EXHIBIT 4(f)(45)
BACK-UP SERVICING AGREEMENT
BACK-UP SERVICING AGREEMENT (the "Agreement"), dated as of
September 27, 2002, among CAC WAREHOUSE FUNDING CORP., a Nevada corporation,
(together with its successors and assigns, the "Borrower"), CREDIT ACCEPTANCE
CORPORATION, a Michigan corporation ("CAC"), individually and as servicer (in
such capacity, together with its successors and assigns, the "Servicer"), OSI
PORTFOLIO SERVICES, INC. ("OSIPS"), a Delaware corporation (the "Backup
Servicer"), VARIABLE FUNDING CAPITAL CORPORATION, a Delaware corporation, as a
secured party and a lender (together with its successors and assigns, the
"Lender") and WACHOVIA SECURITIES, INC., as the deal agent and collateral agent
(the "Deal Agent" or the "Collateral Agent").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower, the Servicer, the Backup Servicer, the
Lender, the Deal Agent and the Collateral Agent have entered into a Loan and
Security Agreement, dated as of the date hereof (as amended, restated,
supplemented or otherwise modified from time to time, the "Loan and Security
Agreement");
WHEREAS, the Borrower and the Servicer have entered into a
Servicing Agreement, dated as of the date hereof (as amended, restated,
supplemented or otherwise modified from time to time, the "Servicing
Agreement");
WHEREAS, the parties to the Loan and Security Agreement desire
to obtain the services of the Backup Servicer to perform certain servicing
functions and assume certain obligations with respect to the Loan and Security
Agreement, all as set forth herein, and the Backup Servicer has agreed to
perform such functions and assume such obligations; and
WHEREAS, for its services hereunder and with respect to the
Loan and Security Agreement and the other Transaction Documents, the Backup
Servicer will receive a fee payable as described herein;
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1. Definitions. All capitalized terms not otherwise defined
herein shall have the meanings specified in, or incorporated by reference into,
the Loan and Security Agreement. The following terms shall have the meanings
specified below, and shall include in the singular number the plural and in the
plural number the singular:
"Aggregate Basis" means verification of only such aggregated
amounts as are stated in the Monthly Report, and not as to any amount related to
any Loan or Contract.
"Assumption Date" has the meaning specified in Section 2.3.
"Backup Servicer Event of Default" shall mean (a) the failure
of the Backup Servicer to make any payment, transfer or deposit as required
hereunder, under the Loan and Security Agreement or any other Transaction
Document, without curing said failure within one (1) business day of receiving
notice thereof, (b) the failure of the Backup Servicer to observe or perform in
any material respect any other representation, warranty, covenant or agreements
of the Backup Servicer (including with respect to the Credit Guidelines) in this
Agreement or any other Transaction Document, as reasonably determined by the
Collateral Agent, and failing to cure said failure within fifteen (15) days of
receiving notice thereof, (c) the occurrence of any Material Adverse Change, or
(d) an Insolvency Event shall occur with respect to the Backup Servicer.
"Borrower" shall mean CAC Warehouse Funding Corp. and its
successors and assigns.
"Continued Errors" has the meaning specified in Section 2.2.
"Errors" has the meaning specified in Section 2.2.
"Liability" has the meaning specified in Section 2.2.
"Material Adverse Change" Any circumstance or event which in
the reasonable judgment of the Collateral Agent (a) may be reasonably expected
to cause a material adverse change to the validity or enforceability of this
Agreement, the Servicing Agreement or the Loan and Agreement, or (b) may be
reasonably expected to materially impair the ability of the Backup Servicer to
fulfill its obligations under this Agreement, the Servicing Agreement or the
Loan and Security Agreement.
"Monthly Backup Servicing Fee" shall mean, with respect to any
Payment Date that relates to a Collection Period that preceded the Assumption
Date, an amount equal to $7,500 (of which $4,500 is for boarding/warehousing and
$3,000 is for the Monthly Report reconciliation).
"Monthly Servicing Fee" shall mean, with respect to any
Payment Date that relates to a Collection Period that follows the Assumption
Date, the aggregate amounts due and owing to the Backup Servicer in accordance
with the amounts set forth on Exhibit A with respect to the individual servicing
items performed as set forth on such exhibit.
"Servicer's Data File" has the meaning specified in Section
2.1.
"Service-Related Activities" means the services and
Service-Related activities and the Servicer-Related responsibilities provided
for under the Loan and Security Agreement and the other Transaction Documents.
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ARTICLE 2
ADMINISTRATION AND COLLECTION
SECTION 2.1. Reconciliation of Monthly Report.
(a) On the third Business Day of each calendar month, the
Servicer shall send to the Backup Servicer an electronic file, detailing the
Collections during the prior Collection Period and all other information
relating to the Loans and the Contracts as may be necessary for the complete and
correct completion of the Monthly Report (the "Servicer's Data File"). Such
electronic file shall be in the form and have the specifications as may be
agreed to between the Servicer and the Backup Servicer from time to time. The
Backup Servicer shall, within one (1) day of the receipt thereof, load the
Servicer's Data File and confirm that such is in readable form. If the Backup
Servicer determines that the Servicer's Data File is not in readable form, the
Backup Servicer shall immediately upon discovery thereof notify the Servicer and
the Collateral Agent by telephone of such, and upon such notification, the
Servicer shall prepare and send a replacement Servicer's Data File to the Backup
Servicer satisfying the Backup Servicer's specifications, for receipt by the
Backup Servicer on the next day.
(b) No later than two (2) Business Days prior to each
Determination Date, provided that the Servicer shall have furnished to the
Backup Servicer the Monthly Report related to the prior Collection Period, the
Backup Servicer shall review the information contained in the Monthly Report
against the information on the Servicer's Data File, on an Aggregate Basis. No
later than one (1) Business Day after the Backup Servicer's receipt of the
Monthly Report related to a Collection Period, the Backup Servicer shall notify
the Servicer, the Collateral Agent and the Deal Agent of any inconsistencies
between the Monthly Report and the information contained in the Servicer's Data
File, but in the absence of a reconciliation, the Monthly Report shall control
for the purpose of calculations and distributions with respect to the related
Payment Date. If the Backup Servicer and the Servicer are unable to reconcile
discrepancies with respect to a Monthly Report prior to the related Payment
Date, the Servicer shall cause a firm of independent accountants, at the
Servicer's expense, to audit the Monthly Report and reconcile the discrepancies.
The effect, if any, of such reconciliation shall be reflected in the Monthly
Report for such next Payment Date. The Backup Servicer shall only review the
information provided by the Servicer in the Monthly Report and in the Servicer's
Data File and its obligation to report any inconsistencies shall be limited to
those determinable from such information.
(c) The Backup Servicer and the Servicer shall attempt to
reconcile any such inconsistencies and/or to furnish any omitted information and
the Servicer shall amend the Monthly Report to reflect the results of the
reconciliation or to include any omitted information.
(d) The Servicer shall provide monthly, or as otherwise
requested, to the Backup Servicer, or its agent, information on the Loans and
related Contracts sufficient to enable the Backup Servicer to assume the
responsibilities as Successor Servicer and collect on the Loans and related
Contracts.
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SECTION 2.2. Review and Verification.
(a) Notwithstanding Section 2.1 above, on or before three (3)
Business Days prior to each Determination Date, the Servicer and the Collateral
Agent shall provide sufficient data to the Backup Servicer to allow the Backup
Servicer to review on an Aggregate Basis the Monthly Report related thereto and
determine the following:
(i) that such Monthly Report is complete on its face;
(ii) that the amounts credited to and withdrawn from
the Collection Account and the balance of such account, as set
forth in the records of the Collateral Agent are the same as
the amount set forth in the Monthly Report; and
(iii) that the amounts credited to and withdrawn from
the Reserve Account and the balance of such account, as set
forth in the records of the Collateral Agent are the same as
the amount set forth in the Monthly Report.
(b) The Backup Servicer shall, on or before the Determination
Date with respect to any Collection Period, verify the Monthly Report in its
entirety, which shall include but not be limited to the following:
(i) the Aggregate Outstanding Eligible Loan Balance
as of the last day of the relevant Collection Period;
(ii) the Dealer Collections, Income Collections and
Principal Collections, for the relevant Collection Period; and
(iii) the Weighted Average Total Advance Rate as of
last day of the relevant Collection Period.
(c) The Backup Servicer shall provide written notice to the
Deal Agent with respect to whether there are any inconsistencies or deficiencies
with respect to its review and verification set forth in paragraphs (a) and (b)
and, if any, shall provide a description thereof as set forth in Section 2.10
hereof. In the event of any discrepancy between the information set forth in
subparagraphs (a) and (b), as calculated by the Servicer, from that determined
or calculated by the Backup Servicer, the Backup Servicer shall promptly notify
the Servicer and, if within five (5) days of such notice being provided to the
Servicer, the Backup Servicer and the Servicer are unable to resolve such
discrepancy, the Backup Servicer shall promptly notify the Deal Agent and the
Collateral Agent of such discrepancy.
(i) Other than as specifically set forth elsewhere in
this Agreement, the Backup Servicer shall have no obligation
to supervise, verify, monitor or administer the performance of
the Servicer and shall have no duty, responsibility,
obligation, or liability (collectively "Liability") for any
action taken or omitted by the Servicer.
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(ii) The Backup Servicer shall consult with the
Servicer as may be necessary from time to time to perform or
carry out the Backup Servicer's obligations hereunder,
including the obligation, if requested in writing by the
Collateral Agent, to succeed within thirty (30) days to the
duties and obligations of the Servicer pursuant to Section
2.3.
(iii) Except as provided in this Agreement, the
Backup Servicer may accept and reasonably rely on all
accounting, records and work of the Servicer without audit,
and the Backup Servicer shall have no Liability for the acts
or omissions of the Servicer. If any error, inaccuracy or
omission (collectively, "Errors") exists in any information
received from the Servicer, and such Errors should cause or
materially contribute to the Backup Servicer making or
continuing any Errors (collectively, "Continued Errors"), the
Backup Servicer shall have no Liability for such Continued
Errors; provided, however, that this provision shall not
protect the Backup Servicer against any Liability which would
otherwise be imposed by reason of willful misconduct, bad
faith or gross negligence in discovering or correcting any
Error or in the performance of its or their duties hereunder
or under this Agreement. In the event the Backup Servicer
becomes aware of Errors or Continued Errors, the Backup
Servicer shall, with the prior consent of the Collateral
Agent, use its best efforts to reconstruct and reconcile such
data as is commercially reasonable to correct such Errors and
Continued Errors and prevent future Continued Errors. The
Backup Servicer shall be entitled to recover its costs thereby
expended from the Servicer.
(iv) The Backup Servicer shall be indemnified by the
Servicer and the Borrower from and against all claims,
damages, losses or expenses reasonably incurred by the Backup
Servicer (including reasonable attorney's fees) arising out of
claims asserted against the Backup Servicer by third parties
on any matter arising out of this Agreement to the extent the
act or omission giving rise to the claim accrues before the
date on which the Backup Servicer assumes the Assumption Date,
except for any claims, damages, losses or expenses arising
from the Backup Servicer's own gross negligence, bad faith or
willful misconduct.
SECTION 2.3. Assumption of Servicer's Obligations.
(a) The Backup Servicer agrees that within 30 days of receipt
of a written notice from the Collateral Agent of the termination of the rights
and obligations of CAC as Servicer pursuant to the Loan and Security Agreement,
and without further notice, the Backup Servicer shall, subject to the exclusions
stated herein, assume the Servicer-Related Activities of CAC under the Loan and
Security Agreement (the "Assumption Date") and further agrees that it shall
assume all such Service-Related Activities in accordance with the requirements,
terms and conditions set forth in the Loan and Security Agreement and the other
Transaction Documents.
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In the event of a conflict between any provision of the Loan and Security
Agreement or any other Transaction Document and this Agreement, this Agreement
shall be controlling.
(b) In the event of an assumption by the Backup Servicer of
the Servicer-Related Activities of CAC under the Loan and Security Agreement,
the Backup Servicer shall not be obligated to perform the following Sections of
the Loan and Security Agreement: Section 5.4(c) and (e) and Sections 6.5(c),
6.6, 6.7, 6.8 and 11.2.
SECTION 2.4. Servicing and Retention of Servicer.
(a) Subject to early termination due to the occurrence of a
Backup Servicer Event of Default, or pursuant to Article 5, or as otherwise
provided in this Section 2.4, on and after the Assumption Date, the Backup
Servicer shall be responsible for the servicing, administering, managing and
collection of the Loans and Contracts in accordance herewith and the Loan and
Security Agreement, and shall be and perform the obligations of the "Servicer"
under the Loan and Security Agreement, the Servicing Agreement and the other
Transaction Documents.
(b) In the event of a Backup Servicer Event of Default, the
Collateral Agent shall have the right to terminate the Backup Servicer as
servicer and Backup Servicer hereunder. Upon the termination or resignation of
the Backup Servicer hereunder, the Collateral Agent shall have the right to
appoint a successor Backup Servicer (the "Successor Backup Servicer") and enter
into a Back-up servicing agreement with such Successor Backup Servicer at such
time and exercise all of its rights under Section 6.3 of the Loan and Security
Agreement; provided, however, that if such termination or resignation of the
Backup Servicer occurs prior to the Assumption Date, the appointment of the
Successor Backup Servicer shall be mutually acceptable to CAC and the Collateral
Agent. Such Backup servicing agreement shall specify the duties and obligations
of such Successor Backup Servicer, and all references herein and in the Loan and
Security Agreement to the Backup Servicer shall be deemed to refer to such
Successor Backup Servicer.
(c) The Backup Servicer shall not resign from the obligations
and duties imposed on it by this Agreement or the Loan and Security Agreement,
as Servicer or as Backup Servicer, as applicable, except upon a determination
that by reason of a change in legal requirements, the performance of its duties
hereunder or under the Loan and Security Agreement would cause it to be in
violation of such legal requirements in a manner which would have a material
adverse effect on the Backup Servicer, and the Collateral Agent does not elect
to waive the obligations of the Backup Servicer to perform the duties which
render it legally unable to act or to delegate those duties to another Person.
Any such determination permitting the resignation of the Backup Servicer
pursuant to this Section 2.4(c) shall be evidenced by an opinion of counsel to
such effect delivered and acceptable to the Collateral Agent. No resignation of
the Backup Servicer shall become effective until an entity reasonably acceptable
to the Collateral Agent shall have assumed the responsibilities and obligations
of the Backup Servicer.
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(d) Any Person (i) into which the Backup Servicer may be
merged or consolidated, (ii) resulting from any merger or consolidation to which
the Backup Servicer shall be a party, (iii) which acquires by conveyance,
transfer or lease substantially all of the assets of the Backup Servicer, or
(iv) succeeding to the business of the Backup Servicer, in any of the foregoing
cases shall execute an agreement of assumption to perform every obligation of
the Backup Servicer under this Agreement, the Loan and Security Agreement and
the other Transaction Documents and, whether or not such assumption agreement is
executed, shall be the successor to the Backup Servicer under this Agreement,
the Loan and Security Agreement and the other Transaction Documents without the
execution or filing of any paper or any further act on the part of any of the
parties to this Agreement, the Loan and Security Agreement or the other
Transaction Documents, anything herein or therein to the contrary
notwithstanding; provided, however, that nothing contained herein or therein
shall be deemed to release the Backup Servicer from any obligation hereunder,
under the Loan and Security Agreement or other Transaction Document.
(e) Following the Assumption Date, on or before ninety (90)
days after the end of each calendar year, beginning with the calendar year
ending December 31, 2003, the Backup Servicer shall cause a firm of independent
public accountants (who may also render other services to the Backup Servicer or
the Borrower) to furnish a report to the Collateral Agent and the Secured
Parties to the effect that they have (i) compared the information contained in
the Monthly Reports delivered during such fiscal year, based on a sample size
provided by the Collateral Agent, with the information contained in the Loans,
the Contracts and the Backup Servicer's records and computer systems for such
period, and that, on the basis of such agreed upon procedures, such firm is of
the opinion that the information contained in the Monthly Reports reconciles
with the information contained in the Loans and the Contracts and the Backup
Servicer's records and computer system and that the servicing of the Loans and
the Contracts has been conducted in compliance with this Agreement, (ii)
verified the Aggregate Outstanding Eligible Loan Balance as of the end of each
Collection Period during such fiscal year, and (iii) verified that a sample of
Loans and Contracts treated by the Backup Servicer as Eligible Loans and as
Eligible Contracts, as applicable, in fact satisfied the requirements of the
definition thereof contained herein and (iv) conducted a "negative
confirmation"' of a sample of the Loans and Contracts and verified that the
Backup Servicer's records and computer system used in servicing the Loans and
Contracts contained correct information with regard to due dates and outstanding
balances, except, in each case for (a) such exceptions as such firm shall
believe to be immaterial (which exceptions need not be enumerated) and (b) such
other exceptions as shall be set forth in such statement.
SECTION 2.5. Servicing Duties of the Backup Servicer. On and after the
Assumption Date:
(a) The Backup Servicer shall take or cause to be taken all
such action as may be necessary or advisable to collect all amounts due under
the Loans and Contracts from time to time, all in accordance with applicable
laws, rules and regulations, with reasonable care and diligence, and in
accordance with the Credit Guidelines and the Collection Guidelines. There
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shall be no recourse to the Backup Servicer with regard to the Loans and
Contracts. The Backup Servicer shall hold in trust for the Secured Parties all
records which evidence or relate to all or any part of the Collateral. In the
event that a Successor Backup Servicer is appointed, the outgoing Backup
Servicer shall deliver to the Successor Backup Servicer and the Successor Backup
Servicer shall hold in trust for the Borrower and the Secured Parties all
records which evidence or relate to all or any part of the Collateral.
(b) The Backup Servicer shall as soon as practicable upon
demand, deliver to the Borrower all records in its possession which evidence or
relate to indebtedness of an Obligor which is not a Loan or Contract.
(c) The Backup Servicer shall deposit all Collections into the
Collection Account no later than two (2) Business Days after the Date of
Processing.
(d) In addition to the obligations of the Backup Servicer
under this Agreement, the Backup Servicer shall perform all of the obligations
of the Servicer as servicer under the Loan and Security Agreement, except as set
forth herein. Without limiting the foregoing and anything provided for herein,
the Backup Servicer shall perform the following in substantially the same manner
and level at which CAC performs such on the date hereof: (a) electronic data and
"800" lines; (b) customer service inquiries/responsibilities; (c) collections on
delinquent and charged-off accounts; (d) insurance monitoring and the making of
claims with respect thereto; (e) creating the Monthly Reports; (f) repossession
and other legal actions; (g) statements to performing accounts and other
correspondence; (h) reconciliation of dealer holdback payments; (i) inventory
management; (j) maintenance of lock-box accounts; (k) electronic skip tracing;
and (l) document storage and title maintenance.
(e) The Backup Servicer shall indemnify CAC, the Borrower, the
Collateral Agent and the Secured Parties, their officers, directors, employees
and agents (collectively, the "Indemnified Parties"), and hold them harmless
against any loss, liability or expense incurred, including in each case the
costs and expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of the Backup Servicer's
powers or duties under this Agreement, arising out of the negligence, willful
misconduct or bad faith of the Backup Servicer in the performance of its duties
hereunder. The Backup Servicer shall manage, provide for, and bear all expenses
in connection with the defense and/or settlement of any such claim or suit. Each
Indemnified Parties shall have the right, at its own expense, to participate in
the defense of any claim against which it is indemnified and which has been
assumed by the obligation or indemnity hereunder; Backup Servicer, in the
defense of any such claim, except with the written consent of such Indemnified
Party, shall not consent to entry of any judgment or enter into any settlement
that either: (a) does not include, as an unconditional term, the grant by the
claimant to such Indemnified Party of a release of all liabilities in respect of
such claims, or (b) otherwise adversely affects the rights of such Indemnified
Party. The provisions of this Section 2.5(e) shall survive the termination of
this Agreement.
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SECTION 2.6. Other Obligations of the Backup Servicer and Servicer.
(a) In order to ensure preparedness to carry out the
Service-Related Activities, the Backup Servicer agrees that immediately upon
execution of this Agreement, it will begin to formulate a contingency plan
designed to execute a transition of the Service-Related Activities from CAC, and
such plan shall be finalized within 90 days of execution of this Agreement. The
contingency plan of the Backup Servicer shall contemplate the services to be
provided by the Backup Servicer under this Agreement, the Loan and Security
Agreement and the other Transaction Documents and, without limiting the
obligations hereunder and thereunder, shall provide for the servicing and
enforcement of the Loans and Contracts in a manner comparable to the servicing
and enforcement of similar loans and contracts that the Backup Servicer carries
out for itself and others.
(b) In order to further ensure preparedness to carry out
Service-Related Activities, the Backup Servicer will ready itself to receive
data as if it were currently acting as Servicer.
(c) No later than the 10th day of each calendar month until
the earlier of the Assumption Date or the termination of this Agreement, CAC
shall provide a Live Data File transmission to the Backup Servicer, which shall
include the Loan and Contract master file, the transaction history file and all
other files necessary to carry out the Service-Related Activities received in
connection herewith (the "Live Data Files"). The Backup Servicer shall convert
the Live Data Files to its internal systems, and no later than five Business
Days after the receipt thereof, shall confirm in writing to CAC the accuracy and
completeness of the conversion; provided, however, that such confirmation shall
not be deemed to apply to the accuracy of the Live Data Files as provided by
CAC, but shall be deemed only to apply to the accuracy of the conversion of the
Live Data Files to the Backup Servicer's internal systems. In the event of any
changes in format with respect to either CAC or the Backup Servicer CAC and the
Backup Servicer shall coordinate with each other for the replacement of the data
files with files in the correct format, modified accordingly. To verify that
Live Data Files have been accurately converted to the Backup Servicer's internal
servicing system, the Backup Servicer will provide CAC with such reports as are
mutually agreed upon by CAC and the Backup Servicer from time to time. CAC
reserves the right to review converted data on the Backup Servicer's system
either by performing an onsite review of the Backup Servicer's systems or, at
CAC's sole expense, by having remote access to the Backup Servicer's systems.
(d) In connection with the Backup Servicer assuming the
obligations of Servicer hereunder, under the Loan and Security Agreement and the
other Transaction Documents, CAC agrees that it shall (i) promptly make
available to the Backup Servicer access to all other records and information in
the possession of CAC related to the Loans and the Contracts as may be necessary
or reasonably requested by the Backup Servicer in connection with the
performance of the Backup Servicer's obligations hereunder and thereunder, and
(ii) cooperate in good faith with the Backup Servicer and the Collateral Agent
in connection with any transition of the servicing of the Loans and Contracts to
the Backup Servicer.
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SECTION 2.7. Servicing Compensation. As compensation for the
performance of its obligations under this Agreement and with respect to the Loan
and Security Agreement, and any other Transaction document, the Backup Servicer
is entitled to (a) a one time setup fee of $5,000 to be paid by CAC and (b) on
each Payment Date that relates to a Collection Period that preceded the
Assumption Date, the Backup Servicing Fee. On each Payment Date that relates to
a Collection Period that follows the Assumption Date, the Servicing Fee, which
shall be amended effective as of the Assumption Date, to be the sum of fees due
for specified services performed. The associated charges for those specified
services are specified on Exhibit A hereto (the "Monthly Servicing Fee
Schedule.") To the extent the Assumption Date occurs within a Collection Period,
the Backup Servicing fee shall apply to that portion of the Collection Period
that occurred prior to the Assumption Date and the Servicing Fee shall apply to
the remainder of the Collection Period.
SECTION 2.8. Collateral Agent's Rights. At any time following the
Assumption Date:
(a) The Collateral Agent may direct that payment of all
amounts payable under any Loans or Contracts be made directly to the Backup
Servicer, the Collateral Agent or its designee.
(b) The Servicer shall, (unless otherwise directed by the
Collateral Agent) (i) assemble all of the records relating to the Collateral and
shall make the same available to the Backup Servicer (or the Collateral Agent if
so directed by the Collateral Agent) at a place selected by the Backup Servicer
or the Collateral Agent, as applicable, and (ii) segregate all cash, checks and
other instruments received by it from time to time constituting collections of
Collateral in a manner acceptable to the Collateral Agent and shall, promptly
upon receipt but no later than one Business Day after receipt, remit all such
cash, checks and instruments, duly endorsed or with duly executed instruments of
transfer, as directed by the Collateral Agent.
(c) The Borrower and CAC each hereby authorizes the Collateral
Agent and the Backup Servicer to take any and all steps in the Borrower's and/or
CAC's name and on behalf of the Borrower and/or CAC necessary or desirable, in
the determination of the Backup Servicer or the Collateral Agent, to collect all
amounts due under any and all of the Collateral with respect thereto, including,
without limitation, endorsing the Borrower's and/or CAC's name on checks and
other instruments representing Collections and enforcing the Loans and
Contracts.
SECTION 2.9. Liability of the Backup Servicer; Standard of Care.
(a) The Backup Servicer shall be liable in accordance herewith
only to the extent of the obligations specifically undertaken by the Backup
Servicer in such capacity herein. Such liability is limited to only those
actions taken or omitted to be taken by the Backup Servicer and caused through
its gross negligence, bad faith, or willful misconduct. No implied covenants or
obligations shall be read into this Agreement against the Backup Servicer and,
in the absence of bad faith on the part of the Backup Servicer, the Backup
Servicer may conclusively rely on the truth of the statements and the
correctness of the opinions expressed in any certificates or opinions furnished
to the Backup Servicer and conforming to the requirements of this
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Agreement. The Backup Servicer shall perform its obligations hereunder and under
the Loan and Security Agreement and the other Transaction Documents using the
same standard of care as it uses in respect of servicing, collecting and
enforcing contracts or receivables for itself or others.
(b) The Backup Servicer shall not be charged with knowledge of
any Termination Event or Unmatured Termination Event unless an officer of the
Backup Servicer obtains actual knowledge of such event or the Backup Servicer
receives written notice of such event from the Borrower, the Servicer, the
Lender, or the Collateral Agent, as the case may be.
(c) The Backup Servicer shall not be required to expend or
risk its own funds or otherwise incur financial liability in the performance of
its duties hereunder, or in the exercise of any of its rights or powers, if the
repayment of such funds or adequate written indemnity against such risks or
liability is not reasonably assured to it in writing prior to the expenditure of
such funds or the incurrence of financial liability. Notwithstanding any
provision to the contrary, prior to the Assumption Date, the Backup Servicer
shall not be liable for any obligation of the Servicer contained in the Loan and
Security Agreement or the other Transaction Documents, and the parties shall
look only to the Servicer to perform such obligations.
SECTION 2.10. Monthly Backup Servicer's Certificate. Prior to the
Assumption Date, the Backup Servicer shall provide to the Collateral Agent and
the Deal Agent reports on a monthly basis which shall: (i) include copies of any
third party reports relied on or obtained in connection with its duties
hereunder; (ii) verify the matters set forth in Section 2.1 and Section 2.2 and
2.6(c) hereof; (iii) state whether there are any discrepancies in the items
reviewed and verified pursuant to Section 2.1 and 2.2, and if so, provide a
description thereof; and (iv) be certified by an officer of the Backup Servicer.
Such report shall be dated as of the Determination Date for each Payment Date
and delivered to the Collateral Agent on or before the close of business on the
business day before the Related Payment Date. The Backup Servicer, with respect
to such report, shall not be responsible for delays attributable to the
Servicer's failure to deliver information, defects in the information supplied
by the Servicer or other circumstances beyond the control of the Backup
Servicer. After the Assumption Date, the Backup Servicer shall deliver the
Monthly Report in accordance with Section 6.5(a) of the Loan and Security
Agreement.
SECTION 2.11. Backup Servicer's Expenses. The Backup Servicer shall be
required to pay all expenses incurred by it in connection with its activities
hereunder, including fees and disbursements of independent accountants, taxes
imposed on the Backup Servicer and expenses incurred in connection with
distributions and reports to the Collateral Agent, the Deal Agent and the
Secured Parties.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of the Backup Servicer. The
Backup Servicer represents and warrants to the Borrower, CAC, the Collateral
Agent, the Deal Agent and the Secured Parties that:
(a) Corporate Existence and Power. The Backup Servicer is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation and has all corporate power and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business in each jurisdiction in which its business is now
conducted. The Backup Servicer or its affiliates or subsidiaries acting on its
behalf in accordance with this Agreement are duly qualified to do business in,
and are in good standing in, every other jurisdiction in which the nature of
their business or the performance of this Agreement requires them to be so
qualified, except where the failure to be so qualified or in good standing would
not have a material adverse effect on the Backup Servicer's ability to perform
hereunder and under the Loan and Security Agreement and the other Transaction
Documents.
(b) Corporate and Governmental Authorization; Contravention.
The execution, delivery and performance by the Backup Servicer of this Agreement
and the obligations with respect to the Loan and Security Agreement and the
other Transaction Documents are within the Backup Servicer's corporate powers,
have been duly authorized by all necessary corporate action, require no action
by or in respect of, or filing with, any Official Body or official thereof, and
do not contravene, or constitute a default under, any provision of applicable
law, rule or regulation or of the Certificate of Incorporation or Bylaws of the
Backup Servicer or of any agreement, judgment, injunction, order, writ, decree
or other instrument binding upon the Backup Servicer or result in the creation
or imposition of any adverse claim on the assets of the Backup Servicer or any
of its Subsidiaries.
(c) Binding Effect. This Agreement constitutes the legal,
valid and binding obligation of the Backup Servicer, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, moratorium or
other similar laws affecting the rights of creditors.
(d) Accuracy of Information. All information heretofore
furnished by the Backup Servicer to the Borrower, CAC, the Collateral Agent, the
Deal Agent or the Secured Parties for purposes of or in connection with this
Agreement or the Loan and Security Agreement or any transaction contemplated
hereby or thereby is true and accurate in every material respect, on the date
such information is stated or certified, and all such information hereafter
furnished by the Backup Servicer to the Borrower, CAC, the Collateral Agent, the
Deal Agent or the Secured Parties will be, true and accurate in every material
respect, subject to Section 2.2 (c) (iii) and (iv), on the date such information
is stated or certified.
(e) Action, Suits. There are no actions, suits or proceedings
pending, or to the knowledge of the Backup Servicer threatened, against or
affecting the Backup Servicer or any Affiliate of the Backup Servicer or their
respective properties, in or before any court, arbitrator
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or other body, which may, individually or in the aggregate, have a material
adverse effect on its ability to perform hereunder and under the Loan and
Security Agreement and the other Transaction Documents..
(f) Facilities. The Backup Servicer has adequate facilities
and employees in place to handle the following, in the same manner and level at
which CAC performs such as of the date hereof including, but not limited to: (a)
electronic data and "800" lines; (b) customer service
inquiries/responsibilities; (c) collections on delinquent and charged-off
accounts; (d) insurance monitoring and the making of claims with respect
thereto; (e) creating the Monthly Report; (f) repossession and other legal
actions; (g) statements to performing accounts and other correspondence; (h)
reconciliation of dealer holdback payments; (i) inventory management; (j)
maintenance of lock-box accounts; (k) electronic skip tracing; and (l) document
storage and title maintenance.
ARTICLE 4
COVENANTS OF THE BACKUP SERVICER
SECTION 4.1. Affirmative Covenants of the Servicer. The Backup Servicer
hereby covenants to the Borrower, CAC, the Deal Agent, the Collateral Agent and
the Secured Parties, that:
(a) Conduct of Business. The Backup Servicer will carry on and
conduct its business in substantially the same manner and in substantially the
same fields of enterprise as it is presently conducted and do all things
necessary to remain duly incorporated, validly existing and in good standing as
a domestic corporation in its jurisdiction of incorporation and maintain all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted.
(b) Compliance with Laws. The Backup Servicer will comply with
all laws, rules, regulations, orders, writs, judgments, injunctions, decrees or
awards to which it or its respective properties may be subject.
(c) Furnishing of Information and Inspection of Records. The
Backup Servicer will furnish to the Collateral Agent from time to time such
information with respect to the Loans as the Collateral Agent may reasonably
request, including, without limitation, listings identifying the Obligor and the
Outstanding Balance for each Loan, provided, however, that prior to the
Assumption Date, the Backup Servicer shall not be obligated to provide such
information to the extent it has not been provided with such by the Servicer.
The Backup Servicer will, at any time and from time to time during regular
business hours permit the Collateral Agent, or its agents or representatives,
(i) to examine and make copies of and make abstracts from all Records to the
extent in the Backup Servicer's possession and (ii) to visit the offices and
properties of the Backup Servicer for the purpose of examining such Records, and
to discuss matters relating to Loans or the Borrower's or the Backup Servicer's
performance hereunder with any of the officers, directors, employees or
independent public accountants of the Backup Servicer having knowledge of such
matters.
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(d) Keeping of Records and Books of Account. On and after the
Assumption Date, the Backup Servicer will maintain and implement administrative
and operating procedures (including, without limitation, an ability to recreate
records evidencing Loans in the event of the destruction of the originals
thereof), and keep and maintain, all documents, books, records and other
information reasonably necessary or advisable for the collection of all Loans
and Contracts (including, without limitation, records adequate to permit the
daily identification of each new Loan and Contract and all Collections of and
adjustments to each existing Loan and Contract). The Backup Servicer will give
the Collateral Agent notice of any material change in the administrative and
operating procedures of the Backup Servicer referred to in the previous
sentence.
(e) Notice of Collateral Agent's Interest. In the event that
the Borrower shall sell or otherwise transfer any interest in any Loan, any
computer tapes or files or other documents or instruments provided by the Backup
Servicer in connection with any such sale or transfer shall disclose the
Borrower's ownership of the Loans and the Collateral Agent's interest in the
Loans.
(f) Credit, Collection, and Accounting Policies. On and after
the Assumption Date, the Backup Servicer will comply in all material respects
with the Credit Guidelines and Collection Guidelines in regard to each Loan and
related Contracts. The Backup Servicer shall deliver to the Collateral Agent
within [ten (10)] days after the date any material change in or amendment to the
Collection Guidelines is made a notice describing such change or amendment. The
Backup Servicer shall notify the Collateral Agent of any material change in or
amendment to the Backup Servicer's accounting policies within ten (10) days
after the date such change or amendment has been made.
(g) Facilities. The Backup Servicer shall ensure, at all times
throughout the term of this Agreement, that it maintains adequate facilities and
employees in place to handle the following in the same manner and level at which
CAC performs such as of the date hereof including, but not limited to: (a)
electronic data and "800" lines; (b) customer service
inquiries/responsibilities; (c) collections on delinquent and charged-off
accounts; (d) insurance monitoring and the making of claims with respect
thereto; (e) creating the Monthly Report; (f) repossession and other legal
actions; (g) statements to performing accounts and other correspondence; (h)
reconciliation of dealer holdback payments; (i) inventory management; (j)
maintenance of lock-box accounts; (k) electronic skip tracing; and (l) document
storage and title maintenance.
SECTION 4.2. Negative Covenants of the Backup Servicer. The Backup
Servicer hereby covenants to the Borrower, CAC, the Collateral Agent, the Deal
Agent and the Secured Parties, that:
(a) No Extension or Amendment of Loans. Except as otherwise
permitted in Section 2.5 hereof or in the Loan and Security Agreement or the
Collection Guidelines, the Backup Servicer will not extend, amend, waive or
otherwise modify the terms of any Loan or of any Contract related thereto.
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(b) No Change in Business or Credit Guidelines. The Backup
Servicer will not make any change in the character of its business or in the
Collection Guidelines, which change would, in either case, impair the
collectibility of any Loan or Contract related thereto or otherwise have a
material adverse effect on the ability of the Backup Servicer to service the
Loans or Contracts related thereto or to perform any of its other duties
hereunder or with respect to the Loan and Security Agreement or the other
Transactions Documents.
(c) No Mergers, Etc. The Backup Servicer will not consolidate
or merge with or into any other Person unless the surviving corporation fully
assumes all of the Backup Servicer's duties and obligations under this
Agreement.
ARTICLE 5
TERMINATION
SECTION 5.1. Termination.
(a) This Agreement shall terminate upon the earlier of (i) the
date on which all outstanding amounts under all Loans and Contracts have been
paid in full or, if not so paid, have been charged off in accordance with the
Collection Guidelines and (ii) the mutual agreement of the Collateral Agent and
CAC to terminate this Agreement. No termination of this Agreement shall relieve
the parties of their respective obligations incurred hereunder prior to the
effective date of such termination or which survive such termination.
(b) Prior to the Assumption Date, the Collateral Agent may
terminate OSIPS as Backup Servicer (i) as set forth in Section 2.4(b) or (ii)
hereof at any time, which termination shall be effective 90 days after written
notice of such termination by the Collateral Agent to OSIPS. Upon the
termination of OSIPS as Backup Servicer, except as otherwise provided for
herein, OSIPS shall have no further duties or obligations under this Agreement.
Termination pursuant to this clause (b) shall be effective on
the date specified in the notice of termination.
(c) OSIPS agrees to cooperate with the Collateral Agent and
any other successor servicer in effecting the termination of OSIPS as Backup
Servicer pursuant to this Article V or Section 2.4, including, without
limitation, the transfer to the Collateral Agent or another successor servicer,
as applicable, of all amounts (cash or otherwise) that shall at the time be held
by OSIPS for deposit, or have been deposited by OSIPS, in the Collection Account
or thereafter received with respect to any of the Loans or Contracts. Prior to
transfer thereof, any such amounts shall be held in trust by OSIPS, for the
benefit of the Collateral Agent. OSIPS further agrees that in connection with
the termination of OSIPS as Backup Servicer, OSIPS shall transfer its records
(electronic and otherwise) relating to the Loans and Contracts to the Collateral
Agent or another successor servicer, as applicable, and shall transfer all other
records, correspondence and documents relating to the Loans or Contracts that it
may possess to the Collateral Agent or another successor servicer, as
applicable. The costs and expenses of such transfer shall be paid by OSIPS if a
Backup Servicer Event of Default has occurred; otherwise,
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such costs and expenses shall be paid by the Borrower in accordance with Section
2.7 of the Loan and Security Agreement.
ARTICLE 6
MISCELLANEOUS
SECTION 6.1. Notices, Etc.
(a) On and after the Assumption Date, the Borrower, CAC and
the Collateral Agent hereby agree to provide to the Backup Servicer all notices
required to be provided to the Servicer pursuant to the Loan and Security
Agreement and the other Transaction Documents, as well as a hard copy sent by a
nationally recognized courier service with item tracking capability.
(b) Except where telephonic instructions or notices are
authorized herein to be given, all notices, demands, instructions and other
communications required or permitted to be given to or made upon any party
hereto shall be in writing and shall be sent by facsimile transmission with a
confirmation of the receipt thereof and shall be deemed to be given for purposes
of this Agreement on the day that the receipt of such facsimile transmission is
confirmed in accordance with the provisions of this Section 5.1. Unless
otherwise specified in a notice sent or delivered in accordance with the
foregoing provisions of this Section, notices, demands, instructions (including
payment instructions) and other communications in writing shall be given to or
made upon the respective parties hereto at their respective addresses and
accounts indicated below, and, in the case of telephonic instructions or
notices, by calling the telephone number or numbers indicated for such party
below:
If to the Servicer:
Credit Acceptance Corporation
Silver Triangle Building
00000 Xxxx Xxxxxx Xxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 480348339
Attention: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000 (ext. 432)
Telecopy: (000) 000-0000
If to the Borrower:
CAC Warehouse Funding Corp.
Silver Triangle Building
00000 Xxxx Xxxxxx Xxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 480348339
Attention: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000 (ext. 432)
Telecopy: (000) 000-0000
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If to the Deal Agent or the Collateral Agent:
Wachovia Securities, Inc.
Xxx Xxxxxxxx Xxxxxx, Xxx., XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxx XxxXxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Backup Servicer
OSI Portfolio Services, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Anurag Sett
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SECTION 6.2. Successors and Assigns. This Agreement shall be binding
upon the Backup Servicer, and shall inure to the benefit of the Borrower, the
Collateral Agent, the Deal Agent and the Secured Parties and their respective
successors and permitted assigns including any Liquidity Bank (it being
expressly understood that such Persons shall be third-party beneficiaries of
this Agreement); provided that the Backup Servicer shall not assign any of its
rights or obligations hereunder without the prior written consent of the
Collateral Agent, and any such assignment in contradiction of the foregoing
shall be null and void.
SECTION 6.3. No Bankruptcy Petition Against the Lender. Each of the
parties hereto covenant and agree that prior to the date which is one year and
one day after the payment in full of all Commercial Paper issued by the Lender
it will not institute against, or join any other Person in instituting against,
the Lender or the Borrower, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any federal or
state bankruptcy or similar law.
SECTION 6.4. Severability Clause. Any provisions of this Agreement
which are prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 6.5. Amendments. This Agreement and the rights and obligations
of the parties hereunder may not be changed orally but only by an instrument in
writing signed by the party against which enforcement is sought.
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SECTION 6.6. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York.
SECTION 6.7. Counterparts. This Agreement may be executed in any number
of copies, and by the different parties hereto on the same or separate
counterparts, each of which shall be deemed to be an original instrument.
SECTION 6.8. Headings. Section headings used in this Agreement are for
convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Borrower, the Backup Servicer, the
Company, CAC, the Collateral Agent, the Deal Agent and the Servicer have caused
this Agreement to be executed by their respective officers thereunto duly
authorized as of the day and year first above written.
CAC WAREHOUSE FUNDING CORP.
as Borrower
By: /s/ Xxxxxxx X. Xxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxx
--------------------------------------------
Title: Chief Financial Officer and Treasurer
--------------------------------------------
CREDIT ACCEPTANCE CORPORATION
individually and as Servicer
By: /s/ Xxxxxxx X. Xxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxx
--------------------------------------------
Title: Chief Financial Officer and Treasurer
--------------------------------------------
VARIABLE FUNDING CAPITAL CORPORATION,
as Company
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
------------------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
--------------------------------------------
Title: Vice President
--------------------------------------------
WACHOVIA SECURITIES, INC.,
individually and as Collateral Agent and Deal Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Title: Vice President
--------------------------------------------
OSI PORTFOLIO SERVICES, INC
as Backup Servicer
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
--------------------------------------------
Title: Senior Vice President, Division Counsel
--------------------------------------------
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EXHIBIT A
SERVICING AND COLLECTIONS COST SUMMARY
IN THE EVENT OF SERVICER TRANSITION
SERVICE COST METHOD
-------------------------------------------------------------------------------------------------------------------------------
PRE-SERVICING
Data and "800" lines At cost
Setup Conversion Fee $0.050 Per account (minimum
$25,000)
PERFORMING ACCOUNTS
Customer Service -- Inbound Calls $3.00 Per call taken
Reminder/Welcome Calls $4,500 Per FTE
Servicing (5 - 59 days delq.) $4,500 Per FTE
Servicing (60+ days delq.) $4,800 Per FTE
NON-PERFORMING ACCOUNTS
Ins/Repo/Title Support $4,500 Per FTE
repo/remarketing/auction costs will be a passthrough
Collections Post C/O <360 days $4,800 Collections
Collections Post C/O >360 days $4,800 Collections
Agency Management $0.40 Each Account
Accounts in Legal Network 40% Collections Fee
Court Costs Advanced Included
Probate Costs Advanced At Cost
CORRESPONDENCE
Monthly Statements $0.55 Each Statement
Hello Letters (One time) $0.55 Each Letter
Gramm Xxxxx Xxxxxx Letters $0.58 Each Letter
Mo Servicing/Collection Letters $0.55 Each Letter
Specialty Letters (If any) $1.00 Each Letter
DATA PROCESSING / MIS
Inventory Management $0.07 Per Account
CBR Reporting $0.10 Per Account
Bankruptcy/Deceased Scrub $1.00 Per Hit
Custom programming/reports $150 Per Hour
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$7,500 Monthly
Ongoing Monthly Servicer Report Generation $150 Hour
Monthly Servicer Report Programming and Setup Fee to convert to Contract
Level reporting
PAYMENT PROCESSING
Lock Box Management $ 0.40 Per Item
Lock Box Exception Processing $1.25 Per Item
Credit Card Processing $1.25 Per Transaction Plus 3%
of Gross $
Refund Processing $15.00 Per Transaction Plus 1%
of Gross $
EXCEPTIONS
Correspondence Handling $2.25 Per Item
Suspense File Review $1.25 Per Item
Bankruptcy Proof of Claim Filing $4.95 Per Claim
Probate Claim Processing $4.95 Per Claim
Return Mail Processing $0.25 Per Item
Dispute Verification handling $5.00 Per Account
CCCS Handling $2.25 Per Account
OTHER
Electronic Skip Tracing 4.00 Per Account
Dedicated Manual Skip Tracing $4,500 Per FTE
Travel At Cost
Document Storage TBD
Document Imaging $1.00 Per page
Title Maintenance TBD
Annual Accountant's Report per 2.4(c) of the BUS At cost
And 6.1 (c) of the LSA At cost
Special Programming/ IT staff time for
Responses to Information Requests (4.1(c) of BUS
or 5.4 (h) and 5.5 (g) of the LSA $150/hour
UCC Filings and Lien perfection $150/hour plus costs
Deboarding / Transition to Successor Servicer Fee $5,000
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