1
4(g)5
EXECUTION COPY
FIRST AMENDMENT TO INTERCREDITOR AGREEMENT
This FIRST AMENDMENT TO INTERCREDITOR AGREEMENT dated as of March 30,
2001 ("Amendment") is entered into by and among (a) Comerica Bank ("Comerica"),
acting in its capacity as agent (in such capacity, the "Agent") for and on
behalf of the various financial institutions which are, or may from time to time
hereafter become, parties to the Credit Agreement, (b) the undersigned Lenders
(including Comerica in its individual capacity), (c) the undersigned
Noteholders, and (d) Comerica, in its capacity as collateral agent hereunder
(together with its successors and assigns, the "Collateral Agent") and is
acknowledged by Credit Acceptance Corporation, a Michigan corporation
("Company") as issuer of the Credit Notes and the Senior Notes.
RECITALS
A. Agent, Collateral Agent, each of the undersigned Lenders (or
their predecessors), and the undersigned Noteholders (or their predecessors)
entered into that certain Intercreditor Agreement dated as of December 15, 1998
which was acknowledged by the Company as of such date (the "Intercreditor
Agreement").
B. At the request of the Company, and in connection with prior
amendments to the Credit Agreement and the Note Agreements, the undersigned
parties have agreed to amend the terms and conditions of the Intercreditor
Agreement, but only as set forth herein.
NOW, THEREFORE, the parties have entered into this Amendment to
acknowledge and confirm various matters, as follows:
1. The definition of "Security Documents" contained in the
Intercreditor Agreement is amended and restated in its entirety, as follows:
"Security Documents' shall mean this Agreement, the Security
Agreement, the Share Charge, each security agreement executed
and delivered by the Company or any other Grantor pursuant to
Section 7.23 of the Credit Agreement and Section 6.23 of the
Note Agreements and shall include any other agreements or
instruments which provide security with respect to any Benefited
Obligation which are executed and delivered after the date
hereof, including, without limitation, the security interest,
lien and charge over the Company's partnership interests
in the Scottish Partnership (to the extent required to be
delivered by the Company under the Credit Agreement and the Note
Agreements), but which shall not include those certain fixed and
floating charges to be granted by CAC UK and the English Special
Purpose Entity in favor of Comerica Bank, in its capacity as
Agent
2
(but not as Collateral Agent) under the Credit Agreement, as
security for certain obligations of the foreign Permitted
Borrowers under the Credit Agreement."
2. The definition of "Significant Domestic Subsidiary" contained in
the Intercreditor Agreement is amended and restated in its entirety, as follows:
"Significant Domestic Subsidiary has the meaning ascribed to
that term in the Credit Agreement, as amended through and
including the Fifth Amendment to the Third Amended and Restated
Credit Agreement dated as of March 8, 2001, but without giving
effect to any amendment thereto after the date of such Fifth
Amendment."
3. The Lenders and the Noteholders further acknowledge and agree
(and by its execution of the Acknowledgment set forth below, the Company agrees)
that the capitalization of the Scottish Partnership with the share capital of
CAC UK under clause (ii) of the definition "UK Restructuring" contained in the
Credit Agreement and the Note Agreements may be effected by the Company
directly, or indirectly, by the transfer to Credit Acceptance Corporation of
Nevada, Inc. or another Domestic Subsidiary of approximately 10% of the
outstanding share capital of CAC UK and the contribution by such transferee to
the Scottish Partnership of such shares in exchange for an equity interest of
approximately 10% (as of the date of such transfer) in the Scottish Partnership.
4. Except to the extent otherwise defined herein, all capitalized
terms used in this Amendment shall have their respective meanings as set forth
in the Intercreditor Agreement.
5. Agent, Collateral Agent, the Lenders, the Noteholders and
Company hereby acknowledge that, subject to the terms hereof, the Intercreditor
Agreement is and shall remain in full force and effect according to its terms.
6 This Amendment may be executed in any number of counterparts and
by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
* * *
[SIGNATURES FOLLOW ON SUCCEEDING PAGES]
3
IN WITNESS WHEREOF, the undersigned parties have caused this Amendment
to be duly executed and delivered as of the date first above written.
COMERICA BANK,
as Agent and as Collateral Agent
By: /S/ Xxxx Xxxxxxxxx
-----------------------------------
Its: First Vice President
----------------------------------
4
[SIGNATURE PAGE TO FIRST AMENDMENT TO INTERCREDITOR AGREEMENT]
LENDERS:
COMERICA BANK
By: /S/ Xxxx Xxxxxxxxx
-----------------------------------
Its: First Vice President
----------------------------------
5
[SIGNATURE PAGE TO FIRST AMENDMENT TO INTERCREDITOR AGREEMENT]
COMERICA BANK - CANADA
By: /S/Xxxxxx Xxxxx
-----------------------------------
Its: Vice President
----------------------------------
6
[SIGNATURE PAGE TO FIRST AMENDMENT TO INTERCREDITOR AGREEMENT]
NATIONAL CITY BANK OF MINNEAPOLIS
By: /S/Xxxxx Xxxxxxxx
-----------------------------------
Its: Vice President
----------------------------------
7
[SIGNATURE PAGE TO FIRST AMENDMENT TO INTERCREDITOR AGREEMENT]
LASALLE BANK NATIONAL ASSOCIATION
By: /S/ Xxxxxx Xxxxxx
-----------------------------------
Its: Assistant Vice President
----------------------------------
8
[SIGNATURE PAGE TO FIRST AMENDMENT TO INTERCREDITOR AGREEMENT]
BANK OF AMERICA, N.A.
By: /S/Xxxxxxxxx Xxxxxxxx
-----------------------------------
Its: Managing Director
----------------------------------
9
[SIGNATURE PAGE TO FIRST AMENDMENT TO INTERCREDITOR AGREEMENT]
XXXXXX TRUST AND SAVINGS BANK
By: /S/ Xxxxxxx Xxxxxxx
-----------------------------------
Its: Assistant Vice President
----------------------------------
10
[SIGNATURE PAGE TO FIRST AMENDMENT TO INTERCREDITOR AGREEMENT]
UNION BANK OF CALIFORNIA, N.A.
By: /S/Xxxxxx Xxxxx
-----------------------------------
Its: Vice President
----------------------------------
11
[SIGNATURE PAGE TO FIRST AMENDMENT TO INTERCREDITOR AGREEMENT]
NOTEHOLDERS:
ASSET ALLOCATION & MANAGEMENT
COMPANY AS AGENT FOR AMERICAN
PIONEER LIFE INSURANCE COMPANY OF
NEW YORK
By /S/K Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title:
ASSET ALLOCATION & MANAGEMENT
COMPANY AS AGENT FOR AMERICAN
PROGRESSIVE LIFE AND HEALTH
INSURANCE COMPANY OF NEW YORK
By /S/K Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title:
ASSET ALLOCATION & MANAGEMENT
COMPANY AS AGENT FOR FEDERATED
RURAL ELECTRIC INSURANCE CORP.
By /S/K Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title:
ASSET ALLOCATION & MANAGEMENT
COMPANY AS AGENT FOR TOWER LIFE
INSURANCE COMPANY
By /S/K Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title:
12
ASSET ALLOCATION & MANAGEMENT
COMPANY AS AGENT FOR MUTUAL
PROTECTIVE INSURANCE COMPANY
By /S/K Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title:
[SIGNATURE PAGE TO FIRST AMENDMENT TO INTERCREDITOR AGREEMENT]
ASSET ALLOCATION & MANAGEMENT
COMPANY AS AGENT FOR PHYSICIANS
LIFE INSURANCE COMPANY VISTA 500
By /S/K Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title:
ASSET ALLOCATION & MANAGEMENT
COMPANY AS AGENT FOR WORLD
INSURANCE COMPANY
By /S/K Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title:
ASSET ALLOCATION & MANAGEMENT
COMPANY AS AGENT FOR VESTA FIRE
INSURANCE CORPORATION
By /S/K Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title:
ASSET ALLOCATION & MANAGEMENT
COMPANY AS AGENT FOR MEDICO LIFE
INSURANCE COMPANY
By /S/K Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title:
13
[SIGNATURE PAGE TO FIRST AMENDMENT TO INTERCREDITOR AGREEMENT]
ACCEPTED:
ASSET ALLOCATION & MANAGEMENT
COMPANY AS AGENT FOR CENTRAL
STATES HEALTH & LIFE COMPANY OF
OMAHA
By /S/K Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title:
ASSET ALLOCATION & MANAGEMENT
COMPANY AS AGENT FOR THE XXXXXXX
XXXXXX TRUST COMPANY FBO GUARANTY
INCOME LIFE INSURANCE COMPANY
By /S/K Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title:
ASSET ALLOCATION & MANAGEMENT
COMPANY AS AGENT FOR AMERICAN
COMMUNITY MUTUAL INSURANCE
By /S/K Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title:
14
ASSET ALLOCATION & MANAGEMENT
COMPANY AS AGENT FOR CENTRAL RE
CORP. & PHOENIX
By /S/K Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title:
[SIGNATURE PAGE TO FIRST AMENDMENT TO INTERCREDITOR AGREEMENT]
ASSET ALLOCATION & MANAGEMENT
COMPANY AS AGENT FOR OLD GUARD
MUTUAL INSURANCE COMPANY
By /S/K Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title:
ASSET ALLOCATION & MANAGEMENT
COMPANY AS AGENT FOR CSA FRATERNAL
LIFE
By /S/K Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title:
:
ASSET ALLOCATION & MANAGEMENT
COMPANY AS AGENT FOR KANAWHA
INSURANCE COMPANY
15
By /S/K Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title:
[SIGNATURE PAGE TO FIRST AMENDMENT TO INTERCREDITOR AGREEMENT]
OZARK NATIONAL LIFE INSURANCE
COMPANY
By /S/S Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title: Executive Vice President
and Treasurer
16
[SIGNATURE PAGE TO FIRST AMENDMENT TO INTERCREDITOR AGREEMENT]
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY
BY CIGNA INVESTMENTS, INC.
(authorized agent)
By /S/ Xxxxx X. Height
-------------------------------------
Name:
Title: Managing Director
17
[SIGNATURE PAGE TO FIRST AMENDMENT TO INTERCREDITOR AGREEMENT]
PAN AMERICAN LIFE INSURANCE COMPANY
By /S/ Xxxx Xxxxxx. Jr. C.F.A.
-----------------------------------
Name:
Title: Senior Vice President-
Investments
18
[SIGNATURE PAGE TO FIRST AMENDMENT TO INTERCREDITOR AGREEMENT]
PHOENIX HOME LIFE MUTUAL INSURANCE
COMPANY
BY: PHOENIX INVESTMENT COUNSEL, INC.
By Xxxxxxxx X. Xxxxxxx
---------------------------------
Name:
Title: Senior Managing Director
19
[SIGNATURE PAGE TO FIRST AMENDMENT TO INTERCREDITOR AGREEMENT]
ALLSTATE LIFE INSURANCE CO.
By /S/ XXXXXXX X. XXXXX
-----------------------------------
Name:
Title:
By /S/ XXXXXXXX X. XXXXXX
-----------------------------------
Name:
Title:
20
[SIGNATURE PAGE TO FIRST AMENDMENT TO INTERCREDITOR AGREEMENT]
XXXXXXX XXXXX & COMPANY, LLC
By Xxxxxxx Xxxxx & Company, LLC,
Attorney-in-Fact
By /S/ XXXXX X. XXXXXXXX
Name:
Title:Principal
21
[SIGNATURE PAGE TO FIRST AMENDMENT TO INTERCREDITOR AGREEMENT]
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY
BY CIGNA INVESTMENTS, INC.
(authorized agent)
By /S/ Xxxxx X. Height
-----------------------------------
Name:
Title:
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY,
ON BEHALF OF ONE OR MORE SEPARATE
ACCOUNTS
BY CIGNA INVESTMENTS, INC.
(authorized agent)
By /S/ Xxxxx X. Height
-----------------------------------
Name:
Title:
ACE PROPERTY AND CASUALTY
INSURANCE COMPANY (F.K.A. CIGNA
PROPERTY AND CASUALTY INSURANCE
COMPANY)
BY CIGNA INVESTMENTS, INC.
(authorized agent)
By /S/ Xxxxx X. Height
-----------------------------------
Name:
Title:
22
[SIGNATURE PAGE TO FIRST AMENDMENT TO INTERCREDITOR AGREEMENT]
PHOENIX HOME LIFE MUTUAL INSURANCE
COMPANY
BY: PHOENIX INVESTMENT COUNSEL, INC.
By
Name:
Title:
23
[SIGNATURE PAGE TO FIRST AMENDMENT TO INTERCREDITOR AGREEMENT]
ACKNOWLEDGED BY:
CREDIT ACCEPTANCE CORPORATION
By: /S/ Xxxxxxx X. Xxxx
-----------------------------------
Its: Chief Financial Officer
----------------------------------
Date: March 30, 2001
24
[SIGNATURE PAGE TO FIRST AMENDMENT TO INTERCREDITOR AGREEMENT]