Backup Servicer. If a Servicer Default shall occur, then the 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, 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. The Servicer agrees to cooperate with the 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 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 such Person to assume the servicing functions hereunder and the transfer to 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 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(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(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 any liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, Xxxxxx Xxxxxxx (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 Lenders in 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 Lenders notify the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer or any other successor Servicer (or Xxxxxx Xxxxxxx (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 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 Lenders and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the 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. 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 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 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(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(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 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 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 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 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 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 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

Samples: 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 Servicer Default shall occur, then the ~~Controlling Holders~~ 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 ~~or any other successor Servicer appointed by the Controlling Holders~~ pursuant to and under this ~~Section~~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 ~~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~~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 ~~Lenders~~ Lender 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 or such other successor~~ 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 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 ~~such Person~~ the Backup Servicer to assume the servicing functions hereunder and the transfer to ~~such Person~~ 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 ~~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 ~~any~~ the 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(a~~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(a~~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 ~~(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 ~~any~~ no liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, ~~Xxxxxx Xxxxxxx (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 ~~Lenders~~ Lender in ~~their~~ 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 ~~Lenders notify~~ Lender notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer ~~or any other successor Servicer~~ (or ~~Xxxxxx Xxxxxxx (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 ~~Lenders~~ 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 ~~Lenders~~ Lender and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the ~~Lenders~~ 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 ~~or any other successor Servicer~~ be liable for any special, indirect or consequential damages. ~~Each of the~~ 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 a the 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 ~~Lenders~~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(a~~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(a~~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 ~~Lenders~~ 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 ~~Lenders~~ 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 ~~Lenders~~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 ~~Lenders~~ 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 ~~Lenders~~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 ~~Lenders~~ 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 ~~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

Samples: 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) On or before the date on which the initial Purchase occurs, until the receipt by the Servicer of a Termination Notice, the Backup Servicer ~~Default~~ shall ~~occur~~perform, ~~then~~ on behalf of the ~~Controlling Holders may~~Deal Agent and the Purchaser, the following duties and obligations: (i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Monthly Reports in hard copy and on computer tape; provided, however, the computer tape is in an MS-DOS, PC readable ASCII format or format to be agreed upon by ~~notice~~ the Backup Servicer and the Servicer on or prior to closing. (ii) Not later than 12:00 noon New York time two Business Days prior to each Reporting Date, the Backup Servicer shall accept delivery of tape from the Servicer, which shall include but not be limited to the ~~Borrower~~ following information: the name, number and name of the related Lessee for each Contract, the collection status, the contract status, the principal balance and the ADCB (the "Tape"). The Servicer shall provide, or cause the Subservicer to provide, the Tape on each Reporting Date as described above. (b) On or before the date on which the initial Purchase occurs, and until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Purchaser and the Deal Agent, the following duties and obligations: (i) Prior to the related Payment Date, the Backup Servicer shall review the Monthly Report to ensure that it is complete on its face and that the following items in such Monthly Report have been accurately calculated, if applicable, and reported: (A) the ADCB, (B) the Backup Servicing Fee, (C) the Average ADCB, (D) the accounts that are 30-60 days past due, (E) the accounts that are 61-90 days past due, (E) the accounts that are 90+ days past due, (F) the accounts that are Defaulted Contracts, (G) the Delinquency Ratio and (H) the Default Ratio. The Backup Servicer shall notify the Deal Agent and the Servicer of any disagreements with the Monthly Report based on such review not later than the Business Day preceding such Payment Date to such Persons. (ii) If the Servicer disagrees with the report provided under paragraph (i) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer if possible, and notify the Deal Agent of the resolution thereof. The Servicer hereby agrees to cooperate at its own expense, with the Backup Servicer in reconciling any discrepancies herein. If within 20 days after the delivery of the report provided under paragraph (i) above by the Backup Servicer, ~~terminate all~~ such discrepancy is not resolved, the Backup Servicer shall promptly notify the Deal Agent of the continued existence of such discrepancy. Following receipt of such notice by the Deal Agent, the Servicer shall deliver to the Deal Agent, the Purchasers, and the Backup Servicer no later than the related Payment Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. (c) After the receipt of an effective Termination Notice by the Servicer in accordance with this Agreement, all authority, power, rights and ~~obligations~~ responsibilities of the ~~Servicer under this Agreement. Upon the delivery to the Servicer of such notice~~Servicer, ~~all authority and power of the Servicer~~ under this Agreement, whether with respect to the ~~Pledged Assets~~ Contracts or ~~otherwise,~~ otherwise shall pass to and be vested in the Backup ~~Servicer or any other successor Servicer appointed by the Controlling Holders pursuant~~ Servicer, subject to and in accordance with the provisions of Section 6.25, as long as the Backup Servicer is not prohibited by an applicable provision of law from fulfilling the same, as evidenced by an Opinion of Counsel. (d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) which may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) which may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this ~~Section, and,~~ Agreement without ~~limitation~~further act on the part of any of the parties to this Agreement. (e) As compensation for its back-up servicing obligations hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee in respect of each Monthly Period (or portion thereof) until the first to occur of the date on which the Backup Servicer becomes a Successor Servicer, resigns or is removed as Backup Servicer or termination of this Agreement. (f) The Backup Servicer may resign at any ~~other successor Servicer appointed hereunder is hereby authorized and empowered~~ time by not less than 120 days notice to ~~execute and deliver~~the Deal Agent, ~~on behalf of~~ the Liquidity Agent, 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. The Servicer agrees to cooperate with the Lenders~~ Seller and the ~~Backup Servicer or other successor Servicer in effecting the termination of the Servicer’s responsibilities and rights hereunder~~Originator. In addition, including, without limitation, providing notification to the Obligors of the assignment of the servicing function, 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~~ be removed without cause by the Deal Agent by notice then given in writing to the Servicer, the Seller and ~~at such times as~~ the Backup ~~Servicer~~ Servicer. In the event of any such resignation or such other successor Servicer may reasonably request, to enable such Person to assume the servicing functions hereunder and the transfer to 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 expenseremoval, the Backup Servicer ~~or any other successor Servicer as successor~~ may be replaced by (i) the Servicer, acting with ~~reasonable access (including at~~ the ~~premises~~ consent of the ~~Servicer~~Deal Agent or (ii) ~~to Servicer’s employees and any and all books~~if no such replacement is appointed within 30 days following such removal or resignation, 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 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.~~ Deal Agent. (g) 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 expressly 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(a) on and after~~ Without limiting the ~~date, if any, that the Backup Servicer assumes the responsibilities~~ generality 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(a) prior to the dateforegoing, 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 any liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, Xxxxxx Xxxxxxx (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 Lenders in 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 Lenders notify the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer or any other successor Servicer (or Xxxxxx Xxxxxxx (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 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 Lenders and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the 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. 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 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 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(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(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 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 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 Lenders. In the event of a discrepancy~~ except 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 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 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 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 expressly set forth ~~in this Agreement~~herein, ~~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 may act through its agents, attorneys and custodians in performing 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~~ under this Agreement, it being understood by the ~~same extent as if no such subservicing had occurred. In no event shall~~ parties hereto that the Backup Servicer ~~or any other successor Servicer (either prior to or after its appointment hereunder as Servicer)~~ will be responsible ~~or liable~~ for any ~~failure~~ misconduct or ~~delay in~~ negligence on the ~~performance~~ part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its ~~obligations hereunder arising out of~~ officers, directors, employees or ~~caused by~~agents shall be liable, directly or indirectly, ~~forces beyond~~ for any damages or expenses arising out of the services performed under this Agreement other than damages or expenses which result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement. (h) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any computer tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its ~~control~~obligations hereunder, and the Seller, Purchaser, Deal Agent, Liquidity Agent, Collateral Custodian and Backup Servicer, shall look only to the Servicer to perform such obligations. The Backup Servicer, and the Collateral Custodian shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of their respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party, including ~~without limitation~~the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party, (iii) the invalidity or unenforceability of any Asset or Contract under applicable law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Asset, Contract or any item of Equipment, or (v) the acts or omissions of ~~terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God~~any successor Backup Servicer.

Appears in 2 contracts

Samples: Receivables Purchase Agreement (Fidelity Leasing Inc), Receivables Purchase Agreement (Resource America Inc)

Backup Servicer. If (a) The Agent may at any time after a Servicer ~~Default shall occur, then the Controlling Holders 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 ~~or any other successor Servicer appointed by the Controlling Holders~~ pursuant to and under this 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~~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. The Servicer agrees to cooperate with the ~~Lenders~~ Agent and the Backup ~~Servicer or other successor~~ 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~~function and instructions to abide by payment directions delivered by the Agent or the Backup Servicer, 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 it to enable 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 such Person to assume the servicing functions hereunder and the transfer to ~~such Person~~ 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,~~ Neither 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 any Lender Agent 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. . (b) 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~~ Fee shall be paid out of Collections ~~with respect to any Pledged Receivable~~ as set forth in Section ~~2.04(a~~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(a~~. (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 ~~(with a copy delivered to the Backup Servicer)~~ 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 ~~or any other successor Servicer~~ hereunder~~; provided, further, however, that the~~ . 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 liability and 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~~negligence or willful misconduct. In addition, ~~neither~~ the Backup Servicer ~~nor any other successor Servicer~~ shall have ~~any~~ no liability relating to the representations and warranties of the Servicer contained in ~~Article IV~~Section 4.02 hereof. Notwithstanding the above, ~~Xxxxxx Xxxxxxx (or~~the Agent may, ~~following~~ if the ~~Collateral Split Effective Date, the Primary Lender under the related Loan Agreement) may~~Backup Servicer shall be unwilling to so act, 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 ~~Lenders in their 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 ~~Lenders notify~~ Agent notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer ~~or any other successor Servicer~~ (or ~~Xxxxxx Xxxxxxx (or, following~~ the ~~Collateral Split Effective Date, the Primary Lender under the related Loan Agreement)~~ Agent 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 ~~Lenders~~ 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 Lenders and (ii) such compensation shall be on commercially competitive terms and rates. The ~~Borrower, the Lenders~~ 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 or any other successor Servicer be liable for any special, indirect or consequential damages. 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 a Lender a notice requesting the Backup Servicer or such other successor 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 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(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~~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(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 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~~ , 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 Lenders 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 ~~Lenders~~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 ~~Lenders~~ 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 ~~Lenders~~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 ~~Lenders~~ 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 ~~or any other successor~~ may not resign except upon sixty (60) day's prior written notice to the Agent, the Servicer ~~may allow a subservicer to perform any~~ 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 may be removed by the Agent with or ~~such other successor Servicer become the successor Servicer pursuant~~ 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 ~~or such other successor Servicer, as applicable, 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 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 GodBorrower.

Appears in 1 contract

Samples: Receivables Loan and Security Agreement (Maxtor Corp)

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 ~~Controlling Holders 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 or any other successor Servicer appointed by the Controlling Holders pursuant to and under this Section, and, without limitation~~Servicer'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. The Backup Servicer shall not be required to expend or risk its own funds or otherwise incur financial liability in the performance of any ~~other successor Servicer appointed hereunder~~ 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. (b) 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. (c) Notwithstanding anything to ~~effect~~ the ~~purposes of such~~ contrary herein, the Class A Note Agent shall have the right to remove the Backup Servicer for cause and replace the Backup Servicer by giving 45 days written notice ~~of termination or~~ to the Backup Servicer. In the event that the Class A Note Agent exercises its right to remove and replace JPMorgan Chase Bank as Backup Servicer, JPMorgan Chase Bank shall have no further obligation to perform the duties of the Backup Servicer under this Agreement. . (d) The Servicer ~~agrees~~ shall provide monthly, or as otherwise requested, to ~~cooperate with the 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 the Backup Servicer or such other successor 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 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 such Person to assume the servicing functions hereunder and the transfer to 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 Receivables sufficient to enable the Backup Servicer ~~or such other successor Servicer, as successor Servicer,~~ to assume the servicing functions hereunder. Neither 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 responsibilities as successor ~~Servicer) or any other successor Servicer undertakes to perform only such duties~~ servicer 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(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(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 collect 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, Receivables. (e) Except 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 any liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, Xxxxxx Xxxxxxx (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 Lenders in 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 Lenders notify the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer ~~or any other successor Servicer (or Xxxxxx Xxxxxxx (or~~may accept and reasonably rely on all accounting, 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 records and ~~assumption, the Lenders may make such arrangements for the compensation~~ work 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~~without audit, ~~unless (i) agreed to by the Lenders~~ and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the 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. 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 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~~ 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 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. this provision shall ~~be entitled to recover its costs thereby expended as Servicer Advances in accordance with Section 2.04(a) 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 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(a) 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 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 Lenders 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 ~~Lenders~~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 Lenders 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 ~~Lenders~~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 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~~ 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 ~~successor Servicer~~ 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 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~~ 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

Samples: Sale and Servicing Agreement (Oakwood Homes Corp)

Backup Servicer. If a Servicer Default shall occur, then the ~~Controlling Holders~~ 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 ~~or any other successor Servicer appointed by the Controlling Holders~~ pursuant to and under this ~~Section~~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 ~~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~~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 ~~Lenders~~ Lender 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 or such other successor~~ 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 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 ~~such Person~~ the Backup Servicer to assume the servicing functions hereunder and the transfer to ~~such Person~~ 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 ~~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 ~~any~~ the 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(a~~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(a~~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 ~~(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 ~~any~~ no liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, ~~Xxxxxx Xxxxxxx (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 ~~Lenders~~ Lender in ~~their~~ 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 ~~Lenders notify~~ Lender notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer ~~or any other successor Servicer~~ (or ~~Xxxxxx Xxxxxxx (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 ~~Lenders~~ 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 ~~Lenders~~ Lender and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the ~~Lenders~~ 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 ~~or any other successor Servicer~~ be liable for any special, indirect or consequential damages. ~~Each of the~~ 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 a the 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 ~~Lenders~~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(a~~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(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 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 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 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 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 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 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 1 contract

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

Backup Servicer. ~~If a Servicer Default shall occur, then the Controlling Holders~~ 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 or any other successor Servicer appointed by the Controlling Holders~~ Servicer, if any, pursuant to and under this ~~Section~~Section 6.14 (unless Agent shall have appointed a different successor Servicer pursuant to Section 6.01 hereof or Backup Servicer is unable to act as Servicer and a successor is appointed as provided in the third paragraph of this Section 6.14), 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. ~~The~~ Each of Servicer and Borrower agrees to cooperate with ~~the Lenders~~ Agent and ~~the~~ Backup ~~Servicer or other successor~~ 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 ~~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~~ it to enable 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 such Person to assume the servicing functions hereunder and the transfer to ~~such Person~~ 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~~ Neither Agent nor 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 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(a)~~ 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(a)~~ 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 ~~(with a copy delivered to the Backup Servicer)~~ 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 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~~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 or any other successor~~ 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, ~~neither the~~ Backup ~~Servicer nor any other successor~~ Servicer shall have ~~any~~ no liability relating to the representations and warranties of ~~the~~ Servicer contained in Article IV. Notwithstanding the above, ~~Xxxxxx Xxxxxxx (or, following the Collateral Split Effective Date, the Primary Lender under the related Loan Agreement)~~ Agent may, ~~or shall~~if Agent had not previously appointed a Backup Servicer, ~~if the~~ Backup Servicer shall be unwilling or ~~any other successor Servicer is~~ 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 Lenders in 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 Lenders notify the~~ Agent notifies Servicer to discontinue performing servicing functions under this Agreement, ~~the~~ Backup ~~Servicer or any other successor~~ Servicer (or ~~Xxxxxx Xxxxxxx (or, following the Collateral Split Effective Date, the Primary Lender under the related Loan Agreement)~~ Agent 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 Lenders~~ 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~~ Lenders and (ii) such compensation shall be on commercially competitive terms and rates. ~~The~~ Borrower, ~~the Lenders~~ 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 or any other successor Servicer be liable for any special, indirect or consequential damages. 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 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~~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 Lenders~~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(a) 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(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 Lenders~~ 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 Lenders~~ 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 Lenders~~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 Lenders~~ 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 Lenders~~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 Lenders~~ 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 or shall not be subject to any ~~other successor~~ 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 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 1 contract

Samples: Loan and Security Agreement (BRT Realty Trust)

Backup Servicer. ~~If a Servicer Default shall occur, then the Controlling Holders may, by notice to the Servicer, the Borrower and the Backup Servicer, terminate all of the rights and obligations~~ (a) Upon termination 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, and, without limitationSection 7.01, 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. The Servicer agrees to cooperate with the 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 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 such Person to will within 60 calendar days assume the servicing functions hereunder and the transfer to 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 responsibilities hereunder. Neither 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(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(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 any liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, Xxxxxx Xxxxxxx (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 Lenders in 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 Lenders notify the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer or any other successor Servicer (or Xxxxxx Xxxxxxx (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 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 Lenders and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the 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. 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 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 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~~ reimbursement from the Trust Fund as an Extraordinary Trust Fund Expense for any and all costs ~~thereby expended as Servicer Advances~~ and expenses incurred in ~~accordance~~ connection with Section 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~~ related to the ~~Backup Servicer) most recently delivered~~ transfer of servicing to the ~~Backup Servicer~~ extent that such costs and expenses are not reimbursed by the Servicer pursuant to Section ~~6.10(d~~6.07. Such costs and expenses include, without limitation, any costs or expenses associated with the complete transfer of all servicing data and the completion, correction or manipulation of such servicing data as may be required by the Backup Servicer to correct any errors or insufficiencies in the servicing data or otherwise to enable the Backup Servicer to service the Contracts properly and effectively. (b) ~~with respect to such Remittance Date to~~ On or before the ~~corresponding Monthly Remittance Report delivered~~ date which is twenty days following the Closing Date, the Servicer shall, at the Servicer's expense, deliver to the Backup Servicer by a complete data file for each Contract in a mutually agreeable format. (c) The Servicer shall provide to Backup Servicer, on a monthly basis, with monthly loan level data in a mutually agreed format. In addition, upon request of the Backup Servicer, which request may be made no more frequently than quarterly, 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(a) hereof to the extent will provide the Backup Servicer ~~is able~~ with sufficient data to ~~do so given~~ permit the Backup Servicer to assume the duties of Servicer under this Agreement without delay. (d) Until the Backup Servicer assumes the primary servicing duties, the Backup Servicer will have no obligations with respect to servicing data received. Also, the Backup Servicer will have no reporting obligations prior to assuming the primary servicing duties. The Backup Servicer agrees to hold any servicing information ~~provided~~ in confidence and only to it be disclosed as required by this Agreement, applicable law or as necessary in the course of prudent servicing practices. (e) Within 90 days following the Closing Date, the Servicer ~~(it being hereby agreed~~ shall provide full access to the Backup Servicer and to its employees and agents to perform on-site due diligence and auditing of the Servicer and its servicing programs and systems. This due diligence may include, without limitation, a complete "data mapping" of the Servicer's servicing systems. The Backup Servicer will conduct all such reviews in a manner which does not unreasonably interfere with the Servicer's normal operations or customer or employee relations. All reasonable costs and expenses of the Backup Servicer associated with the performance of such due diligence review shall be reimbursable from the Trust Fund and shall constitute Extraordinary Trust Fund Expenses, provided that such expenses shall not exceed $100,000. Any such diligence by the Backup Servicer shall ~~promptly notify~~ be for the sole purpose of enabling the Backup Servicer to perform the duties, if necessary, of the Servicer hereunder. Any requests made by the Backup Servicer during such due diligence review shall be reasonable requests and ~~the Lenders if such~~ any requests for data or information ~~is insufficient and that~~ from the Servicer shall ~~promptly provide to the Backup Servicer any additional~~ be for data or 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 Lenders may agree. In the event of any discrepancy between the information set forth in subparagraphs (b) or (c) above as calculated currently compiled 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 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~~ Servicer's possession. (5f) 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 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 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 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~~ consequential, incidental or ~~delay in~~ punitive damages. In addition, the ~~performance~~ Backup Servicer will not be liable for any costs, fees or damages resulting from errors or conditions existing prior to the Backup Servicer's assumption 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 primary servicing duties.

Appears in 1 contract

Samples: Pooling and Servicing Agreement (Bear Stearns Ast BCK Sec Inc Madison Ave Trust 2002-A)

Backup Servicer. ~~If a Servicer Default shall occur, then~~ (a) From and after the ~~Controlling Holders may, by notice to~~ Effective Date hereof until the ~~Servicer~~Servicing Transfer Date, 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~~ shall act as back-up servicer with respect to the ~~Pledged Assets or otherwise~~Mortgage Loans, and shall ~~pass~~ perform such functions, duties, obligations, undertakings and responsibilities as set forth in Section 9.03(b) below. Prior to ~~and be vested in~~ the ~~Backup Servicer or any other successor Servicer appointed by the Controlling Holders pursuant to and under this Section, and, without limitation~~Servicing Transfer Date, the Backup Servicer shall have only those duties and obligations imposed by it described in Section 9.03(b) below, 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. In its capacity as Backup Servicer, it shall in no event be liable for any obligations of the Owner or the Servicer to any party, whether hereunder or under any other ~~successor Servicer appointed hereunder is hereby authorized and empowered~~ agreement, which are not related 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. The Servicer agrees to cooperate with the Lenders and the Backup Servicer or other successor Servicer in effecting the termination of the Servicer’s responsibilities and rights hereunderservicing functions, including, without limitation, ~~providing notification~~ any repurchase obligations. (b) No later than the fifth (5th) Business Day of each calendar month, the Servicer shall deliver to ~~the Obligors of the assignment of the servicing function, providing~~ the Backup Servicer ~~or such other successor Servicer, at the Servicer’s expense, with all records,~~ a complete set of servicing records in ~~electronic or other form, reasonably requested by the Backup Servicer or such other successor Servicer, in such~~ computer-readable 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 such Person to assume the servicing functions hereunder and the transfer to 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~~payment, collection and other servicing activity of the ~~Servicer agrees~~ Mortgage Loans during the preceding calendar month, which records shall contain sufficient data to ~~cooperate in providing, at the Servicer’s expense,~~ permit the Backup Servicer ~~or any other successor Servicer as successor Servicer, with reasonable access (including at~~ to assume the ~~premises~~ duties of the ~~Servicer) to Servicer’s employees and any~~ Servicer hereunder without delay on account of the absence of relevant servicing information. The information described in the foregoing sentence and all ~~books, records or~~ other information ~~reasonably requested~~ provided by it the Servicer to ~~enable~~ the Backup Servicer ~~or such other successor Servicer, as successor Servicer,~~ pursuant to ~~assume~~ the ~~servicing functions hereunder. Neither any Lender nor the Backup Servicer or any other successor Servicer~~ Agreement shall be ~~deemed to have breached any obligation hereunder as a result of a failure to make or delay~~ in ~~making any distribution as~~ form 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(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(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 substance satisfactory to the Backup Servicer~~) pursuant to this Section 6.13~~. On at least a monthly basis, the Backup Servicer shall ~~be (~~convert and "map" the data contained in such servicing records to its own servicing system, and shall provide the Lender not later than the 15th day of each month commencing November 15, 2003, with a certification by an appropriate officer of the Backup Servicer ~~hereby agrees~~ to bethe effect that it has received from the Servicer each monthly submission of servicing data, has completed such conversion and mapping of the data delivered with respect to the immediately preceding month, and is capable of assuming the duties of the Servicer if required to do so hereunder upon at least 20 days' prior to written notice from the Lender. (c) The Backup Servicer, prior to assuming any of the Servicer's duties hereunder may not resign hereunder unless it arranges for a successor Backup Servicer reasonably acceptable to the Owner and the Lender with not less than 90 days' notice delivered to the Owner, the Lender and the Servicer. (d) From and after the Servicing Transfer Date, the Backup Servicer shall perform all of the functions, duties, obligations, undertakings and responsibilities of the Servicer hereunder and shall be the successor ~~in all respects~~ to the Servicer hereunder, but only in its capacity as Servicer under this ~~Agreement and~~ Agreement. In 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 event 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 Servicer, it shall not be liable for any acts or omissions of 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 under this Agreement or any other ~~successor Servicer, upon becoming a successor Servicer, are expressly limited~~ agreement and shall not be deemed 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~~ have made any ~~other successor Servicer shall have any liability relating to the~~ representations and warranties of the Servicer ~~contained~~ or any predecessor Servicer under this Agreement or any other agreement. In the event the Backup Servicer becomes the successor Servicer, it shall be not deemed to be in ~~Article IV. Notwithstanding~~ default thereunder by reason of any failure to make, or any delay in making, any distribution hereunder or any portion thereof caused by (a) the ~~above~~failure of the Servicer or any predecessor Servicer to (i) deliver, ~~Xxxxxx Xxxxxxx~~ or any delay in delivering, cash, documents or records to it, (orii) cooperate as required by this Agreement, ~~following~~ or (iii) deliver the ~~Collateral Split Effective~~ Mortgage Loans to the Custodian as required by this Agreement, or (b) restrictions imposed by any regulatory authority having jurisdiction over the Servicer. (e) Upon the transfer of the servicing of the Mortgage Loans, prior to the first Payment Date after the Servicing Transfer Date, the ~~Primary~~ Lender ~~under~~ shall cause the ~~related Loan Agreement~~Custodian to provide the Backup Servicer with an officer's certificate that contains (i) ~~may~~a complete description of all material breaches by the Servicer which have not been fully cured and (ii) a confirmation that all reports required to be filed by the Custodian have been timely filed. (f) The Backup Servicer agrees to indemnify the Owner, the Servicer and the Lender, and any of their respective directors, officers, employees or agents from, and hold them harmless against, any and all costs, expenses (including reasonable attorney fees and disbursements), losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage or liability arose out of, or ~~shall~~was imposed upon the Owner, the Servicer or the Lender and their respective directors, officers, employees and agents through the Backup Servicer's intentional misconduct or gross negligence, except to the extent such indemnified party's own bad faith, willful misconduct or gross negligence contributes to the costs, loss, claim, damage or liability. Each of the Owner, the Servicer and the Lender agrees, severally and not jointly, to indemnify the Backup Servicer, and any of its respective directors, officers, employees or agents from, and hold them harmless against, any and all costs, expenses (including reasonable attorney fees and disbursements), losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage or liability arose out of, or was imposed upon the Backup Servicer and its respective directors, officers, employees and agents through the intentional misconduct or gross negligence of the Owner, the Servicer or the Lender, except to the extent such indemnified party's own bad faith, willful misconduct or gross negligence contributes to the costs, loss, claim, damage or liability (for the avoidance of doubt, in no event shall Owner or Lender indemnify the Backup Servicer for the intentional misconduct or gross negligence of either (x) the other or (y) the Servicer). (g) The Backup Servicer will not be obligated to incur any expenses or costs (including, without limitation, legal fees and the preparation and recording of all intervening assignments of mortgage) in connection with the transfer of servicing of the Mortgage Loans to the Backup Servicer, or to compel the performance of any obligations by any party to the Agreement. Without limiting any obligations of a terminated Servicer as provided above, if the Servicer is no longer the Servicer hereunder for any reason, such predecessor Servicer shall be responsible for paying any Servicing Transfer Costs incurred by the Backup Servicer in connection with the transfer of servicing from the predecessor Servicer; provided, that if the predecessor Servicer fails to pay any such Servicing Transfer Costs, the Lender shall cause such Servicing Transfer Costs to be paid out of the Collection Account. In addition, 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 Lenders in their sole discretion, as~~ the successor to the Servicer, and if the predecessor Servicer ~~hereunder~~ fails to pay any Servicing Transfer Costs incurred by the Backup Servicer, then the Backup Servicer may offset any such Servicing Transfer Costs against amounts that are payable or reimbursable to the predecessor Servicer with respect to unpaid Servicing Fees and unreimbursed Servicing Advances as set forth below in the following paragraph below (and the Backup Servicer shall only be paid such Servicing Transfer Costs from the Collection Account to the extent it reasonably determines that such Servicing Transfer Costs will not be recoverable pursuant to such offsets). To the extent such Servicing Transfer Costs remain unpaid by the predecessor Servicer, from the Collection Account, or from offset against amounts that are payable or reimbursable to the predecessor Servicer with respect to unpaid Servicing Fees and unreimbursed Servicing Advances, such unpaid Servicing Transfer Costs shall be paid by the Owner and the predecessor Servicer, jointly and severally. The foregoing obligation of the predecessor Servicer with respect to Servicing Transfer Costs shall not be deemed to limit any other liability the predecessor Servicer may have to the other parties hereto in respect of any breach of its obligations or duties hereunder. (h) If the Backup Servicer is the successor to the Servicer, the Backup Servicer in such capacity shall remit all unpaid Servicing Fees accrued during the period prior to the Servicing Transfer and unreimbursed Servicing Advances outstanding on the Servicing Transfer Date to the predecessor Servicer; provided, however, there shall be no duty to so remit if the Servicing Transfer is the result of an Event of Default under this Agreement with respect to the predecessor Servicer; and provided further, that such duty to reimburse relates only to all such unpaid Servicing Fees accrued during the period prior to the Servicing Transfer and unreimbursed Servicing Advances made by the predecessor Servicer prior to Servicing Transfer Date; and, further, provided, that the Backup Servicer in its capacity as successor Servicer shall be obliged to make such reimbursement only out of collections on the related Mortgage Loan, (including monthly collections, Liquidation Proceeds, Released Mortgaged Property Proceeds, Insurance Proceeds, or their equivalent under the Basic Document) and such other amounts that the Servicer is permitted to collect from the related Mortgagor or otherwise relating to the related Mortgage Loan before the Backup Servicer in its capacity as successor Servicer reimburses itself for any unreimbursed Servicing Advances which it makes with respect to such Mortgage Loan. The Backup Servicer in its capacity as successor Servicer shall remit any funds due to the predecessor Servicer under this paragraph on the Payment Date. (i) The Backup Servicer, as compensation for its obligations and duties as Backup Servicer hereunder, shall be paid the Backup Servicing Fee on each Payment Date pursuant to Section 5.01. If the Backup Servicer shall succeed as Servicer hereunder, the Backup Servicer shall no longer be entitled to be paid the Backup Servicing Fee with respect to any period after the Servicing Transfer Date. (j) In addition, as compensation for its assumption of ~~all or any part of the responsibilities,~~ its duties ~~or liabilities of the~~ as Backup Servicer hereunder~~. Pending appointment~~ , the Lender shall deliver to the Backup Servicer on the Effective Date hereof, from the Lender's own funds, the Initial Setup Fee. (k) As compensation for its assumption of a its duties as successor to the Servicer hereunder, on and after the ~~Lenders notify the Servicer to discontinue performing servicing functions under this Agreement~~Servicing Transfer Date, the Backup Servicer ~~or any other~~ in its capacity as successor to the Servicer hereunder shall become entitled to receive the Servicing Fee for three (~~or Xxxxxx Xxxxxxx~~ 3) months (~~or, following~~ regardless of the ~~Collateral Split Effective Date,~~ actual number of months that the ~~Primary Lender under the related Loan Agreement) if there is no~~ Backup Servicer ~~or other~~ has acted as the successor Servicer) on each Mortgage Loan and such other compensation to the Servicer as is provided in this Agreement (other than any such compensation due to the predecessor Servicer for any period prior to the Servicing Transfer Date); provided, however that the predecessor Servicer shall ~~act in~~ nonetheless be entitled to payment or reimbursement for unpaid Servicing Fees accrued during the period prior to the Servicing Transfer Date or Servicing Advances made by such ~~capacity~~ predecessor Servicer during the period prior to the Servicing Transfer Date pursuant to Section 9.03(h) hereof. The parties agree that if the Backup Servicer has succeeded as ~~hereinabove provided. In connection with such appointment and assumption~~the successor Servicer hereunder, the ~~Lenders may make such arrangements for~~ Servicing Fee Rate shall be equal to 0.50% after the ~~compensation of such successor out of payments on Pledged Receivables as it and such successor shall agree;~~ Servicing Transfer Date, provided, however, ~~that~~in the event of an Event of Default under the Loan Agreement, ~~except as provided herein, no such compensation~~ the Servicing Fee Rate shall be ~~in excess of that permitted the Servicer hereunder~~a commercially reasonable rate or per loan fee (taking into consideration, ~~unless (i) agreed to by the Lenders and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower~~among other factors, the 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. 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 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 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(a) hereof. Within four (4) Business Days after each Remittance Date, provided fact that the ~~Backup Servicer shall have received the information specified in Section 6.10(d~~Loan Agreement is no longer a revolving facility) 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 as agreed upon 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(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 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 ~~Lenders~~ Lender, who agree to act in good faith based upon the then Principal Balance of the Mortgage Loans outstanding at such time and anticipated balances going forward; and provided further, that the 0.50% rate shall be applicable for a minimum of three (3) months following such a Servicing Transfer Date. If the Lender and the Backup Servicer fail to set a mutually agreeable Servicing Fee Rate in good faith negotiations after the Servicing Transfer Date and the subsequent Event of Default, the Backup Servicer may ~~agree. In~~ in its sole discretion resign as successor Servicer hereunder at no cost to the ~~event~~ Backup Servicer and the Lender shall reimburse the Backup Servicer for any unreimbursed Servicing Advances made by the Backup Servicer with respect to the Mortgage Loans and any unreimbursed Servicing Transfer Costs incurred by the Backup Servicer prior to the date of ~~any discrepancy between~~ such resignation. (l) If the ~~information set forth in subparagraphs~~ Backup Servicer is terminated as Backup Servicer without cause or, is required by the Owner (bwith the prior written consent of the Lender) or ~~(c) above~~ the Lender to resign as ~~calculated by the Servicer and that determined or calculated by the~~ Backup Servicer, the Backup Servicer shall ~~promptly report such discrepancy~~ be paid from the Collection Account (or from the Lender if there are insufficient funds in the Collection Account) a termination fee equal to the ~~Servicer and~~ Backup Servicing Fee Rate accrued for nine (9) months (on the ~~Lenders. In the event~~ basis of a ~~discrepancy as described in~~ 360-day year and twelve 30-day months) less 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~~ number 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 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 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 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, months that the Backup Servicer has already received a payment as Backup Servicer on the aggregate principal balance of the Mortgage Loans on the date of such termination, if such termination or ~~such other successor Servicer, as applicable, shall remain liable for the performance of all of its duties and obligations hereunder~~ forced resignation occurs on or prior to the ~~same extent as if no such subservicing had occurred~~nine month anniversary of the Effective Date. ~~In no event~~ No termination fee shall be payable to the Backup Servicer if the Backup Servicer is terminated as Backup Servicer without cause or, is required to resign as Backup Servicer, after the 9-month anniversary of the Effective Date or ~~any other successor~~ if the Backup Servicer ~~(either prior~~ resigns pursuant 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 GodSection 9.03(k).

Appears in 1 contract

Samples: Servicing Agreement (American Business Financial Services Inc /De/)

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 Controlling Holders 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 ~~Servicer of such notice~~contrary herein, ~~all authority and power of~~ the ~~Servicer under this Agreement, whether with respect~~ Agent shall have the right to ~~the Pledged Assets or otherwise, shall pass to and be vested in~~ remove the Backup Servicer with or without cause at any ~~other successor Servicer appointed by the Controlling Holders pursuant to~~ time and ~~under this Section, and, without limitation,~~ replace the Backup Servicer ~~or any other successor Servicer appointed hereunder is hereby authorized and empowered~~ pursuant to ~~execute and deliver, on behalf~~ the provisions of the Backup Servicing Agreement. In the event that the Agent exercises its right to remove and replace Concord Servicing Corporation as Backup 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 Concord Servicing Corporation shall have no further obligation to perform the duties of the Backup Servicer under this Agreement. . (d) The Servicer ~~agrees~~ shall provide monthly, or as otherwise requested, to ~~cooperate with the 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 the Backup Servicer or such other successor 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 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 such Person to assume the servicing functions hereunder and the transfer to 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 Receivables sufficient to enable the Backup Servicer ~~or such other successor Servicer, as successor Servicer,~~ to assume the servicing functions hereunder. Neither 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 responsibilities as successor ~~Servicer) or any other successor Servicer undertakes to perform only such duties~~ servicer 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(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(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 collect 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, Receivables. (e) Except 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 any liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, Xxxxxx Xxxxxxx (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 Lenders in 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 Lenders notify the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer ~~or any other successor Servicer (or Xxxxxx Xxxxxxx (or~~may accept and reasonably rely on all accounting, 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 records and ~~assumption, the Lenders may make such arrangements for the compensation~~ work 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~~without audit, ~~unless (i) agreed to by the Lenders~~ and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the 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. 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 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~~ 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 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. this provision shall ~~be entitled to recover its costs thereby expended as Servicer Advances in accordance with Section 2.04(a) 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(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 persons or property, and ~~the Lenders 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 Lenders 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 ~~Lenders~~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 Lenders 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 ~~Lenders~~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 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~~ 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 ~~successor Servicer~~ 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 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~~ 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

Samples: Sale and Servicing Agreement (Bluegreen Corp)

Backup Servicer. If (a) At any time and from time to time, Position Holder Trust may designate a ~~Servicer Default shall occur, then~~ backup servicer (the ~~Controlling Holders may, by notice to the Servicer, the Borrower and the~~ “Backup Servicer~~, terminate all of~~ ”) to perform the ~~rights and obligations of the Servicer under this Agreement. Upon the delivery~~ Services to ~~the Servicer of such notice, all authority and power of the~~ be provided by Servicer under this Agreement, ~~whether with respect to the Pledged Assets or otherwise,~~ and Position Holder Trust shall ~~pass to and be vested in~~ give Servicer written notice of its designation of any Backup Servicer. Upon the Backup Servicer ~~or any other successor~~ receiving written notice from Position Holder Trust that a Servicer ~~appointed by the Controlling Holders pursuant to and~~ Event of Default has occurred under this ~~Section, and, without limitation~~Agreement and Servicing Agreement 10 that the Backup Servicer is required to serve as primary Servicer under this Agreement, the Backup Servicer ~~or any other successor~~ will become 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. hereunder. (b) The ~~Servicer agrees to cooperate with the 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 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 such Person to assume the servicing functions hereunder and the transfer to 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 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, or as may be otherwise agreed between the Backup Servicer and Position Holder Trust, it being expressly understood by all parties hereto that there are no not and shall not be any implied duties or obligations of the Backup Servicer ~~or such other successor~~ to 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(a~~. (c) ~~on and after~~ Upon the ~~date, if any, that~~ receipt by 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(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~~ of the Servicer as initial Servicer and assumption of the Servicer’s obligations, all authority and power of the initial Servicer shall pass to ~~the Backup Servicer) pursuant to this Section 6.13,~~ and be vested in 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 hereofServicer; 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,~~ Servicer shall have (i) no liability with respect to any ~~obligation which was required to be performed~~ action performed, breaches or defaults caused 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~~ the 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~~iii) no liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer, including the ~~original~~ initial Servicer~~. The indemnification~~ , (iv) no obligations to perform advancing obligations, if any, of the ~~Backup~~ Servicer or unless it elects to do so in its sole discretion, and (v) no obligations to pay any of the fees and expenses of any other ~~successor Servicer~~party to the transactions contemplated hereby. Additionally, 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 any liability relating to the representations and warranties of the initial Servicer contained in Article IV. Notwithstanding the above, Xxxxxx Xxxxxxx (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 Lenders in 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 Lenders notify the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer or any other successor Servicer (or Xxxxxx Xxxxxxx (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 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 Lenders and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the 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. 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 a Lender a notice requesting the Backup Servicer or such other successor Servicer to do so. Notwithstanding anything contained in this Agreement shall not apply 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.Backup Servicer, as successor Servicer, . (d) The 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~~ without any audit or other examination. Notwithstanding anything contained in this Agreement to the ~~Contracts~~ contrary, the Backup Servicer, as successor Servicer, is not responsible for the accounting, records (including computer records) and work of the prior Servicer (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~~ omission or incorrect or ~~nonstandard~~ non-standard practice or procedure (collectively, “Errors”) ~~exists~~ exist in any Predecessor Servicer Work Product and such Errors make it materially more difficult to service or should cause ~~Lyon Financial Services, Inc.~~ or materially contribute to ~~make~~ the Backup Servicer as successor Servicer making or ~~continue~~ continuing any ~~errors~~ Errors (collectively, “Continued Errors”), ~~Lyon Financial Services, Inc.~~ the Backup Servicer as successor Servicer shall have no liability for such Continued Errors; provided, however, that ~~Lyon Financial Services, Inc.~~ the Backup Servicer as successor Servicer agrees to use ~~its best~~ commercially reasonable efforts to prevent Continued Errors. In the event that ~~Lyon Financial Services, Inc.~~ the Backup Servicer as successor Servicer becomes aware of Errors or Continued Errors, ~~Lyon Financial Services, Inc. shall, with the prior consent of the Lenders,~~ it shall use commercially reasonable efforts to reconstruct and reconcile ~~any affected~~ such data as is commercially reasonable to correct such Errors and Continued Errors and to prevent future Continued Errors. ~~Lyon Financial Services, Inc.~~ The Backup Servicer as successor Servicer shall be entitled to recover its costs thereby expended as Servicer Advances in accordance with Section 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:expended. (ae) ~~confirm that such Monthly Remittance Report is complete on~~ Servicer agrees to cooperate and use its ~~face; (b) confirm~~ commercially reasonable efforts in effecting the ~~distributions to be made on such Remittance Date pursuant to Section 2.04(a) hereof to~~ transition of 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~~ responsibilities and the 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 Lenders may agreerights hereunder. In addition, Servicer agrees to cooperate and use its commercially reasonable efforts in providing at 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~~ Servicer’s expense the Backup Servicer, ~~the Backup Servicer shall promptly report such discrepancy to the Servicer and the 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 successor Servicer, with reasonable access (including at the ~~Servicer and the Backup Servicer shall attempt~~ premises of Servicing Agreement 11 Servicer) to ~~reconcile such discrepancy prior to the next Remittance Date~~Servicer’s employees, and the Servicer shall promptly report to the 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 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 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~~ the books, records (in electronic or other form) or other information reasonably requested by it to enable the Backup Servicer, as successor Servicer, to assume the servicing functions hereunder~~, including but not limited to its duties~~ . (f) The Backup Servicer as successor Servicer ~~hereunder~~is authorized and empowered to execute and deliver, ~~should~~ on behalf of Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do so 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 Servicer. Servicer will provide Backup Servicer, as successor Servicer, with a Power of Attorney stating such. (g) No provision of this Agreement shall require the Backup Servicer (in such capacity 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~~ in its capacity as successor Servicer~~, as applicable,~~ ) to incur any out-of-pocket expenses if it shall ~~remain liable~~ have reasonable grounds for ~~the performance~~ believing that reimbursement of ~~all of its duties and obligations hereunder~~ such expenses is not reasonably assured 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 Godit.

Appears in 1 contract

Samples: Servicing Agreement (Life Partners IRA Holder Partnership, LLC)

Backup Servicer. If The Servicer shall retain a ~~Servicer Default shall occur, then~~ backup servicer (the ~~Controlling Holders may, by notice to the Servicer, the Borrower and the~~ “Backup Servicer”) designated by the Required Noteholders, ~~terminate all of the rights and obligations of the Servicer under this Agreement. Upon the delivery~~ which is reasonably acceptable to the Servicer ~~of such notice~~to be the Backup Servicer for the Equipment Loans and Receivables, ~~all authority~~ who will agree to perform the services as may be agreed upon by the parties to the Backup Servicing Agreement pursuant to terms and ~~power~~ conditions acceptable to the Required Noteholders; provided that for any backup servicer that is appointed other than Lyon, the Servicer shall retain a backup servicer designated by the Special Required Noteholders, which is reasonably acceptable to the Servicer to be the Backup Servicer for the Equipment Loans and Receivables, who will agree to perform the services as may be agreed upon by the parties to the Backup Servicing Agreement pursuant to the terms and conditions acceptable to the Special Required Noteholders. The initial Backup Servicer shall be Lyon and the Required Noteholders hereby agree that the terms and conditions of the Backup Servicing Agreement entered into on the date hereof with Lyon is acceptable. The Servicer ~~under this Agreement, whether with respect~~ shall on or prior to the ~~Pledged Assets or otherwise, shall pass to and be vested~~ time set forth in the Backup Servicing Agreement send such Backup Servicer ~~or any other successor Servicer appointed by~~ the ~~Controlling Holders~~ information required to be provided pursuant to the Backup Servicing Agreement. The fees and ~~under this Section, and, without limitation,~~ expenses of 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. The Servicer agrees to cooperate with the 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 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 such Person to assume the servicing functions hereunder and the transfer to such Person for administration by it of all cash amounts which at the time should shall be ~~or should have been deposited~~ paid by the Servicer in from the ~~Collection Account or thereafter be received by~~ Servicing Fee. To the ~~Servicer with respect to~~ extent 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 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(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(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 expressly modified pursuant to the ~~date that~~ provisions of its Backup Servicing Agreement, such provisions shall modify 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 as Servicer nor any other successor Servicer shall have any liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, Xxxxxx Xxxxxxx (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 Lenders in 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 Lenders notify the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer or any other successor Servicer (or Xxxxxx Xxxxxxx (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 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 Lenders and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the 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. 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 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 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(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(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 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 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 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 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 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 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 1 contract

Samples: Pooling and Servicing Agreement (Alliance Laundry Systems LLC)

Backup Servicer. ~~If a Servicer Default shall occur, then~~ (a) From and after the ~~Controlling Holders may, by notice to~~ Effective Date hereof until the ~~Servicer~~Servicing Transfer Date, 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~~ shall act as back-up servicer with respect to the ~~Pledged Assets or otherwise~~Mortgage Loans, and shall ~~pass~~ perform such functions, duties, obligations, undertakings and responsibilities as set forth in SECTION 9.03(B) below. Prior to ~~and be vested in~~ the ~~Backup Servicer or any other successor Servicer appointed by the Controlling Holders pursuant to and under this Section, and, without limitation~~Servicing Transfer Date, the Backup Servicer shall have only those duties and obligations imposed by it described in SECTION 9.03(B) below, 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. In its capacity as Backup Servicer, it shall in no event be liable for any obligations of the Borrowers or the Servicer to any party, whether hereunder or under any other ~~successor Servicer appointed hereunder is hereby authorized and empowered~~ agreement, which are not related 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. The Servicer agrees to cooperate with the Lenders and the Backup Servicer or other successor Servicer in effecting the termination of the Servicer’s responsibilities and rights hereunderservicing functions, including, without limitation, ~~providing notification~~ any repurchase obligations. (b) No later than the fifth (5th) Business Day of each calendar month, the Servicer shall deliver to ~~the Obligors of the assignment of the servicing function, providing~~ the Backup Servicer ~~or such other successor Servicer, at the Servicer’s expense, with all records,~~ a complete set of servicing records in ~~electronic or other form, reasonably requested by the Backup Servicer or such other successor Servicer, in such~~ computer-readable 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 such Person to assume the servicing functions hereunder and the transfer to 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~~payment, collection and other servicing activity of the ~~Servicer agrees~~ Mortgage Loans during the preceding calendar month, which records shall contain sufficient data to ~~cooperate in providing, at the Servicer’s expense,~~ permit the Backup Servicer ~~or any other successor Servicer as successor Servicer, with reasonable access (including at~~ to assume the ~~premises~~ duties of the ~~Servicer) to Servicer’s employees and any~~ Servicer hereunder without delay on account of the absence of relevant servicing information. The information described in the foregoing sentence and all ~~books, records or~~ other information ~~reasonably requested~~ provided by it the Servicer to ~~enable~~ the Backup Servicer ~~or such other successor Servicer, as successor Servicer,~~ pursuant to ~~assume~~ the ~~servicing functions hereunder. Neither any Lender nor the Backup Servicer or any other successor Servicer~~ Agreement shall be ~~deemed to have breached any obligation hereunder as a result of a failure to make or delay~~ in ~~making any distribution as~~ form 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(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(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 substance satisfactory to the Backup Servicer~~) pursuant to this Section 6.13~~. On at least a monthly basis, the Backup Servicer shall be convert and "map" the data contained in such servicing records to its own servicing system, and shall provide the Agent not later than the fifteenth (~~and~~ 15th) day of each month commencing March 15, 2005, with a certification by an appropriate officer of the Backup Servicer ~~hereby agrees~~ to bethe effect that it has received from the Servicer each monthly submission of servicing data, has completed such conversion and mapping of the data delivered with respect to the immediately preceding month, and is capable of assuming the duties of the Servicer if required to do so hereunder upon at least twenty (20) days' prior to written notice from the Agent. (c) The Backup Servicer, prior to assuming any of the Servicer's duties hereunder may not resign hereunder unless it arranges for a successor Backup Servicer reasonably acceptable to the Administrative Borrower and the Agent with not less than ninety (90) days' notice delivered to the Administrative Borrower, the Agent and the Servicer. (d) From and after the Servicing Transfer Date, the Backup Servicer shall perform all of the functions, duties, obligations, undertakings and responsibilities of the Servicer hereunder and shall be the successor ~~in all respects~~ to the Servicer hereunder, but only in its capacity as Servicer under this ~~Agreement and~~ Agreement. In 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 event 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 Servicer, it shall not be liable for any acts or omissions of the Servicer under this Agreement or any other agreement or for any act or omission of the Servicer or ~~any claim of a third party based on any alleged action or inaction of the terminated Servicer~~its affiliated companies, (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~~ servicer or any other ~~successor~~ third party, which occurred in connection with the origination, receiving, processing, funding or servicing of a mortgage loan at any time prior to the Servicing Transfer Date or for the collection of any debt, costs, expenses or fees incurred or assessed by Servicer, ~~upon becoming~~ or its affiliated companies or any third party in connection with the origination or servicing of 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 any liability relating mortgage loan prior to the Servicing Transfer Date, and it shall not be deemed to have made any representations and warranties of the Servicer ~~contained~~ or any predecessor Servicer under this Agreement or any other agreement. In the event the Backup Servicer becomes the successor Servicer, it shall be not deemed to be in ~~Article IV. Notwithstanding~~ default thereunder by reason of any failure to make, or any delay in making, any distribution hereunder or any portion thereof caused by (a) the ~~above~~failure of the Servicer or any predecessor Servicer to (i) deliver, ~~Xxxxxx Xxxxxxx~~ or any delay in delivering, cash, documents or records to it, (orii) cooperate as required by this Agreement, ~~following~~ or (iii) deliver the ~~Collateral Split Effective~~ Mortgage Loans to the Custodian as required by this Agreement, or (b) restrictions imposed by any regulatory authority having jurisdiction over the Servicer. (e) Upon the transfer of the servicing of the Mortgage Loans, prior to the first Payment Date after the Servicing Transfer Date, the ~~Primary Lender under~~ Agent shall cause the ~~related Loan Agreement~~Custodian to provide the Backup Servicer with an officer's certificate that contains (i) ~~may~~a complete description of all material breaches by the Servicer which have not been fully cured and (ii) a confirmation that all reports required to be filed by the Custodian have been timely filed. (f) The Backup Servicer agrees to indemnify the Borrowers, the Servicer and the Agent, and any of their respective directors, officers, employees or agents from, and hold them harmless against, any and all costs, expenses (including reasonable attorney fees and disbursements), losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage or liability arose out of, or ~~shall~~was imposed upon the Borrowers, the Servicer or the Agent and their respective directors, officers, employees and agents through the Backup Servicer's intentional misconduct or gross negligence, except to the extent such indemnified party's own bad faith, willful misconduct or gross negligence contributes to the costs, loss, claim, damage or liability. Each of the Borrowers, the Servicer and the Agent agrees, severally and not jointly, to indemnify the Backup Servicer, and any of its respective directors, officers, employees or agents from, and hold them harmless against, any and all costs, expenses (including reasonable attorney fees and disbursements), losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage or liability arose out of, or was imposed upon the Backup Servicer and its respective directors, officers, employees and agents through the intentional misconduct or gross negligence of the Borrowers, the Servicer or the Agent, except to the extent such indemnified party's own bad faith, willful misconduct or gross negligence contributes to the costs, loss, claim, damage or liability (for the avoidance of doubt, in no event shall Borrowers or Agent indemnify the Backup Servicer for the intentional misconduct or gross negligence of either (x) the other or (y) the Servicer). The Servicer and each of its affiliates agrees to indemnify the Backup Servicer, and any of its respective directors, officers, employees or agents from, and hold them harmless against, any and all costs, expenses (including reasonable attorney fees and disbursements), losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage or liability arose out of, or was imposed upon the Backup Servicer and its respective directors, officers, employees and agents through or for any act or omission of the Servicer or its affiliated companies, any prior servicer or any other third party, which occurred in connection with the origination, receiving, processing, funding or servicing of a mortgage loan at any time prior to the Servicing Transfer Date or for the collection of any debt, costs, expenses or fees incurred or assessed by Servicer, or its affiliated companies or any third party in connection with the origination or servicing of a mortgage loan prior to the Servicing Transfer Date. (g) The Backup Servicer will not be obligated to incur any expenses or costs (including, without limitation, legal fees and the preparation and recording of all intervening assignments of mortgage) in connection with the transfer of servicing of the Mortgage Loans to the Backup Servicer, or to compel the performance of any obligations by any party to the Agreement. Without limiting any obligations of a terminated Servicer as provided above, if the Servicer is no longer the Servicer hereunder for any reason, such predecessor Servicer shall be responsible for paying any Servicing Transfer Costs incurred by the Backup Servicer in connection with the transfer of servicing from the predecessor Servicer; provided, that if the predecessor Servicer fails to pay any such Servicing Transfer Costs, the Agent shall cause such Servicing Transfer Costs to be paid out of the Mortgage Collection Account. In addition, 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 Lenders in their sole discretion, as~~ the successor to the Servicer, and if the predecessor Servicer ~~hereunder~~ fails to pay any Servicing Transfer Costs incurred by the Backup Servicer, then the Backup Servicer may offset any such Servicing Transfer Costs against amounts that are payable or reimbursable to the predecessor Servicer with respect to unpaid Servicing Fees and unreimbursed Servicing Advances as set forth below in the ~~assumption of all~~ following paragraph below (and the Backup Servicer shall only be paid such Servicing Transfer Costs from the Mortgage Collection Account to the extent it reasonably determines that such Servicing Transfer Costs will not be recoverable pursuant to such offsets). To the extent such Servicing Transfer Costs remain unpaid by the predecessor Servicer, from the Mortgage Collection Account, or ~~any part~~ from offset against amounts that are payable or reimbursable to the predecessor Servicer with respect to unpaid Servicing Fees and unreimbursed Servicing Advances, such unpaid Servicing Transfer Costs shall be paid by the Borrowers and the predecessor Servicer, jointly and severally. The foregoing obligation of the ~~responsibilities,~~ predecessor Servicer with respect to Servicing Transfer Costs shall not be deemed to limit any other liability the predecessor Servicer may have to the other parties hereto in respect of any breach of its obligations or duties ~~or liabilities of~~ hereunder. (h) If the Backup Servicer ~~hereunder. Pending appointment of a~~ is the successor to the ~~Servicer hereunder, and after the Lenders notify the Servicer to discontinue performing servicing functions under this Agreement~~Servicer, the Backup Servicer or any other successor Servicer (or Xxxxxx Xxxxxxx (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 shall remit all unpaid Servicing Fees accrued during the period prior to the Servicing Transfer and unreimbursed Servicing Advances outstanding on the Servicing Transfer Date to the predecessor Servicer; PROVIDED, HOWEVER, there shall be no duty to so remit if the Servicing Transfer is the result of an Event of Default under this Agreement with respect to the predecessor Servicer; and PROVIDED FURTHER, that such duty to reimburse relates only to all such unpaid Servicing Fees accrued during the period prior to the Servicing Transfer and unreimbursed Servicing Advances made by the predecessor Servicer prior to Servicing Transfer Date; and, FURTHER, PROVIDED, that the Backup Servicer in its capacity as ~~hereinabove provided. In connection with such appointment and assumption, the Lenders may~~ successor Servicer shall be obliged to make such ~~arrangements for the compensation of such successor~~ reimbursement only out of ~~payments~~ collections on ~~Pledged Receivables as it~~ the related Mortgage Loan, (including monthly collections, Liquidation Proceeds, Insurance Proceeds, or their equivalent) and such other amounts that the Servicer is permitted to collect from the related Mortgagor or otherwise relating to the related Mortgage Loan before the Backup Servicer in its capacity as successor Servicer reimburses itself for any unreimbursed Servicing Advances which it makes with respect to such Mortgage Loan. The Backup Servicer in its capacity as successor Servicer shall ~~agree; provided~~remit any funds due to the predecessor Servicer under this paragraph on the Payment Date. (i) The Backup Servicer, ~~however, that, except~~ as ~~provided herein, no such~~ compensation ~~shall be in excess of that permitted the~~ for its obligations and duties as Backup Servicer hereunder, ~~unless (i) agreed to by the Lenders and (ii) such compensation~~ shall be paid the Backup Servicing Fee on ~~commercially competitive terms and rates~~each Payment Date pursuant to SECTION 5. 01. The Borrower, the 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 If the Backup Servicer ~~or any other successor~~ shall succeed as Servicer ~~be liable for any special~~hereunder, ~~indirect or consequential damages. Each of~~ the Backup Servicer ~~and~~ shall no longer be entitled to be paid the Backup Servicing Fee with respect to 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~~ period after the ~~rights and powers and all~~ Servicing Transfer Date. (j) If any of the ~~responsibilities~~Mortgage Loans are MERS Designated Mortgage Loans, ~~obligations and duties~~ in connection with the termination or resignation of the Servicer hereunder, within ten (10) Business Days of receiving from 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 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(a) hereof. Within four (4) Business Days after each Remittance Date, provided that the Backup Servicer shall ~~have received the information specified~~ maintain itself as a member of MERS 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) good standing 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(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 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 comply in such Monthly Remittance Report; and (d) confirm such other information as the Backup Servicer and the 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 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 all material respects with the ~~information calculated by~~ MERS Procedures Manual in connection with the ~~Servicer,~~ servicing of the ~~Servicer and the Backup Servicer shall attempt to reconcile such discrepancy prior to the next Remittance Date~~Mortgage Loans that are registered with MERS, and the Servicer and Backup Servicer shall ~~promptly report~~ cause MERS to designate on the ~~Lenders regarding the progress, if any, which shall have been made in reconciling such discrepancy. If~~ MERS System the Backup Servicer ~~and~~ as 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 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 Lenders with a report regarding such event). The effect, if any, current servicer 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 GodMortgage Loan.

Appears in 1 contract

Samples: Servicing Agreement (American Business Financial Services Inc /De/)

Backup Servicer. If a Servicer Default shall occur, then the 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, 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. The Servicer agrees to cooperate with the 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 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 such Person to assume the servicing functions hereunder and the transfer to 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 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(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(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 any liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, Xxxxxx Xxxxxxx 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 Lenders in 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 Lenders notify the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer or any other successor Servicer (or Xxxxxx Xxxxxxx (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 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 Lenders and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the 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. 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 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 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(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(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 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 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 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 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 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 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.the

Appears in 1 contract

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

Backup Servicer. If a Servicer Default shall occur, then the ~~Controlling Holders~~ 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 ~~or any other successor Servicer appointed by the Controlling Holders~~ pursuant to and under this ~~Section~~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 ~~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~~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 ~~Lenders~~ Lender 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 or such other successor~~ 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 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 ~~such Person~~ the Backup Servicer to assume the servicing functions hereunder and the transfer to ~~such Person~~ 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 ~~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 ~~any~~ the 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(a~~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(a~~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 ~~(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 ~~any~~ no liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, ~~Xxxxxx Xxxxxxx (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 ~~Lenders~~ Lender in ~~their~~ 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 ~~Lenders notify~~ Lender notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer ~~or any other successor Servicer~~ (or ~~Xxxxxx Xxxxxxx (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 ~~Lenders~~ 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 ~~Lenders~~ Lender and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the ~~Lenders~~ 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 ~~or any other successor Servicer~~ be liable for any special, indirect or consequential damages. ~~Each of the~~ 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 a the 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 ~~Lenders~~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(a~~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(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 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 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 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 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 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 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 1 contract

Samples: Receivables Loan and Security Agreement (Resource America 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 ~~Controlling Holders 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 or any other successor Servicer appointed by the Controlling Holders pursuant to and under this Section, and, without limitation~~Servicer'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 ~~other successor Servicer appointed hereunder~~ 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. . (e) The Servicer ~~agrees~~ shall provide monthly, or as otherwise requested, to ~~cooperate with the 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 the Backup Servicer or such other successor 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 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 such Person to assume the servicing functions hereunder and the transfer to 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 Receivables sufficient to enable the Backup Servicer ~~or such other successor Servicer, as successor Servicer,~~ to assume the servicing functions hereunder. Neither 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 responsibilities as successor ~~Servicer) or any other successor Servicer undertakes to perform only such duties~~ servicer 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(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(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 collect 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, Receivables. (f) Except 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 any liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, Xxxxxx Xxxxxxx (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 Lenders in 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 Lenders notify the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer ~~or any other successor Servicer (or Xxxxxx Xxxxxxx (or~~may accept and reasonably rely on all accounting, 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 records and ~~assumption, the Lenders may make such arrangements for the compensation~~ work 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~~without audit, ~~unless (i) agreed to by the Lenders~~ and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the 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. 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 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~~ 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 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. this provision shall ~~be entitled to recover its costs thereby expended as Servicer Advances in accordance with Section 2.04(a) 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(a) 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 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 Lenders 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 ~~Lenders~~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 Lenders 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 ~~Lenders~~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 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~~ 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 ~~successor Servicer~~ 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 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~~ 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

Samples: Sale and Servicing Agreement (Oakwood Homes Corp)

Backup Servicer. ~~If a~~ (a) Within forty-five (45) days of the Closing Date, the Initial Servicer ~~Default~~ shall ~~occur, then the Controlling Holders 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 or any other successor Servicer appointed by the Controlling Holders pursuant to and under this 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,~~ deliver any and all additional papers, documents and other ~~instruments~~assurances, and to shall 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. The Servicer agrees to cooperate with the 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 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 such Person to assume the servicing functions hereunder and the transfer to 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~~ acts and things reasonably ~~requested by it~~ necessary in connection with the appointment of a Backup Servicer and to enable the Backup Servicer or such other successor Servicer, as successor Servicer, to assume the servicing functions hereunder. Neither 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(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(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 any liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, Xxxxxx Xxxxxxx (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 Lenders in 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 Lenders notify the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer or any other successor Servicer (or Xxxxxx Xxxxxxx (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 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 Lenders and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the 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. 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 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 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(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(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 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 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 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 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 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 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~~ under the Backup ~~Servicer or any other successor 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

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

Backup Servicer. If a Servicer Default shall ~~occur~~occur and is continuing, then the ~~Controlling Holders~~ 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 ~~or any other successor Servicer appointed by the Controlling Holders~~ pursuant to and under this 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 124 of termination or to perform the duties of the Servicer under this Agreement. The Servicer agrees to cooperate with the ~~Lenders~~ Agent and the Backup ~~Servicer or other successor~~ 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 the Backup Servicer ~~or such other successor Servicer, at the Servicer’s expense,~~ with all records, in electronic or other form, reasonably requested by it to enable 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 such Person to assume the servicing functions hereunder and the transfer to ~~such Person~~ 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,~~ Neither 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 any Lender Agent 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 's Fees ~~and Transition Costs~~ shall be paid out of Collections ~~with respect to any Pledged Receivable~~ as set forth in Section ~~2.04(a~~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(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~~ 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 ~~(with a copy delivered to the Backup Servicer)~~ 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 ~~or any other successor Servicer~~ hereunder~~; provided, further, however, that the~~ . 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 ~~any~~ no liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, ~~Xxxxxx Xxxxxxx (or~~the Agent may, ~~following~~ if the ~~Collateral Split Effective Date, the Primary Lender under the related Loan Agreement) may~~Backup Servicer shall be unwilling to so act, or shall, if the Backup Servicer ~~or any other successor 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 ~~Lenders in their 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 ~~Lenders notify~~ Agent notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer ~~or any other successor Servicer~~ (or ~~Xxxxxx Xxxxxxx (or, following~~ the ~~Collateral Split Effective Date, the Primary Lender under the related Loan Agreement)~~ Agent 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 ~~Lenders~~ 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 ~~Lenders and (ii) such compensation shall be on commercially competitive terms and rates~~Lender. The Borrower, the ~~Lenders~~ 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 or any other successor Servicer be liable for any special, indirect or consequential damages. 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 a Lender a notice requesting the Backup Servicer or such other successor 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 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(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~~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(a~~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 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);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 Lenders 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 ~~Lenders~~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 ~~Lenders~~ 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 ~~Lenders~~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 ~~Lenders~~ 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 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~~removal, ~~including but not limited to its duties as successor Servicer hereunder, should~~ the Backup Servicer ~~or such other successor~~ may be replaced by a 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 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 GodBorrower.

Appears in 1 contract

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

Backup Servicer. ~~If a~~ (a) Within forty-five (45) days of the Funding Date, the Initial Servicer ~~Default~~ shall ~~occur, then the Controlling Holders 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 or any other successor Servicer appointed by the Controlling Holders pursuant to and under this 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,~~ deliver any and all additional papers, documents and other ~~instruments~~assurances, and to shall 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. The Servicer agrees to cooperate with the 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 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 such Person to assume the servicing functions hereunder and the transfer to 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~~ acts and things reasonably ~~requested by it~~ necessary in connection with the appointment of a Backup Servicer and to enable the Backup Servicer or such other successor Servicer, as successor Servicer, to assume the servicing functions hereunder. Neither 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(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(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 any liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, Xxxxxx Xxxxxxx (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 Lenders in 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 Lenders notify the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer or any other successor Servicer (or Xxxxxx Xxxxxxx (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 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 Lenders and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the 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. 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 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 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(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(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 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 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 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 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 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 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~~ under the Backup ~~Servicer or any other successor 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

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

Backup Servicer. If a Servicer Default shall occur, then the ~~Controlling Holders~~ 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 ~~or any other successor Servicer appointed by the Controlling Holders~~ pursuant to and under this ~~Section~~Section (unless the 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 6.15), 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~~Agreement including, without limitation, to make withdrawals from the Security Deposit Account pursuant to Section 2.06 and any Cash Reserve Account pursuant to Section 2.07. The Servicer agrees to cooperate with the ~~Lenders~~ Agent 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 Agent’s Bank of the Backup ~~Servicer or such other successor~~ Servicer’s right to make withdrawals from the Security Deposit Account pursuant to Section 2.06 and any Cash Reserve Account pursuant to Section 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 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 ~~such Person~~ the Backup Servicer to assume the servicing functions hereunder and the transfer to ~~such Person~~ 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,~~ .” Neither 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 any Lender Agent 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(a~~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(a~~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 ~~(with a copy delivered to the Backup Servicer)~~ 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 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 ~~any~~ no liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, ~~Xxxxxx Xxxxxxx (or~~the Agent may, ~~following~~ if the ~~Collateral Split Effective Date, the Primary Lender under the related Loan Agreement) may~~Backup Servicer shall be unwilling to so act, or shall, if the Backup Servicer ~~or any other successor 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 ~~Lenders~~ Agent in ~~their~~ 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 ~~Lenders notify~~ Agent notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer ~~or any other successor Servicer~~ (or ~~Xxxxxx Xxxxxxx (or, following~~ the ~~Collateral Split Effective Date, the Primary Lender under the related Loan Agreement)~~ Agent 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 ~~Lenders~~ 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 ~~Lenders~~ Lender and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the ~~Lenders~~ 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 or any other successor Servicer be liable for any special, indirect or consequential damages. 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~~ five (105) Business Days of receiving from ~~a Lender~~ the Agent 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 ~~Lenders~~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(a~~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(a~~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 ~~Lenders~~ 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 ~~Lenders~~ 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 ~~Lenders~~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 ~~Lenders~~ 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 ~~Lenders~~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 ~~Lenders~~ 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 ~~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 1 contract

Samples: Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, 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 Controlling Holders 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 ~~Servicer of such notice~~contrary herein, ~~all authority and power of~~ the ~~Servicer under this Agreement, whether with respect~~ Agent shall have the right to ~~the Pledged Assets or otherwise, shall pass to and be vested in~~ remove the Backup Servicer with or without cause at any ~~other successor Servicer appointed by the Controlling Holders pursuant to~~ time and ~~under this Section, and, without limitation,~~ replace the Backup Servicer ~~or any other successor Servicer appointed hereunder is hereby authorized and empowered~~ pursuant to ~~execute and deliver, on behalf~~ the provisions of the Backup Servicing Agreement. In the event that the Agent exercises its right to remove and replace Concord Servicing Corporation as Backup 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 Concord Servicing Corporation shall have no further obligation to perform the duties of the Backup Servicer under this Agreement. . (d) The Servicer ~~agrees~~ shall provide monthly, or as otherwise requested, to ~~cooperate with the 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 the Backup Servicer or such other successor 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 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 such Person to assume the servicing functions hereunder and the transfer to 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 Receivables sufficient to enable the Backup Servicer ~~or such other successor Servicer, as successor Servicer,~~ to assume the servicing functions hereunder. Neither 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 responsibilities as successor ~~Servicer) or any other successor Servicer undertakes to perform only such duties~~ servicer 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(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(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 collect 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, Receivables. (e) Except 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 any liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, Xxxxxx Xxxxxxx (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 Lenders in 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 Lenders notify the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer ~~or any other successor Servicer (or Xxxxxx Xxxxxxx (or~~may accept and reasonably rely on all accounting, 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 records and ~~assumption, the Lenders may make such arrangements for the compensation~~ work 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~~without audit, ~~unless (i) agreed to by the Lenders~~ and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the 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. 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 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~~ 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 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. this provision shall ~~be entitled to recover its costs thereby expended as Servicer Advances in accordance with Section 2.04(a) 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(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 persons or property, and ~~the Lenders 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 Lenders 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 ~~Lenders~~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 Lenders 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 ~~Lenders~~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 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~~ 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 ~~successor Servicer~~ 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 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~~ 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

Samples: Sale and Servicing Agreement (Bluegreen Corp)

Backup Servicer. If (a) The Facility Insurer may at any time after a Servicer ~~Default shall occur, then the Controlling Holders 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 and the Insurance Agreement. Upon the delivery to the Servicer of such notice, all obligations, authority and power of the Servicer under this Agreement and the Insurance 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, 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~~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. The Servicer agrees to cooperate with the ~~Lenders~~ Collateral Agent and the Backup ~~Servicer or other successor~~ 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~~function and instructions to abide by payment directions delivered by the Collateral Agent or the Backup Servicer, 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 it to enable 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 such Person to assume the servicing functions hereunder and the transfer to ~~such Person~~ 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~~Neither the Agent, 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 any Lender Collateral Agent 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. . (b) 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~~ Fee shall be paid out of Collections ~~with respect to any Pledged Receivable~~ as set forth in Section ~~2.04(a~~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(a~~. (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 ~~(with a copy delivered to the Backup Servicer)~~ 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 Insurance 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 ~~or any other successor Servicer~~ hereunder~~; provided, further, however, that the~~ . 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 liability and 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~~negligence or willful misconduct. In addition, ~~neither~~ the Backup Servicer ~~nor any other successor Servicer~~ shall have ~~any~~ no liability relating to the representations and warranties of the Servicer contained in ~~Article IV~~Section 4.02 hereof. Notwithstanding the above, ~~Xxxxxx Xxxxxxx (or~~the Facility Insurer may, ~~following~~ if the ~~Collateral Split Effective Date, the Primary Lender under the related Loan Agreement) may~~Backup Servicer shall be unwilling to so act, 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 ~~Lenders in their sole discretion~~Facility Insurer, 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 ~~Lenders notify~~ Facility Insurer notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer ~~or any other successor Servicer~~ (or ~~Xxxxxx Xxxxxxx (or, following~~ the ~~Collateral Split Effective Date, the Primary Lender under the related Loan Agreement)~~ Agent 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 ~~Lenders~~ Facility Insurer 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 Lenders and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the ~~Lenders~~ Collateral 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~~ . (e) Not later than the Backup Servicer or any other successor Servicer be liable for any special, indirect or consequential damages. 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 a Lender a notice requesting the Backup Servicer or such other successor 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 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(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~~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(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 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~~ , 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 or the Facility Insurer, in each case, in a manner satisfactory to the Agent and the Facility Insurer; and (diii) ~~confirm such other information as~~ deliver to the ~~Backup Servicer~~ Agent and the ~~Lenders may agree.~~ Facility Insurer a certification letter with respect to the above substantially in the form of Exhibit F-1 hereto on or before such 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~~ Servicer, the Agent and the ~~Lenders~~Facility Insurer. 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 ~~Lenders~~ Agent and the Facility Insurer 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 ~~Lenders~~Agent and the Facility Insurer, 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 ~~Lenders~~ Agent and the Facility Insurer 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, verify, monitor or administer~~ the ~~performance of the Servicer and shall have no liability for any action taken or omitted by the~~ Backup Servicer~~. The Backup Servicer or any other successor Servicer may allow a subservicer~~ ) most recently delivered 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~~ by the ~~successor~~ Servicer pursuant to Section 6.11(h) to the ~~terms of this Agreement; provided, however, that~~ related Borrowing Report delivered to the Backup Servicer by the Servicer pursuant to Section 6.11(h) and shall: (1) (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 ~~such~~ diskette (or other ~~successor Servicer, as applicable, shall remain liable for the performance~~ means of ~~all of its duties and obligations hereunder~~ electronic transmission acceptable to the ~~same extent as if no~~ Backup Servicer), and verify the accuracy of, items 1 through 9 on such ~~subservicing had occurred. In no event shall~~ Borrowing Report in a manner satisfactory to the ~~Backup Servicer or any other successor Servicer~~ Agent and the Facility Insurer; and (~~either prior~~ iii) deliver to ~~or after its appointment hereunder as Servicer) be responsible or liable for any failure or delay~~ the Agent and the Facility Insurer a certification letter with respect to the above substantially in the ~~performance~~ form of ~~its obligations hereunder arising out~~ 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 ~~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.~~calculated by the

Appears in 1 contract

Samples: Receivables Loan and Security Agreement (Maxtor Corp)

Backup Servicer. ~~If a Servicer Default shall occur, then~~ (a) From and after the ~~Controlling Holders may, by notice to~~ Effective Date hereof until the ~~Servicer~~Servicing Transfer Date, 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~~ shall act as back-up servicer with respect to the ~~Pledged Assets or otherwise~~Mortgage Loans, and shall ~~pass~~ perform such functions, duties, obligations, undertakings and responsibilities as set forth in Section 9.03(b) below subject to ~~and be vested in~~ this Section 9.03(a). Prior to the ~~Backup Servicer or any other successor Servicer appointed by the Controlling Holders pursuant to and under this Section, and, without limitation~~Servicing Transfer Date, the Backup Servicer ~~or any other successor Servicer appointed hereunder is hereby authorized~~ shall have only those duties and ~~empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments~~obligations imposed by it described in Section 9.03(b) below, and shall have no obligations or duties under any agreement to ~~do or accomplish all other acts or things necessary or appropriate~~ which it is not a party, including but not limited to ~~effect~~ the ~~purposes of such notice of termination or~~ various agreements named herein; provided, that prior to ~~perform~~ the ~~duties of~~ Servicing Transfer Date, with respect to any Mortgage Loans which are pledged to the ~~Servicer under this Agreement. The Servicer agrees to cooperate with the Lenders and~~ Lender for at least 150 days, the Backup Servicer ~~or other successor~~ shall service all such Mortgage Loans as if it were the Servicer and shall be compensated a fee of $20 per month per Mortgage Loan with respect to each such Mortgage Loan in ~~effecting the termination~~ excess of the 50th Mortgage Loan transferred to the Backup Servicer (it being understood that this fee of $20 per month per Mortgage Loan is only applicable during the period before the Servicing Transfer Date). In its capacity as Backup Servicer~~’s responsibilities and rights hereunder~~, it shall in no event be liable for any obligations of the Owner or the Servicer to any party, whether hereunder or under any other agreement, which are not related to servicing functions, including, without limitation, ~~providing notification to the Obligors of the assignment of the servicing function~~any repurchase obligations; provided, ~~providing~~ that the Backup Servicer ~~or such other successor Servicer~~shall have all of the rights, 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 duties and at such times as the Backup Servicer or such other successor Servicer may reasonably request, to enable such Person to assume the servicing functions hereunder and the transfer to such Person for administration by it obligations 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 each Mortgage Loans transferred to it for servicing before the ~~Pledged Receivables. Additionally~~Servicing Transfer Date. (b) No later than the fifth (5th) Business Day of each calendar month, the Servicer ~~agrees~~ shall deliver 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~~ a complete set of ~~the Servicer) to Servicer’s employees and any and all books,~~ servicing 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 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~~ computer-readable form with respect to the ~~Pledged Assets. The Backup Servicer (including as successor Servicer) or any~~ payment, collection and other ~~successor Servicer undertakes~~ servicing activity of the Mortgage Loans during the preceding calendar month, which records shall contain sufficient data 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~~ permit the Backup Servicer ~~or such other successor~~ to assume the duties of the Servicer ~~hereunder~~hereunder without delay on account of the absence of relevant servicing information. The ~~Active Backup Servicer’s Fees~~ information described in the foregoing sentence and ~~Transition Costs shall be paid out of Collections with respect~~ all other information provided by the Servicer to ~~any Pledged Receivable as set forth in Section 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~~ the Agreement shall be ~~paid out of Collections with respect to any Pledged Receivable as set forth~~ in Section 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 form and ~~after the time the Servicer receives a notice of termination (with a copy delivered~~ substance satisfactory to the Backup Servicer~~) pursuant to this Section 6.13~~. On at least a monthly basis, the Backup Servicer shall ~~be (~~convert and "map" the data contained in such servicing records to its own servicing system, and shall provide the Lender not later than the 15th day of each month commencing November 15, 2004, with a certification by an appropriate officer of the Backup Servicer ~~hereby agrees~~ to bethe effect that it has received from the Servicer each monthly submission of servicing data, has completed such conversion and mapping of the data delivered with respect to the immediately preceding month, and is capable of assuming the duties of the Servicer if required to do so hereunder upon at least 15 days' prior to written notice from the Lender. (c) The Backup Servicer, prior to assuming any of the Servicer's duties hereunder may not resign hereunder unless it arranges for a successor Backup Servicer reasonably acceptable to the Owner and the Lender with not less than 90 days' notice delivered to the Owner, the Lender and the Servicer. (d) From and after the Servicing Transfer Date, the Backup Servicer shall perform all of the functions, duties, obligations, undertakings and responsibilities of the Servicer hereunder and shall be the successor ~~in all respects~~ to the Servicer hereunder, but only in its capacity as Servicer under this ~~Agreement and~~ Agreement. In 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 event 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 Servicer, it shall not be liable for any acts or omissions of 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 under this Agreement or any other ~~successor Servicer, upon becoming a successor Servicer, are expressly limited~~ agreement and shall not be deemed 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~~ have made any ~~other successor Servicer shall have any liability relating to the~~ representations and warranties of the Servicer ~~contained~~ or any predecessor Servicer under this Agreement or any other agreement. In the event the Backup Servicer becomes the successor Servicer, it shall be not deemed to be in ~~Article IV. Notwithstanding~~ default thereunder by reason of any failure to make, or any delay in making, any distribution hereunder or any portion thereof caused by (a) the ~~above~~failure of the Servicer or any predecessor Servicer to (i) deliver, ~~Xxxxxx Xxxxxxx~~ or any delay in delivering, cash, documents or records to it, (orii) cooperate as required by this Agreement, ~~following~~ or (iii) deliver the ~~Collateral Split Effective~~ Mortgage Loans to the Custodian as required by this Agreement, or (b) restrictions imposed by any regulatory authority having jurisdiction over the Servicer. (e) Upon the transfer of the servicing of the Mortgage Loans, prior to the first Payment Date after the Servicing Transfer Date, the ~~Primary~~ Lender ~~under~~ shall cause the ~~related Loan Agreement~~Custodian to provide the Backup Servicer with an officer's certificate that contains (i) ~~may~~a complete description of all material breaches by the Servicer which have not been fully cured and (ii) a confirmation that all reports required to be filed by the Custodian have been timely filed. (f) The Backup Servicer agrees to indemnify the Owner, the Servicer and the Lender, and any of their respective directors, officers, employees or agents from, and hold them harmless against, any and all costs, expenses (including reasonable attorney fees and disbursements), losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage or liability arose out of, or ~~shall~~was imposed upon the Owner, the Servicer or the Lender and their respective directors, officers, employees and agents through the Backup Servicer's intentional misconduct or gross negligence, except to the extent such indemnified party's own bad faith, willful misconduct or gross negligence contributes to the costs, loss, claim, damage or liability. Each of the Owner, the Servicer and the Lender agrees, severally and not jointly, to indemnify the Backup Servicer, and any of its respective directors, officers, employees or agents from, and hold them harmless against, any and all costs, expenses (including reasonable attorney fees and disbursements), losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage or liability arose out of, or was imposed upon the Backup Servicer and its respective directors, officers, employees and agents through the intentional misconduct or gross negligence of the Owner, the Servicer or the Lender, except to the extent such indemnified party's own bad faith, willful misconduct or gross negligence contributes to the costs, loss, claim, damage or liability (for the avoidance of doubt, in no event shall Owner or Lender indemnify the Backup Servicer for the intentional misconduct or gross negligence of either (x) the other or (y) the Servicer). (g) The Backup Servicer will not be obligated to incur any expenses or costs (including, without limitation, legal fees and the preparation and recording of all intervening assignments of mortgage) in connection with the transfer of servicing of the Mortgage Loans to the Backup Servicer, or to compel the performance of any obligations by any party to the Agreement. Without limiting any obligations of a terminated Servicer as provided above, if the Servicer is no longer the Servicer hereunder for any reason, such predecessor Servicer shall be responsible for paying any Servicing Transfer Costs incurred by the Backup Servicer in connection with the transfer of servicing from the predecessor Servicer; provided, that if the predecessor Servicer fails to pay any such Servicing Transfer Costs, the Lender shall cause such Servicing Transfer Costs to be paid out of the Collection Account. In addition, 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 Lenders in their sole discretion, as~~ the successor to the Servicer, and if the predecessor Servicer ~~hereunder~~ fails to pay any Servicing Transfer Costs incurred by the Backup Servicer, then the Backup Servicer may offset any such Servicing Transfer Costs against amounts that are payable or reimbursable to the predecessor Servicer with respect to unpaid Servicing Fees and unreimbursed Servicing Advances as set forth below in the following paragraph below (and the Backup Servicer shall only be paid such Servicing Transfer Costs from the Collection Account to the extent it reasonably determines that such Servicing Transfer Costs will not be recoverable pursuant to such offsets). To the extent such Servicing Transfer Costs remain unpaid by the predecessor Servicer, from the Collection Account, or from offset against amounts that are payable or reimbursable to the predecessor Servicer with respect to unpaid Servicing Fees and unreimbursed Servicing Advances, such unpaid Servicing Transfer Costs shall be paid by the Owner and the predecessor Servicer, jointly and severally. The foregoing obligation of the predecessor Servicer with respect to Servicing Transfer Costs shall not be deemed to limit any other liability the predecessor Servicer may have to the other parties hereto in respect of any breach of its obligations or duties hereunder. (h) If the Backup Servicer is the successor to the Servicer, the Backup Servicer in such capacity shall remit all unpaid Servicing Fees accrued during the period prior to the Servicing Transfer and unreimbursed Servicing Advances outstanding on the Servicing Transfer Date to the predecessor Servicer; provided, however, there shall be no duty to so remit if the Servicing Transfer is the result of an Event of Default under this Agreement with respect to the predecessor Servicer; and provided further, that such duty to reimburse relates only to all such unpaid Servicing Fees accrued during the period prior to the Servicing Transfer and unreimbursed Servicing Advances made by the predecessor Servicer prior to Servicing Transfer Date; and, further, provided, that the Backup Servicer in its capacity as successor Servicer shall be obliged to make such reimbursement only out of collections on the related Mortgage Loan, (including monthly collections, Liquidation Proceeds, Released Mortgaged Property Proceeds, Insurance Proceeds, or their equivalent under the Basic Document) and such other amounts that the Servicer is permitted to collect from the related Mortgagor or otherwise relating to the related Mortgage Loan before the Backup Servicer in its capacity as successor Servicer reimburses itself for any unreimbursed Servicing Advances which it makes with respect to such Mortgage Loan. The Backup Servicer in its capacity as successor Servicer shall remit any funds due to the predecessor Servicer under this paragraph on the Payment Date. (i) The Backup Servicer, as compensation for its obligations and duties as Backup Servicer hereunder, shall be paid the Backup Servicing Fee on each Payment Date pursuant to Section 5.01. If the Backup Servicer shall succeed as Servicer hereunder, the Backup Servicer shall no longer be entitled to be paid the Backup Servicing Fee with respect to any period after the Servicing Transfer Date. (j) In addition, as compensation for its assumption of ~~all or any part of the responsibilities,~~ its duties ~~or liabilities of the~~ as Backup Servicer hereunder~~. Pending appointment~~ , the Lender shall deliver to the Backup Servicer on the Effective Date hereof, from the Lender's own funds, the Initial Setup Fee. (k) As compensation for its assumption of a its duties as successor to the Servicer hereunder, on and after the ~~Lenders notify the Servicer to discontinue performing servicing functions under this Agreement~~Servicing Transfer Date, the Backup Servicer ~~or any other~~ in its capacity as successor to the Servicer hereunder shall become entitled to receive the Servicing Fee for three (~~or Xxxxxx Xxxxxxx~~ 3) months (~~or, following~~ regardless of the ~~Collateral Split Effective Date,~~ actual number of months that the ~~Primary Lender under the related Loan Agreement) if there is no~~ Backup Servicer ~~or other~~ has acted as the successor Servicer) on each Mortgage Loan and such other compensation to the Servicer as is provided in this Agreement (other than any such compensation due to the predecessor Servicer for any period prior to the Servicing Transfer Date); provided, however that the predecessor Servicer shall ~~act in~~ nonetheless be entitled to payment or reimbursement for unpaid Servicing Fees accrued during the period prior to the Servicing Transfer Date or Servicing Advances made by such ~~capacity~~ predecessor Servicer during the period prior to the Servicing Transfer Date pursuant to Section 9.03(h) hereof. The parties agree that if the Backup Servicer has succeeded as ~~hereinabove provided. In connection with such appointment and assumption~~the successor Servicer hereunder, the ~~Lenders may make such arrangements for~~ Servicing Fee Rate shall be equal to 0.50% after the ~~compensation of such successor out of payments on Pledged Receivables as it and such successor shall agree;~~ Servicing Transfer Date, provided, however, ~~that~~in the event of an Event of Default under the Loan Agreement, ~~except as provided herein, no such compensation~~ the Servicing Fee Rate shall be ~~in excess of that permitted the Servicer hereunder~~a commercially reasonable rate or per loan fee (taking into consideration, ~~unless (i) agreed to by the Lenders and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower~~among other factors, the 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. 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 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 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(a) hereof. Within four (4) Business Days after each Remittance Date, provided fact that the ~~Backup Servicer shall have received the information specified in Section 6.10(d~~Loan Agreement is no longer a revolving facility) 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 as agreed upon 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(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 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 ~~Lenders~~ Lender, who agree to act in good faith based upon the then Principal Balance of the Mortgage Loans outstanding at such time and anticipated balances going forward; and provided further, that the 0.50% rate shall be applicable for a minimum of three (3) months following such a Servicing Transfer Date. If the Lender and the Backup Servicer fail to set a mutually agreeable Servicing Fee Rate in good faith negotiations after the Servicing Transfer Date and the subsequent Event of Default, the Backup Servicer may ~~agree. In~~ in its sole discretion resign as successor Servicer hereunder at no cost to the ~~event~~ Backup Servicer and the Lender shall reimburse the Backup Servicer for any unreimbursed Servicing Advances made by the Backup Servicer with respect to the Mortgage Loans and any unreimbursed Servicing Transfer Costs incurred by the Backup Servicer prior to the date of ~~any discrepancy between~~ such resignation. (l) If the ~~information set forth in subparagraphs~~ Backup Servicer is terminated as Backup Servicer without cause or, is required by the Owner (bwith the prior written consent of the Lender) or ~~(c) above~~ the Lender to resign as ~~calculated by the Servicer and that determined or calculated by the~~ Backup Servicer, the Backup Servicer shall ~~promptly report such discrepancy~~ be paid from the Collection Account (or from the Lender if there are insufficient funds in the Collection Account) a termination fee equal to the ~~Servicer and~~ Backup Servicing Fee Rate accrued for nine (9) months (on the ~~Lenders. In the event~~ basis of a ~~discrepancy as described in~~ 360-day year and twelve 30-day months) less 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~~ number 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 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 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 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, months that the Backup Servicer has already received a payment as Backup Servicer on the aggregate principal balance of the Mortgage Loans on the date of such termination, if such termination or ~~such other successor Servicer, as applicable, shall remain liable for the performance of all of its duties and obligations hereunder~~ forced resignation occurs on or prior to the ~~same extent as if no such subservicing had occurred~~nine month anniversary of the Effective Date. ~~In no event~~ No termination fee shall be payable to the Backup Servicer if the Backup Servicer is terminated as Backup Servicer without cause or, is required to resign as Backup Servicer, after the 9-month anniversary of the Effective Date or ~~any other successor~~ if the Backup Servicer ~~(either prior~~ resigns pursuant 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 GodSection 9.03(k).

Appears in 1 contract

Samples: Servicing Agreement (American Business Financial Services Inc /De/)

Backup Servicer. If a Servicer Default shall occur, then the ~~Controlling Holders~~ 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 ~~or any other successor Servicer appointed by the Controlling Holders~~ pursuant to and under this ~~Section~~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 ~~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~~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 ~~Lenders~~ Lender 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 or such other successor~~ 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 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 ~~such Person~~ the Backup Servicer to assume the servicing functions hereunder and the transfer to ~~such Person~~ 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 ~~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 ~~any~~ the 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(a~~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(a~~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 ~~(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 ~~any~~ no liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, ~~Xxxxxx Xxxxxxx (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 ~~Lenders~~ Lender in ~~their~~ 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 ~~Lenders notify~~ Lender notifies the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer ~~or any other successor Servicer~~ (or ~~Xxxxxx Xxxxxxx (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 ~~Lenders~~ 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 ~~Lenders~~ Lender and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the ~~Lenders~~ 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 ~~or any other successor Servicer~~ be liable for any special, indirect or consequential damages. ~~Each of the~~ 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 a the 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 ~~Lenders~~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(a~~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(a~~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 ~~Lenders~~ 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 ~~Lenders~~ 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 ~~Lenders~~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 ~~Lenders~~ 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 ~~Lenders~~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 ~~Lenders~~ 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 ~~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 1 contract

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

Backup Servicer. If a Servicer Default shall occur, then the ~~Controlling Holders~~ 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 ~~or any other successor Servicer appointed by the Controlling Holders~~ pursuant to and under this ~~Section~~Section (unless the 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 ~~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. The Servicer agrees to cooperate with the 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 the Backup ~~Servicer or such other successor~~ Servicer, at the Servicer’s '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 ~~such Person~~ the Backup Servicer to assume the servicing functions hereunder and the transfer to ~~such Person~~ 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 ~~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 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(a~~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(a~~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 ~~(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 ~~any~~ no liability relating to the representations and warranties of the Servicer contained in Article IV. Notwithstanding the above, ~~Xxxxxx Xxxxxxx (or, following~~ the ~~Collateral Split Effective Date, the Primary~~ Class A 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 Lenders in 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 Lenders notify the Servicer to discontinue performing servicing functions under this Agreement, the Backup Servicer ~~or any other successor Servicer~~ (or ~~Xxxxxx Xxxxxxx (or, following~~ the ~~Collateral Split Effective Date, the Primary~~ Class A 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 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 Lenders and (ii) such compensation shall be on commercially competitive terms and rates. The Borrower, the 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. ~~Each of the~~ 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 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 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(a~~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(a~~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 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 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 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 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 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 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 1 contract

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

Common use of Backup Servicer Clause in Contracts