EXHIBIT 4(g)(8)
Execution Copy
FIFTH AMENDMENT TO SECURITY AGREEMENT
This Fifth Amendment to Security Agreement ("Fifth Amendment") is dated
as of June 30, 2004 by and between Credit Acceptance Corporation, a Michigan
corporation ("Company"), the Subsidiaries of the Company from time to time
parties hereto, including the undersigned Subsidiaries (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" 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 requirements of that certain Amended and Restated
Credit Agreement dated as of June 11, 2001 (the "Original Credit Agreement"),
the Senior Debt Documents and the Intercreditor Agreement (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.
B. Debtors and the Collateral Agent entered into that certain First
Amendment to Second Amended and Restated Security Agreement ("First Amendment")
dated as of September 7, 2001 and that certain Second Amendment to Second
Amended and Restated Security Agreement ("Second Amendment") dated as of June
10, 2002, that certain Third Amendment to Second Amended and Restated Security
Agreement ("Third Amendment") dated as August 31, 2002, and that certain Release
and Fourth Amendment to Security Agreement ("Fourth Amendment") dated as of June
9, 2004, in each case amending the Security Agreement referred to in Recital A
on the terms set forth therein (such Security Agreement, as amended by the First
Amendment, the Second Amendment, the Third Amendment and the Fourth Amendment,
the "Security Agreement").
C. Company and Debtors intend, concurrently with this Fifth Amendment,
to complete the New Restructuring, and, in connection therewith, transfer
certain partnership interests in CAC Scotland held by CAC (TCI) to CAC South
Dakota.
D. Debtors and the Collateral Agent, with the concurrence of the Banks
(as defined in the Intercreditor Agreement), desire to further amend the
Security Agreement as set forth below to reflect the completion of the New
Restructuring.
NOW THEREFORE, the parties agree as follows:
1. Section 1.1 of the Security Agreement is amended by deleting the
definitions of "Consent and Release" and "Stapled Stock Restructuring".
2. Section 2.1(i) of the Security Agreement is hereby deleted and the
following is inserted in its place:
"(i) 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, and 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; and any monies
and other property from time to time received, receivable or otherwise
distributed or distributable in respect of or in exchange for CAC South
Dakota's partnership interest in CAC Scotland to the extent such
partnership interest has been pledged and assigned, for collateral
purposes, to the Collateral Agent, for and on behalf of the Benefited
Parties pursuant to that certain Assignation in Security by and among
CAC South Dakota, the Collateral Agent, CAC International Holdings,
L.L.C. and CAC Scotland (as amended from time to time, the
"Assignation");"
3. Subsection (iv) of the post-amble to Section 2.1 is hereby deleted
and the following is inserted in its place:
"(iv) any equity interests in Foreign Subsidiaries except to the extent
described in Section 2.1(i) of the Security Agreement."
4. Section 4.14(c) of the Security Agreement is hereby deleted and the
following is inserted in its place:
"(c) The Collateral Agent shall establish, for the benefit of
the Benefited Parties in the name of the Collateral Agent, a segregated
non-interest bearing blocked account (the "Receiving Account") under
which CAC South Dakota and the other Debtors shall have no withdrawal
or other rights (whether or not a Default or Event of Default has
occurred and is continuing), such account being subject to the security
interest and lien established by this Agreement. All dividends,
distributions and other sums paid (or payable) in respect of CAC South
Dakota's partnership interest in CAC Scotland assigned, for collateral
purposes, to the Collateral Agent, for and on behalf of the Benefited
Parties pursuant to the Assignation, shall be received and held by
Collateral Agent for the benefit of the Benefited Parties, and
thereafter promptly deposited by Collateral Agent to the Receiving
Account established under this clause (c). So long as no Default or
Event of Default has occurred and is continuing, the Collateral Agent
shall promptly transfer all such sums on deposit in the Receiving
Account to another account, as specified from time to time in writing
by CAC South Dakota. Upon the occurrence and during the continuance of
any Default or Event of Default, all such sums on deposit in the
Receiving Account shall be retained in the Receiving Account for
disposition in accordance with this Agreement. Furthermore, CAC South
Dakota shall cause all dividends, distributions and other sums paid (or
payable) in respect of its partnership interest in CAC Scotland
assigned for collateral purposes, to the Collateral Agent, for and on
behalf of the Benefited Parties pursuant to the Assignation, to be paid
directly by CAC Scotland to the
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Collateral Agent in accordance with the terms of the Assignation, and
shall cause any such dividends, distributions or other sums received by
any other Person, including without limitation any Debtor, to be
promptly delivered and paid over to the Collateral Agent for
disposition according to the terms hereof."
5. Schedule D of the Security Agreement is hereby deleted from the
Security Agreement and Annex 1 attached hereto is inserted in its place.
6. Each undersigned Debtor hereby ratifies and reaffirms its
obligations under the Security Agreement as amended as of the date hereof. Each
reference in the Security Agreement to "this Agreement" or "the Agreement" shall
be deemed to refer to the Security Agreement as amended by the First Amendment,
the Second Amendment, the Third Amendment, the Fourth Amendment and this Fifth
Amendment, and each further amendment which may be executed and delivered from
time to time.
7. Unless otherwise defined to the contrary herein, all capitalized
terms used in this Fifth Amendment shall have the meaning set forth in that
certain Third Amended and Restated Credit Agreement dated as of June 9, 2004 (as
the same may be further amended, restated or otherwise modified from time to
time, the "Credit Agreement").
8. This Fifth Amendment shall be construed in accordance with and
governed by the laws of the State of Michigan.
9. This Fifth Amendment may be executed in counterparts in accordance
with Section 13.10 of the Credit Agreement.
10. Except as expressly modified hereby, all the terms and conditions
of the Security Agreement shall remain in full force and effect, and except as
expressly set forth herein, nothing set forth in this Fifth Amendment shall
constitute a waiver or release of any term or condition of the Security
Agreement or any of the Collateral Agent's rights and remedies provided
thereunder or as otherwise provided by law.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Fifth
Amendment as of the day and year first written above.
DEBTORS:
CREDIT ACCEPTANCE CORPORATION
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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: Xxxxxxx Xxxx
AUTO FUNDING AMERICA OF NEVADA INC.
BUYERS VEHICLE PROTECTION PLAN, INC.
CAC LEASING, INC.
VEHICLE REMARKETING SERVICES, INC.
CREDIT ACCEPTANCE CORPORATION OF
NEVADA, INC.
CREDIT ACCEPTANCE CORPORATION OF
SOUTH DAKOTA, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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: Xxxxxxx Xxxx
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CAC REINSURANCE, LTD
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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: Xxxxxxx Xxxx
CAC (TCI), LTD.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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: Xxxxxxx Xxxx
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COLLATERAL AGENT:
COMERICA BANK as Collateral Agent
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Address for Notices:
Metropolitan Loans F
One Detroit Center, 5th Floor
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax No.: 313/000-0000
Telephone No.: 313/000-0000
Attention: Xxxxx X. Light
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Annex 1
SCHEDULE D
TO
SECURITY AGREEMENT
Pledged Shares
Pledged Shares as %
of Total Shares Total Shares
Certificate No. of Pledged Issued and Issued and
Issuer Owner No. Shares Outstanding Outstanding
------ ----- ----------- -------------- ------------------ ------------
Auto Funding America of Company 1 1,000 100% 1,000
Nevada, Inc.
Buyers Vehicle Protection Company 1 1,000 100% 1,000
Plan, Inc.
CAC Leasing, Inc. Company 1 1,000 100% 1,000
Vehicle Remarketing Company 1 10 100% 10
Services, Inc.
Credit Acceptance Company 1 1,000 100% 1,000
Corporation of Nevada, Inc.
Credit Acceptance Company 2 4,500 90% 5,000
Corporation of South
Dakota, Inc.
Credit Acceptance CAC 3 500 10% 5,000
Corporation of South Reinsurance
Dakota, Inc.
CAC (TCI) Limited Company 1,2 4,500 90% 5,000
CAC (TCI) Limited CAC 3 500 10% 5,000
Reinsurance
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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