FIRST AMENDMENT
TO
LOAN AND SECURITY AGREEMENT
This FIRST AMENDMENT TO LOAN AND
SECURITY AGREEMENT, dated as of August 31, 2009 (this “
Amendment ”), is among CAC WAREHOUSE FUNDING III, LLC,
a Delaware limited liability company, as borrower (the “
Borrower ”), CREDIT ACCEPTANCE CORPORATION (in its
individual capacity, “ CAC ”), a Michigan
corporation, as servicer (in such capacity, the “
Servicer ”) and as custodian (in such capacity, the
“ Custodian ”), FIFTH THIRD BANK, an Ohio
banking corporation, as an investor for the Fifth Third Purchaser
Group (in such capacity, “ Fifth Third ” or an
“ Investor ”), as deal agent (in such capacity,
the “ Deal Agent ”), as collateral agent (in
such capacity, the “ Collateral Agent ”) and as
liquidity agent for the Fifth Third Purchaser Group (in such
capacity, a “ Liquidity Agent ”) and
RELATIONSHIP FUNDING COMPANY, LLC (“ RFC ”), a
Delaware limited liability company, as a CP entity and a
lender.
BACKGROUND
WHEREAS, the Borrower, the Servicer,
the Custodian, Fifth Third, the Deal Agent, the Collateral Agent,
the Liquidity Agent, RFC and SYSTEMS & SERVICES TECHNOLOGIES,
INC. are parties to the Loan and Security Agreement dated as of
May 23, 2008 (as amended, supplemented or otherwise modified
from time to time, the “ Agreement ”); and
WHEREAS, the parties hereto desire to
amend the Agreement as set forth herein.
NOW, THEREFORE, in consideration of
the provisions, covenants and the mutual agreements herein
contained, the parties hereto agree as follows:
AGREEMENT
SECTION 1. Definitions .
Unless otherwise defined herein, terms that are capitalized and
used throughout this Amendment are defined in
Section 1.1(b) of the Agreement.
SECTION 2. Amendments .
2.1 The definition of “Adjusted
Eurodollar Rate” set forth in Section 1.1(b) of
the Agreement is hereby amended by deleting the phrase “the
sum of 1.0% and” therefrom.
2.2 The definition of
“Commitment Termination Date” set forth in
Section 1.1(b) of the Agreement is hereby amended by
deleting the date “May 23, 2010” therein and
substituting the date “August 31, 2011”
therefor.
2.3 The definition of
“Purchaser Group Facility Limit” set forth in
Section 1.1(b) of the Agreement is hereby amended by
deleting the amount “$50,000,000” therein and
substituting the amount “$75,000,000” therefor.
2.4 Section 2.1(c)(i) of
the Agreement is hereby amended by deleting the date
“May 23, 2011” therein and substituting the date
“August 31, 2012” therefor.
2.5 Section 6.7(a) of the
Agreement is hereby amended by adding the following parenthetical
to the end of subsection (i)(C) therof:
“(it being understood that for purposes of this
Section 6.7(a)(i)(C) Fifth Third shall always be a
depositary institution acceptable to the Deal Agent)”.
2.6 Section 6.7(c) of the
Agreement is hereby amended by deleting each reference to
“Eligible Investments” or an “Eligible
Investment” therein and substituting “Permitted
Investments” or a “Permitted Investment”
therefor, as applicable.
2.7 Schedule VIII to the
Agreement is hereby amended by deleting the amount
“$50,000,000” therein and substituting the amount
“$75,000,000” therefor.
SECTION 3. Assignment of
RFC’s Interest .
3.1 On the date hereof (the “
Assignment Date ”), RFC hereby transfers and assigns
to Fifth Third without recourse and without representation or
warranty (except that it is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is
free and clear of any Adverse Claim created by it), and Fifth Third
hereby accepts and assumes, all of RFC’s rights, commitments
and obligations under the Agreement (in each case, in consideration
for the payment by Fifth Third of the absolute value of the Excess
Amount (as defined in and pursuant to the liquidity fee letter,
dated as of May 23, 2008, between RFC and Fifth Third (the
“ Liquidity Fee Letter ”)) to RFC in an amount
equal to $2083.33 (the “ Assignment Amount ”) in
immediately available f
