Exhibit 4(g)(1)
Execution Copy
INTERCREDITOR AGREEMENT
This Intercreditor Agreement (this
“ Agreement ”), dated October 29, 2007, is
among Credit Acceptance Corporation (“ CAC ”),
CAC Warehouse Funding Corporation II (“ Warehouse
Funding ”), Credit Acceptance Funding LLC 2006-2 (“
Funding 2006-2 ”), Credit Acceptance Auto Dealer Loan
Trust 2006-2 (the “ 2006-2 Trust ”), Credit
Acceptance Funding LLC 2007-1 (“ Funding 2007-1
”), Credit Acceptance Auto Dealer Loan Trust 2007-1 (the
“ 2007-1 Trust ”), Credit Acceptance Funding LLC
2007-2 (“ Funding 2007-2 ”), Credit Acceptance
Auto Dealer Loan Trust 2007-2 (the “ 2007-2 Trust
”) Wachovia Capital Markets, LLC, as deal agent and
collateral agent under the Wachovia Securitization Documents
(“ Wachovia ”), Deutsche Bank Trust Company
Americas, as indenture trustee and trust collateral agent under the
2006-2 Securitization Documents (in either such capacity, the
“ 2006-2 Trustee ”, as the context requires),
Wells 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), Wells Fargo Bank, National
Association, as indenture trustee and trust collateral agent under
the 2007-2 Securitization Documents (in either such capacity, the
“ 2007-2 Trustee ”, as the context requires),
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 2006-2 Trustee
entered into a transaction as set forth in the 2006-2
Securitization Documents (the “ 2006-2 Securitization
”) pursuant to which the security interest with respect to
certain specifically identified Pools and related assets was (and
during the revolving period under the 2006-2 Securitization
Documents will be) released by Comerica, CAC sold and contributed
(and will be selling and contributing) such Pools and related
assets to its wholly-owned subsidiary, Funding 2006-2, which
subsequently sold (and will sell) such Pools and related assets to
the 2006-2 Trust, a trust the depositor of which is Funding 2006-2,
and the 2006-2 Trust granted the 2006-2 Trustee a security interest
in its right, title and interest in and to such Pools and related
assets (such Pools and related assets are referred to herein as the
“ 2006-2 Pools ”).
E. CAC and the 2007-1 Trustee
entered into a transaction as set forth in the 2007-1
Securitization Documents (the “ 2007-1 Securitization
”) pursuant to which the security interest with respect to
certain specifically identified Pools and related assets was (and
during the revolving period under the 2007-1 Securitization
Documents will be) released by Comerica, CAC sold and contributed
(and will be selling and contributing) such Pools and related
assets to its wholly-owned subsidiary, Funding 2007-1, which
subsequently sold (and will sell) such Pools and related assets to
the 2007-1 Trust, a trust the depositor of which is Funding 2007-1,
and the 2007-1 Trust granted the 2007-1 Trustee a security interest
in its right, title and interest in and to such Pools and related
assets (such Pools and related assets are referred to herein as the
“ 2007-1 Pools ”).
F. CAC and the 2007-2 Trustee
are entering into a transaction as set forth in the 2007-2
Securitization Documents (the “ 2007-2 Securitization
”) pursuant to which the security interest with respect to
certain specifically identified Pools and related assets is being
(and during the revolving period under the 2007-2 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 2007-2, which is subsequently
selling (and will sell) such Pools and related assets to the 2007-2
Trust, a trust the depositor of which is Funding 2007-2, and the
2007-2 Trust is granting the 2007-2 Trustee a security interest in
its right, title and interest in and to such Pools and related
assets (such Pools and related assets are referred to herein as the
“ 2007-2 Pools ”).
G. 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 2006-2 Trustee, pursuant to the 2006-2 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 2007-1 Trustee, pursuant to the 2007-1
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 2007-2 Trustee, pursuant
to the 2007-2 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 2006-2
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Securitization Documents, the 2007-1 Securitization Documents and
the 2007-2 Securitization Documents.
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 2006-2 Pools, the 2007-1 Pools,
the 2007-2 Pools or in any Back-end Dealer Payments; provided, that
no release shall have been granted with respect to amounts
collected under any Pools 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 2006-2 Pools, the 2007-1 Pools or the 2007-2
Pools (or related Collections) or to any Back-end Dealer Payments
and shall not assert any claim thereto.
(b) Release by the 2006-2
Trustee. The 2006-2 Trustee (i) releases any and all
rights in and to any Collections with respect to the Comerica
Pools, the Wachovia Pools, the 2007-1 Pools, the 2007-2 Pools or in
any Back-end Dealer Payments; provided, that no release shall have
been granted with respect to amounts collected under any Pools
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
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or the
2006-2 Trust to use Collections on its behalf contrary to clause
(b)(i). The 2006-2 Trust agrees that the lien and security interest
granted to the 2006-2 Trustee pursuant to the 2006-2 Securitization
Documents to which it is a party does not and shall not attach to
any Comerica Pools, the Wachovia Pools, the 2007-1 Pools or the
2007-2 Pools (or related Collections) or to any Back-end Dealer
Payments and shall not assert any claim thereto.
(c) Release by the 2007-1
Trustee. The 2007-1 Trustee (i) releases any and all
rights in and to any Collections with respect to the Comerica
Pools, the Wachovia Pools, the 2006-2 Pools, the 2007-2 Pools, or
in any Back-end Dealer Payments; provided, that no release shall
have been granted with respect to amounts collected under any Pools
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 (c)(i).
The 2007-1 Trust agrees that the lien and security interest granted
to the 2007-1 Trustee pursuant to the 2007-1 Securitization
Documents to which it is a party does not and shall not attach to
any Comerica Pools, the Wachovia Pools, the 2006-2 Pools or the
2007-2 Pools (or related Collections) or to any Back-end Dealer
Payments and shall not assert any claim thereto.
(d) Release by the 2007-2
Trustee. The 2007-2 Trustee (i) releases any and all
rights in and to any Collections with respect to the Comerica
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 Do
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