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EXHIBIT 4(f)(91)
EXECUTION VERSION
CONTRIBUTION AGREEMENT
This
CONTRIBUTION AGREEMENT, dated as of April 12, 2007 (the
"Agreement"),
is made between CREDIT ACCEPTANCE CORPORATION, a Michigan
corporation ("CAC")
and CREDIT ACCEPTANCE FUNDING LLC 2007-1, 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 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
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
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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 2007-1, 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.
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(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.
(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
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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 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
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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.
(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
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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.
(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
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.
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(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
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 pro