EXHIBIT 4(f)(31)
AMENDMENT NO. 3 TO
AMENDED AND RESTATED SECURITY AGREEMENT
AMENDMENT NO. 3 TO AMENDED AND RESTATED SECURITY AGREEMENT
(this "Amendment"), dated as of January 31, 2002, 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 initial
servicer (together with its successors and assigns, the "Servicer"), and BANK OF
AMERICA, N.A., a national banking association ("Bank of America"), individually
and as collateral agent (together with its successors and assigns in such
capacity, the "Collateral Agent"), 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.
WHEREAS, the parties hereto and OSI Portfolio Services, Inc.
("OSIPS"), a Delaware corporation have entered into a Back-up Servicing
Agreement dated as of the date hereof;
WHEREAS, on the terms and conditions set forth herein, the
parties to the Security Agreement wish to amend the Security Agreement 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. Amendments.
(a) Section 1.1 of the Security Agreement is hereby amended by
deleting the definition of "Successor Servicer" and replacing it with the
following:
""Successor Servicer" shall mean the Back-up Servicer
in its capacity as Servicer or such other entity appointed to
succeed the Back-up Servicer as Servicer pursuant to Section
4.1."
1
(b) Section 4.1(a) of the Security Agreement is hereby amended
as follows (solely for convenience, changed text is italicized):
"(a) Pursuant to the Servicing Agreement, the Debtor has
contracted with CAC to act as servicer to manage, collect and
administer each of the Loans and Contracts. Until such time as
CAC is terminated as servicer under the Servicing Agreement,
references to the Servicer herein shall refer to CAC as
servicer under the terms of the Servicing Agreement. In the
event of a Servicer Event of Default, the Collateral Agent
shall have the right to cause the Debtor to terminate CAC as
servicer thereunder. Upon termination of CAC as servicer of
the Loans and Contracts pursuant to Section 2.1 of the
Servicing Agreement, the Back-up Servicer pursuant to the
Back-up Servicing Agreement shall act as the Successor
Servicer and shall service the Loans and Contracts in
accordance with the terms of the Back-up Servicing Agreement,
and the Collateral Agent shall have the right at such time to
exercise all of its rights under Section 4.3 hereof. In the
event that the Back-up Servicer is terminated in accordance
with the terms of the Back-up Servicing Agreement, the
Collateral Agent shall have the right to appoint a new
Successor Servicer and enter into a servicing agreement with
such Successor Servicer. CAC shall not have the right to
appoint a Successor Servicer. Upon termination of CAC as
Servicer, all references herein to the Servicer shall be
deemed to refer to the Successor Servicer. Notwithstanding the
above, Bank of America, N.A. may appoint any established
financial institution having a net worth of not less than
$50,000,000 and whose regular business includes the servicing
of automobile installment sales contracts as the Successor
Servicer hereunder."
(c) Section 5.1(a)(ii) of the Security Agreement is hereby
amended as follows (solely for convenience, changed text is italicized):
"(ii) first, to the Back-up Servicer, an amount equal to the
Monthly Back-up Servicing Fee (as defined in the Back-up
Servicing Agreement), second, to the Servicer, an amount equal
to the Monthly Servicing Fee in respect of such group of Loans
for the related Collection Period;"
2
SECTION 3. 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 4. Effectiveness. This Amendment shall become
effective when it has been signed by the parties hereto.
SECTION 5. 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.
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. 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 8. 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 9. 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.
3
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment No. 3 to the Amended and Restated Security Agreement as
of the date first written above.
CAC FUNDING CORP., as Debtor
By: /S/ Xxxxx X. Xxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxx
Title: President
CREDIT ACCEPTANCE
CORPORATION, individually and as
Servicer
By: /S/ Xxxxxxx X. Xxxx
---------------------
Name: Xxxxxxx X. Xxxx
Title: Treasurer
KITTY HAWK FUNDING CORPORATION,
as Company
By: /S/ Xxxx X. Xxxxxx
---------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
BANK OF AMERICA, N.A., individually,
as Collateral Agent
By: /S/ Xxxxxxxxxxx X. Xxxxx
------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
4
