INTERCREDITOR AGREEMENT
This Intercreditor Agreement (this “Agreement”), dated May 23, 2008, is among Credit
Acceptance Corporation (“CAC”), CAC Warehouse Funding Corporation II (“Warehouse
Funding”), Credit Acceptance Funding LLC 2006-2 (“Funding 2006-2”), Credit Acceptance
Auto Dealer Loan Trust 2006-2 (the “2006-2 Trust”), Credit Acceptance Funding LLC 2007-1
(“Funding 2007-1”), Credit Acceptance Auto Dealer Loan Trust 2007-1 (the “2007-1
Trust”), Credit Acceptance Funding LLC 2007-2 (“Funding 2007-2”), Credit Acceptance
Auto Dealer Loan Trust 2007-2 (the “2007-2 Trust”), Credit Acceptance Funding LLC 2008-1
(“Funding 2008-1”), Credit Acceptance Auto Loan Trust 2008-1 (the “2008-1 Trust”),
Wachovia Capital Markets, LLC, as deal agent and collateral agent under the Wachovia Securitization
Documents (“Wachovia”), Deutsche Bank Trust Company Americas, as indenture trustee and
trust collateral agent under the 2006-2 Securitization Documents (in either such capacity, the
“2006-2 Trustee”, as the context requires), Xxxxx Fargo Bank, National Association, as
indenture trustee and trust collateral agent under the 2007-1 Securitization Documents (in either
such capacity, the “2007-1 Trustee”, as the context requires), Xxxxx Fargo Bank, National
Association, as indenture trustee and trust collateral agent under the 2007-2 Securitization
Documents (in either such capacity, the “2007-2 Trustee”, as the context requires), Xxxxx
Fargo Bank, National Association, as indenture trustee and trust collateral agent under the 2008-1
Securitization Documents (in either such capacity, the “2008-1 Trustee”, as the context
requires), Comerica Bank, as agent under the CAC Credit Facility Documents (“Comerica”),
CAC Warehouse Funding III, LLC (“Warehouse Funding III”), Fifth Third Bank, as agent under the
Fifth Third Securities Documents (“Fifth Third’) and each other creditor who becomes a party
hereto after the date hereof.
Capitalized terms used but not otherwise defined herein shall have the meaning set forth in
Appendix A attached hereto and made part of this Agreement.
Background
A. Pursuant to the terms of the various Dealer Agreements between CAC and the Dealers,
Collections from a particular Pool are first used to pay certain collection costs, CAC’s servicing
fee and to pay back the Pool’s Advance balance. After the Advance balance under such Pool has been
reduced to zero, the Dealer to whom the Pool relates has a contractual right under the related
Dealer Agreement to receive a portion of any further Collections with respect to the Pool (such
portion of further Collections otherwise payable to the Dealer is referred to herein as
“Back-end Dealer Payments”), subject to CAC’s right of offset as described in paragraph I
below.
B. CAC has granted a security interest in CAC’s rights with respect to its Pools (to the
extent not released) and related assets generally under the CAC Credit Facility Documents to
Comerica, as collateral agent for the banks which are parties thereto.
C. CAC, Wachovia and certain other parties entered into a transaction as set forth
in the Wachovia Securitization Documents (the “Wachovia Securitization”) pursuant to which
the security interest with respect to certain specifically identified Pools, Purchased Loans and
related assets was (and during the revolving period under the Wachovia Securitization Documents
will be) released by Comerica, CAC contributed (and will contribute) such Pools, Purchased Loans
1
and related assets to its wholly-owned subsidiary, Warehouse Funding, and Warehouse Funding
granted Wachovia, in its capacity as collateral agent, a security interest in Warehouse Funding’s
rights to such Pools, Purchased Loans and related assets (such Pools, Purchased Loans and related
assets are referred to herein as the “Wachovia Loans”).
D. CAC and the 2006-2 Trustee entered into a transaction as set forth in the 2006-2
Securitization Documents (the “2006-2 Securitization”) pursuant to which the security
interest with respect to certain specifically identified Pools and related assets was (and during
the revolving period under the 2006-2 Securitization Documents will be) released by Comerica, CAC
sold and contributed (and will be selling and contributing) such Pools and related assets to its
wholly-owned subsidiary, Funding 2006-2, which subsequently sold (and will sell) such Pools and
related assets to the 2006-2 Trust, a trust the depositor of which is Funding 2006-2, and the
2006-2 Trust granted the 2006-2 Trustee a security interest in its right, title and interest in and
to such Pools and related assets (such Pools and related assets are referred to herein as the
“2006-2 Pools”).
E. CAC and the 2007-1 Trustee entered into a transaction as set forth in the 2007-1
Securitization Documents (the “2007-1 Securitization”) pursuant to which the security
interest with respect to certain specifically identified Pools and related assets was (and during
the revolving period under the 2007-1 Securitization Documents will be) released by Comerica, CAC
sold and contributed (and will be selling and contributing) such Pools and related assets to its
wholly-owned subsidiary, Funding 2007-1, which subsequently sold (and will sell) such Pools and
related assets to the 2007-1 Trust, a trust the depositor of which is Funding 2007-1, and the
2007-1 Trust granted the 2007-1 Trustee a security interest in its right, title and interest in and
to such Pools and related assets (such Pools and related assets are referred to herein as the
“2007-1 Pools”).
F. CAC and the 2007-2 Trustee entered into a transaction as set forth in the 2007-2
Securitization Documents (the “2007-2 Securitization”) pursuant to which the security
interest with respect to certain specifically identified Pools and related assets was (and during
the revolving period under the 2007-2 Securitization Documents will be) released by Comerica, CAC
sold and contributed such Pools and related assets to its wholly-owned subsidiary, Funding 2007-2,
which subsequently sold such Pools and related assets to the 2007-2 Trust, a trust the depositor of
which is Funding 2007-2, and the 2007-2 Trust granted the 2007-2 Trustee a security interest in its
right, title and interest in and to such Pools and related assets (such Pools and related assets
are referred to herein as the “2007-2 Pools”).
G. CAC and the 2008-1 Trustee entered into a transaction as set forth in the 2008-1
Securitization Documents (the “2008-1 Securitization”) pursuant to which the security
interest with respect to certain specifically identified Pools, Purchased Loans and related assets
has been (and during the revolving period under the 2008-1 Securitization Documents will be)
released by Comerica, CAC sold and contributed such Pools, Purchased Loans and related assets to
its wholly-owned subsidiary, Funding 2008-1, which subsequently sold such Pools, Purchased Loans
and related assets to the 2008-1 Trust, a trust the depositor of which is Funding 2008-1, and the
2008-1 Trust granted the 2008-1 Trustee a security interest in its right, title and interest in and
to such Pools and related assets (such Pools, Purchased Loans and related assets are referred to
herein as the “2008-1 Loans”).
2
H. CAC, Fifth Third and certain other parties are entering into a transaction as set forth in
the Fifth Third Bank Securitization Documents (the “Fifth Third Securitization”) pursuant
to which the security interest with respect to certain specifically identified Pools, Purchased
Loans and related assets will be (and during the revolving period under the Fifth Third
Securitization Documents will be) released by Comerica, CAC is selling and contributing (and will
contribute) such Pools, Purchased Loans and related assets to its wholly-owned subsidiary,
Warehouse Funding III, and Warehouse Funding III is granting Fifth Third, in its capacity as
collateral agent, a security interest in Warehouse Funding III’s rights to such Pools, Purchased
Loans and related assets (such Pools, Purchased Loans and related assets are referred to herein as
the “Fifth Third Loans”).
I. Comerica retains a security interest in Pools, Purchased Loans and related assets which (i)
have not been (and will not be) released, and a security interest encumbering such Pools, Purchased
Loans and related assets has not been (and will not be) granted to Wachovia pursuant to the
Wachovia Securitization, (ii) have not been (and will not be) released, and a security interest
encumbering such Pools, Purchased Loans and related assets has not been (and will not be) granted
to the 2006-2 Trustee, pursuant to the 2006-2 Securitization, (iii) have not been (and will not be)
released, and a security interest encumbering such Pools, Purchased Loans and related assets has
not been (and will not be) granted to the 2007-1 Trustee, pursuant to the 2007-1 Securitization,
(iv) have not been (and will not be) released, and a security interest encumbering such Pools,
Purchased Loans and related assets has not been (and will not be) granted to the 2007-2 Trustee,
pursuant to the 2007-2 Securitization, (v) have not been (and will not be) released, and a security
interest encumbering such Pools, Purchased Loans and related assets has not been (and will not be)
granted to the 2008-1 Trustee, pursuant to the 2008-1 Securitization, and (vi) are not being (and
will not be) released, and a security interest encumbering such Pools, Purchased Loans and related
assets is not being (and will not be) granted to Fifth Third Bank pursuant to the Fifth Third
Securitization (such unreleased Pools, Purchased Loans and related assets are referred to herein as
the “Comerica Loans”).
J. The Dealer Agreements permit CAC and its assignees, under certain circumstances, to set off
any Collections received with respect to any Pool of a Dealer against Advances under other Pools of
that Dealer or Purchased Loans from the Dealer and such set off rights are authorized and permitted
under the CAC Credit Facility Documents, the Wachovia Securitization Documents, the 2006-2
Securitization Documents, the 2007-1 Securitization Documents, the 2007-2 Securitization Documents,
the 2008-1 Securitization Documents and the Fifth Third Securitization Documents.
K. The parties hereto acknowledge that the rights of CAC or its assigns, pursuant to the
Dealer Agreements, to set off Collections received with respect to a Pool, or Purchased Loans
against the outstanding balance under any other Pool or Purchased Loans are not intended, and
should not be permitted, to be used to prejudice the collateral position of any of the parties
hereto, and therefore the exercise of such rights should be limited to Back-end Dealer Payments.
In consideration of the mutual premises and promises set forth herein and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties
agree as follows:
3
Agreements
1. Confirmation. Notwithstanding any statement or provision contained in the
Financing Documents or otherwise to the contrary, and irrespective of the time, order or method of
attachment or perfection of security interests granted pursuant to the Financing Documents,
respectively, or the time or order of filing or recording of any financing statements, or other
notices of security interests, liens or other interests granted pursuant to the Financing
Documents, respectively, or the giving of or failure to give notice of the acquisition or expected
acquisition of purchase money or other security interests, and irrespective of anything contained
in any filing or agreement to which any Creditor may now or hereafter be a party and irrespective
of the ordinary rules for determining priority under the Uniform Commercial Code or under any other
law governing the relative priorities of secured creditors, subject, however, to the terms and
conditions of this Agreement:
(a) Release by Wachovia. Wachovia, as the collateral agent, (i) releases any and all rights
in and to any Collections with respect to the Comerica Loans, the 2006-2 Pools, the 2007-1 Pools,
the 2007-2 Pools, the 2008-1 Loans, the Fifth Third Loans or in any Back-end Dealer Payments;
provided, that no release shall have been granted with respect to amounts collected under any Pools
or Purchased Loans which are Back-end Dealer Payments that have been set off by CAC or by Comerica
pursuant to the CAC Credit Facility Documents against amounts owing under the Wachovia Loans and
(ii) relinquishes all rights it has or may have to require CAC, individually or as servicer, any
successor servicer or Warehouse Funding to use Collections on its behalf contrary to clause (a)(i).
Wachovia, as collateral agent, agrees that the lien and security interest granted to it pursuant
to the Wachovia Securitization Documents does not and shall not attach to any Comerica Pools, the
2006-2 Pools, the 2007-1 Pools, the 2007-2 Pools, the 2008-1 Loans, the Fifth Third Loans (or
related Collections) or to any Back-end Dealer Payments and shall not assert any claim thereto.
(b) Release by the 2006-2 Trustee. The 2006-2 Trustee (i) releases any and all rights in and
to any Collections with respect to the Comerica Pools, the Wachovia Loans, the 2007-1 Pools, the
2007-2 Pools, the 2008-1 Loans, the Fifth Third Loans or in any Back-end Dealer Payments; provided,
that no release shall have been granted with respect to amounts collected under any Pools which are
Back-end Dealer Payments that have been set off by CAC or by Comerica pursuant to the CAC Credit
Facility Documents against amounts owing under the 2006-2 Pools and (ii) relinquishes all rights it
has or may have to require CAC, individually or as servicer, any successor servicer, Funding 2006-2
or the 2006-2 Trust to use Collections on its behalf contrary to clause (b)(i). The 2006-2 Trust
agrees that the lien and security interest granted to the 2006-2 Trustee pursuant to the 2006-2
Securitization Documents to which it is a party does not and shall not attach to any Comerica
Pools, the Wachovia Pools, the 2007-1 Pools, the 2007-2 Pools, the 2008-1 Loans or the Fifth Third
Loans (or related Collections) or to any Back-end Dealer Payments and shall not assert any claim
thereto.
(c) Release by the 2007-1 Trustee. The 2007-1 Trustee (i) releases any and all rights in and
to any Collections with respect to the Comerica Loans, the Wachovia Loans, the 2006-2 Pools, the
2007-2 Pools, the 2008-1 Loans, the Fifth Third Loans or in any Back-end Dealer Payments; provided,
that no release shall have been granted with respect to amounts collected under any Pools which are
Back-end Dealer Payments that have been set off by CAC or by
4
Comerica pursuant to the CAC Credit Facility Documents against amounts owing under the 2007-1
Pools and (ii) relinquishes all rights it has or may have to require CAC, individually or as
servicer, any successor servicer, Funding 2007-1 or the 2007-1 Trust to use Collections on its
behalf contrary to clause (c)(i). The 2007-1 Trust agrees that the lien and security interest
granted to the 2007-1 Trustee pursuant to the 2007-1 Securitization Documents to which it is a
party does not and shall not attach to any Comerica Loans, the Wachovia Loans, the 2006-2 Pools,
the 2007-2 Pools, the 2008-1 Loans or the Fifth Third Loans (or related Collections) or to any
Back-end Dealer Payments and shall not assert any claim thereto.
(d) Release by the 2007-2 Trustee. The 2007-2 Trustee (i) releases any and all rights in and
to any Collections with respect to the Comerica Loans, the Wachovia Loans, the 2006-2 Pools, the
2007-1 Pools, the 2008-1 Loans, the Fifth Third Loans or in any Back-end Dealer Payments; provided,
that no release shall have been granted with respect to amounts collected under any Pools or
Purchased Loans which are Back-end Dealer Payments that have been set off by CAC or by Comerica
pursuant to the CAC Credit Facility Documents against amounts owing under the 2007-2 Pools and (ii)
relinquishes all rights it has or may have to require CAC, individually or as servicer, any
successor servicer, Funding 2007-2 or the 2007-2 Trust to use Collections on its behalf contrary to
clause (d)(i). The 2007-2 Trust agrees that the lien and security interest granted to the 2007-2
Trustee pursuant to the 2007-2 Securitization Documents to which it is a party does not and shall
not attach to any Comerica Loans, the Wachovia Loans, the 2006-2 Pools, the 2007-1 Pools, the
2008-1 Loans or the Fifth Third Loans (or related Collections) or to any Back-end Dealer Payments
and shall not assert any claim thereto.
(e) Release by the 2008-1 Trustee. The 2008-1 Trustee (i) releases any and all rights in and
to any Collections with respect to the Comerica Loans, the Wachovia Loans, the 2006-2 Pools, the
2007-1 Pools, the 2007-2 Pools or in any Back-end Dealer Payments; provided, that no release shall
have been granted with respect to amounts collected under any Pools or Purchased Loans which are
Back-end Dealer Payments that have been set off by CAC or by Comerica pursuant to the CAC Credit
Facility Documents against amounts owing under the 2008-1 Loans and (ii) relinquishes all rights it
has or may have to require CAC, individually or as servicer, any successor servicer, Funding 2008-1
or the 2008-1 Trust to use Collections on its behalf contrary to clause (e)(i). The 2008-1 Trust
agrees that the lien and security interest granted to the 2008-1 Trustee pursuant to the 2008-1
Securitization Documents to which it is a party does not and shall not attach to any Comerica
Loans, the Wachovia Loans, the 2006-2 Pools, the 2007-1 Pools, or the 2007-2 Pools, or the Fifth
Third Loans (or related Collections) or to any Back-end Dealer Payments and shall not assert any
claim thereto
(f) Release by Comerica. Comerica (i) releases any and all rights in and to any Collections
with respect to the Wachovia Loans, the 2006-2 Pools, the 2007-1 Pools, the 2007-2 Pools, the
2008-1 Loans and the Fifth Third Loans, other than amounts collected under the Wachovia Loans, the
2006-2 Pools, the 2007-1 Pools, the 2007-2 Pools, the 2008-1 Loans or the Fifth Third Loans which
are owed to Dealers as Back-end Dealer Payments and which are subject to set off by CAC pursuant to
the related Dealer Agreement and which have not been set off by CAC or by Comerica pursuant to the
CAC Credit Facility Documents against amounts owing under the Wachovia Loans, the 2006-2 Pools, the
2007-1 Pools, the 2007-2 Pools, the 2008-1 Loans and the Fifth Third Loans and (ii) relinquishes
all rights it has or may have to require CAC, individually or as servicer, or any successor
servicer to use Collections on its
5
behalf contrary to clause (f)(i) above. Except for Back-end Dealer Payments to the extent
provided in clause (f)(i) above, Comerica agrees that the lien and security interest granted to it
pursuant to the CAC Credit Facility Documents does not and shall not attach to any Wachovia Loans,
the 2006-2 Pools, the 2007-1 Pools, the 2007-2 Pools, the 2008-1 Loans or the Fifth Third Loans and
shall not assert any claim against the Wachovia Loans, the 2006-2 Pools, the 2007-1 Pools, the
2007-2 Pools, the 2008-1 Loans, or the Fifth Third Loans or Collections related thereto.
(g) Release by Fifth Third. Fifth Third, as the collateral agent, (i) releases any and all
rights in and to any Collections with respect to the Comerica Loans, the 2006-2 Pools, the 2007-1
Pools, the 2007-2 Pools, the 2008-1 Loans, the Wachovia Loans or in any Back-end Dealer Payments;
provided, that no release shall have been granted with respect to amounts collected under any Pools
or Purchased Loans which are Back-end Dealer Payments that have been set off by CAC or by Comerica
pursuant to the CAC Credit Facility Documents against amounts owing under the Fifth Third Loans and
(ii) relinquishes all rights it has or may have to require CAC, individually or as servicer, any
successor servicer or Warehouse Funding III to use Collections on its behalf contrary to clause
(g)(i). Fifth Third, as collateral agent, agrees that the lien and security interest granted to it
pursuant to the Fifth Third Securitization Documents does not and shall not attach to any Comerica
Pools, the 2006-2 Pools, the 2007-1 Pools, the 2007-2 Pools, the 2008-1 Loans, the Wachovia Loans
(or related Collections) or to any Back-end Dealer Payments and shall not assert any claim thereto.
2. Covenant of the CAC Entities.
(a) Each of the CAC Entities covenants that it shall not use any right it may have under the
Dealer Agreements, Purchase Agreements, whether at the direction of Comerica, Wachovia, the 2006-2
Trustee, the 2007-1 Trustee, the 2007-2 Trustee, the 2008-1 Trustee or Fifth Third or otherwise, to
set off any Collections, other than amounts which are owed to Dealers as Back-end Dealer Payments,
from one Pool against amounts owed under another Pool encumbered in favor of another Creditor.
(b) Each of the CAC Entities covenants that it will require any other person or entity which
hereafter acquires any security interest in the Pools, Dealer Agreements, Purchased Loans and
related assets from a CAC Entity to become parties to this Agreement by executing an amendment or
acknowledgment, in form and substance reasonably satisfactory to CAC and the Creditors, by which
such persons or entities agree to be bound by the terms of this Agreement, and delivering such
signed amendment or acknowledgement hereof to each of the CAC Entities and the Creditors; provided,
however, that in the event the amount owed by the CAC Entities to any Creditor shall be reduced to
zero and such Creditor shall have no obligation or agreement to make any further advances to any
CAC Entity, such Creditor shall have no rights under this Section 2(b).
3. Turnover of Proceeds. The parties hereto agree that if, at any time, a Creditor (a
“Receiving Creditor”) (x) receives any payment, distribution, security or the proceeds
thereof to which another Creditor or Creditors shall, under the terms of Section 1 of this
Agreement, be entitled and (y) the Receiving Creditor either (A) had actual knowledge, at the time
of such receipt, that such payment, distribution or proceeds were wrongfully received by it or (B)
another
6
Creditor or Creditors shall have given written notice to the Receiving Creditor, prior to such
receipt, of its good faith belief that such payments, distributions or proceeds are being
misapplied, and such notice contains evidence reasonably satisfactory to the Receiving Creditor of
such misapplication, then such Receiving Creditor shall receive and hold the same separately and in
trust for the benefit of, and shall forthwith pay over and deliver the same to the relevant
Creditor. For purposes of the foregoing, (i) the actual knowledge of the 2006-2 Trustee shall be
determined based on the actual knowledge of the 2006-2 Trustee’s Responsible Officers (as defined
in the 0000-0 Xxxxxxxxx), (ii) the actual knowledge of the 2007-1 Trustee shall be determined based
on the actual knowledge of the 2007-1 Trustee’s Responsible Officers (as defined in the 0000-0
Xxxxxxxxx), (xxx) the actual knowledge of the 2007-2 Trustee shall be determined based on the
actual knowledge of the 2007-2 Trustee’s Responsible Officers (as determined in the 0000-0
Xxxxxxxxx) and (iv) the actual knowledge of the 2008-1 Trustee shall be determined based on the
actual knowledge of the 2008-1 Trustee’s Responsible Officers (as determined in the 0000-0
Xxxxxxxxx), it being understood that each such Responsible Officer shall have no duty to make any
inquiry regarding the propriety of any payment, distribution or proceeds.
4. Further Assurances. Each Creditor and CAC Entity agrees that it shall be bound by
all of the provisions of this Agreement. Without limiting any other provision hereof, each of the
Creditors and CAC Entities agrees that it will promptly execute such instruments, notices or other
documents as may be reasonably requested in writing by any party hereto for the purpose of
confirming the provisions of this Agreement or better effectuating the intent hereof. CAC will
reimburse each Creditor for all reasonable expenses incurred by such Creditor pursuant to this
Section 4.
5. Governing Law. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York without regard to its conflicts of laws rules.
Each of the parties hereto agrees to the non-exclusive jurisdiction of any federal court located
within the State of New York. Each of the parties hereto hereby waives any objection based on
forum non conveniens and any objection to venue of any action instituted hereunder in any of the
aforementioned courts, and consents to the granting of such legal or equitable relief as is deemed
appropriate by such court.
6. Counterparts. This Agreement may be executed in two or more counterparts including
facsimile transmission thereof (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one of the same instrument.
7. Severability. 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.
8. No Proceedings. Each of the parties hereto hereby agrees that it will not
institute against, or join any other person in instituting against Warehouse Funding, Warehouse
Funding III, Funding 2006-2, the 2006-2 Trust, Funding 2007-1, the 2007-1 Trust, Funding 2007-2,
the
7
2007-2 Trust, Funding 2008-1, or the 2008-1 Trust, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under any federal or state
bankruptcy or similar law so long as there shall not have elapsed one year and one day after there
are no remaining amounts owed to any of the Creditors by any of the CAC Entities pursuant to the
Wachovia Securitization Documents, the 2006-2 Securitization Documents, the 2007-1 Securitization
Documents, the 2007-2 Securitization Documents, the 2008-1 Securization Documents and the Fifth
Third Securitization Documents.
9. Amendment. This Agreement and the rights and obligations of the parties hereunder
may not be changed orally, but only by an instrument in writing executed by all of the parties
hereto; provided further that if the amount owed by the CAC Entities to any Creditor shall be
reduced to zero and such Creditor shall have no obligation or agreement to make any further
advances to any CAC Entity, this Agreement may be amended by the other parties hereto without the
consent of such Creditor.
10. No Third Party Beneficiaries. This Agreement is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
11. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and assigns, including any
successor or assignor to the 2006-2 Trustee under the 2006-2 Securitization Documents, any
successor or assignor to the 2007-1 Trustee under the 2007-1 Securitization Documents, any
successor or assignor to the 2007-2 Trustee under the 2007-2 Securitization Documents and any
successor or assign to the 2008-1 Trustee under the 2008-1 Securitization Documents.
12. Notices. Except as otherwise provided herein, all notices or demand hereunder to
the parties hereto shall be sufficient if made in writing, and either: (i) sent via certified or
registered mail (or the equivalent thereof), postage prepaid, (ii) delivered by messenger or
overnight courier, or (iii) transmitted via facsimile with a confirmation of the receipt thereof.
Notice shall be deemed to be given for purposes of this Agreement on the day of receipt. Unless
otherwise specified in a notice sent or delivered in accordance with the foregoing provisions of
this Section, notices, demands and other communications in writing shall be given to or made upon
the respective parties hereto: (a) in the case of any of the CAC Entities, to Silver Triangle
Building, 00000 Xxxx Xxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Xxxxxxx X. Xxxx,
telephone: (000) 000-0000 (ext. 4432), facsimile: (000) 000-0000; (b) in the case of Wachovia, to
One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention:
Conduit Administration, telephone: (000) 000-0000, facsimile: (000) 000-0000; (c) in the case of
the 2006-2 Trustee, to 00 Xxxx Xxxxxx, XX NYC 60-2606, Xxx Xxxx, XX 00000, Attention: Xxx Xxxx,
telephone: (000) 000-0000, facsimile: (000) 000-0000; (d) in the case of the 2007-1 Trustee, to MAC
#9311-161, Sixth and Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000 Attention: Corporate Trust
Services – Asset-Backed Administration, telephone: (000) 000-0000, facsimile: (000) 000-0000; (e)
in the case of the 2007-2 Trustee, to MAC #9311-161, Sixth and Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000 Attention: Corporate Trust Services – Asset-Backed Administration, telephone: (000)
000-0000, facsimile: (000) 000-0000; (f) in the case of Comerica, to One Detroit Center,
6th Floor, 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx Xxxxxxxxx,
telephone: (000) 000-0000, facsimile: (000) 000-0000; (g) in the case of the 2008-1 Trustee, to MAC
#9311-161, Sixth and
0
Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000 Attention: Corporate Trust Services –
Asset-Backed Administration, telephone: (000) 000-0000, facsimile: (000) 000-0000; and (h) in the
case of Fifth Third, to 00 Xxxxxxxx Xxxxxx Xxxxx, XX 000000, Xxxxxxxxxx, Xxxx 00000, Attention:
Xxxxx Xxxxxxx: telephone: (000) 000-0000, facsimile: (000) 000-0000.
13. Termination. Each party’s rights and obligations under this agreement shall
terminate at the time all amounts due to or owed by such party have been paid in full and such
party’s applicable Financing Documents have been terminated so long as each party whose rights and
obligations are subject to termination pursuant to this Section 13 (i) has no actual
knowledge or written notice of payments, distributions, security or the proceeds thereof to which
another Creditor or Creditors is entitled, as provided in Section 3 hereof, and (ii) has
not received a written notice from Comerica under the CAC Credit Facility Documents that there is a
“Default” or an “Event of Default” (as such terms are defined therein) at the time of the
termination of the applicable Financing Documents.
14. Integration; Termination of Prior Agreement. 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. Without limiting the generality of the
foregoing, this Agreement is intended to supersede the Prior Agreement in its entirety. Each of
Comerica, Wachovia, the 2006-2 Trustee, the 2007-1 Trustee, the 2007-2 Trustee, the 2008-1 Trustee
and the CAC Entities that were parties to the Prior Agreement further acknowledge and agree that,
as among themselves, this Agreement supersedes the Prior Agreement with respect to their rights as
against each other and that this Agreement shall govern their rights against each other and the
other parties hereto.
[signature page follows]
9
This Intercreditor Agreement has been executed and delivered by the parties hereto on May ___,
2008.
| Credit Acceptance Corporation |
||||
| /s/ Xxxxxxx X. Xxxx | ||||
| By: Xxxxxxx X. Xxxx | ||||
| Title: Treasurer | ||||
| CAC Warehouse Funding Corporation II |
||||
| /s/ Xxxxxxx X. Xxxx | ||||
| By: Xxxxxxx X. Xxxx | ||||
| Title: VP – Finance and Treasurer | ||||
| Credit Acceptance Funding LLC 0000-0 |
||||
| /x/ Xxxxxxx X. Xxxx | ||||
| By: Xxxxxxx X. Xxxx | ||||
| Title: Treasurer | ||||
| Credit Acceptance Funding LLC 0000-0 |
||||
| /x/ Xxxxxxx X. Xxxx | ||||
| By: Xxxxxxx X. Xxxx | ||||
| Title: Treasurer | ||||
| Credit Acceptance Funding LLC 0000-0 |
||||
| /x/ Xxxxxxx X. Xxxx | ||||
| By: Xxxxxxx X. Xxxx | ||||
| Title: Treasurer | ||||
[Signature Page to Intercreditor Agreement]
| Credit Acceptance Funding LLC 0000-0 |
||||
| /x/ Xxxxxxx X. Xxxx | ||||
| By: Xxxxxxx X. Xxxx | ||||
| Title: Treasurer | ||||
| CAC Warehouse Funding III, LLC |
||||
| /s/ Xxxxxxx X. Xxxx | ||||
| By: Xxxxxxx X. Xxxx | ||||
| Title: Treasurer | ||||
[Signature Page to Intercreditor Agreement]
| Wachovia Capital Markets, LLC, as Deal Agent |
||||
| /s/ Xxxx Xxxxxx | ||||
| By: Xxxx Xxxxxx | ||||
| Title: Managing Director | ||||
[Signature Page to Intercreditor Agreement]
| Comerica Bank, as Agent |
||||
| /s/ Xxxxxxx X. Xxxxxx | ||||
| By: Xxxxxxx X. Xxxxxx | ||||
| Title: Vice President | ||||
[Signature Page to Intercreditor Agreement]
| Credit Acceptance Auto Dealer | ||||
| Loan Trust 2006-2 | ||||
| By: U.S. Bank Trust National | ||||
| Association, not in its individual | ||||
| capacity but solely as Owner Trustee | ||||
| /s/ Xxxxxxx Xxxxxx
|
||||
| Title: Assistant Vice President | ||||
| Credit Acceptance Auto Dealer | ||||
| Loan Trust 2007-1 | ||||
| By: U.S. Bank Trust National | ||||
| Association, not in its individual | ||||
| capacity but solely as Owner Trustee | ||||
| /s/ Xxxxxxx Xxxxxx
|
||||
| Title: Assistant Vice President | ||||
| Credit Acceptance Auto Dealer | ||||
| Loan Trust 2007-2 | ||||
| By: U.S. Bank Trust National | ||||
| Association, not in its individual | ||||
| capacity but solely as Owner Trustee | ||||
| /s/ Xxxxxxx Xxxxxx
|
||||
| Title: Assistant Vice President |
[Signature Page to Intercreditor Agreement]
| Credit Acceptance Auto Loan Trust 2008-1 | ||||
| By: U.S. Bank Trust National | ||||
| Association, not in its individual | ||||
| capacity but solely as Owner Trustee | ||||
| /s/ Xxxxxxx Xxxxxx
|
||||
| Title: Assistant Vice President |
[Signature Page to Intercreditor Agreement]
| Deutsche Bank Trust Company Americas, not in its individual capacity but solely as Trustee |
||||
| /s/ Xxxx Xxxxxxxxx | ||||
| By: Xxxx Xxxxxxxxx | ||||
| Title: Asst. Vice President | ||||
| /s/ Xxxxxxx X.X. Xxxx | ||||
| By: Xxxxxxx H.Y. Voon | ||||
| Title: Vice President | ||||
[Signature Page to Intercreditor Agreement]
| Xxxxx Fargo Bank, National Association, not in its individual capacity but solely as Trustee |
||||
| /s/ Xxxxxxxx X. Xxxxxxxx | ||||
| By: Xxxxxxxx X. Xxxxxxxx | ||||
| Title: Vice President | ||||
[Signature Page to Intercreditor Agreement]
| Fifth Third Bank, as agent |
||||
| /s/ Xxxxx Xxxxxxx | ||||
| By: Xxxxx Xxxxxxx | ||||
| Title: Vice President | ||||
[Signature Page to Intercreditor Agreement]
APPENDIX A
DEFINITIONS
2006-2 Indenture: The Indenture dated as of November 21, 2006 between the 2006-2
Trustee and the 2006-2 Trust, as amended from time to time.
2006-2 Securitization Documents: The Sale and Servicing Agreement dated as of
November 21, 2006 among the 2006-2 Trust, Funding 2006-2, CAC, the 2006-2 Trustee, and Systems &
Services Technologies, Inc., the 2006-2 Indenture, and the documents related thereto, as amended
from time to time.
2007-1 Indenture: The Indenture dated as of April 12, 2007 between the 2007-1 Trustee
and the 2007-1 Trust, as amended from time to time.
2007-1 Securitization Documents: The Sale and Servicing Agreement dated as of April
12, 2007, among the 2007-1 Trust, Funding 2007-1, CAC, the 2007-1 Trustee, and Xxxxx Fargo Bank,
National Association, as the Backup Servicer, the 2007-1 Indenture, and the documents related
thereto, as amended from time to time.
2007-2 Indenture: The Indenture dated as of October 29, 2007 between the 2007-2
Trustee and the 2007-2 Trust, as amended from time to time.
2007-2 Securitization Documents: The Sale and Servicing Agreement dated as of October
29 2007, among the 2007-2 Trust, Funding 2007-2, CAC, the 2007-2 Trustee, and Xxxxx Fargo Bank,
National Association, as the Backup Servicer, the 2007-2 Indenture, and the documents related
thereto, as amended from time to time.
2008-1 Indenture: The Indenture dated as of April 18, 2008 between the 2008-1 Trustee
and the 2008-1 Trust, as amended from time to time.
2008-1 Securitization Documents: The Sale and Servicing Agreement dated as of
April 18, 2008, among the 2008-1 Trust, Funding 2008-1, CAC, the 2008-1 Trustee, and Xxxxx Fargo
Bank, National Association, as the Backup Servicer, the 2008-1 Indenture, and the documents related
thereto, as amended from time to time.
Advance: Amounts advanced to a Dealer upon the acceptance of a Contract by CAC
pursuant to a Dealer Agreement.
CAC Credit Facility Documents: The Fourth Amended and Restated Credit Acceptance
Corporation Credit Agreement, dated as of February 7, 2006, by and among the Banks signatory
thereto, Comerica and CAC, and the documents related thereto, as amended from time to time.
CAC Entities: Each of CAC, Warehouse Funding, Warehouse Funding III, Funding 2006-2,
the 2006-2 Trust, Funding 2007-1, the 2007-1 Trust, Funding 2007-2, the 2007-2 Trust, Funding
2008-1 and the 2008-1 Trust.
i
Collections: All money, amounts or other payments received or collected by CAC,
individually or as servicer, or any successor servicer or any other CAC Entity with respect to a
Contract in the form of cash, checks, wire transfers or other form of payment in accordance with
the Contracts or the Dealer Agreements, including, without limitation, with respect to a Pool
amounts collected under any other Pool which are Back-end Dealer Payments that have been set off by
CAC or by Comerica pursuant to the CAC Credit Facility Documents, against amounts owing under such
Pool.
Contract: A retail installment contract for the sale of used motor vehicles assigned
outright by Dealers to CAC or a subsidiary of CAC or written by Dealers in the name of CAC or a
subsidiary of CAC (and funded by CAC or such subsidiary) or assigned by Dealers to CAC or a
subsidiary of CAC, as nominee for the Dealer, for administration, servicing, and collection, in
each case pursuant to an applicable Dealer Agreement.
Creditor: Each of Comerica, Wachovia, the 2006-2 Trustee, the 2007-1 Trustee, the
2007-2 Trustee, the 2008-1 Trustee and Fifth Third.
Dealer: A person engaged in the business of the retail sale or lease of new or used
motor vehicles, including both businesses exclusively selling used motor vehicles and businesses
principally selling new motor vehicles, but having a used vehicle department, including any such
person which constitutes an affiliate of CAC.
Dealer Agreement: The sales and/or servicing agreements between CAC or its
subsidiaries and a participating Dealer which sets forth the terms and conditions under which CAC
or its subsidiaries (i) accepts, as nominee for such Dealer, the assignment of Contracts for
purposes of administration, servicing and collection and under which CAC or its subsidiary may make
Advances to such Dealers and (ii) accepts outright assignments of Contracts from Dealers or funds
Contracts originated by such Dealer in the name of CAC or any of its subsidiaries, in each case as
such agreements may be in effect from time to time.
Financing Documents: The CAC Credit Facility Documents, the Wachovia Securitization
Documents, the 2006-2 Securitization Documents, the 2007-1 Securitization Documents and the 2007-2
Securitization Documents, the 2008-1 Securitization Documents and the Fifth Third Securitization
Documents.
Fifth Third Securitization Documents: The Loan and Security Agreement dated as of May
9, 2008, among Warehouse Funding III, CAC, Fifth Third Bank, Relationship Funding Company, LLC and
Systems & Services Technologies, Inc. and the other parties from time to time party thereto, and
the documents related thereto, as amended from time to time.
Pool: A grouping on the books and records of CAC or any of its subsidiaries of
Advances or Contracts originated or to be originated with CAC or any of its subsidiaries by a
Dealer and bearing the same pool identification number assigned by CAC’s computer system.
Prior Agreement: The Intercreditor Agreement dated April 18, 2008 among CAC,
Warehouse Funding, Funding 2006-2, the 2006-2 Trust, Funding 2007-1, the 2007-1 Trust, Funding
2007-2, the 2007-2 Trust, the 2008-1 Trust, Funding 0000-0, Xxxxxxxx, The Bank of New York (as
successor-in-interest to the corporate trust business of JPMorgan Chase Bank,
ii
N.A.), the 2006-2 Trustee, the 2007-1 Trustee, the 2007-2 Trustee, the 2008-1 Trustee and
Comerica.
Purchased Loan: A motor vehicle retail installment loan relating to the sale of a
used automobile or light-duty truck originated by a Dealer, purchased by the Originator from such
Dealer and evidenced by a Purchased Loan Contract; provided, however, that the term “Purchased
Loan” shall, for purposes of this Agreement, include only those Purchased Loans identified from
time to time on Schedule V hereto, and/or any Funding Notice.
Wachovia Securitization Documents: The Second Amended and Restated Loan and Security
Agreement dated as of August 31, 2007, as amended, among Warehouse Funding, CAC, Wachovia Bank,
National Association, JPMorgan Chase Bank, N.A., Variable Funding Capital Company LLC, Park Avenue
Receivables Company LLC, Wachovia and Systems & Services Technologies, Inc. and the other parties
from time to time party thereto, and the documents related thereto, as amended from time to time.
iii
