon Financial Services, Inc., as successor Servicer, is authorized to accept and rely on all accounting records (including computer records) and work product of the prior Servicer hereunder relating to the Contracts (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and Lyon Financial Services, Inc. shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer. If any error, inaccuracy, commission or incorrect or nonstandard practice or procedure (collectively, “Errors”) exists in any Predecessor Servicer Work Product and such Errors cause Lyon Financial Services, Inc. to make or continue any errors (collectively, “Continued Errors”), Lyon Financial Services, Inc. shall have no liability for such Continued Errors; provided, however, that Lyon Financial Services, Inc. agrees to use its best efforts to prevent Continued Errors. In the event that Lyon Financial Services, Inc. becomes aware of Errors or Continued Errors, Lyon Financial Services, Inc. shall, with the prior consent of the ~~Lender~~Lenders, use commercially reasonable efforts to reconstruct and reconcile any affected data to correct such Errors and Continued Errors and to prevent future Continued Errors. Lyon Financial Services, Inc. shall be entitled to recover its costs thereby expended as Servicer Advances in accordance with Section ~~2.04(c~~2.04(a) hereof. Within four (4) Business Days after each Remittance Date, provided that the Backup Servicer shall have received the information specified in Section 6.10(d) within the time specified therein, the Backup Servicer shall compare the information on the computer tape or diskette (or other means of electronic transmission acceptable to the Backup Servicer) most recently delivered to the Backup Servicer by the Servicer pursuant to Section 6.10(d) with respect to such Remittance Date to the corresponding Monthly Remittance Report delivered to the Backup Servicer by the Servicer pursuant to Section 6.10(d) and shall: (a) confirm that such Monthly Remittance Report is complete on its face; (b) confirm the distributions to be made on such Remittance Date pursuant to Section ~~2.04(c~~2.04(a) hereof to the extent the Backup Servicer is able to do so given the information provided to it by the Servicer (it being hereby agreed that the Backup Servicer shall promptly notify the Servicer and the ~~Lender~~ Lenders if such information is insufficient and that the Servicer shall promptly provide to the Backup Servicer any additional information required by the Backup Servicer); (c) confirm the mathematical computations of information in such Monthly Remittance Report; and (d) confirm such other information as the Backup Servicer and the ~~Lender~~ Lenders may agree. In the event of any discrepancy between the information set forth in subparagraphs (b) or (c) above as calculated by the Servicer and that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly report such discrepancy to the Servicer and the ~~Lender~~Lenders. In the event of a discrepancy as described in the preceding sentence, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy within five (5) Business Days after reporting such discrepancy, but in the absence of a reconciliation, distributions on the related Remittance Date shall be made consistent with the information calculated by the Servicer, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy prior to the next Remittance Date, and the Servicer shall promptly report to the ~~Lender~~ Lenders regarding the progress, if any, which shall have been made in reconciling such discrepancy. If the Backup Servicer and the Servicer are unable to reconcile such discrepancy with respect to such Monthly Remittance Report by the next Remittance Date that falls in April, July, October or January, the Servicer shall cause independent accountants acceptable to the ~~Lender~~Lenders, at the Servicer’s expense, to examine such Monthly Remittance Report and attempt to reconcile such discrepancy at the earliest possible date (and the Servicer shall promptly provide the ~~Lender~~ Lenders with a report regarding such event). The effect, if any, of such reconciliation shall be reflected in the Monthly Remittance Report for the next succeeding Remittance Date. The provisions of this paragraph shall be referred to herein as the “Discrepancy Procedure”. Other than as specifically set forth in this Agreement, the Backup Servicer shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer and shall have no liability for any action taken or omitted by the Servicer. The Backup Servicer or any other successor Servicer may allow a subservicer to perform any and all of its duties and responsibilities hereunder, including but not limited to its duties as successor Servicer hereunder, should the Backup Servicer or such other successor Servicer become the successor Servicer pursuant to the terms of this Agreement; provided, however, that the Backup Servicer or such other successor Servicer, as applicable, shall remain liable for the performance of all of its duties and obligations hereunder to the same extent as if no such subservicing had occurred. In no event shall the Backup Servicer or any other successor Servicer (either prior to or after its appointment hereunder as Servicer) be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including without limitation, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God.

Appears in 3 contracts

Sources: Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.), Receivables Loan and Security Agreement (LEAF Equipment Leasing Income Fund III, L.P.), Receivables Loan and Security Agreement (LEAF Equipment Leasing Income Fund III, L.P.)

Backup Servicer. If (a) Prior to assuming any of the Servicer's rights and obligations hereunder the Backup Servicer shall only be responsible to perform those duties and for only those obligations specifically imposed upon it by the provisions of the Backup Servicing Agreement herein, and shall have no obligations or duties under any agreement to which it is not a ~~Servicer Default shall occur~~party, ~~then the Lender may, by notice~~ including but not limited to the ~~Servicer~~various agreements named herein. In the event of the Termination of the Backup Servicing Agreement, the ~~Borrower~~ Servicer shall appoint a successor Backup Servicer reasonably acceptable to the Agent and the Seller. (b) The Servicer shall have no liability, direct or indirect, to any party, for the acts or omissions of the Backup Servicer, ~~terminate all of the rights and obligations of the Servicer under this Agreement. Upon the delivery~~ whenever such acts or omissions occur whenever such liability is imposed. (c) Notwithstanding anything to the contrary herein, the Agent shall have the right to remove the Backup Servicer ~~of such notice, all authority~~ with or without cause at any time and ~~power of the Servicer under this Agreement, whether with respect to the Pledged Assets or otherwise, shall pass to and be vested in~~ replace the Backup Servicer pursuant to the provisions of the Backup Servicing Agreement. In the event that the Agent exercises its right to remove and ~~under this Section (unless the Lender~~ replace Concord Servicing Corporation as Backup Servicer, Concord Servicing Corporation shall have appointed a different successor Servicer pursuant to Section 6.01 hereof or the Backup Servicer is unable to act as Servicer and a successor is appointed as provided in the fourth paragraph of this Section 6.13), and, without limitation, the Backup Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination or no further obligation to perform the duties of the Backup Servicer under this ~~Agreement including~~Agreement. (d) The Servicer shall provide monthly, ~~without limitation~~or as otherwise requested, to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06. The Servicer agrees to cooperate with the Lender and the Backup Servicer in effecting the termination of the Servicer’s responsibilities and rights hereunder, including, without limitation, providing notification to the Obligors of the assignment of the servicing function, providing notification to the Lender’s Bank of the Backup Servicer’s right to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06, providing the Backup Servicer, at or its agent, information on the Servicer’s expense, with all records, in electronic or other form, reasonably requested by the Backup Servicer, in such form as the Backup Servicer may reasonably request and at such times as the Backup Servicer may reasonably request, Receivables sufficient to enable the Backup Servicer to assume the ~~servicing functions hereunder~~ responsibilities as successor servicer and collect on the ~~transfer to the Backup Servicer for administration by it of all cash amounts which at the time should be or should have been deposited by the Servicer~~ Receivables. (e) Except as provided in ~~the Collection Account or thereafter be received by the Servicer with respect to the Pledged Receivables. Additionally, the Servicer agrees to cooperate in providing, at the Servicer’s expense~~this Agreement, the Backup Servicer ~~as successor Servicer, with reasonable access (including at the premises of the Servicer) to Servicer’s employees~~ may accept and ~~any and~~ reasonably rely on all ~~books~~accounting, records or other information reasonably requested by it to enable the Backup Servicer, as successor Servicer, to assume the servicing functions hereunder. Neither the Lender nor the Backup Servicer shall be deemed to have breached any obligation hereunder as a result of a failure to make or delay in making any distribution as and ~~when required hereunder caused by the failure~~ work of the Servicer to remit any amounts received by it or to deliver any documents held by it with respect to the Pledged Assets. The Backup Servicer (including as successor Servicer) undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. The Active Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) on and after the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. The Standby Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) prior to the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. Any obligations of LEAF Financial under any Transaction Document other than in its capacity as Servicer shall continue in effect notwithstanding LEAF Financial’s termination as Servicer. On and after the time the Servicer receives a notice of termination pursuant to this Section 6.13, the Backup Servicer shall be (and the Backup Servicer hereby agrees to be) the successor in all respects to the Servicer in its capacity as Servicer under this Agreement and the transactions set forth or provided for herein and shall have all the rights and powers and be subject thereafter to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof; provided, however, that any failure to perform such duties or responsibilities caused by the Servicer’s failure to provide information required by this Section 6.13 shall not be considered a default by the Backup Servicer hereunder; provided, further, however, that the Backup Servicer, as successor Servicer, shall have (i) no liability with respect to any obligation which was required to be performed by the terminated Servicer prior to the date that the Backup Servicer becomes the successor to the Servicer or any claim of a third party based on any alleged action or inaction of the terminated Servicer, (ii) no obligation to perform any repurchase or advancing obligations, if any, of the Servicer, (iii) no obligation to pay any taxes required to be paid by the Servicer (provided that the Backup Servicer shall pay any income taxes for which it is liable), (iv) no obligation to pay any of the fees and expenses of any other party to the transactions contemplated herebywithout audit, and (v) no liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer, including the original Servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer, are expressly limited to those arising on account of its failure to act in good faith and with reasonable care under the circumstances. In addition, the Backup Servicer shall have no liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, the Lender may, or shall, if the Backup Servicer is unable to so act, appoint itself, or appoint any other established servicing institution acceptable to the Lender in its sole discretion, as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. Pending appointment of a successor to the Servicer hereunder, and after the Lender notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer (or the Lender if there is no Backup Servicer) shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the Lender may make such arrangements for the compensation of such successor out of payments on Pledged Receivables as it and such successor shall agree; provided, however, that, except as provided herein, no such compensation shall be in excess of that permitted the Servicer hereunder, unless (i) agreed to by the Lender and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the Lender and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The parties hereto agree that in no event will the Backup Servicer be liable for any special, indirect or consequential damages. The Backup Servicer hereby agrees that it shall, and shall take all actions necessary so that it shall at all times be ready to, assume all the rights and powers and all of the responsibilities, obligations and duties of the Servicer hereunder, within ten (10) Business Days of receiving from the Lender a notice requesting the Backup Servicer to do so. Notwithstanding anything contained in this Agreement to the contrary, absent specific knowledge by any Lyon Financial Services, Inc. account representative assigned to this transaction from time to time, or written notice detailing specific Errors (as defined below) or other deficiencies, Lyon Financial Services, Inc., as successor Servicer, is authorized to accept and rely on all accounting records (including computer records) and work product of the prior Servicer hereunder relating to the Contracts (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and Lyon Financial Services, Inc. shall have no duty, responsibility, obligation or liability for the acts ~~and~~ or omissions of the ~~prior~~ Servicer. If any error, ~~inaccuracy, commission~~ inaccuracy or ~~incorrect or nonstandard practice or procedure~~ omission (collectively, “"Errors”") exists in any ~~Predecessor Servicer Work Product~~ information received from the Servicer, and such Errors should cause ~~Lyon Financial Services, Inc.~~ or materially contribute to ~~make~~ the Backup Servicer making or ~~continue~~ continuing any ~~errors~~ Errors (collectively, “"Continued Errors”"), ~~Lyon Financial Services, Inc.~~ the Backup Servicer shall have no liability for such Continued Errors; provided, however, that Lyon Financial Services, Inc. agrees to use its best efforts to prevent Continued Errors. In the event that Lyon Financial Services, Inc. becomes aware of Errors or Continued Errors, Lyon Financial Services, Inc. shall, with the prior consent of the Lender, use commercially reasonable efforts to reconstruct and reconcile any affected data to correct such Errors and Continued Errors and to prevent future Continued Errors. Lyon Financial Services, Inc. this provision shall ~~be entitled to recover its costs thereby expended as Servicer Advances in accordance with Section 2.04(c) hereof. Within four (4) Business Days after each Remittance Date, provided that~~ not protect the Backup Servicer against any liability that would otherwise be imposed by reason of willful misconduct, bad faith or gross negligence in discovering or correcting any Error or in the performance of its or their duties hereunder or under this Agreement. (f) The Backup Servicer and its officers, directors, employees, representatives and agents shall ~~have received~~ be indemnified by the ~~information specified in Section 6.10(d) within the time specified therein~~Servicer from and against all claims, damages, losses or expenses incurred by the Backup Servicer ~~shall compare the information on the computer tape or diskette~~ (~~or other means~~ including reasonable attorney's fees and expenses) arising out of ~~electronic transmission acceptable to the Backup Servicer) most recently delivered to~~ claims asserted against the Backup Servicer by ~~the Servicer pursuant to Section 6.10(d) with respect to such Remittance Date~~ third parties on any matter arising out of this Agreement to the ~~corresponding Monthly Remittance Report delivered~~ extent the act or omission giving rise to the claim relates to an act or omission of the Servicer, the Seller, the Depositor or any of their Affiliates and accrues before the date on which the Backup Servicer assumes the duties of Servicer hereunder, and all claims, expenses, obligations, liabilities, losses, damages, injuries, penalties, stamp or other similar taxes, actions, suits, judgments, reasonable costs and expenses (including reasonable attorney's and agent's fees and expenses) of whatever kind or nature regardless of their merit, demanded, asserted or claimed against the Backup Servicer directly or indirectly relating to, or arising from, claims against the Backup Servicer by reason of its participation in the ~~Servicer pursuant to Section 6.10(d) and shall: (a) confirm that such Monthly Remittance Report is complete on its face; (b) confirm the distributions~~ transactions contemplated hereby, including without limitation all reasonable costs required to be ~~made on such Remittance Date pursuant~~ associated with claims for damages to Section 2.04(c) hereof to the extent the Backup Servicer is able to do so given the information provided to it by the Servicer (it being hereby agreed that the Backup Servicer shall promptly notify the Servicer persons or property, and ~~the Lender if such information is insufficient~~ reasonable attorneys' and ~~that the Servicer shall promptly provide to the Backup Servicer~~ consultants' fees and expenses and court costs except for any ~~additional information required by~~ claims, damages, losses or expenses arising from the Backup Servicer~~); (c~~'s own gross negligence, bad faith or willful misconduct. The obligations of the Servicer under this Section 4.22(g) ~~confirm~~ shall survive the ~~mathematical computations~~ satisfaction and discharge of ~~information in such Monthly Remittance Report; and (d) confirm such other information as~~ this Agreement or the earlier resignation or removal of the Backup ~~Servicer and the Lender may agree~~Servicer. In the ~~event~~ absence of ~~any discrepancy between~~ bad faith on the ~~information set forth in subparagraphs (b) or (c) above as calculated by the Servicer and that determined or calculated by~~ part of the Backup Servicer, the Backup Servicer ~~shall promptly report such discrepancy~~ may conclusively rely, as to the ~~Servicer~~ truth of the statements and the ~~Lender~~correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Backup Servicer which conform to the requirements of this Agreement. In The Backup Servicer shall not be liable for any error of judgment made in good faith by an officer or officers of the ~~event~~ Backup Servicer, unless it shall be conclusively determined by a court of ~~a discrepancy as described~~ competent jurisdiction that the Backup Servicer was grossly negligent in ascertaining the pertinent facts. Whenever in the ~~preceding sentence,~~ administration of the ~~Servicer and~~ provisions of this Agreement the Backup Servicer shall ~~attempt~~ deem it necessary or desirable that a matter be proved or established prior to ~~reconcile~~ taking or suffering any action to be taken hereunder, such ~~discrepancy within five~~ matter (5unless other evidence in respect thereof be herein specifically prescribed) ~~Business Days after reporting such discrepancy~~may, ~~but~~ in the absence of ~~a reconciliation, distributions~~ gross negligence or bad faith on the ~~related Remittance Date shall~~ part of the Backup Servicer, be ~~made consistent with the information calculated~~ deemed to be conclusively proved and established by a certificate signed by one of the Servicer~~, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy prior to the next Remittance Date~~'s officers, and ~~the Servicer shall promptly report~~ delivered to ~~the Lender regarding the progress, if any, which shall have been made in reconciling such discrepancy. If~~ the Backup Servicer and such certificate, in the ~~Servicer are unable to reconcile such discrepancy with respect to such Monthly Remittance Report by~~ absence of gross negligence or bad faith on the ~~next Remittance Date that falls in April~~part of the Backup Servicer, ~~July, October or January, the Servicer~~ shall ~~cause independent accountants acceptable~~ be full warrant to the ~~Lender~~Backup Servicer of any action taken, at suffered or omitted by it under the Servicer’s expense, to examine such Monthly Remittance Report and attempt to reconcile such discrepancy at the earliest possible date (and the Servicer shall promptly provide the Lender with a report regarding such event). The effect, if any, of such reconciliation shall be reflected in the Monthly Remittance Report for the next succeeding Remittance Date. The provisions of this ~~paragraph~~ Agreement upon the faith thereof. The Backup Servicer, in its capacity as such, may consult with counsel and the advice or any opinion of counsel shall be ~~referred to herein as the “Discrepancy Procedure”. Other than as specifically set forth~~ full and complete authorization and protection in ~~this Agreement, the Backup Servicer shall have no obligation to supervise, verify, monitor or administer the performance~~ respect of ~~the Servicer and shall have no liability for~~ any action taken or omitted by ~~the Servicer~~it hereunder in good faith and in accordance with such advice or opinion of counsel. The Backup ~~Servicer~~ Servicer, in its capacity as such, shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document. The Backup Servicer, in its capacity as such, may ~~allow a subservicer to~~ execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and ~~all of its duties and responsibilities hereunder, including but~~ shall not limited to its duties as successor Servicer hereunder, should the Backup Servicer become the successor Servicer pursuant to the terms of this Agreement; provided, however, that the Backup Servicer shall remain liable for the performance of all of its duties and obligations hereunder to the same extent as if no such subservicing had occurred. In no event shall the Backup Servicer (either prior to or after its appointment hereunder as Servicer) be responsible ~~or liable~~ for any ~~failure~~ willful misconduct or ~~delay in~~ negligence on the ~~performance~~ part of ~~its obligations hereunder arising out of~~ any agent, attorney, custodian or ~~caused by, directly or indirectly, forces beyond its control, including without limitation, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God~~nominee so appointed.

Appears in 1 contract

Sources: Sale and Servicing Agreement (Bluegreen Corp)

Backup Servicer. ~~If a Servicer Default shall occur~~(a) Within 120 days after the Closing Date, ~~then the Lender may~~NFC, ~~by notice to the~~ as Servicer, will identify and retain a third-party backup Servicer who meets the Borrower and the Backup Servicer, terminate all of the rights and obligations of the Servicer under this Agreement. Upon the delivery to the Servicer of such notice, all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Assets or otherwise, shall pass to and be vested in the Backup Servicer pursuant to and under this Section (unless the Lender shall have appointed criteria specified for a ~~different~~ successor Servicer pursuant to Section 6.01 hereof or the Backup Servicer is unable to act as Servicer and a successor is appointed as provided in the fourth paragraph of this Section 6.13), and, without limitation, the Backup Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination or to perform the duties of the Servicer under this Agreement including, without limitation, to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06. The Servicer agrees to cooperate with the Lender and the Backup Servicer in effecting the termination of the Servicer’s responsibilities and rights hereunder, including, without limitation, providing notification to the Obligors of the assignment of the servicing function, providing notification to the Lender’s Bank of the Backup Servicer’s right to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06, providing the Backup Servicer, at the Servicer’s expense, with all records, in electronic or other form, reasonably requested by the Backup Servicer, in such form as the Backup Servicer may reasonably request and at such times as the Backup Servicer may reasonably request, to enable the Backup Servicer to assume the servicing functions hereunder and the transfer to the Backup Servicer for administration by it of all cash amounts which at the time should be or should have been deposited by the Servicer in the Collection Account or thereafter be received by the Servicer with respect to the Pledged Receivables. Additionally, the Servicer agrees to cooperate in providing, at the Servicer’s expense, the Backup Servicer as successor Servicer, with reasonable access (including at the premises of the Servicer) to Servicer’s employees and any and all books, records or other information reasonably requested by it to enable the Backup Servicer, as successor Servicer, to assume the servicing functions hereunder. Neither the Lender nor the Backup Servicer shall be deemed to have breached any obligation hereunder as a result of a failure to make or delay in making any distribution as and when required hereunder caused by the failure of the Servicer to remit any amounts received by it or to deliver any documents held by it with respect to the Pledged Assets. The Backup Servicer (including as successor Servicer) undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. The Active Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section ~~2.04(c) on~~ 7.03 and ~~after~~ who agrees to become a successor servicer if appointed by the ~~date, if any, that the Backup Servicer assumes the responsibilities of the Servicer~~ Indenture Trustee pursuant to ~~this Section. The Standby~~ Section 7.03 (the "Backup Servicer~~’s Fees~~ "). Unless and ~~Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) prior to the date, if any, that the Backup~~ until a Servicer assumes the responsibilities of the Servicer pursuant to this Section. Any obligations of LEAF Financial under any Transaction Document other than in its capacity as Servicer shall continue in effect notwithstanding LEAF Financial’s termination as Servicer. On and after the time the Servicer receives a notice of termination pursuant to this Section 6.13, the Backup Servicer shall be (Default occurs and the Backup Servicer ~~hereby agrees~~ is appointed as the successor Servicer, the sole obligation of the Backup Servicer will be to beperform systems data mapping of NFC's servicing computer systems. Prior to a Servicer Default, up to $100,000 of the costs and expenses associated with the Backup Servicer performing such system data mapping shall be paid for with funds on deposit in the Backup Servicer Account as defined below, provided that any costs and expenses in excess of $100,000 shall be paid for by the Servicer. (b) On the Closing Date, the Servicer shall deposit cash or Eligible Investments in the amount of $250,000 into an Eligible Deposit Account (the "Backup Servicer Account"), which shall initially be established and maintained with the Indenture Trustee so long as (A) the ~~successor~~ short-term unsecured debt obligations of the Indenture Trustee have the Required Deposit Rating or (B) the Backup Servicer Account is maintained in the corporate trust department of the Indenture Trustee. Funds deposited in the Backup Servicer Account shall, to the extent permitted by applicable laws, rules and regulations, be invested at the written direction of the Servicer in Eligible Investments. Except as otherwise provided in Section 2.02(b)(i), the Servicer shall be entitled to receive all ~~respects~~ investment earnings on the Backup Servicer Account when and as paid without any obligation to (a) either Trustee or (b) the Noteholders, in respect thereof. The Servicer will not have any obligation to deposit any such amount in any account established hereunder. Such amount will be withdrawn from the Backup Servicer Account and delivered to the Servicer upon presentation of a certificate signed by a Responsible Officer of the Servicer setting forth, in ~~its capacity~~ reasonable detail, the amount of such investment earnings. Should the short-term unsecured debt obligations of the Indenture Trustee (or any other bank or trust company with which the Backup Servicer Account is maintained) no longer have the Required Deposit Rating, then the Servicer shall within 10 Business Days (or such longer period, not to exceed 30 calendar days, upon satisfaction of the Rating Agency Condition with respect thereto), with the Indenture Trustee's assistance as necessary, cause the Backup Servicer Account (A) to be moved to a bank or trust company, the short-term unsecured debt obligations of which shall have the Required Deposit Rating, or (B) to be moved to the corporate trust department of the Indenture Trustee. (c) In the event that NFC is removed as Servicer ~~under this Agreement~~ as described in Section 7.02, the funds on deposit in the Backup Servicer Account will be made available to the Backup Servicer or the Indenture Trustee to pay the fees and expenses associated with the ~~transactions set forth~~ transition of the servicing functions to the Backup Servicer or ~~provided for herein~~ the Indenture Trustee, as applicable. Any amount remaining in the Backup Servicer Account after the transition of the servicing functions has been completed will be withdrawn and ~~shall have~~ distributed to NFC. If the amount on deposit in the Backup Servicer Account is insufficient to cover all of the ~~rights~~ fees and ~~powers and~~ expenses associated with the transition of the servicing functions, no Person will be ~~subject thereafter~~ obligated to ~~all~~ deposit any additional funds into the ~~responsibilities, duties and liabilities relating thereto placed on the~~ Backup Servicer ~~by the terms and provisions hereof~~Account; provided, however, that ~~any failure to perform such duties or responsibilities caused by the Servicer’s failure to provide information required by this Section 6.13 shall not~~ NFC will be considered a default by the Backup Servicer hereunder; provided, further, however, that the Backup Servicer, as successor Servicer, shall have (i) no liability with respect to any obligation which was required to be performed by the terminated Servicer prior to the date that the Backup Servicer becomes the successor to the Servicer or any claim of a third party based on any alleged action or inaction of the terminated Servicer, (ii) no obligation to perform any repurchase or advancing obligations, if any, of the Servicer, (iii) no obligation obligated to pay ~~any taxes required to be paid by the Servicer (provided that the Backup Servicer shall pay any income taxes for which it is liable), (iv) no obligation to pay any of~~ the fees and expenses of the transition not covered by the funds on deposit in the Backup Servicer Account. If the amount on deposit in the Backup Servicer Account on any ~~other party~~ Distribution Date, after giving effect to ~~the transactions contemplated hereby~~all deposits or withdrawals therefrom on that date, ~~and (v) no liability~~ is greater than $250,000 or ~~obligation with respect~~ such lower amount, subject to ~~any Servicer indemnification obligations of any prior Servicer, including the original Servicer. The indemnification obligations~~ satisfaction of the ~~Backup Servicer~~Rating Agency Condition, ~~upon becoming a successor Servicer, are expressly limited~~ the excess will be withdrawn and distributed to ~~those arising on account of its failure to act in good faith and with reasonable care under the circumstances~~NFC. In addition, the Backup Servicer ~~shall have no liability relating~~ Account may be eliminated entirely subject to ~~the representations and warranties~~ satisfaction of the Servicer contained in Article IV. Notwithstanding the above, the Lender may, or shall, if the Backup Servicer is unable to so act, appoint itself, or appoint any other established servicing institution acceptable to the Lender in its sole discretion, as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. Pending appointment of a successor to the Servicer hereunder, and after the Lender notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer (or the Lender if there is no Backup Servicer) shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the Lender may make such arrangements for the compensation of such successor out of payments on Pledged Receivables as it and such successor shall agree; provided, however, that, except as provided herein, no such compensation shall be in excess of that permitted the Servicer hereunder, unless (i) agreed to by the Lender and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the Lender and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The parties hereto agree that in no event will the Backup Servicer be liable for any special, indirect or consequential damages. The Backup Servicer hereby agrees that it shall, and shall take all actions necessary so that it shall at all times be ready to, assume all the rights and powers and all of the responsibilities, obligations and duties of the Servicer hereunder, within ten (10) Business Days of receiving from the Lender a notice requesting the Backup Servicer to do so. Notwithstanding anything contained in this Agreement to the contrary, absent specific knowledge by any Lyon Financial Services, Inc. account representative assigned to this transaction from time to time, or written notice detailing specific Errors (as defined below) or other deficiencies, Lyon Financial Services, Inc., as successor Servicer, is authorized to accept and rely on all accounting records (including computer records) and work product of the prior Servicer hereunder relating to the Contracts (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and Lyon Financial Services, Inc. shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer. If any error, inaccuracy, commission or incorrect or nonstandard practice or procedure (collectively, “Errors”) exists in any Predecessor Servicer Work Product and such Errors cause Lyon Financial Services, Inc. to make or continue any errors (collectively, “Continued Errors”), Lyon Financial Services, Inc. shall have no liability for such Continued Errors; provided, however, that Lyon Financial Services, Inc. agrees to use its best efforts to prevent Continued Errors. In the event that Lyon Financial Services, Inc. becomes aware of Errors or Continued Errors, Lyon Financial Services, Inc. shall, with the prior consent of the Lender, use commercially reasonable efforts to reconstruct and reconcile any affected data to correct such Errors and Continued Errors and to prevent future Continued Errors. Lyon Financial Services, Inc. shall be entitled to recover its costs thereby expended as Servicer Advances in accordance with Section 2.04(c) hereof. Within four (4) Business Days after each Remittance Date, provided that the Backup Servicer shall have received the information specified in Section 6.10(d) within the time specified therein, the Backup Servicer shall compare the information on the computer tape or diskette (or other means of electronic transmission acceptable to the Backup Servicer) most recently delivered to the Backup Servicer by the Servicer pursuant to Section 6.10(d) with respect to such Remittance Date to the corresponding Monthly Remittance Report delivered to the Backup Servicer by the Servicer pursuant to Section 6.10(d) and shall: (a) confirm that such Monthly Remittance Report is complete on its face; (b) confirm the distributions to be made on such Remittance Date pursuant to Section 2.04(c) hereof to the extent the Backup Servicer is able to do so given the information provided to it by the Servicer (it being hereby agreed that the Backup Servicer shall promptly notify the Servicer and the Lender if such information is insufficient and that the Servicer shall promptly provide to the Backup Servicer any additional information required by the Backup Servicer); (c) confirm the mathematical computations of information in such Monthly Remittance Report; and (d) confirm such other information as the Backup Servicer and the Lender may agree. In the event of any discrepancy between the information set forth in subparagraphs (b) or (c) above as calculated by the Servicer and that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly report such discrepancy to the Servicer and the Lender. In the event of a discrepancy as described in the preceding sentence, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy within five (5) Business Days after reporting such discrepancy, but in the absence of a reconciliation, distributions on the related Remittance Date shall be made consistent with the information calculated by the Servicer, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy prior to the next Remittance Date, and the Servicer shall promptly report to the Lender regarding the progress, if any, which shall have been made in reconciling such discrepancy. If the Backup Servicer and the Servicer are unable to reconcile such discrepancy with respect to such Monthly Remittance Report by the next Remittance Date that falls in April, July, October or January, the Servicer shall cause independent accountants acceptable to the Lender, at the Servicer’s expense, to examine such Monthly Remittance Report and attempt to reconcile such discrepancy at the earliest possible date (and the Servicer shall promptly provide the Lender with a report regarding such event). The effect, if any, of such reconciliation shall be reflected in the Monthly Remittance Report for the next succeeding Remittance Date. The provisions of this paragraph shall be referred to herein as the “Discrepancy Procedure”. Other than as specifically set forth in this Agreement, the Backup Servicer shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer and shall have no liability for any action taken or omitted by the Servicer. The Backup Servicer may allow a subservicer to perform any and all of its duties and responsibilities hereunder, including but not limited to its duties as successor Servicer hereunder, should the Backup Servicer become the successor Servicer pursuant to the terms of this Agreement; provided, however, that the Backup Servicer shall remain liable for the performance of all of its duties and obligations hereunder to the same extent as if no such subservicing had occurred. In no event shall the Backup Servicer (either prior to or after its appointment hereunder as Servicer) be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including without limitation, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of GodRating Agency Condition.

Appears in 1 contract

Sources: Servicing Agreement (Navistar Financial Retail Receivables Corporation)

Backup Servicer. ~~If a~~ (a) Within forty-five (45) days of the Closing Date, the Initial Servicer ~~Default~~ shall ~~occur, then the Lender may, by notice~~ be delivering reporting reasonably satisfactory to the Backup Servicer for the Backup Servicer to perform the role of backup servicer with respect to the servicing, administration and collection of the Receivables. The Backup Servicer shall perform such roles and responsibilities set forth in the Backup Servicing Agreement. Each of the Initial Servicer and the Borrower hereby covenant and agree to perform each of the roles and responsibilities set forth therein to be performed by the Borrower and/or Initial Servicer. (b) Until the Backup Servicer or another Successor Servicer succeeds Initial Servicer as Servicer upon the occurrence of the Servicer Transfer Date, Initial Servicer shall continue to perform all servicing functions in accordance with the Transaction Documents, notwithstanding the appointment of the Backup Servicer. The Initial Servicer hereby covenants and agrees that the Initial Servicer shall provide the Backup Servicer with all necessary servicing files and records relating to the Contracts, Receivables and Related Security and the Initial Servicer shall provide to the Backup Servicer reasonable access to and use by the Backup Servicer of all licenses, software, hardware, equipment, telephone, personnel, servicing systems, employees, facilities or other accommodations necessary or desirable to perform the backup servicing functions as set forth in the Backup Servicing Agreement. (c) Notwithstanding anything to the contrary set forth in this Section 9.08, each of the Borrower and the ~~Backup Servicer, terminate all of the rights and obligations of the~~ Initial Servicer ~~under this Agreement. Upon the delivery to the Servicer of such notice, all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Assets or otherwise,~~ shall pass to and be vested in the Backup Servicer pursuant to and under this Section (unless the Lender shall have appointed a different successor Servicer pursuant to Section 6.01 hereof or the Backup Servicer is unable to act as Servicer and a successor is appointed as provided in the fourth paragraph of this Section 6.13), and, without limitation, the Backup Servicer is hereby authorized and empowered to execute and ~~deliver, on behalf of the Servicer, as attorney-in-fact or otherwise,~~ deliver any and all additional papers, documents and other ~~instruments~~assurances, and to shall do ~~or accomplish~~ any and all ~~other~~ acts or and things reasonably necessary or appropriate to effect the purposes of such notice of termination or to perform the duties of the Servicer under this Agreement including, without limitation, to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06. The Servicer agrees to cooperate in connection with the ~~Lender and the~~ appointment of a Backup Servicer ~~in effecting the termination of the Servicer’s responsibilities~~ and rights hereunder, including, without limitation, providing notification to the Obligors of the assignment of the servicing function, providing notification to the Lender’s Bank of the Backup Servicer’s right to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06, providing the Backup Servicer, at the Servicer’s expense, with all records, in electronic or other form, reasonably requested by the Backup Servicer, in such form as the Backup Servicer may reasonably request and at such times as the Backup Servicer may reasonably request, to enable the Backup Servicer to assume the servicing functions hereunder and the transfer to the Backup Servicer for administration by it of all cash amounts which at the time should be or should have been deposited by the Servicer in the Collection Account or thereafter be received by the Servicer with respect to the Pledged Receivables. Additionally, the Servicer agrees to cooperate in providing, at the Servicer’s expense, the Backup Servicer as successor Servicer, with reasonable access (including at the premises of the Servicer) to Servicer’s employees and any and all books, records or other information reasonably requested by it to enable the Backup Servicer, as successor Servicer, to assume the servicing functions hereunder. Neither the Lender nor the Backup Servicer shall be deemed to have breached any obligation hereunder as a result of a failure to make or delay in making any distribution as and when required hereunder caused by the failure of the Servicer to remit any amounts received by it or to deliver any documents held by it with respect to the Pledged Assets. The Backup Servicer (including as successor Servicer) undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. The Active Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) on and after the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. The Standby Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) prior to the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. Any obligations of LEAF Financial under any Transaction Document other than in its capacity as Servicer shall continue in effect notwithstanding LEAF Financial’s termination as Servicer. On and after the time the Servicer receives a notice of termination pursuant to this Section 6.13, the Backup Servicer shall be (and the Backup Servicer hereby agrees to be) the successor in all respects to the Servicer in its capacity as Servicer under this Agreement and the transactions set forth or provided for herein and shall have all the rights and powers and be subject thereafter to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof; provided, however, that any failure to perform such duties or responsibilities caused by the Servicer’s failure to provide information required by this Section 6.13 shall not be considered a default by the Backup Servicer hereunder; provided, further, however, that the Backup Servicer, as successor Servicer, shall have (i) no liability with respect to any obligation which was required to be performed by the terminated Servicer prior to the date that the Backup Servicer becomes the successor to the Servicer or any claim of a third party based on any alleged action or inaction of the terminated Servicer, (ii) no obligation to perform any repurchase or advancing obligations, if any, of the Servicer, (iii) no obligation to pay any taxes required to be paid by the Servicer (provided that the Backup Servicer shall pay any income taxes for which it is liable), (iv) no obligation to pay any of the fees and expenses of any other party to the transactions contemplated hereby, and (v) no liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer, including the original Servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer, are expressly limited to those arising on account of its failure to act in good faith and with reasonable care under the circumstances. In addition, the Backup Servicer shall have no liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, the Lender may, or shall, if the Backup Servicer is unable to so act, appoint itself, or appoint any other established servicing institution acceptable to the Lender in its sole discretion, as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. Pending appointment of a successor to the Servicer hereunder, and after the Lender notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer (or the Lender if there is no Backup Servicer) shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the Lender may make such arrangements for the compensation of such successor out of payments on Pledged Receivables as it and such successor shall agree; provided, however, that, except as provided herein, no such compensation shall be in excess of that permitted the Servicer hereunder, unless (i) agreed to by the Lender and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the Lender and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The parties hereto agree that in no event will the Backup Servicer be liable for any special, indirect or consequential damages. The Backup Servicer hereby agrees that it shall, and shall take all actions necessary so that it shall at all times be ready to, assume all the rights and powers and all of the responsibilities, obligations and duties of the Servicer hereunder, within ten (10) Business Days of receiving from the Lender a notice requesting the Backup Servicer to do so. Notwithstanding anything contained in this Agreement to the contrary, absent specific knowledge by any Lyon Financial Services, Inc. account representative assigned to this transaction from time to time, or written notice detailing specific Errors (as defined below) or other deficiencies, Lyon Financial Services, Inc., as successor Servicer, is authorized to accept and rely on all accounting records (including computer records) and work product of the prior Servicer hereunder relating to the Contracts (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and Lyon Financial Services, Inc. shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer. If any error, inaccuracy, commission or incorrect or nonstandard practice or procedure (collectively, “Errors”) exists in any Predecessor Servicer Work Product and such Errors cause Lyon Financial Services, Inc. to make or continue any errors (collectively, “Continued Errors”), Lyon Financial Services, Inc. shall have no liability for such Continued Errors; provided, however, that Lyon Financial Services, Inc. agrees to use its best efforts to prevent Continued Errors. In the event that Lyon Financial Services, Inc. becomes aware of Errors or Continued Errors, Lyon Financial Services, Inc. shall, with the prior consent of the Lender, use commercially reasonable efforts to reconstruct and reconcile any affected data to correct such Errors and Continued Errors and to prevent future Continued Errors. Lyon Financial Services, Inc. shall be entitled to recover its costs thereby expended as Servicer Advances in accordance with Section 2.04(c) hereof. Within four (4) Business Days after each Remittance Date, provided that the Backup Servicer shall have received the information specified in Section 6.10(d) within the time specified therein, the Backup Servicer shall compare the information on the computer tape or diskette (or other means of electronic transmission acceptable to the Backup Servicer) most recently delivered to the Backup Servicer by the Servicer pursuant to Section 6.10(d) with respect to such Remittance Date to the corresponding Monthly Remittance Report delivered to the Backup Servicer by the Servicer pursuant to Section 6.10(d) and shall: (a) confirm that such Monthly Remittance Report is complete on its face; (b) confirm the distributions to be made on such Remittance Date pursuant to Section 2.04(c) hereof to the extent the Backup Servicer is able to do so given the information provided to it by the Servicer (it being hereby agreed that the Backup Servicer shall promptly notify the Servicer and the Lender if such information is insufficient and that the Servicer shall promptly provide to the Backup Servicer any additional information required by the Backup Servicer); (c) confirm the mathematical computations of information in such Monthly Remittance Report; and (d) confirm such other information as the Backup Servicer and the Lender may agree. In the event of any discrepancy between the information set forth in subparagraphs (b) or (c) above as calculated by the Servicer and that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly report such discrepancy to the Servicer and the Lender. In the event of a discrepancy as described in the preceding sentence, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy within five (5) Business Days after reporting such discrepancy, but in the absence of a reconciliation, distributions on the related Remittance Date shall be made consistent with the information calculated by the Servicer, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy prior to the next Remittance Date, and the Servicer shall promptly report to the Lender regarding the progress, if any, which shall have been made in reconciling such discrepancy. If the Backup Servicer and the Servicer are unable to reconcile such discrepancy with respect to such Monthly Remittance Report by the next Remittance Date that falls in April, July, October or January, the Servicer shall cause independent accountants acceptable to the Lender, at the Servicer’s expense, to examine such Monthly Remittance Report and attempt to reconcile such discrepancy at the earliest possible date (and the Servicer shall promptly provide the Lender with a report regarding such event). The effect, if any, of such reconciliation shall be reflected in the Monthly Remittance Report for the next succeeding Remittance Date. The provisions of this paragraph shall be referred to herein as the “Discrepancy Procedure”. Other than as specifically set forth in this Agreement, the Backup Servicer shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer and shall have no liability for any action taken or omitted by the Servicer. The Backup Servicer may allow a subservicer to perform any and all of its duties and responsibilities hereunder, including but not limited to its duties as successor Servicer hereunder, should the Backup Servicer become the successor Servicer pursuant to the terms of this Agreement; provided, however, that the Backup Servicer shall remain liable for the performance of all of its duties and obligations ~~hereunder to the same extent as if no such subservicing had occurred. In no event shall~~ under the Backup ~~Servicer (either prior~~ Servicing Agreement and to ~~or after its appointment hereunder as Servicer) be responsible or liable for any failure or delay in~~ carry out the ~~performance~~ intent of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including without limitation, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of Godthe parties hereto.

Appears in 1 contract

Sources: Loan and Security Agreement (Exela Technologies, Inc.)

Backup Servicer. If a Servicer Default shall occur, then the Lender may, by notice to the Servicer, the Borrower and the Backup Servicer, terminate all of the rights and obligations of the Servicer under this Agreement. Upon the delivery to the Servicer of such notice, all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Assets or otherwise, shall pass to and be vested in the Backup Servicer pursuant to and under this Section (unless the Lender shall have appointed a different successor Servicer pursuant to Section 6.01 hereof or the Backup Servicer is unable to act as Servicer and a successor is appointed as provided in the fourth paragraph of this Section 6.13), and, without limitation, the Backup Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination or to perform the duties of the Servicer under this Agreement including, without limitation, to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06. The Servicer agrees to cooperate with the Lender and the Backup Servicer in effecting the termination of the Servicer’s responsibilities and rights hereunder, including, without limitation, providing notification to the Obligors of the assignment of the servicing function, providing notification to the Lender’s Bank of the Backup Servicer’s right to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06, providing the Backup Servicer, at the Servicer’s 's expense, with all records, in electronic or other form, reasonably requested by the Backup Servicer, in such form as the Backup Servicer may reasonably request and at such times as the Backup Servicer may reasonably request, to enable the Backup Servicer to assume the servicing functions hereunder and the transfer to the Backup Servicer for administration by it of all cash amounts which at the time should be or should have been deposited by the Servicer in the Collection Account or thereafter be received by the Servicer with respect to the Pledged Receivables. Additionally, the Servicer agrees to cooperate in providing, at the Servicer’s expense, the Backup Servicer as successor Servicer, with reasonable access (including at the premises of the Servicer) to Servicer’s employees and any and all books, records or other information reasonably requested by it to enable the Backup Servicer, as successor Servicer, to assume the servicing functions hereunder. Neither the Lender nor the Backup Servicer shall be deemed to have breached any obligation hereunder as a result of a failure to make or delay in making any distribution as and when required hereunder caused by the failure of the Servicer to remit any amounts received by it or to deliver any documents held by it with respect to the Pledged Assets. The Backup Servicer (including as successor Servicer) undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. The Active Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) on and after the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. The Standby Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) prior to the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. Any obligations of LEAF Financial under any Transaction Document other than in its capacity as Servicer shall continue in effect notwithstanding LEAF Financial’s termination as Servicer. On and after the time the Servicer receives a notice of termination pursuant to this Section 6.13, the Backup Servicer shall be (and the Backup Servicer hereby agrees to be) the successor in all respects to the Servicer in its capacity as Servicer under this Agreement and the transactions set forth or provided for herein and shall have all the rights and powers and be subject thereafter to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof; provided, however, that any failure to perform such duties or responsibilities caused by the Servicer’s failure to provide information required by this Section 6.13 shall not be considered a default by the Backup Servicer hereunder; provided, further, however, that the Backup Servicer, as successor Servicer, shall have (i) no liability with respect to any obligation which was required to be performed by the terminated Servicer prior to the date that the Backup Servicer becomes the successor to the Servicer or any claim of a third party based on any alleged action or inaction of the terminated Servicer, (ii) no obligation to perform any repurchase or advancing obligations, if any, of the Servicer, (iii) no obligation to pay any taxes required to be paid by the Servicer (provided that the Backup Servicer shall pay any income taxes for which it is liable), (iv) no obligation to pay any of the fees and expenses of any other party to the transactions contemplated hereby, and (v) no liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer, including the original Servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer, are expressly limited to those arising on account of its failure to act in good faith and with reasonable care under the circumstances. In addition, the Backup Servicer shall have no liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, the Lender may, or shall, if the Backup Servicer is unable to so act, appoint itself, or appoint any other established servicing institution acceptable to the Lender in its sole discretion, as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. Pending appointment of a successor to the Servicer hereunder, and after the Lender notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer (or the Lender if there is no Backup Servicer) shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the Lender may make such arrangements for the compensation of such successor out of payments on Pledged Receivables as it and such successor shall agree; provided, however, that, except as provided herein, no such compensation shall be in excess of that permitted the Servicer hereunder, unless (i) agreed to by the Lender and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the Lender and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The parties hereto agree that in no event will the Backup Servicer be liable for any special, indirect or consequential damages. The Backup Servicer hereby agrees that it shall, and shall take all actions necessary so that it shall at all times be ready to, assume all the rights and powers and all of the responsibilities, obligations and duties of the Servicer hereunder, within ten (10) Business Days of receiving from the Lender a notice requesting the Backup Servicer to do so. Notwithstanding anything contained in this Agreement to the contrary, absent specific knowledge by any Lyon Financial Services, Inc. account representative assigned to this transaction from time to time, or written notice detailing specific Errors (as defined below) or other deficiencies, Lyon Financial Services, Inc., as successor Servicer, is authorized to accept and rely on all accounting records (including computer records) and work product of the prior Servicer hereunder relating to the Contracts (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and Lyon Financial Services, Inc. shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer. If any error, inaccuracy, commission or incorrect or nonstandard practice or procedure (collectively, “Errors”) exists in any Predecessor Servicer Work Product and such Errors cause Lyon Financial Services, Inc. to make or continue any errors (collectively, “Continued Errors”), Lyon Financial Services, Inc. shall have no liability for such Continued Errors; provided, however, that Lyon Financial Services, Inc. agrees to use its best efforts to prevent Continued Errors. In the event that Lyon Financial Services, Inc. becomes aware of Errors or Continued Errors, Lyon Financial Services, Inc. shall, with the prior consent of the Lender, use ~~commercially reasonable~~ its best efforts to reconstruct and reconcile any affected data as is commercially reasonable to correct such Errors and Continued Errors and to prevent future Continued Errors. Lyon Financial Services, Inc. shall be entitled to recover its costs thereby expended as Servicer Advances in accordance with Section 2.04(c) hereof. Within four (4) Business Days after each Remittance Date, provided that the Backup Servicer shall have received the information specified in Section 6.10(d) within the time specified therein, the Backup Servicer shall compare the information on the computer tape or diskette (or other means of electronic transmission acceptable to the Backup Servicer) most recently delivered to the Backup Servicer by the Servicer pursuant to Section 6.10(d) with respect to such Remittance Date to the corresponding Monthly Remittance Report delivered to the Backup Servicer by the Servicer pursuant to Section 6.10(d) and shall: (a) confirm that such Monthly Remittance Report is complete on its face; (b) confirm the distributions to be made on such Remittance Date pursuant to Section 2.04(c) hereof to the extent the Backup Servicer is able to do so given the information provided to it by the Servicer (it being hereby agreed that the Backup Servicer shall promptly notify the Servicer and the Lender if such information is insufficient and that the Servicer shall promptly provide to the Backup Servicer any additional information required by the Backup Servicer); (c) confirm the mathematical computations of information in such Monthly Remittance Report; and (d) confirm such other information as the Backup Servicer and the Lender may agree. ; In the event of any discrepancy between the information set forth in subparagraphs (b) or (c) above as calculated by the Servicer and that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly report such discrepancy to the Servicer and the Lender. In the event of a discrepancy as described in the preceding sentence, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy within five (5) Business Days after reporting such discrepancy, but in the absence of a reconciliation, distributions on the related Remittance Date shall be made consistent with the information calculated by the Servicer, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy prior to the next Remittance Date, and the Servicer shall promptly report to the Lender regarding the progress, if any, which shall have been made in reconciling such discrepancy. If the Backup Servicer and the Servicer are unable to reconcile such discrepancy with respect to such Monthly Remittance Report by the next Remittance Date that falls in April, July, October or January, the Servicer shall cause independent accountants acceptable to the Lender, at the Servicer’s expense, to examine such Monthly Remittance Report and attempt to reconcile such discrepancy at the earliest possible date (and the Servicer shall promptly provide the Lender with a report regarding such event). The effect, if any, of such reconciliation shall be reflected in the Monthly Remittance Report for the next succeeding Remittance Date. ~~The provisions of this paragraph shall be referred to herein as the “Discrepancy Procedure”.~~ Other than as specifically set forth in this Agreement, the Backup Servicer shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer and shall have no liability for any action taken or omitted by the Servicer. The Backup Servicer may allow a subservicer to perform any and all of its duties and responsibilities hereunder, including but not limited to its duties as successor Servicer hereunder, should the Backup Servicer become the successor Servicer pursuant to the terms of this Agreement; provided, however, that the Backup Servicer shall remain liable for the performance of all of its duties and obligations hereunder to the same extent as if no such subservicing had occurred. In no event shall the Backup Servicer (either prior to or after its appointment hereunder as Servicer) be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including without limitation, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God.

Appears in 1 contract

Sources: Receivables Loan and Security Agreement (Resource America Inc)

Backup Servicer. ~~If a~~ (a) Within forty-five (45) days of the Funding Date, the Initial Servicer ~~Default~~ shall ~~occur, then the Lender may, by notice~~ be delivering reporting reasonably satisfactory to the Backup Servicer for the Backup Servicer to perform the role of backup servicer with respect to the servicing, administration of the Collateral and collection of the Receivables. The Backup Servicer shall perform such roles and responsibilities set forth in the Backup Servicing Agreement. Each of the Initial Servicer and the Borrower hereby covenant and agree to perform each of the roles and responsibilities set forth therein to be performed by the Borrower and/or Initial Servicer. (b) Until the Backup Servicer or another Successor Servicer succeeds Initial Servicer as Servicer upon the occurrence of the Servicing Transfer Date, Initial Servicer shall continue to perform all servicing functions in accordance with the Transaction Documents, notwithstanding the appointment of the Backup Servicer. The Initial Servicer hereby covenants and agrees that the Initial Servicer shall provide the Backup Servicer with all necessary servicing files and records relating to the Contracts, Receivables and Related Security and the other Collateral and the Initial Servicer shall provide to the Backup Servicer reasonable access to and use by the Backup Servicer of all licenses, software, hardware, equipment, telephone, personnel, servicing systems, employees, facilities or other accommodations necessary or desirable to perform the backup servicing functions as set forth in the Backup Servicing Agreement. (c) Notwithstanding anything to the contrary set forth in this Section 9.08, each of the Borrower and the ~~Backup Servicer, terminate all of the rights and obligations of the~~ Initial Servicer ~~under this Agreement. Upon the delivery to the Servicer of such notice, all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Assets or otherwise,~~ shall pass to and be vested in the Backup Servicer pursuant to and under this Section (unless the Lender shall have appointed a different successor Servicer pursuant to Section 6.01 hereof or the Backup Servicer is unable to act as Servicer and a successor is appointed as provided in the fourth paragraph of this Section 6.13), and, without limitation, the Backup Servicer is hereby authorized and empowered to execute and ~~deliver, on behalf of the Servicer, as attorney-in-fact or otherwise,~~ deliver any and all additional papers, documents and other ~~instruments~~assurances, and to shall do ~~or accomplish~~ any and all ~~other~~ acts or and things reasonably necessary or appropriate to effect the purposes of such notice of termination or to perform the duties of the Servicer under this Agreement including, without limitation, to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06. The Servicer agrees to cooperate in connection with the ~~Lender and the~~ appointment of a Backup Servicer ~~in effecting the termination of the Servicer’s responsibilities~~ and rights hereunder, including, without limitation, providing notification to the Obligors of the assignment of the servicing function, providing notification to the Lender’s Bank of the Backup Servicer’s right to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06, providing the Backup Servicer, at the Servicer’s expense, with all records, in electronic or other form, reasonably requested by the Backup Servicer, in such form as the Backup Servicer may reasonably request and at such times as the Backup Servicer may reasonably request, to enable the Backup Servicer to assume the servicing functions hereunder and the transfer to the Backup Servicer for administration by it of all cash amounts which at the time should be or should have been deposited by the Servicer in the Collection Account or thereafter be received by the Servicer with respect to the Pledged Receivables. Additionally, the Servicer agrees to cooperate in providing, at the Servicer’s expense, the Backup Servicer as successor Servicer, with reasonable access (including at the premises of the Servicer) to Servicer’s employees and any and all books, records or other information reasonably requested by it to enable the Backup Servicer, as successor Servicer, to assume the servicing functions hereunder. Neither the Lender nor the Backup Servicer shall be deemed to have breached any obligation hereunder as a result of a failure to make or delay in making any distribution as and when required hereunder caused by the failure of the Servicer to remit any amounts received by it or to deliver any documents held by it with respect to the Pledged Assets. The Backup Servicer (including as successor Servicer) undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. The Active Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) on and after the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. The Standby Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) prior to the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. Any obligations of LEAF Financial under any Transaction Document other than in its capacity as Servicer shall continue in effect notwithstanding LEAF Financial’s termination as Servicer. On and after the time the Servicer receives a notice of termination pursuant to this Section 6.13, the Backup Servicer shall be (and the Backup Servicer hereby agrees to be) the successor in all respects to the Servicer in its capacity as Servicer under this Agreement and the transactions set forth or provided for herein and shall have all the rights and powers and be subject thereafter to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof; provided, however, that any failure to perform such duties or responsibilities caused by the Servicer’s failure to provide information required by this Section 6.13 shall not be considered a default by the Backup Servicer hereunder; provided, further, however, that the Backup Servicer, as successor Servicer, shall have (i) no liability with respect to any obligation which was required to be performed by the terminated Servicer prior to the date that the Backup Servicer becomes the successor to the Servicer or any claim of a third party based on any alleged action or inaction of the terminated Servicer, (ii) no obligation to perform any repurchase or advancing obligations, if any, of the Servicer, (iii) no obligation to pay any taxes required to be paid by the Servicer (provided that the Backup Servicer shall pay any income taxes for which it is liable), (iv) no obligation to pay any of the fees and expenses of any other party to the transactions contemplated hereby, and (v) no liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer, including the original Servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer, are expressly limited to those arising on account of its failure to act in good faith and with reasonable care under the circumstances. In addition, the Backup Servicer shall have no liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, the Lender may, or shall, if the Backup Servicer is unable to so act, appoint itself, or appoint any other established servicing institution acceptable to the Lender in its sole discretion, as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. Pending appointment of a successor to the Servicer hereunder, and after the Lender notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer (or the Lender if there is no Backup Servicer) shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the Lender may make such arrangements for the compensation of such successor out of payments on Pledged Receivables as it and such successor shall agree; provided, however, that, except as provided herein, no such compensation shall be in excess of that permitted the Servicer hereunder, unless (i) agreed to by the Lender and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the Lender and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The parties hereto agree that in no event will the Backup Servicer be liable for any special, indirect or consequential damages. The Backup Servicer hereby agrees that it shall, and shall take all actions necessary so that it shall at all times be ready to, assume all the rights and powers and all of the responsibilities, obligations and duties of the Servicer hereunder, within ten (10) Business Days of receiving from the Lender a notice requesting the Backup Servicer to do so. Notwithstanding anything contained in this Agreement to the contrary, absent specific knowledge by any Lyon Financial Services, Inc. account representative assigned to this transaction from time to time, or written notice detailing specific Errors (as defined below) or other deficiencies, Lyon Financial Services, Inc., as successor Servicer, is authorized to accept and rely on all accounting records (including computer records) and work product of the prior Servicer hereunder relating to the Contracts (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and Lyon Financial Services, Inc. shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer. If any error, inaccuracy, commission or incorrect or nonstandard practice or procedure (collectively, “Errors”) exists in any Predecessor Servicer Work Product and such Errors cause Lyon Financial Services, Inc. to make or continue any errors (collectively, “Continued Errors”), Lyon Financial Services, Inc. shall have no liability for such Continued Errors; provided, however, that Lyon Financial Services, Inc. agrees to use its best efforts to prevent Continued Errors. In the event that Lyon Financial Services, Inc. becomes aware of Errors or Continued Errors, Lyon Financial Services, Inc. shall, with the prior consent of the Lender, use commercially reasonable efforts to reconstruct and reconcile any affected data to correct such Errors and Continued Errors and to prevent future Continued Errors. Lyon Financial Services, Inc. shall be entitled to recover its costs thereby expended as Servicer Advances in accordance with Section 2.04(c) hereof. Within four (4) Business Days after each Remittance Date, provided that the Backup Servicer shall have received the information specified in Section 6.10(d) within the time specified therein, the Backup Servicer shall compare the information on the computer tape or diskette (or other means of electronic transmission acceptable to the Backup Servicer) most recently delivered to the Backup Servicer by the Servicer pursuant to Section 6.10(d) with respect to such Remittance Date to the corresponding Monthly Remittance Report delivered to the Backup Servicer by the Servicer pursuant to Section 6.10(d) and shall: (a) confirm that such Monthly Remittance Report is complete on its face; (b) confirm the distributions to be made on such Remittance Date pursuant to Section 2.04(c) hereof to the extent the Backup Servicer is able to do so given the information provided to it by the Servicer (it being hereby agreed that the Backup Servicer shall promptly notify the Servicer and the Lender if such information is insufficient and that the Servicer shall promptly provide to the Backup Servicer any additional information required by the Backup Servicer); (c) confirm the mathematical computations of information in such Monthly Remittance Report; and (d) confirm such other information as the Backup Servicer and the Lender may agree. In the event of any discrepancy between the information set forth in subparagraphs (b) or (c) above as calculated by the Servicer and that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly report such discrepancy to the Servicer and the Lender. In the event of a discrepancy as described in the preceding sentence, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy within five (5) Business Days after reporting such discrepancy, but in the absence of a reconciliation, distributions on the related Remittance Date shall be made consistent with the information calculated by the Servicer, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy prior to the next Remittance Date, and the Servicer shall promptly report to the Lender regarding the progress, if any, which shall have been made in reconciling such discrepancy. If the Backup Servicer and the Servicer are unable to reconcile such discrepancy with respect to such Monthly Remittance Report by the next Remittance Date that falls in April, July, October or January, the Servicer shall cause independent accountants acceptable to the Lender, at the Servicer’s expense, to examine such Monthly Remittance Report and attempt to reconcile such discrepancy at the earliest possible date (and the Servicer shall promptly provide the Lender with a report regarding such event). The effect, if any, of such reconciliation shall be reflected in the Monthly Remittance Report for the next succeeding Remittance Date. The provisions of this paragraph shall be referred to herein as the “Discrepancy Procedure”. Other than as specifically set forth in this Agreement, the Backup Servicer shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer and shall have no liability for any action taken or omitted by the Servicer. The Backup Servicer may allow a subservicer to perform any and all of its duties and responsibilities hereunder, including but not limited to its duties as successor Servicer hereunder, should the Backup Servicer become the successor Servicer pursuant to the terms of this Agreement; provided, however, that the Backup Servicer shall remain liable for the performance of all of its duties and obligations ~~hereunder to the same extent as if no such subservicing had occurred. In no event shall~~ under the Backup ~~Servicer (either prior~~ Servicing Agreement and to ~~or after its appointment hereunder as Servicer) be responsible or liable for any failure or delay in~~ carry out the ~~performance~~ intent of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including without limitation, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of Godthe parties hereto.

Appears in 1 contract

Sources: Loan and Security Agreement (Exela Technologies, Inc.)

Backup Servicer. If a Servicer Default shall ~~occur~~occur and is continuing, then the ~~Lender~~ Agent may, by notice to the Servicer, the Borrower and the Backup Servicer, terminate all of the rights and obligations of the Servicer under this Agreement. Upon the delivery to the Servicer and the Backup Servicer of such notice, all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Assets or otherwise, shall pass to and be vested in the Backup Servicer pursuant to and under this Section (unless the Lender shall have appointed a different successor Servicer pursuant to Section 6.01 hereof or the Backup Servicer is unable to act as Servicer and a successor is appointed as provided in the fourth paragraph of this Section 6.13)Section, and, without limitation, the Backup Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination or to perform the duties of the Servicer under this ~~Agreement including, without limitation, to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06~~Agreement. The Servicer agrees to cooperate with the ~~Lender~~ Agent and the Backup Servicer in effecting the termination of the Servicer’s 's responsibilities and rights hereunder, including, without limitation, ~~providing~~ notification to the Obligors of the assignment of the servicing function, providing ~~notification to the Lender’s Bank of~~ the Backup Servicer’s right to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06, providing the Backup Servicer, at the Servicer’s expense, Servicer with all records, in electronic or other form, reasonably requested by ~~the Backup Servicer, in such form as the Backup Servicer may reasonably request and at such times as the Backup Servicer may reasonably request,~~ it to enable the Backup Servicer to assume the servicing functions hereunder and the transfer to the Backup Servicer for administration by it of all cash amounts which at the time should be or should have been deposited by the Servicer in the Collection Account or thereafter be received by the Servicer with respect to the Pledged Receivables. Additionally, the Servicer agrees to cooperate in providing, at the Servicer’s expense, the Backup Servicer as successor Servicer, with reasonable access (including at the premises of the Servicer) to Servicer’s employees and any and all books, records or other information reasonably requested by it to enable the Backup Servicer, as successor Servicer, to assume the servicing functions hereunder. Neither the ~~Lender~~ Agent nor the Backup Servicer shall be deemed to have breached any obligation hereunder as a result of a failure to make or delay in making any distribution as and when required hereunder caused by the failure of the Servicer to remit any amounts received by it or to deliver any documents held by it with respect to the Pledged Assets. The Backup ~~Servicer (including as successor~~ Servicer~~) undertakes to perform only such duties~~ 's Fees and ~~obligations as are specifically set forth in this Agreement, it being understood by all parties hereto that there are no implied duties or obligations~~ other expenses of the Backup Servicer ~~hereunder. The Active Backup Servicer’s Fees and Transition Costs~~ reimbursable hereunder for any successor Servicer shall be paid out of Collections ~~with respect to any Pledged Receivable~~ as set forth in Section ~~2.04(c~~2.05(c) on and after the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. The ~~Standby~~ Backup ~~Servicer’s Fees and Transition Costs~~ Servicer shall be ~~paid out of Collections~~ required to pay all expenses incurred by it in connection with its servicing activities hereunder and shall not be entitled to reimbursement therefor, except with respect to ~~any Pledged Receivable as set forth in Section 2.04(c) prior to the date, if any, that~~ reasonable out-of-pocket expenses of the Backup Servicer ~~assumes~~ incurred in connection with (i) the ~~responsibilities~~ foreclosure and disposition of any Interval in excess of the ~~Servicer pursuant~~ costs associated with the taking back of the deed relating to ~~this Section~~such Interval in lieu of foreclosure and (ii) enforcing or collecting upon Acceptable Title Policies. Any obligations of ~~LEAF Financial under any Transaction Document~~ SRI hereunder other than in its capacity as Servicer shall continue in effect notwithstanding ~~LEAF Financial’s~~ SRI's termination as Servicer. On and after the time the Servicer receives a notice of termination pursuant to this Section ~~6.13~~6.14, the Backup Servicer shall be (and the Backup Servicer hereby agrees to be) the successor in all respects to the Servicer in its capacity as Servicer under this Agreement and the transactions set forth or provided for herein and shall have all the rights and powers and be subject thereafter to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof; provided, however, that any failure to perform such duties or responsibilities caused by the Servicer’s 's failure to provide information required by this Section ~~6.13~~ 6.14 shall not be considered a default by the Backup Servicer hereunder~~; provided, further, however, that the~~ . The Backup ~~Servicer, as successor Servicer,~~ Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the terminated Servicer prior to the date that the Backup Servicer becomes the successor to the Servicer or any claim of a third party based on any alleged action or inaction of the terminated Servicer, (ii) no obligation to perform any repurchase or advancing obligations, if any, of the Servicer, (iii) no obligation to pay any taxes required to be paid by the Servicer (provided that the Backup Servicer shall pay any income taxes for which it is liable), (iv) no obligation to pay any of the fees and expenses of any other party to the transactions contemplated hereby, ~~and~~ (v) no liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer, including the original ~~Servicer~~Servicer and (vi) no obligation, when the Backup Servicer is Wells Fargo, to comply with the collection procedures set forth in th▇ ▇▇▇dit and Collection Policy, but rather shall service the Pledged Receivables in accordance with the provisions of Section 6.01(b). The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer, are expressly limited to those arising on account of its failure to act in good faith and with reasonable care under the circumstances. In addition, the Backup Servicer shall have no liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, the ~~Lender~~ Agent may, if the Backup Servicer shall be unwilling to so act, or shall, if the Backup Servicer is unable to so act, or if the Lender so requests in writing to the Agent, appoint itself, or appoint any ~~other~~ established servicing institution acceptable to the ~~Lender in its sole discretion~~Agent, as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. Pending appointment of a successor to the Servicer hereunder, and after the ~~Lender~~ Agent notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer (or the ~~Lender~~ Agent if there is no Backup Servicer) shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the ~~Lender~~ Agent may make such arrangements for the compensation of such successor out of payments on Pledged Receivables as it and such successor shall agree; provided, however, that, except as provided herein, no such compensation shall be in excess of that permitted the Servicer hereunder, unless ~~(i)~~ otherwise agreed to by the ~~Lender and (ii) such compensation shall be on commercially competitive terms and rates~~Lender. The Borrower, the ~~Lender~~ Agent and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The ~~parties hereto agree that in no event will the~~ Backup Servicer ~~be liable for~~ may perform any ~~special, indirect~~ of its duties hereunder either directly or consequential damages. The Backup Servicer hereby agrees that it shall, and shall take all actions necessary so that it shall at all times be ready to, assume all the rights and powers and all of the responsibilities, obligations and duties of the Servicer hereunder, within ten (10) Business Days of receiving from the Lender a notice requesting the Backup Servicer to do so. Notwithstanding anything contained in this Agreement through an agent reasonably acceptable to the contrary, absent specific knowledge by any Lyon Financial Services, Inc. account representative assigned to this transaction from time to time, or written notice detailing specific Errors (as defined below) or other deficiencies, Lyon Financial Services, Inc., as successor Servicer, is authorized to accept and rely on all accounting records (including computer records) and work product of the prior Servicer hereunder relating to the Contracts (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and Lyon Financial Services, Inc. shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer. If any error, inaccuracy, commission or incorrect or nonstandard practice or procedure (collectively, “Errors”) exists in any Predecessor Servicer Work Product and such Errors cause Lyon Financial Services, Inc. to make or continue any errors (collectively, “Continued Errors”), Lyon Financial Services, Inc. shall have no liability for such Continued Errors; provided, however, that Lyon Financial Services, Inc. agrees to use its best efforts to prevent Continued Errors. In the event that Lyon Financial Services, Inc. becomes aware of Errors or Continued Errors, Lyon Financial Services, Inc. shall, with the prior consent of the Lender, use commercially reasonable efforts to reconstruct and reconcile any affected data to correct such Errors and Continued Errors and to prevent future Continued Errors. Lyon Financial Services, Inc. shall be entitled to recover its costs thereby expended as Servicer Advances in accordance with Section 2.04(c) hereof. Within four (4) Business Days after each Remittance Date, Agent provided that the Backup Servicer shall ~~have received~~ be responsible to the ~~information specified~~ other parties to this Agreement for the performance of any such agent and such appointment shall in ~~Section 6.10(d) within~~ no way affect the ~~time specified therein~~primary performance obligation of the Backup Servicer hereunder to the other parties to this Agreement. Prior to each Remittance Date, the Backup Servicer shall compare the information on the computer tape or diskette (or other means of electronic transmission acceptable to the Backup Servicer) most recently delivered to the Backup Servicer by the Servicer pursuant to Section ~~6.10(d~~6.11(e) ~~with respect to such Remittance Date~~ to the ~~corresponding~~ Monthly Remittance Report most recently delivered to the Backup Servicer by the Servicer pursuant to Section ~~6.10(d~~6.11(e) and shall: (a) confirm that such Monthly Remittance Report is complete on its face; (b) confirm the distributions to be made on such Remittance Date pursuant to Section 2.04(c) hereof to the extent the Backup Servicer is able to do so given the information provided to it by the Servicer (it being hereby agreed that the Backup Servicer shall promptly notify the Servicer and the Lender if such information is insufficient and that the Servicer shall promptly provide to the Backup Servicer any additional information required by the Backup Servicer); (c) confirm the mathematical computations of information in such Monthly Remittance Report; and (d) confirm such other information as the Backup Servicer and the Lender may agree. In the event of any discrepancy between the information set forth in subparagraphs (b) or (c) above as calculated by the Servicer and that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly report such discrepancy to the Servicer and the Lender. In the event of a discrepancy as described in the preceding sentence, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy within five (5) Business Days after reporting such discrepancy, but in the absence of a reconciliation, distributions on the related Remittance Date shall be made consistent with the information calculated by the Servicer, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy prior to the next Remittance Date, and the Servicer shall promptly report to the Lender regarding the progress, if any, which shall have been made in reconciling such discrepancy. If the Backup Servicer and the Servicer are unable to reconcile such discrepancy with respect to such Monthly Remittance Report by the next Remittance Date that falls in April, July, October or January, the Servicer shall cause independent accountants acceptable to the Lender, at the Servicer’s expense, to examine such Monthly Remittance Report and attempt to reconcile such discrepancy at the earliest possible date (and the Servicer shall promptly provide the Lender with a report regarding such event). The effect, if any, of such reconciliation shall be reflected in the Monthly Remittance Report for the next succeeding Remittance Date. The provisions of this paragraph shall be referred to herein as the “Discrepancy Procedure”. Other than as specifically set forth in this Agreement, the Backup Servicer shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer and shall have no liability for any action taken or omitted by the Servicer. The Backup Servicer may allow a subservicer to perform any and all of its duties and responsibilities hereunder, including but not limited to its duties as successor Servicer hereunder, should the Backup Servicer become the successor Servicer pursuant to the terms of this Agreement; provided, however, that the Backup Servicer shall remain liable for the performance of all of its duties and obligations hereunder to the same extent as if no such subservicing had occurred. In no event shall the Backup Servicer (either prior to or after its appointment hereunder as Servicer) be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including without limitation, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God.

Appears in 1 contract

Sources: Receivables Loan and Security Agreement (Silverleaf Resorts Inc)

Backup Servicer. If (a) Prior to assuming any of the Servicer's rights and obligations hereunder the Backup Servicer shall only be responsible to perform those duties specifically imposed upon it by the provisions hereof and shall have no obligations or duties under any agreement to which it is not a party, including but not limited to the various agreements named herein. Such duties generally relate to following the provisions herein which would permit the Backup Servicer ~~Default shall occur~~to assume some or all of the Servicer's rights and obligations hereunder with reasonable dispatch, ~~then~~ following notice. The Backup Servicer, prior to assuming any of the ~~Lender may~~Servicer's duties hereunder, by may not resign hereunder unless it gives not less than 60 days' prior written notice to the ~~Servicer~~Class A Note Agent, the ~~Borrower~~ Servicer and the Seller. No such resignation shall be effective until a successor Backup Servicer shall have been appointed pursuant hereto. In the event of the resignation of the Backup Servicer, ~~terminate all~~ the Servicer shall appoint a successor Backup Servicer reasonably acceptable to the Class A Note Agent and the Seller. If no Backup Servicer shall have been appointed on the scheduled date of the rights and obligations of the Servicer under this Agreement. Upon the delivery to the Servicer of such notice, all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Assets or otherwise, shall pass to and be vested in the Backup Servicer pursuant to and under this Section (unless the Lender shall have appointed a different successor Servicer pursuant to Section 6.01 hereof or the Backup Servicer is unable to act as Servicer and a successor is appointed as provided in the fourth paragraph of this Section 6.13), and, without limitationServicer's resignation, the Backup Servicer may petition a court of competent jurisdiction to appoint any established housing and home finance institution, bank or other mortgage loan or contract servicer having a net worth of not less than $25,000,000 as the successor to the Backup Servicer hereunder. (b) The Backup Servicer shall not be required to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if the repayment of such funds or adequate written indemnity against such risk or liability is ~~hereby authorized~~ not reasonably assured to it in writing prior to the expenditure or risk of such funds or incurrence of financial liability. Notwithstanding any provision to the contrary, the Backup Servicer, in its capacity as such, and ~~empowered to execute and deliver~~not in its capacity as Successor Servicer, ~~on behalf~~ shall not be liable for any obligation of the Servicer contained in this Agreement, and the parties shall look only to the Servicer to perform such obligations. (c) The Servicer shall have no liability, direct or indirect, to any party, for the acts or omissions of the Backup Servicer, ~~as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other~~ whenever such acts or ~~things necessary or appropriate~~ omissions occur whenever such liability is imposed. (d) Notwithstanding anything to ~~effect~~ the ~~purposes of such notice of termination or~~ contrary herein, the Class A Note Agent shall have the right to remove the Backup Servicer for cause at any time and replace the Backup Servicer. In the event that the Class A Note Agent exercises its right to remove and replace The Chase Manhattan Bank as Backup Servicer, The Chase Manhattan Bank shall have no further obligation to perform the duties of the Backup Servicer under this ~~Agreement including~~Agreement. (e) The Servicer shall provide monthly, ~~without limitation~~or as otherwise requested, to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06. The Servicer agrees to cooperate with the Lender and the Backup Servicer in effecting the termination of the Servicer’s responsibilities and rights hereunder, including, without limitation, providing notification to the Obligors of the assignment of the servicing function, providing notification to the Lender’s Bank of the Backup Servicer’s right to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06, providing the Backup Servicer, at or its agent, information on the Servicer’s expense, with all records, in electronic or other form, reasonably requested by the Backup Servicer, in such form as the Backup Servicer may reasonably request and at such times as the Backup Servicer may reasonably request, Receivables sufficient to enable the Backup Servicer to assume the ~~servicing functions hereunder~~ responsibilities as successor servicer and collect on the ~~transfer to the Backup Servicer for administration by it of all cash amounts which at the time should be or should have been deposited by the Servicer~~ Receivables. (f) Except as provided in ~~the Collection Account or thereafter be received by the Servicer with respect to the Pledged Receivables. Additionally, the Servicer agrees to cooperate in providing, at the Servicer’s expense~~this Agreement, the Backup Servicer ~~as successor Servicer, with reasonable access (including at the premises of the Servicer) to Servicer’s employees~~ may accept and ~~any and~~ reasonably rely on all ~~books~~accounting, records or other information reasonably requested by it to enable the Backup Servicer, as successor Servicer, to assume the servicing functions hereunder. Neither the Lender nor the Backup Servicer shall be deemed to have breached any obligation hereunder as a result of a failure to make or delay in making any distribution as and ~~when required hereunder caused by the failure~~ work of the Servicer to remit any amounts received by it or to deliver any documents held by it with respect to the Pledged Assets. The Backup Servicer (including as successor Servicer) undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. The Active Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) on and after the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. The Standby Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) prior to the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. Any obligations of LEAF Financial under any Transaction Document other than in its capacity as Servicer shall continue in effect notwithstanding LEAF Financial’s termination as Servicer. On and after the time the Servicer receives a notice of termination pursuant to this Section 6.13, the Backup Servicer shall be (and the Backup Servicer hereby agrees to be) the successor in all respects to the Servicer in its capacity as Servicer under this Agreement and the transactions set forth or provided for herein and shall have all the rights and powers and be subject thereafter to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof; provided, however, that any failure to perform such duties or responsibilities caused by the Servicer’s failure to provide information required by this Section 6.13 shall not be considered a default by the Backup Servicer hereunder; provided, further, however, that the Backup Servicer, as successor Servicer, shall have (i) no liability with respect to any obligation which was required to be performed by the terminated Servicer prior to the date that the Backup Servicer becomes the successor to the Servicer or any claim of a third party based on any alleged action or inaction of the terminated Servicer, (ii) no obligation to perform any repurchase or advancing obligations, if any, of the Servicer, (iii) no obligation to pay any taxes required to be paid by the Servicer (provided that the Backup Servicer shall pay any income taxes for which it is liable), (iv) no obligation to pay any of the fees and expenses of any other party to the transactions contemplated herebywithout audit, and (v) no liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer, including the original Servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer, are expressly limited to those arising on account of its failure to act in good faith and with reasonable care under the circumstances. In addition, the Backup Servicer shall have no liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, the Lender may, or shall, if the Backup Servicer is unable to so act, appoint itself, or appoint any other established servicing institution acceptable to the Lender in its sole discretion, as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. Pending appointment of a successor to the Servicer hereunder, and after the Lender notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer (or the Lender if there is no Backup Servicer) shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the Lender may make such arrangements for the compensation of such successor out of payments on Pledged Receivables as it and such successor shall agree; provided, however, that, except as provided herein, no such compensation shall be in excess of that permitted the Servicer hereunder, unless (i) agreed to by the Lender and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the Lender and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The parties hereto agree that in no event will the Backup Servicer be liable for any special, indirect or consequential damages. The Backup Servicer hereby agrees that it shall, and shall take all actions necessary so that it shall at all times be ready to, assume all the rights and powers and all of the responsibilities, obligations and duties of the Servicer hereunder, within ten (10) Business Days of receiving from the Lender a notice requesting the Backup Servicer to do so. Notwithstanding anything contained in this Agreement to the contrary, absent specific knowledge by any Lyon Financial Services, Inc. account representative assigned to this transaction from time to time, or written notice detailing specific Errors (as defined below) or other deficiencies, Lyon Financial Services, Inc., as successor Servicer, is authorized to accept and rely on all accounting records (including computer records) and work product of the prior Servicer hereunder relating to the Contracts (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and Lyon Financial Services, Inc. shall have no duty, responsibility, obligation or liability for the acts ~~and~~ or omissions of the ~~prior~~ Servicer. If any error, ~~inaccuracy, commission~~ inaccuracy or ~~incorrect or nonstandard practice or procedure~~ omission (collectively, “"Errors”") exists in any ~~Predecessor Servicer Work Product~~ information received from the Servicer, and such Errors should cause ~~Lyon Financial Services, Inc.~~ or materially contribute to ~~make~~ the Backup Servicer making or ~~continue~~ continuing any ~~errors~~ Errors (collectively, “"Continued Errors”"), ~~Lyon Financial Services, Inc.~~ the Backup Servicer shall have no liability for such Continued Errors; provided, however, that Lyon Financial Services, Inc. agrees to use its best efforts to prevent Continued Errors. In the event that Lyon Financial Services, Inc. becomes aware of Errors or Continued Errors, Lyon Financial Services, Inc. shall, with the prior consent of the Lender, use commercially reasonable efforts to reconstruct and reconcile any affected data to correct such Errors and Continued Errors and to prevent future Continued Errors. Lyon Financial Services, Inc. this provision shall ~~be entitled to recover its costs thereby expended as Servicer Advances in accordance with Section 2.04(c) hereof. Within four (4) Business Days after each Remittance Date, provided that~~ not protect the Backup Servicer against any liability that would otherwise be imposed by reason of willful misconduct, bad faith or gross negligence in discovering or correcting any Error or in the performance of its or their duties hereunder or under this Agreement. (g) The Backup Servicer and its officers, directors, employees, representatives and agents shall ~~have received~~ be indemnified by the ~~information specified in Section 6.10(d) within the time specified therein~~Servicer from and against all claims, damages, losses or expenses incurred by the Backup Servicer ~~shall compare the information on the computer tape or diskette~~ (~~or other means~~ including reasonable attorney's fees and expenses) arising out of ~~electronic transmission acceptable to the Backup Servicer) most recently delivered to~~ claims asserted against the Backup Servicer by ~~the Servicer pursuant to Section 6.10(d) with respect to such Remittance Date~~ third parties on any matter arising out of this Agreement to the ~~corresponding Monthly Remittance Report delivered~~ extent the act or omission giving rise to the claim relates to an act or omission of the Servicer, the Seller, the Depositor or any of their Affiliates and accrues before the date on which the Backup Servicer assumes the duties of Servicer hereunder, and all claims, expenses, obligations, liabilities, losses, damages, injuries, penalties, stamp or other similar taxes, actions, suits, judgments, reasonable costs and expenses (including reasonable attorney's and agent's fees and expenses) of whatever kind or nature regardless of their merit, demanded, asserted or claimed against the Backup Servicer directly or indirectly relating to, or arising from, claims against the Backup Servicer by reason of its participation in the transactions contemplated hereby, including without limitation all reasonable costs required to be associated with claims for damages to persons or property, and reasonable attorneys' and consultants' fees and expenses and court costs except for any claims, damages, losses or expenses arising from the Backup Servicer's own gross negligence, bad faith or willful misconduct. The obligations of the Servicer ~~pursuant to~~ under this Section ~~6.10(d~~4.18(g) shall survive the satisfaction and ~~shall: (a) confirm that such Monthly Remittance Report is complete on its face; (b) confirm~~ discharge of this Agreement or the ~~distributions to be made on such Remittance Date pursuant to Section 2.04(c) hereof to the extent~~ earlier resignation or removal of the Backup Servicer is able to do so given the information provided to it by the Servicer (it being hereby agreed that the Backup Servicer shall promptly notify the Servicer and the Lender if such information is insufficient and that the Servicer shall promptly provide to the Backup Servicer any additional information required by the Backup Servicer); (c) confirm the mathematical computations of information in such Monthly Remittance Report; and (d) confirm such other information as the Backup Servicer and the Lender may agree. In the ~~event~~ absence of ~~any discrepancy between~~ bad faith on the ~~information set forth in subparagraphs (b) or (c) above as calculated by the Servicer and that determined or calculated by~~ part of the Backup Servicer, the Backup Servicer ~~shall promptly report such discrepancy~~ may conclusively rely, as to the ~~Servicer~~ truth of the statements and the ~~Lender~~correctness of the opinions expressed therein, upon any certificates or pinions furnished to the Backup Servicer which conform to the requirements of this Agreement. In The Backup Servicer shall not be liable for any error of judgment made in good faith by an officer or officers of the ~~event~~ Backup Servicer, unless it shall be conclusively determined by a court of ~~a discrepancy as described~~ competent jurisdiction that the Backup Servicer was grossly negligent in ascertaining the pertinent facts. Whenever in the ~~preceding sentence,~~ administration of the ~~Servicer and~~ provisions of this Agreement the Backup Servicer shall ~~attempt~~ deem it necessary or desirable that a matter be proved or established prior to ~~reconcile~~ taking or suffering any action to be taken hereunder, such ~~discrepancy within five~~ matter (5unless other evidence in respect thereof be herein specifically prescribed) ~~Business Days after reporting such discrepancy~~may, ~~but~~ in the absence of ~~a reconciliation, distributions~~ gross negligence or bad faith on the ~~related Remittance Date shall~~ part of the Backup Servicer, be ~~made consistent with the information calculated~~ deemed to be conclusively proved and established by a certificate signed by one of the Servicer~~, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy prior to the next Remittance Date~~'s officers, and ~~the Servicer shall promptly report~~ delivered to ~~the Lender regarding the progress, if any, which shall have been made in reconciling such discrepancy. If~~ the Backup Servicer and such certificate, in the ~~Servicer are unable to reconcile such discrepancy with respect to such Monthly Remittance Report by~~ absence of gross negligence or bad faith on the ~~next Remittance Date that falls in April~~part of the Backup Servicer, ~~July, October or January, the Servicer~~ shall ~~cause independent accountants acceptable~~ be full warrant to the ~~Lender~~Backup Servicer of any action taken, at suffered or omitted by it under the Servicer’s expense, to examine such Monthly Remittance Report and attempt to reconcile such discrepancy at the earliest possible date (and the Servicer shall promptly provide the Lender with a report regarding such event). The effect, if any, of such reconciliation shall be reflected in the Monthly Remittance Report for the next succeeding Remittance Date. The provisions of this ~~paragraph~~ Agreement upon the faith thereof. The Backup Servicer, in its capacity as such, may consult with counsel and the advice or any opinion of counsel shall be ~~referred to herein as the “Discrepancy Procedure”. Other than as specifically set forth~~ full and complete authorization and protection in ~~this Agreement, the Backup Servicer shall have no obligation to supervise, verify, monitor or administer the performance~~ respect of ~~the Servicer and shall have no liability for~~ any action taken or omitted by ~~the Servicer~~it hereunder in good faith and in accordance with such advice or opinion of counsel. The Backup ~~Servicer~~ Servicer, in its capacity as such, shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document. The Backup Servicer, in its capacity as such, may ~~allow a subservicer to~~ execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and ~~all of its duties and responsibilities hereunder, including but~~ shall not limited to its duties as successor Servicer hereunder, should the Backup Servicer become the successor Servicer pursuant to the terms of this Agreement; provided, however, that the Backup Servicer shall remain liable for the performance of all of its duties and obligations hereunder to the same extent as if no such subservicing had occurred. In no event shall the Backup Servicer (either prior to or after its appointment hereunder as Servicer) be responsible ~~or liable~~ for any ~~failure~~ willful misconduct or ~~delay in~~ negligence on the ~~performance~~ part of ~~its obligations hereunder arising out of~~ any agent, attorney, custodian or ~~caused by, directly or indirectly, forces beyond its control, including without limitation, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God~~nominee so appointed.

Appears in 1 contract

Sources: Sale and Servicing Agreement (Oakwood Homes Corp)

Backup Servicer. If a Servicer Default shall occur, then the Lender may, by notice to the Servicer, the Borrower and the Backup Servicer, terminate all of the rights and obligations of the Servicer under this Agreement. Upon the delivery to the Servicer of such notice, all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Assets or otherwise, shall pass to and be vested in the Backup Servicer pursuant to and under this Section (unless the Lender shall have appointed a different successor Servicer pursuant to Section 6.01 hereof or the Backup Servicer is unable to act as Servicer and a successor is appointed as provided in the fourth paragraph of this Section 6.13), and, without limitation, the Backup Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination or to perform the duties of the Servicer under this Agreement including, without limitation, to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06. The Servicer agrees to cooperate with the Lender and the Backup Servicer in effecting the termination of the Servicer’s responsibilities and rights hereunder, including, without limitation, providing notification to the Obligors of the assignment of the servicing function, providing notification to the Lender’s Bank of the Backup Servicer’s right to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06, providing the Backup Servicer, at the Servicer’s 's expense, with all records, in electronic or other form, reasonably requested by the Backup Servicer, in such form as the Backup Servicer may reasonably request and at such times as the Backup Servicer may reasonably request, to enable the Backup Servicer to assume the servicing functions hereunder and the transfer to the Backup Servicer for administration by it of all cash amounts which at the time should be or should have been deposited by the Servicer in the Collection Account or thereafter be received by the Servicer with respect to the Pledged Receivables. Additionally, the Servicer agrees to cooperate in providing, at the Servicer’s expense, the Backup Servicer as successor Servicer, with reasonable access (including at the premises of the Servicer) to Servicer’s employees and any and all books, records or other information reasonably requested by it to enable the Backup Servicer, as successor Servicer, to assume the servicing functions hereunder. Neither the Lender nor the Backup Servicer shall be deemed to have breached any obligation hereunder as a result of a failure to make or delay in making any distribution as and when required hereunder caused by the failure of the Servicer to remit any amounts received by it or to deliver any documents held by it with respect to the Pledged Assets. The Backup Servicer (including as successor Servicer) undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. The Active Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) on and after the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. The Standby Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) prior to the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. Any obligations of LEAF Financial under any Transaction Document other than in its capacity as Servicer shall continue in effect notwithstanding LEAF Financial’s termination as Servicer. On and after the time the Servicer receives a notice of termination pursuant to this Section 6.13, the Backup Servicer shall be (and the Backup Servicer hereby agrees to be) the successor in all respects to the Servicer in its capacity as Servicer under this Agreement and the transactions set forth or provided for herein and shall have all the rights and powers and be subject thereafter to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof; provided, however, that any failure to perform such duties or responsibilities caused by the Servicer’s failure to provide information required by this Section 6.13 shall not be considered a default by the Backup Servicer hereunder; provided, further, however, that the Backup Servicer, as successor Servicer, shall have (i) no liability with respect to any obligation which was required to be performed by the terminated Servicer prior to the date that the Backup Servicer becomes the successor to the Servicer or any claim of a third party based on any alleged action or inaction of the terminated Servicer, (ii) no obligation to perform any repurchase or advancing obligations, if any, of the Servicer, (iii) no obligation to pay any taxes required to be paid by the Servicer (provided that the Backup Servicer shall pay any income taxes for which it is liable), (iv) no obligation to pay any of the fees and expenses of any other party to the transactions contemplated hereby, and (v) no liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer, including the original Servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer, are expressly limited to those arising on account of its failure to act in good faith and with reasonable care under the circumstances. In addition, the Backup Servicer shall have no liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, the Lender may, or shall, if the Backup Servicer is unable to so act, appoint itself, or appoint any other established servicing institution acceptable to the Lender in its sole discretion, as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. Pending appointment of a successor to the Servicer hereunder, and after the Lender notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer (or the Lender if there is no Backup Servicer) shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the Lender may make such arrangements for the compensation of such successor out of payments on Pledged Receivables as it and such successor shall agree; provided, however, that, except as provided herein, no such compensation shall be in excess of that permitted the Servicer hereunder, unless (i) agreed to by the Lender and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the Lender and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The parties hereto agree that in no event will the Backup Servicer be liable for any special, indirect or consequential damages. The Backup Servicer hereby agrees that it shall, and shall take all actions necessary so that it shall at all times be ready to, assume all the rights and powers and all of the responsibilities, obligations and duties of the Servicer hereunder, within ten (10) Business Days of receiving from the Lender a notice requesting the Backup Servicer to do so. Notwithstanding anything contained in this Agreement to the contrary, absent specific knowledge by any Lyon Financial Services, Inc. account representative assigned to this transaction from time to time, or written notice detailing specific Errors (as defined below) or other deficiencies, Lyon Financial Services, Inc., as successor Servicer, is authorized to accept and rely on all accounting records (including computer records) and work product of the prior Servicer hereunder relating to the Contracts (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and Lyon Financial Services, Inc. shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer. If any error, inaccuracy, commission or incorrect or nonstandard practice or procedure (collectively, “Errors”) exists in any Predecessor Servicer Work Product and such Errors cause Lyon Financial Services, Inc. to make or continue any errors (collectively, “Continued Errors”), Lyon Financial Services, Inc. shall have no liability for such Continued Errors; provided, however, that Lyon Financial Services, Inc. agrees to use its best efforts to prevent Continued Errors. In the event that Lyon Financial Services, Inc. becomes aware of Errors or Continued Errors, Lyon Financial Services, Inc. shall, with the prior consent of the Lender, use ~~commercially~~ its bestcommercially reasonable efforts to reconstruct and reconcile any affected data as is commercially reasonable to correct such Errors and Continued Errors and to prevent future Continued Errors. Lyon Financial Services, Inc. shall be entitled to recover its costs thereby expended as Servicer Advances in accordance with Section 2.04(c) hereof. Within four (4) Business Days after each Remittance Date, provided that the Backup Servicer shall have received the information specified in Section 6.10(d) within the time specified therein, the Backup Servicer shall compare the information on the computer tape or diskette (or other means of electronic transmission acceptable to the Backup Servicer) most recently delivered to the Backup Servicer by the Servicer pursuant to Section 6.10(d) with respect to such Remittance Date to the corresponding Monthly Remittance Report delivered to the Backup Servicer by the Servicer pursuant to Section 6.10(d) and shall: (a) confirm that such Monthly Remittance Report is complete on its face; (b) confirm the distributions to be made on such Remittance Date pursuant to Section 2.04(c) hereof to the extent the Backup Servicer is able to do so given the information provided to it by the Servicer (it being hereby agreed that the Backup Servicer shall promptly notify the Servicer and the Lender if such information is insufficient and that the Servicer shall promptly provide to the Backup Servicer any additional information required by the Backup Servicer); (c) confirm the mathematical computations of information in such Monthly Remittance Report; and (d) confirm such other information as the Backup Servicer and the Lender may agree. In the event of any discrepancy between the information set forth in subparagraphs (b) or (c) above as calculated by the Servicer and that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly report such discrepancy to the Servicer and the Lender. In the event of a discrepancy as described in the preceding sentence, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy within five (5) Business Days after reporting such discrepancy, but in the absence of a reconciliation, distributions on the related Remittance Date shall be made consistent with the information calculated by the Servicer, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy prior to the next Remittance Date, and the Servicer shall promptly report to the Lender regarding the progress, if any, which shall have been made in reconciling such discrepancy. If the Backup Servicer and the Servicer are unable to reconcile such discrepancy with respect to such Monthly Remittance Report by the next Remittance Date that falls in April, July, October or January, the Servicer shall cause independent accountants acceptable to the Lender, at the Servicer’s expense, to examine such Monthly Remittance Report and attempt to reconcile such discrepancy at the earliest possible date (and the Servicer shall promptly provide the Lender with a report regarding such event). The effect, if any, of such reconciliation shall be reflected in the Monthly Remittance Report for the next succeeding Remittance Date. The provisions of this paragraph shall be referred to herein as the “Discrepancy Procedure”. Other than as specifically set forth in this Agreement, the Backup Servicer shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer and shall have no liability for any action taken or omitted by the Servicer. The Backup Servicer may allow a subservicer to perform any and all of its duties and responsibilities hereunder, including but not limited to its duties as successor Servicer hereunder, should the Backup Servicer become the successor Servicer pursuant to the terms of this Agreement; provided, however, that the Backup Servicer shall remain liable for the performance of all of its duties and obligations hereunder to the same extent as if no such subservicing had occurred. In no event shall the Backup Servicer (either prior to or after its appointment hereunder as Servicer) be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including without limitation, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God.

Appears in 1 contract

Sources: Receivables Loan and Security Agreement (Resource America Inc)

Backup Servicer. If a Servicer Default shall occur, then the Lender may, by notice to the Servicer, the Borrower and the Backup Servicer, terminate all of the rights and obligations of the Servicer under this Agreement. Upon the delivery to the Servicer of such notice, all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Assets or otherwise, shall pass to and be vested in the Backup Servicer pursuant to and under this Section (unless the Lender shall have appointed a different successor Servicer pursuant to Section 6.01 hereof or the Backup Servicer is unable to act as Servicer and a successor is appointed as provided in the fourth paragraph of this Section 6.13), and, without limitation, the Backup Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination or to perform the duties of the Servicer under this Agreement including, without limitation, to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06. The Servicer agrees to cooperate with the Lender and the Backup Servicer in effecting the termination of the Servicer’s responsibilities and rights hereunder, including, without limitation, providing notification to the Obligors of the assignment of the servicing function, providing notification to the Lender’s Bank of the Backup Servicer’s right to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06, providing the Backup Servicer, at the Servicer’s 's expense, with all records, in electronic or other form, reasonably requested by the Backup Servicer, in such form as the Backup Servicer may reasonably request and at such times as the Backup Servicer may reasonably request, to enable the Backup Servicer to assume the servicing functions hereunder and the transfer to the Backup Servicer for administration by it of all cash amounts which at the time should be or should have been deposited by the Servicer in the Collection Account or thereafter be received by the Servicer with respect to the Pledged Receivables. Additionally, the Servicer agrees to cooperate in providing, at the Servicer’s expense, the Backup Servicer as successor Servicer, with reasonable access (including at the premises of the Servicer) to Servicer’s employees and any and all books, records or other information reasonably requested by it to enable the Backup Servicer, as successor Servicer, to assume the servicing functions hereunder. Neither the Lender nor the Backup Servicer shall be deemed to have breached any obligation hereunder as a result of a failure to make or delay in making any distribution as and when required hereunder caused by the failure of the Servicer to remit any amounts received by it or to deliver any documents held by it with respect to the Pledged Assets. The Backup Servicer (including as successor Servicer) undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. The Active Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) on and after the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. The Standby Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) prior to the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. Any obligations of LEAF Financial under any Transaction Document other than in its capacity as Servicer shall continue in effect notwithstanding LEAF Financial’s termination as Servicer. On and after the time the Servicer receives a notice of termination pursuant to this Section 6.13, the Backup Servicer shall be (and the Backup Servicer hereby agrees to be) the successor in all respects to the Servicer in its capacity as Servicer under this Agreement and the transactions set forth or provided for herein and shall have all the rights and powers and be subject thereafter to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof; provided, however, that any failure to perform such duties or responsibilities caused by the Servicer’s failure to provide information required by this Section 6.13 shall not be considered a default by the Backup Servicer hereunder; provided, further, however, that the Backup Servicer, as successor Servicer, shall have (i) no liability with respect to any obligation which was required to be performed by the terminated Servicer prior to the date that the Backup Servicer becomes the successor to the Servicer or any claim of a third party based on any alleged action or inaction of the terminated Servicer, (ii) no obligation to perform any repurchase or advancing obligations, if any, of the Servicer, (iii) no obligation to pay any taxes required to be paid by the Servicer (provided that the Backup Servicer shall pay any income taxes for which it is liable), (iv) no obligation to pay any of the fees and expenses of any other party to the transactions contemplated hereby, and (v) no liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer, including the original Servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer, are expressly limited to those arising on account of its failure to act in good faith and with reasonable care under the circumstances. In addition, the Backup Servicer shall have no liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, the Lender may, or shall, if the Backup Servicer is unable to so act, appoint itself, or appoint any other established servicing institution acceptable to the Lender in its sole discretion, as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. Pending appointment of a successor to the Servicer hereunder, and after the Lender notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer (or the Lender if there is no Backup Servicer) shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the Lender may make such arrangements for the compensation of such successor out of payments on Pledged Receivables as it and such successor shall agree; provided, however, that, except as provided herein, no such compensation shall be in excess of that permitted the Servicer hereunder, unless (i) agreed to by the Lender and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the Lender and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The parties hereto agree that in no event will the Backup Servicer be liable for any special, indirect or consequential damages. The Backup Servicer hereby agrees that it shall, and shall take all actions necessary so that it shall at all times be ready to, assume all the rights and powers and all of the responsibilities, obligations and duties of the Servicer hereunder, within ten (10) Business Days of receiving from the Lender a notice requesting the Backup Servicer to do so. Notwithstanding anything contained in this Agreement to the contrary, absent specific knowledge by any Lyon Financial Services, Inc. account representative assigned to this transaction from time to time, or written notice detailing specific Errors (as defined below) or other deficiencies, Lyon Financial Services, Inc., as successor Servicer, is authorized to accept and rely on all accounting records (including computer records) and work product of the prior Servicer hereunder relating to the Contracts (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and Lyon Financial Services, Inc. shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer. If any error, inaccuracy, commission or incorrect or nonstandard practice or procedure (collectively, “Errors”) exists in any Predecessor Servicer Work Product and such Errors cause Lyon Financial Services, Inc. to make or continue any errors (collectively, “Continued Errors”), Lyon Financial Services, Inc. shall have no liability for such Continued Errors; provided, however, that Lyon Financial Services, Inc. agrees to use its best efforts to prevent Continued Errors. In the event that Lyon Financial Services, Inc. becomes aware of Errors or Continued Errors, Lyon Financial Services, Inc. shall, with the prior consent of the Lender, use ~~commercially reasonable~~ its best efforts to reconstruct and reconcile any affected data as is commercially reasonable to correct such Errors and Continued Errors and to prevent future Continued Errors. Lyon Financial Services, Inc. shall be entitled to recover its costs thereby expended as Servicer Advances in accordance with Section 2.04(c) hereof. Within four (4) Business Days after each Remittance Date, provided that the Backup Servicer shall have received the information specified in Section 6.10(d) within the time specified therein, the Backup Servicer shall compare the information on the computer tape or diskette (or other means of electronic transmission acceptable to the Backup Servicer) most recently delivered to the Backup Servicer by the Servicer pursuant to Section 6.10(d) with respect to such Remittance Date to the corresponding Monthly Remittance Report delivered to the Backup Servicer by the Servicer pursuant to Section 6.10(d) and shall: (a) confirm that such Monthly Remittance Report is complete on its face; (b) confirm the distributions to be made on such Remittance Date pursuant to Section 2.04(c) hereof to the extent the Backup Servicer is able to do so given the information provided to it by the Servicer (it being hereby agreed that the Backup Servicer shall promptly notify the Servicer and the Lender if such information is insufficient and that the Servicer shall promptly provide to the Backup Servicer any additional information required by the Backup Servicer); (c) confirm the mathematical computations of information in such Monthly Remittance Report; and (d) confirm such other information as the Backup Servicer and the Lender may agree. In the event of any discrepancy between the information set forth in subparagraphs (b) or (c) above as calculated by the Servicer and that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly report such discrepancy to the Servicer and the Lender. In the event of a discrepancy as described in the preceding sentence, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy within five (5) Business Days after reporting such discrepancy, but in the absence of a reconciliation, distributions on the related Remittance Date shall be made consistent with the information calculated by the Servicer, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy prior to the next Remittance Date, and the Servicer shall promptly report to the Lender regarding the progress, if any, which shall have been made in reconciling such discrepancy. If the Backup Servicer and the Servicer are unable to reconcile such discrepancy with respect to such Monthly Remittance Report by the next Remittance Date that falls in April, July, October or January, the Servicer shall cause independent accountants acceptable to the Lender, at the Servicer’s expense, to examine such Monthly Remittance Report and attempt to reconcile such discrepancy at the earliest possible date (and the Servicer shall promptly provide the Lender with a report regarding such event). The effect, if any, of such reconciliation shall be reflected in the Monthly Remittance Report for the next succeeding Remittance Date. The provisions of this paragraph shall be referred to herein as the “Discrepancy Procedure”. Other than as specifically set forth in this Agreement, the Backup Servicer shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer and shall have no liability for any action taken or omitted by the Servicer. The Backup Servicer may allow a subservicer to perform any and all of its duties and responsibilities hereunder, including but not limited to its duties as successor Servicer hereunder, should the Backup Servicer become the successor Servicer pursuant to the terms of this Agreement; provided, however, that the Backup Servicer shall remain liable for the performance of all of its duties and obligations hereunder to the same extent as if no such subservicing had occurred. In no event shall the Backup Servicer (either prior to or after its appointment hereunder as Servicer) be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including without limitation, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God.

Appears in 1 contract

Sources: Receivables Loan and Security Agreement (Resource America Inc)

Backup Servicer. If a Servicer Default shall ~~occur~~occur and is continuing, then the ~~Lender~~ Agent may, by notice to the Servicer, the Borrower and the Backup Servicer, terminate all of the rights and obligations of the Servicer under this Agreement. Upon the delivery to the Servicer of such notice, all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Assets or otherwise, shall pass to and be vested in the Backup Servicer pursuant to and under this Section (unless the Lender shall have appointed a different successor Servicer pursuant to Section 6.01 hereof or the Backup Servicer is unable to act as Servicer and a successor is appointed as provided in the fourth paragraph of this Section 6.13)Section, and, without limitation, the Backup Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice 124 of termination or to perform the duties of the Servicer under this ~~Agreement including, without limitation, to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06~~Agreement. The Servicer agrees to cooperate with the ~~Lender~~ Agent and the Backup Servicer in effecting the termination of the Servicer’s 's responsibilities and rights hereunder, including, without limitation, ~~providing~~ notification to the Obligors of the assignment of the servicing function, providing ~~notification to the Lender’s Bank of~~ the Backup Servicer’s right to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06, providing the Backup Servicer, at the Servicer’s expense, Servicer with all records, in electronic or other form, reasonably requested by ~~the Backup Servicer, in such form as the Backup Servicer may reasonably request and at such times as the Backup Servicer may reasonably request,~~ it to enable the Backup Servicer to assume the servicing functions hereunder and the transfer to the Backup Servicer for administration by it of all cash amounts which at the time should be or should have been deposited by the Servicer in the Collection Account or thereafter be received by the Servicer with respect to the Pledged Receivables. Additionally, the Servicer agrees to cooperate in providing, at the Servicer’s expense, the Backup Servicer as successor Servicer, with reasonable access (including at the premises of the Servicer) to Servicer’s employees and any and all books, records or other information reasonably requested by it to enable the Backup Servicer, as successor Servicer, to assume the servicing functions hereunder. Neither the ~~Lender~~ Agent nor the Backup Servicer shall be deemed to have breached any obligation hereunder as a result of a failure to make or delay in making any distribution as and when required hereunder caused by the failure of the Servicer to remit any amounts received by it or to deliver any documents held by it with respect to the Pledged Assets. The Backup ~~Servicer (including as successor~~ Servicer) undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. The Active Backup Servicer’s 's Fees ~~and Transition Costs~~ shall be paid out of Collections ~~with respect to any Pledged Receivable~~ as set forth in Section ~~2.04(c~~2.05(c) on and after the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. The Standby Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) prior to the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. Any obligations of ~~LEAF Financial under any Transaction Document~~ RFI hereunder other than in its capacity as Servicer shall continue in effect notwithstanding ~~LEAF Financial’s~~ RFI's termination as Servicer. On and after the time the Servicer receives a notice of termination pursuant to this Section ~~6.13~~6.15, the Backup Servicer shall be (and the Backup Servicer hereby agrees to be) the successor in all respects to the Servicer in its capacity as Servicer under this Agreement and the transactions set forth or provided for herein and shall have all the rights and powers and be subject thereafter to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof; provided, however, that any failure to perform such duties or responsibilities caused by the Servicer’s 's failure to provide information required by this Section ~~6.13~~ 6.15 shall not be considered a default by the Backup Servicer hereunder~~; provided, further, however, that the~~ . The Backup ~~Servicer, as successor Servicer,~~ Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the terminated Servicer prior to the date that the Backup Servicer becomes the successor to the Servicer or any claim of a third party based on any alleged action or inaction of the terminated Servicer, (ii) no obligation to perform any repurchase or advancing obligations, if any, of the Servicer, (iii) no obligation to pay any taxes required to be paid by the Servicer (provided that the Backup Servicer shall pay any income taxes for which it is liable), (iv) no obligation to pay any of the fees and expenses of any other party to the transactions contemplated hereby, and (v) no liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer, including the original Servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer, are expressly limited to those arising on account of its failure to act in good faith and with reasonable care under the circumstances. In addition, the Backup Servicer shall have no liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, the ~~Lender~~ Agent may, if the Backup Servicer shall be unwilling to so act, or shall, if the Backup Servicer is unable to so act, or if the Lender so requests in writing to the Agent, appoint itself, or appoint any ~~other~~ established servicing institution acceptable to the ~~Lender in its sole discretion~~Agent, as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. Pending appointment of a successor to the Servicer hereunder, and after the ~~Lender~~ Agent notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer (or the ~~Lender~~ Agent if there is no Backup Servicer) shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the ~~Lender~~ Agent may make such arrangements for the compensation of such successor out of payments on Pledged Receivables as it and such successor shall agree; provided, however, that, except as provided herein, no such compensation shall be in excess of that permitted the Servicer hereunder, unless ~~(i)~~ otherwise agreed to by the ~~Lender and (ii) such compensation shall be on commercially competitive terms and rates~~Lender. The Borrower, the ~~Lender~~ Agent and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The parties hereto agree that in no event will the Backup Servicer be liable for any special, indirect or consequential damages. The Backup Servicer hereby agrees that it shall, and shall take all actions necessary so that it shall at all times be ready to, assume all the rights and powers and all of the responsibilities, obligations and duties of the Servicer hereunder, within ten (10) Business Days of receiving from the Lender a notice requesting the Backup Servicer Prior to do so. Notwithstanding anything contained in this Agreement to the contrary, absent specific knowledge by any Lyon Financial Services, Inc. account representative assigned to this transaction from time to time, or written notice detailing specific Errors (as defined below) or other deficiencies, Lyon Financial Services, Inc., as successor Servicer, is authorized to accept and rely on all accounting records (including computer records) and work product of the prior Servicer hereunder relating to the Contracts (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and Lyon Financial Services, Inc. shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer. If any error, inaccuracy, commission or incorrect or nonstandard practice or procedure (collectively, “Errors”) exists in any Predecessor Servicer Work Product and such Errors cause Lyon Financial Services, Inc. to make or continue any errors (collectively, “Continued Errors”), Lyon Financial Services, Inc. shall have no liability for such Continued Errors; provided, however, that Lyon Financial Services, Inc. agrees to use its best efforts to prevent Continued Errors. In the event that Lyon Financial Services, Inc. becomes aware of Errors or Continued Errors, Lyon Financial Services, Inc. shall, with the prior consent of the Lender, use commercially reasonable efforts to reconstruct and reconcile any affected data to correct such Errors and Continued Errors and to prevent future Continued Errors. Lyon Financial Services, Inc. shall be entitled to recover its costs thereby expended as Servicer Advances in accordance with Section 2.04(c) hereof. Within four (4) Business Days after each Remittance Date~~, provided that the Backup Servicer shall have received the information specified in Section 6.10(d) within the time specified therein~~, the Backup Servicer shall compare the information on the computer tape or diskette (or other means of electronic transmission acceptable to the Backup Servicer) most recently delivered to the Backup Servicer by the Servicer pursuant to ~~Section 6.10(d~~Sec tion 6.12(e) ~~with respect to such Remittance Date~~ to the ~~corresponding~~ Monthly Remittance Report most recently delivered to the Backup Servicer by the Servicer pursuant to Section ~~6.10(d~~6.12(e) and shall: (a) confirm that such Monthly Remittance Report is complete on its face; (b) confirm the Remittance Date distributions to be made on ~~such~~ the next Remittance Date pursuant to Section ~~2.04(c~~2.05(c) hereof to the extent the Backup Servicer is able to do so given the information provided to it by the Servicer (it being hereby agreed that the Backup Servicer shall promptly notify the Servicer and the Lender if such information is insufficient and that the Servicer shall promptly provide to the Backup Servicer any additional information required by the Backup Servicer);hereof; and (c) ~~confirm~~ verify the mathematical ~~computations~~ accuracy of ~~information in~~ the following fields on such Monthly Remittance Report~~; and~~: (i) "Net Eligible Receivables Balance", (ii) "Delinquency Rate", (iii) "Chargeback Rate" and (iii) "Weighted Average APR". (d) ~~confirm~~ deliver to the Agent a certification letter with respect to the above substantially in the form of Exhibit P hereto on or before such ~~other information as the Backup Servicer and the Lender may agree~~Remittance Date. In the event of any discrepancy between the information set forth in subparagraphs (b) or (c) above as calculated by the Servicer ~~and~~ from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly report such discrepancy to the Servicer and the ~~Lender~~Agent. In the event of a discrepancy as described in the preceding sentence, the Servicer and the Backup Servicer shall attempt to reconcile such ~~discrepancy within five (5) Business Days after reporting such discrepancy~~discrepancies prior to the related Remittance Date, but in the absence of a reconciliation, distributions on the related Remittance Date shall be made consistent with the information calculated by the Servicer, the Servicer and the Backup Servicer shall attempt to reconcile such ~~discrepancy~~ discrepancies prior to the next Remittance Date, and the Servicer shall promptly report to the ~~Lender~~ Agent regarding the progress, if any, which shall have been made in reconciling such ~~discrepancy~~discrepancies. If the Backup Servicer and the Servicer are unable to reconcile such ~~discrepancy~~ discrepancies with respect to such Monthly Remittance Report by the next Remittance Date that falls in April, July, October or January, the Servicer shall cause independent accountants acceptable to the ~~Lender~~Agent, at the Servicer’s 's expense, to examine such Monthly Remittance Report and attempt to reconcile such ~~discrepancy~~ discrepancies at the 126 earliest possible date (and the Servicer shall promptly provide the ~~Lender~~ Agent with a report regarding such ~~event~~events). The effect, if any, of such reconciliation shall be reflected in the Monthly Remittance Report for the next succeeding Remittance Date. The ~~provisions of this paragraph shall be referred~~ Backup Servicer may not resign except upon sixty (60) day's prior written notice to ~~herein as~~ the ~~“Discrepancy Procedure”~~Agent, the Servicer and the Borrower. ~~Other than as specifically set forth in this Agreement~~In addition, the Backup Servicer ~~shall have no obligation~~ may be removed by the Agent or the Lender with or without cause at any time upon thirty (30) day's prior written notice to ~~supervise~~the Backup Servicer, ~~verify, monitor or administer the performance of~~ the Servicer and ~~shall have no liability for~~ the Borrower. In the event of any ~~action taken~~ such resignation or ~~omitted by~~ removal, the ~~Servicer. The~~ Backup Servicer may ~~allow~~ be replaced by a ~~subservicer to perform any and all of its duties and responsibilities hereunder, including but not limited to its duties as successor Servicer hereunder, should the~~ new Backup Servicer ~~become~~ selected by the ~~successor Servicer pursuant~~ Agent upon notice to the ~~terms of this Agreement; provided, however, that~~ Servicer and the Backup Servicer shall remain liable for the performance of all of its duties and obligations hereunder to the same extent as if no such subservicing had occurred. In no event shall the Backup Servicer (either prior to or after its appointment hereunder as Servicer) be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including without limitation, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of GodBorrower.

Appears in 1 contract

Sources: Receivables Loan and Security Agreement (Equivest Finance Inc)

Backup Servicer. If a Servicer Default shall ~~occur~~occur and is continuing, then the ~~Lender~~ Agent may, by notice to the Servicer, the Borrower and the Backup Servicer, terminate all of the rights and obligations of the Servicer under this Agreement. Upon the delivery to the Servicer and the Backup Servicer of such notice, all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Assets or otherwise, shall pass to and be vested in the Backup Servicer pursuant to and under this Section (unless the Lender shall have appointed a different successor Servicer pursuant to Section 6.01 hereof or the Backup Servicer is unable to act as Servicer and a successor is appointed as provided in the fourth paragraph of this Section 6.13)Section, and, without limitation, the Backup Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination or to perform the duties of the Servicer under this ~~Agreement including, without limitation, to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06~~Agreement. The Servicer agrees to cooperate with the ~~Lender~~ Agent and the Backup Servicer in effecting the termination of the Servicer’s 's responsibilities and rights hereunder, including, without limitation, ~~providing~~ notification to the Obligors of the assignment of the servicing function, providing ~~notification to the Lender’s Bank of~~ the Backup Servicer’s right to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06, providing the Backup Servicer, at the Servicer’s expense, Servicer with all records, in electronic or other form, reasonably requested by ~~the Backup Servicer, in such form as the Backup Servicer may reasonably request and at such times as the Backup Servicer may reasonably request,~~ it to enable the Backup Servicer to assume the servicing functions hereunder and the transfer to the Backup Servicer for administration by it of all cash amounts which at the time should be or should have been deposited by the Servicer in the Collection Account or thereafter be received by the Servicer with respect to the Pledged Receivables. Additionally, the Servicer agrees to cooperate in providing, at the Servicer’s expense, the Backup Servicer as successor Servicer, with reasonable access (including at the premises of the Servicer) to Servicer’s employees and any and all books, records or other information reasonably requested by it to enable the Backup Servicer, as successor Servicer, to assume the servicing functions hereunder. Neither the ~~Lender~~ Agent nor the Backup Servicer shall be deemed to have breached any obligation hereunder as a result of a failure to make or delay in making any distribution as and when required hereunder caused by the failure of the Servicer to remit any amounts received by it or to deliver any documents held by it with respect to the Pledged Assets. The Backup Servicer (including as successor Servicer) undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. The Active Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) on and after the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. The Standby Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) prior to the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. Any obligations of LEAF Financial under any Transaction Document other than in its capacity as Servicer shall continue in effect notwithstanding LEAF Financial’s termination as Servicer. On and after the time the Servicer receives a notice of termination pursuant to this Section 6.13, the Backup Servicer shall be (and the Backup Servicer hereby agrees to be) the successor in all respects to the Servicer in its capacity as Servicer under this Agreement and the transactions set forth or provided for herein and shall have all the rights and powers and be subject thereafter to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof; provided, however, that any failure to perform such duties or responsibilities caused by the Servicer’s failure to provide information required by this Section 6.13 shall not be considered a default by the Backup Servicer hereunder; provided, further, however, that the Backup Servicer, as successor Servicer, shall have (i) no liability with respect to any obligation which was required to be performed by the terminated Servicer prior to the date that the Backup Servicer becomes the successor to the Servicer or any claim of a third party based on any alleged action or inaction of the terminated Servicer, (ii) no obligation to perform any repurchase or advancing obligations, if any, of the Servicer, (iii) no obligation to pay any taxes required to be paid by the Servicer (provided that the Backup Servicer shall pay any income taxes for which it is liable), (iv) no obligation to pay any of the fees and expenses of any other party to the transactions contemplated hereby, and (v) no liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer, including the original Servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer, are expressly limited to those arising on account of its failure to act in good faith and with reasonable care under the circumstances. In addition, the Backup Servicer shall have no liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, the Lender may, or shall, if the Backup Servicer is unable to so act, appoint itself, or appoint any other established servicing institution acceptable to the Lender in its sole discretion, as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. Pending appointment of a successor to the Servicer hereunder, and after the Lender notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer (or the Lender if there is no Backup Servicer) shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the Lender may make such arrangements for the compensation of such successor out of payments on Pledged Receivables as it and such successor shall agree; provided, however, that, except as provided herein, no such compensation shall be in excess of that permitted the Servicer hereunder, unless (i) agreed to by the Lender and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the Lender and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The parties hereto agree that in no event will the Backup Servicer be liable for any special, indirect or consequential damages. The Backup Servicer hereby agrees that it shall, and shall take all actions necessary so that it shall at all times be ready to, assume all the rights and powers and all of the responsibilities, obligations and duties of the Servicer hereunder, within ten (10) Business Days of receiving from the Lender a notice requesting the Backup Servicer to do so. Notwithstanding anything contained in this Agreement to the contrary, absent specific knowledge by any Lyon Financial Services, Inc. account representative assigned to this transaction from time to time, or written notice detailing specific Errors (as defined below) or other deficiencies, Lyon Financial Services, Inc., as successor Servicer, is authorized to accept and rely on all accounting records (including computer records) and work product of the prior Servicer hereunder relating to the Contracts (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and Lyon Financial Services, Inc. shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer. If any error, inaccuracy, commission or incorrect or nonstandard practice or procedure (collectively, “Errors”) exists in any Predecessor Servicer Work Product and such Errors cause Lyon Financial Services, Inc. to make or continue any errors (collectively, “Continued Errors”), Lyon Financial Services, Inc. shall have no liability for such Continued Errors; provided, however, that Lyon Financial Services, Inc. agrees to use its best efforts to prevent Continued Errors. In the event that Lyon Financial Services, Inc. becomes aware of Errors or Continued Errors, Lyon Financial Services, Inc. shall, with the prior consent of the Lender, use commercially reasonable efforts to reconstruct and reconcile any affected data to correct such Errors and Continued Errors and to prevent future Continued Errors. Lyon Financial Services, Inc. shall be entitled to recover its costs thereby expended as Servicer Advances in accordance with Section 2.04(c) hereof. Within four (4) Business Days after each Remittance Date, provided that the Backup Servicer shall have received the information specified in Section 6.10(d) within the time specified therein, the Backup Servicer shall compare the information on the computer tape or diskette (or other means of electronic transmission acceptable to the Backup Servicer) most recently delivered to the Backup Servicer by the Servicer pursuant to Section 6.10(d) with respect to such Remittance Date to the corresponding Monthly Remittance Report delivered to the Backup Servicer by the Servicer pursuant to Section 6.10(d) and shall: (a) confirm that such Monthly Remittance Report is complete on its face; (b) confirm the distributions to be made on such Remittance Date pursuant to Section 2.04(c) hereof to the extent the Backup Servicer is able to do so given the information provided to it by the Servicer (it being hereby agreed that the Backup Servicer shall promptly notify the Servicer and the Lender if such information is insufficient and that the Servicer shall promptly provide to the Backup Servicer any additional information required by the Backup Servicer); (c) confirm the mathematical computations of information in such Monthly Remittance Report; and (d) confirm such other information as the Backup Servicer and the Lender may agree. In the event of any discrepancy between the information set forth in subparagraphs (b) or (c) above as calculated by the Servicer and that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly report such discrepancy to the Servicer and the Lender. In the event of a discrepancy as described in the preceding sentence, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy within five (5) Business Days after reporting such discrepancy, but in the absence of a reconciliation, distributions on the related Remittance Date shall be made consistent with the information calculated by the Servicer, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy prior to the next Remittance Date, and the Servicer shall promptly report to the Lender regarding the progress, if any, which shall have been made in reconciling such discrepancy. If the Backup Servicer and the Servicer are unable to reconcile such discrepancy with respect to such Monthly Remittance Report by the next Remittance Date that falls in April, July, October or January, the Servicer shall cause independent accountants acceptable to the Lender, at the Servicer’s expense, to examine such Monthly Remittance Report and attempt to reconcile such discrepancy at the earliest possible date (and the Servicer shall promptly provide the Lender with a report regarding such event). The effect, if any, of such reconciliation shall be reflected in the Monthly Remittance Report for the next succeeding Remittance Date. The provisions of this paragraph shall be referred to herein as the “Discrepancy Procedure”. Other than as specifically set forth in this Agreement, the Backup Servicer shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer and shall have no liability for any action taken or omitted by the Servicer. The Backup Servicer may allow a subservicer to perform any and all of its duties and responsibilities hereunder, including but not limited to its duties as successor Servicer hereunder, should the Backup Servicer become the successor Servicer pursuant to the terms of this Agreement; provided, however, that the Backup Servicer shall remain liable for the performance of all of its duties and obligations hereunder to the same extent as if no such subservicing had occurred. In no event shall the Backup Servicer (either prior to or after its appointment hereunder as Servicer) be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including without limitation, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God.

Appears in 1 contract

Sources: Receivables Loan and Security Agreement (Silverleaf Resorts Inc)

Backup Servicer. ~~If a Servicer Default shall occur, then the Lender~~ Agent may, by notice to ~~the~~ Servicer, ~~the~~ Borrower and ~~the~~ Backup Servicer, terminate all of the rights and obligations of ~~the~~ Servicer under this ~~Agreement~~Agreement at any time. Upon the delivery to ~~the~~ Servicer of such notice, all authority and power of ~~the~~ Servicer under this Agreement, whether with respect to the Pledged Assets or otherwise, shall pass to and be vested in ~~the~~ Backup ~~Servicer~~ Servicer, if any, pursuant to and under this Section 6.14 (unless ~~the Lender~~ Agent shall have appointed a different successor Servicer pursuant to Section 6.01 hereof or ~~the~~ Backup Servicer is unable to act as Servicer and a successor is appointed as provided in the ~~fourth~~ third paragraph of this Section ~~6.13~~6.14), and, without limitation, ~~the~~ Backup Servicer is hereby authorized and empowered to execute and deliver, on behalf of ~~the~~ Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination or to perform the duties of ~~the~~ Servicer under this ~~Agreement including, without limitation, to make withdrawals from the Security Deposit Account pursuant to Section 2.05~~ Agreement. Each of Servicer and ~~any Cash Reserve Account pursuant to Section 2.06. The Servicer~~ Borrower agrees to cooperate with ~~the Lender~~ Agent and ~~the~~ Backup Servicer in effecting the termination of ~~the~~ Servicer’s responsibilities and rights hereunder, including, without limitation, providing reasonable access (including at the premises of Servicer) to Servicer’s employees, providing notification to the Obligors of the assignment of the servicing function, providing ~~notification to the Lender’s Bank of the~~ Backup Servicer’s right to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06, providing the Backup Servicer, at the Servicer’s expense, Servicer with all records, in electronic or other form, reasonably requested by ~~the Backup Servicer, in such form as the Backup Servicer may reasonably request and at such times as the Backup Servicer may reasonably request,~~ it to enable ~~the~~ Backup Servicer to assume the servicing functions hereunder and the transfer to ~~the~~ Backup Servicer for administration by it of all cash amounts which at the time should be or should have been deposited ~~by the Servicer~~ in the ~~Collection~~ Operating Account or thereafter be received by ~~the Servicer~~ Servicer, Borrower or Guarantor with respect to the Pledged Receivables. Additionally, the Servicer agrees to cooperate in providing, at the Servicer’s expense, the Backup Servicer as successor Servicer, with reasonable access (including at the premises of the Servicer) to Servicer’s employees and any and all books, records or other information reasonably requested by it to enable the Backup Servicer, as successor Servicer, to assume the servicing functions hereunder. Neither ~~the Lender~~ Agent nor ~~the~~ Backup Servicer shall be deemed to have breached any obligation hereunder as a result of a failure to make or delay in making any distribution as and when required hereunder caused by the failure of ~~the~~ Servicer to remit any amounts received by it or to deliver any documents held by it with respect to the Pledged Assets. The Backup Servicer (including as successor Servicer) undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. The Active Backup Servicer’s Fees and Transition Costs shall be paid ~~out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c)~~ by Borrower on and after the date, if any, that ~~the~~ Backup Servicer assumes the responsibilities of ~~the~~ Servicer pursuant to this ~~Section~~Section 6.14. The Standby Backup Servicer’s Fees and Transition Costs shall be paid ~~out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c)~~ by Borrower prior to the date, if any, that ~~the~~ Backup Servicer assumes the responsibilities of ~~the~~ Servicer pursuant to this ~~Section. Any obligations of LEAF Financial under any Transaction Document other than in its capacity as Servicer shall continue in effect notwithstanding LEAF Financial’s termination as Servicer~~Section 6.14. On and after the time ~~the~~ Servicer receives a notice of termination pursuant to this Section ~~6.13~~6.14, ~~the~~ Backup Servicer shall be ~~(and the Backup Servicer hereby agrees to be)~~ the successor in all respects to ~~the~~ Servicer in its capacity as Servicer under this Agreement and the transactions set forth or provided for herein and shall have all the rights and powers ~~and~~ and, except as otherwise expressly provided in this Agreement (including, without limitation, the remainder of this paragraph), be subject thereafter to all the responsibilities, duties and liabilities relating thereto placed on ~~the~~ Servicer by the terms and provisions hereof; provided, however, that any failure to perform such duties or responsibilities caused by ~~the~~ Servicer’s failure to provide records, documents or information required by this Section ~~6.13~~ 6.14 shall not be considered a default by ~~the~~ Backup Servicer hereunder; provided, further, however, that ~~the~~ Backup Servicer, as successor Servicer, shall have (i) no liability with respect to any obligation which was required to be performed by the terminated Servicer prior to the date that ~~the~~ Backup Servicer becomes the successor to ~~the~~ Servicer or any claim of a third party based on any alleged action or inaction of the terminated Servicer, (ii) no obligation to perform any repurchase or advancing obligations, if any, of ~~the~~ Servicer, (iii) no obligation to pay any taxes required to be paid by ~~the~~ Servicer (provided that ~~the~~ Backup Servicer shall pay any income taxes for which it is ~~liable~~liable and provided that Backup Servicer shall pay as and when due real estate taxes for which Backup Servicer has received the appropriate escrow deposits), (iv) no obligation to pay any of the fees and expenses of any other party to the transactions contemplated hereby, and (v) no liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer, including the original Servicer. The indemnification obligations of ~~the~~ Backup Servicer, upon becoming a successor Servicer, are expressly limited to those arising on account of its ~~failure~~ gross negligence, bad faith or willful misconduct. Backup Servicer shall not be required to ~~act in good~~ indemnify any party claiming indemnity hereunder for amounts resulting solely from the negligence, bad faith ~~and with reasonable care under the circumstances~~or willful misconduct of such party. In no event shall Backup Servicer be liable for any punitive, special, indirect or consequential damages. In addition, ~~the~~ Backup Servicer shall have no liability relating to the representations and warranties of ~~the~~ Servicer contained in Article IV. Notwithstanding the above, ~~the Lender~~ Agent may, ~~or shall~~if Agent had not previously appointed a Backup Servicer, ~~if the~~ Backup Servicer is shall be unwilling or unable to so act, or if Lenders so request in writing to Agent, appoint itself, or appoint any ~~other~~ established servicing institution ~~acceptable to the Lender in its sole discretion,~~ as the successor to ~~the~~ Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of ~~the~~ Servicer hereunder. Pending appointment of a successor to ~~the~~ Servicer hereunder, and after ~~the Lender~~ Agent notifies ~~the~~ Servicer to discontinue performing servicing functions under this Agreement, ~~the~~ Backup Servicer (or ~~the Lender~~ Agent if there is no Backup Servicer) shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, ~~the Lender~~ Agent may make such arrangements for the compensation of such successor out of payments on Pledged Receivables as it and such successor shall agree; provided, however, that, except as provided herein, no such compensation shall be in excess of that permitted ~~the~~ Servicer hereunder, unless (i) agreed to by ~~the Lender~~ Lenders and (ii) such compensation shall be on commercially competitive terms and rates. ~~The~~ Borrower, ~~the Lender~~ Agent and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The parties hereto agree that in no event will the Backup Servicer be liable for any special, indirect or consequential damages. The Backup Servicer hereby agrees that it shall, and shall take all actions necessary so that it shall at all times be ready to, assume all the rights and powers and all of the responsibilities, obligations and duties of the Servicer hereunder, within ten (10) Business Days of receiving from the Lender a notice requesting the Backup Servicer to do so. Notwithstanding anything contained in this Agreement to the contrary, absent specific knowledge by ~~any Lyon Financial Services, Inc. account representative assigned to this transaction from time to time~~a Responsible Officer of Backup Servicer, or written notice detailing specific Errors (as defined below) or other deficiencies, ~~Lyon Financial Services, Inc.~~Backup Servicer, as successor Servicer, is authorized to accept and rely on all accounting records (including computer records) and work product of the prior Servicer hereunder relating to the Contracts (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and ~~Lyon Financial Services, Inc.~~ Backup Servicer shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer. If any error, inaccuracy, ~~commission~~ omission or incorrect or nonstandard practice or procedure (collectively, “Errors”) exists in any Predecessor Servicer Work Product and such Errors cause ~~Lyon Financial Services, Inc.~~ Backup Servicer to make or continue any errors (collectively, “Continued Errors”), ~~Lyon Financial Services, Inc.~~ Backup Servicer shall have no liability for such Continued Errors; provided, however, that ~~Lyon Financial Services, Inc.~~ Backup Servicer agrees to use its best efforts to prevent Continued Errors. In the event that ~~Lyon Financial Services, Inc.~~ Backup Servicer becomes aware of Errors or Continued Errors, ~~Lyon Financial Services, Inc.~~ Backup Servicer shall, with the prior consent of ~~the Lender~~Agent, use ~~commercially reasonable~~ its best efforts to reconstruct and reconcile any affected data as is commercially reasonable to correct such Errors and Continued Errors and to prevent future Continued Errors. ~~Lyon Financial Services, Inc.~~ Backup Servicer shall be entitled to recover its costs thereby expended as Servicer Advances ~~in accordance with Section 2.04(c) hereof~~from Borrower. ~~Within four (4) Business Days after~~ Following appointment as Servicer hereunder and prior to each Remittance Date, provided that ~~the~~ Backup Servicer shall have received the information specified in Section ~~6.10(d~~6.11(b) within the time specified therein, ~~the~~ Backup Servicer shall compare the information on the computer tape or diskette (or other means of electronic transmission acceptable to ~~the~~ Backup Servicer) most recently delivered to ~~the~~ Backup Servicer by ~~the~~ Servicer pursuant to Section ~~6.10(d~~6.11(b) with respect to such Remittance Date to the corresponding Monthly Remittance Report delivered to ~~the~~ Backup Servicer by ~~the~~ Servicer pursuant to Section ~~6.10(d~~6.11(b) and shall: (a) confirm that such Monthly Remittance Report is complete on its face; (b) confirm the distributions to be made on such Remittance Date ~~pursuant to Section 2.04(c)~~ hereof to the extent ~~the~~ Backup Servicer is able to do so given the information provided to it by ~~the~~ Servicer (it being hereby agreed that ~~the~~ Backup Servicer shall promptly notify ~~the~~ Servicer and ~~the Lender~~ Agent if such information is insufficient and that ~~the~~ Servicer shall promptly provide to ~~the~~ Backup Servicer any additional information required by ~~the~~ Backup Servicer); (c) confirm the ~~mathematical computations of~~ information in on such Monthly Remittance ~~Report~~Report and Borrowing Base; and (d) confirm such other information as ~~the~~ Backup Servicer and ~~the Lender~~ Agent may agree. In the event of any discrepancy between the information set forth in ~~subparagraphs~~ subparagraph (b) or (c) above as calculated by ~~the~~ Servicer and that determined or calculated by ~~the~~ Backup Servicer, ~~the~~ Backup Servicer shall promptly report such discrepancy to ~~the~~ Servicer and ~~the Lender~~Agent. In the event of a discrepancy as described in the preceding sentence, ~~the~~ Servicer and ~~the~~ Backup Servicer shall attempt to reconcile such discrepancy ~~within five (5) Business Days after reporting such discrepancy~~prior to the related Remittance Date, but in the absence of a reconciliation, distributions on the related Remittance Date shall be made consistent with the information calculated by ~~the~~ Servicer, ~~the~~ Servicer and ~~the~~ Backup Servicer shall attempt to reconcile such discrepancy prior to the next Remittance Date, and ~~the~~ Servicer shall promptly report to ~~the Lender~~ Agent regarding the progress, if any, which shall have been made in reconciling such discrepancy. If ~~the~~ Backup Servicer and ~~the~~ Servicer are unable to reconcile such discrepancy with respect to such Monthly Remittance Report by the next Remittance Date that falls in April, July, October or January, ~~the~~ Servicer shall cause independent accountants acceptable to ~~the Lender~~Agent, at ~~the~~ Servicer’s expense, to examine such Monthly Remittance Report and attempt to reconcile such discrepancy at the earliest possible date (and ~~the~~ Servicer shall promptly provide ~~the Lender~~ Agent with a report regarding such event). The effect, if any, of such reconciliation shall be reflected in the Monthly Remittance Report for the next succeeding Remittance Date. ~~The provisions~~ In no event shall Backup Servicer (either prior to or after its appointment hereunder as successor Servicer) be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, acts of terrorism, civil and military disturbances, acts of war, riots, insurrections, illegality of performance, strikes or other industrial disturbances, breakage or accident to machinery or equipment, nuclear catastrophes, fires, earthquakes, hurricanes, floods and other natural disasters or acts of God. Further, it is acknowledged and agreed that Backup Servicer shall have no duties, responsibilities or liabilities under this ~~paragraph~~ Agreement until such time, if ever, that it has succeeded Guarantor as Servicer hereunder. Backup Servicer (prior to becoming Servicer) shall ~~be referred to herein as the “Discrepancy Procedure”. Other~~ have no liability for any action taken or omitted by Servicer and, other than as specifically set forth in this Agreement, ~~the Backup Servicer~~ shall have no obligation to supervise, verify, monitor or administer the performance of ~~the~~ Servicer and shall have no liability for any action taken or omitted by ~~the~~ Servicer. ~~The~~ Without limiting the generality of this Section 6.14, Backup Servicer shall not be subject to any implied duties. Backup Servicer may allow a subservicer to perform any and all of its duties and responsibilities hereunder, including but not limited to its duties as successor Servicer hereunder, should ~~the~~ Backup Servicer become the successor Servicer pursuant to the terms of this Agreement; provided, however, that ~~the~~ Backup Servicer shall remain liable for the performance of all of its duties and obligations hereunder to the same extent as if no such subservicing had occurred. In no event shall the Backup Servicer (either prior to or after its appointment hereunder as Servicer) be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including without limitation, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God.

Appears in 1 contract

Sources: Loan and Security Agreement (BRT Realty Trust)

Backup Servicer. If (a) Prior to assuming any of the Servicer's rights and obligations hereunder the Backup Servicer shall only be responsible to perform those duties and for only those obligations specifically imposed upon it by the provisions of the Backup Servicing Agreement herein, and shall have no obligations or duties under any agreement to which it is not a ~~Servicer Default shall occur~~party, ~~then the Lender may, by notice~~ including but not limited to the ~~Servicer~~various agreements named herein. In the event of the Termination of the Backup Servicing Agreement, the ~~Borrower~~ Servicer shall appoint a successor Backup Servicer reasonably acceptable to the Agent and the Seller. (b) The Servicer shall have no liability, direct or indirect, to any party, for the acts or omissions of the Backup Servicer, ~~terminate all of the rights and obligations of the Servicer under this Agreement. Upon the delivery~~ whenever such acts or omissions occur whenever such liability is imposed. (c) Notwithstanding anything to the contrary herein, the Agent shall have the right to remove the Backup Servicer ~~of such notice, all authority~~ with or without cause at any time and ~~power of the Servicer under this Agreement, whether with respect to the Pledged Assets or otherwise, shall pass to and be vested in~~ replace the Backup Servicer pursuant to the provisions of the Backup Servicing Agreement. In the event that the Agent exercises its right to remove and ~~under this Section (unless the Lender~~ replace Concord Servicing Corporation as Backup Servicer, Concord Servicing Corporation shall have appointed a different successor Servicer pursuant to Section 6.01 hereof or the Backup Servicer is unable to act as Servicer and a successor is appointed as provided in the fourth paragraph of this Section 6.13), and, without limitation, the Backup Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination or no further obligation to perform the duties of the Backup Servicer under this ~~Agreement including~~Agreement. (d) The Servicer shall provide monthly, ~~without limitation~~or as otherwise requested, to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06. The Servicer agrees to cooperate with the Lender and the Backup Servicer in effecting the termination of the Servicer’s responsibilities and rights hereunder, including, without limitation, providing notification to the Obligors of the assignment of the servicing function, providing notification to the Lender’s Bank of the Backup Servicer’s right to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06, providing the Backup Servicer, at or its agent, information on the Servicer’s expense, with all records, in electronic or other form, reasonably requested by the Backup Servicer, in such form as the Backup Servicer may reasonably request and at such times as the Backup Servicer may reasonably request, Receivables sufficient to enable the Backup Servicer to assume the ~~servicing functions hereunder~~ responsibilities as successor servicer and collect on the ~~transfer to the Backup Servicer for administration by it of all cash amounts which at the time should be or should have been deposited by the Servicer~~ Receivables. (e) Except as provided in ~~the Collection Account or thereafter be received by the Servicer with respect to the Pledged Receivables. Additionally, the Servicer agrees to cooperate in providing, at the Servicer’s expense~~this Agreement, the Backup Servicer ~~as successor Servicer, with reasonable access (including at the premises of the Servicer) to Servicer’s employees~~ may accept and ~~any and~~ reasonably rely on all ~~books~~accounting, records or other information reasonably requested by it to enable the Backup Servicer, as successor Servicer, to assume the servicing functions hereunder. Neither the Lender nor the Backup Servicer shall be deemed to have breached any obligation hereunder as a result of a failure to make or delay in making any distribution as and ~~when required hereunder caused by the failure~~ work of the Servicer to remit any amounts received by it or to deliver any documents held by it with respect to the Pledged Assets. The Backup Servicer (including as successor Servicer) undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. The Active Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) on and after the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. The Standby Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) prior to the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. Any obligations of LEAF Financial under any Transaction Document other than in its capacity as Servicer shall continue in effect notwithstanding LEAF Financial’s termination as Servicer. On and after the time the Servicer receives a notice of termination pursuant to this Section 6.13, the Backup Servicer shall be (and the Backup Servicer hereby agrees to be) the successor in all respects to the Servicer in its capacity as Servicer under this Agreement and the transactions set forth or provided for herein and shall have all the rights and powers and be subject thereafter to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof; provided, however, that any failure to perform such duties or responsibilities caused by the Servicer’s failure to provide information required by this Section 6.13 shall not be considered a default by the Backup Servicer hereunder; provided, further, however, that the Backup Servicer, as successor Servicer, shall have (i) no liability with respect to any obligation which was required to be performed by the terminated Servicer prior to the date that the Backup Servicer becomes the successor to the Servicer or any claim of a third party based on any alleged action or inaction of the terminated Servicer, (ii) no obligation to perform any repurchase or advancing obligations, if any, of the Servicer, (iii) no obligation to pay any taxes required to be paid by the Servicer (provided that the Backup Servicer shall pay any income taxes for which it is liable), (iv) no obligation to pay any of the fees and expenses of any other party to the transactions contemplated herebywithout audit, and (v) no liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer, including the original Servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer, are expressly limited to those arising on account of its failure to act in good faith and with reasonable care under the circumstances. In addition, the Backup Servicer shall have no liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, the Lender may, or shall, if the Backup Servicer is unable to so act, appoint itself, or appoint any other established servicing institution acceptable to the Lender in its sole discretion, as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. Pending appointment of a successor to the Servicer hereunder, and after the Lender notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer (or the Lender if there is no Backup Servicer) shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the Lender may make such arrangements for the compensation of such successor out of payments on Pledged Receivables as it and such successor shall agree; provided, however, that, except as provided herein, no such compensation shall be in excess of that permitted the Servicer hereunder, unless (i) agreed to by the Lender and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the Lender and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The parties hereto agree that in no event will the Backup Servicer be liable for any special, indirect or consequential damages. The Backup Servicer hereby agrees that it shall, and shall take all actions necessary so that it shall at all times be ready to, assume all the rights and powers and all of the responsibilities, obligations and duties of the Servicer hereunder, within ten (10) Business Days of receiving from the Lender a notice requesting the Backup Servicer to do so. Notwithstanding anything contained in this Agreement to the contrary, absent specific knowledge by any Lyon Financial Services, Inc. account representative assigned to this transaction from time to time, or written notice detailing specific Errors (as defined below) or other deficiencies, Lyon Financial Services, Inc., as successor Servicer, is authorized to accept and rely on all accounting records (including computer records) and work product of the prior Servicer hereunder relating to the Contracts (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and Lyon Financial Services, Inc. shall have no duty, responsibility, obligation or liability for the acts ~~and~~ or omissions of the ~~prior~~ Servicer. If any error, ~~inaccuracy, commission~~ inaccuracy or ~~incorrect or nonstandard practice or procedure~~ omission (collectively, “"Errors”") exists in any ~~Predecessor Servicer Work Product~~ information received from the Servicer, and such Errors should cause ~~Lyon Financial Services, Inc.~~ or materially contribute to ~~make~~ the Backup Servicer making or ~~continue~~ continuing any ~~errors~~ Errors (collectively, “"Continued Errors”"), ~~Lyon Financial Services, Inc.~~ the Backup Servicer shall have no liability for such Continued Errors; provided, however, that Lyon Financial Services, Inc. agrees to use its best efforts to prevent Continued Errors. In the event that Lyon Financial Services, Inc. becomes aware of Errors or Continued Errors, Lyon Financial Services, Inc. shall, with the prior consent of the Lender, use commercially reasonable efforts to reconstruct and reconcile any affected data to correct such Errors and Continued Errors and to prevent future Continued Errors. Lyon Financial Services, Inc. this provision shall ~~be entitled to recover its costs thereby expended as Servicer Advances in accordance with Section 2.04(c) hereof. Within four (4) Business Days after each Remittance Date, provided that~~ not protect the Backup Servicer against any liability that would otherwise be imposed by reason of willful misconduct, bad faith or gross negligence in discovering or correcting any Error or in the performance of its or their duties hereunder or under this Agreement. (f) The Backup Servicer and its officers, directors, employees, representatives and agents shall ~~have received~~ be indemnified by the ~~information specified in Section 6.10(d) within the time specified therein~~Servicer from and against all claims, damages, losses or expenses incurred by the Backup Servicer ~~shall compare the information on the computer tape or diskette~~ (~~or other means~~ including reasonable attorney's fees and expenses) arising out of ~~electronic transmission acceptable to the Backup Servicer) most recently delivered to~~ claims asserted against the Backup Servicer by ~~the Servicer pursuant to Section 6.10(d) with respect to such Remittance Date~~ third parties on any matter arising out of this Agreement to the ~~corresponding Monthly Remittance Report delivered~~ extent the act or omission giving rise to the claim relates to an act or omission of the Servicer, the Seller, the Depositor or any of their Affiliates and accrues before the date on which the Backup Servicer assumes the duties of Servicer hereunder, and all claims, expenses, obligations, liabilities, losses, damages, injuries, penalties, stamp or other similar taxes, actions, suits, judgments, reasonable costs and expenses (including reasonable attorney's and agent's fees and expenses) of whatever kind or nature regardless of their merit, demanded, asserted or claimed against the Backup Servicer directly or indirectly relating to, or arising from, claims against the Backup Servicer by reason of its participation in the ~~Servicer pursuant to Section 6.10(d) and shall: (a) confirm that such Monthly Remittance Report is complete on its face; (b) confirm the distributions~~ transactions contemplated hereby, including without limitation all reasonable costs required to be ~~made on such Remittance Date pursuant~~ associated with claims for damages to Section 2.04(c) hereof to the extent the Backup Servicer is able to do so given the information provided to it by the Servicer (it being hereby agreed that the Backup Servicer shall promptly notify the Servicer persons or property, and ~~the Lender if such information is insufficient~~ reasonable attorneys' and ~~that the Servicer shall promptly provide to the Backup Servicer~~ consultants' fees and expenses and court costs except for any ~~additional information required by~~ claims, damages, losses or expenses arising from the Backup Servicer~~); (c~~'s own gross negligence, bad faith or willful misconduct. The obligations of the Servicer under this Section 4.22(f) ~~confirm~~ shall survive the ~~mathematical computations~~ satisfaction and discharge of ~~information in such Monthly Remittance Report; and (d) confirm such other information as~~ this Agreement or the earlier resignation or removal of the Backup ~~Servicer and the Lender may agree~~Servicer. In the ~~event~~ absence of ~~any discrepancy between~~ bad faith on the ~~information set forth in subparagraphs (b) or (c) above as calculated by the Servicer and that determined or calculated by~~ part of the Backup Servicer, the Backup Servicer ~~shall promptly report such discrepancy~~ may conclusively rely, as to the ~~Servicer~~ truth of the statements and the ~~Lender~~correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Backup Servicer which conform to the requirements of this Agreement. In The Backup Servicer shall not be liable for any error of judgment made in good faith by an officer or officers of the ~~event~~ Backup Servicer, unless it shall be conclusively determined by a court of ~~a discrepancy as described~~ competent jurisdiction that the Backup Servicer was grossly negligent in ascertaining the pertinent facts. Whenever in the ~~preceding sentence,~~ administration of the ~~Servicer and~~ provisions of this Agreement the Backup Servicer shall ~~attempt~~ deem it necessary or desirable that a matter be proved or established prior to ~~reconcile~~ taking or suffering any action to be taken hereunder, such ~~discrepancy within five~~ matter (5unless other evidence in respect thereof be herein specifically prescribed) ~~Business Days after reporting such discrepancy~~may, ~~but~~ in the absence of ~~a reconciliation, distributions~~ gross negligence or bad faith on the ~~related Remittance Date shall~~ part of the Backup Servicer, be ~~made consistent with the information calculated~~ deemed to be conclusively proved and established by a certificate signed by one of the Servicer~~, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy prior to the next Remittance Date~~'s officers, and ~~the Servicer shall promptly report~~ delivered to ~~the Lender regarding the progress, if any, which shall have been made in reconciling such discrepancy. If~~ the Backup Servicer and such certificate, in the ~~Servicer are unable to reconcile such discrepancy with respect to such Monthly Remittance Report by~~ absence of gross negligence or bad faith on the ~~next Remittance Date that falls in April~~part of the Backup Servicer, ~~July, October or January, the Servicer~~ shall ~~cause independent accountants acceptable~~ be full warrant to the ~~Lender~~Backup Servicer of any action taken, at suffered or omitted by it under the Servicer’s expense, to examine such Monthly Remittance Report and attempt to reconcile such discrepancy at the earliest possible date (and the Servicer shall promptly provide the Lender with a report regarding such event). The effect, if any, of such reconciliation shall be reflected in the Monthly Remittance Report for the next succeeding Remittance Date. The provisions of this ~~paragraph~~ Agreement upon the faith thereof. The Backup Servicer, in its capacity as such, may consult with counsel and the advice or any opinion of counsel shall be ~~referred to herein as the “Discrepancy Procedure”. Other than as specifically set forth~~ full and complete authorization and protection in ~~this Agreement, the Backup Servicer shall have no obligation to supervise, verify, monitor or administer the performance~~ respect of ~~the Servicer and shall have no liability for~~ any action taken or omitted by ~~the Servicer~~it hereunder in good faith and in accordance with such advice or opinion of counsel. The Backup ~~Servicer~~ Servicer, in its capacity as such, shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document. The Backup Servicer, in its capacity as such, may ~~allow a subservicer to~~ execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and ~~all of its duties and responsibilities hereunder, including but~~ shall not limited to its duties as successor Servicer hereunder, should the Backup Servicer become the successor Servicer pursuant to the terms of this Agreement; provided, however, that the Backup Servicer shall remain liable for the performance of all of its duties and obligations hereunder to the same extent as if no such subservicing had occurred. In no event shall the Backup Servicer (either prior to or after its appointment hereunder as Servicer) be responsible ~~or liable~~ for any ~~failure~~ willful misconduct or ~~delay in~~ negligence on the ~~performance~~ part of ~~its obligations hereunder arising out of~~ any agent, attorney, custodian or ~~caused by, directly or indirectly, forces beyond its control, including without limitation, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God~~nominee so appointed.

Appears in 1 contract

Sources: Sale and Servicing Agreement (Bluegreen Corp)

Backup Servicer. If (a) The Agent may at any time after a Servicer ~~Default shall occur, then the Lender may~~Default, by notice to the Servicer, the Borrower and the Backup Servicer, terminate all of the rights and obligations of the Servicer under this Agreement. Upon the delivery to the Servicer of such notice, all obligations, authority and power of the Servicer under this Agreement, whether with respect to the Pledged Assets or otherwise, shall pass to and be vested in the Backup Servicer pursuant to and under this Section (unless the Lender shall have appointed a different successor Servicer pursuant to Section 6.01 hereof or the Backup Servicer is unable to act as Servicer and a successor is appointed as provided in the fourth paragraph of this Section 6.13)Section, and, without limitation, the Backup Servicer is hereby authorized and empowered to execute and deliver, on behalf of the ~~Servicer~~Servicer or the Borrower, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination or to perform the duties of the Servicer under this ~~Agreement including, without limitation, to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06~~Agreement. The Servicer agrees to cooperate with the ~~Lender~~ Agent and the Backup Servicer in effecting the termination of the Servicer’s 's responsibilities and rights hereunder, including, without limitation, ~~providing~~ delivering notification to the Obligors of the assignment of the servicing ~~function, providing notification~~ function and instructions to abide by payment directions delivered by the ~~Lender’s Bank of~~ Agent or the Backup Servicer~~’s right to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06~~, providing the Backup ~~Servicer, at the Servicer’s expense,~~ Servicer with all records, in electronic or other form, reasonably requested by ~~the Backup Servicer, in such form as the Backup Servicer may reasonably request and at such times as the Backup Servicer may reasonably request,~~ it to enable the Backup Servicer to assume the servicing functions hereunder and the transfer to the Backup Servicer for administration by it of all cash amounts which at the time should be or should have been deposited by the Servicer in the Collection Account or thereafter be received by the Servicer with respect to the Pledged Receivables. Additionally, the Servicer agrees to cooperate in providing, at the Servicer’s expense, the Backup Servicer as successor Servicer, with reasonable access (including at the premises of the Servicer) to Servicer’s employees and any and all books, records or other information reasonably requested by it to enable the Backup Servicer, as successor Servicer, to assume the servicing functions hereunder. Neither the ~~Lender~~ Agent nor the Backup Servicer shall be deemed to have breached any obligation hereunder as a result of a failure to make or delay in making any distribution as and when required hereunder caused by the failure of the Servicer to remit any amounts received by it or to deliver any documents held by it with respect to the Pledged Assets. . (b) The Backup Servicer (including as successor Servicer) undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. The Active Backup Servicer’s Fees and Transition ~~Costs~~ Fee shall be paid out of Collections ~~with respect to any Pledged Receivable~~ as set forth in Section ~~2.04(c~~2.05(c) on and after the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section~~. The Standby Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c~~. (c) ~~prior to the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section.~~ Any obligations of ~~LEAF Financial~~ Maxtor under any Transaction Document other than in its capacity as Servicer shall continue in effect notwithstanding ~~LEAF Financial’s~~ Maxtor's termination as Servicer. . (d) On and after the time the Servicer receives a notice of termination pursuant to this Section ~~6.13~~6.14, the Backup Servicer shall be (and the Backup Servicer hereby agrees to be) the successor in all respects to the Servicer in its capacity as Servicer under this Agreement and the transactions set forth or provided for herein and therein and shall have all the rights and powers and be subject thereafter to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions ~~hereof~~hereof and thereof; provided, however, that any failure to perform such duties or responsibilities caused by the Servicer’s 's failure to provide information required by this Section ~~6.13~~ 6.14 shall not be considered a default by the Backup Servicer hereunder~~; provided, further, however, that the~~ . The Backup ~~Servicer, as successor Servicer,~~ Servicer shall have (i) no liability with respect to any obligation which was required to be performed by the terminated Servicer prior to the date that the Backup Servicer becomes the successor to the Servicer or any claim of a third party based on any alleged action or inaction of the terminated Servicer, (ii) no obligation to perform any repurchase or advancing obligations, if any, of the Servicer, (iii) no obligation to pay any taxes required to be paid by the Servicer (provided that the Backup Servicer shall pay any income taxes for which it is liable), (iv) no obligation to pay any of the fees and expenses of any other party to the transactions contemplated hereby, and (v) no liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer, including the original Servicer. The liability and indemnification obligations of the Backup Servicer, upon becoming a successor Servicer, are expressly limited to those arising on account of its ~~failure to act in good faith and with reasonable care under the circumstances~~negligence or willful misconduct. In addition, the Backup Servicer shall have no liability relating to the representations and warranties of the Servicer contained in ~~Article IV~~Section 4.02 hereof. Notwithstanding the above, the ~~Lender~~ Agent may, if the Backup Servicer shall be unwilling to so act, or shall, if the Backup Servicer is unable to so act, appoint ~~itself, or appoint~~ any ~~other~~ established servicing institution acceptable to the ~~Lender in its sole discretion~~Agent, as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. Pending appointment of a successor to the Servicer hereunder, and after the ~~Lender~~ Agent notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer (or the ~~Lender~~ Agent if there is no Backup Servicer) shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the ~~Lender~~ Agent may make such arrangements for the compensation of such successor out of payments on Pledged Receivables as it and such successor shall agree; provided, however, that, except as provided herein, no such compensation shall be in excess of that permitted the Servicer hereunder, unless (i) agreed to by the Lender and (ii) such compensation shall be on commercially competitive terms and rates. The ~~Borrower, the Lender~~ Borrower and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession~~. The parties hereto agree that in no event will~~ . (e) Not later than the Backup Servicer be liable for any special, indirect or consequential damages. The Backup Servicer hereby agrees that it shall, and shall take all actions necessary so that it shall at all times be ready to, assume all the rights and powers and all of the responsibilities, obligations and duties of the Servicer hereunder, within ten (10) Business ~~Days of receiving from the Lender a notice requesting the Backup Servicer~~ Day immediately prior to do so. Notwithstanding anything contained in this Agreement to the contrary, absent specific knowledge by any Lyon Financial Services, Inc. account representative assigned to this transaction from time to time, or written notice detailing specific Errors (as defined below) or other deficiencies, Lyon Financial Services, Inc., as successor Servicer, is authorized to accept and rely on all accounting records (including computer records) and work product of the prior Servicer hereunder relating to the Contracts (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and Lyon Financial Services, Inc. shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer. If any error, inaccuracy, commission or incorrect or nonstandard practice or procedure (collectively, “Errors”) exists in any Predecessor Servicer Work Product and such Errors cause Lyon Financial Services, Inc. to make or continue any errors (collectively, “Continued Errors”), Lyon Financial Services, Inc. shall have no liability for such Continued Errors; provided, however, that Lyon Financial Services, Inc. agrees to use its best efforts to prevent Continued Errors. In the event that Lyon Financial Services, Inc. becomes aware of Errors or Continued Errors, Lyon Financial Services, Inc. shall, with the prior consent of the Lender, use commercially reasonable efforts to reconstruct and reconcile any affected data to correct such Errors and Continued Errors and to prevent future Continued Errors. Lyon Financial Services, Inc. shall be entitled to recover its costs thereby expended as Servicer Advances in accordance with Section 2.04(c) hereof. Within four (4) Business Days after each Remittance Date~~, provided that the Backup Servicer shall have received the information specified in Section 6.10(d) within the time specified therein~~, the Backup Servicer shall compare the information on the computer tape or diskette (or other means of electronic transmission acceptable to the Backup Servicer) most recently delivered to the Backup Servicer by the Servicer pursuant to Section ~~6.10(d~~6.11(d) ~~with respect to such Remittance Date~~ to the ~~corresponding~~ Monthly Remittance Report most recently delivered to the Backup Servicer by the Servicer pursuant to Section ~~6.10(d~~6.11(d) and shall: (ai) confirm that such Monthly Remittance Report is in the form attached hereto as Exhibit C and is complete on its face; (bii) ~~confirm~~ recompute, using the ~~distributions~~ raw per Obligor Receivables information contained in such computer tape or diskette (or other means of electronic transmission acceptable to be made on such Remittance Date pursuant to Section 2.04(c) hereof to the extent the Backup Servicer is able to do so given the information provided to it by the Servicer (it being hereby agreed that the Backup Servicer shall promptly notify the Servicer and the Lender if such information is insufficient and that the Servicer shall promptly provide to the Backup Servicer any additional information required by the Backup Servicer)~~; (c) confirm~~ , and verify the ~~mathematical computations~~ accuracy of ~~information in~~ items 1 through 9 on such Monthly Remittance ~~Report~~Report and all other information specified by the Agent, in each case, in a manner satisfactory to the Agent; and (diii) ~~confirm~~ deliver to the Agent a certification letter with respect to the above substantially in the form of Exhibit F-1 hereto on or before such ~~other information as the Backup Servicer and the Lender may agree.~~ Business Day. (f) In the event of any discrepancy between the information set forth in ~~subparagraphs (b~~Section 6.14(e)(ii) ~~or (c) above~~ as calculated by the Servicer ~~and~~ from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly report such discrepancy to the Servicer and the ~~Lender~~Agent. In the event of a discrepancy as described in the preceding sentence, the Servicer and the Backup Servicer shall attempt to reconcile such ~~discrepancy within five (5) Business Days after reporting such discrepancy~~discrepancies prior to the related Remittance Date, but in the absence of a reconciliation, distributions on the related Remittance Date shall be made consistent with the information calculated by the Servicer, the Servicer and the Backup Servicer shall attempt to reconcile such ~~discrepancy~~ discrepancies prior to the next Remittance Date, and the Servicer shall promptly report to the ~~Lender~~ Agent regarding the progress, if any, which shall have been made in reconciling such ~~discrepancy~~discrepancies. If the Backup Servicer and the Servicer are unable to reconcile such ~~discrepancy~~ discrepancies with respect to such Monthly Remittance Report by the next Remittance Date that falls in April, July, October or January, the Servicer shall cause independent accountants acceptable to the ~~Lender~~Agent, at the Servicer’s 's expense, to examine such Monthly Remittance Report and attempt to reconcile such ~~discrepancy~~ discrepancies at the earliest possible date (and the Servicer shall promptly provide the ~~Lender~~ Agent with a report regarding such ~~event~~events). The effect, if any, of such reconciliation shall be reflected in the Monthly Remittance Report for the next succeeding Remittance Date~~. The provisions of this paragraph shall be referred~~ . (g) Not later than two Business Days prior to ~~herein as the “Discrepancy Procedure”. Other~~ each Borrowing Date (other than ~~as specifically set forth in this Agreement~~a Borrowing Date that is also a Remittance Date), the Backup Servicer shall ~~have no obligation~~ compare the information on the computer tape or diskette (or other means of electronic transmission acceptable to ~~supervise~~the Backup Servicer) most recently delivered to the Backup Servicer by the Servicer pursuant to Section 6.11(h) to the related Borrowing Report delivered to the Backup Servicer by the Servicer pursuant to Section 6.11(h) and shall: (i) confirm that such Borrowing Report is in the form attached hereto as Exhibit A and is complete on its face; (ii) recompute using the raw per Obligor Receivables information contained in such computer tape or diskette (or other means of electronic transmission acceptable to the Backup Servicer), ~~verify~~and verify the accuracy of, ~~monitor~~ items 1 through 9 on such Borrowing Report in a manner satisfactory to the Agent; and (iii) deliver to the Agent a certification letter with respect to the above substantially in the form of Exhibit F-2 hereto. (h) In the event of any discrepancy between the information set forth in Section 6.14(g)(ii) as calculated by the Servicer from that determined or ~~administer~~ calculated by the ~~performance of~~ Backup Servicer, the Backup Servicer shall promptly report such discrepancy to the Servicer and the Agent. In the event of a discrepancy as described in the preceding sentence, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancies prior to the related Borrowing Date and the Backup Servicer shall promptly report to the Agent the progress, if any, which shall have ~~no liability for any action taken or omitted by the Servicer.~~ been made in reconciling such discrepancies. (i) The Backup Servicer may ~~allow a subservicer~~ not resign except upon sixty (60) day's prior written notice to ~~perform any~~ the Agent, the Servicer and ~~all of its duties and responsibilities hereunder~~the Borrower. In addition, ~~including but not limited to its duties as successor Servicer hereunder, should~~ the Backup Servicer ~~become~~ may be removed by the ~~successor Servicer pursuant~~ Agent with or without cause at any time upon thirty (30) day's prior written notice to the ~~terms~~ Backup Servicer, the Servicer and the Borrower. In the event of ~~this Agreement; provided~~any such resignation or removal, ~~however, that~~ the Backup Servicer ~~shall remain liable for~~ may be replaced by a new Backup Servicer selected by the ~~performance of all of its duties and obligations hereunder~~ Agent upon notice to the ~~same extent as if no such subservicing had occurred. In no event shall~~ Servicer and the Backup Servicer (either prior to or after its appointment hereunder as Servicer) be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including without limitation, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of GodBorrower.

Appears in 1 contract

Sources: Receivables Loan and Security Agreement (Maxtor Corp)

Backup Servicer. If a Servicer Default shall occur, then the ~~Lender~~ Controlling Holders may, by notice to the Servicer, the Borrower and the Backup Servicer, terminate all of the rights and obligations of the Servicer under this Agreement. Upon the delivery to the Servicer of such notice, all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Assets or otherwise, shall pass to and be vested in the Backup Servicer or any other successor Servicer appointed by the Controlling Holders pursuant to and under this Section (unless the Lender shall have appointed a different successor Servicer pursuant to Section 6.01 hereof or the Backup Servicer is unable to act as Servicer and a successor is appointed as provided in the fourth paragraph of this Section 6.13)Section, and, without limitation, the Backup Servicer or any other successor Servicer appointed hereunder is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination or to perform the duties of the Servicer under this ~~Agreement including, without limitation, to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06~~Agreement. The Servicer agrees to cooperate with the ~~Lender~~ Lenders and the Backup Servicer or other successor Servicer in effecting the termination of the Servicer’s responsibilities and rights hereunder, including, without limitation, providing notification to the Obligors of the assignment of the servicing function, providing ~~notification to the Lender’s Bank of~~ the Backup ~~Servicer’s right to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06, providing the Backup~~ Servicer or such other successor Servicer, at the Servicer’s expense, with all records, in electronic or other form, reasonably requested by the Backup Servicer or such other successor Servicer, in such form as the Backup Servicer may reasonably request and at such times as the Backup Servicer or such other successor Servicer may reasonably request, to enable ~~the Backup Servicer~~ such Person to assume the servicing functions hereunder and the transfer to ~~the Backup Servicer~~ such Person for administration by it of all cash amounts which at the time should be or should have been deposited by the Servicer in the Collection Account or thereafter be received by the Servicer with respect to the Pledged Receivables. Additionally, the Servicer agrees to cooperate in providing, at the Servicer’s expense, the Backup Servicer or any other successor Servicer as successor Servicer, with reasonable access (including at the premises of the Servicer) to Servicer’s employees and any and all books, records or other information reasonably requested by it to enable the Backup Servicer or such other successor Servicer, as successor Servicer, to assume the servicing functions hereunder. Neither ~~the~~ any Lender nor the Backup Servicer or any other successor Servicer shall be deemed to have breached any obligation hereunder as a result of a failure to make or delay in making any distribution as and when required hereunder caused by the failure of the Servicer to remit any amounts received by it or to deliver any documents held by it with respect to the Pledged Assets. The Backup Servicer (including as successor Servicer) or any other successor Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer or such other successor Servicer hereunder. The Active Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section ~~2.04(c~~2.04(a) on and after the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. The Standby Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section ~~2.04(c~~2.04(a) prior to the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. Any obligations of LEAF Financial under any Transaction Document other than in its capacity as Servicer shall continue in effect notwithstanding LEAF Financial’s termination as Servicer. On and after the time the Servicer receives a notice of termination (with a copy delivered to the Backup Servicer) pursuant to this Section 6.13, the Backup Servicer shall be (and the Backup Servicer hereby agrees to be) the successor in all respects to the Servicer in its capacity as Servicer under this Agreement and the transactions set forth or provided for herein and shall have all the rights and powers and be subject thereafter to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof; provided, however, that any failure to perform such duties or responsibilities caused by the Servicer’s failure to provide information required by this Section 6.13 shall not be considered a default by the Backup Servicer or any other successor Servicer hereunder; provided, further, however, that the Backup Servicer or such other successor Servicer, as successor Servicer, shall have (i) no liability with respect to any obligation which was required to be performed by the terminated Servicer prior to the date that the Backup Servicer or such other successor Servicer becomes the successor to the Servicer or any claim of a third party based on any alleged action or inaction of the terminated Servicer, (ii) no obligation to perform any repurchase or advancing obligations, if any, of the Servicer, (iii) no obligation to pay any taxes required to be paid by the Servicer (provided that the Backup Servicer or such other successor Servicer shall pay any income taxes for which it is liable), (iv) no obligation to pay any of the fees and expenses of any other party to the transactions contemplated hereby, and (v) no liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer, including the original Servicer. The indemnification obligations of the Backup Servicer or any other successor Servicer, upon becoming a successor Servicer, are expressly limited to those arising on account of its failure to act in good faith and with reasonable care under the circumstances. In addition, neither the Backup Servicer nor any other successor Servicer shall have no any liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AFI (or, following the Collateral Split Effective Date, the Primary Lender under the related Loan Agreement) may, or shall, if the Backup Servicer or any other successor Servicer is unable to so act, appoint itself, or appoint any other established servicing institution acceptable to the ~~Lender~~ Lenders in ~~its~~ their sole discretion, as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. Pending appointment of a successor to the Servicer hereunder, and after the Lender notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer (or the Lender if there is no Backup Servicer) shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the Lender may make such arrangements for the compensation of such successor out of payments on Pledged Receivables as it and such successor shall agree; provided, however, that, except as provided herein, no such compensation shall be in excess of that permitted the Servicer hereunder, unless (i) agreed to by the Lender and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the Lender and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The parties hereto agree that in no event will the Backup Servicer be liable for any special, indirect or consequential damages. The Backup Servicer hereby agrees that it shall, and shall take all actions necessary so that it shall at all times be ready to, assume all the rights and powers and all of the responsibilities, obligations and duties of the Servicer hereunder, within ten (10) Business Days of receiving from the Lender a notice requesting the Backup Servicer to do so. Notwithstanding anything contained in this Agreement to the contrary, absent specific knowledge by any Lyon Financial Services, Inc. account representative assigned to this transaction from time to time, or written notice detailing specific Errors (as defined below) or other deficiencies, Lyon Financial Services, Inc., as successor Servicer, is authorized to accept and rely on all accounting records (including computer records) and work product of the prior Servicer hereunder relating to the Contracts (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and Lyon Financial Services, Inc. shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer. If any error, inaccuracy, commission or incorrect or nonstandard practice or procedure (collectively, “Errors”) exists in any Predecessor Servicer Work Product and such Errors cause Lyon Financial Services, Inc. to make or continue any errors (collectively, “Continued Errors”), Lyon Financial Services, Inc. shall have no liability for such Continued Errors; provided, however, that Lyon Financial Services, Inc. agrees to use its best efforts to prevent Continued Errors. In the event that Lyon Financial Services, Inc. becomes aware of Errors or Continued Errors, Lyon Financial Services, Inc. shall, with the prior consent of the Lender, use commercially reasonable efforts to reconstruct and reconcile any affected data to correct such Errors and Continued Errors and to prevent future Continued Errors. Lyon Financial Services, Inc. shall be entitled to recover its costs thereby expended as Servicer Advances in accordance with Section 2.04(c) hereof. Within four (4) Business Days after each Remittance Date, provided that the Backup Servicer shall have received the information specified in Section 6.10(d) within the time specified therein, the Backup Servicer shall compare the information on the computer tape or diskette (or other means of electronic transmission acceptable to the Backup Servicer) most recently delivered to the Backup Servicer by the Servicer pursuant to Section 6.10(d) with respect to such Remittance Date to the corresponding Monthly Remittance Report delivered to the Backup Servicer by the Servicer pursuant to Section 6.10(d) and shall: (a) confirm that such Monthly Remittance Report is complete on its face; (b) confirm the distributions to be made on such Remittance Date pursuant to Section 2.04(c) hereof to the extent the Backup Servicer is able to do so given the information provided to it by the Servicer (it being hereby agreed that the Backup Servicer shall promptly notify the Servicer and the Lender if such information is insufficient and that the Servicer shall promptly provide to the Backup Servicer any additional information required by the Backup Servicer); (c) confirm the mathematical computations of information in such Monthly Remittance Report; and (d) confirm such other information as the Backup Servicer and the Lender may agree. In the event of any discrepancy between the information set forth in subparagraphs (b) or (c) above as calculated by the Servicer and that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly report such discrepancy to the Servicer and the Lender. In the event of a discrepancy as described in the preceding sentence, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy within five (5) Business Days after reporting such discrepancy, but in the absence of a reconciliation, distributions on the related Remittance Date shall be made consistent with the information calculated by the Servicer, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy prior to the next Remittance Date, and the Servicer shall promptly report to the Lender regarding the progress, if any, which shall have been made in reconciling such discrepancy. If the Backup Servicer and the Servicer are unable to reconcile such discrepancy with respect to such Monthly Remittance Report by the next Remittance Date that falls in April, July, October or January, the Servicer shall cause independent accountants acceptable to the Lender, at the Servicer’s expense, to examine such Monthly Remittance Report and attempt to reconcile such discrepancy at the earliest possible date (and the Servicer shall promptly provide the Lender with a report regarding such event). The effect, if any, of such reconciliation shall be reflected in the Monthly Remittance Report for the next succeeding Remittance Date. The provisions of this paragraph shall be referred to herein as the “Discrepancy Procedure”. Other than as specifically set forth in this Agreement, the Backup Servicer shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer and shall have no liability for any action taken or omitted by the Servicer. The Backup Servicer may allow a subservicer to perform any and all of its duties and responsibilities hereunder, including but not limited to its duties as successor Servicer hereunder, should the Backup Servicer become the successor Servicer pursuant to the terms of this Agreement; provided, however, that the Backup Servicer shall remain liable for the performance of all of its duties and obligations hereunder to the same extent as if no such subservicing had occurred. In no event shall the Backup Servicer (either prior to or after its appointment hereunder as Servicer) be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including without limitation, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God.the

Appears in 1 contract

Sources: Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.)

Backup Servicer. If a Servicer Default shall occur, then the ~~Lender~~ Lenders may, by notice to the Servicer, the Borrower and the Backup Servicer, terminate all of the rights and obligations of the Servicer under this Agreement. Upon the delivery to the Servicer of such notice, all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Assets or otherwise, shall pass to and be vested in the Backup Servicer pursuant to and under this Section (unless the ~~Lender~~ Lenders shall have appointed a different successor Servicer pursuant to Section 6.01 hereof or the Backup Servicer is unable to act as Servicer and a successor is appointed as provided in the fourth paragraph of this Section 6.13), and, without limitation, the Backup Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination or to perform the duties of the Servicer under this ~~Agreement including, without limitation, to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06~~Agreement. The Servicer agrees to cooperate with the ~~Lender~~ Lenders and the Backup Servicer in effecting the termination of the Servicer’s responsibilities and rights hereunder, including, without limitation, providing notification to the Obligors of the assignment of the servicing function, providing notification to the Lender’s Bank of the Backup Servicer’s right to make withdrawals from the Security Deposit Account pursuant to Section 2.05 and any Cash Reserve Account pursuant to Section 2.06, providing the Backup Servicer, at the Servicer’s 's expense, with all records, in electronic or other form, reasonably requested by the Backup Servicer, in such form as the Backup Servicer may reasonably request and at such times as the Backup Servicer may reasonably request, to enable the Backup Servicer to assume the servicing functions hereunder and the transfer to the Backup Servicer for administration by it of all cash amounts which at the time should be or should have been deposited by the Servicer in the Collection Account or thereafter be received by the Servicer with respect to the Pledged Receivables. Additionally, the Servicer agrees to cooperate in providing, at the Servicer’s expense, the Backup Servicer as successor Servicer, with reasonable access (including at the premises of the Servicer) to Servicer’s employees and any and all books, records or other information reasonably requested by it to enable the Backup Servicer, as successor Servicer, to assume the servicing functions hereunder. Neither ~~the~~ any Lender nor the Backup Servicer shall be deemed to have breached any obligation hereunder as a result of a failure to make or delay in making any distribution as and when required hereunder caused by the failure of the Servicer to remit any amounts received by it or to deliver any documents held by it with respect to the Pledged Assets. The Backup Servicer (including as successor Servicer) undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. The Active Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) on and after the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. The Standby Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section 2.04(c) prior to the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. Any obligations of LEAF Financial under any Transaction Document other than in its capacity as Servicer shall continue in effect notwithstanding LEAF Financial’s termination as Servicer. On and after the time the Servicer receives a notice of termination pursuant to this Section 6.13, the Backup Servicer shall be (and the Backup Servicer hereby agrees to be) the successor in all respects to the Servicer in its capacity as Servicer under this Agreement and the transactions set forth or provided for herein and shall have all the rights and powers and be subject thereafter to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof; provided, however, that any failure to perform such duties or responsibilities caused by the Servicer’s failure to provide information required by this Section 6.13 shall not be considered a default by the Backup Servicer hereunder; provided, further, however, that the Backup Servicer, as successor Servicer, shall have (i) no liability with respect to any obligation which was required to be performed by the terminated Servicer prior to the date that the Backup Servicer becomes the successor to the Servicer or any claim of a third party based on any alleged action or inaction of the terminated Servicer, (ii) no obligation to perform any repurchase or advancing obligations, if any, of the Servicer, (iii) no obligation to pay any taxes required to be paid by the Servicer (provided that the Backup Servicer shall pay any income taxes for which it is liable), (iv) no obligation to pay any of the fees and expenses of any other party to the transactions contemplated hereby, and (v) no liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer, including the original Servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer, are expressly limited to those arising on account of its failure to act in good faith and with reasonable care under the circumstances. In addition, the Backup Servicer shall have no liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, the Class A Lender may, or shall, if the Backup Servicer is unable to so act, appoint itself, or appoint any other established servicing institution acceptable to the ~~Lender~~ Lenders in ~~its~~ their sole discretion, as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. Pending appointment of a successor to the Servicer hereunder, and after the ~~Lender notifies~~ Lenders notify the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer (or the Class A Lender if there is no Backup Servicer) shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the ~~Lender~~ Lenders may make such arrangements for the compensation of such successor out of payments on Pledged Receivables as it and such successor shall agree; provided, however, that, except as provided herein, no such compensation shall be in excess of that permitted the Servicer hereunder, unless (i) agreed to by the ~~Lender~~ Lenders and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the ~~Lender~~ Lenders and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The parties hereto agree that in no event will the Backup Servicer be liable for any special, indirect or consequential damages. The Backup Servicer hereby agrees that it shall, and shall take all actions necessary so that it shall at all times be ready to, assume all the rights and powers and all of the responsibilities, obligations and duties of the Servicer hereunder, within ten (10) Business Days of receiving from ~~the~~ a Lender a notice requesting the Backup Servicer to do so. Notwithstanding anything contained in this Agreement to the contrary, absent specific knowledge by any Lyon Financial Services, Inc. account representative assigned to this transaction from time to time, or written notice detailing specific Errors (as defined below) or other deficiencies, Lyon Financial Services, Inc., as successor Servicer, is authorized to accept and rely on all accounting records (including computer records) and work product of the prior Servicer hereunder relating to the Contracts (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and Lyon Financial Services, Inc. shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer. If any error, inaccuracy, commission or incorrect or nonstandard practice or procedure (collectively, “Errors”) exists in any Predecessor Servicer Work Product and such Errors cause Lyon Financial Services, Inc. to make or continue any errors (collectively, “Continued Errors”), Lyon Financial Services, Inc. shall have no liability for such Continued Errors; provided, however, that Lyon Financial Services, Inc. agrees to use its best efforts to prevent Continued Errors. In the event that Lyon Financial Services, Inc. becomes aware of Errors or Continued Errors, Lyon Financial Services, Inc. shall, with the prior consent of the ~~Lender~~Lenders, use ~~commercially reasonable~~ its best efforts to reconstruct and reconcile any affected data as is commercially reasonable to correct such Errors and Continued Errors and to prevent future Continued Errors. Lyon Financial Services, Inc. shall be entitled to recover its costs thereby expended as Servicer Advances in accordance with Section 2.04(c) hereof. Within four (4) Business Days after each Remittance Date, provided that the Backup Servicer shall have received the information specified in Section 6.10(d) within the time specified therein, the Backup Servicer shall compare the information on the computer tape or diskette (or other means of electronic transmission acceptable to the Backup Servicer) most recently delivered to the Backup Servicer by the Servicer pursuant to Section 6.10(d) with respect to such Remittance Date to the corresponding Monthly Remittance Report delivered to the Backup Servicer by the Servicer pursuant to Section 6.10(d) and shall: (a) confirm that such Monthly Remittance Report is complete on its face; (b) confirm the distributions to be made on such Remittance Date pursuant to Section 2.04(c) hereof to the extent the Backup Servicer is able to do so given the information provided to it by the Servicer (it being hereby agreed that the Backup Servicer shall promptly notify the Servicer and the ~~Lender~~ Lenders if such information is insufficient and that the Servicer shall promptly provide to the Backup Servicer any additional information required by the Backup Servicer); (c) confirm the mathematical computations of information in such Monthly Remittance Report; and (d) confirm such other information as the Backup Servicer and the ~~Lender~~ Lenders may agree. ; In the event of any discrepancy between the information set forth in subparagraphs (b) or (c) above as calculated by the Servicer and that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly report such discrepancy to the Servicer and the ~~Lender~~Lenders. In the event of a discrepancy as described in the preceding sentence, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy within five (5) Business Days after reporting such discrepancy, but in the absence of a reconciliation, distributions on the related Remittance Date shall be made consistent with the information calculated by the Servicer, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy prior to the next Remittance Date, and the Servicer shall promptly report to the ~~Lender~~ Lenders regarding the progress, if any, which shall have been made in reconciling such discrepancy. If the Backup Servicer and the Servicer are unable to reconcile such discrepancy with respect to such Monthly Remittance Report by the next Remittance Date that falls in April, July, October or January, the Servicer shall cause independent accountants acceptable to the ~~Lender~~Lenders, at the Servicer’s expense, to examine such Monthly Remittance Report and attempt to reconcile such discrepancy at the earliest possible date (and the Servicer shall promptly provide the ~~Lender~~ Lenders with a report regarding such event). The effect, if any, of such reconciliation shall be reflected in the Monthly Remittance Report for the next succeeding Remittance Date~~. The provisions of this paragraph shall be referred to herein as the “Discrepancy Procedure”~~. Other than as specifically set forth in this Agreement, the Backup Servicer shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer and shall have no liability for any action taken or omitted by the Servicer. The Backup Servicer may allow a subservicer to perform any and all of its duties and responsibilities hereunder, including but not limited to its duties as successor Servicer hereunder, should the Backup Servicer become the successor Servicer pursuant to the terms of this Agreement; provided, however, that the Backup Servicer shall remain liable for the performance of all of its duties and obligations hereunder to the same extent as if no such subservicing had occurred. In no event shall the Backup Servicer (either prior to or after its appointment hereunder as Servicer) be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including without limitation, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God.

Appears in 1 contract

Sources: Receivables Loan and Security Agreement (Resource America Inc)

Backup Servicer. If a Servicer Default shall occur, then the ~~Lender~~ Agent may, by notice to the Servicer, the Borrower and the Backup Servicer, terminate all of the rights and obligations of the Servicer under this Agreement. Upon the delivery to the Servicer of such notice, all authority and power of the Servicer under this Agreement, whether with respect to the Pledged Assets or otherwise, shall pass to and be vested in the Backup Servicer pursuant to and under this Section (unless the ~~Lender~~ Agent shall have appointed a different successor Servicer pursuant to Section 6.01 hereof or the Backup Servicer is unable to act as Servicer and a successor is appointed as provided in the fourth paragraph of this Section ~~6.13~~6.15), and, without limitation, the Backup Servicer is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination or to perform the duties of the Servicer under this Agreement including, without limitation, to make withdrawals from the Security Deposit Account pursuant to Section ~~2.05~~ 2.06 and any Cash Reserve Account pursuant to Section ~~2.06~~2.07. The Servicer agrees to cooperate with the ~~Lender~~ Agent and the Backup Servicer in effecting the termination of the Servicer’s responsibilities and rights hereunder, including, without limitation, providing notification to the Obligors of the assignment of the servicing function, providing notification to the ~~Lender~~Agent’s Bank of the Backup Servicer’s right to make withdrawals from the Security Deposit Account pursuant to Section ~~2.05~~ 2.06 and any Cash Reserve Account pursuant to Section ~~2.06~~2.07, providing the Backup Servicer, at the Servicer’s expense, with all records, in electronic or other form, reasonably requested by the Backup Servicer, in such form as the Backup Servicer may reasonably request and at such times as the Backup Servicer may reasonably request, to enable the Backup Servicer to assume the servicing functions hereunder and the transfer to the Backup Servicer for administration by it of all cash amounts which at the time should be or should have been deposited by the Servicer in the Collection Account or thereafter be received by the Servicer with respect to the Pledged Receivables. Additionally, the Servicer agrees to cooperate in providing, at the Servicer’s expense, the Backup Servicer as successor Servicer, with reasonable access (including at the premises of the Servicer) to Servicer’s employees and any and all books, records or other information reasonably requested by it to enable the Backup Servicer, as successor Servicer, to assume the servicing functions hereunder. .” Neither the ~~Lender~~ Agent nor the Backup Servicer shall be deemed to have breached any obligation hereunder as a result of a failure to make or delay in making any distribution as and when required hereunder caused by the failure of the Servicer to remit any amounts received by it or to deliver any documents held by it with respect to the Pledged Assets. The Backup Servicer (including as successor Servicer) undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. The Active Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section ~~2.04(c~~2.05(c) on and after the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. The Standby Backup Servicer’s Fees and Transition Costs shall be paid out of Collections with respect to any Pledged Receivable as set forth in Section ~~2.04(c~~2.05(c) prior to the date, if any, that the Backup Servicer assumes the responsibilities of the Servicer pursuant to this Section. Any obligations of LEAF Financial under any Transaction Document other than in its capacity as Servicer shall continue in effect notwithstanding LEAF Financial’s termination as Servicer. On and after the time the Servicer receives a notice of termination pursuant to this Section ~~6.13~~6.15, the Backup Servicer shall be (and the Backup Servicer hereby agrees to be) the successor in all respects to the Servicer in its capacity as Servicer under this Agreement and the transactions set forth or provided for herein and shall have all the rights and powers and be subject thereafter to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof; provided, however, that any failure to perform such duties or responsibilities caused by the Servicer’s failure to provide information required by this Section ~~6.13~~ 6.15 shall not be considered a default by the Backup Servicer hereunder; provided, further, however, that the Backup Servicer, as successor Servicer, shall have (i) no liability with respect to any obligation which was required to be performed by the terminated Servicer prior to the date that the Backup Servicer becomes the successor to the Servicer or any claim of a third party based on any alleged action or inaction of the terminated Servicer, (ii) no obligation to perform any repurchase or advancing obligations, if any, of the Servicer, (iii) no obligation to pay any taxes required to be paid by the Servicer (provided that the Backup Servicer shall pay any income taxes for which it is liable), (iv) no obligation to pay any of the fees and expenses of any other party to the transactions contemplated hereby, and (v) no liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer, including the original Servicer. The indemnification obligations of the Backup Servicer, upon becoming a successor Servicer, are expressly limited to those arising on account of its failure to act in good faith and with reasonable care under the circumstances. In addition, the Backup Servicer shall have no liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, the ~~Lender~~ Agent may, if the Backup Servicer shall be unwilling to so act, or shall, if the Backup Servicer is unable to so act, or if the Lender so requests in writing to the Agent, appoint itself, or appoint any other established servicing institution acceptable to the ~~Lender~~ Agent in its sole discretion, as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. Pending appointment of a successor to the Servicer hereunder, and after the ~~Lender~~ Agent notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer (or the ~~Lender~~ Agent if there is no Backup Servicer) shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the ~~Lender~~ Agent may make such arrangements for the compensation of such successor out of payments on Pledged Receivables as it and such successor shall agree; provided, however, that, except as provided herein, no such compensation shall be in excess of that permitted the Servicer hereunder, unless (i) agreed to by the Lender and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the ~~Lender~~ Agent and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession~~. The parties hereto agree that in no event will the Backup Servicer be liable for any special, indirect or consequential damages~~. The Backup Servicer hereby agrees that it shall, and shall take all actions necessary so that it shall at all times be ready to, assume all the rights and powers and all of the responsibilities, obligations and duties of the Servicer hereunder, within ~~ten~~ five (105) Business Days of receiving from the ~~Lender~~ Agent a notice requesting the Backup Servicer to do so. Notwithstanding anything contained in this Agreement to the contrary, absent specific knowledge by any Lyon Financial Services, Inc. account representative assigned to this transaction from time to time, or written notice detailing specific Errors (as defined below) or other deficiencies, Lyon Financial Services, Inc., as successor Servicer, is authorized to accept and rely on all accounting records (including computer records) and work product of the prior Servicer hereunder relating to the Contracts (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and Lyon Financial Services, Inc. shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer. If any error, inaccuracy, commission or incorrect or nonstandard practice or procedure (collectively, “Errors”) exists in any Predecessor Servicer Work Product and such Errors cause Lyon Financial Services, Inc. to make or continue any errors (collectively, “Continued Errors”), Lyon Financial Services, Inc. shall have no liability for such Continued Errors; provided, however, that Lyon Financial Services, Inc. agrees to use its best efforts to prevent Continued Errors. In the event that Lyon Financial Services, Inc. becomes aware of Errors or Continued Errors, Lyon Financial Services, Inc. shall, with the prior consent of the ~~Lender~~Agent, use ~~commercially reasonable~~ its best efforts to reconstruct and reconcile any affected data as is commercially reasonable to correct such Errors and Continued Errors and to prevent future Continued Errors. Lyon Financial Services, Inc. shall be entitled to recover its costs thereby expended as Servicer Advances in accordance with Section ~~2.04(c~~2.05(c) hereof. ~~Within four (4) Business Days after~~ Prior to each Remittance Date, provided that the Backup Servicer shall have received the information specified in Section ~~6.10(d~~6.12(e) within the time specified therein, the Backup Servicer shall compare the information on the computer tape or diskette (or other means of electronic transmission acceptable to the Backup Servicer) most recently delivered to the Backup Servicer by the Servicer pursuant to Section ~~6.10(d~~6.12(e) with respect to such Remittance Date to the corresponding Monthly Remittance Report delivered to the Backup Servicer by the Servicer pursuant to Section ~~6.10(d~~6.12(e) and shall: (a) confirm that such Monthly Remittance Report is complete on its face; (b) confirm the distributions to be made on such Remittance Date pursuant to Section ~~2.04(c~~2.05(c) hereof to the extent the Backup Servicer is able to do so given the information provided to it by the Servicer (it being hereby agreed that the Backup Servicer shall promptly notify the Servicer and the ~~Lender~~ Agent if such information is insufficient and that the Servicer shall promptly provide to the Backup Servicer any additional information required by the Backup Servicer); (c) confirm the mathematical computations of information in such Monthly Remittance Report; and (d) confirm such other information as the Backup Servicer and the ~~Lender~~ Agent may agree. ; In the event of any discrepancy between the information set forth in subparagraphs (b) or (c) above as calculated by the Servicer and that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly report such discrepancy to the Servicer and the ~~Lender~~Agent. In the event of a discrepancy as described in the preceding sentence, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy ~~within five (5) Business Days after reporting such discrepancy~~prior to the related Remittance Date, but in the absence of a reconciliation, distributions on the related Remittance Date shall be made consistent with the information calculated by the Servicer, the Servicer and the Backup Servicer shall attempt to reconcile such discrepancy prior to the next Remittance Date, and the Servicer shall promptly report to the ~~Lender~~ Agent regarding the progress, if any, which shall have been made in reconciling such discrepancy. If the Backup Servicer and the Servicer are unable to reconcile such discrepancy with respect to such Monthly Remittance Report by the next Remittance Date that falls in April, July, October or January, the Servicer shall cause independent accountants acceptable to the ~~Lender~~Agent, at the Servicer’s expense, to examine such Monthly Remittance Report and attempt to reconcile such discrepancy at the earliest possible date (and the Servicer shall promptly provide the ~~Lender~~ Agent with a report regarding such event). The effect, if any, of such reconciliation shall be reflected in the Monthly Remittance Report for the next succeeding Remittance Date~~. The provisions of this paragraph shall be referred to herein as the “Discrepancy Procedure”~~. Other than as specifically set forth in this Agreement, the Backup Servicer shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer and shall have no liability for any action taken or omitted by the Servicer. The Backup Servicer may allow a subservicer to perform any and all of its duties and responsibilities hereunder, including but not limited to its duties as successor Servicer hereunder, should the Backup Servicer become the successor Servicer pursuant to the terms of this Agreement; provided, however, that the Backup Servicer shall remain liable for the performance of all of its duties and obligations hereunder to the same extent as if no such subservicing had occurred. In no event shall the Backup Servicer (either prior to or after its appointment hereunder as Servicer) be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including without limitation, acts of terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God.

Appears in 1 contract

Sources: Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.)

Common use of Backup Servicer Clause in Contracts