EXHIBIT 4(f)55
BACKUP SERVICING AGREEMENT
BACKUP SERVICING AGREEMENT (the "Agreement"), dated as of
September 30, 2003, among SYSTEMS & SERVICES TECHNOLOGIES, INC., a Delaware
corporation ("SST" or the "Backup Servicer"), CREDIT ACCEPTANCE CORPORATION, a
Michigan corporation ("Credit Acceptance" or the "Servicer"), WACHOVIA CAPITAL
MARKETS, LLC, a Delaware limited liability company (in its capacity as deal
agent, the "Deal Agent", and in its capacity as collateral agent, the
"Collateral Agent") and CAC WAREHOUSE FUNDING CORPORATION II, a Nevada
corporation (the "Borrower").
W I T N E S S E T H :
WHEREAS, Credit Acceptance, the Borrower, the Backup Servicer,
Wachovia Bank, National Association, as an investor for the VFCC Purchaser Group
(an "Investor") and the other Investors from time to time party thereto,
Variable Funding Capital Corporation, (a "Lender") and the other CP Conduits
from time to time party thereto, the Deal Agent, Wachovia Bank, National
Association, as the liquidity agent for the VFCC Purchaser Group (the "Liquidity
Agent") and the other Liquidity Agents from time to time party thereto, 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 Agreement");
WHEREAS, the parties to the Loan Agreement desire to obtain
the services of the Backup Servicer to perform certain servicing functions and
assume certain obligations with respect to the Loan 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 Agreement, the Backup Servicer will receive a fee payable as described
herein;
NOW THEREFORE, in consideration for the mutual agreements
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, 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 to,
the Loan Agreement. The following terms shall have the meanings specified below:
"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(a).
"Backup Servicer Event of Default" has the meaning specified
in Section 4.1.
"Backup Servicer's Certificate" has the meaning specified in
Section 2.10.
"Backup Servicing Fee" means, as to each Payment Date, $4,000;
provided, however, that if the Backup Servicer becomes the Successor Servicer,
such fee shall no longer be paid.
"Continued Errors" has the meaning specified in Section
2.2(c)(iii).
"Errors" has the meaning specified in Section 2.2(c)(iii).
"Liability" has the meaning specified in Section 2.2(c)(i).
"Live Data Files" has the meaning specified in Section 2.6(c).
"Servicer's Data File" has the meaning specified in Section
2.1(a).
"Service-Related Activities" means the services and
service-related activities and the servicer-related responsibilities of the
Servicer provided for under the Loan Agreement as modified or eliminated herein
with respect to the Backup Servicer.
"Servicing Fee" has the meaning given such term in the Loan
Agreement.
"Successor Backup Servicer" has the meaning specified in
Section 2.4(b).
"Third Party" has the meaning specified in Section 2.9(d).
SECTION 1.2. Usage of Terms. With respect to all terms 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 term "including"
means "including without limitation."
SECTION 1.3. Section References. All section references shall be to
Sections in this Agreement (unless otherwise provided).
ARTICLE 2
ADMINISTRATION AND COLLECTION
SECTION 2.1. Reconciliation of Monthly Report.
(a) No later than 9:00 A.M. New York time on the third
Business Day following the end of each Collection Period, the Servicer shall
send to the Backup Servicer an electronic file, detailing the Collections
received 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
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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) Business Day of the receipt thereof, load the Servicer's Data
File and confirm that it 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 Deal Agent by
telephone, 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
Business Day.
(b) No later than the end of the second Business Day prior to
each Determination Date, the Servicer shall furnish to the Backup Servicer the
Monthly Report related to the prior Collection Period together with all other
information necessary for preparation of such Monthly Report and necessary to
determine the application of Collections as provided in the Loan Agreement. 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 three (3) Business Days after the Backup Servicer's receipt of each
Monthly Report, the Backup Servicer shall notify the Servicer and the Deal Agent
of any inconsistencies between the Monthly Report and the information contained
in the Servicer's Data File; provided, however, 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, prior to the third Business Day, but in no event later than the
fifth calendar day, of the following month, 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 under the Loan Agreement and service and
collect the Loans and related Contracts.
(e) The Servicer shall provide the Backup Servicer with any
and all updates to the master file data layout and copy book information
necessary due to system changes or modifications, which may require changes to
the Backup Servicer's applications necessary to read the Servicer's Data File.
SECTION 2.2. Review and Verification.
(a) Notwithstanding anything in Section 2.1 to the contrary,
on or before the end of the second Business Day prior to each Determination
Date, the Servicer and the Deal
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Agent shall provide sufficient data to the Backup Servicer to allow the Backup
Servicer to review and to verify the mathematical accuracy of the Monthly Report
on an Aggregate Basis 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 mathematical accuracy of
the Monthly Report in its entirety, which shall include but not be limited to
the following:
(i) the amount of the related distribution allocable
to principal;
(ii) the amount of the related distribution allocable
to interest;
(iii) the amount of the related distribution payable
out of the Reserve Account;
(iv) the Aggregate Outstanding Eligible Loan Net
Balance, the Aggregate Outstanding Eligible Loan Balance and
the aggregate Outstanding Balance of all Eligible Contracts as
of the close of business on the last day of the preceding
Collection Period;
(v) outstanding Capital;
(vi) the amount of the Servicing Fee paid to the
Servicer with respect to the related Collection Period and/or
due but unpaid with respect to such Collection Period or prior
Collection Periods, as the case may be;
(vii) the total amount of Collections for the related
Collection Period; and
(viii) the aggregate Release Price for the Ineligible
Loans and the aggregate Released Contract Price for the
Ineligible Contracts, if any, that was paid in such 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)
above 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) above, as calculated by the Servicer, from that
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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 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.
(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 Deal
Agent, to succeed within thirty (30) days to the duties and
obligations of the Servicer pursuant to Section 2.3.
(iii) Except as otherwise 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 or for the inaccuracy of any data
provided, produced or supplied by 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 misfeasance, bad
faith or gross negligence in discovering or correcting any
Error or in the performance of its duties hereunder or under
the Loan Agreement. In the event the Backup Servicer becomes
aware of Errors or Continued Errors which, in the opinion of
the Backup Servicer impairs its ability to perform its
services hereunder, the Backup Servicer may, with the prior
consent of the Deal Agent, undertake to reconstruct and
reconcile such data as it deems appropriate 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 and its officers, directors,
employees and agents shall be indemnified by the Servicer from
and against all claims, damages, losses or expenses reasonably
incurred by the Backup Servicer (including reasonable
attorney's fees and expenses) arising out of claims asserted
against the Backup Servicer on any matter arising out of this
Agreement to the extent the act or omission giving rise to the
claim accrues before the Assumption Date, except for any
claims, damages, losses or expenses arising from the Backup
Servicer's own willful misfeasance, bad faith or gross
negligence. The obligations of the Servicer under this Section
shall survive the termination of this Agreement and the
earlier resignation or removal of the Backup Servicer.
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(v) To the extent the Backup Servicer requires any
information, supplementary reports or data that is to be
provided to it pursuant to the Transaction Documents in order
to complete its verification duties, the Backup Servicer's
verification duties are conditioned upon timely receipt by the
Backup Servicer of such information.
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 Deal Agent, and without further notice, the Backup
Servicer shall, subject to the exclusions stated herein, assume the
Service-Related Activities of Credit Acceptance under the Loan 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 Agreement and this Agreement. In the event of a
conflict between any provision of the Loan Agreement and this Agreement, this
Agreement shall be controlling.
(b) In the event of an assumption by the Backup Servicer of
the Service-Related Activities of Credit Acceptance under the Loan Agreement,
the Backup Servicer shall not be obligated to perform the obligations imposed in
the following Sections of the Loan Agreement: Sections 2.7(c)(ii), 2.14, 2.16,
3.1(b), 3.1(c), 4.2(b) (provided that the Backup Servicer shall be obligated to
inform the other parties to this Agreement of breaches detailed in Section 4.2
of which a Responsible Officer has actual knowledge), 4.3, 4.5 (provided that
the Backup Servicer shall be obligated to inform the other parties to this
Agreement of breaches detailed in Section 4.5 of which a Responsible Officer has
actual knowledge), 5.4(c), 5.4(e), 5.4(f), 5.4(g) (provided that the Backup
Servicer shall be obligated to inform the other parties to this Agreement of
breaches detailed in Section 5.4(g) of which a Responsible Officer has actual
knowledge), 5.4(i), 5.4(j), 5.4(k) (only with respect to the Credit Guidelines),
5.4(m) (only with respect to Servicer's obligation to provide written
certification of a change in debt rating), 5.5(a), 5.5(b), 5.5(f) (only with
respect to the Servicer's obligation to defend the right, title and interest of
the Collateral Agent in the Collateral on behalf of the Secured Parties against
the claims of third parties), 5.5(i) (only with respect to the Credit
Guidelines), 6.1(b) (only with respect to the amount of time in which the
Servicer is required to remit Collections to the Collection Account which, in
the case of SST after the Assumption Date, will be within one (1) Business Day
of receipt of such Collections with respect to cleared funds, and in all other
cases will be within three (3) Business Days of receipt of such Collections),
6.1(c), 6.2(e) (provided that the Deal Agent and any Liquidity Agent may review
the Backup Servicer's collection and administration of the Loans, Dealer
Agreements and Contracts two times per calendar year, at the expense of the
party requesting such review, with prior written notice and without undue
disruption of the Backup Servicer's business before the occurrence of a Servicer
Termination Event at a time after the Assumption Date, and the Deal Agent and
any Liquidity Agent may conduct such review, with prior written notice but
otherwise without limitation, at the Servicer's expense if the Servicer
Termination Event is due to the actions of the current Servicer and otherwise at
the expense of the party requesting such review, after the occurrence of a
Servicer Termination Event at a time after the Assumption Date), 6.5(a)
(provided that the Backup Servicer shall be responsible for all of the
obligations of Section 6.5(a) so long as it receives sufficient assistance from
the Borrower), 6.5(b), 6.5(c), 6.6, 6.8, 6.9, 6.11(h) (only with respect to the
applicable amount referenced in Section 6.11(h) which shall be $10,000,000
instead of $5,000,000), 6.11(i)
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(only with respect to the applicable amount referenced in Section 6.11(i) which
shall be $10,000,000 instead of $5,000,000), 6.11(j), 6.11(l), 9.2, 10.1(m),
11.2 (provided that the Backup Servicer shall be liable under Section 11.2(a) of
the Loan Agreement as to action taken by it as Successor Servicer) and 14.12.
SECTION 2.4. Servicing and Retention of Servicer.
(a) Subject to early termination of the Backup Servicer due to
the occurrence of a Backup Servicer Event of Default, or pursuant to Article 4,
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 Agreement.
(b) In the event of a Backup Servicer Event of Default, the
Deal Agent shall have the right to terminate the Backup Servicer as Successor
Servicer and Backup Servicer hereunder. Upon the termination or resignation of
the Backup Servicer hereunder, the Deal Agent shall have the right to appoint a
successor Backup Servicer (the "Successor Backup Servicer") and enter into a
backup servicing agreement with such Successor Backup Servicer at such time and
exercise all of its rights under Section 6.12(a) of the Loan 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 Credit Acceptance and the Deal
Agent. Such backup servicing agreement shall specify the duties and obligations
of the Successor Backup Servicer, and all references herein and in the Loan
Agreement to the Backup Servicer shall be deemed to refer to such Successor
Backup Servicer.
(c) Except as provided in Section 4.3 hereof, the Backup
Servicer shall not resign from the obligations and duties imposed on it by this
Agreement or the Loan Agreement, as successor 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
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 Deal 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 Deal Agent. No
resignation of the Backup Servicer shall become effective until an entity
reasonably acceptable to the Deal Agent and the Required Investors shall have
assumed the responsibilities and obligations of the Backup Servicer.
(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 and the Loan Agreement, whether or not
such assumption agreement is executed, shall be the successor to the Backup
Servicer under this Agreement and
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the Loan Agreement without the execution or filing of any paper or any further
act on the part of any of the parties to this Agreement or the Loan Agreement,
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 or under the Loan Agreement.
(e) Following the Assumption Date, the Backup Servicer shall
be required to deliver to the Deal Agent on or before one hundred twenty (120)
days after the end of the Backup Servicer's fiscal year, with respect to such
fiscal year, a copy of its annual SAS-70 and its audited financial statements
for such fiscal year.
(f) Concurrently with the delivery of the financial reports
delivered under (e) above, a report certified by the chief financial officer of
the Backup Servicer, certifying that no Backup Servicer Event of Default and no
event which, with the giving of notice or the passage of time, would become a
Backup Servicer Event of Default has occurred and is continuing or, if any such
Backup Servicer Event of Default or other event has occurred and is continuing,
such a Backup Servicer Event of Default has occurred and is continuing, the
action which the Backup Servicer has taken or proposes to take with respect
thereto, shall be delivered to the Deal Agent.
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 Collection Guidelines. There shall be no recourse to the
Backup Servicer with regard to the Loans and Contracts. The Backup Servicer
shall hold in trust for the Collateral Agent 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 Collateral Agent 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 Deal Agent 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 remit to the Collection Account
within one (1) Business Day of receipt all Collections with respect to cleared
funds, and within three (3) Business Days of receipt Collections in all other
cases.
(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 Agreement, except as set forth in
Section 2.3(b) hereof. 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 Credit Acceptance performs such on the date
hereof: (a) customer service inquiries/responsibilities; (b) collections on
delinquent and charged-off accounts; (c) insurance monitoring and the making of
claims with respect thereto; (d) creating
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the Monthly Reports; (e) repossession and other legal actions; (f) statements to
performing accounts and other correspondence; (g) reconciliation of dealer
holdback payments; (h) inventory management; (i) maintenance of lock-box
accounts; (j) electronic skip tracing; and (k) document storage and title
maintenance.
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 Credit
Acceptance.
(b) [Reserved]
(c) No later than the 10th day of each calendar month until
the earlier of the Assumption Date or the termination of this Agreement, Credit
Acceptance shall provide a Live Data File (as defined below) 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 (5) Business Days after the receipt thereof,
shall confirm in writing to Credit Acceptance 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 Credit Acceptance,
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 Credit Acceptance or the Backup
Servicer, Credit Acceptance 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 Credit Acceptance with such reports as are mutually agreed
upon by Credit Acceptance and the Backup Servicer from time to time. Credit
Acceptance 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 Credit Acceptance'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 and under the Loan Agreement, Credit
Acceptance agrees that it shall: (i) promptly make available to the Backup
Servicer access to all records and information in the possession of Credit
Acceptance 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 Deal Agent in
connection with any transition of the servicing of the Loans and Contracts to
the Backup Servicer.
SECTION 2.7. Servicing Compensation. As compensation for the
performance of its obligations under this Agreement and with respect to the Loan
Agreement, the Backup Servicer is entitled to: (i) prior to the Assumption Date,
the Backup Servicing Fee and (ii) after the
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Assumption Date, the sum of: (A) the Servicing Fee, (B) any Repossession
Expenses, (C) any Reliening Expenses and (D) any Transition Expenses.
SECTION 2.8. Collateral Agent's Rights. At any time following the
Assumption Date:
(a) The Collateral Agent or the Backup Servicer 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; provided, however, that the Servicer
will be entitled to retain copies of all records provided pursuant to this
Section 2.8(b), and (ii) segregate all cash, checks and other instruments
received by it from time to time constituting Collections in a manner acceptable
to the Collateral Agent and shall, promptly upon receipt but no later than one
(1) 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 or the Backup Servicer.
(c) Credit Acceptance hereby authorizes the Collateral Agent
and the Backup Servicer to take any and all steps in Credit Acceptance's name
and on behalf of Credit Acceptance necessary or desirable, in the determination
of the Backup Servicer or the Collateral Agent acting in "good faith" (as such
term is defined in Article 9 of the UCC), to collect all amounts due under any
and all of the Loans, including, without limitation, endorsing Credit
Acceptance's name on checks and other instruments representing Collections and
enforcing the Loans and Contracts; provided, however, that the Collateral Agent
shall not have an affirmative obligation to carry out such duties.
SECTION 2.9. Liability of the Backup Servicer; Standard of Care.
(a) The Backup Servicer shall not be liable for its actions or
omissions hereunder except for its negligence, willful misconduct or breach of
this Agreement not caused by another party to this Agreement, or for any
recitals, statements, representations or warranties made expressly by the Backup
Servicer.
(b) The Backup Servicer shall indemnify, defend and hold
harmless the 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 Servicer through the Backup
Servicer's breach of this Agreement, the willful misfeasance, bad faith or
negligence 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
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Servicer's breach of this Agreement, the willful misfeasance, bad faith or
negligence of the Servicer 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 Loans or Contracts (collectively, the "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 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 misconduct of any Third Party with respect to the Loans or
Contracts. The Backup Servicer shall have no Liability for the acts or omissions
of any such Third Party or for the inaccuracy of any data provided, produced or
supplied by such Third Party. If any Error exists in any information provided to
the Backup Servicer and such Errors cause or materially contribute to the Backup
Servicer making a Continuing Error, 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 misfeasance, bad faith or gross negligence in
discovering or correcting any error or in the performance of its duties
contemplated herein.
In the event the Backup Servicer becomes aware of Errors
and/or Continued Errors which, in the opinion of the Backup Servicer, impair its
ability to perform its services hereunder, the Backup Servicer shall promptly
notify the Servicer and the Deal Agent of such Errors and/or Continued Errors.
With the prior consent of the Servicer and the Deal Agent, the Backup Servicer
may undertake to reconstruct any data or records appropriate to correct such
Errors and/or Continued Errors and to prevent future Continued Errors. The
Backup Servicer shall be entitled to recover its costs thereby expended from the
Servicer.
(e) Indemnification under this Section shall include, without
limitation, reasonable fees and expenses of counsel (including in-house counsel)
and expenses of litigation. If the indemnifying party has made any indemnity
payments pursuant to this Section and the recipient thereafter collects any of
such amounts from others, the recipient shall promptly repay such amounts
collected to the indemnifying party, together with any interest earned thereon.
(f) In performing the Service-Related Activities contemplated
by this Agreement, the Backup Servicer agrees to comply in all respects with the
applicable state and federal laws and will carry out such activities with the
same degree of care as that provided for the Servicer under the Loan Agreement.
The Backup Servicer shall maintain all state and federal licenses and franchises
necessary for it to perform Service-Related Activities. The Backup Servicer
shall not have any Liability for any Error or Continued Error by the Servicer,
or for any error, inaccuracy or omission of the Servicer before the Backup
Servicer assumes the Service-Related Activities.
(g) 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 Servicer or any
11
party to this Agreement or the Loan 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 gross 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 conclusively
rely and shall be fully protected in acting or refraining from acting upon any
document, certificate, instrument, opinion, notice, statement, consent,
resolution, entitlement order, approval or conversation believed by it to be
genuine and made by the proper person and upon the advice or opinion of counsel
or other experts selected by it. The Backup Servicer shall not be liable for an
error of judgment made in good faith by a Responsible Officer of the Backup
Servicer, unless it shall be proven that the Backup Servicer was negligent in
ascertaining the pertinent facts.
(h) The Backup Servicer shall maintain its existence and
rights as a corporation under the laws of the jurisdiction of its incorporation,
and will obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which the failure to so qualify would have
an adverse effect on the validity or enforceability of any Contract, Dealer
Agreement, this Agreement or on the ability of the Backup Servicer to perform
its duties under this Agreement.
(i) The provisions of this Section shall survive the
termination of this Agreement.
(j) The Backup Servicer shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, entitlement
order, approval or other paper or document.
(k) The Backup Servicer may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, attorneys, custodians or nominees appointed with due care.
(l) To the extent that the Backup Servicer is not indemnified
by the Servicer pursuant to Section 2.2 hereunder and under the Loan Agreement,
such amounts shall be reimbursable by the Borrower pursuant to Section 2.7(a) of
the Loan Agreement.
SECTION 2.10. Backup Servicer's Certificate. Prior to the Assumption
Date, on or before 12:00 noon (New York City time) on the Business Day preceding
each Payment Date, the Backup Servicer shall deliver or cause to be delivered to
the Deal Agent a certificate (the "Backup Servicer's Certificate"), in form and
substance satisfactory to the Deal Agent, signed by an officer of the Backup
Servicer, stating that (i) the Backup Servicer has loaded the Servicer's Data
File as described in Section 2.1(a) on its hardware, (ii) a review of the
Monthly Report for the related Payment Date has been made under such officer's
supervision, (iii) the Backup Servicer has received the Live Data File described
in 2.6(c), and (iv) to such officer's knowledge, (x) the electronic media is in
readable form; (y) with respect to the review and
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verification set forth in Section 2.2(a) and 2.2(b), the data on the Servicer's
Data File tie to the related Monthly Report resulting in no discrepancies
between them, and (z) the Monthly Report does not contain any errors in
accordance with the review criteria set forth in Section 2.2(a) hereunder. If
the preceding statements cannot be made in the affirmative, the applicable
officer shall state the nature of any and all anomalies, discrepancies and
errors, and indicate all actions it is currently taking with the Servicer to
reconcile and/or correct the same. Each Backup Servicer's Certificate shall be
dated as of the related Determination Date. Upon the request of the Deal Agent,
a Backup Servicer's Certificate shall be accompanied by copies of any third
party reports relied on or obtained in connection with the Backup Servicer's
duties hereunder. The Backup Servicer, with respect to the Backup Servicer's
Certificate, shall not be responsible for delays attributable to the Servicer's
or Borrower'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 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 Servicer, the Collateral Agent and the Deal
Agent. When the Backup Servicer incurs expenses after the occurrence of a
Servicer Termination Event specified in Section 6.11 of the Loan Agreement, the
parties hereto intend that such expenses constitute expenses of administration
under the Bankruptcy Code or any other applicable Federal or State bankruptcy,
insolvency or similar law.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Representations and Warranties of the Backup Servicer. The
Backup Servicer represents, warrants and covenants as of the date of execution
and delivery of this Agreement:
(a) Organization and Good Standing. The Backup Servicer has
been duly organized and is validly existing as a corporation in good standing
under the laws of Delaware, 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 or the Loan Agreement.
(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 or the Loan 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.
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(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: (i) asserting the invalidity of this Agreement, (ii)
seeking to prevent the consummation of any of the transactions contemplated by
this Agreement, or (iii) 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.
(g) 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.
(h) Facilities. The Backup Servicer has adequate facilities
and employees in place to handle the following, in accordance with its
Collection Guidelines, including, but not limited to: (i) customer service
inquiries/responsibilities; (ii) collections on delinquent and charged-off
accounts; (iii) insurance monitoring and the making of claims with respect
thereto; (iv) creating the Monthly Reports; (v) repossession and other legal
actions; (vi) statements to performing accounts and other correspondence; (vii)
reconciliation of dealer holdback payments; (viii) inventory management; (ix)
maintenance of lock-box accounts; (x) electronic skip tracing; and (xi) document
storage and title maintenance.
(i) The Backup Servicer shall take all actions it deems
necessary to commence servicing within 30 days of receipt of written notice from
the Deal Agent, including without limitation, hiring and training new personnel
and purchasing any necessary equipment.
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(j) The Backup Servicer will keep gateways, hardware,
software, systems and the interface used to fulfill its obligations hereunder
up-to-date as necessary to ensure continuing compatibility with Credit
Acceptance's systems, utilized by Credit Acceptance in its capacity as Servicer,
and otherwise maintain a technology platform that will enable the Backup
Servicer to fulfill its obligations at all times, provided that the Backup
Servicer will not be responsible for ensuring compatibility with systems changed
or modified by Credit Acceptance unless Credit Acceptance notifies the Backup
Servicer of such changes or modifications.
(k) The Backup Servicer and all of its employees performing
the services described hereunder will perform such services in accordance with
industry standards applicable to the performance of such services, and with the
same degree of care as it applies to the performance of such services for any
assets which the Backup Servicer holds for its own account.
(l) Upon a Backup Servicer Event of Default, the Backup
Servicer shall promptly notify the Deal Agent that a Backup Servicer Event of
Default has occurred.
ARTICLE 4
TERMINATION
SECTION 4.1. Backup Servicer Event of Default.
For purposes of this Agreement, any of the following shall
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 Deal Agent.
(b) Any failure by the Backup Servicer (x) after the
Assumption Date to deposit to the Collection Account any amount required to be
deposited by the Servicer (except for any amounts required to be deposited by
the Servicer under Section 4.5 of the Loan Agreement) and such failure shall
continue unremedied for a period of two (2) days or (y) to deliver to the Deal
Agent the Backup Servicer's Certificate one (1) Business Day prior to the
related Payment Date that shall continue unremedied for a period of one (1)
Business Day.
(c) The entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the appointment of
a conservator, receiver, or liquidator for the Backup Servicer in any
insolvency, readjustment of debt, marshalling of assets and liabilities, or
similar proceedings, or for the winding up or liquidation of its respective
affairs, and the continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days or the entry of any decree or order for
relief in respect of the Backup Servicer under any bankruptcy, reorganization,
compromise, arrangement, insolvency, readjustment of debt, or similar law,
whether now or hereafter in effect, which decree or order for relief continues
unstayed and in effect for a period of 60 consecutive days.
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(d) The consent by the Backup Servicer to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings of or relating to
the Backup Servicer or relating to substantially all of its property; or the
admission by the Backup Servicer in writing of its inability to pay its debts
generally as they become due, the filing by the Backup Servicer of a petition to
take advantage of any applicable insolvency or reorganization statute, the
making by the Backup Servicer of an assignment for the benefit of its creditors,
or the voluntarily suspension by the Backup Servicer of payment of its
obligations.
(e) 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 30 days after written notice thereof shall have been given to the Backup
Servicer by the Deal Agent, the circumstances or condition in respect of which
such representation, warranty or statement was incorrect shall not have been
eliminated or otherwise cured.
SECTION 4.2. Consequences of a Backup Servicer Event of Default.
If a Backup Servicer Event of Default has occurred and is
continuing, the Deal Agent may, by notice given in writing to the Backup
Servicer, 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 Deal Agent in effecting the termination of
the responsibilities and rights of the terminated Backup Servicer under this
Agreement.
SECTION 4.3. Backup Servicing Termination.
Prior to the time the Backup Servicer receives a notice from
the Deal Agent that the Backup Servicer will become the Servicer, the Backup
Servicer may terminate this Agreement for any reason in its sole judgment and
discretion upon delivery of 90 days advance written notice to the Deal Agent of
such termination.
SECTION 4.4. Return of Confidential Information.
Upon termination of this Agreement, the Backup Servicer shall,
at the direction of the Deal Agent, promptly return all written confidential
information and any related electronic and written files and correspondence in
its possession as are related to this Agreement and the Service-Related
Activities contemplated hereunder.
SECTION 4.5. Access to Facilities and Information.
The Backup Servicer shall provide reasonable access to its
facilities and assistance to any Successor Servicer or other party assuming the
servicing responsibilities, provided, however, that such access shall not
unreasonably interfere with the Backup Servicer conducting its day to day
operations. The Backup Servicer will furnish to the Deal Agent, any Liquidity
Agent or the Collateral Agent, as applicable, promptly, from time to time, such
other
16
information, documents, records or reports respecting the Collateral or the
condition or operations, financial or otherwise, of the Backup Servicer as the
Deal Agent, any Liquidity Agent or the Collateral Agent may from time to time
reasonably request in order to protect the interests of the Collateral Agent or
the Secured Parties under or as contemplated by this Agreement or the Loan
Agreement.
ARTICLE 5
MISCELLANEOUS
SECTION 5.1. Notices, Etc.
(a) On and after the Assumption Date, the Borrower, the
Collateral Agent, Credit Acceptance and the Deal Agent hereby agree to provide
to the Backup Servicer all notices required to be provided to the Servicer
pursuant to the Loan 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 00000-0000
Attention: Xxxxx X. Xxxxxx, Xx.
Telephone: (000) 000-0000 (ext. 884)
Telecopy: (000) 000-0000
17
If to the Deal Agent:
Wachovia Capital Markets, LLC
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Conduit Administration
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to the Collateral Agent:
Wachovia Capital Markets, LLC
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Conduit Administration
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to the Backup Servicer:
Systems & Services Technologies, Inc.
0000 Xxxxxxx Xxxx
Xx. Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx, President and Xxxxxx Xxxx,
Executive Vice President/General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SECTION 5.2. Successors and Assigns. This Agreement shall be binding
upon the Backup Servicer, and shall inure to the benefit of the Collateral
Agent, the Lenders, the Deal Agent, the Investors, the Liquidity Agent and their
respective successors and permitted assigns; provided that the Backup Servicer
shall not assign any of its rights or obligations hereunder without the prior
written consent of the Deal Agent, and any such assignment in contradiction of
the foregoing shall be null and void.
SECTION 5.3. No Bankruptcy Petition Against the Borrower.
(a) Each of the parties hereto hereby agrees that it will not
institute against, or join any other Person in instituting against any CP
Conduit any Insolvency Proceeding so long as any commercial paper issued by such
CP Conduit shall be outstanding and there shall not have elapsed one year and
one day since the last day on which any such commercial paper shall have been
outstanding.
(b) Each of the parties hereto (other than the Deal Agent)
hereby agrees that it will not institute against, or join any other Person in
instituting against the Borrower any Insolvency Proceeding so long as there
shall not have elapsed one year and one day since the Collection Date.
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SECTION 5.4. 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 5.5. 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 parties hereto.
SECTION 5.6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to the conflicts of law principles thereof.
SECTION 5.7. 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 5.8. 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 Servicer, the Deal Agent, the
Collateral Agent, the Backup Servicer and the Borrower have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
CREDIT ACCEPTANCE CORPORATION,
as Servicer
By: /S/ Xxxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Treasurer & Chief Financial Officer
WACHOVIA CAPITAL MARKETS, LLC,
as Deal Agent and Collateral Agent
By: /S/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
SYSTEM & SERVICES TECHNOLOGIES, INC.,
as Backup Servicer
By: /S/ Xxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxx X. Xxxx
Title: EVP/General Counsel
CAC WAREHOUSE FUNDING CORPORATION II,
as Borrower
By: /S/ Xxxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President - Finance & Treasurer
