Exhibit 4(f)(99)
CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT, dated as
of October 29, 2007 (the “ Agreement” ), is
made between CREDIT ACCEPTANCE CORPORATION, a Michigan corporation
(“ CAC ”) and CREDIT ACCEPTANCE FUNDING LLC
2007-2, 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:
“ 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 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; (v) all security interests purporting to
secure payment of such Dealer Loans; (vi) all security
interests purporting to secure payment of each Contract (including
a security interest in each Financed Vehicle); (vii) all
guarantees, insurance (including insurance insuring the priority or
perfection of any Contract) or other agreements or arrangements
securing the Contracts; and (viii) all Proceeds of the
foregoing. For the avoidance of doubt, the term “Related
Security” with respect to any Dealer Loan includes all rights
arising under such Dealer Loan which rights are attributable to
advances made under such Dealer Loan as the result of Contracts
being added to the identifiable group of
Contracts to which such Dealer Loan relates after the date such
Dealer Loan was sold, and not otherwise included in Subsequent
Contributed Property, including all such rights arising after the
last day of the last full Collection Period during the Revolving
Period.
“ Sale and Servicing
Agreement ” shall mean the Sale and Servicing Agreement
dated as of the Closing Date among CAC, Funding, Credit Acceptance
Auto Dealer Loan Trust 2007-2, as the Issuer, Wells Fargo Bank,
National Association, as the Trust Collateral Agent, Indenture
Trustee and Backup Servicer.
“ Subsequent Contributed
Property ” means, with respect to any Distribution Date,
(i) the Dealer Loans added to Exhibit A 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, contribute, 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 and
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.
(d) Each such contribution,
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.
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(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 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
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hereunder on or prior to said Distribution Date, and the related
Dealer Agreements and all Contracts securing all such Dealer
Loans.
(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 as of such Distribution Date. 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, 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.
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(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 Agent
in accordance with this Agreement in jurisdictions where all action
required by the terms of this Agreement has been taken and
completed.
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(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.
(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 transferred
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.
(p) Contribution
Agreement . This Contribution Agreement is the only agreement
pursuant to which Funding acquires 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
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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 665 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
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