Limitation of Liability of Successor Servicer Sample Clauses

Appears in 2 contracts

Sources: Sale and Servicing Agreement (Americas Carmart Inc), Sale and Servicing Agreement (Americas Carmart Inc)

Limitation of Liability of Successor Servicer. ~~(a)~~ The Successor Servicer shall be liable hereunder only to the extent of the obligations in Article II, Article III, Section 4.2 and Article VI in this Agreement (as modified hereby) and shall have no other duties or obligations under any other Transaction Document other than as provided in clause (d) below. Notwithstanding anything contained in this Agreement, the Successor Servicer (including the Backup Servicer, if the Backup Servicer becomes the Successor Servicer) shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer or any subservicer prior to the date that such Successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of any predecessor Servicer, (ii) no obligation to perform any repurchase, ~~28 Sale and Servicing Agreement (ACMAT 2022-1)~~ reimbursement or advancing obligations, if any, of the Servicer or any subservicer (including, without limitation the repurchase obligations under Section ~~3.6~~3.6 ), (iii) no obligation to pay any taxes required to be paid by the Servicer, (iv) no obligation to pay any of the expenses described in ~~Sections~~ Section 3.1(b)) , the fees, expenses or indemnities of the Indenture Trustee, Owner Trustee or Administrator in Section ~~3.10~~3.10 , the expenses described in Section ~~6.3(b~~6.2(b) and no obligation to pay any of the fees and expenses of any other party involved in this transaction, (v) no liability or obligation with respect to any Servicer indemnification, defense, or hold harmless obligations of any prior servicer including the original servicer. and (vi) no obligation with respect to the Exchange Act Filings in Section ~~3.11~~3.11 . The indemnification obligations of a Successor Servicer are expressly limited to those instances of gross negligence or willful misconduct of such Successor Servicer.Other than the duties specifically set forth in this Agreement, the Backup Servicer shall have no obligations hereunder, including, to supervise, verify, monitor or administer the performance of the Servicer or any subservicer thereof, except, if at all, in its capacity as Successor Servicer. The Backup Servicer shall have no liability for any actions taken or omitted by the Servicer or any subservicer thereof, except, in its capacity, if at all, as Successor Servicer. Without limiting the generality of the foregoing, if a Successor Servicer is appointed, the duties and obligations of the Servicer contained herein and in each of the other Transaction Documents shall be deemed modified as follows: (i) any provision providing that the Servicer shall take or omit to take any action, or shall have any obligation to do or not do any other thing, upon its “knowledge” (or any derivation thereof), “discovery” (or any derivation thereof) or awareness (or any derivation thereof) shall be interpreted as the actual knowledge of a Responsible Officer of such Successor Servicer or such Responsible Officer’s receipt of a written notice thereof, (ii) such Successor Servicer shall not be liable for any claims, liabilities or expenses relating to the engagement of any accountants or any report issued in connection with 759415058 23755032 29 Sale and Servicing Agreement (ACMAT 2024 - 1) such engagement and dissemination of any such report of any accountants appointed by it (except to the extent that any such claims, liabilities or expenses are caused by such Successor Servicer’s gross negligence or willful misconduct) pursuant to the provisions of any Transaction Document, and the dissemination of such report shall, if applicable, be subject to the consent of such accountants, and (iii) such Successor Servicer shall have no obligation to provide investment direction pursuant to any Transaction Document requiring investment direction from the ▇▇▇▇▇▇▇▇.▇▇ Successor Servicer will be responsible for delays attributable to any predecessor Servicer’s failure to deliver information, defects in the information supplied by such predecessor Servicer or other circumstances beyond the reasonable control of such Successor Servicer. In addition, a Successor Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any act or omission, failure, error, malfunction or any delay in carrying out any of its duties under this Agreement for: (A) any such failure or delay which results from such Successor Servicer acting in accordance with information prepared or supplied by a Person other than the Successor Servicer or the failure of any such other Person (including without limitation the parties hereto) or any other Transaction Document to prepare or provide such information or other circumstances beyond the reasonable control of such Successor Servicer; (B) any act or failure to act by any third party, including without limitation the parties hereto or any other Transaction Document; (C) any inaccuracy or omission in a notice or communication received by such Successor Servicer from any third parties; (D) the invalidity or unenforceability of any Receivable and the Receivable Files under applicable law; (E) the breach or inaccuracy of any representation or warranty made by America’s ~~Car-~~Car - Mart or any predecessor Servicer with respect to the Receivables and the Receivable Files; or (F) the acts or omissions of ~~any~~any predecessor Servicer.The Servicer shall perform all of its duties as Servicer as specifically enumerated herein and shall make deposits of Collections into the Collection Account pursuant to Section 8.2(a) of the Indenture. Additionally, the initial Servicer (i) shall provide written instruction to the Indenture Trustee regarding financing statements and file (or cause to be filed) financing statements pursuant to Sections 3.5 and 3.7 of the Indenture, (ii) shall exercise the powers necessary to cause the Issuer to engage in the activities listed in Section 2.3 of the Amended and Restated Trust Agreement, (iii) may, but shall not be obligated to, give investment directions to the Indenture Trustee pursuant to Section 8.3 of the Indenture, (iv) shall perform the duties of the Servicer as enumerated in the Custody Agreement and (v) shall perform the duties of the Servicer as enumerated in the Electronic Collateral Control Agreement; provided, however, that no Successor Servicer shall have any duty or obligation with respect the performance of the duties and obligations listed in this sentence. Reliance on Work Product . Notwithstanding anything contained in the Agreement to the contrary, any Successor Servicer is authorized to accept and rely on all of the accounting, records (including computer records) and work of the prior Servicer (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and such Successor Servicer shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer. If any error, inaccuracy, omission or incorrect or non - standard practice or procedure (collectively, “Errors”) exist in any Predecessor Servicer Work Product and such Errors make it materially more difficult to service or should cause or materially contribute to the Successor Servicer making or continuing any Errors (collectively, “Continued Errors”), the Successor Servicer shall have no duty, responsibility, obligation or liability for such Continued Errors; provided, however, that the Successor Servicer agrees to use its best efforts to prevent further Continued Errors. In the event that the Successor Servicer becomes aware of Errors or Continued Errors, it shall, with the prior 759415058 23755032 30 Sale and Servicing Agreement (ACMAT 2024 - 1) consent of the Noteholders representing 66 2/3% of the Outstanding Notes, use its best efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and Continued Errors and to prevent future Continued Errors. The Successor Servicer shall be entitled to recover its costs thereby expended in accordance with Section 4.4 hereof. Initial Servicer’s Agent . The initial Servicer shall appoint any Successor Servicer as the initial Servicer’s agent to execute, file, prepare, or record documents and otherwise perform on the initial Servicer’s behalf and in the initial Servicer’s name all actions reasonably necessary for the Successor Servicer to perform its duties defined herein. The initial Servicer shall appoint the Successor Servicer as the initial Servicer’s attorney - in - fact to act in the name of the initial Servicer to perform the duties of Servicer. Upon such Successor Servicer’s request, the initial Servicer shall execute and deliver to the Successor Servicer a revocable and limited power of attorney to further authorize the Successor Servicer to perform its duties. CLEAN - UP CALL SECTION 8.1 Clean - Up Call by Servicer . The Servicer shall have the right at its option (the “ Clean - Up Call ”) to purchase (and/or to designate one or more other persons to purchase) the Receivables, the Receivable Files and the Related Security (other than the Reserve Account) from the Issuer on any Payment Date if both of the following conditions are satisfied: (i) as of the last day of the related Collection Period, the Note Balance has declined to 10% or less of the Note Balance as of the Closing Date, and (ii) the sum of the Optional Purchase Price and the Available Funds for such Payment Date would be sufficient to pay the sum of (A) the Servicing Fee for such Payment Date and all unpaid Servicing Fees with respect to prior periods, (B) all fees, expenses and indemnities owed to the Indenture Trustee, the Backup Servicer, the Calculation Agent, the Certificate Registrar and the Owner Trustee and not previously paid (without giving effect to any caps), (C) interest then due on the Outstanding Notes and (D) the aggregate unpaid Note Balance of all of the Outstanding Notes. To exercise the Clean - Up Call, the Servicer (or its designee) shall deposit the Optional Purchase Price into the Collection Account on the Redemption Date. To avoid insufficient funds being available to make all payments as set forth in Section 4.4(a) in full, the Indenture Trustee shall, upon written directions from the Servicer (or its designee), withdraw any remaining amount on deposit in the Reserve Account and deposit such amounts into the Collection Account no later than 12:00 noon, New York City time, on the Business Day prior to the date of the Clean - Up Call. The Servicer shall furnish written notice of its election to exercise the Optional Purchase to the Indenture Trustee and the Owner Trustee not later than ten days prior to the date of the Optional Purchase. If the Servicer (or its designee) exercises the Optional Purchase, all Outstanding Notes shall be due and payable under the Indenture and the Notes shall be redeemed and in each case in whole but not in part on the related Payment Date for the Redemption Price. Following any such Optional Purchase, any funds remaining in the Reserve Account will be distributed to or at the direction of the Servicer.

Appears in 1 contract

Sources: Sale and Servicing Agreement (Americas Carmart Inc)

Limitation of Liability of Successor Servicer. ~~(a)~~ The Successor Servicer shall be liable hereunder only to the extent of the obligations in Article II, Article III, Section 4.2 and Article VI in this Agreement (as modified hereby) and shall have no other duties or obligations under any other Transaction Document other than as provided in clause (d) below. Notwithstanding anything contained in this Agreement, the Successor Servicer (including the Backup Servicer, if the Backup Servicer becomes the Successor Servicer) shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer or any subservicer prior to the date that such Successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of any predecessor Servicer, (ii) no obligation to perform any repurchase, ~~28 Sale and Servicing Agreement (ACMAT 2022-1)~~ reimbursement or advancing obligations, if any, of the Servicer or any subservicer (including, without limitation the repurchase obligations under Section ~~3.6~~3.6 ), (iii) no obligation to pay any taxes required to be paid by the Servicer, (iv) no obligation to pay any of the expenses described in ~~Sections~~ Section 3.1(b)) , the fees, expenses or indemnities of the Indenture Trustee, Owner Trustee or Administrator in Section ~~3.10~~3.10 , the expenses described in Section ~~6.3(b~~6.2(b) and no obligation to pay any of the fees and expenses of any other party involved in this transaction, (v) no liability or obligation with respect to any Servicer indemnification, defense, or hold harmless obligations of any prior servicer including the original servicer. and (vi) no obligation with respect to the Exchange Act Filings in Section ~~3.11~~3.11 . The indemnification obligations of a Successor Servicer are expressly limited to those instances of gross negligence or willful misconduct of such Successor Servicer.Other than the duties specifically set forth in this Agreement, the Backup Servicer shall have no obligations hereunder, including, to supervise, verify, monitor or administer the performance of the Servicer or any subservicer thereof, except, if at all, in its capacity as Successor Servicer. The Backup Servicer shall have no liability for any actions taken or omitted by the Servicer or any subservicer thereof, except, in its capacity, if at all, as Successor Servicer. Without limiting the generality of the foregoing, if a Successor Servicer is appointed, the duties and obligations of the Servicer contained herein and in each of the other Transaction Documents shall be deemed modified as follows: (i) any provision providing that the Servicer shall take or omit to take any action, or shall have any obligation to do or not do any other thing, upon its “knowledge” (or any derivation thereof), “discovery” (or any derivation thereof) or awareness (or any derivation thereof) shall be interpreted as the actual knowledge of a Responsible Officer of such Successor Servicer or such Responsible Officer’s receipt of a written notice thereof, (ii) such Successor Servicer shall not be liable for any claims, liabilities or expenses relating to the engagement of any accountants or any report issued in connection with 753507386 23738694 29 Sale and Servicing Agreement (ACMAT 2023 - 2) such engagement and dissemination of any such report of any accountants appointed by it (except to the extent that any such claims, liabilities or expenses are caused by such Successor Servicer’s gross negligence or willful misconduct) pursuant to the provisions of any Transaction Document, and the dissemination of such report shall, if applicable, be subject to the consent of such accountants, and (iii) such Successor Servicer shall have no obligation to provide investment direction pursuant to any Transaction Document requiring investment direction from the ▇▇▇▇▇▇▇▇.▇▇ Successor Servicer will be responsible for delays attributable to any predecessor Servicer’s failure to deliver information, defects in the information supplied by such predecessor Servicer or other circumstances beyond the reasonable control of such Successor Servicer. In addition, a Successor Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any act or omission, failure, error, malfunction or any delay in carrying out any of its duties under this Agreement for: (A) any such failure or delay which results from such Successor Servicer acting in accordance with information prepared or supplied by a Person other than the Successor Servicer or the failure of any such other Person (including without limitation the parties hereto) or any other Transaction Document to prepare or provide such information or other circumstances beyond the reasonable control of such Successor Servicer; (B) any act or failure to act by any third party, including without limitation the parties hereto or any other Transaction Document; (C) any inaccuracy or omission in a notice or communication received by such Successor Servicer from any third parties; (D) the invalidity or unenforceability of any Receivable and the Receivable Files under applicable law; (E) the breach or inaccuracy of any representation or warranty made by America’s ~~Car-~~Car - Mart or any predecessor Servicer with respect to the Receivables and the Receivable Files; or (F) the acts or omissions of ~~any~~any predecessor Servicer.The Servicer shall perform all of its duties as Servicer as specifically enumerated herein and shall make deposits of Collections into the Collection Account pursuant to Section 8.2(a) of the Indenture. Additionally, the initial Servicer (i) shall provide written instruction to the Indenture Trustee regarding financing statements and file (or cause to be filed) financing statements pursuant to Sections 3.5 and 3.7 of the Indenture, (ii) shall exercise the powers necessary to cause the Issuer to engage in the activities listed in Section 2.3 of the Amended and Restated Trust Agreement, (iii) may, but shall not be obligated to, give investment directions to the Indenture Trustee pursuant to Section 8.3 of the Indenture, (iv) shall perform the duties of the Servicer as enumerated in the Custody Agreement and (v) shall perform the duties of the Servicer as enumerated in the Electronic Collateral Control Agreement; provided, however, that no Successor Servicer shall have any duty or obligation with respect the performance of the duties and obligations listed in this sentence. Reliance on Work Product . Notwithstanding anything contained in the Agreement to the contrary, any Successor Servicer is authorized to accept and rely on all of the accounting, records (including computer records) and work of the prior Servicer (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and such Successor Servicer shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer. If any error, inaccuracy, omission or incorrect or non - standard practice or procedure (collectively, “Errors”) exist in any Predecessor Servicer Work Product and such Errors make it materially more difficult to service or should cause or materially contribute to the Successor Servicer making or continuing any Errors (collectively, “Continued Errors”), the Successor Servicer shall have no duty, responsibility, obligation or liability for such Continued Errors; provided, however, that the Successor Servicer agrees to use its best efforts to prevent further Continued Errors. In the event that the Successor Servicer becomes aware of Errors or Continued Errors, it shall, with the prior 753507386 23738694 30 Sale and Servicing Agreement (ACMAT 2023 - 2) consent of the Noteholders representing 66 2/3% of the Outstanding Notes, use its best efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and Continued Errors and to prevent future Continued Errors. The Successor Servicer shall be entitled to recover its costs thereby expended in accordance with Section 4.4 hereof. Initial Servicer’s Agent . The initial Servicer shall appoint any Successor Servicer as the initial Servicer’s agent to execute, file, prepare, or record documents and otherwise perform on the initial Servicer’s behalf and in the initial Servicer’s name all actions reasonably necessary for the Successor Servicer to perform its duties defined herein. The initial Servicer shall appoint the Successor Servicer as the initial Servicer’s attorney - in - fact to act in the name of the initial Servicer to perform the duties of Servicer. Upon such Successor Servicer’s request, the initial Servicer shall execute and deliver to the Successor Servicer a revocable and limited power of attorney to further authorize the Successor Servicer to perform its duties. CLEAN - UP CALL SECTION 8.1 Clean - Up Call by Servicer . The Servicer shall have the right at its option (the “ Clean - Up Call ”) to purchase (and/or to designate one or more other persons to purchase) the Receivables, the Receivable Files and the Related Security (other than the Reserve Account) from the Issuer on any Payment Date if both of the following conditions are satisfied: (i) as of the last day of the related Collection Period, the Note Balance has declined to 10% or less of the Note Balance as of the Closing Date, and (ii) the sum of the Optional Purchase Price and the Available Funds for such Payment Date would be sufficient to pay the sum of (A) the Servicing Fee for such Payment Date and all unpaid Servicing Fees with respect to prior periods, (B) all fees, expenses and indemnities owed to the Indenture Trustee, the Backup Servicer, the Calculation Agent, the Certificate Registrar and the Owner Trustee and not previously paid (without giving effect to any caps), (C) interest then due on the Outstanding Notes and (D) the aggregate unpaid Note Balance of all of the Outstanding Notes. To exercise the Clean - Up Call, the Servicer (or its designee) shall deposit the Optional Purchase Price into the Collection Account on the Redemption Date. To avoid insufficient funds being available to make all payments as set forth in Section 4.4(a) in full, the Indenture Trustee shall, upon written directions from the Servicer (or its designee), withdraw any remaining amount on deposit in the Reserve Account and deposit such amounts into the Collection Account no later than 12:00 noon, New York City time, on the Business Day prior to the date of the Clean - Up Call. The Servicer shall furnish written notice of its election to exercise the Optional Purchase to the Indenture Trustee and the Owner Trustee not later than ten days prior to the date of the Optional Purchase. If the Servicer (or its designee) exercises the Optional Purchase, all Outstanding Notes shall be due and payable under the Indenture and the Notes shall be redeemed and in each case in whole but not in part on the related Payment Date for the Redemption Price. Following any such Optional Purchase, any funds remaining in the Reserve Account will be distributed to or at the direction of the Servicer.

Appears in 1 contract

Sources: Sale and Servicing Agreement (Americas Carmart Inc)

Limitation of Liability of Successor Servicer. ~~(a)~~ The Successor Servicer shall be liable hereunder only to the extent of the obligations in Article II, Article III, Section 4.2 and Article VI in this Agreement (as modified hereby) and shall have no other duties or obligations under any other Transaction Document other than as provided in clause (d) below. Notwithstanding anything contained in this Agreement, the Successor Servicer (including the Backup Servicer, if the Backup Servicer becomes the Successor Servicer) shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer or any subservicer prior to the date that such Successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of any predecessor Servicer, (ii) no obligation to perform any repurchase, 28 751008784 22727759 29 Sale and Servicing Agreement (ACMAT ~~2022-~~2023 - 1) reimbursement or advancing obligations, if any, of the Servicer or any subservicer (including, without limitation the repurchase obligations under Section 3.6), (iii) no obligation to pay any taxes required to be paid by the Servicer, (iv) no obligation to pay any of the expenses described in ~~Sections~~ Section 3.1(b), the fees, expenses or indemnities of the Indenture Trustee, Owner Trustee or Administrator in Section 3.10, the expenses described in Section ~~6.3(b~~6.2(b) and no obligation to pay any of the fees and expenses of any other party involved in this transaction, (v) no liability or obligation with respect to any Servicer indemnification, defense, or hold harmless obligations of any prior servicer including the original servicer. and (vi) no obligation with respect to the Exchange Act Filings in Section 3.11. The indemnification obligations of a Successor Servicer are expressly limited to those instances of gross negligence or willful misconduct of such Successor Servicer.Other than the duties specifically set forth in this Agreement, the Backup Servicer shall have no obligations hereunder, including, to supervise, verify, monitor or administer the performance of the Servicer or any subservicer thereof, except, if at all, in its capacity as Successor Servicer. The Backup Servicer shall have no liability for any actions taken or omitted by the Servicer or any subservicer thereof, except, in its capacity, if at all, as Successor Servicer. Without limiting the generality of the foregoing, if a Successor Servicer is appointed, the duties and obligations of the Servicer contained herein and in each of the other Transaction Documents shall be deemed modified as follows: (i) any provision providing that the Servicer shall take or omit to take any action, or shall have any obligation to do or not do any other thing, upon its “knowledge” (or any derivation thereof), “discovery” (or any derivation thereof) or awareness (or any derivation thereof) shall be interpreted as the actual knowledge of a Responsible Officer of such Successor Servicer or such Responsible Officer’s receipt of a written notice thereof, (ii) such Successor Servicer shall not be liable for any claims, liabilities or expenses relating to the engagement of any accountants or any report issued in connection with such engagement and dissemination of any such report of any accountants appointed by it (except to the extent that any such claims, liabilities or expenses are caused by such Successor Servicer’s gross negligence or willful misconduct) pursuant to the provisions of any Transaction Document, and the dissemination of such report shall, if applicable, be subject to the consent of such accountants, and (iii) such Successor Servicer shall have no obligation to provide investment direction pursuant to any Transaction Document requiring investment direction from the ▇▇▇▇▇▇▇▇.▇▇ Successor Servicer will be responsible for delays attributable to any predecessor Servicer’s failure to deliver information, defects in the information supplied by such predecessor Servicer or other circumstances beyond the reasonable control of such Successor Servicer. In addition, a Successor Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any act or omission, failure, error, malfunction or any delay in carrying out any of its duties under this Agreement for: (A) any such failure or delay which results from such Successor Servicer acting in accordance with information prepared or supplied by a Person other than the Successor Servicer or the failure of any such other Person (including without limitation the parties hereto) or any other Transaction Document to prepare or provide such information or other circumstances beyond the reasonable control of such Successor Servicer; (B) any act or failure to act by any third party, including without limitation the parties hereto or any other Transaction Document; (C) any inaccuracy or omission in a notice or communication received by such Successor Servicer from any third parties; (D) the invalidity or unenforceability of any Receivable and the Receivable Files under applicable law; (E) the breach or inaccuracy of any representation or warranty made by America’s ~~Car-~~Car - Mart or any predecessor Servicer with respect to the Receivables and the Receivable Files; or (F) the acts or omissions of ~~any~~any 751008784 22727759 30 Sale and Servicing Agreement (ACMAT 2023 - 1) predecessor Servicer.The Servicer shall perform all of its duties as Servicer as specifically enumerated herein and shall make deposits of Collections into the Collection Account pursuant to Section 8.2(a) of the Indenture. Additionally, the initial Servicer (i) shall provide written instruction to the Indenture Trustee regarding financing statements and file (or cause to be filed) financing statements pursuant to Sections 3.5 and 3.7 of the Indenture, (ii) shall exercise the powers necessary to cause the Issuer to engage in the activities listed in Section 2.3 of the Amended and Restated Trust Agreement, (iii) may, but shall not be obligated to, give investment directions to the Indenture Trustee pursuant to Section 8.3 of the Indenture, (iv) shall perform the duties of the Servicer as enumerated in the Custody Agreement and (v) shall perform the duties of the Servicer as enumerated in the Electronic Collateral Control Agreement; provided, however, that no Successor Servicer shall have any duty or obligation with respect the performance of the duties and obligations listed in this sentence. Reliance on Work Product . Notwithstanding anything contained in the Agreement to the contrary, any Successor Servicer is authorized to accept and rely on all of the accounting, records (including computer records) and work of the prior Servicer (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and such Successor Servicer shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer. If any error, inaccuracy, omission or incorrect or non - standard practice or procedure (collectively, “Errors”) exist in any Predecessor Servicer Work Product and such Errors make it materially more difficult to service or should cause or materially contribute to the Successor Servicer making or continuing any Errors (collectively, “Continued Errors”), the Successor Servicer shall have no duty, responsibility, obligation or liability for such Continued Errors; provided, however, that the Successor Servicer agrees to use its best efforts to prevent further Continued Errors. In the event that the Successor Servicer becomes aware of Errors or Continued Errors, it shall, with the prior consent of the Noteholders representing 66 2/3% of the Outstanding Notes, use its best efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and Continued Errors and to prevent future Continued Errors. The Successor Servicer shall be entitled to recover its costs thereby expended in accordance with Section 4.4 hereof. Initial Servicer’s Agent . The initial Servicer shall appoint any Successor Servicer as the initial Servicer’s agent to execute, file, prepare, or record documents and otherwise perform on the initial Servicer’s behalf and in the initial Servicer’s name all actions reasonably necessary for the Successor Servicer to perform its duties defined herein. The initial Servicer shall appoint the Successor Servicer as the initial Servicer’s attorney - in - fact to act in the name of the initial Servicer to perform the duties of Servicer. Upon such Successor Servicer’s request, the initial Servicer shall execute and deliver to the Successor Servicer a revocable and limited power of attorney to further authorize the Successor Servicer to perform its duties. CLEAN - UP CALL SECTION 8.1 Clean - Up Call by Servicer . The Servicer shall have the right at its option (the “ Clean - Up Call ”) to purchase (and/or to designate one or more other persons to purchase) the Receivables, the Receivable Files and the Related Security (other than the Reserve Account) from the Issuer on any Payment Date if both of the following conditions are satisfied: (i) as of the last day of the related Collection Period, the Note Balance has declined to 10% or less of the Note Balance as of the Closing Date, and (ii) the sum of the Optional Purchase Price and the Available Funds for such Payment Date would be sufficient to pay the sum of (A) the Servicing Fee for such Payment Date and all unpaid Servicing Fees with respect to prior periods,

Appears in 1 contract

Sources: Sale and Servicing Agreement (Americas Carmart Inc)

Limitation of Liability of Successor Servicer. (a) The Successor Servicer shall be liable hereunder only to the extent of the obligations in Article II, Article III, Section 4.2 and Article VI in this Agreement (as modified hereby) and shall have no other duties or obligations under any other Transaction Document other than as provided in clause (d) below. Notwithstanding anything contained in this Agreement, the Successor Servicer (including the Backup Servicer, if the Backup Servicer becomes the Successor Servicer) shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer or any subservicer prior to the date that such Successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of any predecessor Servicer, (ii) no obligation to perform any repurchase, ~~28 Sale and Servicing Agreement (ACMAT 2022-1)~~ reimbursement or advancing obligations, if any, of the Servicer or any subservicer (including, without limitation the repurchase obligations under Section 3.6), (iii) no obligation to pay any taxes required to be paid by the Servicer, (iv) no obligation to pay any of the expenses described in ~~Sections~~ Section 3.1(b), the fees, expenses or indemnities of the Indenture Trustee, Owner Trustee or Administrator in Section 3.10, the expenses described in Section ~~6.3(b~~6.2(b) and no obligation to pay any of the fees and expenses of any other party involved in this transaction, (v) no liability or obligation with respect to any Servicer indemnification, defense, or hold harmless obligations of any prior servicer including the original servicer. and (vi) no obligation with respect to the Exchange Act Filings in Section 3.11. The indemnification obligations of a Successor Servicer are expressly limited to those instances of gross negligence or willful misconduct of such Successor Servicer.Other than the duties specifically set forth in this Agreement, the Backup Servicer shall have no obligations hereunder, including, to supervise, verify, monitor or administer the performance of the Servicer or any subservicer thereof, except, if at all, in its capacity as Successor Servicer. The Backup Servicer shall have no liability for any actions taken or omitted by the Servicer or any subservicer thereof, except, in its capacity, if at all, as Successor Servicer. Without limiting the generality of the foregoing, if a Successor Servicer is appointed, the duties and obligations of the Servicer contained herein and in each of the other Transaction Documents shall be deemed modified as follows: (i) any provision providing that the Servicer shall take or omit to take any action, or shall have any obligation to do or not do any other thing, upon its “knowledge” (or any derivation thereof), “discovery” (or any derivation thereof) or awareness (or any derivation thereof) shall be interpreted as the actual knowledge of a Responsible Officer of such Successor Servicer or such Responsible Officer’s receipt of a written notice thereof, (ii) such Successor Servicer shall not be liable for any claims, liabilities or expenses relating to the engagement of any accountants or any report issued in connection with 28 Sale and Servicing Agreement (ACMAT 2024-2) such engagement and dissemination of any such report of any accountants appointed by it (except to the extent that any such claims, liabilities or expenses are caused by such Successor Servicer’s gross negligence or willful misconduct) pursuant to the provisions of any Transaction Document, and the dissemination of such report shall, if applicable, be subject to the consent of such accountants, and (iii) such Successor Servicer shall have no obligation to provide investment direction pursuant to any Transaction Document requiring investment direction from the ▇▇▇▇▇▇▇▇.▇▇ Successor Servicer will be responsible for delays attributable to any predecessor Servicer’s failure to deliver information, defects in the information supplied by such predecessor Servicer or other circumstances beyond the reasonable control of such Successor Servicer. In addition, a Successor Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any act or omission, failure, error, malfunction or any delay in carrying out any of its duties under this Agreement for: (A) any such failure or delay which results from such Successor Servicer acting in accordance with information prepared or supplied by a Person other than the Successor Servicer or the failure of any such other Person (including without limitation the parties hereto) or any other Transaction Document to prepare or provide such information or other circumstances beyond the reasonable control of such Successor Servicer; (B) any act or failure to act by any third party, including without limitation the parties hereto or any other Transaction Document; (C) any inaccuracy or omission in a notice or communication received by such Successor Servicer from any third parties; (D) the invalidity or unenforceability of any Receivable and the Receivable Files under applicable law; (E) the breach or inaccuracy of any representation or warranty made by America’s Car-Mart or any predecessor Servicer with respect to the Receivables and the Receivable Files; or (F) the acts or omissions of ~~any~~any predecessor Servicer.The Servicer shall perform all of its duties as Servicer as specifically enumerated herein and shall make deposits of Collections into the Collection Account pursuant to Section 8.2(a) of the Indenture. Additionally, the initial Servicer (i) shall provide written instruction to the Indenture Trustee regarding financing statements and file (or cause to be filed) financing statements pursuant to Sections 3.5 and 3.7 of the Indenture, (ii) shall exercise the powers necessary to cause the Issuer to engage in the activities listed in Section 2.3 of the Amended and Restated Trust Agreement and (iii) may, but shall not be obligated to, give investment directions to the Indenture Trustee pursuant to Section 8.3 of the Indenture; provided, however, that no Successor Servicer shall have any duty or obligation with respect the performance of the duties and obligations listed in this sentence. Reliance on Work Product. Notwithstanding anything contained in the Agreement to the contrary, any Successor Servicer is authorized to accept and rely on all of the accounting, records (including computer records) and work of the prior Servicer (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and such Successor Servicer shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer. If any error, inaccuracy, omission or incorrect or non-standard practice or procedure (collectively, “Errors”) exist in any Predecessor Servicer Work Product and such Errors make it materially more difficult to service or should cause or materially contribute to the Successor Servicer making or continuing any Errors (collectively, “Continued Errors”), the Successor Servicer shall have no duty, responsibility, obligation or liability for such Continued Errors; provided, however, that the Successor Servicer agrees to use its best efforts to prevent further Continued Errors. In the event that the Successor Servicer becomes aware of Errors or Continued Errors, it shall, with the prior consent of the Noteholders representing 66 2/3% of the Outstanding Notes, use its best efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and 29 Sale and Servicing Agreement (ACMAT 2024-2) Continued Errors and to prevent future Continued Errors. The Successor Servicer shall be entitled to recover its costs thereby expended in accordance with Section 4.4 hereof.Initial Servicer’s Agent. The initial Servicer shall appoint any Successor Servicer as the initial Servicer’s agent to execute, file, prepare, or record documents and otherwise perform on the initial Servicer’s behalf and in the initial Servicer’s name all actions reasonably necessary for the Successor Servicer to perform its duties defined herein. The initial Servicer shall appoint the Successor Servicer as the initial Servicer’s attorney-in-fact to act in the name of the initial Servicer to perform the duties of Servicer. Upon such Successor Servicer’s request, the initial Servicer shall execute and deliver to the Successor Servicer a revocable and limited power of attorney to further authorize the Successor Servicer to perform its duties.

Appears in 1 contract

Sources: Sale and Servicing Agreement (Americas Carmart Inc)

Limitation of Liability of Successor Servicer. (a) The Successor Servicer shall be liable hereunder only to the extent of the obligations in Article II, Article III, Section 4.2 and Article VI in this Agreement (as modified hereby) and shall have no other duties or obligations under any other Transaction Document other than as provided in clause (d) below. Notwithstanding anything contained in this Agreement, the Successor Servicer (including the Backup Servicer, if the Backup Servicer becomes the Successor Servicer) shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer or any subservicer prior to the date that such Successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of any predecessor Servicer, (ii) no obligation to perform any repurchase, ~~28 Sale and Servicing Agreement (ACMAT 2022-1)~~ reimbursement or advancing obligations, if any, of the Servicer or any subservicer (including, without limitation the repurchase obligations under Section 3.6), (iii) no obligation to pay any taxes required to be paid by the Servicer, (iv) no obligation to pay any of the expenses described in ~~Sections~~ Section 3.1(b), the fees, expenses or indemnities of the Indenture Trustee, Owner Trustee or Administrator in Section 3.10, the expenses described in Section ~~6.3(b~~6.2(b) and no obligation to pay any of the fees and expenses of any other party involved in this transaction, (v) no liability or obligation with respect to any Servicer indemnification, defense, or hold harmless obligations of any prior servicer including the original ~~servicer.~~ servicer and (vi) no obligation with respect to the Exchange Act Filings in Section 3.11. The indemnification obligations of a Successor Servicer are expressly limited to those instances of gross negligence or willful misconduct of such Successor Servicer. (b) Other than the duties specifically set forth in this Agreement, the Backup Servicer shall have no obligations hereunder, including, to supervise, verify, monitor or administer the performance of the Servicer or any subservicer thereof, except, if at all, in its capacity as Successor Servicer. The Backup Servicer shall have no liability for any actions taken or omitted by the Servicer or any subservicer thereof, except, in its capacity, if at all, as Successor Servicer. Without limiting the generality of the foregoing, if a Successor Servicer is appointed, the duties and obligations of the Servicer contained herein and in each of the other Transaction Documents shall be deemed modified as follows: (i) any provision providing that the Servicer shall take or omit to take any action, or shall have any obligation to do or not do any other thing, upon its “knowledge” (or any derivation thereof), “discovery” (or any derivation thereof) or awareness (or any derivation thereof) shall be interpreted as the actual knowledge of a Responsible Officer of such Successor Servicer or such Responsible Officer’s receipt of a written notice thereof, (ii) such Successor Servicer shall not be liable for any claims, liabilities or expenses relating to the engagement of any accountants or any report issued in connection with such engagement and dissemination of any such report of any accountants appointed by it (except to the extent that any such claims, liabilities or expenses are caused by such Successor Servicer’s gross negligence or willful misconduct) pursuant to the provisions of any Transaction Document, and the dissemination of such report shall, if applicable, be subject to the consent of such accountants, and (iii) such Successor Servicer shall have no obligation to provide investment direction pursuant to any Transaction Document requiring investment direction from the ~~▇▇▇▇▇▇▇▇.▇▇~~ Servicer.(c)No Successor Servicer will be responsible for delays attributable to any predecessor Servicer’s failure to deliver information, defects in the information supplied by such predecessor Servicer or other circumstances beyond the reasonable control of such Successor Servicer. In addition, a Successor Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any act or omission, failure, error, malfunction or any delay in carrying out any of its duties under this Agreement for: (A) any such failure or delay which results from such Successor Servicer acting in accordance with information prepared or supplied by a Person other than the Successor Servicer or the failure of any such other Person (including without limitation the parties hereto) or any other Transaction Document to prepare or provide such information or other circumstances beyond the reasonable control of such Successor Servicer; (B) any act or failure to act by any third party, including without limitation the parties hereto or any other Transaction Document; (C) any inaccuracy or omission in a notice or communication received by such Successor Servicer from any third parties; (D) the invalidity or unenforceability of any Receivable and the Receivable Files under applicable law; (E) the breach or inaccuracy of any representation or warranty made by America’s Car-Mart or any predecessor Servicer with respect to the Receivables and the Receivable Files; or (F) the acts or omissions of ~~any~~any predecessor Servicer. (d) The Servicer shall perform all of its duties as Servicer as specifically enumerated herein and shall make deposits of Collections into the Collection Account pursuant to Section 8.2(a) of the Indenture. Additionally, the initial Servicer (i) shall provide written instruction to the Indenture Trustee regarding financing statements and file (or cause to be filed) financing statements pursuant to Sections 3.5 and 3.7 of the Indenture, (ii) shall exercise the powers necessary to cause the Issuer to engage in the activities listed in Section 2.3 of the Amended and Restated Trust Agreement and (iii) may, but shall not be obligated to, give investment directions to the Indenture Trustee pursuant to Section 8.3 of the Indenture; provided, however, that no Successor Servicer shall have any duty or obligation with respect the performance of the duties and obligations listed in this sentence. SECTION 7.

Appears in 1 contract

Sources: Sale and Servicing Agreement (Americas Carmart Inc)

Limitation of Liability of Successor Servicer. (a) The Successor Servicer shall be liable hereunder only to the extent of the obligations in Article II, Article III, Section 4.2 and Article VI in this Agreement (as modified hereby) and shall have no other duties or obligations under any other Transaction Document other than as provided in clause (d) below. Notwithstanding anything contained in this Agreement, the Successor Servicer (including the Backup Servicer, if the Backup Servicer becomes the Successor Servicer) shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer or any subservicer prior to the date that such Successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of any predecessor Servicer, (ii) no obligation to perform any repurchase, ~~28 Sale and Servicing Agreement (ACMAT 2022-1)~~ reimbursement or advancing obligations, if any, of the Servicer or any subservicer (including, without limitation the repurchase obligations under Section 3.6), (iii) no obligation to pay any taxes required to be paid by the Servicer, (iv) no obligation to pay any of the expenses described in ~~Sections~~ Section 3.1(b), the fees, expenses or indemnities of the Indenture Trustee, Owner Trustee or Administrator in Section 3.10, the expenses described in Section ~~6.3(b~~6.2(b) and no obligation to pay any of the fees and expenses of any other party involved in this transaction, (v) no liability or obligation with respect to any Servicer indemnification, defense, or hold harmless obligations of any prior servicer including the original servicer. and (vi) no obligation with respect to the Exchange Act Filings in Section 3.11. The indemnification obligations of a Successor Servicer are expressly limited to those instances of gross negligence or willful misconduct of such Successor Servicer.Other than the duties specifically set forth in this Agreement, the Backup Servicer shall have no obligations hereunder, including, to supervise, verify, monitor or administer the performance of the Servicer or any subservicer thereof, except, if at all, in its capacity as Successor Servicer. 28 Sale and Servicing Agreement (ACMAT 2025-1) The Backup Servicer shall have no liability for any actions taken or omitted by the Servicer or any subservicer thereof, except, in its capacity, if at all, as Successor Servicer. Without limiting the generality of the foregoing, if a Successor Servicer is appointed, the duties and obligations of the Servicer contained herein and in each of the other Transaction Documents shall be deemed modified as follows: (i) any provision providing that the Servicer shall take or omit to take any action, or shall have any obligation to do or not do any other thing, upon its “knowledge” (or any derivation thereof), “discovery” (or any derivation thereof) or awareness (or any derivation thereof) shall be interpreted as the actual knowledge of a Responsible Officer of such Successor Servicer or such Responsible Officer’s receipt of a written notice thereof, (ii) such Successor Servicer shall not be liable for any claims, liabilities or expenses relating to the engagement of any accountants or any report issued in connection with such engagement and dissemination of any such report of any accountants appointed by it (except to the extent that any such claims, liabilities or expenses are caused by such Successor Servicer’s gross negligence or willful misconduct) pursuant to the provisions of any Transaction Document, and the dissemination of such report shall, if applicable, be subject to the consent of such accountants, and (iii) such Successor Servicer shall have no obligation to provide investment direction pursuant to any Transaction Document requiring investment direction from the ▇▇▇▇▇▇▇▇.▇▇ Successor Servicer will be responsible for delays attributable to any predecessor Servicer’s failure to deliver information, defects in the information supplied by such predecessor Servicer or other circumstances beyond the reasonable control of such Successor Servicer. In addition, a Successor Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any act or omission, failure, error, malfunction or any delay in carrying out any of its duties under this Agreement for: (A) any such failure or delay which results from such Successor Servicer acting in accordance with information prepared or supplied by a Person other than the Successor Servicer or the failure of any such other Person (including without limitation the parties hereto) or any other Transaction Document to prepare or provide such information or other circumstances beyond the reasonable control of such Successor Servicer; (B) any act or failure to act by any third party, including without limitation the parties hereto or any other Transaction Document; (C) any inaccuracy or omission in a notice or communication received by such Successor Servicer from any third parties; (D) the invalidity or unenforceability of any Receivable and the Receivable Files under applicable law; (E) the breach or inaccuracy of any representation or warranty made by America’s Car-Mart or any predecessor Servicer with respect to the Receivables and the Receivable Files; or (F) the acts or omissions of ~~any~~any predecessor Servicer.The Servicer shall perform all of its duties as Servicer as specifically enumerated herein and shall make deposits of Collections into the Collection Account pursuant to Section 8.2(a) of the Indenture. Additionally, the initial Servicer (i) shall provide written instruction to the Indenture Trustee regarding financing statements and file (or cause to be filed) financing statements pursuant to Sections 3.5 and 3.7 of the Indenture, (ii) shall exercise the powers necessary to cause the Issuer to engage in the activities listed in Section 2.3 of the Amended and Restated Trust Agreement and (iii) may, but shall not be obligated to, give investment directions to the Indenture Trustee pursuant to Section 8.3 of the Indenture; provided, however, that no Successor Servicer shall have any duty or obligation with respect the performance of the duties and obligations listed in this sentence. Reliance on Work Product. Notwithstanding anything contained in the Agreement to the contrary, any Successor Servicer is authorized to accept and rely on all of the accounting, records (including computer records) and work of the prior Servicer (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and such Successor Servicer shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer.

Appears in 1 contract

Sources: Sale and Servicing Agreement (Americas Carmart Inc)

Limitation of Liability of Successor Servicer. (a) The Successor Servicer shall be liable hereunder only to the extent of the obligations in Article II, Article III, Section 4.2 and Article VI in this Agreement (as modified hereby) and shall have no other duties or obligations under any other Transaction Document other than as provided in clause (d) below. Notwithstanding anything contained in this Agreement, the Successor Servicer (including the Backup Servicer, if the Backup Servicer becomes the Successor Servicer) shall have (i) no liability with respect to any obligation which was required to be performed by the predecessor Servicer or any subservicer prior to the date that such Successor Servicer becomes the Servicer or any claim of a third party based on any alleged action or inaction of any predecessor Servicer, (ii) no obligation to perform any repurchase, ~~28 Sale and Servicing Agreement (ACMAT 2022-1)~~ reimbursement or advancing obligations, if any, of the Servicer or any subservicer (including, without limitation the repurchase obligations under Section 3.6), (iii) no obligation to pay any taxes required to be paid by the Servicer, (iv) no obligation to pay any of the expenses described in ~~Sections~~ Section 3.1(b), the fees, expenses or indemnities of the Indenture Trustee, Owner Trustee or Administrator in Section 3.10, the expenses described in Section ~~6.3(b~~6.2(b) and no obligation to pay any of the fees and expenses of any other party involved in this transaction, (v) no liability or obligation with respect to any Servicer indemnification, defense, or hold harmless obligations of any prior servicer including the original ~~servicer.~~ servicer and (vi) no obligation with respect to the Exchange Act Filings in Section 3.11. The indemnification obligations of a Successor Servicer are expressly limited to those instances of gross negligence or willful misconduct of such Successor Servicer.Other than the duties specifically set forth in this Agreement, the Backup Servicer shall have no obligations hereunder, including, to supervise, verify, monitor or 28 Sale and Servicing Agreement (ACMAT 2025-2) administer the performance of the Servicer or any subservicer thereof, except, if at all, in its capacity as Successor Servicer. The Backup Servicer shall have no liability for any actions taken or omitted by the Servicer or any subservicer thereof, except, in its capacity, if at all, as Successor Servicer. Without limiting the generality of the foregoing, if a Successor Servicer is appointed, the duties and obligations of the Servicer contained herein and in each of the other Transaction Documents shall be deemed modified as follows: (i) any provision providing that the Servicer shall take or omit to take any action, or shall have any obligation to do or not do any other thing, upon its “knowledge” (or any derivation thereof), “discovery” (or any derivation thereof) or awareness (or any derivation thereof) shall be interpreted as the actual knowledge of a Responsible Officer of such Successor Servicer or such Responsible Officer’s receipt of a written notice thereof, (ii) such Successor Servicer shall not be liable for any claims, liabilities or expenses relating to the engagement of any accountants or any report issued in connection with such engagement and dissemination of any such report of any accountants appointed by it (except to the extent that any such claims, liabilities or expenses are caused by such Successor Servicer’s gross negligence or willful misconduct) pursuant to the provisions of any Transaction Document, and the dissemination of such report shall, if applicable, be subject to the consent of such accountants, and (iii) such Successor Servicer shall have no obligation to provide investment direction pursuant to any Transaction Document requiring investment direction from the ▇▇▇▇▇▇▇▇.▇▇ Successor Servicer will be responsible for delays attributable to any predecessor Servicer’s failure to deliver information, defects in the information supplied by such predecessor Servicer or other circumstances beyond the reasonable control of such Successor Servicer. In addition, a Successor Servicer shall have no responsibility and shall not be in default hereunder or incur any liability for any act or omission, failure, error, malfunction or any delay in carrying out any of its duties under this Agreement for: (A) any such failure or delay which results from such Successor Servicer acting in accordance with information prepared or supplied by a Person other than the Successor Servicer or the failure of any such other Person (including without limitation the parties hereto) or any other Transaction Document to prepare or provide such information or other circumstances beyond the reasonable control of such Successor Servicer; (B) any act or failure to act by any third party, including without limitation the parties hereto or any other Transaction Document; (C) any inaccuracy or omission in a notice or communication received by such Successor Servicer from any third parties; (D) the invalidity or unenforceability of any Receivable and the Receivable Files under applicable law; (E) the breach or inaccuracy of any representation or warranty made by America’s Car-Mart or any predecessor Servicer with respect to the Receivables and the Receivable Files; or (F) the acts or omissions of ~~any~~any predecessor Servicer.The Servicer shall perform all of its duties as Servicer as specifically enumerated herein and shall make deposits of Collections into the Collection Account pursuant to Section 8.2(a) of the Indenture. Additionally, the initial Servicer (i) shall provide written instruction to the Indenture Trustee regarding financing statements and file (or cause to be filed) financing statements pursuant to Sections 3.5 and 3.7 of the Indenture, (ii) shall exercise the powers necessary to cause the Issuer to engage in the activities listed in Section 2.3 of the Amended and Restated Trust Agreement and (iii) may, but shall not be obligated to, give investment directions to the Indenture Trustee pursuant to Section 8.3 of the Indenture; provided, however, that no Successor Servicer shall have any duty or obligation with respect the performance of the duties and obligations listed in this sentence. Reliance on Work Product. Notwithstanding anything contained in the Agreement to the contrary, any Successor Servicer is authorized to accept and rely on all of the accounting, records (including computer records) and 29 Sale and Servicing Agreement (ACMAT 2025-2) work of the prior Servicer (collectively, the “Predecessor Servicer Work Product”) without any audit or other examination thereof, and such Successor Servicer shall have no duty, responsibility, obligation or liability for the acts and omissions of the prior Servicer. If any error, inaccuracy, omission or incorrect or non-standard practice or procedure (collectively, “Errors”) exist in any Predecessor Servicer Work Product and such Errors make it materially more difficult to service or should cause or materially contribute to the Successor Servicer making or continuing any Errors (collectively, “Continued Errors”), the Successor Servicer shall have no duty, responsibility, obligation or liability for such Continued Errors; provided, however, that the Successor Servicer agrees to use its best efforts to prevent further Continued Errors. In the event that the Successor Servicer becomes aware of Errors or Continued Errors, it shall, with the prior consent of the Noteholders representing 66 2/3% of the Outstanding Notes, use its best efforts to reconstruct and reconcile such data as is commercially reasonable to correct such Errors and Continued Errors and to prevent future Continued Errors. The Successor Servicer shall be entitled to recover its costs thereby expended in accordance with Section 4.4 hereof.Initial Servicer’s Agent. The initial Servicer shall appoint any Successor Servicer as the initial Servicer’s agent to execute, file, prepare, or record documents and otherwise perform on the initial Servicer’s behalf and in the initial Servicer’s name all actions reasonably necessary for the Successor Servicer to perform its duties defined herein. The initial Servicer shall appoint the Successor Servicer as the initial Servicer’s attorney-in-fact to act in the name of the initial Servicer to perform the duties of Servicer. Upon such Successor Servicer’s request, the initial Servicer shall execute and deliver to the Successor Servicer a revocable and limited power of attorney to further authorize the Successor Servicer to perform its duties.

Appears in 1 contract

Sources: Sale and Servicing Agreement (Americas Carmart Inc)

Common use of Limitation of Liability of Successor Servicer Clause in Contracts