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Exhibit 4(e)(4)
THIRD AMENDMENT TO NOTE PURCHASE AGREEMENT
RE:
CREDIT ACCEPTANCE CORPORATION
FIRST AMENDED AND RESTATED 8.02% SENIOR NOTES DUE OCTOBER 1, 2001
Dated as of April 13, 1999
To the Noteholders listed on Annex I hereto
Ladies and Gentlemen:
Credit Acceptance Corporation, a Michigan corporation (together with
its successors and assigns, the "Company"), hereby agrees with you as follows:
SECTION 1. INTRODUCTORY MATTERS.
1.1 DESCRIPTION OF OUTSTANDING NOTES. The Company currently has
outstanding $_________ in aggregate unpaid principal amount of its First Amended
and Restated 8.02% Senior Notes due October 1, 2001 (collectively, the "Notes")
which it issued pursuant to the separate Note Purchase Agreements, each dated as
of March 25, 1997 (collectively, as amended by the First Amendment to Note
Purchase Agreement dated as of December 12, 1997 and the Second Amendment to
Note Purchase Agreement, dated as of July 1, 1998, the "Agreement"), entered
into by the Company with each of the original holders of the Notes listed on
Annex 1 thereto, respectively. Terms used herein but not otherwise defined
herein shall have the meanings assigned thereto in the Agreement, as amended
hereby.
1.2 PURPOSE OF AMENDMENT. The Company and you desire to amend the
Agreement as set forth in Section 2 hereof and to include in this amendment the
revision to the "Total Restricted Subsidiary Debt" definition, which revision
was included in the terms of the Intercreditor Agreement, dated as of December
15, 1998 among Comerica Bank, as collateral agent, the lenders under the Credit
Agreement and the holders of the Notes and other notes issued by the Company.
SECTION 2. AMENDMENT TO THE AGREEMENT.
Pursuant to Section 10.5 of the Agreement, the Company hereby agrees
with you that the Agreement shall be amended by this Third Amendment to Note
Purchase Agreement (the "Third Amendment") in the following respects:
2.1 SECTION 6.1
Clause (ii) of paragraph (a) of Section 6.1 is hereby amended and
restated in its entirety as follows:
"(ii) seventy-five percent (75%) of Advances; and".
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Exhibit 4(e)(4)
2.2 SECTION 6.7
Section 6.7 is amended by replacing the word "or" with the word
"and" at the end of clauses (i) and (ii) of paragraph (a), replacing the "." at
the end of clause (iii) of paragraph (a) with "; and" and adding the following
clause (iv):
"(iv) a merger, consolidation or Transfer of a Restricted
Subsidiary or Restricted Subsidiaries pursuant to the Montana
Disposition."
2.3 SECTION 6.8
(A) Paragraph (a) of Section 6.8 is amended by replacing the "." at
the end of clause (iv) with "; and", by adding, at the end of each of clauses
(iii) and (iv) before the semicolon the phrase "if, immediately before and after
the consummation of such Transfer, and after giving effect thereto, no Default
or Event of Default would exist", and by adding the following clause (v):
"(v) any Transfer made pursuant to the Montana
Disposition if, immediately before and after the consummation
of such Transfer, and after giving effect thereto, no Default
or Event of Default would exist."
(B) Paragraph (b) of Section 6.8 is amended by amending and restating
the lead-in phrase of clause (iv) as follows:
"(iv) the Transfer of all of the Restricted Subsidiary
Stock of a Restricted Subsidiary owned by the Company and the
other Restricted Subsidiaries pursuant to the Montana
Disposition or if:"
(C) Paragraph (c) of Section 6.8 is amended by adding in the second
line thereof after "except in connection with a Permitted Securitization" the
words "or in connection with the Montana Disposition".
2.4 SECTION 9.1
(A) The definition of "Permitted Securitization" in Section 9.1 of
the Agreement is hereby amended by deleting paragraph (d) in its entirety,
redesignating paragraph (e) as paragraph (d) and amending and restating
paragraph (b) of such definition as follows:
"(b) (i) The disposition of Advances will not result in
the aggregate principal amount of Debt at any time
outstanding, and (without duplication) of Securities
at any time issued and outstanding (other than
subordinated Securities issued to and held by the
Company or a Subsidiary), of any Special Purpose
Subsidiary pursuant to Permitted Securitizations
occurring from and after the effective date of the
Second Amendment exceeding $100,000,000 (which amount
may be readvanced and reborrowed); and (ii) the
Company or the Restricted
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Exhibit 4(e)(4)
Subsidiary disposing of Advances to a Special Purpose
Subsidiary pursuant to such Permitted Securitization
shall itself actually receive (substantially
contemporaneously with such disposition) cash from
each disposition of such Advances in connection with
any such securitization transaction in an amount not
less than Seventy-Five Percent (75%) of the value of
such Advances;".
(B) The definition of "Total Restricted Subsidiary Debt" is amended
and restated in its entirety as follows:
TOTAL RESTRICTED SUBSIDIARY DEBT -- means, at any
time, the aggregate amount of Debt of all Restricted
Subsidiaries determined at such time after eliminating
intercompany transactions among the Company and the
Restricted Subsidiaries. For the avoidance of doubt, the
Company hereby acknowledges that Total Restricted
Subsidiary Debt includes the amount of Debt of any
Restricted Subsidiary attributable to its Guaranty of any
liabilities of another Person (including the Company or
any Subsidiary) made in favor of any Person other than
the Company or another Restricted Subsidiary.
Notwithstanding the foregoing, (i) Total Restricted
Subsidiary Debt does not include the amount of Debt of
any Restricted Subsidiary attributable to its Guaranty of
obligations under the Credit Agreement (and any related
notes, letters of credit and other agreements) of any
Person (including the Company or any Subsidiary) made in
favor of the Banks if, concurrently with the giving of
any such Guaranty, you are given the benefit of an equal
and ratable Guaranty on substantially similar terms; and
(ii) the term "Total Restricted Subsidiary Debt" shall
not, at any time prior to May 15, 1997 (but shall, at all
times from and after May 15, 1997), be deemed to include
any Debt of CAC International attributable to its
Guaranty, for the benefit of the Banks, of the
liabilities of the Company and certain Subsidiaries under
the Credit Agreement.
(C) The definition of "Montana Disposition" is added to Section 9.1:
"MONTANA DISPOSITION -- means the sale of Montana
Investment Group, Inc. and its subsidiaries for net
proceeds totaling at least $16,000,000 in cash (all of
which net proceeds are used to reduce Debt outstanding
under the Credit Agreement), pursuant to (i) the sale of
all or substantially all of the assets of Montana
Investment Group, Inc. and its subsidiaries, (ii) the
sale of all of the capital stock of Montana Investment
Group, Inc. or (iii) the merger of Montana Investment
Group, Inc. with and into any Person other than the
Company or a Restricted Subsidiary; in each case,
immediately prior to and immediately after the
consummation of which, and after giving effect thereto,
no Default or Event of Default would exist.
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Exhibit 4(e)(4)
SECTION 3. MISCELLANEOUS
3.1 COUNTERPARTS. This Third Amendment may be executed in any number
of counterparts, each executed counterpart constituting an original, but all
together only one Third Amendment.
3.2 HEADINGS. The headings of the sections of this Third Amendment
are for purposes of convenience only and shall not be construed to affect the
meaning or construction of any of the provisions hereof.
3.3 GOVERNING LAW. This Third Amendment shall be governed by and
construed in accordance with the internal laws of the State of New York.
3.4 EFFECT OF AMENDMENT. Except as expressly provided herein (a) no
other terms and provisions of the Agreement shall be modified or changed by this
Third Amendment and (b) the terms and provisions of the Agreement, as amended by
this Third Amendment, shall continue in full force and effect. The Company
hereby acknowledges and reaffirms all of its obligations and duties under each
of the Agreement, as modified by this Third Amendment, and the Notes.
3.5 REFERENCES TO THE AGREEMENT. Any and all notices, requests,
certificates and other instruments executed and delivered concurrently with or
after the execution of the Third Amendment may refer to the Agreement without
making specific reference to this Third Amendment but nevertheless all such
references shall be deemed to include, to the extent applicable, this Third
Amendment unless the context shall otherwise require.
3.6 COMPLIANCE. The Company certifies that immediately before and
after giving effect to this Third Amendment, no Default or Event of Default
exists or would exist after giving effect hereto.
3.7 EFFECTIVENESS OF AMENDMENTS.
The amendments to the Agreement contemplated by Section 2 hereof shall
(in accordance with Section 10.5(a) of the Agreement) become effective, if at
all, at such time as the Company and the Required Holders of the Notes shall
have indicated their written consent to such amendments by executing and
delivering the applicable counterparts of this Third Amendment. It is understood
that any holder of Notes may withhold its consent for any reason, including,
without limitation, any failure of the Company to satisfy all of the following
conditions:
(a) This Third Amendment shall have been executed and
delivered by the Company and each of the Required Holders of the Notes.
(b) The execution, delivery and effectiveness of an
agreement, signed by the Company and the requisite holders of the
Company's First Amended and Restated 9.12% Senior Notes due November 1,
2001 issued under Note Purchase Agreements dated as of October 1, 1994,
containing amendments to such Note Purchase Agreements identical in
substance to the amendments set forth in Section 2 hereof.
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Exhibit 4(e)(4)
(c) The execution, delivery and effectiveness of an agreement,
signed by the Company and the requisite holders of the Company's First
Amended and Restated 8.24% Senior Notes due July 1, 2001 issued under
Note Purchase Agreements dated as of August 1, 1996, containing
amendments to such Note Purchase Agreements identical in substance to
the amendments set forth in Section 2 hereof.
(d) The Company shall have paid the statement for reasonable
fees and disbursements of Xxxx & Xxxxxx, your special counsel,
presented to the Company on or prior to the effective date of this
Third Amendment.
[Remainder of page intentionally blank. Next page is signature page.]
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Exhibit 4(e)(4)
If this Third Amendment is satisfactory to you, please sign the form of
acceptance on the enclosed counterpart of this letter and return the same to the
Company, whereupon this Third Amendment shall become binding between us in
accordance with its terms.
Very truly yours,
CREDIT ACCEPTANCE CORPORATION
By: /S/XXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
[Signature Page to Third Amendment to Note Purchase Agreement in respect of
8.02% Senior Notes Due October 1, 2001 of Credit Acceptance Corporation]
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Exhibit 4(e)(4)
ACCEPTED: THE GUARDIAN LIFE INSURANCE COMPANY
OF AMERICA
By: /S/XXXXXX X. XXXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /S/XXXXXXX X. XXXXXXX XX
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx XX
Title: Managing Director
NATIONWIDE LIFE INSURANCE COMPANY
By: /S/XXXX X. XXXXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Authorized Signatory
XXXXXXX XXXXX & COMPANY, LLC
By: Xxxxxxx Xxxxx & Company, LLC
Attorney-in-Fact
By: /S/XXXXX X. XX XXXXXX
-----------------------------------
Name: Xxxxx X. Xx Xxxxxx
Title: Partner and Manager
Fixed Income Department
[Signature Page to Third Amendment to Note Purchase Agreement in respect of
8.02% Senior Notes Due October 1, 2001 of Credit Acceptance Corporation]
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Exhibit 4(e)(4)
ACCEPTED: AMERICAN BANKERS INSURANCE
COMPANY OF FLORIDA
By: /S/XXX XXXXXXXXX
----------------------------------------
Name: Xxx Xxxxxxxxx
Title: Director of Investments
VOYAGER PROPERTY & CASUALTY
INSURANCE CO.
By: /S/XXX XXXXXXXXX
----------------------------------------
Name: Xxx Xxxxxxxxx
Title: Director of Investments
ASSET ALLOCATION & MANAGEMENT
COMPANY AS AGENT FOR AMERICAN
PIONEER LIFE INSURANCE COMPANY OF
NEW YORK
By: /S/X. XXXXX
----------------------------------------
Name: X. Xxxxx
Title:
ASSET ALLOCATION & MANAGEMENT
COMPANY AS AGENT FOR AMERICAN
PROGRESSIVE LIFE AND HEALTH
INSURANCE COMPANY OF NEW YORK
By: /S/X. XXXXX
----------------------------------------
Name: X. Xxxxx
Title:
[Signature Page to Third Amendment to Note Purchase Agreement in respect of
8.02% Senior Notes Due October 1, 2001 of Credit Acceptance Corporation]
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Exhibit 4(e)(4)
ACCEPTED: ASSET ALLOCATION & MANAGEMENT
COMPANY AS AGENT FOR THE FEDERATED
RURAL ELECTRIC INSURANCE CORP.
By: /S/X. XXXXX
----------------------------------------
Name: X. Xxxxx
Title:
ASSET ALLOCATION & MANAGEMENT
COMPANY AS AGENT FOR TOWER
LIFE INSURANCE COMPANY
By: /S/X. XXXXX
----------------------------------------
Name: X. Xxxxx
Title:
ASSET ALLOCATION & MANAGEMENT
COMPANY AS AGENT FOR PHYSICIANS
LIFE INSURANCE COMPANY VISTA 500
By: /S/X. XXXXX
----------------------------------------
Name: X. Xxxxx
Title:
ASSET ALLOCATION & MANAGEMENT
COMPANY AS AGENT FOR WORLD
INSURANCE COMPANY
By: /S/X. XXXXX
----------------------------------------
Name: X. Xxxxx
Title:
[Signature Page to Third Amendment to Note Purchase Agreement in respect of
8.02% Senior Notes Due October 1, 2001 of Credit Acceptance Corporation]
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Exhibit 4(e)(4)
ACCEPTED: ASSET ALLOCATION & MANAGEMENT
COMPANY AS AGENT FOR UNITED
TEACHERS ASSOCIATES INSURANCE
COMPANY
By: /S/X. XXXXX
----------------------------------------
Name: X. Xxxxx
Title:
FARM BUREAU LIFE INSURANCE
COMPANY
By: /S/XXXXXX X. XXXXXXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Fixed Income-Vice President
FARM BUREAU MUTUAL INSURANCE COMPANY
By: /S/XXXXXX X. XXXXXXXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Fixed Income-Vice President
GENERAL AMERICAN LIFE INSURANCE
COMPANY
By: Conning Asset Management Company
By: /S/XXXXX X. XXXX
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
[Signature Page to Third Amendment to Note Purchase Agreement in respect of
8.02% Senior Notes Due October 1, 2001 of Credit Acceptance Corporation]
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