EXHIBIT 4(f)(92)
EXECUTION VERSION
INTERCREDITOR AGREEMENT
This Intercreditor Agreement (this "Agreement"), dated April 12, 2007, is
among Credit Acceptance Corporation ("CAC"), CAC Warehouse Funding Corporation
II ("Warehouse Funding"), Credit Acceptance Funding LLC 2006-1 ("Funding
2006-1"), Credit Acceptance Auto Dealer Loan Trust 2006-1 (the "2006-1 Trust"),
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"), Wachovia Capital Markets, LLC, as deal agent and collateral
agent under the Wachovia Securitization Documents ("Wachovia"), The Bank of New
York (as successor-in-interest to the corporate trust business of JPMorgan Chase
Bank, N.A.), as indenture trustee and trust collateral agent under the 2006-1
Securitization Documents (in either such capacity, the "2006-1 Trustee", as the
context requires), 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), Comerica Bank, as agent under the CAC Credit Facility
Documents ("Comerica"), 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 H 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 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 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 and related assets (such Pools and related assets
are referred to herein as the "Wachovia Pools").
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D. CAC and the 2006-1 Trustee entered into a transaction as set forth in
the 2006-1 Securitization Documents (the "2006-1 Securitization") pursuant to
which the security interest with respect to certain specifically identified
Pools and related assets was released by Comerica, CAC sold and contributed such
Pools and related assets to its wholly-owned subsidiary, Funding 2006-1, which
subsequently sold such Pools and related assets to the 2006-1 Trust, a trust the
depositor of which is Funding 2006-1, and the 2006-1 Trust granted the 2006-1
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 "2006-1 Pools").
E. 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").
F. CAC and the 2007-1 Trustee are entering 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 is being (and during the revolving period under the
2007-1 Securitization Documents will be) released by Comerica, CAC is (and will
be) selling and contributing such Pools and related assets to its wholly-owned
subsidiary, Funding 2007-1, which is subsequently selling (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 is granting 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").
G. Comerica retains a security interest in Pools and related assets which
(i) have not been (and will not be) released, and a security interest
encumbering such Pools and related assets has not been (and will not be) granted
to Wachovia pursuant to the Wachovia Securitization, (ii) have not been
released, and a security interest encumbering such Pools and related assets has
not been granted to the 2006-1 Trustee, pursuant to the 2006-1 Securitization,
(iii) have not been (and will not be) released, and a security interest
encumbering such Pools and related assets has not (and will not) be granted to
the 2006-2 Trustee, pursuant to the 2006-2 Securitization, and (iv) are not
being (and will not be) released, and a security interest encumbering such Pools
and related assets is not being granted to the 2007-1 Trustee, pursuant to the
2007-1 Securitization (such unreleased Pools and related assets are referred to
herein as the "Comerica Pools").
H. 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 CAC Credit Facility Documents, the
Wachovia Securitization Documents, the 2006-1 Securitization Documents, the
2006-2 Securitization Documents and the 2007-1 Securitization Documents.
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I. 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, as the collateral agent, (i) releases
any and all rights in and to any Collections with respect to the Comerica Pools,
the 2006-1 Pools, the 2006-2 Pools, the 2007-1 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 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 Pools 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 2006-1 Pools, the 2006-2
Pools or the 2007-1 Pools (or related Collections) or to any Back-end Dealer
Payments and shall not assert any claim thereto.
(b) RELEASE BY THE 2006-1 TRUSTEE. The 2006-1 Trustee (i) releases any and
all rights in and to any Collections with respect to the Comerica Pools, the
Wachovia Pools, the 2006-2 Pools, the 2007-1 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 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 2006-1 Pools and (ii) relinquishes all rights it
has or may have to require CAC, individually or as servicer, any successor
servicer, Funding 2006-1 or the 2006-1 Trust to use Collections on its behalf
contrary to clause (b)(i). The 2006-1 Trust agrees that the lien and security
interest granted to the 2006-1 Trustee pursuant to the 2006-1 Securitization
Documents to which it is a party does not and shall not attach to any Comerica
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Pools, the Wachovia Pools, the 2006-2 Pools or the 2007-1 Pools (or related
Collections) or to any Back-end Dealer Payments and shall not assert any claim
thereto.
(c) 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 Pools, the 2006-1 Pools, the 2007-1 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 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 (c)(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 2006-1 Pools or the 2007-1 Pools (or related
Collections) or to any Back-end Dealer Payments and shall not assert any claim
thereto.
(d) 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 Pools, the
Wachovia Pools, the 2006-1 Pools, the 2006-2 Pools or in any Back-end Dealer
Payments; provided, that no release shall have been granted with respect to
amounts collected under any Pools 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 2007-1 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 (d)(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
Pools, the Wachovia Pools, the 2006-1 Pools or the 2006-2 Pools (or related
Collections) or to any Back-end Dealer Payments and shall not assert any claim
thereto.
(e) RELEASE BY COMERICA. Comerica (i) releases any and all rights in and to
any Collections with respect to the Wachovia Pools, the 2006-1 Pools, the 2006-2
Pools and the 2007-1 Pools, other than amounts collected under the Wachovia
Pools, the 2006-1 Pools, the 2006-2 Pools or the 2007-1 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, the 2006-1 Pools, the 2006-2 Pools or the 2007-1
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 (e)(i) above. Except for Back-end Dealer Payments to
the extent provided in clause (e)(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 Pools, the 2006-1 Pools, the
2006-2 Pools or the 2007-1 Pools and shall not assert any claim against the
Wachovia Pools, the 2006-1 Pools, the 2006-2 Pools or the 2007-1 Pools or
Collections related thereto.
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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, the 2006-1 Trustee, the 2006-2 Trustee or the 2007-1 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 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 2006-1 Trustee shall be determined based on the
actual knowledge of the 2006-1 Trustee's Responsible Officers (as defined in the
0000-0 Xxxxxxxxx), (ii) 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) and (iii) 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 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.
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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, Funding 2006-1, the 2006-1 Trust, Funding 2006-2, the 2006-2 Trust,
Funding 2007-1 or the 2007-1 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
2006-1 Securitization Documents, the 2006-2 Securitization Documents and the
2007-1 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 2006-1 Trustee under the
2006-1 Securitization Documents, any successor or assignor to the 2006-2 Trustee
under the 2006-2 Securitization Documents and any successor or assignor to the
2007-1 Trustee under the 2007-1 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
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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 Xxxxxxx, telephone: (000) 000-0000 (ext.
4217), 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: (704)
383-9579; (c) in the case of the 2006-1 Trustee, to 000 Xxxxxxx Xxxxxx, XX 0X,
Xxx Xxxx, XX 00000, telephone: (000) 000-0000, facsimile: (000) 000-0000; (d) 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: (212)
553-2459; (e) 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; and (f) in the case of Comerica, to One Detroit Center, 6th
Floor, 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx Light,
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
2006-1 Trustee, the 2006-2 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]
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This Intercreditor Agreement has been executed and delivered by the parties
hereto on April 12, 2007.
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]
WACHOVIA CAPITAL MARKETS, LLC,
AS DEAL AGENT
/S/ XXXX XXXXX
----------------------------------------
BY: XXXX XXXXX
TITLE: DIRECTOR
[Signature Page to Intercreditor Agreement]
COMERICA BANK, AS AGENT
/S/ XXXXX X. LIGHT
----------------------------------------
BY: XXXXX X. LIGHT
TITLE: VICE PRESIDENT
[Signature Page to Intercreditor Agreement]
THE BANK OF NEW YORK (AS
SUCCESSOR-IN-INTEREST TO THE CORPORATE
TRUST BUSINESS OF JPMORGAN CHASE BANK,
N.A.), NOT IN ITS INDIVIDUAL CAPACITY
BUT SOLELY AS TRUSTEE
/S/ XXXXXX XXXXXXX
----------------------------------------
BY: XXXXXX XXXXXXX
TITLE: TRUST OFFICER
[Signature Page to Intercreditor Agreement]
CREDIT ACCEPTANCE AUTO DEALER LOAN TRUST
2006-1
BY: U.S. BANK TRUST NATIONAL
ASSOCIATION, NOT IN ITS INDIVIDUAL
CAPACITY BUT SOLELY AS OWNER TRUSTEE
/S/ XXXXXX XXXXX
----------------------------------------
BY: XXXXXX XXXXX
TITLE: VICE PRESIDENT
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/ XXXXXX XXXXX
----------------------------------------
BY: XXXXXX XXXXX
TITLE: 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/ XXXXXX XXXXX
----------------------------------------
BY: XXXXXX XXXXX
TITLE: VICE PRESIDENT
[Signature Page to Intercreditor Agreement]
DEUTSCHE BANK TRUST COMPANY AMERICAS,
NOT IN ITS INDIVIDUAL CAPACITY BUT
SOLELY AS TRUSTEE
/S/ XXXXX XXXX
----------------------------------------
BY: XXXXX XXXX
TITLE: VICE PRESIDENT
/S/ XXXXX XXXXXXXX
----------------------------------------
BY: XXXXX XXXXXXX
TITLE: DIRECTOR
[Signature Page to Intercreditor Agreement]
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
NOT IN ITS INDIVIDUAL CAPACITY BUT
SOLELY AS TRUSTEE
/S/ XXXXXXXX XXXXXXXX
----------------------------------------
BY: XXXXXXXX XXXXXXXX
TITLE: VICE PRESIDENT
[Signature Page to Intercreditor Agreement]
APPENDIX A
DEFINITIONS
2006-1 Indenture: The Indenture dated as of April 18, 2006 between the
2006-1 Trustee and the 2006-1 Trust, as amended from time to time.
2006-1 Securitization Documents: The Sale and Servicing Agreement dated as
of April 18, 2006 among the 2006-1 Trust, Funding 2006-1, CAC, the 2006-1
Trustee, and Systems & Services Technologies, Inc., the 2006-1 Indenture, and
the documents related thereto, as amended from time to time.
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.
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, Funding 2006-1, the 2006-1
Trust, Funding 2006-2, the 2006-2 Trust, Funding 2007-1 and the 2007-1 Trust.
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
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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 2006-1 Trustee, the 2006-2
Trustee and the 2007-1 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 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 2006-1 Securitization Documents, the 2006-2
Securitization Documents and the 2007-1 Securitization Documents.
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 November 21, 2006 among
CAC, Warehouse Funding, Funding 2006-1, the 2006-1 Trust, Funding 2006-2, the
2006-2 Trust, Wachovia, the 2006-1 Trustee, the 2006-2 Trustee and Comerica.
Wachovia Securitization Documents: The First Amended and Restated Loan and
Security Agreement dated as of February 15, 2006, as amended, among Warehouse
Funding, CAC, Wachovia Bank, National Association, JPMorgan Chase Bank, N.A.,
Variable Funding Capital Corporation, 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.
ii
