EXHIBIT 4(F)(65)
AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT (this "Amendment"), dated as
of January 21, 2005, among CAC WAREHOUSE FUNDING CORPORATION II, as borrower
(the "Borrower"), CREDIT ACCEPTANCE CORPORATION, as Originator (the
"Originator"), WACHOVIA CAPITAL MARKETS, LLC, as deal agent (the "Deal Agent")
and collateral agent (the "Collateral Agent"), WACHOVIA BANK, NATIONAL
ASSOCIATION, as liquidity agent for the VFCC Purchaser Group (the "Liquidity
Agent") and as the sole Investor (the "Investor") and VARIABLE FUNDING CAPITAL
CORPORATION, as a lender (and together with the Liquidity Agent, the "Lenders").
Capitalized terms used and not defined in this Amendment shall have the
meanings given such terms in the Loan and Security Agreement, dated as of
September 30, 2003 (as amended, the "Loan Agreement"), among the Borrower, the
Originator, the Investors, the Lenders, the Deal Agent, the Backup Servicer and
the Collateral Agent.
PRELIMINARY STATEMENTS
WHEREAS, each of the signatories hereto is party to the Loan Agreement; and
WHEREAS, each of the signatories hereto wishes to amend the Loan Agreement
as hereinafter provided;
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and in the Loan Agreement, and other good and valuable consideration, the
receipt and adequacy of which is hereby expressly acknowledged, and intending to
be legally bound hereby, the signatories hereto agree as follows:
SECTION 1. Amendment.
(a) Section 1.1 of the Loan Agreement is hereby amended by deleting
the definition of "Amortization Event" in its entirety and replacing it
with the following:
"Amortization Event: The occurrence of any of the following events:
(i) the Payment Rate averaged for any three (3) consecutive Collection
Periods is less than 6.0%; (ii) the Net Yield Percentage is less than
7.5%; (iii) the Weighted Average Performing Advance Rate exceeds
45.0%; (iv) a Reserve Advance is made, except if on the date of such
Reserve Advance, the Capital is zero; or (v) Collections are less than
75.0% of Forecasted Collections for any two (2) consecutive Collection
Periods.".
(b) Section 1.1 of the Loan Agreement is hereby amended by deleting
the definition of "Net Advance Rate" in its entirety and replacing it with
the following:
"Net Advance Rate: 75%.".
(c) Section 1.1 of the Loan Agreement is hereby amended by deleting
the definition of "Weighted Average Total Advance Rate.".
(d) Section 10.1 of the Loan Agreement is hereby amended by deleting
clause (b) thereof in its entirety and replacing it with "[Reserved];".
(e) Section 10.1(e) of the Loan Agreement is hereby amended by
replacing "10.0%" with "6.5%".
SECTION 2. Conditions to Effectiveness. This Amendment shall become
effective on and as of the date hereof, upon the receipt by the Deal Agent of an
executed counterpart of this Amendment from each party hereto.
SECTION 3. Severability of Provisions. Any provision of this Amendment
which is 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 or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 4. 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 5. Agreement to Remain in Full Force and Effect. Except as amended
hereby, the Loan Agreement shall remain in full force and effect and is hereby
ratified, adopted and confirmed in all respects. All references in the Loan
Agreement to "herein," or words of like import, and all references to the Loan
Agreement in any agreement or document shall hereafter be deemed to refer to the
Loan Agreement as amended hereby.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto on separate counterparts,
each of which counterparts, when so executed and delivered, shall be deemed to
be an original and all of which counterparts, taken together, shall constitute
but one and the same Amendment.
SECTION 8. Representations and Warranties. The Borrower hereby certifies
that (i) the representations and warranties made by it in Section 4.1 of the
Loan Agreement are true and correct as of the date hereof, as though made on and
as of the date hereof and (ii) as of the date hereof, there is no Termination
Event or Servicer Termination Event or event which, with the passage of time of
the giving of notice, could result in a Termination Event or a Servicer
Termination Event.
SECTION 9. Waiver of Notice. Each of the parties hereto hereby waives any
notice in connection with the execution and delivery of this Amendment.
[SIGNATURE PAGE FOLLOWS]
2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date and year first above written.
CAC WAREHOUSE FUNDING
CORPORATION II, as Borrower
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Treasurer
WACHOVIA CAPITAL MARKETS, LLC, as
Deal Agent and Collateral Agent
By: /s/ Xxxxxxx Xxxxxxxx
----------------------
Name: Xxxxxxx Xxxxxxxx
Title:
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Liquidity Agent and the Sole
Investor
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title:
