EXHIBIT 4(f)(49)
INTERCREDITOR AGREEMENT
This Intercreditor Agreement (this "Agreement"), dated June 27, 2003,
is among Credit Acceptance Corporation ("CAC"), CAC Warehouse Funding Corp.,
Credit Acceptance Funding LLC 2003-1, Credit Acceptance Auto Dealer Loan Trust
2003-1 (the "2003-1 Trust"), Wachovia Securities, LLC (f/k/a Wachovia
Securities, Inc.), as agent under the Wachovia Securitization Documents (as
hereinafter defined) ("Wachovia"), JPMorgan Chase Bank, as trustee under the
2003-1 Securitization Documents (as hereinafter defined) (the "Trustee"),
Comerica Bank, as agent under the CAC Credit Facility Documents (as hereinafter
defined) ("Comerica"), and each other creditor who becomes a party hereto after
the date hereof.
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 F 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 and Wachovia have 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 and related assets was released by Comerica, CAC contributed
such Pools and related assets to its wholly-owned subsidiary, CAC Warehouse
Funding Corp., and CAC Warehouse Funding Corp. granted Wachovia a security
interest in CAC Warehouse Funding Corp.'s rights to such Pools and related
assets (such Pools and related assets are referred to herein as the "Wachovia
Pools").
D. CAC and the Trustee are entering into a transaction as set
forth in the 2003-1 Securitization Documents (the "2003-1 Securitization")
pursuant to which the security interest with respect to certain specifically
identified Pools and related assets is being released by Comerica, CAC is
contributing such Pools and related assets to its wholly-owned subsidiary,
Credit Acceptance Funding LLC 2003-1, who is subsequently selling such Pools and
related assets to the 2003-1 Trust, a trust the depositor of which is Credit
Acceptance Funding LLC 2003-1, and the 2003-1 Trust is granting the 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
"2003-1 Pools").
E. Comerica retains a security interest in Pools and related
assets which have not been released pursuant to the Wachovia Securitization, and
which security interest is not being
1.
released, and has not been granted to the Trustee, pursuant to the 2003-1
Securitization (such unreleased Pools and related assets are referred to herein
as the "Comerica Pools").
F. 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 and such set
off rights are authorized and permitted under the 2003-1 Securitization
Documents.
G. 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 against the outstanding balance under any other Pool 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:
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 (i) releases any and all rights
in and to any Collections with respect to the Comerica Pools or the 2003-1 Pools
or in any Back-end Dealer Payments; provided, that no release shall have been
granted with respect to amounts collected under any Pools which 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 Pools, and (ii)
relinquishes all rights it has or may have to require CAC, individually or as
servicer, any successor servicer or CAC Warehouse Funding Corp. to use
Collections on its behalf contrary to clause (a)(i). Wachovia agrees that the
lien and security interest granted to it pursuant to the Wachovia Securitization
Documents to which it is a party does not and shall not attach to any Comerica
Pools or 2003-1 Pools (or related Collections) or to any Back-end Dealer
Payments and shall not assert any claim thereto.
(b) RELEASE BY THE TRUSTEE. The Trustee (i) releases any and all
rights in and to any Collections with respect to the Comerica Pools or the
Wachovia Pools or in any Back-end Dealer Payments; provided, that no release
shall have been granted with respect to amounts collected
2.
under any Pools which 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 2003-1 Pools, and (ii) relinquishes all rights it has or may have to
require CAC, individually or as servicer, any successor servicer or Credit
Acceptance Funding LLC 2003-1 or Credit Acceptance Auto Dealer Loan Trust 2003-1
to use Collections on its behalf contrary to clause (b)(i). The 2003-1 Trust
agrees that the lien and security interest granted to the Trustee pursuant to
the 2003-1 Securitization Documents to which it is a party does not and shall
not attach to any Comerica Pools or Wachovia Pools (or related Collections) or
to any Back-end Dealer Payments and shall not assert any claim thereto.
(c) RELEASE BY COMERICA. Comerica (i) releases any and all rights
in and to any Collections with respect to the Wachovia Pools and the 2003-1
Pools, other than amounts collected under the Wachovia Pools or the 2003-1 Pools
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 Pools or the 2003-1 Pools, 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 behalf contrary to
clause (c)(i). Except for Back-end Dealer Payments to the extent provided in
(c)(i), 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 Pools or 2003-1 Pools and shall not assert any claim against the
Wachovia Pools or the 2003-1 Pools or Collections related 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, whether at the direction of
Comerica, Wachovia or the Trustee 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 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
3.
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, the
actual knowledge of the Trustee shall be determined based on the actual
knowledge of the Trustee's Responsible Officers (as defined the Indenture dated
as of June 27, 2003 between the Trustee and the 2003-1 Trust), it being
understood that each such Responsible Officer shall have no duty to make any
inquiry regarding the propriety of any payment, distribution or proceed.
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
CAC Warehouse Funding Corp., Credit Acceptance Funding LLC 2003-1 or Credit
Acceptance Auto Dealer Loan Trust 2003-1, 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 and the 2003-1 Securitization Documents.
4.
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. Capitalized Terms. 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.
11. No Third Party Beneficiaries. This Agreement is not intended
to confer upon any person other than the parties hereto any rights or remedies
hereunder.
12. 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 trustee under the
2003-1 Securitization Documents. On or about July 1, 2003, certain businesses of
Wachovia Securities, LLC ("WSL") will be transferred, assigned or otherwise
conveyed (the occurrence of such event, the "Transfer") to Wachovia Capital
Markets, LLC or another newly formed affiliate of WSL ("WCM"). Each of the
parties hereto expressly consents to the assignment by WSL of all of its rights
and obligations hereunder to WCM simultaneous with the Transfer. Each of the
parties acknowledges and agrees that upon the occurrence of the Transfer, such
assignment shall be effective without any further action by any of the parties
hereto and from and after the Transfer: (i) WCM shall be a party hereto and
shall have all rights and obligations of WSL hereunder and (ii) WSL shall cease
to be a party hereto and shall be released from its obligations hereunder.
13. 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: Xxxxx
X. Xxxxxx, Xx., telephone: (000) 000-0000 (ext. 884), facsimile: (000) 000-0000;
(b) in the case of Wachovia, to Xxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0000, Attention: Conduit Administration, telephone: (000) 000-0000,
facsimile: (000) 000-0000; (c) in the case of the Trustee, to its Corporate
Trust Office, 0 Xxx Xxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attention:
Institutional Trust Services/Structured Finance, telephone: (000) 000-0000,
facsimilie: (000) 000-0000; and (d) in the case of Comerica, to One Detroit
Center, 6th Floor, 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention:
Xxxxx Xxxx, telephone: (000) 000-0000, facsimile: (000) 000-0000.
14. 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
5.
and obligations are subject to termination pursuant to this Section 14 (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, and (ii) has not received a written notice from the Agent
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..
15. Termination of Prior Agreement. This Agreement is intended to
supersede the Prior Agreement in its entirety. Each of Comerica, Wachovia 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]
6.
This Intercreditor Agreement has been executed and delivered by the
parties hereto on June 27, 2003.
CREDIT ACCEPTANCE CORPORATION WACHOVIA SECURITIES, LLC, AS AGENT
/S/ Xxxxxxx X. Xxxx /S/ Xxxxxxx X. Xxxxxxxx
---------------------------------- -------------------------------
BY: Xxxxxxx X. Xxxx BY: Xxxxxxx X. Xxxxxxxx
TITLE: Chief Financial Officer & TITLE: Vice President
Treasurer
JPMORGAN CHASE BANK, NOT IN ITS COMERICA BANK, AS AGENT
INDIVIDUAL CAPACITY BUT SOLELY AS
TRUSTEE /S/ Xxxxx Xxxx
-------------------------------
/S/ Xxxxxx X. Xxxxxxx BY: Xxxx Xxxx
---------------------------------- TITLE: Assistant Vice President
BY: Xxxxxx X. Xxxxxxx
TITLE: Trust Officer CREDIT ACCEPTANCE FUNDING LLC 2003-1
CAC WAREHOUSE FUNDING CORP. /S/ Xxxxxxx X. Xxxx
-------------------------------
/S/ Xxxxxxx X. Xxxx BY: Xxxxxxx X. Xxxx
---------------------------------- TITLE: VP Finance & Treasurer
BY: Xxxxxxx X. Xxxx
TITLE: Chief Financial Officer &
Treasurer
CREDIT ACCEPTANCE AUTO DEALER
LOAN TRUST 2003-1
BY: WACHOVIA BANK OF DELAWARE, NATIONAL
ASSOCIATION, NOT IN ITS INDIVIDUAL
CAPACITY BUT SOLELY AS OWNER TRUSTEE
/S/ Xxxxxxxx X. Xxxxxxx
----------------------------------
BY: Xxxxxxxx X. Xxxxxxx
TITLE: Vice President
[Signature Page to Intercreditor Agreement]
7.
APPENDIX A
DEFINITIONS
2003-1 Securitization Documents: The Sale and Serving Agreement dated
as of June 27, 2003 among Credit Acceptance Auto Dealer Loan Trust 2003-1,
Credit Acceptance Funding LLC 2003-1, CAC, the Trustee, and Systems & Services
Technologies, Inc., the Indenture dated as of June 27, 2003 between the Trustee
and the 2003-1 Trust, and the documents related thereto.
Advance: Amounts advanced to a Dealer upon the acceptance of a Contract
by CAC pursuant to a Dealer Agreement.
CAC Credit Facility Documents: The Second Amended and Restated Credit
Acceptance Corporation Credit Agreement, dated as of June 9, 2003, as amended,
by and among the Banks signatory thereto, Comerica Bank, CAC, Credit Acceptance
Corporation UK Limited, CAC of Canada Limited and Credit Acceptance Corporation
Ireland Limited and the documents related thereto.
CAC Entities: Each of CAC, CAC Warehouse Funding Corp., Credit
Acceptance Funding LLC 2003-1 and Credit Acceptance Auto Dealer Loan Trust
2003-1.
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 new or 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 and the Trustee.
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
8.
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 and the 2003-1 Securitization Documents.
Pool: A grouping on the books and records of CAC or any of its
subsidiaries of Advances, 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 September 27, 2002
among CAC, CAC Warehouse Funding Corp., CAC Funding Corp., Bank of America,
N.A., Wachovia and Comerica.
Wachovia Securitization Documents: The Loan and Security Agreement
dated as of September 27, 2002 among CAC Warehouse Funding Corp., CAC, the
Investors named therein, Variable Funding Capital Corporation, Wachovia
Securities, LLC (f/k/a Wachovia Securities, Inc.), Wachovia Bank, National
Association and OSI Portfolio Services, Inc. and the documents related thereto.
9.
