EXHIBIT 4(g)6
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED SECURITY AGREEMENT
This First Amendment dated as of September 7, 2001, by and between
Credit Acceptance Corporation, a Michigan corporation (the "Company"), the
Subsidiaries of the Company from time to time parties hereto (collectively, with
the Company, and either or any of them, the "Debtors" and individually, each a
"Debtor") and Comerica Bank, a Michigan banking corporation ("Comerica"), as
agent (in such capacity, the "Collateral Agent") for the benefit of the
"Lenders", the "Noteholders" and the "Future Debt Holders" (each as referred to
in the Security Agreement, defined below).
R E C I T A L S:
A. Pursuant to the Credit Agreement and the Senior Debt Documents (each
as defined in the Security Agreement), Debtors executed and delivered to the
Collateral Agent that certain Second Amended and Restated Security Agreement
dated as of June 11, 2001 (the "Security Agreement").
B. Debtors and the Collateral Agent desire to amend the Security
Agreement as set forth below.
The parties agree as follows:
1. Section 1.1 of the Security Agreement is amended, as follows:
(a) The following new definitions are added to Section 1.1, and
inserted in appropriate alphabetical order:
"CAC Canada" means CAC of Canada, Limited, a corporation organized
under the laws of Canada.
"Percentage Limitation" means the lesser of: (i) all of the shares of
stock of CAC Canada owned or at any time and from time to time acquired
by the Company or any other Debtor and (ii) sixty-five percent (65%) of
the aggregate share capital of CAC Canada at any time or from time to
time issued and outstanding determined in accordance with Section 956
of the Internal Revenue Code of 1986, as amended from time to time, and
the regulations promulgated thereunder.
"Pledged Canadian Shares" means those shares of stock of CAC Canada
from time to time subject to the security interest and lien established
hereby, as set forth in Section 2.1(i) of this Agreement.
"PPSA" means the Personal Property Security Act as in effect in the
Province of Ontario; provided that if, by applicable law, the
perfection or effect of perfection or non-perfection of the security
interest created hereunder in the Pledged Canadian Shares is governed
by personal property security legislation as in effect on or after the
date hereof in any other jurisdiction, "PPSA" means the personal
property security legislation as in effect in such other jurisdiction
for purposes of the provisions hereof relating to such perfection or
the effect of perfection or non-perfection.
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(b) The definition of "Pledged Shares" is amended to add, in the third
line thereof (following the words "Non-Specified Interest"), the words "and the
Pledged Canadian Shares."
2. Section 2.1 (i) of the Security Agreement is hereby amended and
restated in its entirety, as follows:
"(i) (a) all shares of stock, and other equity,
partnership or membership interests constituting
ownership interests (or evidence thereof) or other
securities, of the Significant Domestic Subsidiaries
of Debtor from time to time owned or acquired by such
Debtor in any manner (including without limitation,
as applicable, the Pledged Shares), and any
certificates at any time evidencing the same, (b) and
65% of the issued and outstanding capital stock of
CAC Canada, as evidenced by the share certificate
described on Schedule D hereto and all additional
shares of stock or other equity interests in CAC
Canada issued after the date hereof to Company or any
other Debtor or otherwise from time to time owned or
acquired by Company or any Debtor in any manner,
subject, however, to the Percentage Limitation, and
(c) all dividends, cash, instruments, rights and
other property from time to time received, receivable
or otherwise distributed or distributable in respect
of or in exchange for any or all of such shares;"
3. The last sentence of Section 3.4 of the Security Agreement is hereby
amended and restated in its entirety, as follows:
"All certificates or other instruments owned by such Debtor
representing shares of stock or other ownership interests of
any Significant Domestic Subsidiary (including, without
limitation, the Pledged Shares) or the Pledged Canadian Shares
or representing or evidencing the Non-Specified Interest will
be delivered to the Collateral Agent, accompanied by duly
executed stock powers or instruments of transfer or
assignments in blank with respect thereto."
4. Section 3.7(c) of the Security Agreement is hereby amended and
restated in its entirety, as follows:
"(c) On the date hereof, the Pledged Shares constitute the
percentage of the issued and outstanding shares of stock,
partnership units or membership or other ownership interests
of the Issuers thereof indicated on Schedule D, if applicable,
and such schedule contains a description of all shares of
capital stock, partnership units, membership interests and
other ownership interests of or in CAC Canada, the Significant
Domestic Subsidiaries owned by the applicable Debtor and with
respect to the Non-Specified Interest in the Titling
Subsidiary (as such Schedule D may from time to time be
supplemented, amended or modified in accordance with the terms
of this Agreement)."
5. Section 4.15(a) of the Security Agreement is hereby amended and
restated as follows [the changes are in bold]:
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"(a) except with the written consent of the Collateral Agent,
it will not permit CAC Canada or any Significant Domestic
Subsidiary to issue to it or any of its other Subsidiaries any
shares of stock, membership interests, partnership units,
notes or other securities or instruments (including without
limitation the Pledged Shares) in addition to or in
substitution for any of the Collateral, unless, concurrently
with each issuance thereof, but subject to the Percentage
Limitation in the case of the shares of CAC Canada, any and
all such shares of stock, membership interests, partnership
units, notes or instruments are encumbered in favor of the
Collateral Agent under this Agreement or otherwise (it being
understood and agreed that all such shares of stock,
membership interests, partnership units, notes or instruments
issued to such Debtor shall, without further action by such
Debtor or Collateral Agent, be automatically encumbered by
this Agreement as Pledged Shares) and"
6. Section 6.1 of the Security Agreement is amended to add, after each
reference to the "UCC" in such section, the words "or the PPSA".
7. Section 6.2(a) of the Security Agreement is amended to add, in the
seventh line thereof (after the definition of "Securities Act"), the words "or,
in the case of the Pledged Canadian Shares, the equivalent thereof, pursuant to
part XVII or Rule 45-501 of the Securities Act (Ontario), as amended from time
to time (the "Canadian Securities Act")," and to add, in the last line of such
section (following the words "applicable state securities laws"), the words "or,
in the case of the Pledged Canadian Shares, under the Canadian Securities Act,".
8. Section 7.4 is amended to add in the second to last line thereof
(following the words "U.S. Mail,"), the words "or, in the case of the Pledged
Canadian Shares or CAC Canada, `Canada Post'".
9. Replacement Schedule D (Pledged Shares) to the Security Agreement
set forth on Attachment 1 hereto shall replace, in its entirety, existing
Schedule D (Pledged Shares) to the Security Agreement.
10. Except as expressly modified hereby, all the terms and conditions
of the Security Agreement shall remain in full force and effect. Except as
expressly set forth herein, nothing in this Amendment shall constitute a waiver
of any term or condition of the Security Agreement or any of the rights and
remedies provided to the secured party thereunder or as otherwise provided by
law.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the day and year first written above.
DEBTORS:
CREDIT ACCEPTANCE CORPORATION
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Treasurer
Address for Notices:
Credit Acceptance Corporation
00000 X. 00 Xxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Fax No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxx Xxxx
AUTO FUNDING AMERICA OF NEVADA INC.
CREDIT ACCEPTANCE CORPORATION LIFE
INSURANCE COMPANY
BUYERS VEHICLE PROTECTION PLAN, INC.
CAC LEASING, INC.
VEHICLE REMARKETING SERVICES, INC.
CREDIT ACCEPTANCE CORPORATION OF
NEVADA, INC.
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Treasurer
Address for Notices:
c/o Credit Acceptance Corporation
00000 X. 00 Xxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Fax No.: 000-000-0000
Telephone No.: 000-000-0000
Attention: Xxxx Xxxx
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COLLATERAL AGENT:
COMERICA BANK as Collateral Agent
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
Address for Notices:
Metropolitan Loans D
One Detroit Center, 6th Floor
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax No.: 313/000-0000
Telephone No.:313/000-0000
Attention: Xxxxx Xxxxxxx
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ATTACHMENT 1
SCHEDULE D
TO
SECURITY AGREEMENT
Pledged Shares
---------------------------------------------------------------------------------------------------------------
Pledged Shares as %
of Total Shares Total Shares
No. of Pledged Issued and Issued and
Issuer Owner Certificate No. Shares Outstanding Outstanding
---------------------------------------------------------------------------------------------------------------
Auto Funding America of Company 1 1,000 100% 1,000
Nevada, Inc.
---------------------------------------------------------------------------------------------------------------
Buyers Vehicle Company 1 1,000 100% 1,000
Protection Plan, Inc.
---------------------------------------------------------------------------------------------------------------
CAC Leasing, Inc. Company 1 1,000 100% 1,000
---------------------------------------------------------------------------------------------------------------
Vehicle Remarketing Company 1 10 100% 10
Services, Inc.
---------------------------------------------------------------------------------------------------------------
Credit Acceptance Company 2 100,000 100% 100,000
Corporation Life
Insurance Company
---------------------------------------------------------------------------------------------------------------
Credit Acceptance Company 1 1,000 100% 1,000
Corporation of Nevada,
Inc.
---------------------------------------------------------------------------------------------------------------
CAC of Canada Limited Company 3 487,565 65% 750,100
---------------------------------------------------------------------------------------------------------------
The entire
Non-Specified Interest
of Company in the
Titling Subsidiary,
evidenced by
Certificate No. 1
under the Titling
Subsidiary
Agreements
---------------------------------------------------------------------------------------------------------------
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