Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contrary, on or before the Business Day prior to the Distribution Date, the Backup Servicer will review and confirm that the Servicer’s Certificate is readable and contains all information necessary for the Backup Servicer to complete its duties pursuant to this Section 2.2, and shall review the Servicer’s Certificate to verify the following based solely on a recalculation of information contained in the Servicer’s Certificate: (i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notes; (ii) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the Notes; (iii) the Reserve Account Requirement; (iv) the amount of each of clauses first through ninth of Section 5.05(b) of the Sale and Servicing Agreement; (v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) above; (vi) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and (vii) the Class A Interest Carryover Shortfall, if any, the Class B Interest Carryover Shortfall, if any, and the Class C Interest Carryover Shortfall, if any; (b) The Backup Servicer shall, on or before the Business Day prior to the Distribution Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to verify the following: the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period (in each case, calculated separately for Purchased Loans, Dealer Loans and all Loans in the aggregate). (c) The Backup Servicer shall provide written notice to the Trust Collateral Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information. (d) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer. (e) 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 Trust Collateral Agent, to succeed within sixty (60) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3. (f) Except as otherwise provided in this Agreement, the successor Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Servicer against any Liability which 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 duties hereunder or under the Sale and Servicing Agreement. In the event the successor Servicer becomes aware of Errors and/or Continued Errors which, in the opinion of the successor Servicer impairs its ability to perform its services hereunder, the successor Servicer: (i) shall promptly notify the Servicer of such Errors and/or Continued Errors; and (ii) shall use best efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and/or Continued Errors and prevent future Continued Errors. The successor Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses pursuant to Section 5.08(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicable. (g) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and court costs) incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of care) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconduct, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer. (h) Notwithstanding the foregoing, if the Servicer’s Data File or the Servicer’s Certificate 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect thereto.
Appears in 7 contracts
Samples: Backup Servicing Agreement (Credit Acceptance Corp), Backup Servicing Agreement (Credit Acceptance Corp), Backup Servicing Agreement (Credit Acceptance Corp)
Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contrary, on or before the third Business Day prior of each month, the Servicer and the Trust Collateral Agent shall provide sufficient data to the Distribution Date, the Backup Servicer will to allow the Backup Servicer to review and confirm that to verify the mathematical accuracy of the Servicer’s Certificate is readable on an Aggregate Basis related thereto and contains all information necessary for determine the Backup Servicer to complete its duties pursuant to this Section 2.2, and shall review the following:
(i) that such Servicer’s Certificate is complete on its face;
(ii) that the amounts credited to verify and withdrawn from the following based solely on a recalculation Collection Account and the balance of information contained such account, as set forth in the records of the Trust Collateral Agent are the same as the amount set forth in the Servicer’s Certificate; and
(iii) that the amounts credited to and withdrawn from the Reserve Account and the balance of such account, as set forth in the records of the Trust Collateral Agent are the same as the amount set forth in the Servicer’s Certificate.
(b) The Backup Servicer shall, on or before the day prior to the Distribution Date with respect to any Collection Period, verify the mathematical accuracy of the Servicer’s Certificate in its entirety, which shall include but not be limited to the following:
(i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount related distribution allocable to principal of the Notes;
(ii) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount related distribution allocable to interest on the Notes;
(iii) the amount of the related distribution payable out of the Reserve Account RequirementAccount;
(iv) the amount Aggregate Outstanding Net Eligible Loan Balance, the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of each of clauses first through ninth of Section 5.05(b) all Eligible Contracts as of the Sale close of business on the last day of the preceding Collection Period (in each case, calculated separately for Purchased Loans, Dealer Loans and Servicing Agreementall Loans in the aggregate);
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance Balance, and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) above;
(vi) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and;
(vii) the Class A Interest Carryover Shortfall, if any, and the Class B Interest Carryover Shortfall, if any, ;
(viii) the total amount of Collections for the related Collection Period; and
(ix) the aggregate Purchase Amount for the Ineligible Loans and the Class C Interest Carryover ShortfallIneligible Contracts, if any;
(b) The Backup Servicer shall, on or before the Business Day prior to the Distribution Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to verify the following: the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period (that was paid in each case, calculated separately for Purchased Loans, Dealer Loans and all Loans in the aggregate)such period.
(c) The Backup Servicer shall provide written notice to the Trust Collateral Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Agent and Indenture Trustee of such discrepancy. The Backup Servicer shall review the information contained in the Servicer’s Certificate delivered to it in accordance with Section 4.09(c) of the Sale and Servicing Agreement against the information on the Servicer’s Data File, on an aggregate basis. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(di) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(eii) 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 Trust Collateral Agent, to succeed within sixty thirty (6030) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(fiii) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Backup Servicer against any Liability which would otherwise be imposed by reason of willful misconductmisfeasance, bad faith or gross negligence in discovering or correcting any Error or in the performance of its duties hereunder or under the Sale and Servicing Agreement. In the event the successor Backup Servicer becomes aware of Errors and/or Continued Errors which, in the opinion of the successor Backup Servicer impairs its ability to perform its services hereunder, the successor Backup Servicer: (i) shall promptly notify the Servicer of such Errors and/or Continued Errors; and (ii) shall may use its best efforts to reconstruct and reconcile such data as is commercially reasonable it deems appropriate to correct such Errors and/or Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses pursuant to Section 5.08(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicable.
(giv) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and court costs) incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of care) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconductmisfeasance, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(hv) Notwithstanding To the foregoing, if the Servicer’s Data File or the Servicer’s Certificate does not contain sufficient information for extent the Backup Servicer requires any information supplementing reports or data that is to perform any action hereunderbe provided to it pursuant to the Basic Documents in order to complete its verification duties, the Backup Servicer shall promptly notify the Servicer of any additional information to be delivered Servicer’s verification duties are conditioned upon timely receipt 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect theretoinformation.
Appears in 5 contracts
Samples: Backup Servicing Agreement (Credit Acceptance Corp), Backup Servicing Agreement (Credit Acceptance Corp), Backup Servicing Agreement (Credit Acceptance Corp)
Review and Verification. (ai) Notwithstanding anything in Section 2.1 to the contrary, on or before the Business Day prior to the Distribution Date, the Backup Servicer will review and confirm that the Servicer’s Certificate is readable and contains all information necessary for the Backup Servicer to complete its duties pursuant to this Section 2.2, and shall review the Servicer’s Certificate to verify the following based solely on a recalculation of information contained in the Servicer’s Certificate:
(i1) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notes;
(ii2) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the Notes;
(iii3) the Reserve Account Requirement;
(iv4) the amount of each of clauses first through ninth of Section 5.05(b) of the Sale and Servicing Agreement;
(v5) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance Balance, and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) above;
(vi6) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and
(vii7) the Class A Interest Carryover Shortfall, if any, the Class B Interest Carryover Shortfall, if any, and the Class C Interest Carryover Shortfall, if any;
(bii) The Backup Servicer shall, on or before the Business Day prior to the Distribution Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to verify the following: the Aggregate Outstanding Net Eligible Loan Balance, the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period (in each case, calculated separately for Purchased Loans, Dealer Loans and all Loans in the aggregate).
(ciii) The Backup Servicer shall provide written notice to the Trust Collateral Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(div) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(ev) 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 Trust Collateral Agent, to succeed within sixty (60) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(fvi) Except as otherwise provided in this Agreement, the successor Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Servicer against any Liability which 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 duties hereunder or under the Sale and Servicing Agreement. In the event the successor Servicer becomes aware of Errors and/or Continued Errors which, in the opinion of the successor Servicer impairs its ability to perform its services hereunder, the successor Servicer: (i) shall promptly notify the Servicer of such Errors and/or Continued Errors; and (ii) shall use best efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and/or Continued Errors and prevent future Continued Errors. The successor Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses pursuant to Section 5.08(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicable.
(gvii) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and court costs) incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of care) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconduct, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(hviii) Notwithstanding the foregoing, if the Servicer’s Data File or the Servicer’s Certificate 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect thereto.
Appears in 2 contracts
Samples: Backup Servicing Agreement (Credit Acceptance Corp), Backup Servicing Agreement (Credit Acceptance Corp)
Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contrary, on or before the end of the second Business Day prior to the Distribution each Determination Date, the Backup Servicer will review and confirm that the Servicer’s Certificate is readable and contains all information necessary for Trust Collateral Agent shall provide sufficient data to the Backup Servicer to complete its duties pursuant allow the Backup Servicer to this Section 2.2, review and shall review the Servicer’s Certificate to verify the following based solely mathematical accuracy of the Servicer's Certificate on a recalculation an Aggregate Basis related thereto and determine the following:
(i) that such Servicer's Certificate is complete on its face;
(ii) that the amounts credited to and withdrawn from the Collection Account and the balance of information contained such account, as set forth in the records of the Trust Collateral Agent are the same as the amount set forth in the Servicer’s 's Certificate; and
(iii) that the amounts credited to and withdrawn from the Reserve Account and the balance of such account, as set forth in the records of the Trust Collateral Agent are the same as the amount set forth in the Servicer's Certificate.
(b) The Backup Servicer shall, on or before the Determination Date with respect to any Collection Period, verify the mathematical accuracy of the Servicer's Certificate in its entirety, which shall include but not be limited to the following:
(i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notesrelated distribution allocable to principal;
(ii) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the Notesrelated distribution allocable to interest;
(iii) the amount of the related distribution payable out of the Reserve Account RequirementAccount;
(iv) the amount Aggregate Outstanding Net Eligible Loan Balance, the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of each of clauses first through ninth of Section 5.05(b) all Eligible Contracts as of the Sale and Servicing Agreementclose of business on the last day of the preceding Collection Period;
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) abovePool Factor;
(vi) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and;
(vii) the Class A Interest Carryover Shortfall, if any, ;
(viii) the Class B Interest Carryover Shortfalltotal amount of Collections for the related Collection Period; and
(ix) the aggregate Purchase Amount for the Ineligible Loans and Ineligible Contracts, if any, and the Class C Interest Carryover Shortfall, if any;
(b) The Backup Servicer shall, on or before the Business Day prior to the Distribution Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to verify the following: the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period (that was paid in each case, calculated separately for Purchased Loans, Dealer Loans and all Loans in the aggregate)such period.
(c) The Backup Servicer shall provide written notice to the Class A Insurer, the Backup Insurer and the Trust Collateral Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Agent Class A Insurer and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such informationdiscrepancy.
(di) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “"Liability”") for any action taken or omitted by the Servicer.
(eii) 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 's obligations hereunder, including the obligation, if requested in writing by the Trust Collateral AgentClass A Insurer, to succeed within sixty thirty (6030) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(fiii) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “"Continued Errors”"), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Backup Servicer against any Liability which would otherwise be imposed by reason of willful misconductmisfeasance, bad faith or gross negligence in discovering or correcting any Error or in the performance of its duties hereunder or under the Sale and Servicing Agreement. In the event the successor Backup Servicer becomes aware of Errors and/or or Continued Errors which, in the opinion of the successor Backup Servicer impairs its ability to perform its services hereunder, the successor Servicer: (i) shall promptly notify Backup Servicer may, with the Servicer prior consent of such Errors and/or Continued Errors; and (ii) shall use best efforts the Class A Insurer, undertake to reconstruct and reconcile such data as is commercially reasonable it deems appropriate to correct such Errors and/or and Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses pursuant to Section 5.08(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicable.
(giv) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, Issuer from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s 's fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and court costs) incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of care) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s 's own willful misconductmisfeasance, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(hv) Notwithstanding To the foregoing, if the Servicer’s Data File or the Servicer’s Certificate does not contain sufficient information for extent the Backup Servicer requires any information supplementing reports or data that is to perform any action hereunderbe provided to it pursuant to the Basic Documents in order to complete its verification duties, the Backup Servicer shall promptly notify the Servicer of any additional information to be delivered Servicer's verification duties are conditioned upon timely receipt 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect theretoinformation.
Appears in 2 contracts
Samples: Backup Servicing Agreement (Credit Acceptance Corporation), Backup Servicing Agreement (Credit Acceptance Corporation)
Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contrary, on or before the Business Day prior to the Distribution Date, the Backup Servicer will review and confirm that the Servicer’s Certificate is readable and contains all information necessary for the Backup Servicer to complete its duties pursuant to this Section 2.2, and shall review the Servicer’s Certificate to verify the following based solely on a recalculation of information contained in the Servicer’s Certificate:
(i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notes;
(ii) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the Notes;
(iii) the Reserve Account Requirement;
(iv) the amount of each of clauses first through ninth of Section 5.05(b) of the Sale and Servicing Agreement;
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance Balance, and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) above;
(vi) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and
(vii) the Class A Interest Carryover Shortfall, if any, the Class B Interest Carryover Shortfall, if any, and the Class C Interest Carryover Shortfall, if any;
(b) The Backup Servicer shall, on or before the Business Day prior to the Distribution Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to verify the following: the Aggregate Outstanding Net Eligible Loan Balance, the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period (in each case, calculated separately for Purchased Loans, Dealer Loans and all Loans in the aggregate).
(c) The Backup Servicer shall provide written notice to the Trust Collateral Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(d) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(e) 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 Trust Collateral Agent, to succeed within sixty thirty (6030) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(f) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Backup Servicer against any Liability which 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 duties hereunder or under the Sale and Servicing Agreement. In the event the successor Backup Servicer becomes aware of Errors and/or Continued Errors which, in the opinion of the successor Backup Servicer impairs its ability to perform its services hereunder, the successor Backup Servicer: (i) shall promptly notify the Servicer of such Errors and/or Continued Errors; and (ii) shall use best efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and/or Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Backup Servicer expenses pursuant to Section 5.08(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicable.
(g) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and court costs) incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of care) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconduct, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(h) Notwithstanding the foregoing, if the Servicer’s Data File or the Servicer’s Certificate 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect thereto.
Appears in 2 contracts
Samples: Backup Servicing Agreement (Credit Acceptance Corp), Backup Servicing Agreement (Credit Acceptance Corp)
Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contrary, on or before the end of the second Business Day prior to the Distribution each Determination Date, the Backup Servicer will review and confirm that the Servicer’s Certificate is readable and contains all information necessary for shall provide sufficient data to the Backup Servicer to complete its duties pursuant allow the Backup Servicer to this Section 2.2, review and shall review the Servicer’s Certificate to verify the following based solely mathematical accuracy of the Monthly Report on a recalculation an Aggregate Basis related thereto and determine the following:
(i) that such Monthly Report is complete on its face;
(ii) that the amounts credited to and withdrawn from the Collection Account and the balance of information contained such account, as set forth in the Servicer’s Certificaterecords of the Collateral Agent and Servicer are the same as the amount set forth in the Monthly Report; and
(iii) that the amounts credited to and withdrawn from the Reserve Account and the balance of such account, as set forth in the records of the Collateral Agent and Servicer are the same as the amount set forth in the Monthly Report.
(b) The Backup Servicer shall, on or before the Determination Date with respect to any Collection Period, verify the mathematical accuracy of the Monthly Report in its entirety, which shall include but not be limited to the following:
(i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notesrelated distribution allocable to principal;
(ii) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the Notesrelated distribution allocable to interest;
(iii) the amount of the related distribution payable out of the Reserve Account RequirementAccount;
(iv) the amount Aggregate Outstanding Eligible Loan Net Balance, the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of each of clauses first through ninth of Section 5.05(b) all Eligible Contracts as of the Sale and Servicing Agreementclose of business on the last day of the preceding Collection Period;
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) aboveoutstanding Capital;
(vi) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and;
(vii) the Class A Interest Carryover ShortfallRequired Reserve Account Amount;
(viii) the total amount of Collections for the related Collection Period; and
(ix) in the aggregate, the Release Price, Retransfer Amount and/or Nonconforming Contract Payment Amount, if any, the Class B Interest Carryover Shortfallthat was paid in such period pursuant to Section 4.5(a), if any, and the Class C Interest Carryover Shortfall, if any;
(bSection 4.5(b) The Backup Servicer shall, on or before the Business Day prior to the Distribution Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to verify the following: the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as and/or Section 6.2 of the close of business on the last day of the preceding Collection Period (in each caseLoan Agreement, calculated separately for Purchased Loans, Dealer Loans and all Loans in the aggregate)as applicable.
(c) The Backup Servicer shall provide written notice to the Trust Collateral Deal Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five three (53) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly (but in any event within three Business Days) notify the Trust Collateral Deal Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(di) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(eii) 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 Trust Collateral Deal Agent, to succeed within sixty thirty (6030) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(fiii) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Backup Servicer against any Liability which would otherwise be imposed by reason of willful misconductmisfeasance, bad faith or gross negligence in discovering or correcting any Error or in the performance of its duties hereunder or under the Sale and Servicing Loan Agreement. In the event the successor Backup Servicer becomes aware of Errors and/or or Continued Errors which, in the opinion of the successor Backup Servicer impairs its ability to perform its services hereunder, the successor Servicer: (i) shall promptly notify Backup Servicer may, with the Servicer prior consent of such Errors and/or Continued Errors; and (ii) shall use best efforts the Deal Agent, undertake to reconstruct and reconcile such data as is commercially reasonable it deems appropriate to correct such Errors and/or and Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses pursuant to Section 5.08(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicable.
(giv) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, Borrower from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and court costs) incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of care) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconductmisfeasance, bad faith or gross negligence; provided, as determined by a court however, that any obligation or liability of competent jurisdiction. The indemnification provided for in this Section the Borrower hereunder shall be paid limited to any amounts payable by the Backup Servicer until such time as such court enters a judgment as Borrower pursuant to the extent and effect Section 2.7 of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such courtLoan Agreement. The obligations of the Servicer and the Issuer Borrower under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(hv) Notwithstanding To the foregoing, if the Servicer’s Data File or the Servicer’s Certificate does not contain sufficient information for extent the Backup Servicer requires any information supplementing reports or data that is to perform any action hereunderbe provided to it pursuant to the Transaction Documents in order to complete its verification duties, the Backup Servicer shall promptly notify the Servicer of any additional information to be delivered Servicer’s verification duties are conditioned upon timely receipt 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect theretoinformation.
Appears in 2 contracts
Samples: Backup Servicing Agreement (Credit Acceptance Corp), Backup Servicing Agreement (Credit Acceptance Corporation)
Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contrary, on or before the fifth Business Day of each month, the Servicer and the Trust Collateral Agent shall provide sufficient data to the Backup Servicer to allow the Backup Servicer to review and to verify the mathematical accuracy of the Servicer’s Certificate on an Aggregate Basis related thereto to determine the following:
(i) that such Servicer’s Certificate is complete on its face;
(ii) that the amounts credited to and withdrawn from the Collection Account and the balance of such account, as set forth in the records of the Trust Collateral Agent are the same as the amount set forth in the Servicer’s Certificate; and
(iii) that the amounts credited to and withdrawn from the Reserve Account and the balance of such account, as set forth in the records of the Trust Collateral Agent are the same as the amount set forth in the Servicer’s Certificate.
(b) The Backup Servicer shall, on or before the day prior to the Distribution DateDate with respect to any Collection Period, the Backup Servicer will review and confirm that the Servicer’s Certificate is readable and contains all information necessary for the Backup Servicer to complete its duties pursuant to this Section 2.2, and shall review the Servicer’s Certificate to verify the following based solely on a recalculation of information contained in the Servicer’s Certificatefollowing:
(i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount related distribution allocable to principal of the Notes;
(ii) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount related distribution allocable to interest on the Notes;
(iii) the amount of the related distribution payable out of the Reserve Account RequirementAccount;
(iv) the amount Aggregate Outstanding Net Eligible Loan Balance, the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of each of clauses first through ninth of Section 5.05(b) all Eligible Contracts as of the Sale close of business on the last day of the preceding Collection Period (in each case, calculated separately for Purchased Loans, Dealer Loans and Servicing Agreementall Loans in the aggregate);
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance Balance, and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) above;
(vi) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and;
(vii) the Class A Interest Carryover Shortfall, if any, the Class B Interest Carryover Shortfall, if any, and the Class C Interest Carryover Shortfall, if any;
(bviii) The Backup Servicer shall, on or before the Business Day prior to total amount of Collections for the Distribution Date with respect to any related Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to verify the following: the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period (in each case, calculated separately for Purchased Loans, Dealer Loans and all Loans in the aggregate).
(c) The Backup Servicer shall provide written notice to the Trust Collateral Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Agent and Indenture Trustee of such discrepancy. The Backup Servicer shall review the information contained in the Servicer’s Certificate delivered to it in accordance with Section 4.09(c) of the Sale and Servicing Agreement against the information on the Servicer’s Data File, on an aggregate basis. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(d) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(e) 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 Trust Collateral Agent, to succeed within sixty thirty (6030) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(f) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Backup Servicer against any Liability which 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 duties hereunder or under the Sale and Servicing Agreement. In the event the successor Backup Servicer becomes aware of Errors and/or Continued Errors which, in the opinion of the successor Backup Servicer impairs its ability to perform its services hereunder, the successor Backup Servicer: (i) shall promptly notify the Servicer of such Errors and/or Continued Errors; and (ii) shall use best efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and/or Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Backup Servicer expenses pursuant to Section 5.08(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicable.
(g) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and court costs) incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of care) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconduct, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(h) Notwithstanding To the foregoing, if the Servicer’s Data File or the Servicer’s Certificate does not contain sufficient information for extent the Backup Servicer requires any information supplementing reports or data that is to perform any action hereunderbe provided to it pursuant to the Basic Documents in order to complete its verification duties, the Backup Servicer shall promptly notify the Servicer of any additional information to be delivered Servicer’s verification duties are conditioned upon timely receipt 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect theretoinformation.
Appears in 2 contracts
Samples: Backup Servicing Agreement (Credit Acceptance Corp), Backup Servicing Agreement (Credit Acceptance Corp)
Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contrary, on or before the end of the fifth Business Day prior to the Distribution each Payment Date, the Servicer and the Deal Agent shall provide sufficient data to the Backup Servicer will to allow the Backup Servicer to review and confirm that the Servicer’s Certificate such Monthly Report is readable and contains all information necessary for the Backup Servicer to complete its duties pursuant to this Section 2.2. The Backup Servicer shall, and shall on or before the Business Day preceding each Payment Date with respect to any Collection Period, review the Servicer’s Certificate Monthly Report to verify the following based solely on a recalculation of information contained in the Servicer’s CertificateMonthly Report:
(i) the amount of the Class A Monthly Principal Distributable Payment Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notes;
(ii) the amount of the Class A Interest Distributable Additional Principal Payment Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the Notes;
(iii) the Reserve Account RequirementAdvance;
(iv) the amount of each of clauses first through ninth of Section 5.05(b) of the Sale and Servicing Agreement;Aggregate Loan Amount; and
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) above;
(vi) the total amount of the Servicing Fee for the related Collection Period and unpaid Servicing Fees from prior Collections periods paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and
(vii) the Class A Interest Carryover Shortfall, if any, the Class B Interest Carryover Shortfall, if any, and the Class C Interest Carryover Shortfall, if any;Period.
(b) The Backup Servicer shall, on or before the Business Day prior to the Distribution preceding each Payment Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to File and verify the following: following as reported in the Monthly Report:
(i) the Aggregate Outstanding Eligible Loan Net Balance (when applicable under the Loan Agreement), the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period Period;
(in each caseii) the Interest, calculated separately Program Fee and Unused Fee;
(iii) the total amount of Collections for Purchased Loans, Dealer the related Collection Period; and
(iv) the aggregate Release Price for the Ineligible Loans and all Loans for the Ineligible Contracts, if any, that was paid in the aggregate)such period.
(c) The No later than the Business Day preceding each Payment Date, the Backup Servicer shall provide written notice to the Trust Collateral Deal Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Deal Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(di) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(eii) 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 Trust Collateral Deal Agent, to succeed within sixty thirty (6030) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(fiii) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Backup Servicer against any Liability which would otherwise be imposed by reason of willful misconductmisfeasance, bad faith or gross negligence in discovering or correcting any Error or in the performance of its duties hereunder or under the Sale and Servicing Loan Agreement. In the event the successor Backup Servicer becomes aware of Errors and/or or Continued Errors which, in the opinion of the successor Backup Servicer impairs its ability to perform its services hereunder, the successor Servicer: (i) Backup Servicer shall promptly notify the Servicer and the Deal Agent of such Errors and/or Continued Errors; Errors and (ii) shall use best efforts may, with the prior consent of the Deal Agent, undertake to reconstruct and reconcile such data as is commercially reasonable it deems appropriate to correct such Errors and/or and Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses Borrower pursuant to Section 5.08(a2.6(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicableLoan Agreement.
(giv) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and (including court costs) and expenses incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of careServicer) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconduct, bad faith or gross negligence, negligence as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(hv) Notwithstanding To the foregoing, if the Servicer’s Data File or the Servicer’s Certificate does not contain sufficient information for extent the Backup Servicer requires any information, supplementary reports or data that is to perform any action hereunderbe provided to it pursuant to the Transaction Documents in order to complete its verification duties, the Backup Servicer shall promptly notify the Servicer of any additional information to be delivered Servicer’s verification duties are conditioned upon timely receipt 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect theretoinformation.
Appears in 1 contract
Samples: Backup Servicing Agreement (Credit Acceptance Corp)
Review and Verification. (a) Notwithstanding anything in Section 2.1 2.01 to the contrary, on or before the end of the fifth Business Day prior to the Distribution each Payment Date, the Servicer and the Deal Agent shall provide sufficient data to the Backup Servicer will to allow the Backup Servicer to review and confirm that the Servicer’s Certificate such Monthly Report is readable and contains all information necessary for the Backup Servicer to complete its duties pursuant to this Section 2.22.02. The Backup Servicer shall, and shall on or before the Business Day preceding each Payment Date with respect to any Collection Period, review the Servicer’s Certificate Monthly Report to verify the following based solely on a recalculation of information contained in the Servicer’s CertificateMonthly Report:
(i) the amount of the Class A Monthly Principal Distributable Payment Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notes;
(ii) the amount of the Class A Interest Distributable Additional Principal Payment Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the Notes;
(iii) the Reserve Account RequirementAdvance;
(iv) the amount of each of clauses first through ninth of Section 5.05(b) of the Sale and Servicing Agreement;Aggregate Loan Amount; and
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) above;
(vi) the total amount of the Servicing Fee for the related Collection Period and unpaid Servicing Fees from prior Collections periods paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and
(vii) the Class A Interest Carryover Shortfall, if any, the Class B Interest Carryover Shortfall, if any, and the Class C Interest Carryover Shortfall, if any;Period.
(b) The Backup Servicer shall, on or before the Business Day prior to the Distribution preceding each Payment Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to File and verify the following: following as reported in the Monthly Report:
(i) the Aggregate Outstanding Eligible Loan Net Balance (when applicable under the Loan Agreement), the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period Period;
(in each caseii) the Interest, calculated separately Program Fee and Unused Fee;
(iii) the total amount of Collections for Purchased Loans, Dealer the related Collection Period; and
(iv) the aggregate Release Price for the Ineligible Loans and all Loans for the Ineligible Contracts, if any, that was paid in the aggregate)such period.
(c) The No later than the Business Day preceding each Payment Date, the Backup Servicer shall provide written notice to the Trust Collateral Deal Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Deal Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(di) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(eii) 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 Trust Collateral Deal Agent, to succeed within sixty thirty (6030) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.32.03.
(fiii) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Backup Servicer against any Liability which would otherwise be imposed by reason of willful misconductmisfeasance, bad faith or gross negligence in discovering or correcting any Error or in the performance of its duties hereunder or under the Sale and Servicing Loan Agreement. In the event the successor Backup Servicer becomes aware of Errors and/or or Continued Errors which, in the opinion of the successor Backup Servicer impairs its ability to perform its services hereunder, the successor Servicer: (i) Backup Servicer shall promptly notify the Servicer and the Deal Agent of such Errors and/or Continued Errors; Errors and (ii) shall use best efforts may, with the prior consent of the Deal Agent, undertake to reconstruct and reconcile such data as is commercially reasonable it deems appropriate to correct such Errors and/or and Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses Borrower pursuant to Section 5.08(a2.6(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicableLoan Agreement.
(giv) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and (including court costs) and expenses incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of careServicer) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconduct, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(hv) Notwithstanding To the foregoing, if the Servicer’s Data File or the Servicer’s Certificate does not contain sufficient information for extent the Backup Servicer requires any information, supplementary reports or data that is to perform any action hereunderbe provided to it pursuant to the Transaction Documents in order to complete its verification duties, the Backup Servicer shall promptly notify the Servicer of any additional information to be delivered Servicer’s verification duties are conditioned upon timely receipt 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect theretoinformation.
Appears in 1 contract
Samples: Backup Servicing Agreement (Credit Acceptance Corp)
Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contrary, on or before the end of the second Business Day prior to the Distribution each Determination Date, the Backup Servicer will review and confirm that the Servicer’s Certificate is readable and contains all information necessary for Deal Agent shall provide sufficient data to the Backup Servicer to complete its duties pursuant allow the Backup Servicer to this Section 2.2, review and shall review the Servicer’s Certificate to verify the following based solely mathematical accuracy of the Monthly Report on a recalculation an Aggregate Basis related thereto and determine the following:
(i) that such Monthly Report is complete on its face;
(ii) that the amounts credited to and withdrawn from the Collection Account and the balance of information contained such account, as set forth in the Servicer’s Certificaterecords of the Collateral Agent are the same as the amount set forth in the Monthly Report; and
(iii) that the amounts credited to and withdrawn from the Reserve Account and the balance of such account, as set forth in the records of the Collateral Agent are the same as the amount set forth in the Monthly Report.
(b) The Backup Servicer shall, on or before the Determination Date with respect to any Collection Period, verify the mathematical accuracy of the Monthly Report in its entirety, which shall include but not be limited to the following:
(i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notesrelated distribution allocable to principal;
(ii) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the Notesrelated distribution allocable to interest;
(iii) the amount of the related distribution payable out of the Reserve Account RequirementAccount;
(iv) the amount Aggregate Outstanding Eligible Loan Net Balance, the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of each of clauses first through ninth of Section 5.05(b) all Eligible Contracts as of the Sale and Servicing Agreementclose of business on the last day of the preceding Collection Period;
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) aboveoutstanding Capital;
(vi) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and;
(vii) the Class A Interest Carryover Shortfalltotal amount of Collections for the related Collection Period; and
(viii) the aggregate Release Price for the Ineligible Loans and the aggregate Released Contract Price for the Ineligible Contracts, if any, the Class B Interest Carryover Shortfall, if any, and the Class C Interest Carryover Shortfall, if any;
(b) The Backup Servicer shall, on or before the Business Day prior to the Distribution Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to verify the following: the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period (that was paid in each case, calculated separately for Purchased Loans, Dealer Loans and all Loans in the aggregate)such period.
(c) The Backup Servicer shall provide written notice to the Trust Collateral Deal Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Deal Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(di) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “"Liability”") for any action taken or omitted by the Servicer.
(eii) 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 's obligations hereunder, including the obligation, if requested in writing by the Trust Collateral Deal Agent, to succeed within sixty thirty (6030) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(fiii) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “"Continued Errors”"), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Backup Servicer against any Liability which would otherwise be imposed by reason of willful misconductmisfeasance, bad faith or gross negligence in discovering or correcting any Error or in the performance of its duties hereunder or under the Sale and Servicing Loan Agreement. In the event the successor Backup Servicer becomes aware of Errors and/or or Continued Errors which, in the opinion of the successor Backup Servicer impairs its ability to perform its services hereunder, the successor Servicer: (i) shall promptly notify Backup Servicer may, with the Servicer prior consent of such Errors and/or Continued Errors; and (ii) shall use best efforts the Deal Agent, undertake to reconstruct and reconcile such data as is commercially reasonable it deems appropriate to correct such Errors and/or and Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses pursuant to Section 5.08(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicable.
(giv) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s 's fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and court costs) incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of care) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s 's own willful misconductmisfeasance, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(hv) Notwithstanding To the foregoing, if the Servicer’s Data File or the Servicer’s Certificate does not contain sufficient information for extent the Backup Servicer requires any information, supplementary reports or data that is to perform any action hereunderbe provided to it pursuant to the Transaction Documents in order to complete its verification duties, the Backup Servicer shall promptly notify the Servicer of any additional information to be delivered Servicer's verification duties are conditioned upon timely receipt 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect theretoinformation.
Appears in 1 contract
Samples: Backup Servicing Agreement (Credit Acceptance Corporation)
Review and Verification. (a) Notwithstanding anything in Section 2.1 0 to the contrary, on or before the Business Day prior to the Distribution Date, the Backup Servicer will review and confirm that the Servicer’s Certificate is readable and contains all information necessary for the Backup Servicer to complete its duties pursuant to this Section 2.20, and shall review the Servicer’s Certificate to verify the following based solely on a recalculation of information contained in the Servicer’s Certificate:
(i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notes;
(ii) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the Notes;
(iii) the Reserve Account Requirement;
(iv) the amount of each of clauses first through ninth of Section 5.05(b) of the Sale and Servicing Agreement;
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) 0 above;
(vi) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and
(vii) the Class A Interest Carryover Shortfall, if any, the Class B Interest Carryover Shortfall, if any, and the Class C Interest Carryover Shortfall, if any;
(b) The Backup Servicer shall, on or before the Business Day prior to the Distribution Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to verify the following: the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period (in each case, calculated separately for Purchased Loans, Dealer Loans and all Loans in the aggregate).
(c) The Backup Servicer shall provide written notice to the Trust Collateral Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) 0 and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 0 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(d) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(e) 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 Trust Collateral Agent, to succeed within sixty (60) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.30.
(f) Except as otherwise provided in this Agreement, the successor Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Servicer against any Liability which 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 duties hereunder or under the Sale and Servicing Agreement. In the event the successor Servicer becomes aware of Errors and/or Continued Errors which, in the opinion of the successor Servicer impairs its ability to perform its services hereunder, the successor Servicer: (i) shall promptly notify the Servicer of such Errors and/or Continued Errors; and (ii) shall use best efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and/or Continued Errors and prevent future Continued Errors. The successor Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses pursuant to Section 5.08(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicable.
(g) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and court costs) incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of care) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconduct, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(h) Notwithstanding the foregoing, if the Servicer’s Data File or the Servicer’s Certificate 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect thereto.
Appears in 1 contract
Samples: Backup Servicing Agreement (Credit Acceptance Corp)
Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contrary, on or before the Business Day prior to the Distribution Date, the Backup Servicer will review and confirm that the Servicer’s Certificate is readable and contains all information necessary for the Backup Servicer to complete its duties pursuant to this Section 2.2, and shall review the Servicer’s Certificate to verify the following based solely on a recalculation of information contained in the Servicer’s Certificate:
(i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notes;
(ii) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the Notes;
(iii) the Reserve Account Requirement;
(iv) the amount of each of clauses first through ninth of Section 5.05(b) of the Sale and Servicing Agreement;
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance Balance, and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) above;
(vi) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and
(vii) the Class A Interest Carryover Shortfall, if any, the Class B Interest Carryover Shortfall, if any, and the Class C Interest Carryover Shortfall, if any;
(b) The Backup Servicer shall, on or before the Business Day prior to the Distribution Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to verify the following: the Aggregate Outstanding Net Eligible Loan Balance, the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period (in each case, calculated separately for Purchased Loans, Dealer Loans and all Loans in the aggregate).
(c) The Backup Servicer shall provide written notice to the Trust Collateral Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(d) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(e) 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 Trust Collateral Agent, to succeed within sixty thirty (6030) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(f) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Backup Servicer against any Liability which 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 duties hereunder or under the Sale and Servicing Agreement. In the event the successor Backup Servicer becomes aware of Errors and/or Continued Errors which, in the opinion of the successor Backup Servicer impairs its ability to perform its services hereunder, the successor Backup Servicer: (i) shall promptly notify the Servicer of such Errors and/or Continued Errors; and (ii) shall use best efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and/or Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Backup Servicer expenses pursuant to Section 5.08(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicable.
(g) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and court costs) incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of care) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconduct, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(h) Notwithstanding the foregoing, if the Servicer’s Data File or the Servicer’s Certificate 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect thereto.
Appears in 1 contract
Samples: Backup Servicing Agreement (Credit Acceptance Corp)
Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contraryabove, on or before the three (3) Business Day Days prior to the Distribution each Determination Date, the Backup Servicer will review and confirm that the Servicer’s Certificate is readable and contains all information necessary for Collateral Agent shall provide sufficient data to the Backup Servicer to complete its duties pursuant allow the Backup Servicer to this Section 2.2, review on an Aggregate Basis the Monthly Report related thereto and shall review determine the Servicer’s Certificate to verify the following based solely on a recalculation of information contained in the Servicer’s Certificatefollowing:
(i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notesthat such Monthly Report is complete on its face;
(ii) that the amounts credited to and withdrawn from the Collection Account and the balance of such account, as set forth in the records of the Collateral Agent are the same as the amount of set forth in the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the Notes;Monthly Report; and
(iii) that the amounts credited to and withdrawn from the Reserve Account Requirement;
(iv) and the balance of such account, as set forth in the records of the Collateral Agent are the same as the amount of each of clauses first through ninth of Section 5.05(b) of set forth in the Sale and Servicing Agreement;
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) above;
(vi) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and
(vii) the Class A Interest Carryover Shortfall, if any, the Class B Interest Carryover Shortfall, if any, and the Class C Interest Carryover Shortfall, if any;Monthly Report.
(b) The Backup Servicer shall, on or before the Business Day prior to the Distribution Determination Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to verify the Monthly Report in its entirety, which shall include but not be limited to the following: :
(i) the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding relevant Collection Period Period;
(in each caseii) the Dealer Collections, calculated separately Income Collections and Principal Collections, for Purchased Loans, Dealer Loans and all Loans in the aggregate)relevant Collection Period; and
(iii) the Weighted Average Total Advance Rate as of last day of the relevant Collection Period.
(c) The Backup Servicer shall provide written notice to the Trust Collateral Deal Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above), as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Deal Agent and the Collateral Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(di) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “"Liability”") for any action taken or omitted by the Servicer.
(eii) 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 's obligations hereunder, including the obligation, if requested in writing by the Trust Collateral Agent, to succeed within sixty thirty (6030) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(fiii) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “"Continued Errors”"), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Backup Servicer against any Liability which 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 the Sale and Servicing this Agreement. In the event the successor Backup Servicer becomes aware of Errors and/or or Continued Errors whichErrors, in the opinion Backup Servicer shall, with the prior consent of the successor Servicer impairs Collateral Agent, use its ability to perform its services hereunder, the successor Servicer: (i) shall promptly notify the Servicer of such Errors and/or Continued Errors; and (ii) shall use best efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and/or and Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses pursuant to Section 5.08(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicable.
(giv) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, Borrower from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal 's fees, costs and expenses and court costs) incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of care) arising out of claims asserted against the Backup Servicer by third parties on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the date on which the Backup Servicer assumes the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s 's own willful misconductgross negligence, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(h) Notwithstanding the foregoing, if the Servicer’s Data File or the Servicer’s Certificate 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect thereto.
Appears in 1 contract
Samples: Back Up Servicing Agreement (Credit Acceptance Corporation)
Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contrary, on or before the end of the fifth Business Day prior to the Distribution each Payment Date, the Servicer and the Deal Agent shall provide sufficient data to the Backup Servicer will to allow the Backup Servicer to review and confirm that the Servicer’s Certificate such Monthly Report is readable and contains all information necessary for the Backup Servicer to complete its duties pursuant to this Section 2.2. The Backup Servicer shall, and shall on or before the Business Day preceding each Payment Date with respect to any Collection Period, review the Servicer’s Certificate Monthly Report corresponding to such Payment Date to verify the following based solely on a recalculation of information contained in the Servicer’s CertificateMonthly Report:
(i) the amount of the Class A Distributable Principal Distributable Amount, the Class B Distributable Principal Distributable Amount and the Class C Distributable Principal Distributable Amount of the NotesAmount, and each Lender’s ratable share thereof;
(ii) the The amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the NotesAmount, and each Lender’s ratable share thereof;
(iii) the amount of any Reserve Account RequirementAdvance;
(iv) the amount of each of clauses first through ninth of Section 5.05(b) of Aggregate Term Loan Balance, the Sale Class A Loan Balance, the Class B Loan Balance and Servicing Agreementthe Class C Loan Balance;
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) above;
(vi) the total amount of the Servicing Fee for the related Collection Period and unpaid Servicing Fees from prior Collection Periods paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may bePeriod; and
(viivi) the Class A Interest Carryover Shortfall, if any, the Class B Interest Carryover Shortfall, if any, and the Class C Interest Carryover Shortfall, if any;.
(b) The Backup Servicer shall, on or before the Business Day prior to the Distribution preceding each Payment Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to File and verify the following: following as reported in the Monthly Report:
(i) the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period Period;
(in each case, calculated separately ii) the total amount of Collections for Purchased Loans, Dealer the related Collection Period; and
(iii) the aggregate Release Price for the Ineligible Loans and all Loans for the Ineligible Contracts, if any, that was paid in the aggregate)such period.
(c) The No later than the Business Day preceding each Payment Date, the Backup Servicer shall provide written notice to the Trust Collateral Deal Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Deal Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(di) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(eii) 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 Trust Collateral Deal Agent, to succeed within sixty (60) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(fiii) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Backup Servicer against any Liability which 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 duties hereunder or under the Sale and Servicing Loan Agreement. In the event the successor Backup Servicer becomes aware has actual knowledge of Errors and/or or Continued Errors which, in the opinion of the successor Backup Servicer impairs its ability to perform its services hereunder, the successor Servicer: (i) Backup Servicer shall promptly notify the Servicer and the Deal Agent of such Errors and/or Continued Errors; Errors and (ii) shall use best efforts may, with the prior consent of the Deal Agent, undertake to reconstruct and reconcile such data as is commercially reasonable it deems appropriate to correct such Errors and/or and Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses Borrower pursuant to Section 5.08(a2.7(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture2.7(b), as applicable, of the Loan Agreement.
(giv) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and court costs) including those incurred in connection with (i) any enforcement (including any action, claim or 7 suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of careServicer) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconduct, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(hv) Notwithstanding To the foregoing, if the Servicer’s Data File or the Servicer’s Certificate does not contain sufficient information for extent the Backup Servicer requires any information, supplementary reports or data that is to perform any action hereunderbe provided to it pursuant to the Transaction Documents in order to complete its verification duties, the Backup Servicer shall promptly notify the Servicer of any additional information to be delivered Servicer’s verification duties are conditioned upon timely receipt 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect theretoinformation.
Appears in 1 contract
Samples: Backup Servicing Agreement (Credit Acceptance Corp)
Review and Verification. (a) Notwithstanding anything in Section 2.1 hereof to the contrary, on or before the end of the fifth (5th) Business Day prior to the Distribution each Payment Date, the Servicer and the Deal Agent shall provide sufficient data to the Backup Servicer will to allow the Backup Servicer to review and confirm that the Servicer’s Certificate such Monthly Report is readable and contains all information necessary for the Backup Servicer to complete its duties pursuant to this Section 2.2. The Backup Servicer shall, and shall on or before the Business Day preceding each Payment Date with respect to any Collection Period, review the Servicer’s Certificate Monthly Report corresponding to such Payment Date to verify the following based solely on a recalculation of information contained in the Servicer’s Certificatesuch Monthly Report:
(i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notes;
(ii) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the NotesReserve Advance;
(iii) the Reserve Account Requirement;outstanding Capital; and
(iv) the amount of each of clauses first through ninth of Section 5.05(b) of the Sale and Servicing Agreement;
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) above;
(vi) the total amount of the Servicing Fee paid for the related Collection Period and unpaid Servicing Fees from prior Collection Periods payable to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and
(vii) the Class A Interest Carryover Shortfall, if any, the Class B Interest Carryover Shortfall, if any, and the Class C Interest Carryover Shortfall, if any;Period.
(b) The Backup Servicer shall, on or before the Business Day prior to the Distribution preceding each Payment Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to File and verify the following: accuracy of the following as reported in the Monthly Report:
(i) the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period Period;
(in each case, calculated separately ii) the accrued and unpaid Interest and Yield;
(iii) the total amount of Collections for Purchased Loans, Dealer the related Collection Period; and
(iv) the aggregate Release Price for the Ineligible Loans and all Loans for the Ineligible Contracts, if any, that was paid in the aggregate)such period.
(c) The No later than the second (2nd) Business Day preceding each Payment Date, the Backup Servicer shall provide written notice to the Trust Collateral Deal Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs paragraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly (but in any event within two (2) Business Days) notify the Trust Collateral Deal Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(di) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(eii) 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 Trust Collateral Deal Agent, to succeed within on the date specified in accordance with the Loan Agreement (but in any event no later than sixty (60) days (or such earlier number of days as may be agreed to by the Backup Servicerreceipt a Servicer Termination Notice) to the duties and obligations of the Servicer pursuant to Section 2.32.3 hereof.
(fiii) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Backup Servicer against any Liability which 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 duties hereunder or under the Sale and Servicing Loan Agreement. In the event the successor Backup Servicer becomes aware of Errors and/or or Continued Errors which, in the opinion of the successor Backup Servicer impairs its ability to perform its services hereunder, the successor Servicer: (i) Backup Servicer shall promptly notify the Servicer and the Deal Agent of such Errors and/or Continued Errors; Errors and (ii) shall use best efforts may, with the prior consent of the Deal Agent, undertake to reconstruct and reconcile such data as is commercially reasonable it deems appropriate to correct such Errors and/or and Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses Borrower pursuant to Section 5.08(a2.7(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicableLoan Agreement.
(giv) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and (including court costs) and expenses incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of careServicer) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconduct, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(hv) Notwithstanding To the foregoing, if the Servicer’s Data File or the Servicer’s Certificate does not contain sufficient information for extent the Backup Servicer requires any information, supplementary reports or data that is to perform any action hereunderbe provided to it pursuant to the Transaction Documents in order to complete its verification duties, the Backup Servicer shall promptly notify the Servicer of any additional information to be delivered Servicer’s verification duties are conditioned upon timely receipt 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect theretoinformation.
Appears in 1 contract
Samples: Backup Servicing Agreement (Credit Acceptance Corp)
Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contrary, on or before the end of the fifth Business Day prior to the Distribution each Payment Date, the Backup Servicer will review and confirm that the Servicer’s Certificate is readable and contains all information necessary for each Lender shall provide sufficient data to the Backup Servicer to complete its duties pursuant allow the Backup Servicer to this Section 2.2, review and shall review the Servicer’s Certificate to verify the following based solely mathematical accuracy of the Monthly Report on a recalculation of information contained an Aggregate Basis related thereto and:
(i) confirm that such Monthly Report is complete on its face;
(ii) verify that the amounts to be withdrawn from the Principal Collection Account, as set forth in the Servicer’s Certificaterecords of the Collateral Agent are the same as the amount set forth in the Monthly Report;
(iii) verify that the amounts to be withdrawn from the Collection Account, as set forth in the records of the Collateral Agent are the same as the amount set forth in the Monthly Report; and
(iv) verify that the amounts to be withdrawn from the Reserve Account, as set forth in the records of the Collateral Agent are the same as the amount set forth in the Monthly Report.
(b) The Backup Servicer shall, on or before the Determination Date with respect to any Collection Period, review the Monthly Report to verify the following:
(i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notesrelated distribution allocable to principal;
(ii) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the Notesrelated distribution allocable to Yield;
(iii) the amount of the related distribution payable out of the Reserve Account RequirementAccount;
(iv) the amount Aggregate Outstanding Eligible Loan Net Balance, the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of each of clauses first through ninth of Section 5.05(b) all Eligible Contracts as of the Sale and Servicing Agreementclose of business on the last day of the preceding Collection Period;
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) aboveoutstanding Capital;
(vi) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and
(vii) the Class A Interest Carryover Shortfall, if any, total amount of Collections for the Class B Interest Carryover Shortfall, if any, and the Class C Interest Carryover Shortfall, if any;
(b) The Backup Servicer shall, on or before the Business Day prior to the Distribution Date with respect to any related Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to verify the following: the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period (in each case, calculated separately for Purchased Loans, Dealer Loans and all Loans in the aggregate).
(c) The Backup Servicer shall provide written notice to the Trust Collateral Agent and Indenture Trustee Lenders with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs paragraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Agent and Indenture Trustee Lenders of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(di) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(eii) 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 Trust Collateral Deal Agent, to succeed within sixty thirty (6030) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(fiii) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Servicer against any Liability which 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 duties hereunder or under the Sale and Servicing Agreement. In the event the successor Backup Servicer becomes aware of Errors and/or or Continued Errors which, in the opinion of the successor Backup Servicer impairs its ability to perform its services hereunder, the successor Servicer: (i) Backup Servicer shall promptly notify the Servicer and the Lenders of such Errors and/or Continued Errors; Errors and may, with the prior consent of the Deal Agent (ii) shall use best efforts acting at the direction of the Required Lenders), undertake to reconstruct and reconcile such data as is commercially reasonable it deems appropriate to correct such Errors and/or and Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses Borrower pursuant to Section 5.08(a2.7(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicableLoan Agreement.
(giv) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and court costs) incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of careServicer) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconduct, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful 22031971.5 5 misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(hv) Notwithstanding To the foregoing, if the Servicer’s Data File or the Servicer’s Certificate does not contain sufficient information for extent the Backup Servicer requires any information, supplementary reports or data that is to perform any action hereunderbe provided to it pursuant to the Transaction Documents in order to complete its verification duties, the Backup Servicer shall promptly notify the Servicer of any additional information to be delivered Servicer’s verification duties are conditioned upon timely receipt 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect theretoinformation.
Appears in 1 contract
Samples: Backup Servicing Agreement (Credit Acceptance Corp)
Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contrary, on or before the end of the fifth Business Day prior to the Distribution each Payment Date, the Servicer and the Deal Agent shall provide sufficient data to the Backup Servicer will to allow the Backup Servicer to review and confirm that the Servicer’s Certificate such Monthly Report is readable and contains all information necessary for the Backup Servicer to complete its duties pursuant to this Section 2.2. The Backup Servicer shall, and shall on or before the second (2nd) Business Day preceding each Payment Date with respect to any Collection Period, review the Servicer’s Certificate Monthly Report corresponding to such Payment Date to verify the following based solely on a recalculation of information contained in the Servicer’s Certificatesuch Monthly Report:
(i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notes;
(ii) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the NotesReserve Advance;
(iii) the Reserve Account Requirement;outstanding Capital; and
(iv) the amount of each of clauses first through ninth of Section 5.05(b) of the Sale and Servicing Agreement;
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) above;
(vi) the total amount of the Servicing Fee paid for the related Collection Period and unpaid Servicing Fees from prior Collection Periods payable to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and
(vii) the Class A Interest Carryover Shortfall, if any, the Class B Interest Carryover Shortfall, if any, and the Class C Interest Carryover Shortfall, if any;Period.
(b) The Backup Servicer shall, on or before the second (2nd) Business Day prior to the Distribution preceding each Payment Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to File and verify the following: accuracy of the following as reported in the Monthly Report:
(i) the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period Period;
(in each case, calculated separately ii) the accrued and unpaid Interest and Yield;
(iii) the total amount of Collections for Purchased Loans, Dealer the related Collection Period; and
(iv) the aggregate Release Price for the Ineligible Loans and all Loans for the Ineligible Contracts, if any, that was paid in the aggregate)such period.
(c) The No later than the second (2nd) Business Day preceding each Payment Date, the Backup Servicer shall provide written notice to the Trust Collateral Deal Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly (but in any event within two (2) Business Days) notify the Trust Collateral Deal Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(di) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(eii) 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 Trust Collateral Deal Agent, to succeed within sixty thirty (6030) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(fiii) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Backup Servicer against any Liability which 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 duties hereunder or under the Sale and Servicing Loan Agreement. In the event the successor Backup Servicer becomes aware has actual knowledge of Errors and/or or Continued Errors which, in the opinion of the successor Backup Servicer impairs its ability to perform its services hereunder, the successor Servicer: (i) Backup Servicer shall promptly notify the Servicer and the Deal Agent of such Errors and/or Continued Errors; Errors and (ii) shall use best efforts may, with the prior consent of the Deal Agent, undertake to reconstruct and reconcile such data as is commercially reasonable it deems appropriate to correct such Errors and/or and Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses Borrower pursuant to Section 5.08(a2.7(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicableLoan Agreement.
(giv) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and court costs) incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of care) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconduct, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(hv) Notwithstanding To the foregoing, if the Servicer’s Data File or the Servicer’s Certificate does not contain sufficient information for extent the Backup Servicer requires any information, supplementary reports or data that is to perform any action hereunderbe provided to it pursuant to the Transaction Documents in order to complete its verification duties, the Backup Servicer shall promptly notify the Servicer of any additional information to be delivered Servicer’s verification duties are conditioned upon timely receipt 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect theretoinformation.
Appears in 1 contract
Samples: Backup Servicing Agreement (Credit Acceptance Corp)
Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contrary, on or before the end of the second Business Day prior to the Distribution each Determination Date, the Servicer and the Trust Collateral Agent shall provide sufficient data to the Backup Servicer will to allow the Backup Servicer to review and confirm that to verify the mathematical accuracy of the Servicer’s Certificate is readable on an Aggregate Basis related thereto and contains all information necessary for determine the Backup Servicer to complete its duties pursuant to this Section 2.2, and shall review the following:
(i) that such Servicer’s Certificate is complete on its face;
(ii) that the amounts credited to verify and withdrawn from the following based solely on a recalculation Collection Account and the balance of information contained such account, as set forth in the records of the Trust Collateral Agent are the same as the amount set forth in the Servicer’s Certificate; and
(iii) that the amounts credited to and withdrawn from the Reserve Account and the balance of such account, as set forth in the records of the Trust Collateral Agent are the same as the amount set forth in the Servicer’s Certificate.
(b) The Backup Servicer shall, on or before the day prior to the Distribution Date with respect to any Collection Period, verify the mathematical accuracy of the Servicer’s Certificate in its entirety, which shall include but not be limited to the following:
(i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notesrelated distribution allocable to principal;
(ii) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the Notesrelated distribution allocable to interest;
(iii) the amount of the related distribution payable out of the Reserve Account RequirementAccount;
(iv) the amount Aggregate Outstanding Net Eligible Loan Balance, the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of each of clauses first through ninth of Section 5.05(b) all Eligible Contracts as of the Sale and Servicing Agreementclose of business on the last day of the preceding Collection Period;
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance Balance, and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) above;
(vi) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and;
(vii) the Class A Interest Carryover Shortfall, if any, and the Class B Interest Carryover Shortfall, if any, ;
(viii) the total amount of Collections for the related Collection Period; and
(ix) the aggregate Purchase Amount for the Ineligible Loans and the Class C Interest Carryover ShortfallIneligible Contracts, if any;
(b) The Backup Servicer shall, on or before the Business Day prior to the Distribution Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to verify the following: the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period (that was paid in each case, calculated separately for Purchased Loans, Dealer Loans and all Loans in the aggregate)such period.
(c) The Backup Servicer shall provide written notice to the Trust Collateral Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(di) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(eii) 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 Trust Collateral Agent, to succeed within sixty thirty (6030) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(fiii) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Backup Servicer against any Liability which would otherwise be imposed by reason of willful misconductmisfeasance, bad faith or gross negligence in discovering or correcting any Error or in the performance of its duties hereunder or under the Sale and Servicing Agreement. In the event the successor Backup Servicer becomes aware of Errors and/or Continued Errors which, in the opinion of the successor Backup Servicer impairs its ability to perform its services hereunder, the successor Backup Servicer: (i) shall promptly notify the Servicer of such Errors and/or Continued Errors; and (ii) shall may use its best efforts to reconstruct and reconcile such data as is commercially reasonable it deems appropriate to correct such Errors and/or Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses pursuant to Section 5.08(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicable.
(giv) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and court costs) incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of care) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconductmisfeasance, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(hv) Notwithstanding To the foregoing, if the Servicer’s Data File or the Servicer’s Certificate does not contain sufficient information for extent the Backup Servicer requires any information supplementing reports or data that is to perform any action hereunderbe provided to it pursuant to the Basic Documents in order to complete its verification duties, the Backup Servicer shall promptly notify the Servicer of any additional information to be delivered Servicer’s verification duties are conditioned upon timely receipt 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect theretoinformation.
Appears in 1 contract
Samples: Backup Servicing Agreement (Credit Acceptance Corp)
Review and Verification. (a) Notwithstanding anything in Section 2.1 2.01 to the contrary, on or before the end of the fifth Business Day prior to the Distribution each Payment Date, the Backup Servicer will review and confirm that the Servicer’s Certificate is readable and contains all information necessary for Deal Agent shall provide sufficient data to the Backup Servicer to complete its duties pursuant allow the Backup Servicer to this Section 2.2, review and shall review the Servicer’s Certificate to verify the following based solely mathematical accuracy of the Monthly Report on a recalculation an Aggregate Basis related thereto and:
(i) confirm that such Monthly Report is complete on its face;
(ii) verify that the amounts to be withdrawn from the Collection Account and the balance of information contained such account, as set forth in the Servicer’s Certificaterecords of the Collateral Agent are the same as the amount set forth in the Monthly Report; and
(iii) verify that the amounts credited to and withdrawn from the Reserve Account and the balance of such account, as set forth in the records of the Collateral Agent are the same as the amount set forth in the Monthly Report.
(b) The Backup Servicer shall, on or before the Determination Date with respect to any Collection Period, review the Monthly Report to verify the following:
(i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notesrelated distribution allocable to principal;
(ii) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the Notesrelated distribution allocable to interest;
(iii) the amount of the related distribution payable out of the Reserve Account RequirementAccount;
(iv) the amount Aggregate Outstanding Eligible Loan Net Balance, the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of each of clauses first through ninth of Section 5.05(b) all Eligible Contracts as of the Sale and Servicing Agreementclose of business on the last day of the preceding Collection Period;
(v) the Aggregate Note BalanceLoan Amount, the Class A Note Balance, Aggregate Loan Amount and the Class B Note Balance and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) aboveAggregate Loan Amount;
(vi) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and
(vii) the Class A Interest Carryover Shortfall, if any, total amount of Collections for the Class B Interest Carryover Shortfall, if any, and the Class C Interest Carryover Shortfall, if any;
(b) The Backup Servicer shall, on or before the Business Day prior to the Distribution Date with respect to any related Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to verify the following: the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period (in each case, calculated separately for Purchased Loans, Dealer Loans and all Loans in the aggregate).
(c) The No later than the Business Day preceding each Payment Date, the Backup Servicer shall provide written notice to the Trust Collateral Deal Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Deal Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(di) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(eii) 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 Trust Collateral Deal Agent, to succeed within sixty thirty (6030) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.32.03.
(fiii) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Servicer against any Liability which 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 duties hereunder or under the Sale and Servicing Agreement. In the event the successor Backup Servicer becomes aware of Errors and/or or Continued Errors which, in the opinion of the successor Backup Servicer impairs its ability to perform its services hereunder, the successor Servicer: (i) Backup Servicer shall promptly notify the Servicer and the Deal Agent of such Errors and/or Continued Errors; Errors and (ii) shall use best efforts may, with the prior consent of the Deal Agent, undertake to reconstruct and reconcile such data as is commercially reasonable it deems appropriate to correct such Errors and/or and Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses Borrower pursuant to Section 5.08(a2.6(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicableLoan Agreement.
(giv) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and (including court costs) and expenses incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of careServicer) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconduct, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(hv) Notwithstanding To the foregoing, if the Servicer’s Data File or the Servicer’s Certificate does not contain sufficient information for extent the Backup Servicer requires any information, supplementary reports or data that is to perform any action hereunderbe provided to it pursuant to the Transaction Documents in order to complete its verification duties, the Backup Servicer shall promptly notify the Servicer of any additional information to be delivered Servicer’s verification duties are conditioned upon timely receipt 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect theretoinformation.
Appears in 1 contract
Samples: Backup Servicing Agreement (Credit Acceptance Corp)
Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contrary, on or before the end of the second Business Day prior to the Distribution each Determination Date, the Backup Servicer will review and confirm that the Servicer’s Certificate is readable and contains all information necessary for Trust Collateral Agent shall provide sufficient data to the Backup Servicer to complete its duties pursuant allow the Backup Servicer to this Section 2.2, and shall review on an Aggregate Basis the Servicer’s 's Certificate related thereto and determine the following:
(i) that such Servicer's Certificate is complete on its face;
(ii) that the amounts credited to verify and withdrawn from the following based solely on a recalculation Collection Account and the balance of information contained such account, as set forth in the records of the Trust Collateral Agent are the same as the amount set forth in the Servicer’s 's Certificate; and
(iii) that the amounts credited to and withdrawn from the Reserve Account and the balance of such account, as set forth in the records of the Trust Collateral Agent are the same as the amount set forth in the Servicer's Certificate.
(b) The Backup Servicer shall, on or before the Determination Date with respect to any Collection Period, verify the Servicer's Certificate in its entirety, which shall include but not be limited to the following:
(i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notesrelated distribution allocable to principal;
(ii) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the Notesrelated distribution allocable to interest;
(iii) the amount of the related distribution payable out of the Reserve Account RequirementAccount;
(iv) the amount Aggregate Outstanding Net Eligible Loan Balance, the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of each of clauses first through ninth of Section 5.05(b) all Eligible Contracts as of the Sale and Servicing Agreementclose of business on the last day of the preceding Collection Period;
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) abovepool factor;
(vi) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and;
(vii) the Class A Interest Carryover Shortfall, if any, ;
(viii) the Class B Interest Carryover Shortfalltotal amount of Collections for the related Collection Period; and
(ix) the aggregate Purchase Amount for the Ineligible Loans and Ineligible Contracts, if any, and the Class C Interest Carryover Shortfall, if any;
(b) The Backup Servicer shall, on or before the Business Day prior to the Distribution Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to verify the following: the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period (that was paid in each case, calculated separately for Purchased Loans, Dealer Loans and all Loans in the aggregate)such period.
(c) The Backup Servicer shall provide written notice to the Class A Insurer and the Trust Collateral Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Agent Class A Insurer and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such informationdiscrepancy.
(di) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “"Liability”") for any action taken or omitted by the Servicer.
(eii) 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 's obligations hereunder, including the obligation, if requested in writing by the Trust Collateral AgentClass A Insurer, to succeed within sixty thirty (6030) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(fiii) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “"Continued Errors”"), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Backup Servicer against any Liability which would otherwise be imposed by reason of willful misconductmisfeasance, bad faith or gross negligence in discovering or correcting any Error or in the performance of its duties hereunder or under the Sale and Servicing Agreement. In the event the successor Backup Servicer becomes aware of Errors and/or or Continued Errors which, in the opinion of the successor Backup Servicer impairs its ability to perform its services hereunder, the successor Servicer: (i) shall promptly notify Backup Servicer may, with the Servicer prior consent of such Errors and/or Continued Errors; and (ii) shall use best efforts the Class A Insurer, undertake to reconstruct and reconcile such data as is commercially reasonable it deems appropriate to correct such Errors and/or and Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses pursuant to Section 5.08(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicable.
(giv) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, Issuer from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s 's fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and court costs) incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of care) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s 's own willful misconductmisfeasance, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(h) Notwithstanding the foregoing, if the Servicer’s Data File or the Servicer’s Certificate 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect thereto.
Appears in 1 contract
Samples: Backup Servicing Agreement (Credit Acceptance Corporation)
Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contraryabove, on or before the one (1) Business Day prior to the Distribution each Determination Date, the Backup Servicer will review and confirm that the Servicer’s Certificate is readable and contains all information necessary for Collateral Agent shall provide sufficient data to the Backup Back-Up Servicer to complete its duties pursuant allow the Back-Up Servicer to this Section 2.2, and shall review the Monthly Servicer’s 's Certificate to verify related thereto and determine the following based solely on a recalculation of information contained in the Servicer’s Certificatefollowing:
(i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notesthat such Monthly Servicer's Certificate is complete on its face;
(ii) that the amounts credited to and withdrawn from the Collection Account and the balance of such account, as set forth in the records of the Collateral Agent are the same as the amount of set forth in the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the Notes;Monthly Servicer's Certificate; and
(iii) that the amounts credited to and withdrawn from the Reserve Account Requirement;
(iv) and the balance of such account, as set forth in the records of the Collateral Agent are the same as the amount of each of clauses first through ninth of Section 5.05(b) of set forth in the Sale and Servicing Agreement;
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) above;
(vi) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and
(vii) the Class A Interest Carryover Shortfall, if any, the Class B Interest Carryover Shortfall, if any, and the Class C Interest Carryover Shortfall, if any;Monthly Servicer's Certificate.
(b) The Backup Back-Up Servicer shall, on or before the Business Day prior to the Distribution Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to verify the Monthly Servicer's Certificate in its entirety, which shall include but not be limited to the following: :
(i) the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding relevant Collection Period Period;
(in each caseii) the Dealer Collections, calculated separately Income Collections and Principle Collections, for Purchased Loans, Dealer Loans and all Loans in the aggregate)relevant Collection Period;
(iii) the Weighted Average Advance Rate as of last day of the relevant Collection Period.
(c) The Backup Servicer shall provide written notice to the Trust Collateral Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above), as calculated by the Servicer, from that determined or calculated by the Backup Back-Up Servicer, the Backup Back-Up Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Back-Up Servicer and the Servicer are unable to resolve such discrepancy, the Backup Back-Up Servicer shall promptly notify the Trust Agent and the Collateral Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(di) Other than as specifically set forth elsewhere in this Agreement, the Backup Back-Up Servicer shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer and shall have no duty, responsibility, obligation, or liability (collectively “"Liability”") for any action taken or omitted by the Servicer.
(eii) The Backup Back-Up Servicer shall consult with the Servicer as may be necessary from time to time to perform or carry out the Backup Back-Up Servicer’s 's obligations hereunder, including the obligation, if requested in writing by the Trust Collateral Agent, to succeed within sixty thirty (6030) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(fiii) Except as otherwise provided in this Agreement, the successor Back-up Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Back-up Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Back-up Servicer making or continuing any Errors (collectively, “"Continued Errors”"), the successor Back-up Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Back-up Servicer against any Liability which 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 the Sale and Servicing this Agreement. In the event the successor Back-up Servicer becomes aware of Errors and/or or Continued Errors whichErrors, in the opinion Back-up Servicer shall, with the prior consent of the successor Servicer impairs Collateral Agent, use its ability to perform its services hereunder, the successor Servicer: (i) shall promptly notify the Servicer of such Errors and/or Continued Errors; and (ii) shall use best efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and/or and Continued Errors and prevent future Continued Errors. The successor Back-up Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses pursuant to Section 5.08(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicable.
(giv) The Backup Back-Up Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, Debtor from and against all claims, damages, losses or expenses reasonably incurred by the Backup Back-Up Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal 's fees, costs and expenses and court costs) incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of care) arising out of claims asserted against the Backup Back-Up Servicer by third parties on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Datedate on which the Back-Up Servicer assumes the duties of Servicer hereunder, except for any claims, damages, losses or expenses arising from the Backup Back-Up Servicer’s 's own willful misconductgross negligence, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(h) Notwithstanding the foregoing, if the Servicer’s Data File or the Servicer’s Certificate 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect thereto.
Appears in 1 contract
Samples: Back Up Servicing Agreement (Credit Acceptance Corporation)
Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contrary, on or before the end of the fifth Business Day prior to the Distribution each Payment Date, the Servicer and the Deal Agent shall provide sufficient data to the Backup Servicer will to allow the Backup Servicer to review and confirm that the Servicer’s Certificate such Monthly Report is readable and contains all information necessary for the Backup Servicer to complete its duties pursuant to this Section 2.2. The Backup Servicer shall, and shall on or before the Business Day preceding each Payment Date with respect to any Collection Period, review the Servicer’s Certificate Monthly Report to verify the following based solely on a recalculation of information contained in the Servicer’s CertificateMonthly Report:
(i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notes;
(ii) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the NotesReserve Advance;
(iii) the Reserve Account Requirement;outstanding Capital; and
(iv) the amount of each of clauses first through ninth of Section 5.05(b) of the Sale and Servicing Agreement;
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) above;
(vi) the total amount of the Servicing Fee for the related Collection Period and unpaid Servicing Fees from prior Collection Periods paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and
(vii) the Class A Interest Carryover Shortfall, if any, the Class B Interest Carryover Shortfall, if any, and the Class C Interest Carryover Shortfall, if any;Period.
(b) The Backup Servicer shall, on or before the Business Day prior to the Distribution preceding each Payment Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to File and verify the following: following as reported in the Monthly Report:
(i) the Aggregate Outstanding Eligible Loan Net Balance (when applicable under the Loan Agreement), the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period Period;
(in each case, calculated separately ii) the Yield;
(iii) the total amount of Collections for Purchased Loans, Dealer the related Collection Period; and
(iv) the aggregate Release Price for the Ineligible Loans and all Loans for the Ineligible Contracts, if any, that was paid in the aggregate)such period.
(c) The No later than the Business Day preceding each Payment Date, the Backup Servicer shall provide written notice to the Trust Collateral Deal Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Deal Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(di) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(eii) 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 Trust Collateral Deal Agent, to succeed within sixty thirty (6030) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(fiii) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Backup Servicer against any Liability which would otherwise be imposed by reason of willful misconductmisfeasance, bad faith or gross negligence in discovering or correcting any Error or in the performance of its duties hereunder or under the Sale and Servicing Loan Agreement. In the event the successor Backup Servicer becomes aware has actual knowledge of Errors and/or or Continued Errors which, in the opinion of the successor Backup Servicer impairs its ability to perform its services hereunder, the successor Servicer: (i) Backup Servicer shall promptly notify the Servicer and the Deal Agent of such Errors and/or Continued Errors; Errors and (ii) shall use best efforts may, with the prior consent of the Deal Agent, undertake to reconstruct and reconcile such data as is commercially reasonable it deems appropriate to correct such Errors and/or and Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses Borrower pursuant to Section 5.08(a2.7(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicableLoan Agreement.
(giv) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and court costs) including those incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of careServicer) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconduct, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(hv) Notwithstanding To the foregoing, if the Servicer’s Data File or the Servicer’s Certificate does not contain sufficient information for extent the Backup Servicer requires any information, supplementary reports or data that is to perform any action hereunderbe provided to it pursuant to the Transaction Documents in order to complete its verification duties, the Backup Servicer shall promptly notify the Servicer of any additional information to be delivered Servicer’s verification duties are conditioned upon timely receipt 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect theretoinformation.
Appears in 1 contract
Samples: Backup Servicing Agreement (Credit Acceptance Corp)
Review and Verification. (ai) Notwithstanding anything in Section 2.1 to the contrary, on or before the Business Day prior to the Distribution Date, the Backup Servicer will review and confirm that the Servicer’s Certificate is readable and contains all information necessary for the Backup Servicer to complete its duties pursuant to this Section 2.2, and shall review the Servicer’s Certificate to verify the following based solely on a recalculation of information contained in the Servicer’s Certificate:
(i1) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notes;
(ii2) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the Notes;
(iii3) the Reserve Account Requirement;
(iv4) the amount of each of clauses first through ninth of Section 5.05(b) of the Sale and Servicing Agreement;
(v5) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance Balance, and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) above;
(vi6) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and
(vii7) the Class A Interest Carryover Shortfall, if any, the Class B Interest Carryover Shortfall, if any, and the Class C Interest Carryover Shortfall, if any;
(bii) The Backup Servicer shall, on or before the Business Day prior to the Distribution Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to verify the following: the Aggregate Outstanding Net Eligible Loan Balance, the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period (in each case, calculated separately for Purchased Loans, Dealer Loans and all Loans in the aggregate).
(ciii) The Backup Servicer shall provide written notice to the Trust Collateral Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(div) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(ev) 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 Trust Collateral Agent, to succeed within sixty thirty (6030) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(fvi) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Backup Servicer against any Liability which 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 duties hereunder or under the Sale and Servicing Agreement. In the event the successor Backup Servicer becomes aware of Errors and/or Continued Errors which, in the opinion of the successor Backup Servicer impairs its ability to perform its services hereunder, the successor Backup Servicer: (i) shall promptly notify the Servicer of such Errors and/or Continued Errors; and (ii) shall use best efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and/or Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Backup Servicer expenses pursuant to Section 5.08(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicable.
(gvii) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and court costs) incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of care) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconduct, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(hviii) Notwithstanding the foregoing, if the Servicer’s Data File or the Servicer’s Certificate 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect thereto.
Appears in 1 contract
Samples: Backup Servicing Agreement (Credit Acceptance Corp)
Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contrary, on or before the end of the fifth Business Day prior to the Distribution each Payment Date, the Servicer and the Deal Agent shall provide sufficient data to the Backup Servicer will to allow the Backup Servicer to review and confirm that the Servicer’s Certificate such Monthly Report is readable and contains all information necessary for the Backup Servicer to complete its duties pursuant to this Section 2.2. The Backup Servicer shall, and shall on or before the Business Day preceding each Payment Date with respect to any Collection Period, review the Servicer’s Certificate Monthly Report to verify the following based solely on a recalculation of information contained in the Servicer’s CertificateMonthly Report:
(i) the amount of the Class A Monthly Principal Distributable Payment Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notes;
(ii) the amount of the Class A Interest Distributable Additional Principal Payment Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the Notes;
(iii) the Reserve Account RequirementAdvance;
(iv) the amount of each of clauses first through ninth of Section 5.05(b) of the Sale and Servicing Agreement;outstanding Capital; and
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) above;
(vi) the total amount of the Servicing Fee for the related Collection Period and unpaid Servicing Fees from prior Collections periods paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and
(vii) the Class A Interest Carryover Shortfall, if any, the Class B Interest Carryover Shortfall, if any, and the Class C Interest Carryover Shortfall, if any;Period.
(b) The Backup Servicer shall, on or before the Business Day prior to the Distribution preceding each Payment Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to File and verify the following: following as reported in the Monthly Report:
(i) the Aggregate Outstanding Eligible Loan Net Balance (when applicable under the Loan Agreement), the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period Period;
(in each caseii) the Yield, calculated separately Program Fee and Unused Fee;
(iii) the total amount of Collections for Purchased Loans, Dealer the related Collection Period; and
(iv) the aggregate Release Price for the Ineligible Loans and all Loans for the Ineligible Contracts, if any, that was paid in the aggregate)such period.
(c) The No later than the Business Day preceding each Payment Date, the Backup Servicer shall provide written notice to the Trust Collateral Deal Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Deal Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(di) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(eii) 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 Trust Collateral Deal Agent, to succeed within sixty thirty (6030) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(fiii) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Backup Servicer against any Liability which would otherwise be imposed by reason of willful misconductmisfeasance, bad faith or gross negligence in discovering or correcting any Error or in the performance of its duties hereunder or under the Sale and Servicing Loan Agreement. In the event the successor Backup Servicer becomes aware of Errors and/or or Continued Errors which, in the opinion of the successor Backup Servicer impairs its ability to perform its services hereunder, the successor Servicer: (i) Backup Servicer shall promptly notify the Servicer and the Deal Agent of such Errors and/or Continued Errors; Errors and (ii) shall use best efforts may, with the prior consent of the Deal Agent, undertake to reconstruct and reconcile such data as is commercially reasonable it deems appropriate to correct such Errors and/or and Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses Borrower pursuant to Section 5.08(a2.7(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicableLoan Agreement.
(giv) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and (including court costs) and expenses incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of careServicer) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconduct, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(hv) Notwithstanding To the foregoing, if the Servicer’s Data File or the Servicer’s Certificate does not contain sufficient information for extent the Backup Servicer requires any information, supplementary reports or data that is to perform any action hereunderbe provided to it pursuant to the Transaction Documents in order to complete its verification duties, the Backup Servicer shall promptly notify the Servicer of any additional information to be delivered Servicer’s verification duties are conditioned upon timely receipt 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect theretoinformation.
Appears in 1 contract
Samples: Backup Servicing Agreement (Credit Acceptance Corp)
Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contrary, on or before the third Business Day prior of each month, the Servicer and the Trust Collateral Agent shall provide sufficient data to the Distribution Date, the Backup Servicer will to allow the Backup Servicer to review and confirm that to verify the mathematical accuracy of the Servicer’s Certificate is readable on an Aggregate Basis related thereto and contains all information necessary for determine the Backup Servicer to complete its duties pursuant to this Section 2.2, and shall review the following:
(i) that such Servicer’s Certificate is complete on its face;
(ii) that the amounts credited to verify and withdrawn from the following based solely on a recalculation Collection Account and the balance of information contained such account, as set forth in the records of the Trust Collateral Agent are the same as the amount set forth in the Servicer’s Certificate; and
(iii) that the amounts credited to and withdrawn from the Reserve Account and the balance of such account, as set forth in the records of the Trust Collateral Agent are the same as the amount set forth in the Servicer’s Certificate.
(b) The Backup Servicer shall, on or before the day prior to the Distribution Date with respect to any Collection Period, verify the mathematical accuracy of the Servicer’s Certificate in its entirety, which shall include but not be limited to the following:
(i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notesrelated distribution allocable to principal;
(ii) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the Notesrelated distribution allocable to interest;
(iii) the amount of the related distribution payable out of the Reserve Account RequirementAccount;
(iv) the amount Aggregate Outstanding Net Eligible Loan Balance, the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of each of clauses first through ninth of Section 5.05(b) all Eligible Contracts as of the Sale and Servicing Agreementclose of business on the last day of the preceding Collection Period;
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance Balance, and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) above;
(vi) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and;
(vii) the Class A Interest Carryover Shortfall, if any, and the Class B Interest Carryover Shortfall, if any, ;
(viii) the total amount of Collections for the related Collection Period; and
(ix) the aggregate Purchase Amount for the Ineligible Loans and the Class C Interest Carryover ShortfallIneligible Contracts, if any;
(b) The Backup Servicer shall, on or before the Business Day prior to the Distribution Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to verify the following: the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period (that was paid in each case, calculated separately for Purchased Loans, Dealer Loans and all Loans in the aggregate)such period.
(c) The Backup Servicer shall provide written notice to the Trust Collateral Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Agent and Indenture Trustee of such discrepancy. The Backup Servicer shall review the information contained in the Servicer’s Certificate delivered to it in accordance with Section 4.09(c) of the Sale and Servicing Agreement against the information on the Servicer’s Data File, on an aggregate basis. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(di) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(eii) 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 Trust Collateral Agent, to succeed within sixty thirty (6030) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(fiii) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Backup Servicer against any Liability which would otherwise be imposed by reason of willful misconductmisfeasance, bad faith or gross negligence in discovering or correcting any Error or in the performance of its duties hereunder or under the Sale and Servicing Agreement. In the event the successor Backup Servicer becomes aware of Errors and/or Continued Errors which, in the opinion of the successor Backup Servicer impairs its ability to perform its services hereunder, the successor Backup Servicer: (i) shall promptly notify the Servicer of such Errors and/or Continued Errors; and (ii) shall may use its best efforts to reconstruct and reconcile such data as is commercially reasonable it deems appropriate to correct such Errors and/or Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses pursuant to Section 5.08(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicable.
(giv) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and court costs) incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of care) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconductmisfeasance, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(hv) Notwithstanding To the foregoing, if the Servicer’s Data File or the Servicer’s Certificate does not contain sufficient information for extent the Backup Servicer requires any information supplementing reports or data that is to perform any action hereunderbe provided to it pursuant to the Basic Documents in order to complete its verification duties, the Backup Servicer shall promptly notify the Servicer of any additional information to be delivered Servicer’s verification duties are conditioned upon timely receipt 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect theretoinformation.
Appears in 1 contract
Samples: Backup Servicing Agreement (Credit Acceptance Corp)
Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contrary, on or before the Business Day prior to the Distribution Date, the Backup Servicer will review and confirm that the Servicer’s Certificate is readable and contains all information necessary for the Backup Servicer to complete its duties pursuant to this Section 2.2, and shall review the Servicer’s Certificate to verify the following based solely on a recalculation of information contained in the Servicer’s Certificate:
(i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount, the Class C Principal Distributable Amount and the Class C D Principal Distributable Amount of the Notes;
(ii) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount, the Class C Interest Distributable Amount and the Class C D Interest Distributable Amount on the Notes;
(iii) the Reserve Account Requirement;
(iv) the amount of each of clauses first through ninth eleventh of Section 5.05(b) of the Sale and Servicing Agreement;
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance, the Class C Note Balance and the Class C D Note Balance, in each case after giving effect to payments allocated to principal reported under (i) above;
(vi) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and
(vii) the Class A Interest Carryover Shortfall, if any, the Class B Interest Carryover Shortfall, if any, the Class C Interest Carryover Shortfall, if any, and the Class C D Interest Carryover Shortfall, if any;
(b) The Backup Servicer shall, on or before the Business Day prior to the Distribution Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to verify the following: the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period (in each case, calculated separately for Purchased Loans, Dealer Loans and all Loans in the aggregate).
(c) The Backup Servicer shall provide written notice to the Trust Collateral Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(d) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(e) 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 Trust Collateral Agent, to succeed within sixty (60) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(f) Except as otherwise provided in this Agreement, the successor Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Servicer against any Liability which 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 duties hereunder or under the Sale and Servicing Agreement. In the event the successor Servicer becomes aware of Errors and/or Continued Errors which, in the opinion of the successor Servicer impairs its ability to perform its services hereunder, the successor Servicer: (i) shall promptly notify the Servicer of such Errors and/or Continued Errors; and (ii) shall use best efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and/or Continued Errors and prevent future Continued Errors. The successor Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses pursuant to Section 5.08(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicable.
(g) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and court costs) incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of care) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconduct, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(h) Notwithstanding the foregoing, if the Servicer’s Data File or the Servicer’s Certificate 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect thereto.
Appears in 1 contract
Samples: Backup Servicing Agreement (Credit Acceptance Corp)
Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contrary, on or before the end of the second Business Day prior to the Distribution each Determination Date, the Backup Servicer will review and confirm that the Servicer’s Certificate is readable and contains all information necessary for Deal Agent shall provide sufficient data to the Backup Servicer to complete its duties pursuant allow the Backup Servicer to this Section 2.2, review and shall review the Servicer’s Certificate to verify the following based solely mathematical accuracy of the Monthly Report on a recalculation an Aggregate Basis related thereto and determine the following:
(i) that such Monthly Report is complete on its face;
(ii) that the amounts credited to and withdrawn from the Collection Account and the balance of information contained such account, as set forth in the Servicer’s Certificaterecords of the Collateral Agent are the same as the amount set forth in the Monthly Report; and
(iii) that the amounts credited to and withdrawn from the Reserve Account and the balance of such account, as set forth in the records of the Collateral Agent are the same as the amount set forth in the Monthly Report.
(b) The Backup Servicer shall, on or before the Determination Date with respect to any Collection Period, verify the mathematical accuracy of the Monthly Report in its entirety, which shall include but not be limited to the following:
(i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notesrelated distribution allocable to principal;
(ii) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the Notesrelated distribution allocable to interest;
(iii) the amount of the related distribution payable out of the Reserve Account RequirementAccount;
(iv) the amount Aggregate Outstanding Eligible Loan Net Balance, the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of each of clauses first through ninth of Section 5.05(b) all Eligible Contracts as of the Sale and Servicing Agreementclose of business on the last day of the preceding Collection Period;
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) aboveoutstanding Capital;
(vi) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and;
(vii) the Class A Interest Carryover Shortfalltotal amount of Collections for the related Collection Period; and
(viii) the aggregate Release Price for the Ineligible Loans and the aggregate Released Contract Price for the Ineligible Contracts, if any, the Class B Interest Carryover Shortfall, if any, and the Class C Interest Carryover Shortfall, if any;
(b) The Backup Servicer shall, on or before the Business Day prior to the Distribution Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to verify the following: the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period (that was paid in each case, calculated separately for Purchased Loans, Dealer Loans and all Loans in the aggregate)such period.
(c) The Backup Servicer shall provide written notice to the Trust Collateral Deal Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Deal Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(di) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(eii) 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 Trust Collateral Deal Agent, to succeed within sixty thirty (6030) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(fiii) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Backup Servicer against any Liability which would otherwise be imposed by reason of willful misconductmisfeasance, bad faith or gross negligence in discovering or correcting any Error or in the performance of its duties hereunder or under the Sale and Servicing Loan Agreement. In the event the successor Backup Servicer becomes aware of Errors and/or or Continued Errors which, in the opinion of the successor Backup Servicer impairs its ability to perform its services hereunder, the successor Servicer: (i) shall promptly notify Backup Servicer may, with the Servicer prior consent of such Errors and/or Continued Errors; and (ii) shall use best efforts the Deal Agent, undertake to reconstruct and reconcile such data as is commercially reasonable it deems appropriate to correct such Errors and/or and Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses pursuant to Section 5.08(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicable.
(giv) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and court costs) incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of care) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconductmisfeasance, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(hv) Notwithstanding To the foregoing, if the Servicer’s Data File or the Servicer’s Certificate does not contain sufficient information for extent the Backup Servicer requires any information, supplementary reports or data that is to perform any action hereunderbe provided to it pursuant to the Transaction Documents in order to complete its verification duties, the Backup Servicer shall promptly notify the Servicer of any additional information to be delivered Servicer’s verification duties are conditioned upon timely receipt 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect theretoinformation.
Appears in 1 contract
Samples: Backup Servicing Agreement (Credit Acceptance Corp)
Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contrary, on or before the Business Day prior to the Distribution Date, the Backup Servicer will review and confirm that the Servicer’s Certificate is readable and contains all information necessary for the Backup Servicer to complete its duties pursuant to this Section 2.2, and shall review the Servicer’s Certificate to verify the following based solely on a recalculation of information contained in the Servicer’s Certificate:
(i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notes;
(ii) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the Notes;
(iii) the Reserve Account Requirement;
(iv) the amount of each of clauses first through ninth of Section 5.05(b) of the Sale and Servicing Agreement;
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance Balance, and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) above;
(vi) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and
(vii) the Class A Interest Carryover Shortfall, if any, the Class B Interest Carryover Shortfall, if any, and the Class C Interest Carryover Shortfall, if any;
(b) The Backup Servicer shall, on or before the Business Day prior to the Distribution Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to verify the following: the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period (in each case, calculated separately for Purchased Loans, Dealer Loans and all Loans in the aggregate).
(c) The Backup Servicer shall provide written notice to the Trust Collateral Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(d) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(e) 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 Trust Collateral Agent, to succeed within sixty (60) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(f) Except as otherwise provided in this Agreement, the successor Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by the Servicer. If any error, inaccuracy or omission (collectively, “Errors”) exists in any information received from the 28307632.2 Servicer, and such Errors should cause or materially contribute to the successor Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Servicer against any Liability which 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 duties hereunder or under the Sale and Servicing Agreement. In the event the successor Servicer becomes aware of Errors and/or Continued Errors which, in the opinion of the successor Servicer impairs its ability to perform its services hereunder, the successor Servicer: (i) shall promptly notify the Servicer of such Errors and/or Continued Errors; and (ii) shall use best efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and/or Continued Errors and prevent future Continued Errors. The successor Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses pursuant to Section 5.08(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicable.
(g) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and court costs) incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of care) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconduct, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(h) Notwithstanding the foregoing, if the Servicer’s Data File or the Servicer’s Certificate 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared 28307632.2 Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect thereto.
Appears in 1 contract
Samples: Backup Servicing Agreement (Credit Acceptance Corp)
Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contrary, on or before the fifth Business Day prior to the Distribution Dateof each month, the Backup Servicer will review and confirm verify that the Servicer’s Certificate is readable and contains all information necessary for the Backup Servicer to complete on its duties pursuant to this Section 2.2face, and shall review and verify the mathematical accuracy of the Servicer’s Certificate on an Aggregate Basis to verify determine the following based solely on a recalculation of information contained in the Servicer’s Certificatefollowing:
(i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notes;
(ii) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the Notes;
(iii) the amount of the related distribution payable out of the Reserve Account RequirementAccount;
(iv) the amount of each of clauses first through ninth of Section 5.05(b) of the Sale and Servicing Agreement;
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance Balance, and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) above;
(viv) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and
(viivi) the Class A Interest Carryover Shortfall, if any, the Class B Interest Carryover Shortfall, if any, and the Class C Interest Carryover Shortfall, if any;
(b) The Backup Servicer shall, on or before the Business Day day prior to the Distribution Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to verify the following: the Aggregate Outstanding Net Eligible Loan Balance, the Aggregate Outstanding Eligible Loan Balance and the aggregate Aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period (in each case, calculated separately for Purchased Loans, Dealer Loans and all Loans in the aggregate).
(c) The Backup Servicer shall provide written notice to the Trust Collateral Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(d) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(e) 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 Trust Collateral Agent, to succeed within sixty thirty (6030) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(f) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Backup Servicer against any Liability which 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 duties hereunder or under the Sale and Servicing Agreement. In the event the successor Backup Servicer becomes aware of Errors and/or Continued Errors which, in the opinion of the successor Backup Servicer impairs its ability to perform its services hereunder, the successor Backup Servicer: (i) shall promptly notify the Servicer of such Errors and/or Continued Errors; and (ii) shall use best efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and/or Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Backup Servicer expenses pursuant to Section 5.08(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicable.
(g) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and court costs) incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of care) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconduct, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(h) Notwithstanding the foregoing, if the Servicer’s Data File or the Servicer’s Certificate 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect thereto.
Appears in 1 contract
Samples: Backup Servicing Agreement (Credit Acceptance Corp)
Review and Verification. (a) Notwithstanding anything in Section 2.1 to the contrary, on or before the end of the second Business Day prior to the Distribution each Determination Date, the Backup Servicer will review and confirm that the Servicer’s Certificate is readable and contains all information necessary for Deal Agent shall provide sufficient data to the Backup Servicer to complete its duties pursuant allow the Backup Servicer to this Section 2.2, review and shall review the Servicer’s Certificate to verify the following based solely mathematical accuracy of the Monthly Report on a recalculation an Aggregate Basis related thereto and determine the following:
(i) that such Monthly Report is complete on its face;
(ii) that the amounts credited to and withdrawn from the Collection Account and the balance of information contained such account, as set forth in the Servicer’s Certificaterecords of the Collateral Agent are the same as the amount set forth in the Monthly Report; and
(iii) that the amounts credited to and withdrawn from the Reserve Account and the balance of such account, as set forth in the records of the Collateral Agent are the same as the amount set forth in the Monthly Report.
(b) The Backup Servicer shall, on or before the Determination Date with respect to any Collection Period, verify the mathematical accuracy of the Monthly Report in its entirety, which shall include but not be limited to the following:
(i) the amount of the Class A Principal Distributable Amount, the Class B Principal Distributable Amount and the Class C Principal Distributable Amount of the Notesrelated distribution allocable to principal;
(ii) the amount of the Class A Interest Distributable Amount, the Class B Interest Distributable Amount and the Class C Interest Distributable Amount on the Notesrelated distribution allocable to interest;
(iii) the amount of the related distribution payable out of the Reserve Account RequirementAccount;
(iv) the amount Aggregate Outstanding Eligible Loan Net Balance, the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of each of clauses first through ninth of Section 5.05(b) all Eligible Contracts as of the Sale and Servicing Agreementclose of business on the last day of the preceding Collection Period;
(v) the Aggregate Note Balance, the Class A Note Balance, the Class B Note Balance and the Class C Note Balance, in each case after giving effect to payments allocated to principal reported under (i) aboveLoan Amount;
(vi) the amount of the Servicing Fee paid to the Servicer with respect to the related Collection Period and/or due but unpaid with respect to such Collection Period or prior Collection Periods, as the case may be; and;
(vii) the Class A Interest Carryover Shortfalltotal amount of Collections for the related Collection Period; and
(viii) the aggregate Release Price for the Ineligible Loans and for the Ineligible Contracts, if any, the Class B Interest Carryover Shortfall, if any, and the Class C Interest Carryover Shortfall, if any;
(b) The Backup Servicer shall, on or before the Business Day prior to the Distribution Date with respect to any Collection Period, review the Servicer’s Certificate against the information on the Servicer’s Data File, to verify the following: the Aggregate Outstanding Eligible Loan Balance and the aggregate Outstanding Balance of all Eligible Contracts as of the close of business on the last day of the preceding Collection Period (that was paid in each case, calculated separately for Purchased Loans, Dealer Loans and all Loans in the aggregate)such period.
(c) The Backup Servicer shall provide written notice to the Trust Collateral Deal Agent and Indenture Trustee with respect to whether there are any inconsistencies or deficiencies with respect to its review and verification set forth in paragraphs (a) and (b) above and, if any, shall provide a description thereof as set forth in Section 2.10 hereof. In the event of any discrepancy between the information set forth in subparagraphs (a) and (b) above, as calculated by the Servicer, from that determined or calculated by the Backup Servicer, the Backup Servicer shall promptly notify the Servicer and, if within five (5) days of such notice being provided to the Servicer, the Backup Servicer and the Servicer are unable to resolve such discrepancy, the Backup Servicer shall promptly notify the Trust Collateral Deal Agent and Indenture Trustee of such discrepancy. No later than three (3) Business Days after the Backup Servicer’s receipt of each Servicer’s Certificate, the Backup Servicer shall notify the Servicer, the Trust Collateral Agent and the Indenture Trustee of any inconsistencies between the Servicer’s Certificate and the information contained in the Servicer’s Data File; provided, however, in the absence of a reconciliation, the Servicer’s Certificate shall control for the purpose of calculations and distributions with respect to the related Distribution Date. If the Backup Servicer and the Servicer are unable to reconcile discrepancies with respect to a Servicer’s Certificate prior to the related Distribution Date, the Servicer shall cause a firm of independent accountants, at the Servicer’s expense, to audit the Servicer’s Certificate and, prior to the third Business Day, but in no event later than the fifth calendar day, of the following month, reconcile the discrepancies. The effect, if any, of such reconciliation shall be reflected in the Servicer’s Certificate for such next Distribution Date. The Backup Servicer shall only review the information provided by the Servicer in the Servicer’s Certificate and in the Servicer’s Data File and its obligation to report any inconsistencies shall be limited to those determinable from such information.
(di) Other than as specifically set forth elsewhere 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 duty, responsibility, obligation, or liability (collectively “Liability”) for any action taken or omitted by the Servicer.
(eii) 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 Trust Collateral Deal Agent, to succeed within sixty thirty (6030) days (or such earlier number of days as may be agreed to by the Backup Servicer) to the duties and obligations of the Servicer pursuant to Section 2.3.
(fiii) Except as otherwise provided in this Agreement, the successor Backup Servicer may accept and reasonably rely on all accounting, records and work of the Servicer without audit, and the successor Backup Servicer shall have no Liability for the acts or omissions of the Servicer or for the inaccuracy of any data provided, produced or supplied by 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 successor Backup Servicer making or continuing any Errors (collectively, “Continued Errors”), the successor Backup Servicer shall have no Liability for such Continued Errors; provided, however, that this provision shall not protect the successor Backup Servicer against any Liability which would otherwise be imposed by reason of willful misconductmisfeasance, bad faith or gross negligence in discovering or correcting any Error or in the performance of its duties hereunder or under the Sale and Servicing Loan Agreement. In the event the successor Backup Servicer becomes aware of Errors and/or or Continued Errors which, in the opinion of the successor Backup Servicer impairs its ability to perform its services hereunder, the successor Servicer: (i) shall promptly notify Backup Servicer may, with the Servicer prior consent of such Errors and/or Continued Errors; and (ii) shall use best efforts the Deal Agent, undertake to reconstruct and reconcile such data as is commercially reasonable it deems appropriate to correct such Errors and/or and Continued Errors and prevent future Continued Errors. The successor Backup Servicer shall be entitled to recover its costs thereby expended from the Servicer and to the extent not reimbursed by the Servicer, such amounts shall be reimbursed by the Issuer as successor Servicer expenses pursuant to Section 5.08(a) of the Sale and Servicing Agreement or Section 5.2 of the Indenture, as applicable.
(giv) The Backup Servicer and its officers, directors, employees and agents shall be indemnified by the Servicer and the Issuer, jointly and severally, from and against all claims, damages, losses or expenses reasonably incurred by the Backup Servicer (including reasonable and documented attorney’s fees and expenses, including, without limitation, costs and expenses (including any reasonable and documented out-of-pocket legal fees, costs and expenses and court costs) incurred in connection with (i) any enforcement (including any action, claim or suit brought) by the Backup Servicer of any indemnification or other obligation of the Servicer or the Issuer or any other Person, and (ii) a successful defense, in whole or in part, of any claim that the Backup Servicer breached its standard of care) arising out of claims asserted against the Backup Servicer on any matter arising out of this Agreement to the extent the act or omission giving rise to the claim accrues before the Assumption Date, except for any claims, damages, losses or expenses arising from the Backup Servicer’s own willful misconductmisfeasance, bad faith or gross negligence, as determined by a court of competent jurisdiction. The indemnification provided for in this Section shall be paid to the Backup Servicer until such time as such court enters a judgment as to the extent and effect of the alleged willful misconduct, bad faith, or gross negligence, at which time the Backup Servicer shall, to the extent required pursuant to such court’s determination, promptly return to the Servicer any such indemnification amounts so received but not owed and any other amounts as determined by such court. The obligations of the Servicer and the Issuer under this Section shall survive the termination or assignment of this Agreement and the earlier resignation or removal of the Backup Servicer.
(hv) Notwithstanding To the foregoing, if the Servicer’s Data File or the Servicer’s Certificate does not contain sufficient information for extent the Backup Servicer requires any information, supplementary reports or data that is to perform any action hereunderbe provided to it pursuant to the Transaction Documents in order to complete its verification duties, the Backup Servicer shall promptly notify the Servicer of any additional information to be delivered Servicer’s verification duties are conditioned upon timely receipt 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. In the performance of its duties hereunder, the Backup Servicer shall be entitled to conclusively rely on written notice with respect to the occurrence of any Indenture Default, Indenture Event of Default, Early Amortization Event, Automatic Amortization Event, Discretionary Amortization Event, Declared Discretionary Amortization Event, Servicer Default or any other trigger event with no duty to independently verify the information therein or confirm whether any such event has occurred or 6 otherwise make any determination with respect theretoinformation.
Appears in 1 contract
Samples: Backup Servicing Agreement (Credit Acceptance Corp)
