DETAIL, (I) OF ANY
MATERIAL ADVERSE CLAIM, OTHER THAN A PERMITTED LIEN, KNOWN TO IT MADE OR
ASSERTED AGAINST ANY OF THE BORROWER COLLATERAL, AND (II) OF THE OCCURRENCE OF
ANY EVENT WHICH WOULD HAVE A MATERIAL ADVERSE EFFECT ON THE AGGREGATE VALUE OF
THE BORROWER COLLATERAL OR ON THE ASSIGNMENTS AND SECURITY INTERESTS GRANTED BY
THE BORROWER IN THIS AGREEMENT.
LIMITATION ON LIABILITY OF BACKUP SERVICER.
NEITHER THE BACKUP SERVICER NOR ANY OF THE DIRECTORS OR OFFICERS OR EMPLOYEES OR
AGENTS OF THE BACKUP SERVICER SHALL BE UNDER ANY LIABILITY TO THE BORROWER, THE
INVESTORS OR THE ADMINISTRATIVE AGENT, EXCEPT AS PROVIDED IN THIS AGREEMENT, FOR
ANY ACTION TAKEN OR FOR REFRAINING FROM THE TAKING OF ANY ACTION PURSUANT TO
THIS AGREEMENT; PROVIDED, HOWEVER, THAT THIS PROVISION SHALL NOT PROTECT THE
BACKUP SERVICER OR ANY SUCH PERSON AGAINST ANY LIABILITY THAT WOULD OTHERWISE BE
IMPOSED BY REASON OF A BREACH OF THIS AGREEMENT OR WILLFUL MISFEASANCE, BAD
FAITH OR NEGLIGENCE IN THE PERFORMANCE OF ITS DUTIES.
THE BACKUP SERVICER AND
ANY DIRECTOR, OFFICER, EMPLOYEE OR AGENT OF THE BACKUP SERVICER MAY RELY IN GOOD
FAITH ON THE WRITTEN ADVICE OF COUNSEL OR ON ANY DOCUMENT OF ANY KIND PRIMA
FACIE PROPERLY EXECUTED AND SUBMITTED BY ANY PERSON RESPECTING ANY MATTERS
ARISING UNDER THIS AGREEMENT.
UNLESS ACTING AS SERVICER HEREUNDER, THE BACKUP SERVICER SHALL NOT BE LIABLE FOR
ANY OBLIGATION OF THE SERVICER CONTAINED IN THIS AGREEMENT, AND THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE BORROWER AND THE INVESTORS SHALL
LOOK ONLY TO THE SERVICER TO PERFORM SUCH OBLIGATIONS.
39
THE BACKUP SERVICER SHALL HAVE NO RESPONSIBILITY AND SHALL NOT BE IN DEFAULT
HEREUNDER NOR INCUR ANY LIABILITY FOR ANY FAILURE, ERROR, MALFUNCTION OR ANY
DELAY IN CARS ACQUISITION OUT ANY OF ITS DUTIES UNDER THIS AGREEMENT IF ANY 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 PERSON TO PREPARE OR PROVIDE SUCH INFORMATION.
THE
BACKUP SERVICER SHALL HAVE NO RESPONSIBILITY, SHALL NOT BE IN DEFAULT AND SHALL
INCUR NO LIABILITY (I) FOR ANY ACT OR FAILURE TO ACT BY ANY THIRD PARTY,
INCLUDING THE SERVICER OR THE ADMINISTRATIVE AGENT OR FOR ANY INACCURACY OR
OMISSION IN A NOTICE OR COMMUNICATION RECEIVED BY THE BACKUP SERVICER FROM ANY
THIRD PARTY OR (II) THAT IS DUE TO OR RESULTS FROM THE INVALIDITY,
UNENFORCEABILITY OF ANY TRANSFERRED RECEIVABLES UNDER APPLICABLE LAW OR THE
BREACH OR THE INACCURACY OF ANY REPRESENTATION OR WARRANTY MADE WITH RESPECT TO
ANY TRANSFERRED RECEIVABLES.
BACKUP SERVICER NOT TO RESIGN.
SUBJECT TO THE PROVISIONS OF SECTION 12.2, THE
BACKUP SERVICER SHALL NOT RESIGN FROM THE OBLIGATIONS AND DUTIES IMPOSED ON IT
BY THIS AGREEMENT AS BACKUP SERVICER EXCEPT UPON A DETERMINATION THAT BY REASON
OF A CHANGE IN LEGAL REQUIREMENTS THE PERFORMANCE OF ITS DUTIES UNDER THIS
AGREEMENT WOULD CAUSE IT TO BE IN VIOLATION OF SUCH LEGAL REQUIREMENTS AND THE
ADMINISTRATIVE AGENT DOES