EXHIBIT 4(f)61
EXECUTION COPY
CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT, dated as of August 25, 2004 (the
"Agreement"), is made between CREDIT ACCEPTANCE CORPORATION, a Michigan
corporation ("CAC") and CREDIT ACCEPTANCE FUNDING LLC 2004-1, a Delaware limited
liability company ("Funding").
Funding desires to acquire from time to time certain Dealer Loans and
related rights and collateral, including certain of CAC's rights in the Dealer
Agreements related thereto, all of the related Contracts, and the Collections
(other than Dealer Collections) derived therefrom during the full term of this
Agreement, and CAC desires to transfer, convey and assign from time to time such
Dealer Loans and related property to Funding upon the terms and conditions
hereinafter set forth. CAC has also agreed to service the Dealer 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. Capitalized terms used herein shall have the
respective meanings specified herein or, if not so specified, the respective
meanings specified in, or incorporated by reference into, the Sale and Servicing
Agreement, and shall include in the singular number the plural and in the plural
number the singular:
"Applicable Pool Cap" means the maximum number of Contracts that could,
under the applicable Dealer Agreement, be allocated to a pool of Contracts that
support advances which advances, when taken together, constitute a Dealer Loan.
"Contributed Property" means the Initial Contributed Property and the
Subsequent Contributed Property.
"Initial Contributed Property" means (i) the Dealer Loans listed on
Exhibit A hereto delivered to the Servicer, the Class A Insurer, the Backup
Insurer, the Backup Servicer and the Trust Collateral Agent on the Closing Date
and (ii) all Related Security with respect thereto.
"Related Security" means, with respect to any Dealer Loans, (i) all rights
under the Dealer Agreements related thereto other than the Excluded Dealer
Agreement Rights, including CAC's right to service the Dealer Loans and the
related Contracts and to receive the related servicing fees and reimbursement of
certain recovery and repossession expenses, in accordance with the terms of the
Dealer Agreements; (ii) Collections (other than Dealer Collections) after the
applicable Cut-off Date; (iii) a security interest in each Contract securing
such Dealer Loan; (iv) all records and documents relating to such Dealer Loans
and the Contracts; (vi) all security interests purporting to secure payment of
such Dealer Loans; (vii) all security interests purporting to secure payment of
each Contract (including a security interest in each Financed Vehicle); (viii)
all guarantees, insurance (including insurance insuring the priority or
perfection
of any Contract) or other agreements or arrangements securing the Contracts; and
(ix) all Proceeds of the foregoing. For the avoidance of doubt, the term
"Related Security" with respect to any Dealer Loan includes all rights arising
after the end of the Revolving Period under such Dealer Loans which rights are
attributable to advances made under such Dealer Loans as the result of Contracts
being added after the last day of the last full Collection Period during the
Revolving Period to the identifiable group of Contracts to which such Dealer
Loan relates.
"Sale and Servicing Agreement" shall mean the Sale and Servicing Agreement
dated as of August 25, 2004 among CAC, Funding, Credit Acceptance Auto Dealer
Loan Trust 2004-1, as the Issuer, JPMorgan Chase Bank as the Trust Collateral
Agent and Indenture Trustee, and Systems & Services Technologies, Inc., as the
Backup Servicer.
"Subsequent Contributed Property" means, with respect to any Distribution
Date, (i) the Dealer Loans added to Exhibit B hereto as of such Distribution
Date and (ii) all Related Security with respect thereto.
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 9.
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 SALE OF DEALER LOANS
SECTION 2.1 Contribution and Sale of Dealer Loans. (a) In consideration of
the payments described in Section 3.1, effective as of the Closing Date, CAC
does hereby convey, assign, sell and transfer to Funding, without recourse,
except as set forth herein, all of its right, title and interest in and to the
Initial Contributed Property.
(b) CAC hereby further agrees that on each Distribution Date during the
Revolving Period, in consideration of the payment described in Section 3.1 with
respect to such Distribution Date, CAC shall, and CAC does hereby agree to,
convey, assign, sell and transfer to Funding, without recourse, except as set
forth in this Agreement, all of its right, title and interest in and to the
Subsequent Contributed Property with respect to such Distribution Date.
(c) CAC hereby further agrees that the above-described conveyances shall,
without the need for any further action on the part of CAC or Funding, include
all rights arising after the end of the Revolving Period under any Dealer Loan
included in the Initial Contributed Property or Subsequent Contributed Property
which rights are attributable to advances made under such Dealer Loans as the
result of Contracts being added after the last day of the last full Collection
Period during the Revolving Period to the identifiable group of Contracts to
which such Dealer Loan relates.
2
(d) Each 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 Dealer Loans or
under any Contract, Dealer Agreement or other agreement and instrument relating
to the Dealer Loans.
(e) 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 the interests of Funding created
hereby, and to deliver either the originals of such financing statements or a
file-stamped copy of such financing statements or other evidence of such filings
to Funding on the Closing Date.
(f) 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 Dealer 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 authorized and permitted to file continuation
statements and amendments to financing statements and assignments thereof to
preserve and protect its right, title and interest in, to and under the
Contributed Property.
(g) It is the express intent of CAC and Funding that the conveyance of the
Dealer Loans and other Contributed Property by CAC to Funding pursuant to this
Agreement be construed as an absolute sale and contribution of such Dealer 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 Dealer Loans and other Contributed Property by CAC to
Funding in the nature of a consensual lien securing an obligation. However, in
the event that, notwithstanding the express intent of the parties, the Dealer
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 as enacted in the State of
Michigan; 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 such a
security interest in the Dealer Loans and other Contributed Property, such
security interest would be a perfected security interest in favor of Funding
under applicable law and will be maintained as such throughout the term of this
Agreement.
(h) 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 Dealer Loans conveyed to
Funding on the Closing Date, and all Contracts securing all such Dealer 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
3
Funding as confidential and proprietary, and is hereby incorporated into and
made a part of this Agreement. Such list and such Exhibit A shall be
supplemented and updated by lists delivered by CAC to Funding on each
Distribution Date in the Revolving Period describing all Contributed Property
conveyed on each such Distribution Date so that, on each such date, Funding will
have an aggregate list and Exhibit A that describes all Dealer Loans conveyed by
CAC to Funding hereunder on or prior to said Distribution Date and the related
Dealer Agreements.
(i) CAC will reflect the transactions described in paragraph (a) of this
Section 2.1 on its internal non-consolidated financial statements and on its
non-consolidated state tax returns as a sale or other absolute transfer of the
Dealer Loans from CAC to Funding, even though CAC will reflect this transaction
on its consolidated financial statements as an "on-balance sheet" item in
accordance with generally accepted accounting principles. CAC will present the
data in its consolidated financial statements with an accompanying footnote
describing Funding's separate existence and stating that such item is a
financing secured by the Dealer Loans and is non-recourse to CAC.
SECTION 2.2. Servicing of Dealer Loans. The servicing, administering and
collection of the Dealer Loans shall be conducted by the Servicer then
authorized to act as such under the Sale and Servicing Agreement.
ARTICLE III
CONSIDERATION AND PAYMENT
SECTION 3.1. Consideration. The consideration for the Dealer Loans and
other Contributed Property conveyed on the Closing Date to Funding by CAC under
this Agreement shall be an amount equal to the net cash proceeds received by
Funding arising out of its conveyance on the Closing Date of Contributed
Property to the Issuer under the Sale and Servicing Agreement, plus 100% of the
sole membership interest in Funding. Thereafter, on each Distribution Date in
the Revolving Period, the consideration for the Dealer Loans and other
Contributed Property conveyed on such Distribution Date will be cash in the
amount of the Aggregate Outstanding Net Eligible Loan Balance of such Dealer
Loans. The Contributed Property shall be deemed to have a value equal to the
aggregate principal amount of the Dealer Loans sold and contributed by CAC to
Funding.
SECTION 3.2. Membership Interest. The membership interest of CAC in
Funding shall arise on the Closing Date. Such membership interest may not be
sold or otherwise transferred by CAC except as otherwise permitted in the Sale
and Servicing Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties. CAC represents and warrants
to Funding, as of the Closing Date and each Distribution Date during the
Revolving Period, that:
(a) Organization and Good Standing. CAC is duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Michigan, with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is presently
conducted, and has and had at all relevant times, full power,
4
authority, and legal right to acquire, own, sell, and service the Dealer Loans
and the related Contracts, and to perform its obligations under the Basic
Documents.
(b) Due Qualification. CAC is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property or
the conduct of its business, including the servicing of the Dealer Loans and the
related Contracts as required by this Agreement, requires such qualifications
except where such failure will not have a material adverse effect.
(c) Power and Authority. CAC has the power and authority to execute and
deliver this Agreement and the other Basic Documents to which it is a party and
to carry out their respective terms; and the execution, delivery, and
performance of this Agreement and the other Basic Documents to which it is a
party have been duly authorized by CAC by all necessary corporate action.
(d) Valid Sale; Binding Obligations. This Agreement evidences a valid
sale, transfer, and assignment of the Contributed Property enforceable against
creditors of and purchasers from CAC; and this Agreement and the other Basic
Documents to which CAC is a party constitute legal, valid and binding
obligations of CAC enforceable in accordance with their terms, subject to the
effects of bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' or secured creditors' rights generally
and to general principles of equity.
(e) No Violation. The consummation of the transactions contemplated by
this Agreement and the other Basic Documents to which it is a party and the
fulfillment of the terms hereof and thereof do 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) a default under, the Articles of Incorporation or
by-laws of CAC, or any indenture, agreement, or other instrument to which CAC is
a party or by which it is or may be bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement (other than this Agreement), or other instrument; or
violate any law or, to the best of CAC's knowledge, any order, rule, or
regulation applicable to CAC of any court or of any federal or state regulatory
body, administrative agency, or other governmental instrumentality having
jurisdiction over CAC or its properties.
(f) No Proceedings. There are no proceedings or investigations pending, or
to CAC's best knowledge threatened, before any court, regulatory body,
administrative agency, or other governmental instrumentality having jurisdiction
over CAC or its properties: A) asserting the invalidity of this Agreement or any
other Basic Document to which it is a party; B) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or any
other Basic Document to which it is a party; or C) seeking any determination or
ruling that might materially and adversely affect the performance by CAC of its
obligations under, or the validity or enforceability of, this Agreement, or any
other Basic Document to which it is a party.
(g) 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 Trust Collateral
5
Agent in accordance with this Agreement in jurisdictions where all action
required by the terms of this Agreement has been taken and completed.
(h) Eligibility of Dealer Agreements. Each Dealer Agreement classified as
an "Eligible Dealer Agreement" (or included in any aggregation of balances of
"Eligible Dealer Agreements") by CAC in any document or report delivered
hereunder satisfied the requirements contained in the definition of Eligible
Dealer Agreement on the date so delivered.
(i) Eligibility of Dealer Loans. Each Dealer Loan classified as an
"Eligible Loan" (or included in any aggregation of balances of "Eligible Loans")
by CAC in any document or report delivered hereunder satisfied the requirements
contained in the definition of Eligible Loan on the date so delivered. Each
Dealer Loan represents, or will represent, a non-recourse obligation of a Dealer
with respect to advances related to a pool of Contracts, and CAC has, and will
maintain, a policy that each such pool will have Contracts allocated to it (as
generated by relevant Dealer) until the number of Contracts in such pool reaches
the Applicable Pool Cap. The Applicable Pool Cap for each Dealer Loan will equal
or exceed 75.
(j) Eligibility of Contracts. Each Contract classified as an "Eligible
Contract" (or included in any aggregation of balances of "Eligible Contracts")
by CAC in any document or report delivered hereunder satisfied the requirements
contained in the definition of Eligible Contract on the date so delivered.
(k) Accuracy of Information. All information with respect to the Dealer
Loans and other Contributed Property provided to Funding hereunder by CAC was
true and correct in all material respects as of the date such information was
provided to Funding and did not omit to state any material facts necessary to
make the statements contained therein not misleading.
(l) No Liens. Each Dealer Loan and the other Contributed Property has been
pledged to Funding free and clear of any Lien of any Person, and in compliance,
in all material respects, with all Applicable Laws.
(m) No Consents. With respect to each Dealer Loan and the 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 pledge of such
Contributed Property to Funding have been duly obtained, effected or given and
are in full force and effect.
(n) Exhibit A. Exhibit A to this Agreement and each supplement or addendum
thereto is and will be an accurate and complete listing of all Dealer Loans and
the related Dealer Agreements and Contracts in all material respects on the date
each such Dealer Loan was sold to Funding hereunder, and the information
contained therein is and will be true and correct in all material respects as of
such date.
(o) 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, Dealer Loans or Contracts.
6
(p) Contribution Agreement. This Contribution Agreement is the only
agreement pursuant to which Funding purchases Dealer Loans from CAC.
(q) Security Interest. CAC has granted a security interest (as defined in
the UCC as enacted in the State of Michigan) to Funding in the Contributed
Property, which is enforceable in accordance with Applicable Law upon the
Closing Date. Upon the filing of UCC-1 financing statements naming Funding as
secured party and CAC as debtor, Funding shall have a first priority perfected
security interest in the Contributed Property. All filings (including, without
limitation, UCC filings) as are necessary in any jurisdiction to perfect the
interest of Funding have been made.
(r) Credit Score. The weighted average (based on Contract principal
balance) of the Final Scores of each "Contract Group" is 630 or greater. A
"Contract Group" is a group of Contracts related to a group of Dealer Loans that
becomes Contributed Property on the Closing Date or on a particular Distribution
Date during the Revolving Period.
(s) Use of Proceeds. No proceeds of any sale of Contributed Property will
be used (i) for a purpose that violates, or would be inconsistent with,
Regulation T, U or X promulgated by the Board of Governors of the Federal
Reserve System from time to time or (ii) to acquire any security in any
transaction which is subject to Section 12, 13 or 14 of the Securities Exchange
Act of 1934, as amended.
(t) Taxes. CAC has filed on or before their respective due dates, all tax
returns which are required to be filed in any jurisdiction or has obtained
extensions for filing such tax returns and has paid all taxes, assessments, fees
and other governmental charges against CAC or any of its properties, income or
franchises, to the extent that such taxes have become due, other than any taxes
or assessments, the validity of which are being contested in good faith by
appropriate proceedings and with respect to which adequate provision has been
made on the books of the Seller as may be required by GAAP. To the best
knowledge of CAC, all such tax returns were true and correct in all material
respects and CAC knows of any proposed material additional tax assessment
against it nor any basis therefor. Any taxes, assessments, fees and other
governmental charges payable by CAC in connection with the execution and
delivery of the Basic Documents and the issuance of the Class A Notes have been
paid or shall have been paid at or prior to Closing Date.
(u) Consolidated Returns. CAC, the Seller and the Issuer are members of an
affiliated group within the meaning of Section 1504 of the Internal Revenue Code
which will file a consolidated federal income tax return at all times until the
termination of the Basic Documents.
(v) ERISA. CAC is in compliance in all material respects with the Employee
Retirement Income Security Act of 1974, as amended.
(w) Compliance with Laws. CAC has complied in all material respects with
all applicable, laws, rules, regulations, orders, writs, judgments, injunctions,
decrees or awards to which it may be subject.
7
(x) Material Adverse Change. Since December 31, 2003, no event has
occurred that would have a material adverse effect on (i) the financial
condition or operations of CAC, (ii) the ability of CAC to perform its
obligations under the Basic Documents, or (ii) the collectibility of the Dealer
Loans generally or any material portion of the Dealer Loans.
(y) Solvency; Fraudulent Conveyance. CAC is solvent, is able to pay its
debts as they become due and will not be rendered insolvent by the transactions
contemplated by the Basic Documents and, after giving effect thereto, will not
be left with an unreasonably small amount of capital with which to engage in its
business. CAC does not intend to incur, or believes that it has incurred, debts
beyond its ability to pay such debts as they mature. CAC does not contemplate
the commencement of insolvency, bankruptcy, liquidation or consolidation
proceedings or the appointment of a receiver, liquidator, conservator, trustee
or similar official or any of its assets. The amount of consideration being
received by CAC upon the sale or other absolute transfer of the Contributed
Property to Funding constitutes reasonably equivalent value and fair
consideration for the Contributed Property. CAC is not transfering the
Contributed Property to Funding with any intent to hinder, deal or defraud any
of its creditors.
(z) Voidability. The transfers of Contributed Property made hereunder were
not made for or on account of an antecedent debt. No transfer by CAC of any
Contributed Property hereunder is or may be voidable under any section of the
Bankruptcy Code.
(aa) Investment Company. CAC is not an investment company which is
required to register under the Investment Company Act of 1940, as amended.
(bb) Perfection. The perfection representations, warranties and covenants
made by CAC and set forth on Exhibit B hereto shall be a part of this Agreement
for all purposes.
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 Dealer 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 (3) 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 Dealer Loans which have been conveyed 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 hereby covenants and agrees as
follows:
(a) Compliance with Law. CAC will comply in all material respects with all
Applicable Laws.
(b) Preservation of Existence. CAC will preserve and maintain its
existence, rights, franchises and privileges in the jurisdiction of its
formation, and qualify and remain qualified in
8
good standing as a foreign corporation in each jurisdiction where the failure to
preserve and maintain such existence, rights, franchises, privileges and
qualification has had, or could reasonably be expected to have, a material
adverse effect on the Contributed Property.
(c) Obligations and Compliance with Dealer Loans and Dealer Agreements.
CAC will duly fulfill and comply with all obligations on the part of CAC to be
fulfilled or complied with under or in connection with each Dealer Loan and each
Dealer Agreement and will do nothing to impair the rights of Funding in, to and
under the Contributed Property.
(d) Keeping of Records and Books of Account. CAC will maintain and
implement administrative and operating procedures (including without limitation,
an ability to recreate records evidencing the Dealer Loans and the Contracts 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 Dealer Loans, or it will cause the Servicer
to do so.
(e) Preservation of Security Interest. CAC will file such financing and
continuation statements and any other documents that may be required by any law
or regulation of any Governmental Authority to preserve and perfect the security
interest of Funding in, to and under the Contributed Property. CAC will maintain
possession of the Dealer Agreements and the Contract Files and Records, as
custodian for the Trust and the Trust Collateral Agent, as set forth in Section
3.03(a) of the Sale and Servicing Agreement. CAC, as Servicer, will comply with
its covenants under Section 4.06(a)(v) of the Sale and Servicing Agreement.
(f) Collection Guidelines. As long as it is the Servicer, CAC will (A)
comply in all material respects with the Collection Guidelines in regard to each
Dealer Loan and Contract, and (B) furnish to Funding prompt notice of any
material change in the Collection Guidelines and deliver a copy of such changes
to Funding quarterly.
(g) Separateness. CAC will take such actions that are required on its part
to be performed to cause (i) Funding to be in compliance, at all relevant times,
with Sections 6.01(xviii) and 6.04 of the Sale and Servicing Agreement, and (ii)
all factual assumptions set forth in the opinion letters delivered by Xxxxxx
Xxxxxxx PLLC with respect to certain bankruptcy matters under the Sale and
Servicing Agreement to remain true at all relevant times.
SECTION 5.2. Negative Covenants. During the term of this Agreement, unless
Funding shall otherwise consent in writing:
(a) Change of Name or Location of Records. CAC shall not (A) change its
name or its state of organization, move the location of its principal place of
business and chief executive office, and the offices where it keeps records
concerning the Dealer Loans from the location referred to in Section 3.03(c) of
the Sale and Servicing Agreement, or (B) move the Records from the location
thereof on the Closing Date, unless CAC or the Servicer has given at least
thirty (30) days' written notice to Funding and has taken all actions required
under the UCC of each relevant jurisdiction in order to continue the first
priority perfected security interest of Funding in the Contributed Property.
9
(b) Change in Payment Instructions to Obligors. CAC will not make any
change in its instructions to Obligors regarding payments to be made directly or
indirectly, unless such change is permitted under the Sale and Servicing
Agreement and Funding has consented to such change and has received duly
executed documentation related thereto.
(c) No Instruments. CAC shall take no action to cause any Dealer Loan to
be evidenced by any instrument (as defined in the UCC as in effect in the
relevant jurisdictions), except for instruments obtained with respect to
defaulted Dealer Loans that are in the possession of the Servicer in its
capacity as custodian for the Trust and the Trust Collateral Agent.
(d) No Liens. CAC shall not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist any Lien (other than
in favor of the Trust Collateral Agent or the Trust as specifically contemplated
herein) on, the Contributed Property. CAC shall defend the right, title and
interest of Funding in, to and under the Contributed Property against all claims
of third parties claiming through or under CAC.
(e) Credit Guidelines and Collection Guidelines. CAC will not amend,
modify, restate or replace, in whole or in part, the Credit Guidelines or
Collection Guidelines, which change would impair the collectibility of any
Dealer Loan or Contract or otherwise adversely affect the interests or the
remedies of Funding under this Agreement or any other Basic Document, unless
such change is permitted under the Sale and Servicing Agreement and unless CAC
obtains the prior written consent of Funding.
(f) Release of Contracts. Except for a release to an insurer in exchange
for insurance proceeds paid by such insurer resulting from a claim for the total
insured value of a vehicle, neither CAC or CAC as the Servicer shall release a
Financed Vehicle securing a Contract from the security interest granted by such
Contract in whole or in part except (i) in the event of payment in full by or on
behalf of the Obligor thereunder, (ii) settlement consistent with the Collection
Guidelines, or (iii) repossession, nor shall CAC impair the rights of Funding in
the Contracts, except as may be required by applicable law.
(g) Change in Structure. CAC shall not change its jurisdiction of
organization or merge or consolidate with and into any other entity or otherwise
change its name, corporate structure or its location (within the meaning of the
UCC) unless (i) Funding shall have received at least thirty (30) days advance
written notice of such change and CAC has taken all action necessary or
appropriate to perfect or maintain the perfection of Funding's interest in the
Contributed Property (including, without limitation, the filing of all financing
statements and the taking of such other action as Funding or its assigns may
request in connection with such change); (ii) in the event of a merger or
consolidation, (x) if CAC is then Servicer, such merger or consolidation
satisfies all conditions in Section 7.03 of the Sale and Servicing Agreement
and, (y) if CAC is not the surviving entity, the surviving entity shall have
executed an agreement of assumption acceptable to Funding, the Class A Insurer
and the Backup Insurer to perform every obligation of CAC under this Agreement
and the other Basic Documents to which CAC is a party, and (iv) CAC shall have
delivered to Funding, the Indenture Trustee and the Controlling Party, an
opinion of counsel confirming that the security interest created hereunder
remains perfected and of first priority, subject only to such limitations and
qualifications as are contained
10
in the opinions of Xxxxxx Xxxxxxx PLLC delivered on the Closing Date or are
otherwise consented to by the addressees of such opinion.
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 respective Affiliates and officers, directors,
employees and agents thereof (collectively, the "Indemnified Parties"),
forthwith on demand, from and against any and all damages, losses, 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
arising out of or as a result of this Agreement or in respect of any Dealer 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 arise as a result of
non-payment of Dealer Loans due to credit problems of Dealers or Obligors. 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 Dealer 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 Dealer
Loan, Dealer Agreement, any Contract, or the nonconformity of any Dealer 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 Contributed
Property, free and clear of any Lien;
(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 Contributed
Property, whether at the time of the Closing or at any subsequent time;
(vi) any dispute, claim, offset or defense (other than the discharge
in bankruptcy of the Dealer or Obligor) of the relevant Dealer or Obligor to the
payment of any Dealer Loan or Contract (including, without limitation, a defense
based on such Dealer Loan or Contract not
11
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 Dealer Loans;
(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 Contributed Property;
(vii) the commingling of Collections of the Dealer Loans and
Contracts at any time with other funds;
(viii) any investigation, litigation or proceeding related to this
Agreement or in respect of any Dealer Loan or Contract;
(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 Contributed Property;
(x) the failure of CAC, in its individual capacity, or any of its
agents or representatives to remit to the Servicer or the Trust Collateral
Agent, Collections remitted to CAC, in its individual capacity, or any such
agent or representative; and
(xi) the failure of a Contract File to contain the relevant original
Contract.
Notwithstanding the foregoing, CAC shall have no indemnification
obligation hereunder with respect to any Dealer Loan or Contract in respect of
which CAC shall have paid the Purchase Amount under the Sale and Servicing
Agreement.
(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
PAYMENT OBLIGATION
SECTION 6.1. Mandatory Payments. CAC, in its individual capacity or as
Servicer, as the case may be, shall perform its obligations under Sections 3.02
and 4.07 of the Sale and Servicing Agreement.
SECTION 6.2. No Recourse. Except as otherwise provided in this Article VI,
the purchase and sale of the Dealer Loans under this Agreement shall be without
recourse to CAC or the Servicer.
12
ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.1. Conditions to Funding's Obligations Regarding Dealer 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 Dealer Loans contributed on the Closing Date,
all information concerning such Dealer 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, or shall have delivered
for filing, the financing statement(s) required to be filed pursuant to Section
2.1(e); and
(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.
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 Trust
Collateral Agent.
SECTION 8.2. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan.
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
13
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:
Credit Acceptance Funding LLC 2004-1
Silver Triangle Building
00000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000 (ext. 217)
Telecopy: (000) 000-0000
with a copy to:
Wachovia Capital Markets, LLC
Asset Backed Finance
NC 0610
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
And
Radian Asset Assurance, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Risk Officer and Chief Legal Officer
And
XL Capital Assurance Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Surveillance
(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. Xxxxxxx
14
Telephone: (000) 000-0000 (ext. 217)
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.
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 Sale
and Servicing Agreement to the Trust for the benefit of the Trust, the Class A
Insurer, the Backup Insurer, the Indenture Trustee, the Trust Collateral Agent
and the Class A Noteholders. Funding hereby notifies CAC (and CAC hereby
acknowledges) that Funding, pursuant to the Sale and Servicing Agreement, has
assigned its rights hereunder to the Trust. All rights of Funding hereunder may
be exercised by the Trust 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 Dealer 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 Trust Collateral 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 Trust and the Trust Collateral
Agent on behalf of the Trust, the Class A Noteholders, the Class A Insurer and
the Backup Insurer are intended by the parties hereto to be third-party
beneficiaries of this Agreement.
15
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.
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 exhibits referred to herein shall constitute a
part of this Agreement and are incorporated into this Agreement for all
purposes.
SECTION 8.13 Covenant Not to File a Bankruptcy Petition. CAC agrees that
until one year and one day after such time as the Class A Notes issued under the
Indenture are paid in full, it shall not (i) institute the filing of a
bankruptcy petition against Funding or the Trust based upon any claim in its
favor arising hereunder or under the Basic Documents; (ii) file a petition or
consent to a petition seeking relief on behalf of Funding or the Trust under the
Bankruptcy Law; or (iii) consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or similar official) of Funding or the Trust or
any portion of the property of Funding or the Trust.
[remainder of page intentionally left blank]
16
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: CREDIT ACCEPTANCE FUNDING LLC 2004-1
By: _______________________________
Name:
Title:
Credit Acceptance Funding LLC 2004-1
Silver Triangle Building
00000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000 (ext. 217)
CAC: CREDIT ACCEPTANCE CORPORATION
By: _______________________________
Name:
Title:
Credit Acceptance Corporation
Silver Triangle Building
00000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
Facsimile No. (000) 000-0000
Confirmation No.: (000) 000-0000 (ext. 217)
EXHIBIT B
to
Contribution Agreement
PERFECTION REPRESENTATIONS, WARRANTIES AND COVENANTS
In addition to the representations, warranties and covenants contained in
the Agreement, CAC hereby represents, warrants, and covenants to Funding as
follows on the Closing Date and on each Distribution Date on which Funding
purchases Dealer Loans, in each case only with respect to the Contributed
Property conveyed to Funding on such Closing Date or the relevant Distribution
Date:
GENERAL
1. This Agreement creates a valid and continuing security interest (as defined
in UCC Section 9-102) in the Contributed Property in favor of Funding, which
security interest is prior to all other Liens, and is enforceable as such as
against creditors of and purchasers from and assignees of CAC.
2. Each Contract constitutes "tangible chattel paper" or a "payment intangible",
within the meaning of UCC Section 9-102. Each Dealer Loan constitutes a "payment
intangible" or a "general intangible" within the meaning of UCC Section 9-102.
3. Each Dealer Agreement constitutes either a "general intangible" or "tangible
chattel paper" within the meaning of UCC Section 9-102.
4. CAC has taken or will take all steps necessary actions with respect to the
Dealer Loans to perfect Funding's security interest in the Dealer Loans and in
the property securing the Dealer Loans.
CREATION
1. CAC owns and has good and marketable title to the Initial Contributed
Property or Subsequent Contributed Property, as applicable, free and clear of
any Lien, claim or encumbrance of any Person, excepting only (i) liens that will
be terminated or amended on the Closing Date or each Distribution Date during
the Revolving Period, as applicable, to reflect a release of the Intial
Contributed Property or Subsequent Contributed Property, as applicable, and (ii)
liens for taxes, assessments or similar governmental charges or levies incurred
in the ordinary course of business that are not yet due and payable or as to
which any applicable grace period shall not have expired, or that are being
contested in good faith by proper proceedings and for which adequate reserves
have been established, but only so long as foreclosure with respect to such a
lien is not imminent and the use and value of the property to which the Lien
attaches is not impaired during the pendency of such proceeding.
PERFECTION
1. CAC has caused or will have caused, within ten days after the effective date
of the Indenture, the filing of all appropriate financing statements in the
proper filing office in the appropriate jurisdictions under applicable law in
order to perfect the contribution and sale of the Contributed Property from the
Originator to Funding, the transfer and sale of the Seller Property from the
Seller to the Issuer, and the security interest in the Collateral granted to the
Indenture Trustee under the Indenture.
2. With respect to Seller Property that constitutes tangible chattel paper, such
tangible chattel paper is in the possession of the Servicer, in its capacity as
custodian for the Trust and the Trust Collateral Agent, and the Trust Collateral
Agent has received a written acknowledgment from the Servicer, in its capacity
as custodian, that it is holding such tangible chattel paper solely on its
behalf and for the benefit of the Trust Collateral Agent, the Seller, the Trust
and the relevant Dealer(s). All financing statements filed or to be filed
against CAC in favor of Funding in connection with this Contribution Agreement
describing the Contributed Property contain a statement to the following effect:
"A purchase of or security interest in any collateral described in this
financing statement will violate the rights of the Secured Party."
PRIORITY
1. None of CAC, the Servicer nor Funding has authorized the filing of, or is
aware of any financing statements against either Funding, CAC or the Trust that
includes a description of the Contributed Property and proceeds related thereto
other than any financing statement: (i) relating to the sale of Contributed
Property by the Originator to the Seller under the Contribution Agreement, (ii)
relating to the security interest granted to the Trust under the Sale and
Servicing Agreement, (iii) relating to the security interest granted to the
Indenture Trustee under the Indenture; or (iv) that will be terminated or
amended to reflect a release of the Contributed Property. Other than the
security interest granted to Funding pursuant to this Contribution Agreement,
CAC has not pledged, assigned, sold, granted a security interest in, or
otherwise conveyed any of the Contributed Property.
2. Neither the Seller, the Originator nor the Trust is aware of any judgment,
ERISA or tax lien filings against either the Seller, the Originator or the
Trust.
3. None of the tangible chattel paper that constitutes or evidences the
Contracts or the Dealer Agreements has any marks or notations indicating that it
has been pledged, assigned or otherwise conveyed to any Person other than CAC,
the Servicer, Funding, the Trust, a collection agent or the Trust Collateral
Agent.
SURVIVAL OF PERFECTION REPRESENTATIONS
1. Notwithstanding any other provision of this Agreement, the Sale and Servicing
Agreement, the Indenture or any other Basic Document, the perfection
representations, warranties and covenants contained in this Exhibit shall be
continuing, and remain in full force and effect (notwithstanding any replacement
of the Servicer or termination of Servicer's rights to act as such) until such
time as all obligations under the Sale and Servicing Agreement, Contribution
Agreement and the Indenture have been finally and fully paid and performed.
NO WAIVER
1. The parties hereto: (i) shall not, without obtaining a confirmation of the
then-current rating of the Class A Notes (without giving effect to the Class A
Note Insurance Policy or the Backup Insurance Policy), waive any of the
perfection representations, warranties or covenants; (ii) shall provide the
Rating Agencies with prompt written notice of any breach of the perfection
representations, warranties or covenants, and shall not, without obtaining a
confirmation of the then-current rating of the Class A Notes (without giving
effect to the Class A Note Insurance Policy or the Backup Insurance Policy) as
determined after any adjustment or withdrawal of the ratings following notice of
such breach) waive a breach of any of the perfection representations, warranties
or covenants.
