Exhibit 4.6
--------------------------------------------------------------------------------
BACKUP SERVICING AGREEMENT
BETWEEN
ONYX ACCEPTANCE CORPORATION
ONYX ACCEPTANCE FINANCIAL CORPORATION
[INDENTURE TRUSTEE]
[INSURER]
ONYX ACCEPTANCE OWNER TRUST 200__-__
AND
[BACKUP SERVICER]
AS BACKUP SERVICER
DATED AS OF ____________, 200__
--------------------------------------------------------------------------------
THIS BACKUP SERVICING AGREEMENT, dated as of ____________, 200__ (this
"Agreement"), is between ONYX ACCEPTANCE CORPORATION ("Onyx" or, in its capacity
as servicer, the "Servicer"), a Delaware corporation, ONYX ACCEPTANCE FINANCIAL
CORPORATION ("Xxxxx"), a Delaware corporation, [INDENTURE TRUSTEE] (the
"Indenture Trustee"), a _____________________, [INSURER] (the "Insurer"), a
____________________, ONYX ACCEPTANCE OWNER TRUST 200__-__ (the "Issuer"), a
Delaware statutory trust, and [BACKUP SERVICER], a _____________________, as
Backup Servicer (the "Backup Servicer").
WITNESSETH:
WHEREAS, the Servicer, the Indenture Trustee, Xxxxx and the Issuer are
party to that certain Sale and Servicing Agreement dated as of __________, 200__
(the "Sale and Servicing Agreement");
WHEREAS, the terms of the Sale and Servicing Agreement require that the
parties thereto enter into an agreement with a backup servicer to (i) perform
certain backup servicing duties more definitively described on Schedule I hereto
and (ii) become Successor Servicer upon the occurrence of certain specified
events;
WHEREAS, the Backup Servicer is willing to perform the backup servicing
duties and act as Successor Servicer as specified herein pursuant to the
conditions and for the consideration described herein;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and of other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. Unless otherwise specified herein, all
capitalized terms shall have the meaning assigned to such terms in the Sale and
Servicing Agreement. Whenever capitalized and used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
Agreement: This Backup Servicing Agreement, together with all
amendments and supplements hereto and all exhibits and schedules to any of the
foregoing.
Authorized Officer: With respect to the Backup Servicer, the President,
any Vice President, Assistant Vice President, Secretary or Assistant Secretary
of the Backup Servicer and also, with respect to a particular matter, any other
officer of the Backup Servicer to whom such matter is referred because of such
officer's knowledge and familiarity with the particular subject.
Backup Servicer: [Backup Servicer], a ____________________, in its
capacities as backup servicer and, upon the expiration of the Transfer Period,
as Successor Servicer, together with its successors in interest and permitted
assigns.
Backup Servicer Expenses: The meaning ascribed to such term in Section
2.4(a)(i) of this Agreement.
Backup Servicer Fees: The meaning ascribed to such term in Section
2.4(a)(i) of this Agreement.
Business Day: Any day other than a Saturday, a Sunday or other day on
which commercial banking institutions or savings associations located in St.
Xxxxxx, Missouri, Los Angeles, California, Wilmington, Delaware or New York, New
York are authorized or obligated by law, regulation, executive order or
governmental decree to be closed.
Contract: Each retail installment sales contract and security agreement
or installment loan agreement and security agreement and all proceeds thereof
and payments thereunder, which contract or agreement has been executed by an
obligor and pursuant to which such obligor purchased or financed the vehicle
described therein, agreed to pay the deferred purchase price (i.e., the purchase
price net of any down payment) or amount borrowed, together with interest, as
therein provided in connection with such purchase or loan, granted a security
interest in such vehicle, and undertook to perform certain other obligations as
specified in such contract or agreement and which is being serviced by the
Servicer in connection with the Sale and Servicing Agreement.
Controlling Party: (i) The Insurer, so long as no Insurer Default shall
have occurred and be continuing and (ii) the Indenture Trustee, so long as an
Insurer Default shall have occurred and be continuing; provided that the
Indenture Trustee shall notify the Backup Servicer promptly after the occurrence
of any Insurer Default that the Indenture Trustee has become the Controlling
Party.
Distribution Date: The 15th day of each month or if such date shall not
be a Business Day, the following Business Day commencing _______________, 200__.
Xxxxx: Onyx Acceptance Financial Corporation, a Delaware corporation.
Indenture: That certain Indenture dated as of __________, 200__,
between the Issuer and the Indenture Trustee, as the same may be amended,
modified or restated from time to time.
Indenture Trustee: ____________________, a _________________, not in
its individual capacity but solely as Indenture Trustee under the Indenture, its
successors in interest and any successor Indenture Trustee under the Indenture.
Information Package: The meaning ascribed to such term in Section
2.1(a) of this Agreement.
Issuer: Onyx Acceptance Owner Trust 200__-__, a Delaware statutory
trust.
Notes: The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes
and the Class A-4 Notes issued pursuant to the Indenture.
Onyx: Onyx Acceptance Corporation, a Delaware corporation.
3
Person: Any legal person, including any individual, corporation,
partnership, joint venture, estate, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof, or any other entity.
Rating Agencies: Xxxxx'x Investors Service, Inc. and its successors in
interest and Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., and its successors in interest.
Sale and Servicing Agreement: That certain Sale and Servicing Agreement
dated as of ______________, 200__, between the Issuer, the Servicer, Xxxxx and
_________________, as Indenture Trustee and Trust Agent, as the same may be
amended, modified or restated from time to time.
Servicer: Onyx Acceptance Corporation in its capacity as servicer under
the Sale and Servicing Agreement, its successors in interest and any Successor
Servicer, other than the Backup Servicer, under the Sale and Servicing
Agreement.
Successor Servicer: The Person appointed to succeed a resigning or
terminated servicer pursuant to Section 7.02 of the Sale and Servicing Agreement
and, in the case of the Backup Servicer, in accordance with the terms hereunder.
Termination Event: An event described in Section 4.1.
Transfer Notice: Written notice from the Indenture Trustee to the
Backup Servicer advising the Backup Servicer of the transfer of active servicing
duties to the Backup Servicer as Successor Servicer under the Sale and Servicing
Agreement.
Transfer Period: The period following the Backup Servicer's receipt of
a Transfer Notice, which period shall end on the earlier of thirty (30) days
after receipt by the Backup Servicer of the Transfer Notice and the date upon
which the Backup Servicer begins acting as Successor Servicer under the Sale and
Servicing Agreement.
Verification and Confirmation Duties: The duties defined as such in
Section 2.1(a).
SECTION 1.2 Usage of Terms. With respect to all terms used in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other gender; references to "writing" include
printing, typing, lithography, and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement; references to
Persons include their permitted successors and assigns; and the terms "include"
or "including" mean "include without limitation" or "including without
limitation."
SECTION 1.3 Section References. All references to Articles, Sections,
paragraphs, subsections, exhibits and schedules shall be to such portions of
this Agreement unless otherwise specified.
4
ARTICLE II
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 2.1 Duties of the Backup Servicer.
(a) Verification and Confirmation Duties. Prior to its appointment as
Successor Servicer, the Backup Servicer shall perform all of the duties of the
Backup Servicer as identified on Schedule I hereto (collectively, the
"Verification and Confirmation Duties") in accordance with the terms of this
Agreement. No later than the Servicer Report Date, the Servicer shall deliver to
the Backup Servicer the Distribution Date Statement and a computer tape in a
format acceptable to the Backup Servicer containing the information with respect
to the Contracts for the preceding Collection Period necessary for the
preparation of the Distribution Date Statement and the performance of the
Verification and Confirmation Duties relating to such Collection Period
(collectively, the "Information Package").
(b) Active Servicing Duties. In the event that the Servicer is
terminated, resigns or otherwise ceases to function as Servicer under the Sale
and Servicing Agreement, the Indenture Trustee shall (unless otherwise directed
by the Insurer, if then the Controlling Party) deliver a Transfer Notice to the
Backup Servicer appointing the Backup Servicer as Successor Servicer. Upon the
expiration of the Transfer Period, the Backup Servicer shall assume the duties,
liabilities and obligations of the Servicer under the Sale and Servicing
Agreement, as modified in accordance with Schedule III, and the Insurance
Agreement, as modified in accordance with Schedule IV.
(c) Term. The provisions of this Agreement and the duties and
obligations of the Backup Servicer hereunder shall commence on the date hereof
and shall continue in full force and effect until either (i) if the Backup
Servicer is not then the Successor Servicer, the Notes have been repaid in their
entirety or (ii) the Pool Balance equals zero, unless earlier terminated
pursuant to the terms of this Agreement. Upon the termination of the Policy, all
rights, liabilities, duties and obligations of the Insurer hereunder shall
terminate other than any such liability that accrued to or was incurred by the
Insurer prior to such repayment.
(d) Scope of Duties. The Backup Servicer undertakes to perform only
such duties and obligations as are specifically set forth in this Agreement, it
being expressly understood by all parties hereto that there are no implied
duties or obligations of the Backup Servicer hereunder. Without limiting the
generality of the foregoing, the Backup Servicer, except as expressly set forth
herein, shall have no obligation to supervise, verify, monitor or administer the
performance of the Servicer. The Backup Servicer may act through its agents,
attorneys and custodians in performing any of its duties hereunder, it being
understood by the parties hereto that the Backup Servicer will be responsible
for any willful misconduct or negligence on the part of such agents, attorneys
or custodians acting for and on behalf of the Backup Servicer. Notwithstanding
anything to the contrary in the Basic Documents, the Backup Servicer shall have
no liability for any actions taken or omitted by the Servicer or its agents or
the inaccuracy of any data provided, produced or supplied by the Servicer or its
agents, except to the extent provided in Section 3.1(d) of this Agreement.
Notwithstanding anything herein or in the Basic Documents to the contrary, the
Backup Servicer will not be obligated to undertake the duties of the
Administrator under the Administration Agreement.
5
SECTION 2.2 Representations, and Warranties of Backup Servicer. By its
execution and delivery of this Agreement, the Backup Servicer makes the
following representations and warranties as of the date of this Agreement:
(a) Organization and Good Standing. The Backup Servicer has been duly
organized and is validly existing and in good standing under the laws of its
jurisdiction of organization, with power, authority and legal right to own its
properties and to conduct its business as such properties are currently owned
and such business is currently conducted, and had at all relevant times, and now
has, power, authority and legal right to enter into and perform its obligations
under this Agreement, including the servicing of Contracts;
(b) Due qualification. The Backup Servicer is duly qualified to do
business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions where the failure to do
so would materially and adversely affect the performance of its obligations
under this Agreement and has made all filings and registrations necessary to
perform its obligations under this Agreement;
(c) Power and Authority. The Backup Servicer has the power and
authority to execute and deliver this Agreement and to carry out the terms
hereof; and the execution, delivery and performance of this Agreement have been
duly authorized by the Backup Servicer by all necessary corporate action;
(d) Binding Obligation. This Agreement shall constitute the legal,
valid and binding obligation of the Backup Servicer enforceable in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors rights generally and by equitable limitations on the availability of
specific remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law;
(e) No Violation. The execution and delivery of this Agreement, the
consummation of the transactions contemplated by this Agreement, and the
fulfillment of the terms hereof, shall not conflict with, result in any breach
of any of the terms and provisions of, or constitute (with or without notice or
lapse of time, or both) a default under, the certificate of incorporation or
bylaws of the Backup Servicer, or any indenture, agreement, mortgage, deed of
trust or other instrument to which the Backup Servicer is a party or by which it
is bound, or result in the creation or imposition of any lien upon any of its
properties pursuant to the terms of any such indenture, agreement, mortgage,
deed of trust or other instrument, other than this Agreement, or violate any
law, order, rule or regulation applicable to the Backup Servicer of any court or
of any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Backup Servicer or any
of its properties;
(f) No Proceedings. There are no proceedings or investigations pending
or, to the Backup Servicer's knowledge, threatened against the Backup Servicer,
before any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality having jurisdiction over the Backup Servicer or its
properties (A) asserting the invalidity of this Agreement, (B) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement, or (C) seeking any determination or ruling that might materially and
adversely affect the performance by the Backup Servicer of its obligations
under, or the validity or enforceability of, this Agreement; and
6
(g) No Consents. The Backup Servicer is not required to obtain the
consent of any other party or any consent, license, approval or authorization,
or registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity or
enforceability of this Agreement.
SECTION 2.3 Backup Servicer Termination and Resignation.
(a) Prior to the time the Backup Servicer receives a Transfer Notice,
the Controlling Party may terminate this Agreement for any reason in its sole
judgment and discretion upon delivery of thirty (30) days advance written notice
to the other parties hereto of such termination; provided that the Rating Agency
Condition is satisfied with respect thereto. Reasonable expenses incurred by the
Backup Servicer in respect of the foregoing sentence shall be reimbursed by the
Servicer in accordance with Section 2.4 hereunder.
(b) Prior to the time the Backup Servicer receives a Transfer Notice,
the Backup Servicer may resign from its obligations and duties under this
Agreement for any reason in its sole judgment and discretion upon delivery of
thirty (30) days advance written notice to the other parties hereto and the
Rating Agencies of such resignation. No such resignation shall become effective
until a successor Backup Servicer appointed by the Servicer shall have assumed
the Backup Servicer's duties, obligations and liabilities hereunder. Any such
successor Backup Servicer must be an established servicer of motor vehicle loans
reasonably acceptable to the Issuer, the Indenture Trustee, the Insurer and the
Rating Agencies. In the event a successor Backup Servicer is not appointed
within thirty (30) days, the resigning Backup Servicer may petition a court of
competent jurisdiction for appointment of a successor. Upon the resignation of
the Backup Servicer, the Backup Servicer shall cooperate with the transitioning
to a new backup servicer or successor servicer.
SECTION 2.4 Compensation; Payment of Expenses by Backup Servicer.
(a) (i) On each Distribution Date prior to its appointment as
Successor Servicer, the Backup Servicer shall be entitled to receive from the
Servicer the fees (the "Backup Servicer Fees") set forth in Item I.A. on the
attached Schedule II for its performance of the Verification and Confirmation
Duties. Additionally, on each Distribution Date prior to its appointment as
Successor Servicer, the Backup Servicer shall be entitled to receive from the
Servicer the reimbursable expenses set forth in Item II.A. on the attached
Schedule II (the "Backup Servicer Expenses") and amounts it is entitled in
respect of indemnification from the Servicer pursuant to this Agreement.
(ii) To the extent the Servicer does not remit payment in full
to the Backup Servicer on any Distribution Date of the Backup Servicer Fees and
Backup Servicer Expenses, the Backup Servicer shall, upon five (5) days prior
written notice to the Indenture Trustee and the Insurer, be entitled to such
Backup Servicer Fees and, if so directed by the Insurer, Backup Servicer
Expenses from funds distributed pursuant to the Sale and Servicing Agreement or
Indenture, as applicable, on the Distribution Date immediately succeeding the
date of delivery of such notice; provided, that, such Backup Servicer Expenses
shall be paid to the Backup Servicer solely from amounts distributed pursuant to
Section 4.04(b) of the Sale and Servicing Agreement and Section 5.06(a) of the
Indenture.
7
(b) As compensation for its performance as Successor Servicer, on each
Distribution Date following its appointment as Successor Servicer, the Backup
Servicer shall be entitled to receive the Servicing Fee as provided in the Sale
and Servicing Agreement, as modified by Schedule III hereto.
ARTICLE III
THE BACKUP SERVICER
SECTION 3.1 Liability of Backup Servicer; Indemnities.
(a) The Backup Servicer shall be liable hereunder only to the extent of
the obligations in this Agreement specifically undertaken by the Backup Servicer
and the representations and warranties made by the Backup Servicer hereunder.
(b) The Backup Servicer shall indemnify, defend and hold harmless the
other parties hereto and their respective officers, directors, agents and
employees from and against any and all costs, expenses, losses, claims, damages
and liabilities to the extent that such cost, expense, loss, claim, damage or
liability arose out of, or was imposed upon such party through the Backup
Servicer's breach of this Agreement (other than a breach caused by the
negligence, willful misfeasance or bad faith of any other party hereto), the
negligence (excluding errors in judgment), willful misfeasance or bad faith of
the Backup Servicer in the performance of its duties under this Agreement or by
reason of reckless disregard of its obligations and duties under this Agreement.
(c) The Servicer shall indemnify, defend and hold harmless the Backup
Servicer and its respective officers, directors, agents and employees from and
against any and all costs, expenses, losses, claims, damages and liabilities to
the extent that such cost, expense, loss, claim, damage or liability arose out
of, or was imposed upon the Backup Servicer through the Servicer's breach of
this Agreement or the negligence, willful misfeasance or bad faith of the
Servicer in the performance of its duties under this Agreement or by reason of
reckless disregard of the Servicer's obligations and duties under this
Agreement.
The Insurer shall indemnify, defend and hold harmless the Backup
Servicer and its respective officers, directors, agents and employees from and
against any and all costs, expenses, losses, claims, damages and liabilities to
the extent that such cost, expense, loss, claim, damage or liability arose out
of, or was imposed upon the Backup Servicer the negligence (excluding errors in
judgment), willful misfeasance or bad faith of the Insurer or by reason of
reckless disregard of the Insurer's obligations and duties as Controlling Party.
The Servicer and the Issuer shall (solely, in the case of the Issuer,
from amounts paid pursuant to, as applicable, (I) Section 5.06(a), sixth, of the
Indenture, (II) Sections 4.03(viii) and 4.03(x) of the Sale and Servicing
Agreement, subsequent to the Backup Servicer's appointment as Successor
Servicer, and (III) Section 4.04(b) of the Sale and Servicing Agreement, prior
to the Backup Servicer's appointment as Successor Servicer) jointly and
severally indemnify, defend and hold harmless the Backup Servicer and its
officers, directors, employees, representatives and agents, from and against,
and reimburse the Backup Servicer for, any and all claims, expenses,
obligations, liabilities, losses, damages, injuries (to person, property, or
natural resources), penalties, stamp or other similar taxes, actions, suits,
judgments, reasonable costs and expenses (including reasonable attorney's and
agent's fees and expenses) of whatever kind or nature regardless of their merit,
8
incurred by the Backup Servicer directly or indirectly relating to, or arising
from, claims against the Backup Servicer by reason of its participation in the
transaction contemplated hereby, including without limitation all reasonable
costs associated with claims for damages to persons or property, and reasonable
attorneys' and consultants' fees and expenses and court costs except to the
extent caused by the Backup Servicer's negligence, willful misfeasance or bad
faith in the performance of its duties under this Agreement or by reason of
reckless disregard of its obligations and duties under this Agreement.
(d) The Backup Servicer may accept and reasonably rely on all
accounting and servicing records and other documentation provided to the Backup
Servicer by or at the direction of the Servicer, including documents prepared or
maintained by any originator, or previous servicer, or any party providing
services related to the Contracts (collectively, "third party"). The Servicer
agrees to indemnify (subject to the limitation provided in subsection (e) below)
and hold harmless the Backup Servicer, its respective officers, employees and
agents harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs, fees
and expenses that the Backup Servicer may sustain in any way related to the
negligence or willful misconduct of any third party with respect to the
Contracts. The Backup Servicer shall have no duty, responsibility, obligation or
liability (collectively, "liability") for the acts or omissions of any such
third party. If any error, inaccuracy or omission (collectively, "error") exists
in any information provided to the Backup Servicer and such errors cause or
materially contribute to the Backup Servicer making or continuing any error
(collectively, "continuing errors"), the Backup Servicer shall have no liability
for such continuing 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 negligence in discovering
or correcting any error or in the performance of its duties contemplated herein.
The Backup Servicer shall have no responsibility and shall not be in
default hereunder or incur any liability for any failure, error, malfunction or
any delay in carrying out any of its duties under this Agreement if such failure
or delay in carrying out any of its duties under this Agreement results from the
Backup Servicer acting in accordance with information prepared or supplied by a
Person other than the Backup Servicer (or contractual agents) or the failure of
any such other Person to prepare or provide such information. The Backup
Servicer shall have no responsibility, shall not be in default and shall incur
no liability for (i) any act or failure to act of any third party (other than
its contractual agents), including the Servicer or the Insurer, (ii) any
inaccuracy or omission in a notice or communication received by the Backup
Servicer from any third party (other than its contractual agents), (iii) the
invalidity or unenforceability of any Contract under applicable law, (iv) the
breach or inaccuracy of any representation or warranty made with respect to any
Contract or Financed Vehicle, or (v) the acts or omissions of any successor
Backup Servicer.
The Servicer and the Issuer shall (solely, in the case of the Issuer,
from amounts paid pursuant to, as applicable, (I) Section 5.06(a), sixth, of the
Indenture, (II) Sections 4.03(viii) and 4.03(x) of the Sale and Servicing
Agreement, subsequent to the Backup Servicer's appointment as Successor
Servicer, and (III) Section 4.04(b) of the Sale and Servicing Agreement, prior
to the Backup Servicer's appointment as Successor Servicer) jointly and
severally indemnify (subject to the limitation provided in subsection (e) below)
and hold harmless the Backup Servicer, its respective officers, employees and
agents harmless against any and all claims, losses, penalties, fines,
forfeitures, legal fees and related costs, judgments, and any other costs, fees
and expenses that the
9
Backup Servicer may sustain in any way related to (i) the negligence or
misconduct of any third party, other than contractual agents of the Backup
Servicer, with respect to the Contracts or Financed Vehicles, and (ii) the
performance of the Backup Servicer's duties hereunder and under the Sale and
Servicing Agreement other than if the loss, liability or expense was incurred by
the Backup Servicer as a result of the Backup Servicer's willful misfeasance,
negligence or bad faith.
In the event the Backup Servicer becomes aware of errors and/or
continuing errors which, in the opinion of the Backup Servicer, impair its
ability to perform its services hereunder, the Backup Servicer shall promptly
notify the other parties hereto of such errors and/or continuing errors. With
the prior consent of the Controlling Party, the Backup Servicer may undertake to
reconstruct any data or records appropriate to correct such errors and/or
continuing errors and to prevent future continuing errors. The Backup Servicer
shall be entitled to recover its costs thereby expended.
(e) Indemnification under this Article shall include, without
limitation, reasonable fees and expenses of counsel and expenses of litigation.
If the indemnifying party has made any indemnity payments pursuant to this
Article and the recipient thereafter collects any of such amounts from others,
the recipient shall promptly repay such amounts collected to the indemnifying
party, without interest.
When the Backup Servicer incurs expenses after the occurrence of a
Servicer Default, the expenses are intended to constitute expenses of
administration under Title 11 of the United States Code or any other applicable
federal or state bankruptcy, insolvency or similar law.
(f) The provisions of this Section 3.1 shall survive the termination of
this Agreement.
SECTION 3.2 Limitation on Liability of Backup Servicer and Others.
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 other parties
hereto or any party to the Sale and Servicing Agreement except as provided in
this Agreement for any action taken or for refraining from the taking of any
action in good faith 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 (excluding errors in
judgment) in the performance of duties, by reason of reckless disregard of
obligations and duties under this Agreement or any violation of law by the
Backup Servicer or such Person, as the case may be. The Backup Servicer and any
director, officer, employee or agent of the Backup Servicer may rely in good
faith on the 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.
SECTION 3.3 Corporate Existence. The Backup Servicer shall maintain its
existence and rights as a corporation under the laws of the jurisdiction of its
incorporation and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which the failure to so qualify would have a
material adverse effect on the validity or enforceability of any Contract, this
Agreement or on the ability of the Backup Servicer to perform its duties under
this Agreement.
SECTION 3.4 Insurance. The Backup Servicer shall maintain adequate
insurance in amounts and with terms customarily subscribed by companies in the
same industry performing similar
10
functions to those of the Backup Servicer in its role as Backup Servicer or
Successor Servicer, as applicable.
SECTION 3.5 Compliance with Laws. The Backup Servicer covenants with
the parties hereto that, upon the expiration of the Transfer Period, the
practices used or to be used by the Backup Servicer to monitor collections with
respect to the Contracts and repossess and dispose of the Financed Vehicles
related to the Contracts will be, in all material respects, legal, proper and in
conformity with the requirements of all applicable federal and state laws, rules
and regulations. Upon the expiration of the Transfer Period, the Backup Servicer
will be in possession of all state and local licenses (including all debt
collection licenses) required for it to perform its services hereunder, and none
of such licenses shall have been suspended, revoked or terminated.
ARTICLE IV
BACKUP SERVICER TERMINATION EVENTS
SECTION 4.1 Termination Event. For purposes of this Agreement, each of
the following shall constitute a Termination Event (subsections (a) through (d)
shall further constitute a "Backup Servicer Event of Default"):
(a) Failure on the part of the Backup Servicer duly to observe or
perform in any material respect any covenant or agreement of the Backup Servicer
set forth in this Agreement, which failure continues unremedied for a period of
30 days after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Backup Servicer by the
Controlling Party; or
(b) (i) The commencement of an involuntary case under the federal
bankruptcy laws, as now or hereinafter in effect, or another present or future
federal or state bankruptcy, insolvency or similar law and such case is not
dismissed within 60 days; or (ii) the entry of a decree or order for relief by a
court or regulatory authority having jurisdiction in respect of the Backup
Servicer in an involuntary case under the federal bankruptcy laws, as now or
hereafter in effect, or another present or future, federal or state, bankruptcy,
insolvency or similar law, or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Backup
Servicer or of any substantial part of its property or ordering the winding up
or liquidation of the affairs of the Backup Servicer; or
(c) The commencement by the Backup Servicer of a voluntary case under
the federal bankruptcy laws, as now or hereafter in effect, or any other present
or future, federal or state, bankruptcy, insolvency or similar law, or the
consent by the Backup Servicer to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Backup Servicer or of any substantial part of its
property or the making by the Backup Servicer of an assignment for the benefit
of creditors or the failure by the Backup Servicer generally to pay its debts as
such debts become due or the taking of corporate action by the Backup Servicer
in furtherance of any of the foregoing; or
11
(d) Any representation, warranty or statement of the Backup Servicer
made in this Agreement or any certificate, report or other writing delivered by
the Backup Servicer pursuant hereto shall prove to be incorrect in any material
respect as of the time when the same shall have been made and, within thirty
(30) days after written notice thereof shall have been given to the Backup
Servicer by the Controlling Party, the circumstances or condition in respect of
which such representation, warranty or statement was incorrect shall not have
been eliminated or otherwise cured; or
(e) Non-payment of amounts due and owing to the Backup Servicer
pursuant to Section 2.4(a)(ii) or Section 2.4(b), as applicable, which
non-payment shall not be cured by the second succeeding Distribution Date after
the date on which written notice of such non-payment shall have been received by
the Indenture Trustee and the Insurer.
SECTION 4.2 Consequences of a Termination Event.
(a) If a Backup Servicer Event of Default (as defined in Section 4.1
above) shall occur and be continuing, the Controlling Party may (or shall, at
the direction of Holders evidencing not less than 25% of the outstanding
principal amount of the Notes, if the Indenture Trustee is the Controlling
Party), by notice given in writing to the Backup Servicer with a copy of such
writing to the other parties hereto and the Rating Agencies, terminate all of
the rights and obligations of the Backup Servicer under this Agreement. On or
after the receipt by the Backup Servicer of such written notice, all authority,
power, obligations and responsibilities of the Backup Servicer under this
Agreement shall be terminated. The terminated Backup Servicer agrees to
cooperate with the other parties hereto in effecting the termination of the
responsibilities and rights of the terminated Backup Servicer under this
Agreement.
(b) In the event of a Termination Event pursuant to Section 4.1(e),
this Agreement shall terminate upon expiration of the given cure period and the
Backup Servicer shall then have no duties or obligations under this Agreement
except as otherwise provided herein.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1 Waiver; Amendment. Neither this Agreement nor any provision
hereof may be waived, amended or modified orally, but only by an instrument in
writing signed by the parties hereto; provided that any such amendment shall not
materially and adversely affect the interests of any Noteholder; provided,
further, that any such amendment shall be deemed not to materially and adversely
affect the interests of any Noteholder if the Rating Agency Condition is
satisfied.
SECTION 5.2 GOVERNING LAW AND WAIVER OF JURY TRIAL. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF (OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS
12
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR BY THE SALE AND SERVICING
AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
SECTION 5.3 CONSENT TO JURISDICTION. EACH PARTY TO THIS AGREEMENT (I)
AGREES THAT ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT SHALL BE BROUGHT IN A COURT OF RECORD IN THE CITY AND
STATE OF NEW YORK OR IN THE COURTS OF THE UNITED STATES OF AMERICA LOCATED IN
THE SOUTHERN DISTRICT OF NEW YORK, (II) CONSENTS TO THE JURISDICTION OF EACH
SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND (III) WAIVES ANY
OBJECTION WHICH THEY MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION,
OR PROCEEDING IN ANY OF SUCH COURTS AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
SECTION 5.4 Rating Agencies. The Backup Servicer will provide any
Rating Agency with such reasonable assistance as is necessary to evaluate such
Rating Agency's rating of the Notes.
SECTION 5.5 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
SECTION 5.6 Assignment. Notwithstanding anything to the contrary
contained in this Agreement, this Agreement may not be assigned by the Backup
Servicer without the prior consent of the Controlling Party and the Rating
Agencies.
SECTION 5.7 Binding Effect; No Third-Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and permitted assigns. Nothing in this
Agreement, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, any benefit or any legal or equitable
right, remedy or claim under this Agreement.
SECTION 5.8 Counterparts. For the purpose of facilitating its execution
and for other purposes, this Agreement may be executed simultaneously in any
number of counterparts, each of which counterparts shall be deemed to be an
original, and all of which counterparts shall constitute but one and the same
instrument.
SECTION 5.9 Notices. All demands, notices and communications under this
Agreement shall be in writing, personally delivered or mailed by certified
mail-return receipt requested, or by facsimile transmission, and shall be deemed
to have been duly given upon receipt:
(a) in the case of the Backup Servicer, at the following
address:_______________________________________________________________________;
13
(b) in the case of the Servicer, at the following address: 00000 Xxxxx
Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx Xxxxx, XX 00000, Attention: Xxx X. Xxxxx,
Executive Vice President, facsimile (000) 000-0000;
(c) in the case of the Issuer, at the following address: c/o [OWNER
TRUSTEE], as Owner Trustee, ___________________________________________________;
(d) in the case of the Insurer, at the following
address:_______________________________________________________________________;
and
(e) in the case of the Indenture Trustee, at the following
address:_______________________________________________________________________;
or, in each case, at such other address as shall be designated by any such party
in a written notice to the other parties.
SECTION 5.10 Confidentiality.
(a) Unless otherwise consented to by the Servicer, each of the parties
hereto hereby agrees that it will not disclose the contents of this Agreement,
or any other confidential or proprietary information furnished in connection
with the matters contemplated by this Agreement by the Servicer to any Person
other than its affiliates (which affiliates shall have agreed to be bound by
this Section 5.10), auditors and attorneys or as required by applicable law or
the Sale and Servicing Agreement.
(b) The Backup Servicer, whether in its performance of the Verification
and Confirmation Duties or in its capacity as Successor Servicer, represents and
warrants to the Servicer that it presently maintains safeguards designed to
protect the security and confidentiality of "Customer Information" that the
Servicer may allow the Backup Servicer to access in order to perform its duties
under this Agreement and the Sale and Servicing Agreement. "Customer
Information" is non-public personal information in the possession of the
Servicer about obligors under the Contracts, including, without limitation, any
disclosure that an obligor is a party to a Contract. The Backup Servicer agrees
that "Customer Information" will be held in strict confidence and accessed only
for the purpose of carrying out its duties under this Agreement and the Sale and
Servicing Agreement. The Backup Servicer agrees to protect this "Customer
Information" according to commercially reasonable standards and no less
rigorously than it protects its own customers' confidential information.
SECTION 5.11 Non-Petition Covenant.
(a) With respect to the Issuer, prior to the date that is one year and
one day after the payment in full of all amounts owing under the Notes, the
Backup Servicer will not institute against the Issuer or join any other Person
in instituting against the Issuer any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceedings under the
laws of the United States of America or any state of the United States.
(b) With respect to Xxxxx, the Backup Servicer will not institute
against the Xxxxx or join any other Person in instituting against Xxxxx any
bankruptcy, reorganization, arrangement, insolvency
14
or liquidation proceedings or other similar proceedings under the laws of the
United States of America or any state of the United States.
(c) The provisions of this Section 5.11 shall survive the termination
of this Agreement.
SECTION 5.12 Limitation of Liability of Owner Trustee and Indenture
Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by [OWNER TRUSTEE], not in its individual
capacity but solely in its capacity as Owner Trustee of the Issuer, and in no
event shall [OWNER TRUSTEE] in its individual capacity or any beneficial owner
of the Issuer have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder, as to all of which
recourse shall be had solely to the assets of the Issuer. For all purposes of
this Agreement, in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Articles VI, VII and VIII of the Trust
Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by [INDENTURE TRUSTEE] not in its individual
capacity but solely as Indenture Trustee and in no event shall [INDENTURE
TRUSTEE] have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
15
IN WITNESS WHEREOF, the parties hereto have caused this Backup
Servicing Agreement to be duly executed by their respective officers as of the
day and year first above written.
ONYX ACCEPTANCE CORPORATION
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
[INSURER]
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
[INDENTURE TRUSTEE], not in its individual
capacity, but solely as an Indenture Trustee
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
ONYX ACCEPTANCE OWNER TRUST 200__-__
By: [Owner Trustee], not in its individual
capacity, but solely as Owner Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
------------------------------
[BACKUP SERVICER]
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
ONYX ACCEPTANCE FINANCIAL CORPORATION
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
SCHEDULE I
DESCRIPTION OF VERIFICATION AND CONFIRMATION DUTIES
(BACKUP SERVICING)
The Backup Servicer shall provide the following services related to
backup servicing in connection with the Contracts.
(i) The Backup Servicer will work with the Servicer's personnel to
obtain the necessary systems and data information from the servicing systems in
use by the Servicer. Using this information, the Backup Servicer will create a
set of conversion routines and database mapping programs, as necessary, that
will enable the Backup Servicer to receive data from the Servicer on a monthly
basis (at the time and in the manner specified in Section 2.1(a) of the Backup
Servicing Agreement) and to ensure that the data is readable.
The monthly data shall include the following:
- Obligor information
- Loan financial information
- Collateral information
- Payment/Transaction history
- Information edits
(ii) On a monthly basis, the Backup Servicer shall (x) verify receipt
of the Information Package required to be delivered by the Servicer (at the time
and in the manner specified in Section 2.1(a) of the Backup Servicing Agreement)
and (y) verify that the records and data contained in the Information Package
are in a readable format.
(iii) No later than 3:00 p.m. New York City time on the third Business
Day after receipt of the Information Package from the Servicer, the Backup
Servicer shall provide the Servicer, the Indenture Trustee, the Trust Agent (as
defined in the Sale and Servicing Agreement) and the Insurer a certificate
signed by an Authorized Officer, stating that (i) the Backup Servicer has
reviewed the Information Package for the related Collection Period, (ii) a
review of items (x), (xi) (with respect to "Net Collections" only), (xii), (xiv)
and (xv) in Section 3.09(a) of the Sale and Servicing Agreement as reflected on
the Distribution Date Statement for the related Servicer Report Date has been
made under such Authorized Officer's supervision and (iii) to the best of such
Authorized Officer's knowledge, the data in such Information Package ties to
such items on the Distribution Date Statement, resulting in no discrepancies
between them. If the preceding statement cannot be made in the affirmative, such
Authorized Officer shall, in lieu of the certificate described in the preceding
sentence, deliver a written statement indicating the nature of any and all
discrepancies. The Backup Servicer and the Servicer shall attempt to reconcile
all discrepancies with respect to such Distribution Date Statement prior to 3:00
p.m. New York City time on the Business Day preceding such Distribution Date,
and, at or prior to such time, the Servicer shall deliver (by telex, facsimile,
electronic transmission, first class mail, overnight courier or personal
delivery) to the Issuer, the Trust Agent, the Indenture Trustee, the Backup
Servicer, and the Insurer (A) such Distribution Date Statement, if applicable,
restated to reflect all discrepancies that have up to that point been reconciled
by the Servicer and the Backup Servicer and (B) a written statement indicating
the remaining
I-1
discrepancies, if any. If the Servicer and the Backup Servicer are unable to
reconcile all discrepancies prior to the time set forth in the preceding
sentence, the Distribution Date Statement, as delivered in accordance with the
preceding sentence or the Sale and Servicing Agreement, as applicable, shall be
deemed to be the Distribution Date Statement for such Distribution Date and the
related Servicer Report Date. In the event the Backup Servicer and the Servicer
are unable to reconcile such remaining discrepancies by the end of business on
the fifth (5) Business Day after the related Distribution Date, the Servicer
shall, if so directed by the Controlling Party, cause a firm of
nationally-recognized independent certified public accountants acceptable to the
Controlling Party, at the Servicer's expense, to audit the reports prepared and
delivered by the Servicer and, prior to the next succeeding Servicer Report
Date, reconcile the discrepancies. The effect, if any, of such reconciliation
shall be reflected in the Distribution Date Statement for such next succeeding
Servicer Report Date.
I-2
SCHEDULE II
FEES, EXPENSES & DISTRIBUTIONS
[THE BACKUP SERVICER]
FEE SCHEDULE:
ONYX ACCEPTANCE OWNER TRUST 200__-__
I. FEES
A. Verification and Confirmation Duties
1. One-Time Setup Fee $______
2. Monthly Fee (3)
the lesser of ______ bsp or
$______ per month
B. Successor Servicing (1)
1. One Time Transition Fee(2)
the greater of $______ per Active Contract
or
$______
2. Monthly Fee (3) (4)
the greatest of ______ bsp
or
$______ per Active Contract
per month
or
$______ per month
II. EXPENSES
A. Verification and Confirmation Duties
The Backup Servicer shall be reimbursed as described in Section 2.4(a)
of the Agreement for all reasonable out-of-pocket costs and expenses
incurred in connection with its performance of the Verification and
Confirmation Duties, including travel and lodging expenses and outside
legal expenses.
B. Successor Servicing Expenses (1)
The Backup Servicer shall be reimbursed as part of the Servicing Fee
for all reasonable out-of-pocket expenses (i) associated with global
retitling efforts and insurance tracking, if required by the Insurer,
in each case, so long as no Insurer Default has occurred and is
continuing and
II-1
(ii) specified in Sections 2.01(f), 2.01(g), 2.01(i) 9.02(a) and
9.02(i)(i) and (ii) of the Sale and Servicing Agreement as modified by
Schedule III of the Agreement. Out of pocket expenses associated with
asset recovery and/or liquidation shall be reimbursed from Liquidation
Proceeds in accordance with the provisions of the Sale and Servicing
Agreement as modified by Schedule III of the Agreement.
III. MISCELLANEOUS (1)
A. Claim Filing Costs
In the event the Backup Servicer files credit enhancement insurance
claims (e.g., Vendor Single Interest) in connection with any contract serviced
by the Backup Servicer, the Backup Servicer shall receive $______ per filing.
B. Administrative Fees/Servicing Charges
The Backup Servicer shall receive all administrative fees, including
extension processing fees, NSF fees and late charges received by the Backup
Servicer during any monthly collection period.
C. Deficiency Collections
Under separate agreement, the Backup Servicer may provide deficiency
collections services on a contingency fee basis.
---------------------------------------
(1) These items shall only apply to the Backup Servicer's performance of
successor servicing duties and constitute the fees and reimbursable expenses due
the Backup Servicer as successor servicer as described in the definition of
Servicing Fee as modified by Schedule III, item 1 to the Backup Servicing
Agreement.
(2) This fee shall cover all transfer expenses and boarding fees related to the
physical and electronic transfer of the Contract Files and, if applicable,
Contract Documents to the Backup Servicer, including without limitation, mailing
expenses (including postage) incurred by it associated with any "hello/goodbye"
correspondence directed to obligors.
(3) Basis points are annualized (i.e., applicable basis points/12) and shall be
based on beginning of month Outstanding Principal Balance (as defined in the
Sale and Servicing Agreement) of all Active Contracts, as defined below.
(4) The Backup Servicer shall receive this fee for all "Active Contracts" for
any full or partial month where it functions as the Successor Servicer. Active
Contract is defined as any Contract other than: (i) prepaid, fully satisfied
Contracts; (ii) Contracts in which the Financed Vehicle has been liquidated and
the Backup Servicer has posted the Liquidation Proceeds or any other anticipated
proceeds (e.g., credit enhancement insurance); or (iii) Contracts in which the
Backup Servicer has completed all work in connection with processing and
receiving insurance payoffs.
II-2
SCHEDULE III
ACTIVE SERVICING DUTIES
Pursuant to Section 2.1(b) of the Backup Servicing Agreement, to which
this Schedule III is a part, the Backup Servicer has agreed that, in the event
the Servicer is terminated, resigns or otherwise ceases to function as Servicer
under the Sale and Servicing Agreement, and the Backup Servicer has received a
Transfer Notice from the Indenture Trustee, upon the expiration of the Transfer
Period, the Backup Servicer will assume the duties, liabilities and obligations
of the Servicer under the Sale and Servicing Agreement, as modified in
accordance with this Schedule III.
For purposes of determining the Backup Servicer's duties, liabilities
and obligations, as Successor Servicer under the Sale and Servicing Agreement,
at such time as the Backup Servicer becomes the Successor Servicer, the Sale and
Servicing Agreement will be deemed to be modified as follows; provided, that all
parties hereto acknowledge that the modifications of the Servicer's duties
listed below, including but not limited to the obligation to comply with SAS 70
as noted in Item 26, shall apply only to the Backup Servicer as Servicer and
specifically shall not apply to Onyx or to any affiliate of Onyx:
1. Section 1.01: Clause (i) of the definition of "Servicing Fee" shall
not be applicable and clause (ii) of the definition of "Servicing Fee," related
to that portion of the servicing fee due to the Backup Servicer, shall be deemed
to include fees and reimbursable expenses due to the Backup Servicer as the
Successor Servicer under the Backup Servicing Agreement as set forth on Schedule
II thereof and Liquidation Expenses for the related Collection Period up to the
amount of Liquidation Proceeds deposited into the Collection Account for such
Collection Period.
2. Section 1.01: The definition of "Liquidation Expenses" shall be
modified by replacing the parenthetical "(not to exceed Liquidation Proceeds)"
in the first sentence of such definition with "(including, without limitation,
expenses associated with Obligor bankruptcies)" and adding the following proviso
at the end of the first sentence:
"provided, that if Net Liquidation Proceeds for any Collection Period
are less than zero (without giving effect to the proviso in the
definition of Net Liquidation Proceeds), aggregate Liquidation Expenses
in excess of aggregate Liquidation Proceeds for such Collection Period
shall be included in Liquidation Expenses for the next succeeding
Collection Period."
3. Section 1.01: The definition of "Net Liquidation Proceeds" shall be
deleted in its entirety and replaced with the following:
"Net Liquidation Proceeds" means the amount derived from subtracting
from the Liquidation Proceeds of all Defaulted Contracts for the
related Collection Period the Liquidation Expenses incurred by the
Servicer for all Defaulted Contracts during such Collection Period;
provided, that if Net Liquidation Proceeds for any Collection Period
equals a number less than zero, Net Liquidation Proceeds shall be
deemed to be zero for such Collection Period.
4. Section 1.01: The definition of "Net Collections" shall be modified
by deleting the term "Net Liquidation Proceeds" in subsection (i) and replacing
such term with "Liquidation Proceeds."
III-1
5. Section 2.01(f): Section 2.01(f) shall be deleted in its entirety
and replaced by the following:
The Servicer shall file or cause to be filed between the dates of
September ___, 2008 and February ___, 2009, in the office of the
Secretary of State of the State of Delaware appropriate UCC financing
statement amendments continuing the effectiveness of (i) UCC-1
financing statement number ____________, originally filed on
_______________, 200__, naming the Seller as debtor and the Trust as
secured party and (ii) UCC-1 financing statement number __________,
originally filed on ___________, 200__, naming the Trust as debtor and
the Indenture Trustee as secured party, and shall take such other
action as reasonably requested by the Indenture Trustee or the Insurer
to continue the perfection of the respective interests of the Trust and
the Indenture Trustee in the Contracts. From time to time, the Servicer
shall cause to be taken such actions as are necessary to continue the
first priority security interest of the Indenture Trustee in the
Financed Vehicles and their proceeds (other than, as to such priority,
any statutory lien arising by operation of law after the Closing Date
which is prior to such interest), including, without limitation, the
filing of financing statements, amendments thereto or continuation
statements and the making of notations on records or documents of
title. The Backup Servicer may retain third party vendors in connection
with its duties hereunder. The parties to the Backup Servicing
Agreement agree to cooperate with the Backup Servicer in facilitating
the performance of the duties described in Section 2.01(f).
The Backup Servicer shall be reimbursed as part of the Servicing Fee
for all reasonable expenses necessary to perform the duties described
in the first sentence of Section 2.01(f). To the extent that the Backup
Servicer shall be required to undertake the global retitling of the
Financed Vehicles in order to comply with the second sentence of
Section 2.01(f), the Backup Servicer shall be reimbursed as part of the
Servicing Fee for all reasonable expenses necessary to perform such
duties and shall, so long as no Insurer Default has occurred and is
continuing, undertake such global retitling effort only upon the
instruction of the Insurer.
6. Section 2.01(g): the Backup Servicer shall be reimbursed as part of
the Servicing Fee for all reasonable expenses (i) necessary to perform the
duties described in Section 2.01(g) related to the preservation and protection
of the interests of the Trust, the Indenture Trustee, the Noteholders and the
Insurer in the Contracts, the related Financed Vehicles and the proceeds thereof
and (ii) incurred in connection with causing the preparation and delivery of
each Opinion of Counsel delivered pursuant to Section 2.01(g). The parties to
the Backup Servicing Agreement agree to cooperate with the Backup Servicer in
facilitating the performance of the duties described in Section 2.01(g). The
Backup Servicer may retain third party vendors in connection with its duties
hereunder.
7. Section 2.01(i): Section 2.01(i) shall be modified to reflect that
to the extent that the Backup Servicer shall be required to undertake the global
retitling of the Financed Vehicles in order to comply with Section 2.01(i), the
Backup Servicer shall, subject to the proviso in Item 1. of this Schedule III,
be reimbursed as part of the Servicing Fee for all reasonable expenses necessary
to perform such duties and shall, so long as no Insurer Default has occurred and
is continuing, undertake such global retitling effort only upon the instruction
of the Insurer.
8. Section 2.02: The Backup Servicer shall be deemed to have relied on
the representations and warranties made by the Seller in Section 2.02.
III-2
9. Section 2.03: The final sentence in Section 2.03 shall be deemed to
include references to the Backup Servicer, such that the sole remedy of the
Backup Servicer, along with the Issuer, the Indenture Trustee and the
Noteholders, with respect to a breach of the Seller's representations and
warranties pursuant to Section 2.02 shall be to require the Seller to repurchase
Contracts pursuant this Section; provided, however, that the Seller shall
indemnify the Backup Servicer, as well as the Owner Trustee, the Trust Agent,
the Indenture Trustee, the Insurer, the Issuer and the Noteholders, against all
costs, expenses, losses, damages, claims and liabilities, including reasonable
fees and expenses of counsel, which may be asserted against or incurred by any
of them as a result of third-party claims arising out of the events or facts
giving rise to such breach.
10. Section 2.05(b): The last sentence of Section 2.05(b) shall be
deemed to be modified to provide that the Backup Servicer, as Successor
Servicer, shall, upon reasonable prior written notice, permit the Issuer, the
Indenture Trustee and the Insurer or their respective duly authorized
representatives, attorneys or auditors to inspect the Contract Files and the
related accounts, records and computer systems maintained by the Servicer at
such times as such Persons may request during normal business hours at the
office of the Backup Servicer in a manner that does not cause undue disruption
or interference with the Backup Servicer's business.
11. Section 2.05(d): Section 2.05(d) shall be deemed to be modified by
(i) deleting the term "Net Liquidation Proceeds" in subsection (iv) thereof and
replacing such term with "Liquidation Proceeds" and (ii) adding the following
sentence to the end of such section:
Onyx shall assist the Backup Servicer in respect of the reporting
requirements set forth in this section.
12. Section 2.07: The penultimate sentence of Section 2.07, related to
indemnification by the Servicer with respect to certain taxes, shall not apply
to the Backup Servicer.
13. Section 2.08: The penultimate sentence of Section 2.08 regarding
the Servicer's obligations to deliver Contract Files and Contract Documents
shall not apply to the Backup Servicer; provided, that, any such expenses
incurred by the Backup Servicer in connection with obtaining the Contract Files
and, if applicable, the Contract Documents in connection with its transition to
Successor Servicer (and, if applicable, Successor Custodian) shall be
reimbursable to the Backup Servicer as part of the "One-Time Transition Fee" as
set forth in Item I.B.1. of Schedule II of the Backup Servicing Agreement.
14. Section 3.01: The Backup Servicer shall not be responsible for the
preparation of the U.S. Partnership Tax Returns (Form 1065) for the Owner
Trustee referenced in the first paragraph of Section 3.01. Additionally, the
Backup Servicer shall not be responsible for the duties of the Servicer set
forth in the second, third and fourth paragraphs of Section 3.01, related to
delivery of documents on the Closing Date and deposits of amounts in the
Collection Account on the Closing Date and on each Prefunding Transfer Date.
Also, the final paragraph of Section 3.01, related to the payment of certain
fees by the Servicer, shall not apply to the Backup Servicer. Furthermore, the
term "Net Liquidation Proceeds" in the second sentence of the fifth paragraph of
Section 3.01 shall be deleted and replaced with the term "Liquidation Proceeds."
III-3
15. Section 3.03: The last sentence of Section 3.03, relating to the
remittance of Net Liquidation Proceeds and Net Insurance Proceeds to the
Collection Account, shall be modified by deleting the term "Net Liquidation
Proceeds" and replacing such term with "Liquidation Proceeds."
16. Section 3.04: Section 3.04, relating to maintenance of a Blanket
Insurance Policy by the Servicer, shall not apply to the Backup Servicer.
17. Section 3.05: The parties to the Backup Servicing Agreement agree
to cooperate with the Backup Servicer in facilitating the performance of the
duties described in Section 3.05.
18. Section 3.06(a): The Backup Servicer shall be deemed to make the
covenants contained in Section 3.06(a) as of the end of the Transfer Period.
19. Section 3.06(b): Section 3.06(b), setting forth certain
representations and warranties of the Servicer, shall not apply to the Backup
Servicer.
20. Section 3.07: Section 3.07, setting forth the Servicer's obligation
to repurchase Contracts under limited circumstances, shall not apply to the
Backup Servicer.
21. Section 3.08: Section 3.08, setting forth the compensation payable
to the Servicer, shall not apply to the Backup Servicer. The Backup Servicer
will be entitled to compensation as set forth in the Backup Servicing Agreement.
22. Section 3.09: Section 3.09 shall be deemed to be modified to add
the following sentence to the end of Section 3.09(a) and Section 3.09(b):
Onyx shall assist the Backup Servicer in respect of the reporting
requirements set forth in this section.
23. Section 3.09(a): Subsection 3.09(a)(xii) shall be deleted in its
entirety and replaced with the following:
The aggregate amount of Liquidation Proceeds received and Liquidation
Expenses incurred in respect of Defaulted Contracts.
24. Section 3.09(b): Subsection 3.09(b)(iii)(D), relating to the
Servicer's monthly report as to Liquidated Contracts, shall be modified by
deleting the term "Net Liquidation Proceeds" and replacing such term with
"Liquidation Proceeds and Liquidation Expenses."
25. Section 3.10: The annual statement as to compliance required to be
delivered by the Servicer related to the preceding fiscal year of the Servicer
shall be deemed to relate only to that portion of the fiscal year in which the
Backup Servicer acts as Servicer.
26. Section 3.11: Section 3.11 shall be deleted in its entirety and
replaced with the following:
The Backup Servicer at its expense shall cause a firm of independent
certified public accountants, which may also render other services to
the Backup Servicer or its affiliates, to deliver to the Issuer, the
Trust Agent, the Indenture Trustee and the Insurer, within 75 days of
III-4
the end of the fiscal year ending December 31, 200__, and within 120
days after the end of each fiscal year thereafter, (i) an opinion by a
firm of nationally recognized independent certified public accountants
on the financial position of the Backup Servicer at the end of the
relevant fiscal year and the results of operations and changes in
financial position of the Backup Servicer for such year then ended on
the basis of an examination conducted in accordance with generally
accepted auditing standards, and (ii) a report from such independent
certified public accountants to the effect that based on an examination
of certain specified documents and records relating to the servicing of
the Backup Servicer's loan portfolio conducted substantially in
compliance with SAS 70 (the "Applicable Accounting Standards"), such
firm is of the opinion that such servicing has been conducted in
compliance with the Applicable Accounting Standards except for (a) such
exceptions as such firm shall believe to be immaterial and (b) such
other exceptions as shall be set forth in such statement.
27. Section 3.12: Section 3.12 shall be deemed to be modified to
provide that the "reasonable access" that the Servicer must provide to the
Noteholders, the Issuer, the Owner Trustee, the Trust Agent, the Indenture
Trustee and the Insurer shall be access upon reasonable prior written notice,
during normal business hours at the office of the Backup Servicer in a manner
that does not cause undue disruption or interference with the Backup Servicer's
business.
28. Section 3.14: Section 3.14, related to indemnification by the
Servicer, shall not apply to the Backup Servicer.
29. Section 4.01(a): Section 4.01(a), related to the establishment of
certain Trust Accounts prior to the Closing Date, shall not apply to the Backup
Servicer.
30. Section 4.01(b): The penultimate sentence of Section 4.01(b),
related to direction from the Servicer for investing funds in the Payahead
Account and payment of earnings on such funds to the Servicer, shall not apply
to the Backup Servicer.
31. Section 4.01(c): The portions of Section 4.01(c) related to
direction from the Servicer for investing funds in the Collection Account, the
Spread Account, the Prefunding Account and the Capitalized Interest Account, and
payment of earnings on such funds to the Servicer, shall not apply to the Backup
Servicer.
32. Section 4.01(d): The portions of Section 4.01(d) related to
direction from the Servicer for investing funds in the Collection Account, the
Spread Account, the Prefunding Account and the Capitalized Interest Account,
shall not apply to the Backup Servicer.
33. Section 4.02(a): Section 4.02(a), relating to the remittance of
monies to the Collection Account shall be modified by deleting the term "Net
Liquidation Proceeds" in the first sentence and replacing such term with
"Liquidation Proceeds."
34. Section 4.04(c): The portions of Section 4.04(c) related to
direction from the Servicer for investing funds in the Spread Account shall not
apply to the Backup Servicer. At its option, the Insurer may direct the
investment of funds on deposit in the Spread Account in accordance with Section
4.04(c).
III-5
35. Section 4.05: Section 4.05 shall be deemed to be modified to add
the following sentence to the end of Section 4.05(a) and Section 4.05(b):
Onyx shall assist the Backup Servicer in respect of the reporting
requirements set forth in this section.
36. Section 4.05(a)(xii): Subsection 4.05(a)(xii) shall be deleted in
its entirety and replaced with the following:
The aggregate amount of Liquidation Proceeds received and Liquidation
Expenses incurred in respect of Defaulted Contracts.
37. Section 4.06(a): Section 4.06(a), related to the establishment of
the Capitalized Interest Account, shall not apply to the Backup Servicer.
38. Section 4.07(a): Section 4.07(a), related to the establishment of
the Prefunding Account, shall not apply to the Backup Servicer.
39. Section 4.07(c): The portions of Section 4.07(c) related to
direction from the Servicer for investing funds in the Prefunding Account shall
not apply to the Backup Servicer.
40. Section 6.01(b): Section 6.01(b), related to certain
indemnifications by the Servicer, shall not apply to the Backup Servicer.
41. Section 6.01(d): Section 6.01(d), related to certain
indemnifications by the Servicer, shall not apply to the Backup Servicer.
42. Section 6.01(e): Section 6.01(e), related to certain
indemnifications by the Servicer, shall not apply to the Backup Servicer.
43. Section 6.02(a): Section 6.02(a) shall be deemed to reference the
Servicer's "state of incorporation" rather than the "State of Delaware" and the
clause "to protect the validity and enforceability of Contract Documents and
this Agreement" shall be deemed to be deleted from the end of this section and
replaced with the clause "under applicable law to perform its obligations under
the Backup Servicing Agreement and this Agreement."
44. Section 6.02(b): Section 6.02(b) shall be deleted in its entirety
and replaced with the following:
The Backup Servicer shall not consolidate with or merge into any other
corporation or convey, transfer or lease all or substantially all of
its assets as an entirety to any Person or engage in any corporate
transaction pursuant to which the surviving or successor entity is not
__________________ unless otherwise consented to in writing by the
Insurer.
45. Section 6.03(b): Section 6.03(b) shall be deemed to be modified by
deleting the words "or permit any action to be taken by others" in that Section.
III-6
46. Section 6.04: The first sentence of Section 6.04, related to the
ability of the Servicer to resign, as applied to the Backup Servicer as
Successor Servicer, shall be deemed to be modified to state as follows:
The Servicer shall not resign from the duties and obligations hereby
imposed on it except upon determination that the continued performance
by the Servicer of its duties hereunder would cause it to be in
violation of legal requirements, said determination to be accompanied
by an Opinion of Counsel, satisfactory to the Issuer, the Insurer and
the Indenture Trustee, to such effect.
47. Section 6.05: The first paragraph of Section 6.05, related to the
limitation of the Servicer's liability, shall be deemed to be modified to state
as follows:
Neither the Servicer nor any of the directors, officers, employees or
agents of the Servicer shall be under any liability to the Issuer, the
Indenture Trustee, the Trust Agent or the Noteholders except as
provided under this Agreement and the Backup Servicing Agreement, for
any action taken or for refraining from the taking of any action
pursuant to this Agreement or for errors in judgment; provided,
however, that this provision shall not protect the Servicer or any such
person against any liability that would otherwise be imposed by reason
of willful misfeasance, bad faith or negligence (except errors in
judgment) in the performance of duties or by reason of reckless
disregard of obligations and duties under this Agreement. The Servicer
and any director, officer, employee or agent of the Servicer may rely
in good faith on any advice of counsel, Opinion of Counsel or on any
Officer's Certificate or certificate of auditors or on any document of
any kind prima facie properly executed and submitted by any person
respecting any matters arising under this Agreement.
48. Section 7.01(h): Section 7.01(h) shall be amended such that the
occurrence of any Trigger Event described in Sections 6.01(a)(i) (only to the
extent that the Seller fails to comply therewith), (iv), (v), (vi) (only to the
extent that the Backup Servicer is not then acting as servicer under the
Warehouse Sale Agreement (as defined in the Insurance Agreement)) and (ix) of
the Insurance Agreement shall not be a Servicer Default.
49. Section 9.02(a): The Backup Servicer shall not be responsible for
the initial filing of any financing statement required by Section 9.02(a) and
will be reimbursed as part of the Servicing Fee for all reasonable expenses
necessary to perform the remainder of the duties described in Section 9.02(a)
related to the continued perfection of the interests of the Issuer, the
Noteholders, the Indenture Trustee, the Trust Agent and the Insurer in the
Contracts and in the proceeds thereof. The Backup Servicer may retain
third-party vendors in connection with its duties hereunder. The parties to the
Backup Servicing Agreement agree to cooperate with the Backup Servicer in the
performance of the Servicer's duties described in Section 9.02(a).
50. Section 9.02(c): The final sentence of Section 9.02(c) shall be
deemed to be modified to add the qualifier "Unless otherwise agreed to in
writing by the Insurer" to the beginning of the sentence. Furthermore, the
Seller shall be required to give 60 days' prior written notice to the Backup
Servicer of any relocation of the state of organization of the Seller under the
circumstances described in the first sentence of Section 9.02(c).
III-7
51. Section 9.02(g): Section 9.02(g) shall be deemed to be modified to
provide that the inspection rights granted to the Owner Trustee, the Trust
Agent, the Indenture Trustee and the Insurer and their respective agents to the
Servicer's records are subject to reasonable prior written notice, during normal
business hours at the office of the Backup Servicer in a manner that does not
cause undue disruption or interference with the Backup Servicer's business.
52. Section 9.02(h): The "Upon request" language beginning Section
9.02(h) shall be deemed to read "Upon prior request."
53. Section 9.02(i)(i) and (ii): The Backup Servicer shall be
reimbursed as part of the Servicing Fee for all reasonable expenses incurred in
connection with causing the preparation and delivery of each Opinion of Counsel
delivered pursuant to Section 9.02(i)(i) and (ii).
III-8
SCHEDULE IV
Pursuant to Section 2.1(b) of the Backup Servicing Agreement, to which
this Schedule IV is a part, the Backup Servicer has agreed that, in the event
the Servicer is terminated, resigns or otherwise ceases to function as Servicer
under the Sale and Servicing Agreement, and the Backup Servicer has received a
Transfer Notice from the Indenture Trustee, upon the expiration of the Transfer
Period, the Backup Servicer will assume the duties, liabilities and obligations
of the Servicer under the Insurance Agreement, as modified in accordance with
this Schedule IV.
For purposes of determining the Backup Servicer's duties, liabilities
and obligations, as Successor Servicer under the Insurance Agreement, at such
time as the Backup Servicer becomes the Successor Servicer, the Insurance
Agreement will be deemed to be modified as follows:
1. The following sections of the Insurance Agreement shall not be
applicable to the Backup Servicer:
(a) Section 2.04(b)(ii)(B)
(b) Section 3.02
(c) Section 4.01(h)
(d) Section 4.01(i)
(e) Section 5.04(a)(ii)
(f) Section 5.05(b)
(g) Section 6.01(a)(i)(as to Xxxxx)
(h) Section 6.01(iv)
(i) Section 6.01(v)
(j) Section 6.01(vi)(if the Backup Servicer is not Servicer under the
Warehouse Sale Agreement) and
(k) Section 6.01(ix)
2. Section 4.01(a). Section 4.01(a) shall be modified to reflect that the
Backup Servicer shall, for the benefit of the Insurer, perform each of its
agreements, warranties and indemnities contained in the Sale and Servicing
Agreement, as modified by Schedule III to the Back-up Servicing Agreement.
3. Section 5.04(a). The first sentence of Section 5.04(a) shall be
deleted in its entirety and replaced with the following:
The Backup Servicer, by accepting its appointment to become Successor
Servicer pursuant to the Back-up Servicing Agreement, (i) shall agree
to be bound by the terms, covenants and conditions contained herein
applicable to the Servicer and subject to the duties and
III-1
obligations of the Servicer hereunder, in all cases as modified by
Schedule IV to the Back-up Servicing Agreement and (ii) shall agree to
indemnify and hold harmless the Insurer from and against any and all
claims, damages, losses, liabilities, costs or expenses whatsoever
which the Insurer may incur (or which may be claimed against the
Insurer) by reason of the negligence or willful misconduct of the
Backup Servicer in exercising its powers and carrying out its
obligations as Successor Servicer under the Sale and Servicing
Agreement as modified by Schedule III to the Back-up Servicing
Agreement.
III-2
