4(f)(28)
AMENDMENT NO. 1 TO
AMENDED AND RESTATED SECURITY AGREEMENT
AMENDMENT NO. 1 TO AMENDED AND RESTATED SECURITY AGREEMENT (this
"Amendment"), dated as of October 17, 2001, among KITTY HAWK FUNDING
CORPORATION, a Delaware corporation, as a secured party (together with its
successors and assigns, the "Company"), CAC FUNDING CORP., a Nevada corporation,
as debtor (together with its successors and assigns, the "Debtor"), CREDIT
ACCEPTANCE CORPORATION, a Michigan corporation, individually and as servicer
(together with its successors and assigns, the "Servicer"), and BANK OF AMERICA,
N.A., a national banking association ("Bank of America"), individually, as
collateral agent (together with its successors and assigns in such capacity, the
"Collateral Agent"), as Agent and as Bank Investor, amending that certain
Amended and Restated Security Agreement (as amended to the date hereof, the
"Security Agreement"), dated as of July 20, 2001, among the Company, the Debtor,
the Servicer and Bank of America, individually and as Collateral Agent, and, for
the purposes of Section 3 hereof, setting forth certain agreements among the
parties to the Note Purchase Agreement dated as of July 7, 1998, as amended (the
"Note Purchase Agreement").
WHEREAS, on the terms and conditions set forth herein, the
parties to the Security Agreement wish to amend the Security Agreement and set
forth certain other agreements as provided herein.
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. Defined Terms. As used in this Amendment
capitalized terms have the same meanings assigned thereto in the Security
Agreement.
SECTION 2. Amendment.
(a) The Security Agreement is hereby amended by adding
the following as Section 5.1(f):
"(f) Prepayment. The Debtor may, on the day preceding any
Remittance Date deposit into the Collection Account an amount which,
when taken together with the amount then on deposit in the Collection
Account and the Reserve Account (before giving effect to any deposit
described in this
Section 5.1(f)), shall be sufficient to pay all amounts outstanding
under the Note Purchase Agreement, the Note and any other Transaction
Document. If such deposit is made into the Collection Account pursuant
to this Section 5.1(f), the Collateral Agent shall withdraw on the next
Remittance Date all funds on deposit in the Collection Account and the
Reserve Account and pay such amounts to the Company, the Bank Investors
and any Noteholder, as applicable. Upon such payment in full to the
appropriate Persons of all amounts outstanding under the Note Purchase
Agreement, the Note and any other Transaction Document, the Collateral
Agent shall release its lien and security interest in the Collateral
and shall execute and deliver such documents, instruments and financing
statements, prepared by and at the expense of the Debtor, as are
necessary or reasonably requested by the Debtor to evidence such
release."
SECTION 3. No Subsequent Fundings. The Debtor, the Company,
and the Bank Investor agree that in the event the Debtor shall have exercised
its right pursuant to section 5.1(f) of the Security Agreement to pay in full
all amounts outstanding under the Note Purchase Agreement, the Note and any
other Transaction Document and all such amounts shall have been paid in full to
the appropriate Person(s), the Company and the Bank Investors shall thereupon
have no further obligation to make any Subsequent Fundings under the Note
Purchase Agreement.
SECTION 4. Representations and Warranties. The Debtor hereby
makes to the Collateral Agent, the Company and the Bank Investors, on and as of
the date hereof, all of the representations and warranties set forth in Sections
3.1 and 3.2 of the Security Agreement, except that to the extent that any of
such representations and warranties expressly relate to an earlier date, such
representations and warranties shall be true and correct as of such earlier
date.
SECTION 5. Effectiveness. This Amendment shall become
effective as of July 21, 2001, provided, however, that this Amendment shall
cease to be effective if the Secured Parties shall not have received, on or
prior to November 17, 2001, a "true sale" opinion of Dykema Gossett PLLC,
counsel to the Debtor, satisfactory to the Agent and its counsel.
SECTION 6. Costs and Expenses. The Debtor shall pay all of the
Company's, the Bank Investors' and the Collateral Agent's cost and expenses
(including out of pocket expenses and reasonable attorneys fees and
disbursements) incurred by them in connection with the preparation, execution
and delivery of this Amendment.
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SECTION 7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Severability; Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
instrument. Any provisions of this Amendment which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 9. Captions. The captions in this Amendment are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
SECTION 10. Ratification. Except as expressly affected by the
provisions hereof, the Security Agreement as amended shall remain in full force
and effect in accordance with its terms and ratified and confirmed by the
parties hereto. On and after the date hereof, each reference in the Security
Agreement to "this Agreement", "hereunder", "herein" or words of like import
shall mean and be a reference to the Security Agreement as amended by this
Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment No.1 to the Amended and Restated Security Agreement as
of the date first written above.
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CAC FUNDING CORP., as Debtor
By: /S/ Robert R. Krakowiak
------------------------
Name: Robert R. Krakowiak
Title: Treasurer
CREDIT
ACCEPTANCE CORPORATION, Individually and as
Servicer
By: /S/ Robert R. Krakowiak
------------------------
Name: Robert R. Krakowiak
Title: Treasurer
KITTY HAWK FUNDING CORPORATION,
as Company
By: /S/ Andy Yan
-------------
Name: Andy Yan
Title: Vice President
BANK OF AMERICA, N.A., individually,
as Collateral Agent
By: /S/ Michelle M. Heath
----------------------
Name: Michelle M. Heath
Title: Managing Director