Backup Servicer. (a) On or before the date on which the initial Purchase occurs, until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Deal Agent and the Purchaser, the following duties and obligations: (i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Monthly Reports in hard copy and on computer tape; provided, however, the computer tape is in an MS-DOS, PC readable ASCII format or format to be agreed upon by the Backup Servicer and the Servicer on or prior to closing. (ii) Not later than 12:00 noon New York time two Business Days prior to each Reporting Date, the Backup Servicer shall accept delivery of tape from the Servicer, which shall include but not be limited to the following information: the name, number and name of the related Lessee for each Contract, the collection status, the contract status, the principal balance and the ADCB (the "Tape"). The Servicer shall provide, or cause the Subservicer to provide, the Tape on each Reporting Date as described above. (b) On or before the date on which the initial Purchase occurs, and until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Purchaser and the Deal Agent, the following duties and obligations: (i) Prior to the related Payment Date, the Backup Servicer shall review the Monthly Report to ensure that it is complete on its face and that the following items in such Monthly Report have been accurately calculated, if applicable, and reported: (A) the ADCB, (B) the Backup Servicing Fee, (C) the Average ADCB, (D) the accounts that are 30-60 days past due, (E) the accounts that are 61-90 days past due, (E) the accounts that are 90+ days past due, (F) the accounts that are Defaulted Contracts, (G) the Delinquency Ratio and (H) the Default Ratio. The Backup Servicer shall notify the Deal Agent and the Servicer of any disagreements with the Monthly Report based on such review not later than the Business Day preceding such Payment Date to such Persons. (ii) If the Servicer disagrees with the report provided under paragraph (i) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer if possible, and notify the Deal Agent of the resolution thereof. The Servicer hereby agrees to cooperate at its own expense, with the Backup Servicer in reconciling any discrepancies herein. If within 20 days after the delivery of the report provided under paragraph (i) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Deal Agent of the continued existence of such discrepancy. Following receipt of such notice by the Deal Agent, the Servicer shall deliver to the Deal Agent, the Purchasers, and the Backup Servicer no later than the related Payment Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer. (c) After the receipt of an effective Termination Notice by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer, under this Agreement, whether with respect to the Contracts or otherwise shall pass to and be vested in the Backup Servicer, subject to and in accordance with the provisions of Section 6.25, as long as the Backup Servicer is not prohibited by an applicable provision of law from fulfilling the same, as evidenced by an Opinion of Counsel. (d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) which may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) which may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement. (e) As compensation for its back-up servicing obligations hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee in respect of each Monthly Period (or portion thereof) until the first to occur of the date on which the Backup Servicer becomes a Successor Servicer, resigns or is removed as Backup Servicer or termination of this Agreement. (f) The Backup Servicer may resign at any time by not less than 120 days notice to the Deal Agent, the Liquidity Agent, the Servicer, the Seller and the Originator. In addition, the Backup Servicer may be removed without cause by the Deal Agent by notice then given in writing to the Servicer, the Seller and the Backup Servicer. In the event of any such resignation or removal, the Backup Servicer may be replaced by (i) the Servicer, acting with the consent of the Deal Agent or (ii) if no such replacement is appointed within 30 days following such removal or resignation, by the Deal Agent. (g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages or expenses which result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement. (h) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any computer tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the Seller, Purchaser, Deal Agent, Liquidity Agent, Collateral Custodian and Backup Servicer, shall look only to the Servicer to perform such obligations. The Backup Servicer, and the Collateral Custodian shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of their respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party, including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party, (iii) the invalidity or unenforceability of any Asset or Contract under applicable law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Asset, Contract or any item of Equipment, or (v) the acts or omissions of any successor Backup Servicer.
Appears in 2 contracts
Sources: Receivables Purchase Agreement (Resource America Inc), Receivables Purchase Agreement (Fidelity Leasing Inc)
Backup Servicer. (a) On or before From and after the date on which the initial Purchase occurs, Effective Date hereof until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Deal Agent and the Purchaser, the following duties and obligations:
(i) On or before the Closing Servicing Transfer Date, the Backup Servicer shall accept act as back-up servicer with respect to the Mortgage Loans, and shall perform such functions, duties, obligations, undertakings and responsibilities as set forth in Section 9.03(b) below subject to this Section 9.03(a). Prior to the Servicing Transfer Date, the Backup Servicer shall have only those duties and obligations imposed by it described in Section 9.03(b) below, and shall have no obligations or duties under any agreement to which it is not a party, including but not limited to the various agreements named herein; provided, that prior to the Servicing Transfer Date, with respect to any Mortgage Loans which are pledged to the Lender for at least 150 days, the Backup Servicer shall service all such Mortgage Loans as if it were the Servicer and shall be compensated a fee of $20 per month per Mortgage Loan with respect to each such Mortgage Loan in excess of the 50th Mortgage Loan transferred to the Backup Servicer (it being understood that this fee of $20 per month per Mortgage Loan is only applicable during the period before the Servicing Transfer Date). In its capacity as Backup Servicer, it shall in no event be liable for any obligations of the Owner or the Servicer to any party, whether hereunder or under any other agreement, which are not related to servicing functions, including, without limitation, any repurchase obligations; provided, that the Backup Servicer shall have all of the rights, duties and obligations of the Servicer with respect to each Mortgage Loans transferred to it for servicing before the Servicing Transfer Date.
(b) No later than the fifth (5th) Business Day of each calendar month, the Servicer shall deliver to the Backup Servicer a complete set of servicing records in computer-readable form with respect to the payment, collection and other servicing activity of the Mortgage Loans during the preceding calendar month, which records shall contain sufficient data to permit the Backup Servicer to assume the duties of the Servicer hereunder without delay on account of the absence of relevant servicing information. The information described in the foregoing sentence and all other information provided by the Servicer to the Backup Servicer pursuant to the Agreement shall be in form and substance satisfactory to the Backup Servicer. On at least a monthly basis, the Backup Servicer shall convert and "map" the data contained in such servicing records to its own servicing system, and shall provide the Lender not later than the 15th day of each month commencing November 15, 2004, with a certification by an appropriate officer of the Backup Servicer to the effect that it has received from the Servicer delivery each monthly submission of servicing data, has completed such conversion and mapping of the information data delivered with respect to the immediately preceding month, and is capable of assuming the duties of the Servicer if required to do so hereunder upon at least 15 days' prior to written notice from the Lender.
(c) The Backup Servicer, prior to assuming any of the Servicer's duties hereunder may not resign hereunder unless it arranges for a successor Backup Servicer reasonably acceptable to the Owner and the Lender with not less than 90 days' notice delivered to the Owner, the Lender and the Servicer.
(d) From and after the Servicing Transfer Date, the Backup Servicer shall perform all of the functions, duties, obligations, undertakings and responsibilities of the Servicer hereunder and shall be the successor to the Servicer hereunder, but only in its capacity as Servicer under this Agreement. In the event the Backup Servicer becomes the successor Servicer, it shall not be liable for any acts or omissions of the Servicer under this Agreement or any other agreement and shall not be deemed to have made any representations and warranties of the Servicer or any predecessor Servicer under this Agreement or any other agreement. In the event the Backup Servicer becomes the successor Servicer, it shall be not deemed to be in default thereunder by reason of any failure to make, or any delay in making, any distribution hereunder or any portion thereof caused by (a) the failure of the Servicer or any predecessor Servicer to (i) deliver, or any delay in delivering, cash, documents or records to it, (ii) cooperate as required by this Agreement, or (iii) deliver the Mortgage Loans to the Custodian as required by this Agreement, or (b) restrictions imposed by any regulatory authority having jurisdiction over the Servicer.
(e) Upon the transfer of the servicing of the Mortgage Loans, prior to the first Payment Date after the Servicing Transfer Date, the Lender shall cause the Custodian to provide the Backup Servicer with an officer's certificate that contains (i) a complete description of all material breaches by the Servicer which have not been fully cured and (ii) a confirmation that all reports required to be filed by the Custodian have been timely filed.
(f) The Backup Servicer agrees to indemnify the Owner, the Servicer and the Lender, and any of their respective directors, officers, employees or agents from, and hold them harmless against, any and all costs, expenses (including reasonable attorney fees and disbursements), losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage or liability arose out of, or was imposed upon the Owner, the Servicer or the Lender and their respective directors, officers, employees and agents through the Backup Servicer's intentional misconduct or gross negligence, except to the extent such indemnified party's own bad faith, willful misconduct or gross negligence contributes to the costs, loss, claim, damage or liability. Each of the Owner, the Servicer and the Lender agrees, severally and not jointly, to indemnify the Backup Servicer, and any of its respective directors, officers, employees or agents from, and hold them harmless against, any and all costs, expenses (including reasonable attorney fees and disbursements), losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage or liability arose out of, or was imposed upon the Backup Servicer and its respective directors, officers, employees and agents through the intentional misconduct or gross negligence of the Owner, the Servicer or the Lender, except to the extent such indemnified party's own bad faith, willful misconduct or gross negligence contributes to the costs, loss, claim, damage or liability (for the avoidance of doubt, in no event shall Owner or Lender indemnify the Backup Servicer for the intentional misconduct or gross negligence of either (x) the other or (y) the Servicer).
(g) The Backup Servicer will not be obligated to incur any expenses or costs (including, without limitation, legal fees and the preparation and recording of all intervening assignments of mortgage) in connection with the transfer of servicing of the Mortgage Loans to the Backup Servicer, or to compel the performance of any obligations by any party to the Agreement. Without limiting any obligations of a terminated Servicer as provided above, if the Servicer is no longer the Servicer hereunder for any reason, such predecessor Servicer shall be responsible for paying any Servicing Transfer Costs incurred by the Backup Servicer in connection with the transfer of servicing from the predecessor Servicer; provided, that if the predecessor Servicer fails to pay any such Servicing Transfer Costs, the Lender shall cause such Servicing Transfer Costs to be paid out of the Collection Account. In addition, if the Backup Servicer is the successor to the Servicer, and if the predecessor Servicer fails to pay any Servicing Transfer Costs incurred by the Backup Servicer, then the Backup Servicer may offset any such Servicing Transfer Costs against amounts that are payable or reimbursable to the predecessor Servicer with respect to unpaid Servicing Fees and unreimbursed Servicing Advances as set forth below in the Monthly Reports following paragraph below (and the Backup Servicer shall only be paid such Servicing Transfer Costs from the Collection Account to the extent it reasonably determines that such Servicing Transfer Costs will not be recoverable pursuant to such offsets). To the extent such Servicing Transfer Costs remain unpaid by the predecessor Servicer, from the Collection Account, or from offset against amounts that are payable or reimbursable to the predecessor Servicer with respect to unpaid Servicing Fees and unreimbursed Servicing Advances, such unpaid Servicing Transfer Costs shall be paid by the Owner and the predecessor Servicer, jointly and severally. The foregoing obligation of the predecessor Servicer with respect to Servicing Transfer Costs shall not be deemed to limit any other liability the predecessor Servicer may have to the other parties hereto in hard copy respect of any breach of its obligations or duties hereunder.
(h) If the Backup Servicer is the successor to the Servicer, the Backup Servicer in such capacity shall remit all unpaid Servicing Fees accrued during the period prior to the Servicing Transfer and unreimbursed Servicing Advances outstanding on computer tapethe Servicing Transfer Date to the predecessor Servicer; provided, however, there shall be no duty to so remit if the computer tape Servicing Transfer is the result of an Event of Default under this Agreement with respect to the predecessor Servicer; and provided further, that such duty to reimburse relates only to all such unpaid Servicing Fees accrued during the period prior to the Servicing Transfer and unreimbursed Servicing Advances made by the predecessor Servicer prior to Servicing Transfer Date; and, further, provided, that the Backup Servicer in an MS-DOSits capacity as successor Servicer shall be obliged to make such reimbursement only out of collections on the related Mortgage Loan, PC readable ASCII format (including monthly collections, Liquidation Proceeds, Released Mortgaged Property Proceeds, Insurance Proceeds, or format their equivalent under the Basic Document) and such other amounts that the Servicer is permitted to collect from the related Mortgagor or otherwise relating to the related Mortgage Loan before the Backup Servicer in its capacity as successor Servicer reimburses itself for any unreimbursed Servicing Advances which it makes with respect to such Mortgage Loan. The Backup Servicer in its capacity as successor Servicer shall remit any funds due to the predecessor Servicer under this paragraph on the Payment Date.
(i) The Backup Servicer, as compensation for its obligations and duties as Backup Servicer hereunder, shall be paid the Backup Servicing Fee on each Payment Date pursuant to Section 5.01. If the Backup Servicer shall succeed as Servicer hereunder, the Backup Servicer shall no longer be entitled to be paid the Backup Servicing Fee with respect to any period after the Servicing Transfer Date.
(j) In addition, as compensation for its assumption of its duties as Backup Servicer hereunder, the Lender shall deliver to the Backup Servicer on the Effective Date hereof, from the Lender's own funds, the Initial Setup Fee.
(k) As compensation for its assumption of its duties as successor to the Servicer hereunder, on and after the Servicing Transfer Date, the Backup Servicer in its capacity as successor to the Servicer hereunder shall become entitled to receive the Servicing Fee for three (3) months (regardless of the actual number of months that the Backup Servicer has acted as the successor Servicer) on each Mortgage Loan and such other compensation to the Servicer as is provided in this Agreement (other than any such compensation due to the predecessor Servicer for any period prior to the Servicing Transfer Date); provided, however that the predecessor Servicer shall nonetheless be entitled to payment or reimbursement for unpaid Servicing Fees accrued during the period prior to the Servicing Transfer Date or Servicing Advances made by such predecessor Servicer during the period prior to the Servicing Transfer Date pursuant to Section 9.03(h) hereof. The parties agree that if the Backup Servicer has succeeded as the successor Servicer hereunder, the Servicing Fee Rate shall be equal to 0.50% after the Servicing Transfer Date, provided, however, in the event of an Event of Default under the Loan Agreement, the Servicing Fee Rate shall be a commercially reasonable rate or per loan fee (taking into consideration, among other factors, the fact that the Loan Agreement is no longer a revolving facility) as agreed upon by the Backup Servicer and the Lender, who agree to act in good faith based upon the then Principal Balance of the Mortgage Loans outstanding at such time and anticipated balances going forward; and provided further, that the 0.50% rate shall be applicable for a minimum of three (3) months following such a Servicing Transfer Date. If the Lender and the Backup Servicer on or prior fail to closing.
(ii) Not later than 12:00 noon New York time two Business Days prior to each Reporting Dateset a mutually agreeable Servicing Fee Rate in good faith negotiations after the Servicing Transfer Date and the subsequent Event of Default, the Backup Servicer shall accept delivery of tape from the Servicer, which shall include but not be limited may in its sole discretion resign as successor Servicer hereunder at no cost to the following information: the name, number and name of the related Lessee for each Contract, the collection status, the contract status, the principal balance and the ADCB (the "Tape"). The Servicer shall provide, or cause the Subservicer to provide, the Tape on each Reporting Date as described above.
(b) On or before the date on which the initial Purchase occurs, and until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Purchaser and the Deal Agent, the following duties and obligations:
(i) Prior to the related Payment Date, Lender shall reimburse the Backup Servicer shall review the Monthly Report to ensure that it is complete on its face and that the following items in such Monthly Report have been accurately calculated, if applicable, and reported: (A) the ADCB, (B) the Backup for any unreimbursed Servicing Fee, (C) the Average ADCB, (D) the accounts that are 30-60 days past due, (E) the accounts that are 61-90 days past due, (E) the accounts that are 90+ days past due, (F) the accounts that are Defaulted Contracts, (G) the Delinquency Ratio and (H) the Default Ratio. The Backup Servicer shall notify the Deal Agent and the Servicer of any disagreements with the Monthly Report based on such review not later than the Business Day preceding such Payment Date to such Persons.
(ii) If the Servicer disagrees with the report provided under paragraph (i) above Advances made by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer if possible, and notify the Deal Agent of the resolution thereof. The Servicer hereby agrees to cooperate at its own expense, with the Backup Servicer in reconciling any discrepancies herein. If within 20 days after the delivery of the report provided under paragraph (i) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Deal Agent of the continued existence of such discrepancy. Following receipt of such notice by the Deal Agent, the Servicer shall deliver to the Deal Agent, the Purchasers, and the Backup Servicer no later than the related Payment Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer.
(c) After the receipt of an effective Termination Notice by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer, under this Agreement, whether with respect to the Contracts or otherwise shall pass to Mortgage Loans and be vested in any unreimbursed Servicing Transfer Costs incurred by the Backup Servicer, subject Servicer prior to and in accordance with the provisions date of Section 6.25, as long as such resignation.
(l) If the Backup Servicer is not prohibited by an applicable provision of law from fulfilling the same, terminated as evidenced by an Opinion of Counsel.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidatedwithout cause or, is required by the Owner (ii) which may result from any merger or consolidation to which with the Backup Servicer shall be a party, or (iii) which may succeed to the properties and assets prior written consent of the Lender) or the Lender to resign as Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its back-up servicing obligations hereunderServicer, the Backup Servicer shall be entitled paid from the Collection Account (or from the Lender if there are insufficient funds in the Collection Account) a termination fee equal to receive the Backup Servicing Fee in respect Rate accrued for nine (9) months (on the basis of each Monthly Period (or portion thereofa 360-day year and twelve 30-day months) until less the first to occur number of the date on which the Backup Servicer becomes a Successor Servicer, resigns or is removed as Backup Servicer or termination of this Agreement.
(f) The Backup Servicer may resign at any time by not less than 120 days notice to the Deal Agent, the Liquidity Agent, the Servicer, the Seller and the Originator. In addition, the Backup Servicer may be removed without cause by the Deal Agent by notice then given in writing to the Servicer, the Seller and the Backup Servicer. In the event of any such resignation or removal, the Backup Servicer may be replaced by (i) the Servicer, acting with the consent of the Deal Agent or (ii) if no such replacement is appointed within 30 days following such removal or resignation, by the Deal Agent.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto months that the Backup Servicer will be responsible for any misconduct or negligence has already received a payment as Backup Servicer on the part aggregate principal balance of the Mortgage Loans on the date of such agentstermination, attorneys if such termination or custodians acting forced resignation occurs on or prior to the routine and ordinary day-to-day operations for and on behalf nine month anniversary of the Backup ServicerEffective Date. Neither the Backup Servicer nor any of its officers, directors, employees or agents No termination fee shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages or expenses which result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(h) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any computer tape, certificate or other data or document delivered payable to the Backup Servicer hereunder or on which if the Backup Servicer must rely in order is terminated as Backup Servicer without cause or, is required to perform its obligations hereunder, and the Seller, Purchaser, Deal Agent, Liquidity Agent, Collateral Custodian and resign as Backup Servicer, shall look only to after the Servicer to perform such obligations. The Backup Servicer, and 9-month anniversary of the Collateral Custodian shall have no responsibility and shall not be in default hereunder Effective Date or incur any liability for any failure, error, malfunction or any delay in carrying out any of their respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person resigns pursuant to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party, including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party, (iii) the invalidity or unenforceability of any Asset or Contract under applicable law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Asset, Contract or any item of Equipment, or (v) the acts or omissions of any successor Backup ServicerSection 9.03(k).
Appears in 1 contract
Sources: Servicing Agreement (American Business Financial Services Inc /De/)
Backup Servicer. (a) On or before the date on which the initial Purchase occurs, until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Deal Agent and the PurchaserSecured Parties, the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Monthly Reports in hard copy and on computer tape; provided, -------- however, the computer tape is in an MS-DOS, PC readable ASCII format or ------- format to be agreed upon by the Backup Servicer and the Servicer on or prior to closing.
(ii) Not later than 12:00 noon New York time two Business Days prior to each Reporting Date, the Backup Servicer shall accept delivery of tape from the Servicer, which shall include but not be limited to the following information: the name, number and name of the related Lessee Obligor for each ContractLoan, the collection status, the contract status, the principal balance and the ADCB Aggregate Outstanding Loan Balance (the "Tape"). The Servicer shall provide, or cause the Subservicer to provide, provide the Tape on each Reporting Date as described above.
(b) On or before the date on which the initial Purchase occurs, and until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Purchaser Secured Parties and the Deal Agent, the following duties and obligations:
(i) Prior to the related Payment Date, the Backup Servicer shall review the Monthly Report to ensure that it is complete on its face and that the following items in such Monthly Report have been accurately calculated, if applicable, and reported: (A) the ADCBAggregate Outstanding Loan Balance, (B) the Backup Servicing Fee, (C) the Average ADCB, (D) the accounts Loans that are 30-60 days past due, (ED) the accounts Loans that are 61-90 days past due, (E) the accounts Loans that are 90+ days past due, (F) the accounts Loans that are Defaulted ContractsLoans, (G) the Delinquency Ratio Average Default Rate, and (H) the Default Average Net Loss Ratio. The Backup Servicer shall notify the Deal Agent and the Servicer of any disagreements with the Monthly Report based on such review not later than the Business Day preceding such Payment Date to such Persons.
(ii) If the Servicer disagrees with the report provided under paragraph (i) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer if possible, and notify the Deal Agent of the resolution thereof. The Servicer hereby agrees to cooperate at its own expense, with the Backup Servicer in reconciling any discrepancies herein. If within 20 days after the delivery of the report provided under paragraph (i) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Deal Agent of the continued existence of such discrepancy. Following receipt of such notice by the Deal Agent, the Servicer shall deliver to the Deal Agent, the Purchasers, and the Backup Servicer no later than the related Payment Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer.
(c) After the receipt of an effective Termination Notice by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer, under this Agreement, whether with respect to the Contracts or otherwise shall pass to and be vested in the Backup Servicer, subject to and in accordance with the provisions of Section 6.25, as long as the Backup Servicer is not prohibited by an applicable provision of law from fulfilling the same, as evidenced by an Opinion of Counsel.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) which may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) which may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its back-up servicing obligations hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee in respect of each Monthly Period (or portion thereof) until the first to occur of the date on which the Backup Servicer becomes a Successor Servicer, resigns or is removed as Backup Servicer or termination of this Agreement.
(f) The Backup Servicer may resign at any time by not less than 120 days notice to the Deal Agent, the Liquidity Agent, the Servicer, the Seller and the Originator. In addition, the Backup Servicer may be removed without cause by the Deal Agent by notice then given in writing to the Servicer, the Seller and the Backup Servicer. In the event of any such resignation or removal, the Backup Servicer may be replaced by (i) the Servicer, acting with the consent of the Deal Agent or (ii) if no such replacement is appointed within 30 days following such removal or resignation, by the Deal Agent.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages or expenses which result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(h) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any computer tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the Seller, Purchaser, Deal Agent, Liquidity Agent, Collateral Custodian and Backup Servicer, shall look only to the Servicer to perform such obligations. The Backup Servicer, and the Collateral Custodian shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of their respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party, including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party, (iii) the invalidity or unenforceability of any Asset or Contract under applicable law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Asset, Contract or any item of Equipment, or (v) the acts or omissions of any successor Backup Servicer.resolution
Appears in 1 contract
Sources: Loan Purchase and Servicing Agreement (First International Bancorp Inc)
Backup Servicer. (a) On or before the date on which the initial Purchase occurs, and until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Deal Agent Administrator and the PurchaserMSFC, the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Monthly Reports in hard copy and on computer tape; provided, however, the computer tape is in an MS-DOS, PC readable ASCII format or format to be agreed upon by the Backup Servicer and the Servicer on or prior to closing.
(ii) Not later than 12:00 noon New York time two Business Days prior to each Reporting Date, the Backup Servicer shall accept delivery of tape from the Servicer, which shall include but not be limited to the following information: the name, number and name of the related Lessee for each Contract, the collection status, the contract status, the principal balance and the ADCB (the "Tape"). The Servicer shall provide, or cause the Subservicer to provide, the Tape on each Reporting Date as described above.
(b) On or before the date on which the initial Purchase occurs, and until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Purchaser MSFC and the Deal AgentAdministrator, the following duties and obligations:
(i) Prior to the related Payment Settlement Date, the Backup Servicer shall review the Monthly Report to ensure that it is complete on its face and that the following items in such Monthly Report have been accurately calculated, if applicable, and reported: (A) the ADCB, (B) the Backup Servicing Fee, (C) the Average average ADCB, (D) the accounts that are Contracts with any Scheduled Payment 30-60 days past due, (E) the accounts that are Contracts with any Scheduled Payment 61-90 days past due, (E) the accounts that are Contracts with any Scheduled Payment 90+ days past due, (F) the accounts Contracts that are Defaulted Contracts, (G) the Delinquency Ratio and (H) the Default Ratio. The Backup Servicer shall notify the Deal Agent and the Servicer of any disagreements with the Monthly Report based on such review not later than the Business Day preceding such Payment Date to such Persons.
(ii) If the Servicer disagrees with the report provided under paragraph (i) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer if possible, and notify the Deal Agent of the resolution thereof. The Servicer hereby agrees to cooperate at its own expense, with the Backup Servicer in reconciling any discrepancies herein. If within 20 days after the delivery of the report provided under paragraph (i) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Deal Agent of the continued existence of such discrepancy. Following receipt of such notice by the Deal Agent, the Servicer shall deliver to the Deal Agent, the Purchasers, and the Backup Servicer no later than the related Payment Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer.
(c) After the receipt of an effective Termination Notice by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer, under this Agreement, whether with respect to the Contracts or otherwise shall pass to and be vested in the Backup Servicer, subject to and in accordance with the provisions of Section 6.25, as long as the Backup Servicer is not prohibited by an applicable provision of law from fulfilling the same, as evidenced by an Opinion of Counsel.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) which may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) which may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its back-up servicing obligations hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee in respect of each Monthly Period (or portion thereof) until the first to occur of the date on which the Backup Servicer becomes a Successor Servicer, resigns or is removed as Backup Servicer or termination of this Agreement.
(f) The Backup Servicer may resign at any time by not less than 120 days notice to the Deal Agent, the Liquidity Agent, the Servicer, the Seller and the Originator. In addition, the Backup Servicer may be removed without cause by the Deal Agent by notice then given in writing to the Servicer, the Seller and the Backup Servicer. In the event of any such resignation or removal, the Backup Servicer may be replaced by (i) the Servicer, acting with the consent of the Deal Agent or (ii) if no such replacement is appointed within 30 days following such removal or resignation, by the Deal Agent.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages or expenses which result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(h) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any computer tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the Seller, Purchaser, Deal Agent, Liquidity Agent, Collateral Custodian and Backup Servicer, shall look only to the Servicer to perform such obligations. The Backup Servicer, and the Collateral Custodian shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of their respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party, including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party, (iii) the invalidity or unenforceability of any Asset or Contract under applicable law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Asset, Contract or any item of Equipment, or (v) the acts or omissions of any successor Backup Servicer.)
Appears in 1 contract
Sources: Receivables Purchase Agreement (Fidelity Leasing Inc)
Backup Servicer. (a) On or before From and after the date on which the initial Purchase occurs, Effective Date hereof until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Deal Agent and the Purchaser, the following duties and obligations:
(i) On or before the Closing Servicing Transfer Date, the Backup Servicer shall accept act as back-up servicer with respect to the Mortgage Loans, and shall perform such functions, duties, obligations, undertakings and responsibilities as set forth in Section 9.03(b) below. Prior to the Servicing Transfer Date, the Backup Servicer shall have only those duties and obligations imposed by it described in Section 9.03(b) below, and shall have no obligations or duties under any agreement to which it is not a party, including but not limited to the various agreements named herein. In its capacity as Backup Servicer, it shall in no event be liable for any obligations of the Owner or the Servicer to any party, whether hereunder or under any other agreement, which are not related to servicing functions, including, without limitation, any repurchase obligations.
(b) No later than the fifth (5th) Business Day of each calendar month, the Servicer shall deliver to the Backup Servicer a complete set of servicing records in computer-readable form with respect to the payment, collection and other servicing activity of the Mortgage Loans during the preceding calendar month, which records shall contain sufficient data to permit the Backup Servicer to assume the duties of the Servicer hereunder without delay on account of the absence of relevant servicing information. The information described in the foregoing sentence and all other information provided by the Servicer to the Backup Servicer pursuant to the Agreement shall be in form and substance satisfactory to the Backup Servicer. On at least a monthly basis, the Backup Servicer shall convert and "map" the data contained in such servicing records to its own servicing system, and shall provide the Lender not later than the 15th day of each month commencing November 15, 2003, with a certification by an appropriate officer of the Backup Servicer to the effect that it has received from the Servicer delivery each monthly submission of servicing data, has completed such conversion and mapping of the information data delivered with respect to the immediately preceding month, and is capable of assuming the duties of the Servicer if required to do so hereunder upon at least 20 days' prior to written notice from the Lender.
(c) The Backup Servicer, prior to assuming any of the Servicer's duties hereunder may not resign hereunder unless it arranges for a successor Backup Servicer reasonably acceptable to the Owner and the Lender with not less than 90 days' notice delivered to the Owner, the Lender and the Servicer.
(d) From and after the Servicing Transfer Date, the Backup Servicer shall perform all of the functions, duties, obligations, undertakings and responsibilities of the Servicer hereunder and shall be the successor to the Servicer hereunder, but only in its capacity as Servicer under this Agreement. In the event the Backup Servicer becomes the successor Servicer, it shall not be liable for any acts or omissions of the Servicer under this Agreement or any other agreement and shall not be deemed to have made any representations and warranties of the Servicer or any predecessor Servicer under this Agreement or any other agreement. In the event the Backup Servicer becomes the successor Servicer, it shall be not deemed to be in default thereunder by reason of any failure to make, or any delay in making, any distribution hereunder or any portion thereof caused by (a) the failure of the Servicer or any predecessor Servicer to (i) deliver, or any delay in delivering, cash, documents or records to it, (ii) cooperate as required by this Agreement, or (iii) deliver the Mortgage Loans to the Custodian as required by this Agreement, or (b) restrictions imposed by any regulatory authority having jurisdiction over the Servicer.
(e) Upon the transfer of the servicing of the Mortgage Loans, prior to the first Payment Date after the Servicing Transfer Date, the Lender shall cause the Custodian to provide the Backup Servicer with an officer's certificate that contains (i) a complete description of all material breaches by the Servicer which have not been fully cured and (ii) a confirmation that all reports required to be filed by the Custodian have been timely filed.
(f) The Backup Servicer agrees to indemnify the Owner, the Servicer and the Lender, and any of their respective directors, officers, employees or agents from, and hold them harmless against, any and all costs, expenses (including reasonable attorney fees and disbursements), losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage or liability arose out of, or was imposed upon the Owner, the Servicer or the Lender and their respective directors, officers, employees and agents through the Backup Servicer's intentional misconduct or gross negligence, except to the extent such indemnified party's own bad faith, willful misconduct or gross negligence contributes to the costs, loss, claim, damage or liability. Each of the Owner, the Servicer and the Lender agrees, severally and not jointly, to indemnify the Backup Servicer, and any of its respective directors, officers, employees or agents from, and hold them harmless against, any and all costs, expenses (including reasonable attorney fees and disbursements), losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage or liability arose out of, or was imposed upon the Backup Servicer and its respective directors, officers, employees and agents through the intentional misconduct or gross negligence of the Owner, the Servicer or the Lender, except to the extent such indemnified party's own bad faith, willful misconduct or gross negligence contributes to the costs, loss, claim, damage or liability (for the avoidance of doubt, in no event shall Owner or Lender indemnify the Backup Servicer for the intentional misconduct or gross negligence of either (x) the other or (y) the Servicer).
(g) The Backup Servicer will not be obligated to incur any expenses or costs (including, without limitation, legal fees and the preparation and recording of all intervening assignments of mortgage) in connection with the transfer of servicing of the Mortgage Loans to the Backup Servicer, or to compel the performance of any obligations by any party to the Agreement. Without limiting any obligations of a terminated Servicer as provided above, if the Servicer is no longer the Servicer hereunder for any reason, such predecessor Servicer shall be responsible for paying any Servicing Transfer Costs incurred by the Backup Servicer in connection with the transfer of servicing from the predecessor Servicer; provided, that if the predecessor Servicer fails to pay any such Servicing Transfer Costs, the Lender shall cause such Servicing Transfer Costs to be paid out of the Collection Account. In addition, if the Backup Servicer is the successor to the Servicer, and if the predecessor Servicer fails to pay any Servicing Transfer Costs incurred by the Backup Servicer, then the Backup Servicer may offset any such Servicing Transfer Costs against amounts that are payable or reimbursable to the predecessor Servicer with respect to unpaid Servicing Fees and unreimbursed Servicing Advances as set forth below in the Monthly Reports following paragraph below (and the Backup Servicer shall only be paid such Servicing Transfer Costs from the Collection Account to the extent it reasonably determines that such Servicing Transfer Costs will not be recoverable pursuant to such offsets). To the extent such Servicing Transfer Costs remain unpaid by the predecessor Servicer, from the Collection Account, or from offset against amounts that are payable or reimbursable to the predecessor Servicer with respect to unpaid Servicing Fees and unreimbursed Servicing Advances, such unpaid Servicing Transfer Costs shall be paid by the Owner and the predecessor Servicer, jointly and severally. The foregoing obligation of the predecessor Servicer with respect to Servicing Transfer Costs shall not be deemed to limit any other liability the predecessor Servicer may have to the other parties hereto in hard copy respect of any breach of its obligations or duties hereunder.
(h) If the Backup Servicer is the successor to the Servicer, the Backup Servicer in such capacity shall remit all unpaid Servicing Fees accrued during the period prior to the Servicing Transfer and unreimbursed Servicing Advances outstanding on computer tapethe Servicing Transfer Date to the predecessor Servicer; provided, however, there shall be no duty to so remit if the computer tape Servicing Transfer is the result of an Event of Default under this Agreement with respect to the predecessor Servicer; and provided further, that such duty to reimburse relates only to all such unpaid Servicing Fees accrued during the period prior to the Servicing Transfer and unreimbursed Servicing Advances made by the predecessor Servicer prior to Servicing Transfer Date; and, further, provided, that the Backup Servicer in an MS-DOSits capacity as successor Servicer shall be obliged to make such reimbursement only out of collections on the related Mortgage Loan, PC readable ASCII format (including monthly collections, Liquidation Proceeds, Released Mortgaged Property Proceeds, Insurance Proceeds, or format their equivalent under the Basic Document) and such other amounts that the Servicer is permitted to collect from the related Mortgagor or otherwise relating to the related Mortgage Loan before the Backup Servicer in its capacity as successor Servicer reimburses itself for any unreimbursed Servicing Advances which it makes with respect to such Mortgage Loan. The Backup Servicer in its capacity as successor Servicer shall remit any funds due to the predecessor Servicer under this paragraph on the Payment Date.
(i) The Backup Servicer, as compensation for its obligations and duties as Backup Servicer hereunder, shall be paid the Backup Servicing Fee on each Payment Date pursuant to Section 5.01. If the Backup Servicer shall succeed as Servicer hereunder, the Backup Servicer shall no longer be entitled to be paid the Backup Servicing Fee with respect to any period after the Servicing Transfer Date.
(j) In addition, as compensation for its assumption of its duties as Backup Servicer hereunder, the Lender shall deliver to the Backup Servicer on the Effective Date hereof, from the Lender's own funds, the Initial Setup Fee.
(k) As compensation for its assumption of its duties as successor to the Servicer hereunder, on and after the Servicing Transfer Date, the Backup Servicer in its capacity as successor to the Servicer hereunder shall become entitled to receive the Servicing Fee for three (3) months (regardless of the actual number of months that the Backup Servicer has acted as the successor Servicer) on each Mortgage Loan and such other compensation to the Servicer as is provided in this Agreement (other than any such compensation due to the predecessor Servicer for any period prior to the Servicing Transfer Date); provided, however that the predecessor Servicer shall nonetheless be entitled to payment or reimbursement for unpaid Servicing Fees accrued during the period prior to the Servicing Transfer Date or Servicing Advances made by such predecessor Servicer during the period prior to the Servicing Transfer Date pursuant to Section 9.03(h) hereof. The parties agree that if the Backup Servicer has succeeded as the successor Servicer hereunder, the Servicing Fee Rate shall be equal to 0.50% after the Servicing Transfer Date, provided, however, in the event of an Event of Default under the Loan Agreement, the Servicing Fee Rate shall be a commercially reasonable rate or per loan fee (taking into consideration, among other factors, the fact that the Loan Agreement is no longer a revolving facility) as agreed upon by the Backup Servicer and the Lender, who agree to act in good faith based upon the then Principal Balance of the Mortgage Loans outstanding at such time and anticipated balances going forward; and provided further, that the 0.50% rate shall be applicable for a minimum of three (3) months following such a Servicing Transfer Date. If the Lender and the Backup Servicer on or prior fail to closing.
(ii) Not later than 12:00 noon New York time two Business Days prior to each Reporting Dateset a mutually agreeable Servicing Fee Rate in good faith negotiations after the Servicing Transfer Date and the subsequent Event of Default, the Backup Servicer shall accept delivery of tape from the Servicer, which shall include but not be limited may in its sole discretion resign as successor Servicer hereunder at no cost to the following information: the name, number and name of the related Lessee for each Contract, the collection status, the contract status, the principal balance and the ADCB (the "Tape"). The Servicer shall provide, or cause the Subservicer to provide, the Tape on each Reporting Date as described above.
(b) On or before the date on which the initial Purchase occurs, and until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Purchaser and the Deal Agent, the following duties and obligations:
(i) Prior to the related Payment Date, Lender shall reimburse the Backup Servicer shall review the Monthly Report to ensure that it is complete on its face and that the following items in such Monthly Report have been accurately calculated, if applicable, and reported: (A) the ADCB, (B) the Backup for any unreimbursed Servicing Fee, (C) the Average ADCB, (D) the accounts that are 30-60 days past due, (E) the accounts that are 61-90 days past due, (E) the accounts that are 90+ days past due, (F) the accounts that are Defaulted Contracts, (G) the Delinquency Ratio and (H) the Default Ratio. The Backup Servicer shall notify the Deal Agent and the Servicer of any disagreements with the Monthly Report based on such review not later than the Business Day preceding such Payment Date to such Persons.
(ii) If the Servicer disagrees with the report provided under paragraph (i) above Advances made by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer if possible, and notify the Deal Agent of the resolution thereof. The Servicer hereby agrees to cooperate at its own expense, with the Backup Servicer in reconciling any discrepancies herein. If within 20 days after the delivery of the report provided under paragraph (i) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Deal Agent of the continued existence of such discrepancy. Following receipt of such notice by the Deal Agent, the Servicer shall deliver to the Deal Agent, the Purchasers, and the Backup Servicer no later than the related Payment Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer.
(c) After the receipt of an effective Termination Notice by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer, under this Agreement, whether with respect to the Contracts or otherwise shall pass to Mortgage Loans and be vested in any unreimbursed Servicing Transfer Costs incurred by the Backup Servicer, subject Servicer prior to and in accordance with the provisions date of Section 6.25, as long as such resignation.
(l) If the Backup Servicer is not prohibited by an applicable provision of law from fulfilling the same, terminated as evidenced by an Opinion of Counsel.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidatedwithout cause or, is required by the Owner (ii) which may result from any merger or consolidation to which with the Backup Servicer shall be a party, or (iii) which may succeed to the properties and assets prior written consent of the Lender) or the Lender to resign as Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its back-up servicing obligations hereunderServicer, the Backup Servicer shall be entitled paid from the Collection Account (or from the Lender if there are insufficient funds in the Collection Account) a termination fee equal to receive the Backup Servicing Fee in respect Rate accrued for nine (9) months (on the basis of each Monthly Period (or portion thereofa 360-day year and twelve 30-day months) until less the first to occur number of the date on which the Backup Servicer becomes a Successor Servicer, resigns or is removed as Backup Servicer or termination of this Agreement.
(f) The Backup Servicer may resign at any time by not less than 120 days notice to the Deal Agent, the Liquidity Agent, the Servicer, the Seller and the Originator. In addition, the Backup Servicer may be removed without cause by the Deal Agent by notice then given in writing to the Servicer, the Seller and the Backup Servicer. In the event of any such resignation or removal, the Backup Servicer may be replaced by (i) the Servicer, acting with the consent of the Deal Agent or (ii) if no such replacement is appointed within 30 days following such removal or resignation, by the Deal Agent.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto months that the Backup Servicer will be responsible for any misconduct or negligence has already received a payment as Backup Servicer on the part aggregate principal balance of the Mortgage Loans on the date of such agentstermination, attorneys if such termination or custodians acting forced resignation occurs on or prior to the routine and ordinary day-to-day operations for and on behalf nine month anniversary of the Backup ServicerEffective Date. Neither the Backup Servicer nor any of its officers, directors, employees or agents No termination fee shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages or expenses which result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(h) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any computer tape, certificate or other data or document delivered payable to the Backup Servicer hereunder or on which if the Backup Servicer must rely in order is terminated as Backup Servicer without cause or, is required to perform its obligations hereunder, and the Seller, Purchaser, Deal Agent, Liquidity Agent, Collateral Custodian and resign as Backup Servicer, shall look only to after the Servicer to perform such obligations. The Backup Servicer, and 9-month anniversary of the Collateral Custodian shall have no responsibility and shall not be in default hereunder Effective Date or incur any liability for any failure, error, malfunction or any delay in carrying out any of their respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person resigns pursuant to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party, including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party, (iii) the invalidity or unenforceability of any Asset or Contract under applicable law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Asset, Contract or any item of Equipment, or (v) the acts or omissions of any successor Backup ServicerSection 9.03(k).
Appears in 1 contract
Sources: Servicing Agreement (American Business Financial Services Inc /De/)
Backup Servicer. (a) On or before the date on which the initial Purchase occurs, until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Deal Agent and the PurchaserSecured Parties, the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Monthly Reports in hard copy and on computer tape; provided, however, the computer tape is in an MS-DOS, PC readable ASCII format or format to be agreed upon by the Backup Servicer and the Servicer on or prior to closing.
(ii) Not later than 12:00 noon New York time two Business Days prior to each Reporting Date, the Backup Servicer shall accept delivery of tape from the Servicer, which shall include but not be limited to the following information: the name, number and name of the related Lessee for each Contract, the collection status, the contract status, the principal balance and the ADCB (the "Tape"). The Servicer shall provide, or cause the Subservicer to provide, the Tape on each Reporting Date as described above.
(b) On or before the date on which the initial Purchase occurs, and until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Purchaser Secured Parties and the Deal Agent, the following duties and obligations:
(i) Prior to the related Payment Date, the Backup Servicer shall review the Monthly Report to ensure that it is complete on its face and that the following items in such Monthly Report have been accurately calculated, if applicable, and reported: (A) the ADCB, (B) the Backup Servicing Fee, (C) the Average ADCB, (D) the accounts that are 30-60 days past due, (E) the accounts that are 61-90 days past due, (E) the accounts that are 90+ days past due, (F) the accounts that are Defaulted Contracts, (G) the Delinquency Ratio and (H) the Default Ratio. The Backup Servicer shall notify the Deal Agent and the Servicer of any disagreements with the Monthly Report based on such review not later than the Business Day preceding such Payment Date to such Persons.
(ii) If the Servicer disagrees with the report provided under paragraph (i) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer if possible, and notify the Deal Agent of the resolution thereof. The Servicer hereby agrees to cooperate at its own expense, with the Backup Servicer in reconciling any discrepancies herein. If within 20 days after the delivery of the report provided under paragraph (i) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Deal Agent of the continued existence of such discrepancy. Following receipt of such notice by the Deal Agent, the Servicer shall deliver to the Deal Agent, the PurchasersSecured Parties, and the Backup Servicer no later than the related Payment Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer.
(c) After the receipt of an effective Termination Notice by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer, under this Agreement, whether with respect to the Contracts or otherwise shall pass to and be vested in the Backup Servicer, subject to and in accordance with the provisions of Section 6.25, as long as the Backup Servicer is not prohibited by an applicable provision of law from fulfilling the same, as evidenced by an Opinion of Counsel.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) which may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) which may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its back-up servicing obligations hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee in respect of each Monthly Period (or portion thereof) until the first to occur of the date on which the Backup Servicer becomes a Successor Servicer, resigns or is removed as Backup Servicer or termination of this Agreement.
(f) The Backup Servicer may resign at any time by not less than 120 days notice to the Deal Agent, the Liquidity Agent, the Servicer, the Seller and the Originator. In addition, the Backup Servicer may be removed without cause by the Deal Agent by notice then given in writing to the Servicer, the Seller and the Backup Servicer. In the event of any such resignation or removal, the Backup Servicer may be replaced by (i) the Servicer, acting with the consent of the Deal Agent or (ii) if no such replacement is appointed within 30 days following such removal or resignation, by the Deal Agent.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages or expenses which result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(h) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any computer tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the Seller, PurchaserSecured Parties, Deal Agent, Liquidity Agent, Collateral Custodian and Backup Servicer, shall look only to the Servicer to perform such obligations. The Backup Servicer, and the Collateral Custodian shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of their respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party, including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party, (iii) the invalidity or unenforceability of any Asset or Contract under applicable law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Asset, Contract or any item of Equipment, or (v) the acts or omissions of any successor Backup Servicer.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Fidelity Leasing Inc)
Backup Servicer. (a) On or before the date on which the initial Purchase occurs, until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Deal Agent and the PurchaserSecured Parties, the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Monthly Reports in hard copy and on computer tape; provided, however, the computer tape is in an MS-DOS, PC readable ASCII format or format to be agreed upon by the Backup Servicer and the Servicer on or prior to closing.
(ii) Not later than 12:00 noon (New York time City time) two Business Days prior to each Reporting Date, the Backup Servicer shall accept delivery of tape from the Servicer, which shall include but not be limited to the following information: the name, number and name of the related Lessee for each Contract, the collection status, the contract status, the principal balance and the ADCB (the "Tape"). The Servicer shall provide, or cause the Subservicer to provide, the Tape on each Reporting Date as described above.
(b) On or before the date on which the initial Purchase occurs, and until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Purchaser Secured Parties and the Deal Agent, the following duties and obligations:
(i) Prior to the related Payment Date, the Backup Servicer shall review the Monthly Report to ensure that it is complete on its face and that the following items in such Monthly Report have been accurately calculated, if applicable, and reported: (A) the ADCB, (B) the Backup Servicing Fee, (C) the Average ADCB, (D) the accounts that are 30-60 days past due, (E) the accounts that are 61-90 days past due, (E) the accounts that are 90+ days past due, (F) the accounts that are Defaulted Contracts, (G) the Delinquency Ratio and (H) the Default Ratio. The Backup Servicer shall notify the Deal Agent and the Servicer of any disagreements with the Monthly Report based on such review not later than the Business Day preceding such Payment Date to such Persons.
(ii) If the Servicer disagrees with the report provided under paragraph (i) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer if possible, and notify the Deal Agent of the resolution thereof. The Servicer hereby agrees to cooperate at its own expense, with the Backup Servicer in reconciling any discrepancies herein. If within 20 days after the delivery of the report provided under paragraph (i) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Deal Agent of the continued existence of such discrepancy. Following receipt of such notice by the Deal Agent, the Servicer shall deliver to the Deal Agent, the PurchasersSecured Parties, and the Backup Servicer no later than the related Payment Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer.
(c) After the receipt of an effective Termination Notice by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer, under this Agreement, whether with respect to the Contracts or otherwise shall pass to and be vested in the Backup Servicer, subject to and in accordance with the provisions of Section 6.25, as long as the Backup Servicer is not prohibited by an applicable provision of law from fulfilling the same, as evidenced by an Opinion of Counsel.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) which may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) which may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its back-up servicing obligations hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee in respect of each Monthly Period (or portion thereof) until the first to occur of the date on which the Backup Servicer becomes a Successor Servicer, resigns or is removed as Backup Servicer or termination of this Agreement.
(f) The Backup Servicer may resign at any time by not less than 120 days notice to the Deal Agent, the Liquidity Agent, the Servicer, the Seller Borrower and the Originator, if the Backup Servicer finds a replacement backup servicer approved in writing by the Deal Agent. In addition, the Backup Servicer may be removed without cause by the Deal Agent by notice then given in writing to the Servicer, the Seller Borrower and the Backup Servicer. In the event of any such resignation or removal, the Backup Servicer may be replaced by (i) the Servicer, acting with the consent of the Deal Agent or (ii) if no such replacement is appointed within 30 days following such removal or resignation, by the Deal Agent.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the ServicerServicer or the Subservicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages or expenses which result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(h) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any computer tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the SellerBorrower, PurchaserSecured Parties, Deal Agent, Liquidity Agent, Collateral Custodian and Backup Servicer, shall look only to the Servicer to perform such obligations. The Backup Servicer, and the Collateral Custodian shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of their respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party, including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party, (iii) the invalidity or unenforceability of any Asset or Contract under applicable law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Asset, Contract or any item of Equipment, or (v) the acts or omissions of any successor Backup Servicer.
Appears in 1 contract
Sources: Receivables Credit Agreement (Fidelity Leasing Inc)
Backup Servicer. (a) On or before the date on which the initial Purchase occurs, Advance occurs and until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Deal Agent and the PurchaserSecured Parties, the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Monthly Reports in hard copy and on computer tape; provided, however, -------- ------- the computer tape is in an MS-DOS, PC readable ASCII format or format to be agreed upon by the Backup Servicer and the Servicer on or prior to closing.
(ii) Not later than 12:00 noon New York time two Business Days prior to each Reporting Date, the Servicer shall provide to the Backup Servicer and the Backup Servicer shall accept delivery of tape (the "Tape") from the ---- Servicer, which shall include but not be limited to the following information: (x) for each Loan, the name, name and number and name of the related Lessee for each ContractObligor, the collection status, the contract status, the date of each Scheduled Payment and the outstanding principal balance and (y) the ADCB (the "Tape"). The Servicer shall provide, or cause the Subservicer to provide, the Tape on each Reporting Date as described aboveAggregate Loan Balance.
(b) On or before the date on which the initial Purchase occursFunding Date, and until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Purchaser Secured Parties and the Deal Agent, the following duties and obligations:
(i) Prior to the related Payment Date, the Backup Servicer shall review the Monthly Report to ensure that it is complete on its face and that the following items in such Monthly Report have been accurately calculated, if applicable, and reported: (A) the ADCBAggregate Loan Balance, (B) the Backup Servicing Fee, (C) the Average ADCBaverage Loan Balance, (D) the accounts Loans that are 3030 or more days Delinquent (other than Charged-60 days past dueOff Loans), (E) the accounts that are 61Charged-90 days past due, (E) the accounts that are 90+ days past dueOff Loans, (F) the accounts that are Defaulted ContractsPortfolio Yield, (G) the Delinquency Ratio for the current Collection Period and the two immediately preceding Collection Periods, (H) the Default Ratio. The Backup Servicer shall notify Charged-Off Ratio for the Deal Agent current Collection Period and the Servicer of any disagreements with the Monthly Report based on such review not later than the Business Day two immediately preceding such Payment Date to such Persons.
(ii) If the Servicer disagrees with the report provided under paragraph (i) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer if possible, and notify the Deal Agent of the resolution thereof. The Servicer hereby agrees to cooperate at its own expense, with the Backup Servicer in reconciling any discrepancies herein. If within 20 days after the delivery of the report provided under paragraph (i) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Deal Agent of the continued existence of such discrepancy. Following receipt of such notice by the Deal Agent, the Servicer shall deliver to the Deal Agent, the Purchasers, and the Backup Servicer no later than the related Payment Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer.
(c) After the receipt of an effective Termination Notice by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer, under this Agreement, whether with respect to the Contracts or otherwise shall pass to and be vested in the Backup Servicer, subject to and in accordance with the provisions of Section 6.25, as long as the Backup Servicer is not prohibited by an applicable provision of law from fulfilling the same, as evidenced by an Opinion of Counsel.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidatedCollection Periods, (ii) which may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) which may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its back-up servicing obligations hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee in respect of each Monthly Period (or portion thereof) until the first to occur of the date on which the Backup Servicer becomes a Successor Servicer, resigns or is removed as Backup Servicer or termination of this Agreement.
(f) The Backup Servicer may resign at any time by not less than 120 days notice to the Deal Agent, the Liquidity Agent, the Servicer, the Seller and the Originator. In addition, the Backup Servicer may be removed without cause by the Deal Agent by notice then given in writing to the Servicer, the Seller and the Backup Servicer. In the event of any such resignation or removal, the Backup Servicer may be replaced by (iI) the Servicer, acting with the consent of the Deal Agent or Rolling Three- Month Delinquency Ratio and (ii) if no such replacement is appointed within 30 days following such removal or resignation, by the Deal Agent.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages or expenses which result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(h) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any computer tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the Seller, Purchaser, Deal Agent, Liquidity Agent, Collateral Custodian and Backup Servicer, shall look only to the Servicer to perform such obligations. The Backup Servicer, and the Collateral Custodian shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of their respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party, including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party, (iiiJ) the invalidity or unenforceability of any Asset or Contract under applicable law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Asset, Contract or any item of Equipment, or (v) the acts or omissions of any successor Backup Servicer.Rolling Three-
Appears in 1 contract
Sources: Loan Funding and Servicing Agreement (Healthcare Financial Partners Inc)
Backup Servicer. (a) On or before the date on which the initial Purchase occurs, until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Deal Agent and the PurchaserSecured Parties, the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Monthly Reports in hard copy and on computer tape; provided, however, the computer tape is in an MS-DOS, PC readable ASCII format or format to be agreed upon by the Backup Servicer and the Servicer on or prior to closing.
(ii) Not later than 12:00 noon New York time two Business Days prior to each Reporting Date, the Backup Servicer shall accept delivery of tape from the Servicer, which shall include but not be limited to the following information: the name, number and name of the related Lessee Obligor for each ContractLoan, the collection status, the contract status, the principal balance and the ADCB Aggregate Outstanding Loan Balance (the "Tape"). The Servicer shall provide, or cause the Subservicer to provide, provide the Tape on each Reporting Date as described above.
(b) On or before the date on which the initial Purchase occurs, and until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Purchaser Secured Parties and the Deal Agent, the following duties and obligations:
(i) Prior to the related Payment Date, the Backup Servicer shall review the Monthly Report to ensure that it is complete on its face and that the following items in such Monthly Report have been accurately calculated, if applicable, and reported: (A) the ADCB, (B) the Backup Servicing Fee, (C) the Average ADCB, (D) the accounts that are 30-60 days past due, (E) the accounts that are 61-90 days past due, (E) the accounts that are 90+ days past due, (F) the accounts that are Defaulted Contracts, (G) the Delinquency Ratio and (H) the Default Ratio. The Backup Servicer shall notify the Deal Agent and the Servicer of any disagreements with the Monthly Report based on such review not later than the Business Day preceding such Payment Date to such Persons.
(ii) If the Servicer disagrees with the report provided under paragraph (i) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer if possible, and notify the Deal Agent of the resolution thereof. The Servicer hereby agrees to cooperate at its own expense, with the Backup Servicer in reconciling any discrepancies herein. If within 20 days after the delivery of the report provided under paragraph (i) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Deal Agent of the continued existence of such discrepancy. Following receipt of such notice by the Deal Agent, the Servicer shall deliver to the Deal Agent, the Purchasers, and the Backup Servicer no later than the related Payment Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer.
(c) After the receipt of an effective Termination Notice by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer, under this Agreement, whether with respect to the Contracts or otherwise shall pass to and be vested in the Backup Servicer, subject to and in accordance with the provisions of Section 6.25, as long as the Backup Servicer is not prohibited by an applicable provision of law from fulfilling the same, as evidenced by an Opinion of Counsel.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) which may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) which may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its back-up servicing obligations hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee in respect of each Monthly Period (or portion thereof) until the first to occur of the date on which the Backup Servicer becomes a Successor Servicer, resigns or is removed as Backup Servicer or termination of this Agreement.
(f) The Backup Servicer may resign at any time by not less than 120 days notice to the Deal Agent, the Liquidity Agent, the Servicer, the Seller and the Originator. In addition, the Backup Servicer may be removed without cause by the Deal Agent by notice then given in writing to the Servicer, the Seller and the Backup Servicer. In the event of any such resignation or removal, the Backup Servicer may be replaced by (i) the Servicer, acting with the consent of the Deal Agent or (ii) if no such replacement is appointed within 30 days following such removal or resignation, by the Deal Agent.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages or expenses which result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(h) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any computer tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the Seller, Purchaser, Deal Agent, Liquidity Agent, Collateral Custodian and Backup Servicer, shall look only to the Servicer to perform such obligations. The Backup Servicer, and the Collateral Custodian shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of their respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party, including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party, (iii) the invalidity or unenforceability of any Asset or Contract under applicable law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Asset, Contract or any item of Equipment, or (v) the acts or omissions of any successor Backup Servicer.the
Appears in 1 contract
Sources: Loan Purchase and Servicing Agreement (First International Bancorp Inc)
Backup Servicer. (a) On or before the date on which the initial Purchase occurs, until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Deal Agent and the PurchaserSecured Parties, the following duties and obligations:
(i) On or before the Closing Initial Purchase Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Monthly Reports in hard copy and on computer tape; provided, however, the computer tape is in an MS-DOS, PC readable ASCII electronic format or format acceptable to be agreed upon by the Backup Servicer and the Servicer on or prior to closingBackup Servicer.
(ii) Not later than 12:00 noon New York time two Business Days prior to each Reporting Date, the Backup Servicer shall accept delivery of tape from the Servicer, which shall include but not be limited to the following information: the name, number and name of the related Lessee for each Contract, the collection status, the contract status, the principal balance balance, and the ADCB as of the related Determination Date, the Scheduled Payments for each Contract, the Discount Rate for each Contract, the maturity date for each Contract and any other information set forth in the Monthly Report (the "Tape"). The Servicer shall provide, or cause the Subservicer to provide, provide the Tape on each Reporting Date as described above. If the Servicer fails to provide the Tape to the Backup Servicer by the time set forth in clause (ii) above, the Backup Servicer shall have the greater of (i) two (2) Business Days, or (ii) such other period of time provided herein, to perform the review set forth in clause (b)(i) below.
(b) On or before the date on which the initial Purchase occursPrior to each Payment Date, and until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Purchaser Secured Parties and the Deal Agent, the following duties and obligations:
(i) Prior to the related Payment Date, the Backup Servicer shall review the Monthly Report to ensure that it is complete on its face and that the following items in such Monthly Report have been accurately calculated, if applicable, and reported: (A) the ADCB, (B) the Backup Servicing Feeaverage ADCB, (C) the Average ADCB, (D) Discounted Contract Balances of the accounts Contracts that are 30-60 days past due, (ED) the accounts Discounted Contract Balances of the Contracts that are 61-90 days past due, (E) the accounts Discounted Contract Balances of the Contracts that are 90+ days past due, (F) the accounts Discounted Contract Balances of the Contracts that are Defaulted Contracts, (G) the Delinquency Ratio and (H) the Default Ratio. The Backup Servicer shall notify the Deal Agent and the Servicer of any disagreements with the Monthly Report based on such review not later than the Business Day preceding such Payment Date to such Persons.
(ii) If the Servicer disagrees with the report provided under paragraph (i) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer if possible, and notify the Deal Agent of the resolution thereof. The Servicer hereby agrees to cooperate at its own expense, with the Backup Servicer in reconciling any discrepancies herein. If within 20 days after the delivery of the report provided under paragraph (i) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Deal Agent of the continued existence of such discrepancy. Following receipt of such notice by the Deal Agent, the Servicer shall deliver to the Deal Agent, the Purchasers, and the Backup Servicer no later than the related Payment Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer.
(c) After the receipt of an effective Termination Notice by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer, under this Agreement, whether with respect to the Contracts or otherwise shall pass to and be vested in the Backup Servicer, subject to and in accordance with the provisions of Section 6.25, as long as the Backup Servicer is not prohibited by an applicable provision of law from fulfilling the same, as evidenced by an Opinion of Counsel.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) which may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) which may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its back-up servicing obligations hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee in respect of each Monthly Period (or portion thereof) until the first to occur of the date on which the Backup Servicer becomes a Successor Servicer, resigns or is removed as Backup Servicer or termination of this Agreement.
(f) The Backup Servicer may resign at any time by not less than 120 days notice to the Deal Agent, the Liquidity Agent, the Servicer, the Seller and the Originator. In addition, the Backup Servicer may be removed without cause by the Deal Agent by notice then given in writing to the Servicer, the Seller and the Backup Servicer. In the event of any such resignation or removal, the Backup Servicer may be replaced by (i) the Servicer, acting with the consent of the Deal Agent or (ii) if no such replacement is appointed within 30 days following such removal or resignation, by the Deal Agent.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages or expenses which result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(h) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any computer tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the Seller, Purchaser, Deal Agent, Liquidity Agent, Collateral Custodian and Backup Servicer, shall look only to the Servicer to perform such obligations. The Backup Servicer, and the Collateral Custodian shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of their respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party, including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party, (iii) the invalidity or unenforceability of any Asset or Contract under applicable law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Asset, Contract or any item of Equipment, or (v) the acts or omissions of any successor Backup Servicer.)
Appears in 1 contract
Sources: Receivables Purchase Agreement (American Business Financial Services Inc /De/)
Backup Servicer. (a) On or before the date on which the initial Purchase occurs, until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Deal Agent and the PurchaserSecured Parties, the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Monthly Reports in hard copy and on computer tape; provided, however, the computer tape is in an MS-DOS, PC readable ASCII format or format to be agreed upon by the Backup Servicer and the Servicer on or prior to closing.
(ii) Not later than 12:00 noon New York time two Business Days prior to each Reporting Date, the Backup Servicer shall accept delivery of tape from the Servicer, which shall include but not be limited to the following information: the name, number and name of the related Lessee Obligor for each ContractLoan, the collection status, the contract status, the principal balance and the ADCB Aggregate Outstanding Loan Balance (the "Tape"). The Servicer shall provide, or cause the Subservicer to provide, provide the Tape on each Reporting Date as described above.
(b) On or before the date on which the initial Purchase occurs, and until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Purchaser Secured Parties and the Deal Agent, the following duties and obligations:
(i) Prior to the related Payment Date, the Backup Servicer shall review the Monthly Report to ensure that it is complete on its face and that the following items in such Monthly Report have been accurately calculated, if applicable, and reported: (Aa) the ADCBAggregate Outstanding Loan Balance, (Bb) the Backup Servicing Fee, (Cc) the Average ADCB, (D) the accounts Loans that are 30-60 days past due, (Ed) the accounts Loans that are 61-90 days past due, (E) the accounts Loans that are 90+ days past due, (F) the accounts Loans that are Defaulted ContractsLoans, (G) the Delinquency Ratio Average Default Rate, and (H) the Default Average Net Loss Ratio. The Backup Servicer shall notify the Deal Agent and the Servicer of any disagreements with the Monthly Report based on such review not later than the Business Day preceding such Payment Date to such Persons.
(ii) If the Servicer disagrees with the report provided under paragraph (i) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer if possible, and notify the Deal Agent of the resolution thereof. The Servicer hereby agrees to cooperate at its own expense, with the Backup Servicer in reconciling any discrepancies herein. If within 20 days after the delivery of the report provided under paragraph (i) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Deal Agent of the continued existence of such discrepancy. Following receipt of such notice by the Deal Agent, the Servicer shall deliver to the Deal Agent, the PurchasersSecured Parties, and the Backup Servicer no later than the related Payment Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer.
(c) After the receipt of an effective Termination Notice by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer, under this Agreement, whether with respect to the Contracts Loans or otherwise shall pass to and be vested in the Backup Servicer, subject to and in accordance with the provisions of Section 6.256.27, as long as the Backup Servicer is not prohibited by an applicable provision of law from fulfilling the same, as evidenced by an Opinion of Counsel.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) which may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) which may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its back-up servicing obligations hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee in respect of each Monthly Period (or portion thereof) until the first to occur of the date on which the Backup Servicer becomes a Successor Servicer, resigns or is removed as Backup Servicer or termination of this Agreement.
(f) The Backup Servicer may resign at any time by not less than 120 days notice to the Deal Agent, the Liquidity Agent, the Servicer, the Seller and the Originator. In addition, the Backup Servicer may be removed without cause by the Deal Agent by notice then given in writing to the Servicer, the Seller and the Backup Servicer. In the event of any such resignation or removal, the Backup Servicer may be replaced by (i) the Servicer, acting with the consent of the Deal Agent or (ii) if no such replacement is appointed within 30 days following such removal or resignation, by the Deal Agent.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages or expenses which result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(h) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any computer tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the Seller, PurchaserSecured Parties, Deal Agent, Liquidity Agent, Collateral Custodian and Backup Servicer, shall look only to the Servicer to perform such obligations. The Backup Servicer, Servicer and the Collateral Custodian shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of their respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party, including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party, (iii) the invalidity or unenforceability of any Asset or Contract under applicable law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Asset, Contract or any item of Equipment, or (v) the acts or omissions of any successor Backup Servicer.
Appears in 1 contract
Sources: Loan Purchase and Servicing Agreement (First International Bancorp Inc)
Backup Servicer. (a) On or before the date on which the initial Purchase occurs, until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Deal Agent and the PurchaserSecured Parties, the following duties and obligations:
(i) On or before the Closing Date, the Backup Servicer shall accept from the Servicer delivery of the information required to be set forth in the Monthly Reports in hard copy and on computer tape; provided, however, the computer tape is in an MS-DOS, PC readable ASCII format or format to be agreed upon by the Backup Servicer and the Servicer on or prior to closing.
(ii) Not later than 12:00 noon New York time two Business Days prior to each Reporting Date, the Backup Servicer shall accept delivery of tape from the Servicer, which shall include but not be limited to the following information: the name, number and name of the related Lessee Obligor for each ContractLoan, the collection status, the contract status, the principal balance and the ADCB Aggregate Outstanding Loan Balance (the "Tape"). The Servicer shall provide, or cause the Subservicer to provide, provide the Tape on each Reporting Date as described above.
(b) On or before the date on which the initial Purchase occurs, and until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Purchaser Secured Parties and the Deal Agent, the following duties and obligations:
(i) Prior to the related Payment Date, the Backup Servicer shall review the Monthly Report to ensure that it is complete on its face and that the following items in such Monthly Report have been accurately calculated, if applicable, and reported: (A) the ADCBAggregate Outstanding Loan Balance, (B) the Backup Servicing Fee, (C) the Average ADCB, (D) the accounts Loans that 75 81 are 30-60 days past due, (ED) the accounts Loans that are 61-90 days past due, (E) the accounts Loans that are 90+ days past due, (F) the accounts Loans that are Defaulted ContractsLoans, (G) the Delinquency Ratio Average Default Rate, and (H) the Default Average Net Loss Ratio. The Backup Servicer shall notify the Deal Agent and the Servicer of any disagreements with the Monthly Report based on such review not later than the Business Day preceding such Payment Date to such Persons.
(ii) If the Servicer disagrees with the report provided under paragraph (i) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer if possible, and notify the Deal Agent of the resolution thereof. The Servicer hereby agrees to cooperate at its own expense, with the Backup Servicer in reconciling any discrepancies herein. If within 20 days after the delivery of the report provided under paragraph (i) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Deal Agent of the continued existence of such discrepancy. Following receipt of such notice by the Deal Agent, the Servicer shall deliver to the Deal Agent, the PurchasersSecured Parties, and the Backup Servicer no later than the related Payment Date a certificate describing the nature and amount of such discrepancies and the actions the Servicer proposes to take with respect thereto. With respect to the foregoing, the Backup Servicer, in the performance of its duties and obligations hereunder, is entitled to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited to, the completeness and accuracy thereof, provided by the Servicer.
(c) After the receipt of an effective Termination Notice by the Servicer in accordance with this Agreement, all authority, power, rights and responsibilities of the Servicer, under this Agreement, whether with respect to the Contracts Loans or otherwise shall pass to and be vested in the Backup Servicer, subject to and in accordance with the provisions of Section 6.256.27, as long as the Backup Servicer is not prohibited by an applicable provision of law from fulfilling the same, as evidenced by an Opinion of Counsel.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) which may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) which may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Backup Servicer under this Agreement without further act on the part of any of the parties to this Agreement.
(e) As compensation for its back-up servicing obligations hereunder, the Backup Servicer shall be entitled to receive the Backup Servicing Fee in respect of each Monthly Period (or portion thereof) until the first to occur of the date on which the Backup Servicer becomes a Successor Servicer, resigns or is removed as Backup Servicer or termination of this Agreement.
(f) The Backup Servicer may resign at any time by not less than 120 days notice to the Deal Agent, the Liquidity Agent, the Servicer, the Seller and the Originator. In addition, the Backup Servicer may be removed without cause by the Deal Agent by notice then given in writing to the Servicer, the Seller and the Backup Servicer. In the event of any such resignation or removal, the Backup Servicer may be replaced by (i) the Servicer, acting with the consent of the Deal Agent or (ii) if no such replacement is appointed within 30 days following such removal or resignation, by the Deal Agent.
(g) The Backup Servicer undertakes to perform only such duties and obligations as are specifically set forth in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations of the Backup Servicer hereunder. Without limiting the generality of the foregoing, the Backup Servicer, except as expressly set forth herein, shall have no obligation to supervise, verify, monitor or administer the performance of the Servicer. The Backup Servicer may act through its agents, attorneys and custodians in performing any of its duties and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer will be responsible for any misconduct or negligence on the part of such agents, attorneys or custodians acting on the routine and ordinary day-to-day operations for and on behalf of the Backup Servicer. Neither the Backup Servicer nor any of its officers, directors, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages or expenses which result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreement.
(h) The Backup Servicer shall not be liable for any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any computer tape, certificate or other data or document delivered to the Backup Servicer hereunder or on which the Backup Servicer must rely in order to perform its obligations hereunder, and the Seller, Purchaser, Deal Agent, Liquidity Agent, Collateral Custodian and Backup Servicer, shall look only to the Servicer to perform such obligations. The Backup Servicer, and the Collateral Custodian shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of their respective duties under this Agreement if such failure or delay results from the Backup Servicer acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party, including the Servicer (ii) any inaccuracy or omission in a notice or communication received by the Backup Servicer from any third party, (iii) the invalidity or unenforceability of any Asset or Contract under applicable law, (iv) the breach or inaccuracy of any representation or warranty made with respect to any Asset, Contract or any item of Equipment, or (v) the acts or omissions of any successor Backup Servicer.
Appears in 1 contract
Sources: Loan Purchase and Servicing Agreement (First International Bancorp Inc)
Backup Servicer. (a) On or before From and after the date on which the initial Purchase occurs, Effective Date hereof until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Deal Agent and the Purchaser, the following duties and obligations:
(i) On or before the Closing Servicing Transfer Date, the Backup Servicer shall accept from act as back-up servicer with respect to the Servicer delivery of the information required to be Mortgage Loans, and shall perform such functions, duties, obligations, undertakings and responsibilities as set forth in SECTION 9.03(B) below. Prior to the Monthly Reports in hard copy and on computer tape; provided, however, the computer tape is in an MS-DOS, PC readable ASCII format or format to be agreed upon by the Backup Servicer and the Servicer on or prior to closing.
(ii) Not later than 12:00 noon New York time two Business Days prior to each Reporting Servicing Transfer Date, the Backup Servicer shall accept delivery of tape from the Servicerhave only those duties and obligations imposed by it described in SECTION 9.03(B) below, and shall have no obligations or duties under any agreement to which shall include it is not a party, including but not be limited to the following information: the namevarious agreements named herein. In its capacity as Backup Servicer, number and name it shall in no event be liable for any obligations of the Borrowers or the Servicer to any party, whether hereunder or under any other agreement, which are not related Lessee for each Contractto servicing functions, the collection statusincluding, the contract statuswithout limitation, the principal balance and the ADCB (the "Tape"). The Servicer shall provide, or cause the Subservicer to provide, the Tape on each Reporting Date as described aboveany repurchase obligations.
(b) On or before the date on which the initial Purchase occurs, and until the receipt by the Servicer of a Termination Notice, the Backup Servicer shall perform, on behalf of the Purchaser and the Deal Agent, the following duties and obligations:
(i) Prior to the related Payment Date, the Backup Servicer shall review the Monthly Report to ensure that it is complete on its face and that the following items in such Monthly Report have been accurately calculated, if applicable, and reported: (A) the ADCB, (B) the Backup Servicing Fee, (C) the Average ADCB, (D) the accounts that are 30-60 days past due, (E) the accounts that are 61-90 days past due, (E) the accounts that are 90+ days past due, (F) the accounts that are Defaulted Contracts, (G) the Delinquency Ratio and (H) the Default Ratio. The Backup Servicer shall notify the Deal Agent and the Servicer of any disagreements with the Monthly Report based on such review not No later than the fifth (5th) Business Day preceding such Payment Date to such Persons.
(ii) If the Servicer disagrees with the report provided under paragraph (i) above by the Backup Servicer or if the Servicer or any subservicer has not reconciled such discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve such disagreement on or prior to the next succeeding Determination Date and shall settle such discrepancy with the Servicer if possible, and notify the Deal Agent of the resolution thereof. The Servicer hereby agrees to cooperate at its own expense, with the Backup Servicer in reconciling any discrepancies herein. If within 20 days after the delivery of the report provided under paragraph (i) above by the Backup Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly notify the Deal Agent of the continued existence of such discrepancy. Following receipt of such notice by the Deal Agenteach calendar month, the Servicer shall deliver to the Deal AgentBackup Servicer a complete set of servicing records in computer-readable form with respect to the payment, collection and other servicing activity of the PurchasersMortgage Loans during the preceding calendar month, and which records shall contain sufficient data to permit the Backup Servicer no to assume the duties of the Servicer hereunder without delay on account of the absence of relevant servicing information. The information described in the foregoing sentence and all other information provided by the Servicer to the Backup Servicer pursuant to the Agreement shall be in form and substance satisfactory to the Backup Servicer. On at least a monthly basis, the Backup Servicer shall convert and "map" the data contained in such servicing records to its own servicing system, and shall provide the Agent not later than the related Payment Date fifteenth (15th) day of each month commencing March 15, 2005, with a certificate describing certification by an appropriate officer of the nature and amount of such discrepancies and Backup Servicer to the actions effect that it has received from the Servicer proposes to take each monthly submission of servicing data, has completed such conversion and mapping of the data delivered with respect thereto. With respect to the foregoingimmediately preceding month, and is capable of assuming the duties of the Servicer if required to do so hereunder upon at least twenty (20) days' prior to written notice from the Agent.
(c) The Backup Servicer, in prior to assuming any of the performance of its Servicer's duties hereunder may not resign hereunder unless it arranges for a successor Backup Servicer reasonably acceptable to the Administrative Borrower and obligations hereunder, is entitled the Agent with not less than ninety (90) days' notice delivered to rely conclusively, and shall be fully protected in so relying, on the contents of each Tape, including, but not limited toAdministrative Borrower, the completeness Agent and accuracy thereof, provided by the Servicer.
(cd) After From and after the receipt Servicing Transfer Date, the Backup Servicer shall perform all of an effective Termination Notice by the Servicer in accordance with this Agreementfunctions, all authorityduties, powerobligations, rights undertakings and responsibilities of the Servicer, under this Agreement, whether with respect to the Contracts or otherwise shall pass to Servicer hereunder and be vested in the Backup Servicer, subject to and in accordance with the provisions of Section 6.25, as long as the Backup Servicer is not prohibited by an applicable provision of law from fulfilling the same, as evidenced by an Opinion of Counsel.
(d) Any Person (i) into which the Backup Servicer may be merged or consolidated, (ii) which may result from any merger or consolidation to which the Backup Servicer shall be a party, or (iii) which may succeed to the properties and assets of the Backup Servicer substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Backup Servicer hereunder, shall be the successor to the Servicer hereunder, but only in its capacity as Servicer under this Agreement. In the event the Backup Servicer becomes the successor Servicer, it shall not be liable for any acts or omissions of the Servicer under this Agreement without further or any other agreement or for any act on or omission of the part Servicer or its affiliated companies, any prior servicer or any other third party, which occurred in connection with the origination, receiving, processing, funding or servicing of a mortgage loan at any time prior to the Servicing Transfer Date or for the collection of any debt, costs, expenses or fees incurred or assessed by Servicer, or its affiliated companies or any third party in connection with the origination or servicing of a mortgage loan prior to the Servicing Transfer Date, and it shall not be deemed to have made any representations and warranties of the parties Servicer or any predecessor Servicer under this Agreement or any other agreement. In the event the Backup Servicer becomes the successor Servicer, it shall be not deemed to be in default thereunder by reason of any failure to make, or any delay in making, any distribution hereunder or any portion thereof caused by (a) the failure of the Servicer or any predecessor Servicer to (i) deliver, or any delay in delivering, cash, documents or records to it, (ii) cooperate as required by this Agreement, or (iii) deliver the Mortgage Loans to the Custodian as required by this Agreement, or (b) restrictions imposed by any regulatory authority having jurisdiction over the Servicer.
(e) As compensation for its back-up Upon the transfer of the servicing obligations hereunderof the Mortgage Loans, prior to the first Payment Date after the Servicing Transfer Date, the Agent shall cause the Custodian to provide the Backup Servicer shall with an officer's certificate that contains (i) a complete description of all material breaches by the Servicer which have not been fully cured and (ii) a confirmation that all reports required to be entitled to receive filed by the Backup Servicing Fee in respect of each Monthly Period (or portion thereof) until the first to occur of the date on which the Backup Servicer becomes a Successor Servicer, resigns or is removed as Backup Servicer or termination of this AgreementCustodian have been timely filed.
(f) The Backup Servicer may resign agrees to indemnify the Borrowers, the Servicer and the Agent, and any of their respective directors, officers, employees or agents from, and hold them harmless against, any and all costs, expenses (including reasonable attorney fees and disbursements), losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage or liability arose out of, or was imposed upon the Borrowers, the Servicer or the Agent and their respective directors, officers, employees and agents through the Backup Servicer's intentional misconduct or gross negligence, except to the extent such indemnified party's own bad faith, willful misconduct or gross negligence contributes to the costs, loss, claim, damage or liability. Each of the Borrowers, the Servicer and the Agent agrees, severally and not jointly, to indemnify the Backup Servicer, and any of its respective directors, officers, employees or agents from, and hold them harmless against, any and all costs, expenses (including reasonable attorney fees and disbursements), losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage or liability arose out of, or was imposed upon the Backup Servicer and its respective directors, officers, employees and agents through the intentional misconduct or gross negligence of the Borrowers, the Servicer or the Agent, except to the extent such indemnified party's own bad faith, willful misconduct or gross negligence contributes to the costs, loss, claim, damage or liability (for the avoidance of doubt, in no event shall Borrowers or Agent indemnify the Backup Servicer for the intentional misconduct or gross negligence of either (x) the other or (y) the Servicer). The Servicer and each of its affiliates agrees to indemnify the Backup Servicer, and any of its respective directors, officers, employees or agents from, and hold them harmless against, any and all costs, expenses (including reasonable attorney fees and disbursements), losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage or liability arose out of, or was imposed upon the Backup Servicer and its respective directors, officers, employees and agents through or for any act or omission of the Servicer or its affiliated companies, any prior servicer or any other third party, which occurred in connection with the origination, receiving, processing, funding or servicing of a mortgage loan at any time by not less than 120 days notice prior to the Deal AgentServicing Transfer Date or for the collection of any debt, the Liquidity Agentcosts, the expenses or fees incurred or assessed by Servicer, or its affiliated companies or any third party in connection with the Seller and the Originator. In addition, the Backup Servicer may be removed without cause by the Deal Agent by notice then given in writing origination or servicing of a mortgage loan prior to the Servicer, the Seller and the Backup Servicer. In the event of any such resignation or removal, the Backup Servicer may be replaced by (i) the Servicer, acting with the consent of the Deal Agent or (ii) if no such replacement is appointed within 30 days following such removal or resignation, by the Deal AgentServicing Transfer Date.
(g) The Backup Servicer undertakes will not be obligated to perform only such duties incur any expenses or costs (including, without limitation, legal fees and obligations as are specifically set forth the preparation and recording of all intervening assignments of mortgage) in this Agreement, it being expressly understood by all parties hereto that there are no implied duties or obligations connection with the transfer of servicing of the Backup Servicer hereunder. Without limiting the generality of the foregoing, Mortgage Loans to the Backup Servicer, except as expressly set forth herein, shall have no obligation or to supervise, verify, monitor or administer compel the performance of any obligations by any party to the Agreement. Without limiting any obligations of a terminated Servicer as provided above, if the Servicer is no longer the Servicer hereunder for any reason, such predecessor Servicer shall be responsible for paying any Servicing Transfer Costs incurred by the Backup Servicer in connection with the transfer of servicing from the predecessor Servicer; provided, that if the predecessor Servicer fails to pay any such Servicing Transfer Costs, the Agent shall cause such Servicing Transfer Costs to be paid out of the Mortgage Collection Account. In addition, if the Backup Servicer is the successor to the Servicer. The , and if the predecessor Servicer fails to pay any Servicing Transfer Costs incurred by the Backup Servicer, then the Backup Servicer may act through its agents, attorneys offset any such Servicing Transfer Costs against amounts that are payable or reimbursable to the predecessor Servicer with respect to unpaid Servicing Fees and custodians unreimbursed Servicing Advances as set forth below in performing any of its duties the following paragraph below (and obligations under this Agreement, it being understood by the parties hereto that the Backup Servicer shall only be paid such Servicing Transfer Costs from the Mortgage Collection Account to the extent it reasonably determines that such Servicing Transfer Costs will not be responsible for any misconduct recoverable pursuant to such offsets). To the extent such Servicing Transfer Costs remain unpaid by the predecessor Servicer, from the Mortgage Collection Account, or negligence on from offset against amounts that are payable or reimbursable to the part of predecessor Servicer with respect to unpaid Servicing Fees and unreimbursed Servicing Advances, such agentsunpaid Servicing Transfer Costs shall be paid by the Borrowers and the predecessor Servicer, attorneys or custodians acting on the routine jointly and ordinary day-to-day operations for and on behalf severally. The foregoing obligation of the Backup Servicer. Neither predecessor Servicer with respect to Servicing Transfer Costs shall not be deemed to limit any other liability the Backup predecessor Servicer nor may have to the other parties hereto in respect of any breach of its officers, directors, employees obligations or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages or expenses which result from the gross negligence or willful misconduct of it or them or the failure to perform materially in accordance with this Agreementduties hereunder.
(h) If the Backup Servicer is the successor to the Servicer, the Backup Servicer in such capacity shall remit all unpaid Servicing Fees accrued during the period prior to the Servicing Transfer and unreimbursed Servicing Advances outstanding on the Servicing Transfer Date to the predecessor Servicer; PROVIDED, HOWEVER, there shall be no duty to so remit if the Servicing Transfer is the result of an Event of Default under this Agreement with respect to the predecessor Servicer; and PROVIDED FURTHER, that such duty to reimburse relates only to all such unpaid Servicing Fees accrued during the period prior to the Servicing Transfer and unreimbursed Servicing Advances made by the predecessor Servicer prior to Servicing Transfer Date; and, FURTHER, PROVIDED, that the Backup Servicer in its capacity as successor Servicer shall be obliged to make such reimbursement only out of collections on the related Mortgage Loan, (including monthly collections, Liquidation Proceeds, Insurance Proceeds, or their equivalent) and such other amounts that the Servicer is permitted to collect from the related Mortgagor or otherwise relating to the related Mortgage Loan before the Backup Servicer in its capacity as successor Servicer reimburses itself for any unreimbursed Servicing Advances which it makes with respect to such Mortgage Loan. The Backup Servicer in its capacity as successor Servicer shall not be liable for remit any obligation of the Servicer contained in this Agreement or for any errors of the Servicer contained in any computer tape, certificate or other data or document delivered funds due to the Backup predecessor Servicer hereunder or under this paragraph on which the Backup Servicer must rely in order to perform its obligations hereunder, and the Seller, Purchaser, Deal Agent, Liquidity Agent, Collateral Custodian and Backup Servicer, shall look only to the Servicer to perform such obligations. Payment Date.
(i) The Backup Servicer, as compensation for its obligations and duties as Backup Servicer hereunder, shall be paid the Collateral Custodian shall have no responsibility and shall not be in default hereunder or incur any liability for any failure, error, malfunction or any delay in carrying out any of their respective duties under this Agreement if such failure or delay results from Backup Servicing Fee on each Payment Date pursuant to SECTION 5.
01. If the Backup Servicer acting in accordance with information prepared or supplied by a Person other than shall succeed as Servicer hereunder, the Backup Servicer or the failure of any such other Person shall no longer be entitled to prepare or provide such information. The Backup Servicer shall have no responsibility, shall not be in default and shall incur no liability for (i) any act or failure to act of any third party, including the Servicer (ii) any inaccuracy or omission in a notice or communication received by paid the Backup Servicer from any third party, (iii) the invalidity or unenforceability of any Asset or Contract under applicable law, (iv) the breach or inaccuracy of any representation or warranty made Servicing Fee with respect to any Assetperiod after the Servicing Transfer Date.
(j) If any of the Mortgage Loans are MERS Designated Mortgage Loans, Contract in connection with the termination or any item resignation of Equipmentthe Servicer hereunder, or (v) the acts or omissions Backup Servicer shall maintain itself as a member of any successor MERS in good standing and comply in all material respects with the MERS Procedures Manual in connection with the servicing of the Mortgage Loans that are registered with MERS, and the Servicer and Backup ServicerServicer shall cause MERS to designate on the MERS System the Backup Servicer as the current servicer of such Mortgage Loan.
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Sources: Servicing Agreement (American Business Financial Services Inc /De/)