EXHIBIT 4(f)62
EXECUTION COPY
INTERCREDITOR AGREEMENT
This Intercreditor Agreement (this "Agreement"), dated August 25, 2004, is
among Credit Acceptance Corporation ("CAC"), CAC Warehouse Funding Corporation
II ("Warehouse Funding"), Credit Acceptance Funding LLC 2003-1 ("Funding
2003-1"), Credit Acceptance Auto Dealer Loan Trust 2003-1 (the "2003-1 Trust"),
Credit Acceptance Funding LLC 2004-1 ("Funding 2004-1"), Credit Acceptance Auto
Dealer Loan Trust 2004-1 (the "2004-1 Trust"), Wachovia Capital Markets, LLC, as
deal agent and collateral agent under the Wachovia Securitization Documents
("Wachovia"), JPMorgan Chase Bank, as indenture trustee and trust collateral
agent under the 2003-1 Securitization Documents and as indenture trustee and
trust collateral agent under the 2004-1 Securitization Documents (in either such
capacity, the "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 G 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 the Trustee entered 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 was released by Comerica, CAC sold and contributed such Pools and
related assets to its wholly-owned subsidiary, Funding 2003-1, which
subsequently sold such Pools and related assets to the 2003-1 Trust, a trust the
depositor of which is Funding 2003-1, and the 2003-1 Trust granted 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").
D. 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-
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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").
E. CAC and the Trustee are entering into a transaction as set forth in the
2004-1 Securitization Documents (the "2004-1 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 2004-1
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 2004-1, which is subsequently selling (and will sell) such
Pools and related assets to the 2004-1 Trust, a trust the depositor of which is
Funding 2004-1, and the 2004-1 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 "2004-1 Pools").
F. Comerica retains a security interest in Pools and related assets which
(i) have not been released, and a security interest encumbering such Pools and
related assets has not been granted to the Trustee, pursuant to the 2003-1
Securitization, (ii) 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, and (iii) are not
being (and will not be) released, and a security interest encumbering such Pools
and related assets is not being granted to the Trustee, pursuant to the 2004-1
Securitization (such unreleased Pools and related assets are referred to herein
as the "Comerica Pools").
G. 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 2003-1
Securitization Documents, the Wachovia Securitization Documents and the 2004-1
Securitization Documents.
H. 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
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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 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 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 2003-1 Pools or the
2004-1 Pools, as the case may be and (ii) relinquishes all rights it has or may
have to require CAC, individually or as servicer, any successor servicer,
Funding 2003-1, the 2003-1 Trust, Funding 2004-1 or the 2004-1 Trust to use
Collections on its behalf contrary to clause (a)(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, Wachovia Pools or 2004-1 Pools (or related
Collections) or to any Back-end Dealer Payments and shall not assert any claim
thereto. The 2004-1 Trust agrees that the lien and security interest granted to
the Trustee pursuant to the 2004-1 Securitization Documents to which it is a
party does not and shall not attach to any Comerica Pools, Wachovia 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 WACHOVIA. Wachovia, as the collateral agent, (i) releases
any and all rights in and to any Collections with respect to the Comerica Pools,
the 2003-1 Pools or the 2004-1 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 (b)(i).
Wachovia, as collateral agent, agrees that the lien and security interest
granted to it pursuant to the Loan and Security Agreement does not and shall not
attach to any Comerica Pools, 2003-1 Pools or 2004-1 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, the 2003-1 Pools and the
2004-1 Pools, other than amounts collected under the Wachovia Pools, the 2003-1
Pools or the 2004-1 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 2003-1
Pools or the 2004-1 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) above. Except for Back-end
Dealer Payments to the extent provided in clause (c)(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
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Wachovia Pools, 2003-1 Pools or 2004-1 Pools and shall not assert any claim
against the Wachovia Pools, the 2003-1 Pools or the 2004-1 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 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 in the 2003-1
Indenture or the 2004-1 Indenture, as applicable), 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 2003-1, the 2003-1 Trust, Funding 2004-1 or the 2004-1 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 2003-1
Securitization Documents and the 2004-1 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 Trustee under the 2003-1
Securitization Documents or the 2004-1 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.
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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. 217), 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
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, facsimile: (000) 000-0000; and (d) 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 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.
14. Termination of Prior Agreement. This Agreement is intended to
supersede the Prior Agreement in its entirety. Each of Comerica, Wachovia, the
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 August 25, 2004.
CREDIT ACCEPTANCE CORPORATION
_________________________________________
BY: XXXXXXX X. XXXX
TITLE: TREASURER
CAC WAREHOUSE FUNDING CORPORATION II
_________________________________________
BY: XXXXXXX X. XXXX
TITLE: VP - FINANCE AND TREASURER
CREDIT ACCEPTANCE FUNDING LLC 2004-1
_________________________________________
BY: XXXXXXX X. XXXX
TITLE: TREASURER
CREDIT ACCEPTANCE FUNDING LLC 2003-1
_________________________________________
BY: XXXXXXX X. XXXX
TITLE: VP - FINANCE AND TREASURER
[Signature Page to Intercreditor Agreement]
WACHOVIA CAPITAL MARKETS, LLC,
AS DEAL AGENT
_________________________________________
BY:
TITLE:
[Signature Page to Intercreditor Agreement]
COMERICA BANK, AS AGENT
_________________________________________
BY:
TITLE:
[Signature Page to Intercreditor Agreement]
JPMORGAN CHASE BANK, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY AS
TRUSTEE
_________________________________________
BY:
TITLE:
[Signature Page to Intercreditor Agreement]
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
_________________________________________
BY:
TITLE:
CREDIT ACCEPTANCE AUTO DEALER
LOAN TRUST 2004-1
BY: WACHOVIA BANK OF DELAWARE,
NATIONAL ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY AS
OWNER TRUSTEE
_________________________________________
BY:
TITLE:
[Signature Page to Intercreditor Agreement]
APPENDIX A
DEFINITIONS
2003-1 Indenture: The Indenture dated as of June 27, 2003 between the
Trustee and the 2003-1 Trust, as amended from time to time.
2003-1 Securitization Documents: The Sale and Servicing Agreement dated as
of June 27, 2003 among the 2003-1 Trust, Funding 2003-1, CAC, the Trustee, and
Systems & Services Technologies, Inc., the 2003-1 Indenture, and the documents
related thereto, as amended from time to time.
2004-1 Indenture: The Indenture dated as of August 25, 2004 between the
Trustee and the 2004-1 Trust, as amended from time to time.
2004-1 Securitization Documents: The Sale and Servicing Agreement dated as
of August 25, 2004 among the 2004-1 Trust, Funding 2004-1, CAC, the Trustee, and
Systems & Services Technologies, Inc., the 2004-1 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 Third Amended and Restated Credit
Acceptance Corporation Credit Agreement, dated as of June 9, 2004, 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 2003-1, the 2003-1
Trust, Funding 2004-1 and the 2004-1 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 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
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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 2003-1 Securitization Documents and the 2004-1
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 30, 2003
among CAC, Warehouse Funding, Funding 2003-1, the 2003-1 Trust, Wachovia, the
Trustee and Comerica.
Wachovia Securitization Documents: The Loan and Security Agreement dated
as of September 30, 2003, as amended, among Warehouse Funding, CAC, Wachovia
Bank, National Association, Variable Funding Capital Corporation, 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
