exv4wgw6





Exhibit 4(g)(6)


Execution Version




      




AMENDED AND RESTATED INTERCREDITOR AGREEMENT




dated as of February 1, 2010,



among



CREDIT ACCEPTANCE CORPORATION,



the other GRANTORS party hereto,



COMERICA BANK,

as the Collateral Agent and

the Authorized Representative for the Credit Agreement Secured Parties,



U.S. BANK NATIONAL ASSOCIATION,

as the Senior Notes Authorized Representative for the Senior Notes Secured Parties,



and



each ADDITIONAL AUTHORIZED REPRESENTATIVE from time to time party hereto



      




 









 





     This AMENDED AND RESTATED INTERCREDITOR AGREEMENT is dated as of February 1, 2010 (as amended,
supplemented or otherwise modified from time to time, this “Agreement”), among CREDIT
ACCEPTANCE CORPORATION, a Michigan corporation (together with its successors and assigns, the
“Company”), the other GRANTORS (as defined below) party hereto, COMERICA BANK, as
collateral agent for the Secured Parties (as defined below) (together with its successors and
assigns, including any collateral agent under this Agreement, in such capacity, the “Collateral
Agent”), as administrative agent under the Original Credit Agreement and as the Authorized
Representative for the Credit Agreement Secured Parties (together with its successors and assigns,
including any successor administrative agent under the Credit Agreement, in such capacity, the
“Original Administrative Agent”), U.S. BANK NATIONAL ASSOCIATION, as the Authorized
Representative for the Senior Notes Secured Parties (in such capacity, the “Senior Notes
Authorized Representative”) and each ADDITIONAL AUTHORIZED REPRESENTATIVE from time to time
party hereto, as the Authorized Representative for any Secured Parties of any other Class.



     In consideration of the mutual agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Collateral Agent,
the Administrative Agent, for itself and on behalf of its Related Secured Parties, and the Senior
Notes Authorized Representative, for itself and on behalf of its Related Secured Parties, agree as
follows:



ARTICLE I

Definitions




     SECTION 1.01. Certain Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:



     “Additional Authorized Representative” has the meaning assigned to such term in
Article VI.



     “Additional Authorized Representative Joinder Agreement” means a supplement to this
Agreement (i) in the case of an Additional Authorized Representative under Additional First Lien
Documents, substantially in the form of Exhibit I-A, appropriately completed and (ii) in the case
of an Additional Authorized Representative under a Supplemental Credit Agreement, substantially in
the form of Exhibit I-B, appropriately completed.



     “Additional First Lien Documents” means the indentures or other agreements under which
Additional First Lien Obligations of any Class are issued or incurred and all other notes,
instruments, agreements and other documents evidencing or governing Additional First Lien
Obligations of such Class or providing any guarantee, Lien or other right in respect thereof. For
the purposes hereof, no Supplemental Credit Agreement, nor any Credit Agreement Documents executed
or delivered in connection therewith, shall constitute an Additional First Lien Document.



     “Additional First Lien Obligations” means all obligations of the Company and the other
Grantors that shall have been designated as such pursuant to Article VI.



 









 





     “Additional Secured Parties” means the holders of any Additional First Lien
Obligations.



     “Administrative Agent” means the Original Administrative Agent, or, from and after the
date of execution and delivery of any Supplemental Credit Agreement, the agent, collateral agent,
trustee or other representative of the lenders or holders of the indebtedness and other Credit
Agreement Obligations evidenced thereunder or governed thereby.



     “Affected Subsidiary” has the meaning assigned to such term in Section 2.01(b)(2)(i).



     “Affiliate” means, at any time, and with respect to any Person, (a) any other Person
that at such time directly or indirectly through one or more intermediaries Controls, or is
Controlled by, or is under common Control with, such first Person, (b) any Person beneficially
owning or holding, directly or indirectly, 10% or more of any class of voting or equity interests
of the Person or any corporation or other Person of which the Person beneficially owns or holds, in
the aggregate, directly or indirectly, 10% or more of any class of voting or equity interests and
(c) any officer or director of such first Person or any Person fulfilling an equivalent function of
an officer or director. As used in this definition, “Control” means the possession,
directly or indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by contract or otherwise.



     “Agreement” has the meaning assigned to such term in the preamble hereto.



     “Applicable Authorized Representative” means, with respect to the Shared Collateral,
(a) until the earliest of (i) the Discharge of the Credit Agreement Obligations, (ii) the
occurrence of the Non-Controlling Authorized Representative Enforcement Date and (iii) so long as
the Original Credit Agreement (or any credit facility which has Refinanced or replaced the Original
Credit Agreement and which constitutes a Credit Agreement hereunder) shall remain in effect and no
Event of Default has occurred and is continuing, the date that the aggregate commitments of the
applicable lenders to make advances constituting Credit Agreement Obligations thereunder are less
than $25.0 million or, if the Original Credit Agreement (or any replacement credit facility, as
aforesaid) shall no longer be in effect, or any Event of Default shall have occurred and be
continuing or the lending commitments thereunder have been terminated, the date that the
outstanding Credit Agreement Obligations are less than $25.0 million, the Administrative Agent and
(b) from and after the earliest of (i) the Discharge of the Credit Agreement Obligations, (ii) the
occurrence of the Non-Controlling Authorized Representative Enforcement Date and (iii) so long as
the Original Credit Agreement (or any credit facility which has Refinanced or replaced the Original
Credit Agreement and which constitutes a Credit Agreement hereunder) shall remain in effect and no
Event of Default has occurred and is continuing, the date that the aggregate commitments of the
applicable lenders to make advances constituting Credit Agreement Obligations thereunder are less
than $25.0 million or, if the Original Credit Agreement (or any replacement credit facility, as
aforesaid) shall no longer be in effect, or any Event of Default shall have occurred and be
continuing or the lending commitments thereunder have been terminated, the date that the
outstanding Credit Agreement Obligations are less than $25.0 million, the Major Non-Controlling
Authorized Representative.



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     “Authorized Representatives” means any Administrative Agent, the Senior Notes
Authorized Representative and each Additional Authorized Representative.



     “Banking Product Obligations” means any obligations of the Company or any of its
Subsidiaries owed to any Person in respect of treasury management services (including services in
connection with operating, collections, payroll, trust or other depository or disbursement
accounts, including automated clearinghouse, e-payable, electronic funds transfer, wire transfer,
controlled disbursement, overdraft, depositary, information reporting, lock-box and stop payment
services), commercial credit card and merchant card services, stored valued card services, other
cash management services, lock-box leases and other banking products or services related to any of
the foregoing.



     “Bankruptcy Case” has the meaning assigned to such term in Section 2.06.



     “Bankruptcy Code” means Title 11 of the United States Code.



     “Bankruptcy Law” means the Bankruptcy Code and any similar Federal, state or foreign
law for the relief of debtors.



     “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City or Detroit, Michigan are authorized or required by law to remain
closed.



     “Class”, when used in reference to (a) any First Lien Obligations, refers to whether
such First Lien Obligations are the Credit Agreement Obligations under the Original Credit
Agreement, Credit Agreement Obligations under any other Credit Agreement, the Senior Notes First
Lien Obligations or the Additional First Lien Obligations of any Series, (b) any Authorized
Representative, refers to whether such Authorized Representative is the Administrative Agent, the
Senior Notes Authorized Representative or the Additional Authorized Representative with respect to
the Additional First Lien Obligations of any Series, (c) any Secured Parties, refers to whether
such Secured Parties are the Credit Agreement Secured Parties, the Senior Notes Secured Parties or
the holders of the Additional First Lien Obligations of any Series, and (d) any First Lien Credit
Documents, refers to whether such First Lien Credit Documents are the Credit Agreement Documents,
the Senior Notes First Lien Documents or the Additional First Lien Documents with respect to
Additional First Lien Obligations of any Series.



     “Collateral” means all assets of the Company or any of the Subsidiaries now or
hereafter subject to a Lien created pursuant to any First Lien Security Document to secure any
First Lien Obligations.



     “Collateral Agent” has the meaning assigned to such term in the preamble hereto.



     “Company” has the meaning assigned to such term in the preamble hereto.



     “Controlling Secured Parties” means, at any time with respect to any Shared
Collateral, the Secured Parties of the same Class as the Authorized Representative that is the
Applicable Authorized Representative with respect to such Shared Collateral at such time.



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     “Credit Agreement” means the Original Credit Agreement and any Supplemental Credit
Agreement.



     “Credit Agreement Documents” has the meaning assigned to the term “Loan Documents”
under the Original Credit Agreement and, with respect to any Supplemental Credit Agreement, such
Supplemental Credit Agreement and all other notes, instruments, agreements and other documents
evidencing or governing Credit Agreement Obligations thereunder or providing any guarantee, Lien or
other right in respect thereof.



     “Credit Agreement Obligations” has the meaning assigned to the term “Indebtedness”
under the Original Credit Agreement and, with respect to any Supplemental Credit Agreement, all
indebtedness and obligations incurred or arising under the Credit Agreement Documents and all
Banking Product Obligations and Hedging Obligations owed to any agent or lender thereunder or any
Affiliate thereof.



     “Credit Agreement Secured Parties” means, with respect to any Class of Credit
Agreement Obligations, the Administrative Agent and the lenders, noteholders, purchasers or other
holders of Credit Agreement Obligations (including any of their respective Affiliates that hold
Credit Agreement Obligations), in each case relating to such Class.



     “Default” means a “Default” (or a similar event, however designated) as defined in any
First Lien Credit Document.



     “DIP Financing” has the meaning assigned to such term in Section 2.06.



     “DIP Financing Liens” has the meaning assigned to such term in Section 2.06.



     “DIP Lenders” has the meaning assigned to such term in Section 2.06.



     “Discharge” means, with respect to any Shared Collateral and First Lien Obligations of
any Class, the date on which First Lien Obligations of such Class are no longer secured by Liens on
such Shared Collateral. The term “Discharged” shall have a corresponding meaning.



     “Discharge of the Credit Agreement Obligations” means the Discharge of all of the
Credit Agreement Obligations (including any Credit Agreement Obligations under a Supplemental
Credit Agreement); provided that the Discharge of the Credit Agreement Obligations shall
not be deemed to have occurred in connection with a Refinancing of the Credit Agreement Obligations
with a Supplemental Credit Agreement, secured by such Shared Collateral under Credit Agreement
Documents that has been designated in writing by the Company to the Collateral Agent and each
Authorized Representative as the “Credit Agreement” for purposes of this Agreement.



     “Event of Default” means an “Event of Default” (or a similar event, however
designated) as defined in any First Lien Credit Document.



     “Existing Securitization Intercreditor Agreement” means that certain Intercreditor
Agreement dated December 3, 2009, among the Company, CAC Warehouse Funding



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Corporation II, CAC
Warehouse Funding III, LLC, Credit Acceptance Funding LLC 2008-1, Credit Acceptance Funding LLC
2009-1, Credit Acceptance Auto Loan Trust 2008-1, Credit Acceptance Auto Loan Trust 2009-1, Wells
Fargo Securities, LLC, as deal agent and collateral agent, Fifth Third Bank, as agent, Wells Fargo
Bank, National Association, as indenture trustee
and trust collateral agent, and Comerica Bank, as agent under the CAC Credit Facility
Documents (as defined therein).




     “First Lien Credit Documents” means, collectively, (a) the Credit Agreement Documents,
(b) the Senior Notes First Lien Documents and (c) the Additional First Lien Documents.



     “First Lien Obligations” means (a) all the Credit Agreement Obligations, (b) all the
Senior Notes First Lien Obligations and (c) all the Additional First Lien Obligations.



     “First Lien Security Documents” means the “Collateral Documents” (as defined in the
Credit Agreement), and each other agreement entered into in favor of the Collateral Agent for the
purpose of securing First Lien Obligations of any Class.



     “Future Senior Notes” means any notes issued after the date hereof under the Senior
Notes Indenture which are of the same Series as the Initial Senior Notes.



     “Grantor Joinder Agreement” means a supplement to this Agreement substantially in the
form of Exhibit II, appropriately completed.



     “Grantors” means, at any time, the Company and each Subsidiary that, at such time, has
granted a security interest in any of its assets pursuant to any First Lien Security Document to
secure any First Lien Obligations of any Class. The Persons that are Grantors on the date hereof
are set forth on Schedule 1.



     “Hedging Obligations” means, with respect to any Person, the obligations of such
Person under (i) interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements and (ii) other agreements or arrangements designed to protect such Person against
fluctuations in interest or currency exchange rates.



     “Initial Senior Notes” means the notes issued under the Senior Notes Indenture on the
date hereof, and any notes issued in exchange, substitution or replacement thereof.



     “Impairment” has the meaning assigned to such term in Section 2.02.



     “Insolvency or Liquidation Proceeding” means:



          (a) any case commenced by or against the Company or any other Grantor under any Bankruptcy
Law, any other proceeding for the reorganization, recapitalization or adjustment or marshalling of
the assets or liabilities of the Company or any other Grantor, any receivership or assignment for
the benefit of creditors relating to the Company or any other Grantor or any similar case or
proceeding relative to the Company or any other Grantor or its creditors, as such, in each case
whether or not voluntary;




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          (b) any liquidation, dissolution, marshalling of assets or liabilities or other winding up of
or relating to the Company or any other Grantor (other than liquidations and dissolutions of
Subsidiaries of the Company permitted under the First Lien Credit Documents), in each case whether
or not voluntary and whether or not involving bankruptcy or insolvency; or




          (c) any other proceeding of any type or nature in which substantially all claims of creditors
of the Company or any other Grantor are determined and any payment or distribution is or may be
made on account of such claims.




     “Intervening Creditor” has the meaning assigned to such term in Section 2.02.



     “Intervening Lien” has the meaning assigned to such term in Section 2.02.



     “LC Cash Collateral” means any Collateral in the form of one or more Deposit Accounts
or Securities Accounts, and all Financial Assets or other funds held in or credited to any such
Deposit Account or Securities Account, all Security Entitlements in respect thereof and all
Proceeds of any of the foregoing, in each case in which a security interest has been granted by the
Company or any other Grantor to secure Credit Agreement Obligations consisting of obligations in
respect of Letters of Credit pursuant to the terms of the Credit Agreement. For purposes hereof,
the terms “Deposit Accounts”, “Securities Accounts”, “Financial Assets”, “Security Entitlements”
and “Proceeds” have the meaning assigned thereto in the Michigan UCC.



     “Lien” shall mean any pledge, assignment, hypothecation, mortgage, security interest,
deposit arrangement, option, trust receipt, conditional sale or title retaining contract, sale and
leaseback transaction, or any other type of lien, charge or encumbrance, whether based on common
law, statute or contract; provided that the term “Lien” shall not include any negative pledge
clauses in agreements relating to the borrowing of money or the obligation of Company or any of its
Subsidiaries to remit monies to Dealers (as defined in the Credit Agreement) under Dealer
Agreements (as defined in the Credit Agreement), claims or refunds under insurance policies or
claims or refunds under service contracts or (b) to make deposits in trust or otherwise as required
under re-insurance agreements and pursuant to state regulatory requirements, unless the Company or
any of its Subsidiaries, as the case may be, has encumbered its interest in such monies or deposits
or in other property of the Company to secure such obligations.



     “Major Non-Controlling Authorized Representative” means, with respect to any Shared
Collateral, the Authorized Representative of the same Class as the Class of the First Lien
Obligations (other than the First Lien Obligations of the same Class as the Class of the
Controlling Secured Parties with respect to such Shared Collateral) secured by valid and perfected
Liens on such Shared Collateral the aggregate amount of which exceeds the aggregate amount of First
Lien Obligations of any other Class (other than the First Lien Obligations of the same Class as the
Class of the Controlling Secured Parties with respect to such Shared Collateral) secured
by valid
and perfected Liens on such Shared Collateral; provided that for purposes of clause (b) of the
definition of Applicable Authorized Representative, “Major Non-Controlling Authorized
Representative” shall mean, with respect to any Shared Collateral, the Authorized Representative of
the same Class as the Class of the First Lien Obligations secured



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by valid and perfected Liens on
such Shared Collateral the aggregate amount of which exceeds the aggregate amount of First Lien
Obligations of any other Class secured by valid and perfected Liens on such Shared Collateral.




     “Maximum Attributable Amount” means, in the case of any sale or other disposition of
Subject Securities of an Affected Subsidiary, the proceeds that would have been received from
the sale or disposition of the maximum amount of Subject Securities that, having been pledged
to the Collateral Agent, would not have resulted in such Subsidiary being an Affected Subsidiary,
as determined by the Collateral Agent, the Company and the Authorized Representatives in good
faith.



     “Michigan UCC” means the Uniform Commercial Code as from time to time in effect in the
State of Michigan.



     “Mortgaged Property” means any parcel of real property and improvements thereto that
constitute Shared Collateral.



     “Non-Controlling Authorized Representative” means, at any time with respect to any
Shared Collateral, any Authorized Representative that is not the Applicable Authorized
Representative at such time with respect to such Shared Collateral.



     “Non-Controlling Authorized Representative Enforcement Date” means, with respect to
any Non-Controlling Authorized Representative in respect of the Shared Collateral, the date that is
90 days (throughout which 90-day period such Non-Controlling Authorized Representative was the
Major Non-Controlling Authorized Representative with respect to the Shared Collateral) after the
occurrence of both (a) an Event of Default (under and as defined in the Senior Notes First Lien
Documents or the Additional First Lien Documents, in each case, under which such Non-Controlling
Authorized Representative is the Authorized Representative) and (b) the Collateral Agent’s and each
other Authorized Representative’s receipt of written notice from such Non-Controlling Authorized
Representative certifying that (i) such Non-Controlling Authorized Representative is the Major
Non-Controlling Authorized Representative with respect to the Shared Collateral and that an Event
of Default (under and as defined in the Senior Notes First Lien Documents or the Additional First
Lien Documents, in each case, under which such Non-Controlling Authorized Representative is the
Authorized Representative) has occurred and is continuing and (ii) the First Lien Obligations of
the Class with respect to which such Non-Controlling Authorized Representative is the Authorized
Representative are currently due and payable in full (whether as a result of acceleration thereof
or otherwise) in accordance with the terms of the Additional First Lien Documents of such Class;
provided that the Non-Controlling Authorized Representative Enforcement Date shall be
stayed and shall not occur (and shall be deemed not to have occurred for all purposes hereof) with
respect to the Shared Collateral (A) at any time the Collateral Agent has commenced and is
diligently pursuing any enforcement action with respect to the Shared Collateral (or the
Administrative Agent shall have instructed the Collateral Agent to do the same) or (B) at any time
the Grantor that has granted a security interest in such Shared Collateral is then a debtor under
or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding.



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     “Non-Controlling Secured Parties” means, at any time with respect to any Shared
Collateral, the Secured Parties that are not Controlling Secured Parties at such time with respect
to such Shared Collateral.



     “Original Credit Agreement” means that certain Fourth Amended and Restated Credit
Agreement dated as of February 7, 2006, among the Company, Comerica Bank, as administrative agent
and collateral agent for the banks, and the banks party thereto, as amended
(including without limitation through the date hereof), restated, extended, refinanced,
supplemented, waived or otherwise modified from time to time.



     “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, governmental authority or other entity.



     “Possessory Collateral” means any Shared Collateral in the possession of the
Collateral Agent (or its agents or bailees), to the extent that possession thereof perfects a Lien
thereon under the Uniform Commercial Code of any jurisdiction. Possessory Collateral includes,
without limitation, any “Certificated Securities”, “Promissory Notes”, “Instruments” and “Chattel
Paper” (as such terms are defined under the Michigan UCC), in each case, delivered to or in the
possession of the Collateral Agent under the terms of the First Lien Security Documents.



     “Proceeds” has the meaning assigned to such term in Section 2.01(b).



     “Refinance” means, in respect of any indebtedness, to refinance, extend, renew,
refund, defease, amend, increase, modify, supplement, restructure, refund, replace or repay, or to
issue other indebtedness or enter into alternative financing arrangements, in exchange or
replacement for such indebtedness (and/or commitments with respect to indebtedness), in whole or in
part, in each case, whether by adding or replacing lenders, creditors, agents, borrowers,
guarantors or otherwise and including any of the foregoing effected through any credit agreement,
indenture or other agreement or instrument or after the original instrument giving rise to such
indebtedness has been terminated. "Refinanced” and “Refinancing” have correlative meanings.



     “Related Secured Parties” means, with respect to the Authorized Representative of any
Class, the Secured Parties of such Class.



     “Responsible Officer” means, with respect to any Person, the chief executive officer,
the chief financial officer, principal accounting officer, treasurer, general counsel or another
executive officer of such Person.



     “Secured Parties” means (a) the Credit Agreement Secured Parties, (b) the Senior Notes
Secured Parties and (c) the Additional Secured Parties.



     “Securities Act” means the United States Securities Act of 1933, as amended.



     “Securitization Intercreditor Agreement(s)” has the meaning assigned to such term in
Section 2.05.



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     “Senior Notes Authorized Representative” has the meaning assigned to such term in the
preamble hereto.



     “Senior Notes First Lien Documents” means the Senior Notes Indenture, and all other
instruments, agreements and other documents evidencing or governing Senior Notes First Lien
Obligations (including any Future Senior Notes) or providing any guarantee, Lien or other right in
respect thereof.



     “Senior Notes First Lien Obligations” has the meaning assigned to the term "Notes
Obligations” in the Senior Notes First Lien Documents.



     “Senior Notes Indenture” means that certain Indenture dated as of February ___, 2010,
among the Company, the Guarantors identified therein and U.S. Bank National Association, as
Trustee.



     “Senior Notes Secured Parties” means the Senior Notes Authorized Representative, the
"Holders” (as defined in the Senior Notes First Lien Documents) and the other holders of any Senior
Notes First Lien Obligations.



     “Series”, when used in reference to (a) Senior Notes First Lien Obligations, refers to
such Senior Notes First Lien Obligations as shall have been issued or incurred pursuant to the same
indentures or other agreements and with respect to which the same Person acts as the Senior Notes
Authorized Representative and (b) Additional First Lien Obligations, refers to such Additional
First Lien Obligations as shall have been issued or incurred pursuant to the same indentures or
other agreements and with respect to which the same Person acts as the Additional Authorized
Representative.



     “Shared Collateral” means, at any time, Collateral on which the Collateral Agent shall
have at such time a valid and perfected Lien for the benefit of Secured Parties of any two or more
Classes; provided that, for the avoidance of doubt, the LC Cash Collateral shall not
constitute Shared Collateral. If First Lien Obligations of more than two Classes are outstanding
at any time, then any Collateral shall constitute Shared Collateral with respect to First Lien
Obligations or Secured Parties of any Class only if the Collateral Agent has at such time a valid
and perfected Lien on such Collateral securing First Lien Obligations of such Class for the benefit
of the Secured Parties of such Class.



     “Subject Securities” has the meaning assigned to such term in Section 2.01(b)(2)(i).



     “Subsidiary” shall mean any other corporation, association, joint stock company,
business trust, limited liability company, partnership (whether general or limited) or any other
business entity of which more than fifty percent (50%) of the outstanding voting stock, share
capital, membership or other interests, as the case may be, is owned either directly or indirectly
by any Person or one or more of its Subsidiaries, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both, by any Person
and/or its Subsidiaries. Unless otherwise specified to the contrary herein or the context otherwise
requires, Subsidiary(ies) shall refer to each Person which is a Subsidiary of the Company.



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     “Supplemental Credit Agreement” means any credit agreement, loan agreement, note
purchase agreement (except in connection with notes that are intended to be tradable either as
registered securities under the Securities Act or pursuant to Rule 144A or Regulation S under the
Securities Act), receivables purchase agreement, commercial paper facility, promissory note or
other agreement or instrument evidencing or governing the terms of a credit facility which meets
the requirements contained in Article VI of this Agreement. For the avoidance of doubt, no
facility evidenced or governed by a Supplemental Credit Agreement shall be required to be a
revolving or asset-based loan facility.



     SECTION 1.02. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise or unless specifically stated to the contrary, (a) any definition of or
reference to any agreement, instrument, other document, statute or regulation herein shall be
construed as referring to such agreement, instrument, other document, statute or regulation as from
time to time amended, supplemented or otherwise modified, (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, but shall not be deemed to
include the subsidiaries of such Person unless express reference is made to such subsidiaries, (c)
the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections and Exhibits shall be construed to refer to Articles and
Sections of, and Exhibits to, this Agreement and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.



     SECTION 1.03. Concerning the Collateral Agent and the Authorized Representatives. (a)
Each acknowledgment, agreement, consent and waiver (whether express or implied) in this Agreement
made by the Collateral Agent and the Original Administrative Agent, whether on behalf of itself or,
in the case of the Original Administrative Agent, on behalf of any other Credit Agreement Secured
Party, is made in reliance on the authority granted to the Collateral Agent and the Original
Administrative Agent pursuant to the authorization thereof under the Credit Agreement. It is
understood and agreed that the Collateral Agent and the Administrative Agent shall not be
responsible for or have any duty to ascertain or inquire into whether any other Credit Agreement
Secured Party is in compliance with the terms of this Agreement, and no party hereto or any other
Secured Party shall have any right of action whatsoever against the Collateral Agent or the
Administrative Agent for any failure of any other Credit Agreement Secured Party to comply with the
terms hereof or for any other Credit Agreement Secured Party taking any action contrary to the
terms hereof.



          (b) Each acknowledgment, agreement, consent and waiver (whether express or implied) in this
Agreement made by the Authorized Representative of any Class not referred to in paragraph (a)
above, whether on behalf of itself or any of its Related Secured Parties, is made in reliance on
the authority granted to such Authorized Representative pursuant to the




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authorization thereof under
the First Lien Credit Documents of such Class. It is understood and agreed that any such
Authorized Representative shall not be responsible for or have any duty to ascertain or inquire
into whether any of its Related Secured Parties is in compliance with the terms of this Agreement,
and no party hereto or any other Secured Party shall have any right of action whatsoever against
such Authorized Representative for any failure of any of its Related Secured Parties to comply with
the terms hereof or for any of its Related Secured Parties taking any action contrary to the terms
hereof.




ARTICLE II

Priorities and Agreements with Respect to Shared Collateral




     SECTION 2.01. Equal Priority. (a) Notwithstanding the date, time, method, manner or
order of grant, attachment or perfection of any Lien on any Shared Collateral securing First Lien
Obligations of any Class, and notwithstanding any provision of the Uniform Commercial Code of any
jurisdiction, any other applicable law or any First Lien Credit Document, or any other circumstance
whatsoever (but, in each case, subject to Section 2.02), each Authorized Representative, for itself
and on behalf of its Related Secured Parties, agrees that valid and perfected Liens on any Shared
Collateral securing First Lien Obligations of any Class shall be of equal priority with valid and
perfected Liens on such Shared Collateral securing First Lien Obligations of any other Class.



     (b) The Collateral Agent and each Authorized Representative, for itself and on behalf of its
Related Secured Parties, agrees that, notwithstanding any provision of any First Lien Credit
Document to the contrary (but subject to Section 2.02), if (i) an Event of Default shall have
occurred and is continuing and the Collateral Agent or any such Authorized Representative or any of
its Related Secured Parties is taking action to enforce rights or exercise remedies in respect of
any Shared Collateral, (ii) any distribution is made in respect of any Shared Collateral in any
Insolvency or Liquidation Proceeding or (iii) an Event of Default shall have occurred and is
continuing and the Collateral Agent or any such Authorized Representative or any of its Related
Secured Parties receives any payment with respect to any Shared Collateral pursuant to any
intercreditor agreement other than this Agreement, then the proceeds of any sale, collection or
other liquidation of any Shared Collateral obtained by such Authorized Representative or any of its
Related Secured Parties on account of such enforcement of rights or exercise of remedies, and any
such distributions or payments received by such Authorized Representative or any of its Related
Secured Parties (all such proceeds, distributions and payments being collectively referred to as
“Proceeds”), shall be applied as follows:




     (1) FIRST, to the payment of all amounts owing (other than in respect of principal or
interest) to the Collateral Agent (in its capacity as such) pursuant to the terms of any
First Lien Credit Document, including all costs and expenses incurred by the Collateral
Agent in connection with such sale, collection or other liquidation, or such other
enforcement of rights or exercise of remedies (including all court costs and the fees and
expenses of its agents and legal counsel), the repayment of all advances made by the
Collateral Agent for protective advances to protect or preserve the Shared Collateral, any
other costs or expenses incurred in connection with the exercise of any right or remedy
hereunder or under any other First Lien Credit Document owing or reimbursable to the



11









 






Collateral Agent under any First Lien Credit Document in its capacity as such, and all other
fees, indemnities and other amounts (other than in respect of principal or interest) owing
or reimbursable to the Collateral Agent under any First Lien Credit Document in its capacity
as such), it being understood that the Collateral Agent may, if duly acting in other
capacities under any First Lien Credit Document, allocate any such costs and expenses which
apply to more than one capacity, on a reasonable basis determined by Collateral Agent in
good faith;




     (2) SECOND, to the payment in full of the First Lien Obligations of each Class secured
by a valid and perfected Lien on such Shared Collateral at the time due and payable (the
amounts so applied to be distributed ratably in accordance with the amounts of the First
Lien Obligations of each such Class outstanding on the date of such application);
provided that amounts applied under this clause SECOND during any period when the
First Lien Obligations of any such Class or any portion thereof (including without
limitation any Letters of Credit issued under the Credit Agreement or any Net Hedging
Obligations, to the extent constituting Credit Agreement Obligations) shall not be due and
payable in full shall be allocated to the applicable First Lien Obligations of such Class as
if such First Lien Obligations were at the time due and payable in full (as reasonably
determined by Collateral Agent), and any amounts so allocated to the payment of the First
Lien Obligations of such Class that are not yet due and payable shall be transferred to, and
held by, the Authorized Representative of such Class solely as collateral for the applicable
First Lien Obligations of such Class (and shall not constitute Shared Collateral for
purposes hereof) until the date on which the First Lien Obligations of such Class shall have
become due and payable in full (at which time such amounts shall be applied to the payment
thereof, with any excess promptly returned to the Collateral Agent for application under
this Section 2.01); provided, further, that no payments or distributions on
the account of any Senior Notes First Lien Obligations or Additional First Lien Obligations
under this Section 2.01(b)(2),




     (i) shall be made from the proceeds of the sale or other disposition of any
stock, other equity interests and other securities (“Subject Securities”) of
a Subsidiary of the Company in excess of the proportional share of the Maximum
Attributable Amount of such proceeds if Rule 3-16 of Regulation S-X under the
Securities Act of 1933 (or any other federal law, rule or regulation) would require
separate financial statements of such Subsidiary (an “Affected Subsidiary”)
to be filed with the Securities and Exchange Commission (or any other federal
government agency) by virtue of the securities of such Affected Subsidiary being
part of the Collateral securing any of the Senior Notes First Lien Obligations or
Additional First Lien Obligations, as the case may be,




     (ii) shall be made from the proceeds of the sale or other disposition of any of
the property or assets of any “Unrestricted Subsidiary” (as defined in the First
Lien Credit Documents relating thereto), and




     (iii) shall be made from the proceeds of the sale or other disposition of any
of the property or assets of any Grantor if such Senior Notes First Lien



12









 






Obligations
or such Additional First Lien Obligations, as the case may be, have been defeased
(through legal defeasance or covenant defeasance) as provided in the applicable
First Lien Credit Documents or the conditions for the satisfaction and discharge
thereunder have been satisfied; and




     (3) THIRD, after payment in full of all the First Lien Obligations, to the Company and
the other Grantors or their successors or assigns, as their interests may appear, to
whomsoever may be lawfully entitled to receive the same pursuant to this
Agreement or any other intercreditor agreement, or as a court of competent jurisdiction
may direct.



          (c) It is acknowledged that the First Lien Obligations of any Class may, subject to the
limitations set forth in the First Lien Credit Documents, be increased, extended, renewed,
replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended
or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or
the provisions of this Agreement defining the relative rights of the Secured Parties of any Class.




          (d) Notwithstanding anything in this Agreement or any First Lien Security Document to the
contrary, LC Cash Collateral held by any Administrative Agent, the Collateral Agent or any Issuing
Bank pursuant to any Credit Agreement shall be applied as specified in the applicable section of
the applicable Credit Agreement.




          (e) The Collateral Agent shall make all payments and distributions under Section 2.01(b): (i)
on account of Credit Agreement Obligations of any Class to the Administrative Agent of such Class,
pursuant to directions of the Administrative Agent, for redistribution to the holders of the
applicable Credit Agreement Obligations; (ii) on account of the Senior Notes First Lien Obligations
to the Senior Notes Authorized Representative, pursuant to directions of the Senior Notes
Authorized Representative, for redistribution to the holders of the applicable Senior Notes First
Lien Obligations; and (iii) on account of the Additional First Lien Obligations of any Class to the
Additional Authorized Representative of such Class pursuant to directions of such Additional
Authorized Representative, for redistribution to the holders of the applicable Additional First
Lien Obligations of such Class.




     SECTION 2.02. Impairments. It is the intention of the parties hereto that the Secured
Parties of any Class (and not the Secured Parties of any other Class) bear the risk of (a) any
determination by a court of competent jurisdiction that (i) any First Lien Obligations of such
Class are unenforceable under applicable law or are subordinated to any other obligations (other
than to any First Lien Obligations of any other Class), (ii) any First Lien Obligations of such
Class do not have a valid and perfected Lien on any of the Collateral securing any First Lien
Obligations of any other Class and/or (iii) any Person (other than any Authorized Representative or
any Secured Party) has a Lien on any Shared Collateral that is senior in priority to the Lien on
such Shared Collateral securing First Lien Obligations of such Class, but junior to the Lien on
such Shared Collateral securing any First Lien Obligations of any other Class (any such Lien being
referred to as an “Intervening Lien”, and any such Person being referred to as an
“Intervening Creditor”), or (b) the existence of any Collateral securing First Lien
Obligations of



13









 




any other Class that does not constitute Shared Collateral with respect to First
Lien Obligations of such Class (any condition referred to in clause (a) or (b) with respect to
First Lien Obligations of such Class being referred to as an “Impairment” of such Class);
provided that the existence of any limitation on the maximum claim that may be made against
any Mortgaged Property that applies to First Lien Obligations of all Classes shall not be deemed to
be an Impairment of First Lien Obligations of any Class. In the event an Impairment exists with
respect to First Lien Obligations of any Class, the results of such Impairment shall be borne
solely by the Secured Parties of such Class, and the rights of the
Secured Parties of such Class (including the right to receive distributions in respect of
First Lien Obligations of such Class pursuant to Section 2.01(b)) set forth herein shall be
modified to the extent necessary so that the results of such Impairment are borne solely by the
Secured Parties of such Class. In furtherance of the foregoing, in the event First Lien
Obligations of any Class shall be subject to an Impairment in the form of an Intervening Lien of
any Intervening Creditor, the value of any Shared Collateral or Proceeds that are allocated to such
Intervening Creditor shall be deducted solely from the Shared Collateral or Proceeds to be
distributed in respect of First Lien Obligations of such Class. In addition, in the event the
First Lien Obligations of any Class are modified pursuant to applicable law (including pursuant to
Section 1129 of the Bankruptcy Code or any equivalent provision of, or order granted pursuant to,
any other Bankruptcy Law), any reference to the First Lien Obligations of such Class or the First
Lien Documents of such Class shall refer to such obligations or such documents as so modified.




     SECTION 2.03. Actions with Respect to Shared Collateral; Prohibition on Certain
Contests. (a) Notwithstanding anything to the contrary in the First Lien Credit Documents
(other than this Agreement), (i) only the Collateral Agent shall, and shall have the right to,
exercise, or refrain from exercising, any rights, remedies and powers with respect to the Shared
Collateral, including any action to perfect (or further perfect) or enforce its security interest
in or realize upon any Shared Collateral and any right, remedy or power with respect to any Shared
Collateral under any intercreditor agreement (other than this Agreement), and then only on the
instructions of the Applicable Authorized Representative, (ii) the Collateral Agent shall not be
required to, and shall not, follow any instructions or directions with respect to Shared Collateral
(including with respect to any intercreditor agreement with respect to any Shared Collateral) from
any Non-Controlling Authorized Representative (or any other Secured Party, other than the
Applicable Authorized Representative), it being understood and agreed that, notwithstanding any
such instruction or direction by the Applicable Authorized Representative, the Collateral Agent
shall not be required to take any action that, in its opinion, could expose the Collateral Agent to
liability or be contrary to any First Lien Document or applicable law and (iii) no Non-Controlling
Authorized Representative or any other Secured Party (other than the Applicable Authorized
Representative) shall, or shall instruct the Collateral Agent to, commence any judicial or
nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator
or similar official appointed for or over, attempt any action to take possession of, take any other
action to enforce its security interest in or realize upon, or exercise any other right, remedy or
power with respect to (including any right, remedy or power under any intercreditor agreement other
than this Agreement) any Shared Collateral, whether under any First Lien Credit Document,
applicable law or otherwise, it being agreed that only the Collateral Agent, acting on the
instructions of the Applicable Authorized Representative and in accordance with the applicable
First Lien Security Documents, shall be entitled to take any such actions or exercise



14









 




any such
rights, remedies and powers with respect to Shared Collateral. Notwithstanding the equal priority
of the Liens established under Section 2.01(a), the Collateral Agent (acting on the instructions of
the Applicable Authorized Representative) may deal with the Shared Collateral as if such Applicable
Authorized Representative had a senior Lien on such Collateral. No Non-Controlling Authorized
Representative or Non-Controlling Secured Party will contest, protest or object to any foreclosure
proceeding or action brought by the Collateral Agent, the Applicable Authorized Representative or
any Controlling Secured Party, or any other exercise by the
Collateral Agent, the Applicable Authorized Representative or any Controlling Secured Party of
any rights, remedies or powers with respect to the Shared Collateral, or seek to cause the
Collateral Agent to do so. Nothing in this paragraph shall be construed to limit the rights and
priorities of the Collateral Agent, any Authorized Representative or any other Secured Party with
respect to any Collateral not constituting Shared Collateral.




          (b) Each of the Authorized Representatives agrees, for itself and on behalf of its Related
Secured Parties, that it will not accept any Lien on any asset of the Company or any Subsidiary
securing First Lien Obligations of any Class for the benefit of any Secured Party of such Class
unless such Lien is created pursuant to a First Lien Security Document with the Collateral Agent
and the collateral created thereby becomes Shared Collateral under this Agreement, other than (i)
any Liens on LC Cash Collateral created pursuant to the Credit Agreement, (ii) any funds deposited
for the discharge or defeasance of First Lien Obligations of any Class and (iii) any rights of
set-off created under the First Lien Credit Documents of any Class.




          (c) Each of the Authorized Representatives agrees, for itself and on behalf of its Related
Secured Parties, that neither such Authorized Representative nor its Related Secured Parties will
(and each hereby waives any right to) challenge or contest or support any other Person in
challenging or contesting, in any proceeding (including any Insolvency or Liquidation Proceeding),
(i) the validity, attachment, creation, perfection, priority or enforceability of a Lien held by or
on behalf of any other Authorized Representative or any of its Related Secured Parties in all or
any part of the Collateral, (ii) the validity, enforceability or effectiveness of any First Lien
Obligation of any Class or any First Lien Security Document of any Class or (iii) the validity,
enforceability or effectiveness of the priorities, rights or duties established by, or other
provisions of, this Agreement; provided that nothing in this Agreement shall be construed
to prevent or impair the rights of the Collateral Agent, any Authorized Representative or any of
its Related Secured Parties to enforce this Agreement.




     SECTION 2.04. No Interference; Payment Over. (a) Each of the Authorized
Representatives, for itself and on behalf of its Related Secured Parties, agrees that (i) neither
such Authorized Representative nor its Related Secured Parties will (and each hereby waives any
right to) take or cause to be taken any action the purpose of which is, or could reasonably be
expected to be, to interfere, hinder or delay, in any manner, whether by judicial proceedings or
otherwise, any sale, transfer or other disposition of the Shared Collateral by the Collateral
Agent, (ii) except as provided in Section 2.03, neither such Authorized Representative nor its
Related Secured Parties shall have any right (A) to direct the
Collateral Agent or any other Secured Party to exercise any right, remedy or power with respect to any Shared Collateral
(including pursuant to any intercreditor agreement) or (B) to consent to the exercise by the
Collateral Agent or any



15









 




other Secured Party of any right, remedy or power with respect to any
Shared Collateral, (iii) neither such Authorized Representative nor its Related Secured Parties
will (and each hereby waives any right to) institute any suit or proceeding, or assert in any suit
or proceeding any claim, against the Collateral Agent or any other Secured Party seeking damages
from or other relief by way of specific performance, instructions or otherwise with respect to any
Shared Collateral, and none of the Collateral Agent, any Applicable Authorized Representative or
any other Secured Party shall be liable for any
action taken or omitted to be taken by the Collateral Agent, such Applicable Authorized
Representative or such other Secured Party with respect to any Shared Collateral in accordance with
the provisions of this Agreement, and (iv) neither such Authorized Representative nor its Related
Secured Parties will (and each hereby waives any right to) seek to have any Shared Collateral or
any part thereof marshaled upon any foreclosure or other disposition of such Shared Collateral;
provided that nothing in this Agreement shall be construed to prevent or impair the rights of the
Collateral Agent or any Authorized Representative or any of its Related Secured Parties to enforce
this Agreement.




          (b) Each Authorized Representative, on behalf of itself and its Related Secured Parties,
agrees that if such Authorized Representative or any of its Related Secured Parties shall at any
time obtain possession of any Shared Collateral or receive any Proceeds (other than as a result of
any application of Proceeds pursuant to Section 2.01(b)) at any time prior to the Discharge of
First Lien Obligations of each other Class, (i) such Authorized Representative or its Related
Secured Party, as the case may be, shall promptly inform each Authorized Representative thereof,
(ii) such Authorized Representative or its Related Secured Party shall hold such Shared Collateral
or Proceeds in trust for the benefit of the Secured Parties of any Class entitled thereto pursuant
to Section 2.01(b) and (iii) such Authorized Representative or its Related Secured Party shall
promptly transfer such Shared Collateral or Proceeds to the Collateral Agent, for distribution in
accordance with Section 2.01(b).




     SECTION 2.05. Automatic Release of Liens; Amendments to First Lien Security Documents;
Securitization Intercreditor Agreement. (a) Notwithstanding anything to the contrary in the
First Lien Credit Documents or First Lien Security Documents, if at any time the Collateral Agent
acting at the direction or with the concurrence of the Applicable Authorized Representative
forecloses upon or otherwise exercises legal rights, remedies and powers against any Shared
Collateral resulting in a disposition thereof, then (whether or not any Insolvency or Liquidation
Proceeding is pending at the time) the Liens on such Shared Collateral in favor of the Collateral
Agent, for the benefit of the Secured Parties of all Classes, will automatically be released and
discharged; provided that any Proceeds realized therefrom shall be applied pursuant to Section
2.01(b).



          (b) Each of the Authorized Representatives, for itself and on behalf of its Related Secured
Parties, acknowledges and agrees that (i) the Collateral Agent may enter into any amendment or
other modification to any First Lien Security Document so long as the Collateral Agent receives a
certificate of the Company and an opinion of counsel reasonably satisfactory to the Collateral
Agent stating that such amendment or other modification is permitted by the terms of the First Lien
Credit Documents of each Class; (ii) the Collateral Agent may enter into any amendment or other
modification to any First Lien Security Document solely as such First Lien Security Document
relates to First Lien Obligations of a particular Class so




16









 







long as (A) such amendment or
modification is in accordance with the First Lien Credit Documents of such Class and (B) such
amendment or modification does not adversely affect the interests of the Secured Parties of any
other Class; and (iii) the Collateral Agent may enter into new or amended and restated
securitization intercreditor agreements (each, a “Securitization Intercreditor Agreement”), with
the same or other parties, on substantially the same terms as those contained in the Existing
Securitization Intercreditor Agreement, as in effect on the date
hereof, or enter into new Securitization Intercreditor Agreements or amend or modify any
Securitization Intercreditor Agreements on terms which do not adversely affect the interests of the
Secured Parties of any Class.




          (c) Each Authorized Representative agrees to execute and deliver (at the sole cost and expense
of the Grantors) all such acknowledgments, consents, confirmations, authorizations and other
instruments as shall reasonably be requested by the Collateral Agent to evidence and confirm any
release of Shared Collateral or amendment or modification to any First Lien Security Document or
the entering into of any Securitization Intercreditor Agreement provided for in this Section.




     SECTION 2.06. Certain Agreements with Respect to Bankruptcy and Insolvency
Proceedings. (a) The Authorized Representative of each Class, for itself and on behalf of its
Related Secured Parties, agrees that, if the Company or any other Grantor shall become subject to a
case or proceeding (a “Bankruptcy Case”) under the Bankruptcy Code or any other Bankruptcy Law and
shall, as debtor(s)-in-possession, move for approval of financing
(“DIP Financing”) to be provided
by one or more lenders (the “DIP Lenders”) under Section 364 of the Bankruptcy Code or any
equivalent provision of, or order granted pursuant to, any other Bankruptcy Law or the use of cash
collateral under Section 363 of the Bankruptcy Code or any equivalent provision of, or order
granted pursuant to, any other Bankruptcy Law, neither such Authorized Representative nor its
Related Secured Parties will raise any objection to any such financing or to the Liens or court
ordered charges, if applicable, on the Shared Collateral securing any such financing (“DIP
Financing Liens”) or to any use of cash collateral that constitutes Shared Collateral, in each case
unless the Applicable Authorized Representative, or any Controlling Secured Party, shall then
oppose or object to such DIP Financing or such DIP Financing Liens or such use of cash collateral
(and (i) to the extent that such DIP Financing Liens are senior to the Liens on any such Shared
Collateral for the benefit of the Controlling Secured Parties, each Non-Controlling Secured Party
will subordinate its Liens with respect to such Shared Collateral on the same terms as the Liens of
the Controlling Secured Parties (other than any Liens of any Controlling Secured Parties
constituting DIP Financing Liens) are subordinated thereto, and (ii) to the extent that such DIP
Financing Liens rank pari passu with the Liens on any such Shared Collateral granted to secure the
First Lien Obligations of the Controlling Secured Parties, each Non-Controlling Secured Party will
confirm the priorities with respect to such Shared Collateral as set forth herein), in each case so
long as (A) the Secured Parties of such Class retain the benefit of their Liens on all such Shared
Collateral subject to the DIP Financing Liens, including proceeds thereof arising after the
commencement of the Bankruptcy Case, with such Liens having the same priority with respect to Liens
of the Secured Parties of any other Class (other than any Liens of the Secured Parties of such
other Class constituting DIP Financing Liens) as existed prior to the commencement of the
Bankruptcy Case, (B) the Secured Parties of such Class are granted Liens on any additional
collateral provided to



17









 




the Secured Parties of any other Class as adequate protection or otherwise
in connection with such DIP Financing or use of cash collateral, with such Liens having the same
priority with respect to Liens of the Secured Parties of any other Class (other than any Liens of
the Secured Parties of such other Class constituting DIP Financing Liens) as existed prior to the
commencement of the Bankruptcy Case, and (C) if any amount of such DIP Financing or cash collateral
is applied to repay any First Lien Obligations,
such amount is applied in accordance with Section 2.01(b); provided that the Secured
Parties of each Class shall have a right to object to the grant, as security for the DIP Financing,
of a Lien on any Collateral subject to Liens in favor of the Secured Parties of such Class or its
Authorized Representative that shall not constitute Shared Collateral; provided
further that any Secured Party receiving adequate protection granted in connection with the
DIP Financing or such use of cash collateral shall not object to any other Secured Party receiving
adequate protection comparable to any such adequate protection granted to such Secured Party.
Notwithstanding the provisions of Section 2.01 and this Section 2.06, (A) if the Secured Parties of
any Class are granted adequate protection in the form of periodic payments in connection with such
DIP Financing or use of cash collateral, the proceeds of such adequate protection shall be for the
account of the Secured Parties of such Class and (B) no Secured Party of any Class shall be
prohibited from (x) seeking adequate protection in the form of periodic payments to the extent that
any Secured Party of any other Class is receiving such payments or (y) objecting to any DIP
Financing or use of cash collateral on the basis that any Secured Party of any other Class is
receiving such payments (but the Secured Parties of such Class are not).




     SECTION 2.07. Reinstatement. If, in any Insolvency or Liquidation Proceeding or
otherwise, all or part of any payment with respect to the First Lien Obligations of any Class
previously made shall be rescinded for any reason whatsoever (including an order or judgment for
disgorgement of a preference under the Bankruptcy Code, or any similar Federal, state or foreign
law), then the terms and conditions of Article II shall be fully applicable thereto until all the
First Lien Obligations of such Class shall again have been paid in full in cash.



     SECTION 2.08. Insurance and Condemnation Awards. As between the Secured Parties, the
Collateral Agent, acting at the direction of the Applicable Authorized Representative, shall have
the exclusive right, subject to the rights of the Grantors under the First Lien Secured Documents,
to settle and adjust claims in respect of Shared Collateral under policies of insurance covering or
constituting Shared Collateral and to approve any award granted in any condemnation or similar
proceeding, or any deed in lieu of condemnation, in respect of the Shared Collateral;
provided that any Proceeds arising therefrom shall be subject to Section 2.01(b).



     SECTION 2.09. Refinancings. The First Lien Obligations of any Class may be
Refinanced, in whole or in part, in each case, without notice to, or the consent of any Secured
Party of any other Class, all without affecting the priorities provided for herein or the other
provisions hereof; provided that nothing in this paragraph shall affect any limitation on,
or requirements in connection with, any such Refinancing that is set forth in the First Lien Credit
Documents of any such other Class; and provided further that, if any obligations of
the Grantors in respect of such Refinancing indebtedness of such First Lien Obligations shall be
secured by Liens on any Shared Collateral, then such obligations and the holders thereof shall be
subject to



18









 




and bound by the provisions of this Agreement, and the Authorized Representative of the
holders of any such Refinancing
indebtedness shall be required to execute an Additional Authorized Representative Joinder
Agreement.




     SECTION 2.10. Possessory Collateral Agent as Gratuitous Bailee for Perfection. (a)
The Collateral Agent agrees to hold any Shared Collateral constituting Possessory Collateral that
is part of the Collateral in its possession or control (or in the possession or control of its
agents or bailees) as gratuitous bailee (such bailment being intended, among other things, to
satisfy the requirements of Sections 8-301(a)(2) and 9-313(c) of the Michigan UCC) for the benefit
of each other Secured Party and any assignee solely for the purpose of perfecting the security
interest granted in such Possessory Collateral, if any, pursuant to the applicable First Lien
Security Documents, in each case, subject to the terms and conditions of this Section. Pending
delivery to the Collateral Agent, each Authorized Representative agrees to hold any Shared
Collateral constituting Possessory Collateral, from time to time in its possession, as gratuitous
bailee for the benefit of each other Secured Party and any assignee, solely for the purpose of
perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the
applicable First Lien Security Documents, in each case, subject to the terms and conditions of this
Section.



          (b) The duties or responsibilities of the Collateral Agent and each Authorized Representative
under this Section shall be limited solely to holding any Shared Collateral constituting Possessory
Collateral as gratuitous bailee for the benefit of each other Secured Party for purposes of
perfecting the Lien held by such Secured Parties therein.



ARTICLE III

Determinations with Respect to Obligations and Liens




     Whenever, in connection with the exercise of its rights or the performance of its obligations
hereunder, the Collateral Agent or the Authorized Representative of any Class shall be required to
determine the existence or amount of any First Lien Obligations of any Class, or the Shared
Collateral subject to any Lien securing the First Lien Obligations of any Class (and whether such
Lien constitutes a valid and perfected Lien), it may request that such information be furnished to
it in writing by the Authorized Representative of such Class and shall be entitled to make such
determination on the basis of the information so furnished; provided that if,
notwithstanding such request, the Authorized Representative of the applicable Class shall fail or
refuse reasonably promptly to provide the requested information, the requesting Collateral Agent or
Authorized Representative shall be entitled to make any such determination by such method as it
may, in the exercise of its good faith judgment, determine, including by reliance upon a
certificate of a Responsible Officer the Company. The Collateral Agent and each Authorized
Representative may, for the purposes of this Agreement, rely conclusively, and shall be fully
protected in so relying, on any determination made by it in accordance with the provisions of the
preceding sentence (or as otherwise directed by a court of competent jurisdiction) and shall have
no liability to any Grantor, any Secured Party or any other Person as a result of such
determination or any action or not taken pursuant thereto.



19









 





ARTICLE IV

Concerning the Collateral Agent




     SECTION 4.01. Appointment and Authority. (a) Each of the Authorized Representatives,
for itself and on behalf of its Related Secured Parties, hereby irrevocably appoints Comerica Bank
to act as the Collateral Agent hereunder and under each of the First Lien Security Documents, and
authorizes the Collateral Agent to take such actions and to exercise such powers as are delegated
to the Collateral Agent by the terms hereof or thereof, including for purposes of acquiring,
holding and enforcing any and all Liens on Collateral granted by any Grantor to secure any of the
First Lien Obligations, together with such actions and powers as are reasonably incidental thereto.
In addition, to the extent required under the laws of any jurisdiction other than the United
States, each of the Authorized Representatives, for itself and on behalf of its Related Secured
Parties, hereby grants to the Collateral Agent any required powers of attorney to execute any First
Lien Security Document governed by the laws of such jurisdiction on such Secured Party’s behalf.
Without limiting the generality of the foregoing, the Collateral Agent is hereby expressly
authorized to execute any and all documents (including releases) with respect to the Shared
Collateral, and the rights of the Secured Parties with respect thereto, as contemplated by and in
accordance with the provisions of this Agreement and the First Lien Security Documents.



          (b) Each of the Authorized Representatives, for itself and on behalf of its Related Secured
Parties, acknowledges and agrees that the Collateral Agent shall be entitled, for the benefit of
the Secured Parties, to sell, transfer or otherwise dispose of or deal with any Shared Collateral
as provided herein and in the First Lien Security Documents, without regard to any rights, remedies
or powers to which the Non-Controlling Secured Parties would otherwise be entitled to as a result
of their Non-Controlling Secured Obligations. Without limiting the foregoing, each of the
Authorized Representatives, for itself and on behalf of its Related Secured Parties, agrees that
none of the Collateral Agent, the Applicable Authorized Representative or any other Secured Party
shall have any duty or obligation first to marshal or realize upon any type of Shared Collateral
(or any other Collateral securing any of the First Lien Obligations), or to sell, dispose of or
otherwise liquidate all or any portion of such Shared Collateral (or any other Collateral securing
any First Lien Obligations), in any manner that would maximize the return to the Non-Controlling
Secured Parties, notwithstanding that the order and timing of any such realization, sale,
disposition or liquidation may affect the amount of proceeds actually received by the
Non-Controlling Secured Parties from such realization, sale, disposition or liquidation. Each of
the Authorized Representatives, for itself and on behalf of its Related Secured Parties, waives any
claim they may now or hereafter have against the Collateral Agent or the Authorized Representative
or any Secured Party of any other Class arising out of (i) any actions that the Collateral Agent or
any such Authorized Representative or Secured Party takes or omits to take (including actions with
respect to the creation, perfection or continuation of Liens on any Collateral, actions with
respect to the foreclosure upon, sale or other disposition, release or depreciation of, or failure
to realize upon, any of the Collateral and actions with respect to the collection of any claim for
all or any part of the First Lien Obligations from any account debtor, guarantor or any other
party) in accordance with the First Lien Security Documents and this Agreement or to the collection
of the First Lien Obligations or the valuation, use, protection or release of any security for the
First Lien Obligations, (ii) any election by any Applicable





20









 







Authorized Representative or Secured
Parties, in any proceeding instituted under the Bankruptcy Code, of the application of Section
1111(b) of the Bankruptcy Code or (iii) subject to Section 2.06, any borrowing by, or grant of a
security interest or administrative expense priority under
Section 364 of the Bankruptcy Code or any equivalent provision of or order granted pursuant
to, any other Bankruptcy Law by, the Company or any of the Subsidiaries, as debtor-in-possession.
Notwithstanding any other provision of this Agreement, the Collateral Agent shall not accept any
Shared Collateral in full or partial satisfaction of any First Lien Obligations pursuant to Section
9-620 of the Uniform Commercial Code of any jurisdiction or any similar provision for any other
personal property security laws in any other jurisdiction, without the consent of each Authorized
Representative representing Secured Parties for whom such Collateral constitutes Shared Collateral.




          (c) Each of the Authorized Representatives, for itself and on behalf of its Related Secured
Parties, acknowledges and agrees that, upon any other obligations being designated hereunder as
Additional First Lien Obligations or any other Person becoming an Additional Authorized
Representative or any other Persons becoming Additional Secured Parties, the Collateral Agent will
continue to act in its capacity as Collateral Agent in respect of the then existing Authorized
Representatives and Secured Parties and such Additional Authorized Representative and Additional
Secured Parties.




     SECTION 4.02. Rights as a Secured Party. (a) The Person serving as the Collateral
Agent hereunder shall have the same rights and powers in its capacity as a Secured Party of any
Class as any other Secured Party of such Class and may exercise the same as though it were not the
Collateral Agent and the term “Secured Party”, “Secured Parties”, “Credit Agreement Secured Party”,
“Credit Agreement Secured Parties”, “Additional Secured Party” or “Additional Secured Parties”, as
applicable, shall, unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Collateral Agent hereunder in its individual capacity. The
Person serving as the Collateral Agent and its Affiliates may accept deposits from, lend money to,
act as the financial advisor or in any other advisory capacity for and generally engage in any kind
of banking, trust, advisory, underwriting or other business with the Company or any Subsidiary or
other Affiliate thereof as if such Person were not the Collateral Agent hereunder and without any
duty to obtain the consent of or to give notice to or to account therefor to any other Secured
Party.



     SECTION 4.03. Exculpatory Provisions. The Collateral Agent shall not have any duties
or obligations except those expressly set forth herein and in the other First Lien Security
Documents. Without limiting the generality of the foregoing, as between the Collateral Agent and
the other Secured Parties, the Collateral Agent:




     (i) shall not be subject to any fiduciary or other implied duties, regardless
of whether a Default or an Event of Default has occurred and is continuing;




     (ii) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated
hereby or by the First Lien Security Documents that the Collateral



21









 






Agent is required to exercise as directed in writing by the Applicable
Authorized Representative; provided that the Collateral Agent shall not be required
to take any action that, in its opinion or the opinion of its counsel, may expose
the Collateral Agent to liability or that is contrary to any First Lien Security
Document or applicable law;




     (iii) shall not, except as expressly set forth in this Agreement and in the
First Lien Security Documents, have any duty to disclose, and shall not be liable
for the failure to disclose, any information relating to the Company, any of its
Subsidiaries or any of their respective Affiliates that is communicated to or
obtained by the Person serving as the Collateral Agent or any of its Affiliates in
any capacity;




     (iv) shall not be liable for any action taken or not taken by it (i) with the
consent or at the request of the Applicable Authorized Representative or (ii) in the
absence of its own gross negligence or wilful misconduct or (iii) in reliance on a
certificate of an authorized officer of the Company stating that such action is
permitted by the terms of this Agreement and each of the First Lien Credit
Documents;




     (v) shall be deemed not to have knowledge of any Default or Event of Default
under any First Lien Credit Documents of any Class unless and until notice
describing such Default or Event Default (and captioned or otherwise identified as a
“notice of default”) is given to the Collateral Agent by the Authorized
Representative of such Class or the Company; and




     (vi) shall not be responsible for or have any duty to ascertain or inquire into
(A) any statement, recital, warranty or representation made in or in connection with
this Agreement or any First Lien Security Document, (B) the contents of any
certificate, report or other document delivered hereunder or thereunder or in
connection herewith or therewith, (C) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein or
the occurrence of any Default or Event of Default, (D) the validity, enforceability,
effectiveness or genuineness of this Agreement, any First Lien Security Document or
any other agreement, instrument or document, or the validity, attachment, creation,
perfection, priority or enforceability of any Lien purported to be created by the
First Lien Security Documents, (E) the value or the sufficiency of any Collateral
for First Lien Obligations of any Class or (F) the satisfaction of any condition set
forth in any First Lien Credit Document, other than to confirm receipt of items
expressly required to be delivered to the Collateral Agent.



     SECTION 4.04. Reliance by Collateral Agent. The Collateral Agent shall be entitled to
rely, and shall not incur any liability for relying, upon any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other
distribution) believed by it to be genuine and to have



22









 




been signed, sent or otherwise
authenticated by the proper Person. The Collateral Agent also shall be entitled to rely, and shall
not incur any liability for relying, upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person. The Collateral Agent may consult with legal
counsel (who may be counsel for the Company, any other Grantor or any Authorized Representative),
independent accountants and other experts selected by it, and shall not be liable for any action
taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.




     SECTION 4.05. Delegation of Duties. The Collateral Agent may perform any and all of
its duties and exercise its rights and powers hereunder or under any other First Lien Security
Document by or through any one or more sub-agents appointed by the Collateral Agent. The
Collateral Agent and any such sub-agent may perform any and all of its duties and exercise its
rights and powers by or through their respective Affiliates. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Affiliates of the Collateral Agent and any
such sub-agent, and shall apply to their respective activities as the Collateral Agent.



     SECTION 4.06. Resignation of Collateral Agent. (a) The Collateral Agent may at any
time give notice of its resignation as Collateral Agent under this Agreement and the First Lien
Security Documents to each Authorized Representative and the Company, and shall be required to
resign at the request of Company or any Authorized Representative if, having served in such
capacity, it is replaced as Administrative Agent under the Credit Agreement. Upon receipt of any
such notice of resignation, the Applicable Authorized Representative shall have the right, in
consultation with the Company (provided no Event of Default has occurred and is continuing), to
appoint a successor, provided that if such resignation results from the Collateral Agent’s no
longer serving as Administrative Agent under the Credit Agreement, the successor Administrative
Agent under the Credit Agreement shall be the successor Collateral Agent under this Agreement, if
it elects to accept such appointment hereunder. Any successor Collateral Agent appointed pursuant
to this Section 4.06 (other than any successor Administrative Agent which shall not be required to
satisfy such standards) shall be a commercial bank or other financial institution or trust company
organized under the laws of the United States of America or any state thereof having (1) a combined
capital and surplus of at least $250,000,000 and (2) a rating of its long-term senior unsecured
indebtedness of “A-2” or better by Moody’s Investors Service, Inc. or “A” or better by Standard &
Poor’s Services, a division of The McGraw Hill Companies, Inc. If no such successor shall have
been so appointed by the Applicable Authorized Representative and shall have accepted such
appointment within 30 days after the retiring Collateral Agent gives notice of its resignation,
then the retiring Collateral Agent and/or any Authorized Representative may, on behalf of the
Secured Parties, petition a court of competent jurisdiction for the appointment of a successor
Collateral Agent (meeting the qualifications set forth above) with respect to the First Lien
Obligations, in each case at the sole cost and expense of the Company, and such court may thereupon
after such notice, if any, as it may deem proper and prescribe appoint a successor Collateral
Agent; provided that if the Collateral Agent shall notify each Authorized Representative
and the Company that no qualifying Person has accepted such appointment, then
such resignation shall nonetheless become effective in accordance with such notice and (x) the
retiring Collateral Agent shall be discharged from its duties and obligations hereunder and under
the First Lien Security Documents (except that in the case of any Collateral held by the Collateral
Agent on behalf of the Secured Parties under any First Lien



23









 




Security Document, the retiring
Collateral Agent shall continue to hold such Collateral solely for purposes of maintaining the
perfection of the security interests of the Secured Parties therein until such time as a successor
Collateral Agent is appointed but with no obligation to take any further action at the request of
the Applicable Authorized Representative or any other Secured Parties) and (y) all payments,
communications and determinations provided to be made by, to or through the Collateral Agent shall
instead be made by or to each Authorized Representative directly, until such time as the Applicable
Authorized Representative appoints a successor Collateral Agent as provided above.




          (b) Upon the acceptance of a successor’s appointment as Collateral Agent hereunder and under
the First Lien Security Documents, such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring (or retired) Collateral Agent, and the
retiring Collateral Agent shall be discharged from all of its duties and obligations hereunder or
under the First Lien Security Documents (if not already discharged therefrom as provided above).
Notwithstanding the resignation of the Collateral Agent hereunder and under the First Lien Security
Documents, the provisions of this Article and Article VIII of the Original Credit Agreement (and
any comparable provisions contained in any Supplemental Credit Agreement) and the equivalent
provision of any Additional First Lien Document shall continue in effect for the benefit of such
retiring Collateral Agent, and its sub-agents in respect of any actions taken or omitted to be
taken by any of them while the retiring Collateral Agent was acting as Collateral Agent. Upon any
notice of resignation of the Collateral Agent hereunder and under the First Lien Security
Documents, each of the Grantors agrees to use commercially reasonable efforts to transfer (and
maintain the validity and priority of) the Liens in favor of the retiring Collateral Agent under
the First Lien Security Documents to the successor Collateral Agent.




     SECTION 4.07. Collateral Matters. Each of the Secured Parties irrevocably authorizes
the Collateral Agent, at its option and in its discretion:



          (a) to release any Lien on any property granted to or held by the Collateral Agent under any
First Lien Security Document (or confirm such release) in accordance with Sections 2.03 and 2.05 or
if permitted to do so by the terms of the First Lien Credit Documents; provided that the Collateral
Agent may conclusively rely upon receipt of a certificate of a Responsible Officer of the Company
stating that such release is permitted hereunder or by the terms of the First Lien Credit
Documents, whether in connection with a securitization permitted thereunder or otherwise; and




          (b) to release any Grantor from its obligations under the First Lien Security Documents (or
confirm such release) if permitted to do so by the terms of the First Lien Credit Documents;
provided that the Collateral Agent may conclusively rely upon receipt of a
certificate of a Responsible Officer of the Company stating that such release is permitted by
the terms of the First Lien Credit Documents.




ARTICLE V

No Reliance; No Liability




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     SECTION 5.01. No Reliance; Information. Each Authorized Representative, for itself
and on behalf of its Related Secured Parties, acknowledges that (a) such Authorized Representative
and its Related Secured Parties have, independently and without reliance upon the Collateral Agent,
any other Authorized Representative or any of its Related Secured Parties, and based on such
documents and information as they have deemed appropriate, made their own decision to enter into
the First Lien Credit Documents to which they are party and (b) such Authorized Representative and
its Related Secured Parties will, independently and without reliance upon the Collateral Agent, any
other Authorized Representative or any of its Related Secured Parties, and based on such documents
and information as they shall from time to time deem appropriate, continue to make their own
decision in taking or not taking any action under this Agreement or any other First Lien Credit
Document to which they are party. The Collateral Agent or the Authorized Representative or Secured
Parties of any Class shall have no duty to disclose to any Secured Party of any other Class any
information relating to the Company or any of the Subsidiaries, or any other circumstance bearing
upon the risk of nonpayment of any of the First Lien Obligations, that is known or becomes known to
any of them or any of their Affiliates, provided that, in connection with any enforcement
action taken or proposed to be taken by Collateral Agent hereunder or otherwise upon the reasonable
request of the Collateral Agent from time to time, each Authorized Representative shall provide the
Collateral Agent with information (including reasonable supporting backup detail) as to the
aggregate amounts of principal, interest, make whole amounts or similar prepayment premiums or
breakage costs outstanding at such time in respect of the relevant First Lien Obligations of its
Related Secured Parties, and the undrawn amounts of any outstanding Letters of Credit and an
estimate of the amount of any Net Hedging Obligations with respect thereto, and shall exercise good
faith, reasonable efforts to confirm the accuracy of such information. If the Collateral Agent or
the Authorized Representative or any Secured Party of any Class, in its sole discretion, undertakes
at any time or from time to time to provide any such information to, as the case may be, the
Authorized Representative or any Secured Party of any other Class, it shall be under no obligation
(i) to make, and shall not be deemed to have made, any express or implied representation or
warranty, including with respect to the accuracy, completeness, truthfulness or validity of the
information so provided, (ii) to provide any additional information or to provide any such
information on any subsequent occasion or (iii) to undertake any investigation.



     SECTION 5.02. No Warranties or Liability. (a) Each Authorized Representative, for
itself and on behalf of its Related Secured Parties, acknowledges and agrees that, neither the
Collateral Agent nor the Authorized Representative or any Secured Party of any other Class has made
any express or implied representation or warranty, including with respect to the execution,
validity, legality, completeness, collectability or enforceability of any of the First Lien Credit
Documents, the ownership of any Shared Collateral or the perfection or priority of any Liens thereon. The
Authorized Representative and the Secured Parties of any Class will be entitled to manage and
supervise their loans and other extensions of credit in the manner determined by them.



          (b) No Authorized Representative or Secured Parties of any Class shall have any express or
implied duty to the Authorized Representative or any Secured Party of any other Class to act or
refrain from acting in a manner that allows, or results in, the occurrence or





25









 







continuance of a
Default or an Event of Default under any First Lien Credit Document, regardless of any knowledge
thereof that they may have or be charged with.




ARTICLE VI

Additional First Lien Obligations




     The Company may, at any time and from time to time, subject to any limitations contained in
the First Lien Credit Documents in effect at such time, designate additional indebtedness and
related obligations that are, or are to be, secured by Liens on any assets of the Company or any
other Grantor that would, if such Liens were granted, constitute Shared Collateral as “Credit
Agreement Obligations” (to the extent issued under a Supplemental Credit Agreement) or “Additional
First Lien Obligations” by delivering to the Collateral Agent and each Authorized Representative
party hereto at such time a certificate of a Responsible Officer of the Company:



          (a) describing the indebtedness and other obligations being designated as Credit Agreement
Obligations or Additional First Lien Obligations, as the case may be, and including a statement of
the maximum aggregate outstanding principal amount of such indebtedness as of the date of such
certificate;




          (b) identifying the Additional First Lien Documents or Credit Agreement Documents under which
such Additional First Lien Obligations or Credit Agreement Obligations, as the case may be, are
issued or incurred or the guarantees of such First Lien Obligations are, or are to be, created, and
attaching copies of such Credit Agreement Documents or Additional First Lien Documents that each
Grantor has executed and delivered to the holder of such Credit Agreement Documents or Additional
First Lien Obligations, as the case may be, or the Person that serves as the administrative agent,
trustee or a similar representative for the holders of such First Lien Obligations (such Person
being referred to as the “Additional Authorized Representative”) with respect to such
Additional First Lien Obligations or Credit Agreement Obligations, as the case may be, on the
closing date of such Additional First Lien Obligations or Credit Agreement Obligations, certified
as being true and complete by a Responsible Officer of the Company;




          (c) identifying the Person that serves as the Additional Authorized Representative;




          (d) certifying that the incurrence of such Additional First Lien Obligations or Credit
Agreement Obligations, the creation of the Liens securing such Additional First Lien Obligations or
Credit Agreement Obligations and the designation of such Additional First Lien Obligations or
Credit Agreement Obligations as “Additional First Lien Obligations” or “Credit
Agreement Obligations”, respectively, hereunder do not violate or result in a default under
any provision of the First Lien Credit Documents in effect at such time;




          (e) certifying that the Additional First Lien Documents or Credit Agreement Obligations
authorize the Additional Authorized Representative to become a party hereto by executing and
delivering an Additional Authorized Representative Joinder Agreement and





26









 







provide that upon such
execution and delivery, such Additional First Lien Obligations or Credit Agreement Obligations and
the holders thereof shall become subject to and bound by the provisions of this Agreement; and




          (f) attaching a fully completed Authorized Representative Joinder Agreement executed and
delivered by the Additional Authorized Representative.




     Upon the delivery of such certificate and the related attachments as provided above, the
obligations designated in such notice as “Additional First Lien Obligations” or “Credit Agreement
Obligations” shall become Additional First Lien Obligations or Credit Agreement Obligations, as the
case may be, for all purposes of this Agreement.



ARTICLE VII

Miscellaneous




     SECTION 7.01. Notices. All notices and other communications provided for herein shall
be in writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:



          (a) if to any Grantor, to it (or, in the case of any Grantor other than the Company, to it in
care of the Company) at Credit Acceptance Corporation, 25505 W. 12 Mile Road, Suite 3000,
Southfield, Michigan 48034, Attention of Doug Busk (Facsimile No.: 248-827-8542);




          (b) if to the Collateral Agent or the Administrative Agent under the Original Credit
Agreement, to it at [Comerica Bank, One Detroit Center, 500 Woodward Avenue, Detroit, Michigan
48226, Attention: Corporate Finance (Facsimile No.: [   ]), with a copy to [   ]];




          (c) if to the Senior Notes Authorized Representative, to it at [   ];




          (d) if to any other Additional Authorized Representative, to it at the address set forth in
the applicable Joinder Agreement.




     Any party hereto may change its address or facsimile number for notices and other
communications hereunder by notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of this Agreement shall
be deemed to have been given on the date of receipt (if a Business Day) and on the next Business
Day thereafter (in all other cases) if delivered by hand or overnight courier service or sent by
facsimile or on the date five Business Days after dispatch by certified or registered mail if
mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in
this Section or in accordance with the latest unrevoked direction from such party given in
accordance with this Section. As agreed to in writing by any party hereto from time to time,
notices and other communications to such party may also be delivered by e-mail to the e-mail
address of a representative of such party provided from time to time by such party.



     SECTION 7.02. Waivers; Amendment; Joinder Agreements. (a) No failure or delay on the
part of any party hereto in exercising any right or power hereunder shall operate as a



27









 




waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the parties hereto
are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or consent to any departure by any party therefrom shall
in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and
then such waiver or consent shall be effective only in the specific instance and for the purpose
for which given. No notice or demand on any party hereto in any case shall entitle such party to
any other or further notice or demand in similar or other circumstances.




          (b) Neither this Agreement nor any provision hereof may be waived, amended or otherwise
modified except pursuant to an agreement or agreements in writing entered into by the Collateral
Agent and each Authorized Representative then party hereto; provided that no such agreement
shall by its terms amend, modify or otherwise affect the rights or obligations of any Grantor
without the Company’s prior written consent; provided further that (i) without the
consent of any party hereto, (A) this Agreement may be supplemented by an Authorized Representative
Joinder Agreement, and an Additional Authorized Representative may become a party hereto, in
accordance with Article VI and (B) this Agreement may be supplemented by a Grantor Joinder
Agreement, and a Subsidiary may become a party hereto, in accordance with Section 7.13, and (ii) in
connection with any Refinancing of First Lien Obligations of any Class (including pursuant to any
Supplemental Credit Agreement), or the incurrence of Additional First Lien Obligations of any
Class, the Collateral Agent and the Authorized Representatives then party hereto shall enter (and
are hereby authorized to enter without the consent of any other Secured Party), at the request of
the Collateral Agent, any Authorized Representative or the Company, into such amendments,
supplements, modifications or restatements of this Agreement as are reasonably necessary or
appropriate to reflect and facilitate such Refinancing or such incurrence and are reasonably
satisfactory to the Collateral Agent and each such Authorized Representative.




     SECTION 7.03. Parties in Interest. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns, as well as the other
Secured Parties, all of whom are intended to be bound by, and to be third party beneficiaries of,
this Agreement.



     SECTION 7.04. Effectiveness; Survival. This Agreement shall become effective when executed and delivered by the parties hereto.
All covenants, agreements, representations and warranties made by any party in this Agreement shall
be considered to have been relied upon by the other parties hereto and shall survive the execution
and delivery of this Agreement. This Agreement shall continue in full force and effect
notwithstanding the commencement of any Insolvency or Liquidation Proceeding against the Company or
any of the Subsidiaries.



     SECTION 7.05. Counterparts. This Agreement may be executed in counterparts, each of
which shall constitute an original but all of which when taken together shall constitute a single
contract. Delivery of an executed signature page to this Agreement by facsimile or other



28









 




electronic transmission shall be as effective as delivery of a manually signed counterpart of this
Agreement.




     SECTION 7.06. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The
parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.



     SECTION 7.07. Governing Law. This Agreement shall be construed in accordance with and
governed by the law of the State of Michigan.



     SECTION 7.08. Submission to Jurisdiction Waivers; Consent to Service of Process. The
Collateral Agent and each Authorized Representative, for itself and on behalf of its Related
Secured Parties, irrevocably and unconditionally:



          (a) submits for itself and its property in any legal action or proceeding relating to this
Agreement and the First Lien Security Documents, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the courts of the State of
Michigan, the courts of the United States of America for the Eastern District of Michigan and
appellate courts from any thereof;




          (b) waives any defense of forum non conveniens;




          (c) consents that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;




          (d) agrees that service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to such Person (or its Authorized Representative) at the address referred to in Section
7.01;




          (e) agrees that service as provided in clause (d) above is sufficient to confer personal
jurisdiction over the applicable party in any such proceeding in any such, and otherwise
constitutes effective and binding service in every respect;




          (f) agrees that nothing herein shall affect the right of any other party hereto (or any
Secured Party) to effect service of process in any other manner permitted by law or shall limit the
right of any party hereto (or any Secured Party) to sue in any other jurisdiction; and





29









 








          (g) waives, to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this Section any special, exemplary,
punitive or consequential damages.




     SECTION
7.09. WAIVER OF JURY TRIAL EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE
ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
HEREUNDER. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT. EACH PARTY
HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT
EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO
FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.



     SECTION 7.10. Headings. Article and Section headings used herein are for convenience
of reference only, are not part of this Agreement and are not to affect the construction of, or to
be taken into consideration in interpreting, this Agreement.



     SECTION 7.11. Conflicts. In the event of any conflict or inconsistency between the
provisions of this Agreement and the provisions of any of the other First Lien Credit Documents,
the provisions of this Agreement shall control.



     SECTION 7.12. Provisions Solely to Define Relative Rights. The provisions of this Agreement are and are intended solely for the purpose of defining
the relative rights of the Secured Parties in relation to one another. Except as expressly
provided in this Agreement, none of the Company, any other Grantor, any other Subsidiary or any
other creditor of any of the foregoing shall have any rights or obligations hereunder, and none of
the Company, any other Grantor or any other Subsidiary may rely on the terms hereof. Nothing in
this Agreement is intended to or shall impair the obligations of the Company or any other Grantor,
which are absolute and unconditional, to pay the First Lien Obligations as and when the same shall
become due and payable in accordance with their terms.



     SECTION 7.13. Additional Grantors. In the event any Subsidiary shall have granted a
Lien on any of its assets to secure any First Lien Obligations, the Company shall cause such
Subsidiary, if not already a party hereto, to become a party hereto as a “Grantor”. Upon the
execution and delivery to the Collateral Agent by any Subsidiary of a Grantor Joinder Agreement,
any such Subsidiary shall become a party hereto and a Grantor hereunder with the same force and
effect as if originally named as such herein. The execution and delivery of any such instrument
shall not require the consent of any other party hereto. The rights and obligations of each party
hereto shall remain in full force and effect notwithstanding the addition of any new Grantor as a
party to this Agreement.



30









 





     SECTION 7.14. Integration. This Agreement, together with the other First Lien Credit
Documents, including the First Lien Security Documents, represents the agreement of each of the
Grantors, the Collateral Agent, the Authorized Representatives and the other Secured Parties with
respect to the subject matter hereof, and there are no promises, undertakings, representations or
warranties by any Grantor, the Collateral Agent, any Authorized Representative or any other Secured
Party relative to the subject matter hereof not expressly set forth or referred to herein or in the
other First Lien Credit Documents, including the First Lien Security Documents.



     SECTION 7.15. Further Assurances. Each of the Collateral Agent, each Authorized
Representative and the Grantors agrees that it will execute, or will cause to be executed, any and
all further documents, agreements and instruments, and take all such further actions, as may be
required under any applicable law, or which the Collateral Agent or any Authorized Representative
may reasonably request, to effectuate the terms of this Agreement, including the relative Lien
priorities provided for herein.



     SECTION 7.16. Amendment and Restatement. This Agreement shall be deemed to amend,
restate and replace, in its entirety, that certain prior intercreditor agreement dated as of
December 15, 1998, as amended, by and among Comerica Bank, as collateral agent, and the other
parties thereto on the date hereof.



31









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	COMERICA BANK,

as Administrative Agent and Collateral Agent,

 	 
	 	By  	/s/ Michael P. Stapleton
 	 
	 	 	Name:  	Michael P. Stapleton 	 
	 	 	Title:  	Vice President 	 
	 
	 	U.S. BANK NATIONAL ASSOCIATION, 
as Senior Notes
Authorized Representative,

 	 
	 	By  	/s/ Raymond S. Haverstock
 	 
	 	 	Name:  	Raymond S. Haverstock 	 
	 	 	Title:  	Vice President 	 
	 
	 	CREDIT ACCEPTANCE CORPORATION, as a 
Grantor


 	 
	 	By  	/s/ Douglas W. Busk
 	 
	 	 	Name:  	Douglas W. Busk 	 
	 	 	Title:  	Senior Vice President and
Treasurer 	 
	 
	 	BUYERS VEHICLE PROTECTION PLAN, INC., as a 

Grantor

 	 
	 	By  	/s/ Douglas W. Busk
 	 
	 	 	Name:  	Douglas W. Busk 	 
	 	 	Title:  	Treasurer 	 
	 



	 	 	 	 	 
	 	VEHICLE REMARKETING SERVICES, INC., as a 
Grantor


 	 
	 	By  	/s/ Douglas W. Busk
 	 
	 	 	Name:  	Douglas W. Busk 	 
	 	 	Title:  	Treasurer 	 




32









 








SCHEDULE 1




Initial Grantors





	1.	 	Credit Acceptance Corporation
	 
	2.	 	Buyers Vehicle Protection Plan, Inc.
	 
	3.	 	Vehicle Remarketing Services, Inc.





 









 





EXHIBIT I-A




     [FORM OF] ADDITIONAL AUTHORIZED REPRESENTATIVE JOINDER AGREEMENT NO. [  ] dated as of [    ],
20[  ] (this “Joinder Agreement”) to the AMENDED AND RESTATED INTERCREDITOR AGREEMENT dated
as of February ___, 2010 (as amended, restated, supplemented or otherwise modified from time to
time, the “Intercreditor Agreement”), among CREDIT ACCEPTANCE CORPORATION, a Michigan
corporation (the “Company”), the other GRANTORS party thereto, the ADDITIONAL AUTHORIZED
REPRESENTATIVE (as defined below) party hereto, COMERICA BANK, as collateral agent for the Secured
Parties (in such capacity, the “Collateral Agent”) and as the Authorized Representative for the
Credit Agreement Secured Parties under the Original Credit Agreement (in such capacity, the
“Administrative Agent”), and U.S. BANK NATIONAL ASSOCIATION, as the Senior Notes Authorized
Representative for the Senior Notes Secured Parties (in such capacity, the “Senior Notes
Authorized Representative”) and each ADDITIONAL AUTHORIZED REPRESENTATIVE from time to time
party thereto, as the Authorized Representative for any Secured Parties of any other Class.



     Capitalized terms used herein but not otherwise defined herein shall have the meanings
assigned to such terms in the Intercreditor Agreement.



     The
Company and the other Grantors propose to issue or incur “Additional First Lien
Obligations” designated by the Company as such in accordance with Article VI of the Intercreditor
Agreement in a certificate of a Responsible Officer of the Company delivered concurrently herewith
to the Collateral Agent and the Authorized Representatives (the “Additional First Lien
Obligations”). The Person identified in the signature pages hereto as the “Additional
Authorized Representative” (the “Additional Authorized Representative”) will serve as
the administrative agent, trustee or a similar representative for the holders of the Additional
First Lien Obligations (the “Additional Secured Parties”).



     The Additional Authorized Representative wishes, in accordance with the provisions of the
Intercreditor Agreement, to become a party to the Intercreditor Agreement and to acquire and
undertake, for itself and on behalf of the Additional Secured Parties, the rights and obligations
of an “Additional Authorized Representative” and “Secured Parties” thereunder.



     Accordingly, the Additional Authorized Representative, for itself and on behalf of its Related
Secured Parties, and the Company agree as follows, for the benefit of the Collateral Agent, the
existing Authorized Representatives and the existing Secured Parties:



     SECTION 1.01. Accession to the Intercreditor Agreement. The Additional Authorized
Representative hereby (a) accedes and becomes a party to the Intercreditor Agreement as an
“Additional Authorized Representative”, (b) agrees, for itself and on behalf of the Additional
Secured Parties, to all the terms and provisions of the Intercreditor Agreement and (c)
acknowledges and agrees that (i) the Additional First Lien Obligations and Liens on any Collateral
securing the same shall be subject to the provisions of the Intercreditor Agreement and (ii) the
Additional Authorized Representative and the Additional Secured Parties shall have the rights and
obligations specified under the Intercreditor Agreement with respect
to an “Authorized



 









 




Representative”
or a “Secured Party”, and shall be subject to and bound by the provisions of
the Intercreditor Agreement. The Intercreditor Agreement is hereby incorporated by reference.




     SECTION 1.02. Representations and Warranties of the Additional Authorized
Representative. The Additional Authorized Representative represents and warrants to the
Collateral Agent, the existing Authorized Representatives and the existing Secured Parties that (a)
it has full power and authority to enter into this Joinder Agreement in its capacity as the
Additional Authorized Representative, (b) this Joinder Agreement has been duly authorized, executed
and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it
in accordance with its terms and (c) the Additional First Lien Documents relating to the Additional
First Lien Obligations provide that, upon the Additional Authorized Representative’s execution and
delivery of this Joinder Agreement, (i) the Additional First Lien Obligations and Liens on any
Collateral securing the same shall be subject to the provisions of the Intercreditor Agreement and
(ii) the Additional Authorized Representative and the Additional Secured Parties shall have the
rights and obligations specified therefor under, and shall be subject to and bound by the
provisions of, the Intercreditor Agreement.



     SECTION 1.03. Parties in Interest. This Joinder Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and assigns, as well as
the other Secured Parties, all of whom are intended to be bound by, and to be third-party
beneficiaries of, this Agreement.



     SECTION 1.04. Counterparts. This Joinder Agreement may be executed in counterparts,
each of which shall constitute an original but all of which when taken together shall constitute a
single contract. This Joinder Agreement shall become effective when the Collateral Agent shall
have received a counterpart of this Joinder Agreement that bears the signature of the Additional
Authorized Representative. Delivery of an executed signature page to this Joinder Agreement by
facsimile or other electronic transmission shall be as effective as delivery of a manually-signed
counterpart of this Joinder Agreement.



     SECTION 1.05. Governing Law. This Joinder Agreement shall be construed in accordance
with and governed by the law of the State of Michigan.



     SECTION 1.06. Notices. All communications and notices hereunder shall be in writing
and given as provided in Section 7.01 of the Intercreditor Agreement. All communications and
notices hereunder to the Additional Authorized Representative shall be given to it at the address
set forth under its signature hereto, which information supplements Section 7.01 to the
Intercreditor Agreement.



     SECTION 1.07. Expenses. The Company agrees to reimburse the Collateral Agent and each
of the Authorized Representatives for its reasonable out-of-pocket expenses in connection with this
Joinder Agreement, including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent and any of the Authorized Representatives.



2









 





     SECTION 1.08. Incorporation by Reference. The provisions of Sections 7.04, 7.06,
7.08, 7.09, 7.10, 7.11 and 7.12 of the Intercreditor Agreement are hereby incorporated by
reference, mutatis mutandis, as if set forth in full herein.



3









 





     IN WITNESS WHEREOF, the Additional Authorized Representative and the Company have duly
executed this Joinder Agreement to the Intercreditor Agreement as of the day and year first above
written.



	 	 	 	 	 	 	 	 	 
	 	 	[     ], as Additional Authorized Representative,
	 
	 	 	 	 	 	 	 	 
	 

	 	By 	 		 	 	 	 
	 

	 	 	 

Name:
	 	 
	 

	 	 	Title:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Address for notices:
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 	 	attention of:                                                            	 
	 	 	Facsimile:                                                                	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	CREDIT ACCEPTANCE CORPORATION,
	 
	 	 	 	 	 	 	 	 
	 

	 	By 	 		 	 	 	 
	 

	 	 	 

Name:
	 	 
	 

	 	 	Title:	 	 






	 	 	 	 	 
	Acknowledged by:	 	 
	 
	 	 	 	 
	COMERICA BANK, as the

Collateral Agent and the Administrative Agent,	 	 
	 
	 	 	 	 
	By
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	U.S. BANK NATIONAL ASSOCIATION, as the
Senior Notes Authorized Representative,
by	 	 
	 
	 	 	 	 
	by
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






4









 





EXHIBIT I-B




     [FORM OF] ADDITIONAL AUTHORIZED REPRESENTATIVE JOINDER AGREEMENT NO. [  ] dated as of [  ],
20[  [ (this “Joinder Agreement”) to the AMENDED AND RESTATED INTERCREDITOR AGREEMENT dated
as of February ___, 2010 (as amended, restated, supplemented or otherwise modified from time to
time, the “Intercreditor Agreement”), among CREDIT ACCEPTANCE CORPORATION, a Michigan
corporation (the “Company”), the other GRANTORS party thereto, COMERICA BANK, as collateral agent
for the Secured Parties (in such capacity, the “Collateral Agent”) and as the Authorized
Representative for the Credit Agreement Secured Parties under the Original Credit Agreement (in
such capacity, the “Administrative Agent”), U.S. BANK NATIONAL ASSOCIATION, as the
Authorized Representative for the Senior Notes Secured Parties (in such capacity, the “Senior
Notes Authorized Representative”) and each ADDITIONAL AUTHORIZED REPRESENTATIVE from time to
time party thereto, as the Authorized Representative for any Secured Parties of any other Class.



     Capitalized terms used herein but not otherwise defined herein shall have the meanings
assigned to such terms in the Intercreditor Agreement.



     The Company and the other Grantors propose to issue or incur “Credit Agreement Obligations”
(pursuant to a Supplemental Credit Agreement) designated by the Company as such in accordance with
Article VI of the Intercreditor Agreement in a certificate of a Responsible Officer of the Company
delivered concurrently herewith to the Collateral Agent and the Authorized Representatives (the
“Supplemental Credit Agreement Obligations”). The Person identified in the signature pages
hereto as the “Additional Authorized Representative” (the “Additional Authorized
Representative”) will serve as the administrative agent, trustee or a similar representative
for the holders of such Supplemental Credit Agreement Obligations (the “Supplemental Credit
Agreement Secured Parties”).



     The Additional Authorized Representative wishes, in accordance with the provisions of the
Intercreditor Agreement, to become a party to the Intercreditor Agreement and to acquire and
undertake, for itself and on behalf of the Supplemental Credit Agreement Secured Parties, the
rights and obligations of an “Additional Authorized Representative” and “Secured Parties”
thereunder.



     Accordingly, the Additional Authorized Representative, for itself and on behalf of its Related
Secured Parties, and the Company agree as follows, for the benefit of the Collateral Agent, the
existing Authorized Representatives and the existing Secured Parties:



     SECTION 1.01. Accession to the Intercreditor Agreement. The Additional Authorized
Representative hereby (a) accedes and becomes a party to the Intercreditor Agreement as an
“Additional Authorized Representative”, (b) agrees, for itself and on behalf of the Supplemental
Credit Agreement Secured Parties, to all the terms and provisions of the Intercreditor Agreement
and (c) acknowledges and agrees that (i) the Supplemental Credit Agreement Obligations and Liens on
any Collateral securing the same shall be subject to the provisions of the Intercreditor Agreement
and (ii) the Additional Authorized Representative and the Supplemental Credit Agreement Secured
Parties shall have the rights and obligations



 









 




specified under the Intercreditor Agreement with respect to an “Authorized Representative” or
a “Secured Party”, and shall be subject to and bound by the provisions of the Intercreditor
Agreement. The Intercreditor Agreement is hereby incorporated by reference.




     SECTION 1.02. Representations and Warranties of the Additional Authorized
Representative. The Additional Authorized Representative represents and warrants to the
Collateral Agent, the existing Authorized Representatives and the existing Secured Parties that (a)
it has full power and authority to enter into this Joinder Agreement in its capacity as the
Additional Authorized Representative, (b) this Joinder Agreement has been duly authorized, executed
and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it
in accordance with its terms and (c) the Supplemental Credit Agreement Documents relating to the
Supplemental Credit Agreement Obligations provide that, upon the Additional Authorized
Representative’s execution and delivery of this Joinder Agreement, (i) the Supplemental Credit
Agreement Obligations and Liens on any Collateral securing the same shall be subject to the
provisions of the Intercreditor Agreement and (ii) the Additional Authorized Representative and the
Supplemental Credit Agreement Secured Parties shall have the rights and obligations specified
therefor under, and shall be subject to and bound by the provisions of, the Intercreditor
Agreement.



     SECTION 1.03. Parties in Interest. This Joinder Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and assigns, as well as
the other Secured Parties, all of whom are intended to be bound by, and to be third party
beneficiaries of, this Agreement.



     SECTION 1.04. Counterparts. This Joinder Agreement may be executed in counterparts,
each of which shall constitute an original but all of which when taken together shall constitute a
single contract. This Joinder Agreement shall become effective when the Collateral Agent shall
have received a counterpart of this Joinder Agreement that bears the signature of the Additional
Authorized Representative. Delivery of an executed signature page to this Joinder Agreement by
facsimile or other electronic transmission shall be as effective as delivery of a manually-signed
counterpart of this Joinder Agreement.



     SECTION 1.05. Governing Law. This Joinder Agreement shall be construed in accordance
with and governed by the law of the State of Michigan.



     SECTION 1.06. Notices. All communications and notices hereunder shall be in writing
and given as provided in Section 7.01 of the Intercreditor Agreement. All communications and
notices hereunder to the Additional Authorized Representative shall be given to it at the address
set forth under its signature hereto, which information supplements Section 7.01 to the
Intercreditor Agreement.



     SECTION 1.07. Expenses. The Company agrees to reimburse the Collateral Agent and each
of the Authorized Representatives for its reasonable out-of-pocket expenses in connection with this
Joinder Agreement, including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent and any of the Authorized Representatives.



2









 





     SECTION 1.08. Incorporation by Reference. The provisions of Sections 7.04, 7.06,
7.08, 7.09, 7.10, 7.11 and 7.12 of the Intercreditor Agreement are hereby incorporated by
reference, mutatis mutandis, as if set forth in full herein.



3









 





     IN WITNESS WHEREOF, the Additional Authorized Representative and the Company have duly
executed this Joinder Agreement to the Intercreditor Agreement as of the day and year first above
written.



	 	 	 	 	 	 	 	 	 
	 	 	[     ], as Additional Authorized Representative,
	 
	 	By	 	 	 	 	 	 
	 

	 	 	 		 	 	 	 
	 

	 	 	 

Name:
	 	 
	 

	 	 	Title:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Address for notices:
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	attention of:                                                            	 	 
	 	 	Facsimile:                                                            	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	CREDIT ACCEPTANCE CORPORATION,
	 
	 	 	 	 	 	 	 	 
	 

	 	By	 		 	 	 	 
	 

	 	 	 

Name:
	 	 
	 

	 	 	Title:	 	 







	 	 	 	 	 
	Acknowledged by:	 	 
	 
	 	 	 	 
	COMERICA BANK, as the

Collateral Agent and the Administrative Agent,	 	 
	 
	 	 	 	 
	By
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	U.S. BANK NATIONAL ASSOCIATION, as the
Senior Notes Authorized Representative,
	 	 
	 
	 	 	 	 
	By
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 





4









 





EXHIBIT II




     [FORM OF] GRANTOR JOINDER AGREEMENT NO. [  ] dated as of [  ], 20[  ] (this “Joinder
Agreement”) to the AMENDED AND RESTATED INTERCREDITOR AGREEMENT dated as of February ___, 2010
(as amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor
Agreement”), among CREDIT ACCEPTANCE CORPORATION, a Michigan corporation (the
“Company”), the other GRANTORS party thereto, the ADDITIONAL GRANTOR (as defined below),
COMERICA BANK, as collateral agent for the Secured Parties (in such capacity, the “Collateral
Agent”) and as the Authorized Representative for the Credit Agreement Secured Parties under the
Original Credit Agreement (in such capacity, the “Administrative Agent”), and U.S. BANK
NATIONAL ASSOCIATION, as the Senior Notes Authorized Representative for the Senior Notes Secured
Parties (in such capacity, the “Senior Notes Authorized Representative”), and each
ADDITIONAL AUTHORIZED REPRESENTATIVE from time to time party thereto, as the Authorized
Representative for any Secured Parties of any other Class.



     Capitalized terms used herein but not otherwise defined herein shall have the meanings
assigned to such terms in the Intercreditor Agreement.



     [     ], a [     ] [corporation] and a Subsidiary of the Company (the “Additional
Grantor”), has granted a Lien on all or a portion of its assets to secure First Lien Obligations
and such Additional Grantor is not a party to the Intercreditor Agreement.



     The Additional Grantor wishes to become a party to the First Lien Intercreditor Agreement and
to acquire and undertake the rights and obligations of a Grantor thereunder. The Additional
Grantor is entering into this Joinder Agreement in accordance with the provisions of the
Intercreditor Agreement in order to become a Grantor thereunder.



     Accordingly, the Additional Grantor agrees as follows, for the benefit of the Collateral
Agent, the Authorized Representatives and the Secured Parties:



     SECTION 1.01. Accession to the Intercreditor Agreement. The Additional Grantor (a)
hereby accedes and becomes a party to the Intercreditor Agreement as a “Grantor”, (b) agrees to all
the terms and provisions of the Intercreditor Agreement and (c) acknowledges and agrees that the
Additional Grantor shall have the rights and obligations specified under the Intercreditor
Agreement with respect to a “Grantor”, and shall be subject to and bound by the provisions of the
Intercreditor Agreement.



     SECTION 1.02. Representations and Warranties of the Additional Grantor. The
Additional Grantor represents and warrants to the Collateral Agent, the Authorized Representatives
and the Secured Parties that this Joinder Agreement has been duly authorized, executed and
delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms.



     SECTION 1.03. Parties in Interest. This Joinder Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and assigns, as well



 









 




as the other Secured Parties, all of whom are intended to be third party beneficiaries of this
Agreement.




     SECTION 1.04. Effectiveness. This Joinder Agreement shall become effective when the
Collateral Agent shall have received a counterpart of this Joinder Agreement that bears the
signature of the Additional Grantor. Delivery of an executed signature page to this Joinder
Agreement by facsimile or other electronic transmission shall be as effective as delivery of a
manually-signed counterpart of this Joinder Agreement.



     SECTION 1.05. Governing Law. This Joinder Agreement shall be construed in accordance
with and governed by the law of the State of Michigan.



     SECTION 1.06. Notices. All communications and notices hereunder shall be in writing
and given as provided in Section 7.01 of the Intercreditor Agreement.



     SECTION 1.07. Expenses. The Grantor agrees to reimburse the Collateral Agent and each
of the Authorized Representatives for its reasonable out-of-pocket expenses in connection with this
Joinder Agreement, including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent and any of the Authorized Representatives.



     SECTION 1.08. Incorporation by Reference. The provisions of Sections 7.04, 7.06,
7.08, 7.09, 7.10, 7.11 and 7.12 of the Intercreditor Agreement are hereby incorporated by
reference, mutatis mutandis, as if set forth in full herein.



     IN WITNESS WHEREOF, the Additional Grantor has duly executed this Joinder Agreement to the
Intercreditor Agreement as of the day and year first above written.



	 	 	 	 	 	 	 
	 	 	[NAME OF SUBSIDIARY],	 	 
	 
	 	 	 	 	 	 
	 

	 	by	 	 	 	 
	 

	 	 	 	 

 Name:
	 	 
	 

	 	 	 	 Title:	 	 







2