EXHIBIT 4(f)(44)
CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT, dated as of September 27, 2002 (the
"Agreement"), is made between CREDIT ACCEPTANCE CORPORATION, a Michigan
corporation ("CAC") and CAC WAREHOUSE FUNDING CORP., a Nevada corporation
("Funding").
Funding desires to acquire from time to time certain Loans and related
property including CAC's rights in the Dealer Agreements and Contracts securing
payment of such Loans and the Collections derived therefrom during the full term
of this Agreement, and CAC desires to transfer, convey and assign from time to
time such Loans and related property to the Purchaser upon the terms and
conditions hereinafter set forth. CAC has also agreed to service the Loans and
related property to be transferred, conveyed and assigned to Funding.
In consideration of the premises and the mutual agreements set forth
herein, it is hereby agreed by and between CAC and Funding as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. All capitalized terms used herein shall have
the meanings specified herein or, if not so specified, the meaning specified in,
or incorporated by reference into the Loan and Security Agreement and shall
include in the singular number the plural and in the plural number the singular:
"Contributed Property" means all of CAC's right, title and interest to:
(i) the Loans, Dealer Agreements and Contracts identified on Exhibit A, and all
monies due or to become due in payment thereupon on and after the Cut-Off Date,
including but not limited to all Collections; (ii) all Related Security; and
(iii) all income and Proceeds of the foregoing
"Loan and Security Agreement" shall mean the Loan and Security
Agreement dated as of September 27, 2002 among CAC, Funding, the Deal Agent, the
Investors named therein, Variable Funding Capital Corporation, Wachovia Bank,
National Association and OSI Professional Services, Inc.
"Related Security" shall mean with respect to any Loan all of CAC's
interest in:
(i) the Dealer Agreements and Contracts securing payment of such Loan;
(ii) all security interests or liens purporting to secure payment of
such Loan, whether pursuant to such Loan, the related Dealer Agreement
or otherwise, together with all financing statements signed by the
related Obligor describing any collateral securing such Loan and all
other property obtained upon foreclosure of any security interest
securing payment of such Loan or any related Contract;
(iii) all guarantees, insurance (including insurance insuring the
priority or perfection of any lien) or other agreements or arrangements
of any kind from time to time supporting or securing payment of each
Contract whether pursuant to such Contract or otherwise, including any
of the foregoing relating to any Contract securing payment of such
Loan;
(iv) all of the CAC's interest in all Records, documents and writing
evidencing or related to such Loan;
(vi) all Collections (other than Dealer Collections), the Collection
Account, the Reserve Account, and all amounts on deposit therein and
investments thereof; and
(v) the Proceeds of each of the foregoing.
SECTION 1.2. Other Terms. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP. All terms used in Article 9
of the UCC, and not specifically defined herein, are used herein as defined in
such Article 8.
SECTION 1.3. Computation of Time Periods. Unless otherwise stated in
this Agreement, in the computation of a period of time from a specified date to
a later specified date, the word "from" means "from and including" and the words
"to" and "until" each means "to but excluding."
ARTICLE II
CONTRIBUTION AND SERVICING OF LOANS
SECTION 2.1 Contribution and Sale of Loans. (a) Upon the terms and
subject to the conditions set forth herein (i) CAC hereby assigns, transfers,
contributes and conveys to Funding, and Funding hereby accepts from CAC, on the
terms and subject to the conditions specifically set forth herein, all of CAC's
right, title and interest, in, to and under the Contributed Property contributed
on the Closing Date and, (ii) CAC hereby agrees that any Contributed Property
created after the Closing Date shall be assigned, transferred and conveyed to
Funding, and Funding hereby agrees to accept from CAC, on the terms and subject
to the conditions specifically set forth herein, all of CAC's right, title and
interest, in, to, and under any Contributed Property conveyed after the Closing
Date. Any such sale, assignment, transfer and conveyance does not constitute an
assumption by Funding of any obligations of CAC or any other Person to Obligors
or to any other Person in connection with the Loans or under any Related
Security, Dealer Agreement or other agreement and instrument relating to the
Loans.
(b) In connection with any such foregoing conveyance, CAC agrees to
record and file on or prior to the Closing Date, at its own expense, a financing
statement or statements with respect to the Contributed Property conveyed by CAC
hereunder meeting the requirements of applicable state law in such manner and in
such jurisdictions as are necessary to perfect and protect the interests of
Funding created hereby under the UCC against all creditors of and purchasers
from CAC, and to deliver either the originals of such financing statements or a
file-
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stamped copy of such financing statements or other evidence of such filings to
Funding on the Closing Date.
(c) CAC agrees that from time to time, at its expense, it will promptly
execute and deliver all instruments and documents and take all actions as may be
necessary or as Funding may reasonably request in order to perfect or protect
the interest of Funding in the Loans and other Contributed Property purchased
hereunder or to enable Funding to exercise or enforce any of its rights
hereunder. CAC shall, upon request of Funding, obtain such additional search
reports as Funding shall request. To the fullest extent permitted by applicable
law, Funding shall be permitted to sign and file continuation statements and
amendments thereto and assignments thereof without CAC's signature. Carbon,
photographic or other reproduction of this Agreement or any financing statement
shall be sufficient as a financing statement.
(d) It is the express intent of CAC and Funding that the conveyance of
the Loans and other Contributed Property by CAC to Funding pursuant to this
Agreement be construed as a absolute contribution of such Loans and other
Contributed Property by CAC to Funding. Further, it is not the intention of CAC
and Funding that such conveyance be deemed a grant of a security interest in the
Loans and other Contributed Property by CAC to Funding to secure a debt or other
obligation of CAC. However, in the event that, notwithstanding the express
intent of the parties, the Loans and other Contributed Property are construed to
constitute property of CAC, then (i) this Agreement also shall be deemed to be,
and hereby is, a security agreement within the meaning of the UCC; and (ii) the
conveyance by CAC provided for in this Agreement shall be deemed to be, and CAC
hereby grants to Funding, a security interest in, to and under all of CAC's
right, title and interest in, to and under the Contributed Property, to secure
the rights of Funding set forth in this Agreement or as may be determined in
connection therewith by applicable law. CAC and Funding shall, to the extent
consistent with this Agreement, take such actions as may be necessary to ensure
that, if this Agreement were deemed to create a security interest in the Loans
and other Contributed Property, such security interest would be deemed to be a
perfected security interest in favor of Funding under applicable law and will be
maintained as such throughout the term of this Agreement.
(e) In connection with such conveyance, CAC agrees to deliver to
Funding on the Closing Date, one or more computer files or microfiche lists
containing true and complete lists of all Dealer Agreements and Loans conveyed
to Funding on the Closing Date, and all Contracts securing all such Loans,
identified by account number, dealer number and pool number. Such file or list
shall be marked as Exhibit A to this Agreement, shall be delivered to Funding as
confidential and proprietary, and is hereby incorporated into and made a part of
this Agreement.
SECTION 2.2. Servicing of Loans. The servicing, administering and
collection of the Loans shall be conducted by the Servicer, which hereby agrees
to perform, take or cause to be taken all such action as may be necessary or
advisable to collect each Loan from time to time, all in accordance with
applicable laws, rules and regulations and with the care and diligence which the
Servicer employs in servicing similar loans for its own account, in accordance
with the Credit Guidelines and the Collection Guidelines. Funding hereby
appoints the Servicer as its agent to enforce Funding's and any Assignee's
rights and interests in, to and under the Loans, the Related
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Security, the Collections, and the other Contributed Property. The Servicer
shall hold in trust for Funding and any Assignees, in accordance with its
interests, all Records which evidence or relate to the Loans, Related Security,
Collections and other Contributed Property.
ARTICLE III
CONSIDERATION AND PAYMENT; LOANS
SECTION 3.1. Consideration. The consideration for the Loans and other
Contributed Property conveyed on the Closing Date and thereafter to Funding by
CAC under this Agreement which represents the intial capital contribution in
Funding shall be 1,000 shares of common stock, par value $1.00 each (the
"Shares"). The Contributed Property shall be deemed to have a value equal to the
aggregate principal amount of the Loans contributed by CAC to Funding on the
Closing Date.
SECTION 3.2. Delivery of the Shares. The Shares shall be issued and
delivered to CAC on the Closing Date and shall be evidenced by an appropriate
stock certificate duly executed by officers of Funding, which certificate shall
bear an appropriate restrictive legend to the effect that the Shares may not be
sold or otherwise transferred by CAC with the prior consent of the Deal Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties. CAC represents and
warrants to Funding as of the Closing Date that:
(a) Corporate Existence and Power. CAC is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation and has all corporate power and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business in each jurisdiction in which its business is now conducted. CAC is
duly qualified to do business in, and is in good standing in, every other
jurisdiction in which the nature of its business requires it to be so qualified,
except where the failure to be so qualified or in good standing would not have a
Material Adverse Effect.
(b) Corporate and Governmental Authorization; Contravention. The
execution, delivery and performance by CAC of this Agreement are within its
corporate powers, have been duly authorized by all necessary corporate action,
require no action by or in respect of, or filing with, any Governmental
Authority or official thereof (except for the filing by CAC of UCC financing
statements as required by this Agreement), and do not contravene, or constitute
a default under, any provision of applicable law, rule or regulation or of the
Articles of Incorporation or Bylaws or of any agreement, judgment, injunction,
order, writ, decree or other instrument binding upon CAC, or result in the
creation or imposition of any Lien on the assets of CAC or any of its
subsidiaries (except those created by this Agreement).
(c) Binding Effect. This Agreement constitutes the legal, valid and
binding obligation of CAC, enforceable against it in accordance with its terms,
subject to applicable
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bankruptcy, insolvency, moratorium or other similar laws affecting the rights of
creditors generally.
(d) Perfection. CAC is the owner of all of the Loans and the other
Contributed Property, free and clear of all Liens. On or prior to the date of
each contribution of Loans and the other Contributed Property to Funding
pursuant to this Agreement, all financing statements and other documents
required to be recorded or filed in order to perfect and protect the ownership
interest of Funding in and to the Loans and the other Contributed Property
against all creditors of and purchasers from CAC will have been duly filed in
each filing office necessary for such purpose and all filing fees and taxes, if
any, payable in connection with such filings shall have been paid in full.
(e) Accuracy of Information. All information heretofore furnished by
CAC to Funding, the Deal Agent, VFCC and any Investor for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by CAC to Funding, the Deal Agent, VFCC
and any Investor will be, true and accurate in every material respect, on the
date such information is stated or certified.
(f) Tax Status. CAC has filed all material tax returns (federal, state
and local) required to be filed and has paid or made adequate provision for the
payment of all taxes, assessments and other governmental charges.
(g) Action, Suits. Except as set forth in this Agreement, there are no
actions, suits or proceedings pending, or to the knowledge of CAC, threatened
against or affecting CAC or any Affiliate of CAC or its properties, in or before
any court, arbitrator or other body, which may, individually or in the
aggregate, have a material adverse effect.
(h) Place of Business. The principal place of business and chief
executive office of CAC is in Southfield, Michigan, and the office where CAC
keeps all of its Records is at the address listed in Section 8.3, or such other
locations notified to Funding and the Deal Agent in accordance with this
Agreement in jurisdictions where all action required by the terms of this
Agreement has been taken and completed.
(i) Good Title. Upon the contribution of the Loans and related property
to Funding pursuant to this Agreement, Funding shall acquire all of CAC's
ownership and other interest in each Loan (and in the Related Security,
Collections and proceeds with respect thereto) and in the Related Security,
Collections and proceeds with respect thereto, in each case free and clear of
any Lien.
(j) Tradenames, Etc. As of the date hereof CAC has not, within the last
five (5) years, operated under any tradenames other than its corporate name, nor
has it changed its name, merged with or into or consolidated with any other
corporation or been the subject of any proceeding under Xxxxx 00, Xxxxxx Xxxxxx
Code (Bankruptcy).
(k) Nature of Loans, Contracts. Each Loan represented by CAC to be an
Eligible Loan, or included in the calculation of the Aggregate Outstanding
Eligible Loan Balance, at the
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time of such representation, or at the time of such calculation, as applicable,
in fact satisfies the definition of "Eligible Loan" set forth in the Loan and
Security Agreement. Each Contract classified as an "Eligible Contract" (or
included in any aggregation of balances of "Eligible Contracts") by CAC
satisfies at the time of such classification the definition of "Eligible
Contract" set forth in the Loan and Security Agreement.
(l) Amount of Loans. The Funding Notice shall provide (A) the aggregate
Outstanding Balance of the Contracts; (B) the Aggregate Outstanding Eligible
Loan Balance; and (C) the Aggregate Outstanding Eligible Loan Net Balance; each
as of the Cut-off Date and as reported in the Loan Servicing System.
(m) Collection Guidelines. Since February 28, 2002, there have been no
material changes in the Collection Guidelines other than as permitted hereunder
and under the Loan and Security Agreement. Since such date, no material advers
change has occurred in the overall rate of collection of the Loans.
(m) Collections and Servicing. Since April 1, 1998, there has been no
material adverse change in the ability of the Servicer to service and collect
the Loans.
(n) Not an Investment Company. CAC is not, and is not controlled by, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, or each is exempt from all provisions of such Act.
(o) ERISA. Each of CAC and its ERISA Affiliates is in compliance in all
material respects with ERISA and no lien exists in favor of the Pension Benefit
Guaranty Corporation on any of the Loans.
(p) Bulk Sales. No transaction contemplated by this Agreement requires
compliance with any bulk sales act or similar law.
(q) Preference; Voidability. The transfer of the Loans, Collections,
Related Security and other Contributed Property by the Servicer to Funding, has
not been made for or on account of an antecedent debt owed by Funding to CAC, or
by CAC to Funding, and neither of such transfers is or may be voidable under any
Section of the Bankruptcy Reform Act of 1978 (11 U.S.C. Section Section 101 et
seq.), as amended.
(r) Consents, Licenses, Approvals. With respect to each Dealer
Agreement and each Loan and Contract and all other Contributed Property, all
consents, licenses, approvals or authorizations of or registrations or
declarations with any Governmental Authority required to be obtained, effected
or given by CAC, in connection with the conveyance of such Loan, Contract or
other Contributed Property to Funding have been duly obtained, effected or given
and are in full force and effect.
(s) Exhibit A. Exhibit A to this Agreement is and will be an accurate
and complete listing of all Dealer Agreements, Pools and Loans in all material
respects and all Contracts securing such Loans on the Funding Date, and the
information contained therein with respect to
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the identity of such Dealer Agreements, Pools and Loans and all Contracts
securing such Loans and under the related Contracts is and will be true and
correct in all material respects as of each such date.
(t) Adverse Selection. No selection procedure believed by CAC to be
adverse to the interests of Funding has been or will be used in selecting the
Dealer Agreements or the Loans.
(u) Use of Proceeds. No proceeds of any contribution hereunder will be
used for a purpose that violates, or would be inconsistent with, regulations T,
U or X promulgated by the Board of Governors of the Federal Reserve System.
SECTION 4.2. Reaffirmation of Representations and Warranties by CAC;
Notice of Breach. The representations and warranties set forth in Section 4.1
shall survive the conveyance of the Loans to Funding, and termination of the
rights and obligations of Funding and CAC under this Agreement. Upon discovery
by Funding or CAC of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the other within three Business Days of such discovery.
ARTICLE V
COVENANTS OF CAC AND THE SERVICER
SECTION 5.1. Affirmative Covenants. So long as this Agreement is in
effect, and until all Loans, an interest in which has been contributed to
Funding pursuant hereto, shall have been paid in full or written-off as
uncollectible, and all amounts owed by CAC pursuant to this Agreement have been
paid in full, unless Funding otherwise consents in writing, CAC and the Servicer
hereby covenant and agree as follows:
(a) Conduct of Business. CAC and the Servicer will each, and the
Servicer will cause its Subsidiaries to, carry on and conduct its business in
substantially the same manner and in substantially the same fields of enterprise
as it is presently conducted and do all things necessary to remain duly
incorporated, validly existing and in good standing as a domestic corporation in
its jurisdiction of incorporation and each of CAC and Servicer will maintain all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted.
(b) Compliance with Laws. CAC and the Servicer will, and each will
cause each of its Subsidiaries to, comply in all material respects with all
laws, rules, regulations, orders, writs, judgments, injunctions, decrees or
awards to which it or its properties may be subject.
(c) Furnishing of Information and Inspection of Records. CAC and the
Servicer will furnish to Funding from time to time such information with respect
to the Loans as Funding may reasonably request, including, without limitation,
listings identifying the Obligor and the Outstanding Balance for each Loan. CAC
and the Servicer will at any time and from time to time during regular business
hours permit Funding, or its agents or representatives, (i) to examine and make
copies of and abstracts from all Records and (ii) to visit the offices and
properties of CAC for the purpose of examining such Records, and to discuss
matters relating to
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Loans or CAC's performance hereunder with any of the officers, directors,
employees or independent public accountants of CAC or the Servicer having
knowledge of such matters.
(d) Keeping of Records and Books of Account. CAC and the Servicer will
each maintain a system of accounting established and administered in accordance
with GAAP, consistently applied, and will maintain and implement administrative
and operating procedures (including, without limitation, an ability to recreate
records evidencing Loans in the event of the destruction of the originals
thereof), and keep and maintain, all documents, books, records and other
information reasonably necessary or advisable for the collection of all Loans
(including, without limitation, records adequate to permit adjustments to each
existing Loan). CAC and the Servicer will each give Funding and the Deal Agent
notice of any material change in the administrative and operating procedures
referred to in the previous sentence.
(e) Performance and Compliance with Loans and Dealer Agreements. CAC
and the Servicer, at their expense, will timely and fully perform and comply
with all provisions, covenants and other promises required to be observed by
either of them under the Dealer Agreements related to the Loans.
(f) Credit and Collection Policies. CAC and the Servicer will comply in
all material respects with the Credit Guidelines (as in effect on the Closing
Date) and the Collection Guidelines in regard to each Loan and the related
Dealer Agreement.
(g) Collections Received. CAC and the Servicer shall hold in trust, and
deposit to the Collection Account, not later than the close of business on the
second Business Day following the Date of receipt, all Collections received from
time to time by CAC or the Servicer.
(h) Sale Treatment. CAC agrees to treat the conveyance of the
Contributed Property made pursuant to this Agreement for all purposes
(including, without limitation, tax and financial accounting purposes) as an
absolute contribution and, to the extent any such reporting is required, shall
report the transactions contemplated by this Agreement on all relevant books,
records, tax returns, financial statements and other applicable documents as a
complete disposition of the Contributed Party to Funding.
(i) ERISA. CAC and the Servicer shall each promptly give Funding
written notice upon becoming aware that CAC or the Servicer, or any of the
Servicer's Subsidiaries, is not in compliance in all material respects with
ERISA or that any ERISA lien on any of the Loans exists.
SECTION 5.2. Negative Covenants. During the term of this Agreement,
unless the Deal Agent and Funding shall otherwise consent in writing:
(a) No Sales, Liens, Etc. Except as otherwise provided herein, CAC will
not sell, assign (by operation of law or otherwise) or otherwise dispose of, or
create or suffer to exist any Lien upon (or the filing of any financing
statement) or with respect to (i) any of the Loans, the Related Security,
Collections or other Contributed Property, (ii) any goods (other than
inventory), the sale, which may give rise to any Loan, Related Security or
Collections or other
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Contributed Property or (iii) upon or with respect to any account to which any
Collections of any Loan are sent, or, in each case, assign any right to receive
income in respect thereof. CAC shall, and will cause each of its Subsidiaries
to, specifically exclude from the property subject to any Lien granted on
inventory any and all accounts receivable generated by sales of such inventory
and the proceeds thereof and shall provide, upon Funding's request, evidence
satisfactory to Funding that any such Lien (and each related UCC financing
statement or other related filing) expressly excludes any such accounts
receivable. CAC will provide Funding and the Deal Agent with a copy of any
inventory financing agreement at least three Business Days prior to the
effectiveness thereof.
(b) No Extension or Amendment of Loans. Neither CAC nor the Servicer
will extend, amend or otherwise modify the terms of any Loan, or amend, modify
or waive any term or condition of any Dealer Agreement related thereto, except
as permitted by any other Transaction Document.
(c) No Change in Business or Credit Guidelines. Except as provided in
the Loan and Security Agreement, neither CAC nor the Servicer will make any
change in the character of its business or in the Credit Guidelines or the
Collection Guidelines, except permitted by Transaction Documents.
(d) Change in the Collection Account. Neither CAC nor the Servicer will
add or terminate, or make any change to, the Collection Account or directions
for payment to the Obligors, except in accordance with the Loan and Security
Agreement.
(e) Change of Name, Etc. Neither CAC nor the Servicer will change its
name, identity, jurisdiction of organization or structure or location of its
chief executive office, unless at least ten (10) days prior to the effective
date of any such change CAC or the Servicer, as the case may be, delivers to
Funding and the Deal Agent such documents, instruments or agreements, including,
without limitation, appropriate financing statements under the UCC, executed by
CAC, as are necessary to reflect such change and to continue the perfection of
Funding's and any assignee's interest in the Loans.
(f) Separate Business. Neither CAC nor the Servicer will: (i) fail to
maintain separate books, financial statements, accounting records and other
corporate documents from those of Funding; (ii) commingle any of its assets or
the assets of any of its Affiliates with those of Funding; (iii) pay from its
own assets any obligation or indebtedness of any kind incurred by Funding; (iv)
directly, or through any of its Affiliates, borrow funds or accept credit or
guaranties from Funding.
SECTION 5.3 Indemnities by CAC.
(a) Without limiting any other rights that any such Person may have
hereunder or under Applicable Law, CAC hereby agrees to indemnify Funding, or
its assignee, and each of their its respective Affiliates and officers,
directors, employees and agents thereof (collectively, the "Indemnified
Parties"), forthwith on demand, from and against any and all damages, losses,
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claims, liabilities and related costs and expenses, including attorneys' fees
and disbursements (all of the foregoing being collectively referred to as the
"Indemnified Amounts") awarded against or incurred by such Indemnified Party or
other non-monetary damages of any such Indemnified Party any of them arising out
of or as a result of this Agreement or the financing or maintenance of the
Capital or in respect of any Loan or any Contract, excluding, however, (a)
Indemnified Amounts to the extent resulting from gross negligence or willful
misconduct on the part of such Indemnified Party or (b) Indemnified Amounts that
have the effect of recourse for non-payment of the Loans due to credit problems
of the Obligors (except as otherwise specifically provided in this Agreement).
If CAC has made any indemnity payment pursuant to this Section 5.3 and such
payment fully indemnified the recipient thereof and the recipient thereafter
collects any payments from others in respect of such Indemnified Amounts then,
the recipient shall repay to CAC an amount equal to the amount it has collected
from others in respect of such indemnified amounts. Without limiting the
foregoing, CAC shall indemnify each Indemnified Party for Indemnified Amounts
relating to or resulting from:
(i) any Contract or Loan treated as or represented by CAC to
be an Eligible Contract or Eligible Loan that is not at the applicable time an
Eligible Contract or Eligible Loan;
(ii) reliance on any representation or warranty made or deemed
made by CAC or any of its officers under or in connection with this Agreement,
which shall have been false or incorrect in any material respect when made or
deemed made or delivered;
(iii) the failure by CAC to comply with any term, provision or
covenant contained in this Agreement or any agreement executed in connection
with this Agreement, or with any Applicable Law, with respect to any Loan,
Dealer Agreement, any Contract, or the nonconformity of any Loan, Dealer
Agreement or Contract with any such Applicable Law;
(iv) the failure to vest and maintain vested in Funding, or
its assignees, a first priority perfected security interest in the Collateral,
together with all Collections, free and clear of any Lien whether existing at
the time of Funding or at any time thereafter;
(v) the failure to file, or any delay in filing, financing
statements or other similar instruments or documents under the UCC of any
applicable jurisdiction or other Applicable Laws with respect to the Collateral,
whether at the time of the Funding or at any subsequent time;
(vi) any dispute, claim, offset or defense (other than the
discharge in bankruptcy of the Obligor) of the Obligor to the payment of any
Loan or Contract (including, without limitation, a defense based on such Loan or
Contract not being a legal, valid and binding obligation of such Obligor
enforceable against it in accordance with its terms);
(v) any failure of CAC to perform its duties or obligations in
accordance with the provisions of this Agreement or any failure by CAC to
perform its respective duties under the Loans;
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(vi) the failure by CAC to pay when due any Taxes for which
CAC is liable, including without limitation, sales, excise or personal property
taxes payable in connection with the Collateral;
(vii) the commingling of Collections of the Collateral at any
time with other funds;
(viii) any investigation, litigation or proceeding related to
this Agreement or in respect of any Loan or Contract; and
(ix) the failure by CAC to pay when due any Taxes for which
CAC is liable, including without limitation, sales, excise or personal property
taxes payable in connection with the Collateral;
the failure of CAC, in its individual capacity, or any of its
agents or representatives to remit to the Servicer, the Deal Agent, the
Collateral Agent Collections of the Collateral remitted to CAC, in its
individual capacity, or any such agent or representative.
(b) Any amounts subject to the indemnification provisions of this
Section 5.3 shall be paid by CAC to Funding within five (5) Business Days
following the Funding's demand therefor.
(c) The obligations of CAC under this Section 5.3 shall survive the
termination of this Agreement.
ARTICLE VI
REPURCHASE OBLIGATION
SECTION 6.1. Mandatory Repurchase upon Breach of Warranty. If any Loan,
which has been contributed to Funding by CAC hereunder and which has been
reported by CAC to be an Eligible Loan, shall fail to meet the conditions set
forth in the definition of "Eligible Loan" on the date of such report or for
which any representation or warranty made herein in respect of such Loan shall
fail to be true on the date so made, CAC shall be deemed to have received on
such day a Collection of such Loan in full and shall on such day pay to Funding
an amount equal to the Release Price of such Loan. If on any day any Contract,
which has been contributed to Funding by CAC hereunder and which has been
reported by CAC to be an Eligible Contract, shall fail to meet the conditions
set forth in the definition of "Eligible Contract" on the date of such report or
for which any representation or warranty made herein in respect of such Contract
shall fail to be true on the date so made, CAC shall be deemed to have received
on such day a Collection in the amount of the Release Price of such Contract and
shall on such day pay to Funding an amount equal to the Release Price of such
Contract. For purposes of this Section 6.1, Release Price shall be calculated as
of the last day of the immediately preceding collection period. Upon the request
of CAC, Funding shall release its security interest on the Loans and the
Contracts for which payment has been made in accordance with this Section 6.1;
provided, however, that any Income Collections relating to any such Loans
accrued through the date of the release of the security interest in such Loans
shall continue to be pledged to Funding.
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SECTION 6.2. No Recourse. Except as otherwise provided in this Article
VI, the purchase and sale of the Loans under this Agreement shall be without
recourse to CAC or the Servicer.
ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.1. Conditions to Funding's Obligations Regarding Loans.
Consummation of the transactions contemplated hereby on the Closing Date shall
be subject to the satisfaction of the following conditions:
(a) All representations and warranties of CAC and the Servicer
contained in this Agreement shall be true and correct on the Closing Date with
the same effect as though such representations and warranties had been made on
such date;
(b) With respect to those Loans contributed on the Closing Date, all
information concerning such Loans provided to Funding shall be true and correct
in all material respects as of the Closing Date;
(c) CAC and the Servicer shall have substantially performed all other
obligations required to be performed by the provisions of this Agreement;
(d) CAC shall have filed or caused to be filed the financing
statement(s) required to be filed pursuant to Section 2.1(b);
(e) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to Funding, and Funding shall have received
from CAC copies of all documents (including, without limitation, records of
corporate proceedings) relevant to the transactions herein contemplated as
Funding may reasonably have requested; and
(f) On the Closing Date, CAC shall deliver to Funding and the Deal
Agent a Monthly Servicer's Certificate as of the Closing Date.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1. Amendment. 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 Funding and CAC and consented to in writing by the Deal Agent.
Any reconveyance executed in accordance with the provisions hereof shall not be
considered amendments to this Agreement.
SECTION 8.2. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
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SECTION 8.3. Notices. 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 8.3. 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:
(a) in the case of Funding:
CAC Funding Corp.
Silver Triangle Building
00000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Xx.
Telephone: (000) 000-0000 (ext. 884)
Telecopy: (000) 000-0000
with a copy to:
Wachovia Securities, Inc.
Xxx Xxxxxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Conduit Administrator
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) in the case of CAC and in the case of the Servicer (for so long as
the Servicer is CAC):
Credit Acceptance Corporation
Silver Triangle Building
00000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Xx.
Telephone: (000) 000-0000 (ext. 884)
Telecopy: (000) 000-0000
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party.
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SECTION 8.4. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be 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 8.5. Assignment. This Agreement may not be assigned by the
parties hereto, except that Funding may assign its rights hereunder pursuant to
the Loan and Security Agreement to the Deal Agent, for the benefit of VFCC and
the Investors, and that VFCC may assign any or all of its rights to any
Liquidity Bank. Funding hereby notifies (and CAC hereby acknowledges that)
Funding, pursuant to the Loan and Security Agreement, has assigned its rights
hereunder to the Deal Agent. All rights of Funding hereunder may be exercised by
the Deal Agent or its assignees, to the extent of their respective rights
pursuant to such assignments.
SECTION 8.6. Further Assurances. Funding, CAC and the Servicer agree to
do and perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the other parties in
order to more fully to effect the purposes of this Agreement, including, without
limitation, the execution of any financing statements or continuation statements
or equivalent documents relating to the Loans for filing under the provisions of
the UCC or other laws of any applicable jurisdiction.
SECTION 8.7. No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of Funding, CAC or the Deal Agent, any
right, remedy, power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privilege provided by law.
SECTION 8.8. Counterparts. This Agreement may be executed in two or
more counterparts including telecopy transmission thereof (and by different
parties on separate counterparts), each of which shall be an original, but all
of which together shall constitute one and the same instrument.
SECTION 8.9. Binding Effect; 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. The Deal Agent, the Collateral
Agent on behalf of VFCC and the Investors, and any Liquidity Bank are intended
by the parties hereto to be third-party beneficiaries of this Agreement.
SECTION 8.10. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
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SECTION 8.11. Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 8.12. Exhibits. The schedules and exhibits referred to herein
shall constitute a part of this Agreement and are incorporated into this
Agreement for all purposes.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Funding and CAC each have caused this Contribution
Agreement to be duly executed by their respective officers as of the day and
year first above written.
FUNDING: CAC WAREHOUSE FUNDING CORP.
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxx
------------------------------------------
Title: Chief Financial Officer and Treasurer
-----------------------------------------
CAC Warehouse Funding Corp.
Silver Triangle Building
00000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Xx.
Facsimile No.: 000-000-0000
Confirmation No.: 000-000-0000 (ext. 884)
CAC: CREDIT ACCEPTANCE CORPORATION
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxx
-----------------------------------------
Title: Chief Financial Officer and Treasurer
-----------------------------------------
CAC Warehouse Funding Corp.
Silver Triangle Building
00000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Xx.
Facsimile No. 000-000-0000
Confirmation No.: 000-000-0000 (ext. 884)
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