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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
