Common use of Duties of the Backup Servicer Clause in Contracts

Duties of the Backup Servicer. (a) In furtherance of its undertaking in Section 2 above, from and after the date hereof until the Appointment Effective Date, the Backup Servicer agrees to perform the Backup Servicer functions as set forth in this Section 3. On and after the Appointment Effective Date, the Backup Servicer, as Successor Servicer, shall serve as “Servicer” under the Servicing Agreement. (b) On or before 10 a.m. Pacific Time three Business Days following the end of each calendar month, the Servicer shall transfer to the Backup Servicer a detailed master file in computer readable format as reasonably agreed to by the Servicer and the Backup Servicer (the “Monthly Master File”) for the Serviced Receivables as of the last day of the preceding calendar month, and the Backup Servicer shall maintain and store such master file on a secure FTP site. (c) Within five (5) business days of receipt of the Monthly Master File, the Backup Servicer shall load the information from the Monthly Master File into the Backup Servicer’s data system and provide each Client and the Indenture Trustee with a certificate stating that the Monthly Master File has been received, is in an acceptable format and the Backup Servicer is able to begin servicing of the Serviced Receivables within 30 days of receipt of the Monthly Master File. (d) The Backup Servicer shall receive and review the Servicer’s Certificate related to such Monthly Master File. The Backup Servicer shall verify the information set forth on Exhibit A hereto, to the extent such information is contained in the Monthly Master File. The verification shall compare the information on the Servicer’s Certificate to the information on the Backup Servicer’s data system using the Monthly Master File. (e) Within five (5) business days of receipt of the Monthly Master File, the Backup Servicer will deliver to the Servicer, the Indenture Trustee and each Client a notice either (i) certifying that it has confirmed the accuracy of the information specified in Exhibit A hereto in the Servicer’s Certificate related to such Monthly Master File, as described above, or (ii) describing any discrepancies discovered in the information specified in Exhibit A hereto contained in the Servicer’s Certificate related to such Monthly Master File. (f) The Servicer agrees to provide the Backup Servicer with any information that the Servicer has in its possession (or is able to obtain without undue effort or expense) the Backup Servicer may reasonably request that is necessary to perform its obligations hereunder. (g) The Servicer agrees that no information shall be transferred to the Backup Servicer that would be restricted under the “Payment Card Industry Data Security Standard.” (h) Except as provided 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.

Duties of the Backup Servicer. (a) In furtherance of its undertaking in Section 2 above, from and after the date hereof until the Appointment Effective Date, the Backup Servicer agrees to perform the Backup Servicer functions as set forth in this Section 3. On and after the Appointment Effective Date, the Backup Servicer, as Successor Servicer, shall serve as “Servicer” under the Servicing Agreement. (b) On or before 10 a.m. Pacific Time three [three] Business Days following the end of each calendar month, the Servicer shall transfer to the Backup Servicer a detailed master file in computer readable format as reasonably agreed to by the Servicer and the Backup Servicer (the “Monthly Master File”) for the Serviced Receivables as of the last day of the preceding calendar month, and the Backup Servicer shall maintain and store such master file on a secure FTP site. (c) Within [five (5) )] business days of receipt of the Monthly Master File, the Backup Servicer shall load the information from the Monthly Master File into the Backup Servicer’s data system and provide each [each] Client and the Indenture Trustee with a certificate stating that the Monthly Master File has been received, is in an acceptable format and the Backup Servicer is able to begin servicing of the Serviced Receivables within 30 days of receipt of the Monthly Master File. (d) The Backup Servicer shall receive and review the Servicer’s Certificate related to such Monthly Master File. The Backup Servicer shall verify the information set forth on Exhibit A hereto, to the extent such information is contained in the Monthly Master File. The verification shall compare the information on the Servicer’s Certificate to the information on the Backup Servicer’s data system using the Monthly Master File. (e) Within five (5) business days of receipt of the Monthly Master File, the Backup Servicer will deliver to the Servicer, the Indenture Trustee and each [each] Client a notice either (i) certifying that it has confirmed the accuracy of the information specified in Exhibit A hereto in the Servicer’s Certificate related to such Monthly Master File, as described above, or (ii) describing any discrepancies discovered in the information specified in Exhibit A hereto contained in the Servicer’s Certificate related to such Monthly Master File. (f) The Servicer agrees to provide the Backup Servicer with any information that the Servicer has in its possession (or is able to obtain without undue effort or expense) the Backup Servicer may reasonably request that is necessary to perform its obligations hereunder. (g) The Servicer agrees that no information shall be transferred to the Backup Servicer that would be restricted under the “Payment Card Industry Data Security Standard.” (h) Except as provided 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.

Duties of the Backup Servicer. (a) In furtherance of its undertaking in Section 2 above, from and after From the date hereof Closing Date until the Appointment Effective earlier of (i) its removal pursuant to Section 8.04, (ii) its resignation in accordance with the provisions of Section 8.05, (iii) its appointment as Successor Servicer pursuant to Section 7.12(a) or (iv) the Facility Termination Date, the Backup Servicer agrees to perform shall perform, on behalf of the Secured Parties, the obligations of the Backup Servicer functions as set forth in this Section 3. On and after the Appointment Effective 8.02: (e) At least one Business Day before each Reporting Date, the Servicer shall deliver to the Backup Servicer an electronic file containing all information necessary to allow the Backup Servicer to review the Monthly Report related thereto and determine that such electronic file is readable and contains all information necessary for the Backup Servicer to complete its duties herein. The Backup Servicer shall, within three (3) Business Days after receipt of the Monthly Loan Tape referred to in the preceding sentence, load such electronic file, confirm such computer tape or diskette is in readable form and (A) verify the following based solely on information contained in the electronic file: the aggregate Principal Balance of all Receivables as of the most recent Determination Date, the Annualized Net Charge-off Ratio and the Delinquency Ratio (31+ Days) as of the related Determination Date, (B) based solely on a mathematical recalculation of information contained in the Monthly Report confirm the following: Servicing Fee, Backup Servicing Fee, Paying Agent/Collateral Agent Fee, Class A Monthly Principal Payment, Class B Monthly Principal Payment, the amount due to the Reserve Account pursuant to Section 2.08(a)(vii), the amount due to the Class A Lender pursuant to Section 2.08(a)(viii), the amount due to the Class B Lender pursuant to Section 2.08(a)(viii), the remaining amount due to the Borrower pursuant to Section 2.08(a)(xiii), the Class A Borrowing Base, the Total Borrowing Base as of the related Reporting Date (calculated as of the related Determination Date, or, with respect to Receivables added to the Collateral following such Determination Date, but prior to the date of such Monthly Report, the related Cutoff Date), (C) based solely on the records of the Paying Agent confirm the following: the Reserve Account Amount as of the related Determination Date, each as set forth in the Monthly Report. In the event of any discrepancy between the information set forth in the two foregoing sentences, as determined or calculated by the Servicer, from that determined or calculated by the Backup Servicer, as Successor the Backup Servicer shall notify the Servicer of such discrepancy at or before the close of business on the Business Day immediately preceding the related Payment Date and, if by the Business Day following receipt by the Servicer of such notice, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Administrative Agent and the Agents of such discrepancy. The Backup Servicer shall provide a monthly report, in form and substance satisfactory to the Backup Servicer, the Administrative Agent, the Agents and the Servicer, to the Administrative Agent, the Agents and the Servicer, at or before the close of business on the Business Day immediately preceding the related Payment Date. The Backup Servicer, in its capacity as such, shall serve as “not be responsible for delays attributable to the Servicer” under ’s failure to deliver information, defects in the Servicing Agreementinformation supplied by the Servicer or other circumstances beyond the control of the Backup Servicer. Notwithstanding the foregoing, if the Monthly Loan Tape or the Monthly Report does not contain sufficient information for the Backup Servicer to perform any action hereunder, the Backup Servicer shall promptly notify the Servicer of any additional information to be delivered by the Servicer to the Backup Servicer, and the Backup Servicer and the Servicer shall mutually agree upon the form thereof; provided, however, that the Backup Servicer shall not be liable for the performance of any action unable to be taken hereunder without such additional information until it is received from the Servicer. (bf) On or before 10 a.m. Pacific Time three Business Days following prior to the end of each calendar month60th day after the Closing Date, the Servicer shall deliver the Test Data File to the Backup Servicer, in a format acceptable to the Backup Servicer. The Backup Servicer and the Servicer will agree upon the file layout and electronic medium to transfer such data to the Backup Servicer. Any reasonable cost associated with the obligations of the Backup Servicer described in this subsection shall be at the expense of the Servicer, and, to the extent that the Servicer does not pay such amounts, the Backup Servicer shall be entitled to recover such amounts pursuant to Section 2.08. On an annual basis, on the anniversary date of the Closing Date, the Servicer shall provide to the Backup Servicer a detailed master file in computer readable format as reasonably agreed description of any material changes which have been made to by the Servicer and the Backup Servicer (the “Monthly Master File”) for the Serviced Receivables as of the last day of the preceding calendar month, and the Backup Servicer shall maintain and store such master file on a secure FTP site. (c) Within five (5) business days of receipt of the Monthly Master File, the Backup Servicer shall load the information from the Monthly Master File into the Backup Servicer’s data system and provide each Client and the Indenture Trustee with a certificate stating that the Monthly Master File has been received, is in an acceptable format and the Backup Servicer is able to begin servicing of the Serviced Receivables within 30 days of receipt of the Monthly Master File. (d) The Backup Servicer shall receive and review the Servicer’s Certificate related to such Monthly Master File. The Backup Servicer shall verify the information set forth on Exhibit A hereto, to the extent such information is contained in the Monthly Master File. The verification shall compare the information on the Servicer’s Certificate to the information on the Backup Servicer’s data system using the Monthly Master File. (e) Within five (5) business days of receipt of the Monthly Master File, the Backup Servicer will deliver to the Servicer, the Indenture Trustee and each Client a notice either (i) certifying that it has confirmed the accuracy of the information specified in Exhibit A hereto in the Servicer’s Certificate related to such Monthly Master File, as described above, or (ii) describing any discrepancies discovered in the information specified in Exhibit A hereto contained in the Servicer’s Certificate related to such Monthly Master File. (f) The Servicer agrees to provide the Backup Servicer with any information that the Servicer has in its possession (or is able to obtain without undue effort or expense) the Backup Servicer may reasonably request that is necessary to perform its obligations hereunderrecord. (g) The Servicer agrees that no information shall be transferred to the Backup Servicer that would be restricted under the “Payment Card Industry Data Security Standard.” Other than as specifically set forth elsewhere in this Agreement, (hi) Except as provided herein, the Backup Servicer shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer and shall have no liability Liability for any action taken or omitted by the Servicer and (ii) shall have no obligation to confirm or verify the content, accuracy or completeness of any information delivered to the Backup Servicer. (h) The Backup Servicer shall consult with the Servicer as may be necessary from time to time to perform or carry out the Backup Servicer’s obligations hereunder, including the obligation, if requested in writing by the Administrative Agent (acting at the direction of the Required Lenders), to succeed to the duties and obligations of the Servicer pursuant hereto. (i) Except as provided in this Agreement, the Backup Servicer may accept and rely on all accounting, records and work of the Servicer without audit, and the Backup Servicer shall have no Liability for the acts or omissions of the Servicer. If any error, inaccuracy or omission (collectively, “Errors”) exists in any information received from the Servicer, and such Errors should cause or materially contribute to the Backup Servicer making or continuing any Errors (collectively, “Continued Errors”), the Backup Servicer shall have no Liability for such Continued Errors; provided, however, that the Successor Servicer agrees to use its best efforts to prevent further Continued Errors. In the event the Backup Servicer has actual knowledge or receives written notice of Errors or Continued Errors, the Backup Servicer shall promptly notify the Servicer of such Errors or Continued Errors and, with the prior consent of the Administrative Agent (acting at the direction of the Required Lenders), shall use its best efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and Continued Errors and prevent future Continued Errors. The Backup Servicer shall be entitled to recover its reasonable costs thereby expended from the Servicer (or, to the extent not paid by the Servicer, in accordance with Section 2.08). (j) The Backup Servicer shall be indemnified by the Servicer and the Borrower pursuant to Section 11.01 and Section 11.02. (k) The Backup Servicer shall be liable in accordance herewith only to the extent of its obligations set forth in this Agreement or any obligations assumed by the Backup Servicer from the Servicer pursuant to Section 7.12. Such liability is limited to only those actions taken or omitted to be taken by the Backup Servicer and caused through its gross negligence, bad faith or willful misconduct. No implied covenants or obligations shall be read into this Agreement against the Backup Servicer and, in the absence of bad faith on its part, the Backup Servicer may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Backup Servicer and conforming to the requirements of this Agreement. (l) The Backup Servicer shall not be charged with knowledge of any event or information, including any Unmatured Event of Default, Event of Default or Facility Amortization Event, or be required to act (including the sending of any notice) upon any such event or information, including any Unmatured Event of Default, Event of Default or Facility Amortization Event, unless a Responsible Officer of the Backup Servicer has actual knowledge of such event or receives written notice of such event from the Borrower, the Borrower Loan Trustee, the Servicer, the Administrative Agent or any Secured Party, and shall have no duty to take action to determine whether any such event, default or Event of Default shall have occurred. (m) The Backup Servicer shall not be required to expend or risk its own funds or otherwise incur financial liability in the performance of its duties hereunder, or in the exercise of any of its rights or powers, if there shall be reasonable ground for believing that the repayment of such funds or indemnity satisfactory to it against such risk or liability shall not be reasonably assured to it. Notwithstanding any provision to the contrary, the Backup Servicer shall not be liable for any obligation or the acts or omissions of the Borrower, the Borrower Loan Trustee, the Servicer (so long as it is not the Successor Servicer, in which case it shall be obligated to perform as Servicer hereunder) or any other Person, contained in this Agreement, and the parties shall look only to such parties to perform such obligations, and the Backup Servicer may assume performance of such parties absent written notice or actual knowledge of a Responsible Officer of the Backup Servicer to the contrary. (n) In no event shall the Backup Servicer be responsible or liable for punitive, special, indirect, or consequential loss or damage of any kind whatsoever (including, without limitation, loss of profit) irrespective of whether the Backup Servicer has been advised of the likelihood of such loss or damage and regardless of the form of action. (o) The Backup Servicer may execute any of the trusts or powers hereunder or perform any duties under this Agreement either directly or by or through Affiliates, agents or attorneys or a custodian. The Backup Servicer shall not be responsible for any misconduct or negligence of any agent, attorney or custodian appointed with due care by it hereunder. (p) Notwithstanding anything stated herein to the contrary, nothing herein shall be construed to impose an obligation on the part of the Backup Servicer to investigate, evaluate, verify, independently determine or re-calculate any information, statement, representation or warranty or any fact or matter stated in, or the accuracy of, any such document and may conclusively rely as to the truth of the statements and the correctness of the opinions expressed therein.