1
EXHIBIT 4(c)(10)
FIFTH AMENDMENT
TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This FIFTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
("Fifth Amendment") is made as of this 8th day of March, 2001 by and among
Credit Acceptance Corporation, a Michigan corporation ("Company"), the Permitted
Borrowers signatory hereto (each, a "Permitted Borrower" and collectively, the
"Permitted Borrowers"), Comerica Bank and the other banks signatory hereto
(individually, a "Bank" and collectively, the "Banks") and Comerica Bank, as
agent for the Banks (in such capacity, "Agent").
RECITALS
A. Company, Permitted Borrowers, Agent and the Banks entered into
that certain Third Amended and Restated Credit Agreement dated as of June 15,
1999, a First Amendment dated as of December 10, 1999, a Second Amendment dated
as of April 28, 2000, a Third Amendment dated as of June 13, 2000 and a Fourth
Amendment dated as of November 30, 2000 (collectively, the "Credit Agreement")
under which the Banks renewed and extended (or committed to extend) credit to
the Company and the Permitted Borrowers, as set forth therein.
B. The Company and the Permitted Borrowers have requested that
Agent and the Banks agree to a further amendment to the Credit Agreement and
Agent and the Banks are willing to do so, but only on the terms and conditions
set forth in this Fifth Amendment.
NOW, THEREFORE, Company, Permitted Borrowers, Agent and the Banks
agree:
l. Section 1 of the Credit Agreement is amended as follows:
(a) Those new defined terms set forth on Attachment "A" to this
Fourth Amendment are added to the Credit Agreement,
and inserted in their appropriate places in
alphabetical order.
(b) Those existing defined terms identified in Attachment
"B" to this Fourth Amendment are amended and
restated, in their entirety, as set forth on
Attachment B.
2. Section 7 of the Credit Agreement shall be amended as follows:
(a) Section 7.3(i) is amended and restated in its
entirety as follows:
2
"(i) promptly upon the request of Agent or the
Majority Banks (acting through Agent) from time to
time, a "static pool analysis" which analyzes the
performance of any Installment Contracts or Leases
transferred, encumbered, reallocated from the
Non-Specified Interest to a Specified Interest or
otherwise disposed of pursuant to a Permitted
Securitization comparable to the static pool analysis
required to be delivered pursuant to subparagraph (c)
of this Section 7.3; and".
(b) Clause (a) of Section 7.4 is amended to add, at the
end of such clause (following the word "GAAP"), and
Sections 7.5 and 7.6 are amended to add, at the end
of the parenthetical phrase contained therein
(following the word "GAAP"), the words "other than
Debt represented by Intercompany Loans incurred by
the English Special Purpose Subsidiary pursuant to
the UK Restructuring."
(c) Section 7.23 is amended and restated in its entirety
as follows:
"(a) prior to the transfer to or creation in the name
of the Titling Subsidiary of any Leased Vehicles or
Leases, execute and deliver additional Collateral
Documents (or amendments to the existing Collateral
Documents) consisting of a security agreement and
pledge encumbering the Company's entire Non-Specified
Interest and any related documents or instruments
necessary to encumber and/or perfect a security
interest in such Collateral, all as determined by and
in form and substance satisfactory to the Agent,
acting in its capacity as Collateral Agent under the
Intercreditor Agreement, and to the Majority
Benefited Parties (as defined in the Intercreditor
Agreement), in their reasonable discretion;
"(b) promptly upon the Company's creation or
acquisition of any Significant Domestic Subsidiary,
(i) grant a security interest and lien to the Agent,
acting in its capacity as Collateral Agent under the
Intercreditor Agreement, in the Collateral owned by
such Significant Domestic Subsidiary substantially on
the terms set forth in the Security Agreement and
(ii) pledge to the Agent, acting in its capacity as
Collateral Agent under the Intercreditor Agreement,
all of the outstanding capital Stock of such
Significant Domestic Subsidiary which is owned by the
Company or its Subsidiaries in a form satisfactory to
the Agent, acting in its capacity as Collateral Agent
under the Intercreditor Agreement, in its reasonable
discretion, in each case, as security for the
Indebtedness; and
2
3
"(c) before conducting the UK Restructuring, (i)
cause each of CAC UK and the English Special Purpose
Subsidiary to grant a security interest, lien and
charge to the Agent, for and on behalf of the Banks
(and not in its capacity as Collateral Agent under
the Intercreditor Agreement), in the Collateral
described in clause (b) of the definition thereof, as
security for all Indebtedness of CAC UK and the other
Permitted Borrowers hereunder and (ii) grant a
perfected first priority security interest, lien and
charge to the Agent, acting in its capacity as
Collateral Agent under the Intercreditor Agreement,
in the Collateral described in clause (f) of the
definition of Collateral, as security for the
Indebtedness and the Senior Debt, on substantially
the terms of the English Share Charge (subject to
local law variations) and otherwise satisfactory in
form and substance to the Agent, acting in its
capacity as Collateral Agent under the Intercreditor
Agreement, and to the Majority Benefited Parties, in
their reasonable discretion, provided that,
concurrently therewith, Collateral Agent shall have
released and discharged (or caused to be released and
discharged) the English Share Charge.
3. Section 8 of the Credit Agreement is amended, as follows:
(a) Section 8.1 is amended to add, at the end of the
second line thereof (following the words "capital
structure"), the phrase ", other than pursuant to the
UK Restructuring, and to redesignate clause "(iii)"
as clause "(iv)" and to add a new clause (iii),
immediately following the word "Subsidiaries" (in the
fifth line thereof):
"(iii) the creation, in connection with Permitted
Securitizations, of Specified Interests, and the
transfer of such Specified Interests to a Special
Purpose Subsidiary or other special purpose or
limited purpose entity, and the elimination of
Specified Interests upon the repayment and discharge
of the Advances to Dealers and Leased Vehicles
allocated to such Specified Interest in connection
with a prior Permitted Securitization or the Debt or
similar securities issued with respect thereto".
(b) Section 8.3 is amended to add, at the end of such
section (following the words "Permitted
Securitization(s)"), the words "and other transfers
made pursuant to the UK Restructuring, provided that,
both before and after giving effect thereto, no
Default or Event of Default has occurred and is
continuing."
(c) Clause (d) of Section 8.5 is amended to change the
phrase "unsecured overdraft lines of credit" in the
second line thereof to read "overdraft lines
3
4
of credit which are unsecured or are secured solely
by a guaranty and/or letter of credit provided by
Company or another Subsidiary."
(d) Clauses "(e)" and "(f)" of Section 8.5 are
redesignated as clauses "(f)" and "(g)",
respectively, and new clause (e) is added to Section
8.5, following clause (d), as follows:
"(e)(i) Intercompany Loans made pursuant to the UK
Restructuring and (ii) other Intercompany Loans,
provided, however, that the amount of Intercompany
Loans under this clause (ii), when included with
Intercompany Loans, Advances and Investments
permitted under Section 8.8(d) hereof, complies with
such section;"
(e) Section 8.7 is amended and restated in its entirety,
as follows:
"8.7 Acquisitions. Other than (i) any Permitted
Acquisition, (ii) any transfer to the Company by any
Subsidiary of any assets or business or ownership
interests (provided that no cash or other
consideration may be paid by Company for such
property, except to the extent otherwise permitted by
this Agreement) or (iii) any acquisition of any
rights or property (including without limitation
Specified Interests and Non-Specified Interests)
pursuant to a Permitted Securitization or pursuant to
the UK Restructuring, purchase or otherwise acquire
or become obligated for the purchase of all or
substantially all of the assets or business interests
of any Person, firm or corporation, or any shares of
stock (or other ownership interests) of any
corporation, trusteeship or association, or any
business or going concern, or in any other manner
effectuate or attempt to effectuate an expansion of
present business by acquisition."
(f) Clause (d) of Section 8.8 is amended to add, at the
beginning of clause (d), the words "Intercompany
Loans, Advances and Investments made pursuant to the
UK Restructuring and", to replace the reference to
the word "Investments" (in the first line of such
clause) with the words "other Intercompany Loans,
Advances and Investments", to replace the reference
to the word "Investments" in the third line of such
clause with the words "other Intercompany Loans,
Advances and Investments (excluding those made
pursuant to the UK Restructuring)" and to add, after
the first two references in such clause to the word
"Subsidiary" (in the first and second lines thereof),
the parenthetical phrase, "(excluding the Titling
Company or any Special Purpose Subsidiary)".
(g) Clauses (i) and (j) of Section 8.8 are redesignated
as clauses (j) and (k), respectively, and a new
clause (i) is added to Section 8.8, as follows:
4
5
"(i) Intercompany Loans, Advances and Investments by
the Company to or in the Titling Subsidiary, each
such loan, advance or investment being (x) allocated
to the Non-Specified Interest and made by Company in
the ordinary course of conducting its leasing
business through the Titling Subsidiary, including
without limitation any advances or investments made
by the Company (acting as administrative agent under
the Titling Subsidiary Agreements) to or in the
Titling Subsidiary to reacquire Leases and the
related leased vehicles as may be required from time
to time under the Administrative Agency Agreement,
but only to the extent such Leases (and leased
vehicles) are allocated to the Non-Specified Interest
immediately prior to the making of the related loan,
advance or investment or (y) allocated to a Specified
Interest and made pursuant to a Permitted Guaranty
under clauses (iii)(B), (C) or (D) of the definition
thereof."
(h) Clause (j) of Section 8.8 (as redesignated) is
amended (i) to change the parenthetical in subclause
(x) to read "(as servicer or administrative agent)"
and (ii) to add, immediately after the words
"Permitted Securitization" in subclause (y), the
words, "or otherwise required to be repurchased by
the applicable Securitization Documents entered into
in compliance with the terms of this Agreement".
(i) Section 8.9 is amended and restated in its entirety
as follows:
"8.9 Accounts Receivable and Other Financial Assets.
Except to Agent, in its capacity as Agent for and on
behalf of the Banks or in its capacity as Collateral
Agent under the Intercreditor Agreement or pursuant
to a Permitted Transfer or pursuant to or in
connection with a Permitted Securitization or
pursuant to the UK Restructuring, sell or assign or
reallocate from the Non-Specified Interest to a
Specified Interest any account, note, trade
acceptance receivable, lease or other financial
asset, if the sum of (i) the face value of the
accounts, notes or trade acceptance receivables,
leases or other financial assets proposed to be
transferred, plus (ii) the face value of the
accounts, notes or trade acceptance receivables,
leases or other financial assets transferred by the
Company and its Subsidiaries during the current
fiscal year of the Company (other than pursuant to
the UK Restructuring) would exceed five percent (5%)
of the aggregate face value of the accounts, notes,
trade acceptance receivables, leases and other
financial assets of the Company and its Subsidiaries
determined on a Consolidated Basis as of the end of
the most recently concluded fiscal year of Company,
prior to giving effect to any such transfer."
5
6
(j) Section 8.11 is amended to add (in the twelfth line
thereof), following the word "Leases", the words "or
Specified Interests," and, following the word
"encumbered", the words "or otherwise disposed of".
(k) Section 8.12 is amended to add, in the second line
thereof (following the words "Permitted Senior Note
Prepayment"), the words "and for prepayments of
Intercompany Loans made pursuant to the UK
Restructuring".
(l) New Section 8.17 is added to the Credit Agreement, as
follows: "8.17 Amendments to Titling Subsidiary
Agreements. Amend, modify or otherwise alter (or
suffer to be amended, modified or altered) in any
material respect adverse to the Banks, any of the
Titling Subsidiary Agreements or any other documents
or instruments relating to the establishment or
operation of the Titling Subsidiary. For purposes of
such documents or instruments, any amendments to or
changes in the provisions relating to the creation or
transfer of Specified Interests and the allocation or
reallocation of financial assets or other property
thereto, and any amendment, modification, resignation
or removal whereby the Company shall cease to be the
founding member of or otherwise cease to control the
Titling Subsidiary or cease to be the administrative
agent under the Administrative Agency Agreement shall
(without reducing the scope of this Section 8.17) be
deemed to be materially adverse to the Banks."
(m) New Section 8.18 is added to the Credit Agreement, as
follows:
"8.18 Special Leasing Covenants. Except for Leases
with respect to motor vehicles located outside the
United States of America and its territories and
possessions (which shall be originated by the Company
or a Subsidiary, in its own name or using an assumed
name), (a) originate and hold Leases other than (x)
in the Company's own name or by the Company, but
under the assumed name "CAC Auto Leasing" or "AutoNet
Xxxxxxx.xxx", (y) in the name of AutoNet Finance
Xxxxxxx.xxx, Inc. or CAC Leasing, Inc. to the extent
applicable state law prohibits the Company from
originating Leases in such state using an assumed
name, or (z) in the name of the Titling Subsidiary;
and (b) except in connection with a Permitted
Securitization, allocate or reallocate Leases, Leased
Vehicles or other financial assets to a Specified
Interest."
4. Section 9.1(f) of the Credit Agreement is amended and restated
in its entirety, as follows:
6
7
"(f) default in the payment of any other obligation
of Company, its Subsidiaries or any of the Permitted
Borrowers for borrowed money in an aggregate amount
in excess of Two Million Dollars ($2,000,000), or the
equivalent thereof in an Alternative Currency; or
default in the observance or performance of any
conditions, covenants or agreements related or given
with respect to any other obligations for borrowed
money in an aggregate amount in excess of Two Million
Dollars ($2,000,000), or the equivalent thereof in an
Alternative Currency, sufficient to permit the holder
thereof to accelerate the maturity of such obligation
or, with respect to the Securitization Documents, (i)
the occurrence (beyond any applicable period of grace
or cure) of any "servicer event of default"
thereunder or (ii) the occurrence of any other
default (beyond any applicable period of grace or
cure) by Company or any of its Subsidiaries,
including any Special Purpose Subsidiary, under the
Securitization Documents, which can be reasonably
expected to result in recourse liability against the
Company or any of its Subsidiaries (other than a
Special Purpose Subsidiary) in an aggregate amount
exceeding $2,000,000 or, with respect to the
Administrative Agency Agreement, the occurrence
(beyond any applicable period of grace or cure) of
any "administrative agent event of default"
thereunder relating to or otherwise enforceable by
the holder of a Specified Interest."
5. Replacement Schedule 6.15 (Litigation) to the Credit Agreement
set forth on Attachment C hereto shall replace, in its
entirety, existing Schedule 6.15 to the Credit Agreement.
6. This Fifth Amendment shall become effective, according to the
terms and as of the date hereof, upon satisfaction by the
Company and the Permitted Borrowers, on or before March 16,
2001, of the following conditions:
(a) Agent shall have received counterpart originals of
this Fifth Amendment, in each case duly executed and
delivered by Company, the Permitted Borrowers and the
requisite Banks, in form satisfactory to Agent and
the Banks;
(b) Agent shall have received from the Company and each
of the Permitted Borrowers a certification (i) that
all necessary actions have been taken by such parties
to authorize execution and delivery of this Fifth
Amendment, supported by such resolutions or other
evidence of corporate authority or action as
reasonably required by Agent and the Majority Banks
and that no consents or other authorizations of any
third parties are required in connection therewith;
and (ii) that, after giving effect to this Fifth
Amendment, no Default or Event of Default has
occurred and is continuing on the proposed effective
date of the Fifth Amendment;
7
8
(c) Agent shall have received, with a copy for each of
the Banks, (i) amendments to the Senior Debt
Documents (making changes comparable to those set
forth herein) executed and delivered by the Company
and the requisite holders of the Senior Debt, such
amendments to be in form and substance satisfactory
to the Agent and the Majority Banks and (ii) related
amendments to the Collateral Documents, in form and
substance acceptable to the Agent acting in its
capacity as Collateral Agent under the Intercreditor
Agreement, in its reasonable discretion; and
(d) the Company shall have paid to each of the Banks a
work fee in the amount of $7,500.
If the foregoing conditions have not been satisfied or waived
on or before March 16, 2001, this Fifth Amendment shall lapse
and be of no further force and effect.
7. Each of the Company and the Permitted Borrowers ratifies and
confirms, as of the date hereof and after giving effect to the
amendments contained herein, each of the representations and
warranties set forth in Sections 6.1 through 6.22, inclusive,
of the Credit Agreement and acknowledges that such
representations and warranties are and shall remain continuing
representations and warranties during the entire life of the
Credit Agreement.
8. Except as specifically set forth above, this Fifth Amendment
shall not be deemed to amend or alter in any respect the terms
and conditions of the Credit Agreement, any of the Notes
issued thereunder or any of the other Loan Documents, or to
constitute a waiver by the Banks or Agent of any right or
remedy under or a consent to any transaction not meeting the
terms and conditions of the Credit Agreement, any of the Notes
issued thereunder or any of the other Loan Documents.
9. Unless otherwise defined to the contrary herein, all
capitalized terms used in this Fifth Amendment shall have the
meaning set forth in the Credit Agreement.
10. This Fifth Amendment may be executed in counterpart in
accordance with Section 13.10 of the Credit Agreement.
11. Comerica Bank - Canada having been designated by Comerica
Bank, in its capacity as swing line bank (and as a Bank) under
the Credit Agreement to fund Comerica Bank's advances in $C
pursuant to Section 11.12 of the Credit Agreement, has
executed this Fifth Amendment to evidence its approval of the
terms and conditions thereof.
12. Pursuant to Section 3(g) of the Intercreditor Agreement, the
Banks hereby authorize Comerica Bank, acting in its capacity
as Collateral Agent under the Intercreditor Agreement, to
release the English Share Charge, provided that
8
9
concurrently therewith, the Company shall have granted to the
Collateral Agent a first priority security interest, lien and
charge in not less than 65% of the aggregate partnership
interests of the Scottish Partnership as required under
Section 7.23(c) of the Credit Agreement.
13. This Fifth Amendment shall be construed in accordance with and
governed by the laws of the State of Michigan.
[SIGNATURES FOLLOW ON SUCCEEDING PAGES]
9
10
WITNESS the due execution hereof as of the day and year first above
written.
COMERICA BANK, CREDIT ACCEPTANCE CORPORATION
as Agent
By:/S/ Xxxxxxx X. Xxxxxx By: /S/ Xxxxxxx X. Xxxx
------------------------------------ --------------------------------
Its: Vice President Its: Chief Financial Officer
----------------------------------- --------------------------------
One Detroit Center
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
COMERICA BANK - CANADA CREDIT ACCEPTANCE CORPORATION
UK LIMITED
By:/S/ Xxxxxx X. Xxxxx By:/S/ Xxxxxxx X. Xxxx
------------------------------------ -------------------------------------
Its: Vice President Its: Treasurer
----------------------------------- -------------------------------------
CAC OF CANADA LIMITED
By:/S/ Xxxxxxx X. Xxxx
--------------------------------------
Its: Treasurer
-----------------------------------
CREDIT ACCEPTANCE CORPORATION
IRELAND LIMITED
By:/S/ Xxxxxxx X. Xxxx
--------------------------------------
Its: Treasurer
-----------------------------------
10
11
11
12
BANKS:
COMERICA BANK NATIONAL CITY BANK OF MINNEAPOLIS
By:/S/ Xxxxxxx X. Xxxxxx By: /S/ Xxxxx Xxxxxxxx
--------------------------------- -----------------------------
Its: Vice President Its: Vice President
------------------------------- -----------------------------
LASALLE BANK NATIONAL BANK OF AMERICA, N.A.
ASSOCIATION
By:/S/ Xxxxxx Xxxxxx By: /S/ Xxxxxxxxx Xxxxxxxx
----------------------------------- ----------------------------------
Its: AVP Its: Managing Director
-------------------------------- ---------------------------------
XXXXXX TRUST AND SAVINGS BANK UNION BANK OF CALIFORNIA, N.A.
By:/S/ Xxxxxxx X. Xxxxxx By: /S/ Xxxxxx X. Xxxxx
--------------------------------- --------------------------------
Its: Vice President Its: Vice President
-------------------------------- ---------------------------------
SIGNATURE PAGE FOR
CAC FIFTH AMENDMENT
12
13
ATTACHMENT A
[NEW DEFINITIONS]
"Administrative Agency Agreement" is referred to in the definition of
Titling Subsidiary Agreements.
"English Share Charge" is referred to in the definition of Collateral
Documents.
"English Special Purpose Subsidiary" shall mean a Special Purpose
Subsidiary established by the Company, as part of the UK Restructuring, under
the laws of England.
"Intercompany Loans" shall mean any loan or advance in the nature of a
loan by the Company to any Subsidiary or by any Subsidiary to any other
Subsidiary or to the Company."
"Intercompany Loans, Advances and Investments" shall mean any
Intercompany Loan and any other advance or Investment by the Company to a
Subsidiary or by any Subsidiary to the Company or any other Subsidiary.
"Luxembourg Subsidiary" shall mean a wholly-owned direct or indirect
Subsidiary of the Company organized under the laws of Luxembourg.
"Non-Specified Assets" is defined in the Titling Subsidiary Agreements.
"Non-Specified Interest" is defined in the Titling Subsidiary
Agreements.
"Scottish Partnership" shall mean a partnership established by the
Company under the laws of Scotland pursuant to the UK Restructuring whose
partners consist of the Company and CAC Nevada or another Domestic Subsidiary.
"Security Agreement" shall mean that certain Security Agreement dated
as of December 15, 1998 executed and delivered by Company in favor of the Agent,
in its capacity as Collateral Agent under the Intercreditor Agreement,
encumbering the Collateral specified in clauses (a), (b) and (c) of the
definition of Collateral, as amended from time to time.
"Specified Assets" is defined in the Titling Subsidiary Agreements.
"Specified Interest" is defined in the Titling Subsidiary Agreements.
"Titling Subsidiary" shall mean Auto Lease Services LLC, a Delaware
limited liability company controlled by the Company and a direct Subsidiary of
the Company.
13
14
"Titling Subsidiary Agreements" shall mean that certain Limited
Liability Company Agreement of the Titling Subsidiary, dated and effective as of
March 1, 2001 (and the related Certificate of Formation, as therein defined),
and that certain Administrative Agency Agreement, dated and effective as of
March 1, 2001 among the Company and the Titling Subsidiary, each as amended
(subject to the terms hereof) from time to time.
"UK Restructuring" shall mean (i) the creation by the Company of the
Scottish Partnership, the Luxembourg Subsidiary and the English Special Purpose
Subsidiary, (ii) the Company's capitalization of the Scottish Partnership with
CAC UK stock, (iii) Intercompany Loans from time to time from the Company to the
Scottish Partnership in an amount substantially equivalent to the fair market
value of assets being transferred to the English Special Purpose Subsidiary at
such time by CAC UK, provided that such Intercompany Loans are substantially
contemporaneously repaid pursuant to clauses (ix) and (x) of this definition,
(iv) the contribution of a nominal amount of capital to the Luxembourg
Subsidiary, (v) the contributions to capital by the Scottish Partnership to the
English Special Purpose Subsidiary out of the proceeds of the Company's
contemporaneous loan to the Scottish Partnership under clause (iii) of this
definition, (vi) Intercompany Loans from time to time by the Scottish
Partnership to the Luxembourg Subsidiary out of the proceeds of the Company's
contemporaneous loan to the Scottish Partnership under clause (iii) of this
definition, (vii) Intercompany Loans from time to time by the Luxembourg
Subsidiary to the English Special Purpose Subsidiary substantially equal to the
contemporaneous loans made to the Luxembourg Subsidiary by the Scottish
Partnership, (viii) transfers from time to time of Advances to Dealers (and its
rights in the related Installment Contracts or Leases) by CAC UK to the English
Special Purpose Subsidiary for cash consideration in an amount substantially
equivalent to the fair market value of the assets being transferred to the
English Special Purpose Subsidiary at such time by CAC UK, (ix) dividends from
CAC UK to Scottish partnership in an amount substantially equal to the cash
received by CAC UK in exchange for the assets transferred at such time to the
English Special Purpose Subsidiary, and (x) repayments from time to time of the
Intercompany Loans (referred to in clause (iii) of this definition) by the
Scottish Partnership to the Company.
2
15
ATTACHMENT B
[AMENDED AND RESTATED DEFINITIONS]
"Cleanup Call(s)" shall mean:
(a) in the case of an optional cleanup call, a cleanup call to be
exercised at the option of the Company, the Titling Subsidiary or a
Special Purpose Subsidiary under the terms of the applicable Permitted
Securitization (provided that, both before and after giving effect
thereto, no Default or Event of Default has occurred and is continuing
when such option is exercised), in an amount not in excess of (i)
Fifteen Percent (15%) of the initial amount received by the Company,
the Titling Subsidiary or a Special Purpose Subsidiary pursuant to such
Permitted Securitization (before fees and other deductions), it being
understood that, for purposes of the calculation under clause (a)(i) of
this definition, each tranche of a multi-tranche Permitted
Securitization shall be considered a separate Permitted Securitization
or (ii) in the case of any Securitization Transaction structured on a
revolving basis, fifteen percent (15%) of the maximum aggregate
availability at any time to Company, the Titling Subsidiary or a
Special Purpose Subsidiary, each such optional cleanup call to be
accompanied (x) by the repurchase of or release of encumbrances on
Advances to Dealers, Leased Vehicles, Installment Contracts (whether
assigned outright or related to Advances to Dealers) or Leases (whether
assigned outright or related to Leased Vehicles), as the case may be,
previously transferred or encumbered pursuant to such Permitted
Securitization in an amount equal to at least the amount of such
cleanup call, or (y) if such Leased Vehicles or Leases are held by the
Titling Subsidiary, by the reallocation of such Leases and Leased
Vehicles from the applicable Specified Interest to the Non-Specified
Interest in an amount equal to at least the amount of such clean-up
call; and
(b) in the case of a mandatory cleanup call, a mandatory cleanup
call to be exercised at the option of the investors under the terms of
the applicable Permitted Securitization, in an amount not in excess of
(i) Two and One-Half Percent (2 1/2%) of the aggregate amount received
by the Company, the Titling Subsidiary or a Special Purpose Subsidiary
pursuant to the Permitted Securitization to which such mandatory
cleanup call relates (before fees and other deductions), it being
understood that, for purposes of the calculation under clause (b)(i) of
this definition, all tranches of a multi-tranche Permitted
Securitization shall be considered one Permitted Securitization or (ii)
in the case of any Securitization Transaction structured on a revolving
basis, Two and One-Half Percent (2 1/2%) of the maximum aggregate
availability at any time to Company, the Titling Subsidiary or a
Special Purpose Subsidiary, each such mandatory Cleanup Call to be
accompanied (x) by the repurchase of or release of encumbrances on
Advances to Dealers, Leased Vehicles, Installment Contracts (whether
assigned outright or related to Advances to Dealers) or Leases (whether
assigned outright or related to Leased Vehicles), as the case may be,
previously transferred or encumbered pursuant to such
1
[ATTACHMENT B]
16
Permitted Securitization in an amount equal to at least the lesser of
(A) the amount of such cleanup call or (B) the book value at the time
of such cleanup call of the Advances to Dealers, Leased Vehicles,
Installment Contracts or Leases previously transferred or encumbered
pursuant to such Permitted Securitization, or (y) if such Leased
Vehicles or Leases are held by the Titling Subsidiary, by the
reallocation of such Leases and Leased Vehicles from the applicable
Specified Interest to the Non-Specified Interest in an amount equal to
at least the lesser of (A) the amount of such clean-up call or (B) the
book value at the time of such cleanup call of the Leased Vehicles and
Leases currently held in such Specified Interest.
"Collateral" shall mean (a) all right, title and interest of each of
the Company and each of its Significant Domestic Subsidiaries in, to and under
its accounts, inventory, machinery, equipment, contract rights, chattel paper,
general intangibles, including without limitation Advances to Dealers, Leased
Vehicles, Dealer Agreements (and any amounts advanced to or liens granted by
Dealers thereunder), Installment Contracts, Leases and related financial
property (such Dealer Agreements, Advances to Dealers and the Installment
Contracts, Leases, accounts, contract rights, chattel paper and general
intangibles relating to such Dealer Agreements, Advances to Dealers and Leased
Vehicles, being subject to the rights, if any, of Dealers under Dealer
Agreements), and computer records and software relating thereto, whether now
owned or hereafter acquired by such Person, (b) all right, title and interest of
CAC UK and of the English Special Purpose Subsidiary, as the case may be in, to
and under its accounts, inventory, contract rights, chattel paper, general
intangibles, including without limitation Advances to Dealers, Leased Vehicles,
Dealer Agreements (and any amounts advanced to or liens granted by Dealers
thereunder), Installment Contracts, Leases and related financial assets (such
Dealer Agreements, Advances to Dealers, and the Installment Contracts, Leases,
accounts, contract rights, chattel paper and general intangibles relating
thereto) being subject to the rights, if any, of Dealers under Dealer Agreements
(and, computer records and software relating thereto, whether now owned or
hereafter acquired), (c) the entire Non-Specified Interest at any time held by
the Company, (d) one hundred percent (100%) of the share capital of each
Significant Domestic Subsidiary of the Company (whether direct or indirect), (e)
not less than sixty-five percent (65%) of the share capital of CAC UK pursuant
to the English Share Charge (referred to in the definition of Collateral
Documents) unless and until released according to the terms of the Fifth
Amendment, and (f) not less than sixty-five percent (65%) of the aggregate
partnership interests of the Scottish Partnership, and all proceeds and products
of the foregoing.
"Collateral Documents" shall mean (i) that certain Security Agreement
dated as of December 15, 1998 and executed and delivered by Company in favor of
the Agent, as Collateral Agent pursuant to the Intercreditor Agreement, and
encumbering the property described therein (as amended and/or amended and
restated pursuant to the Fifth Amendment), (ii) that certain Deed of Charge
("the English Share Charge") dated as of December 17, 1998 and executed and
delivered by Company in favor of the Agent, as Collateral Agent pursuant to the
Intercreditor Agreement, and encumbering the property described therein (unless
and until such share charge has been released according to the terms of Section
7.23(c) hereof), (iii) those certain fixed or
2
[ATTACHMENT B]
17
floating charges or other security documents to be executed and delivered under
the Fifth Amendment by CAC UK and the English Special Purpose Subsidiary in
favor of the Agent, for and on behalf of the Banks (and not as Collateral Agent
pursuant to the Intercreditor Agreement) and encumbering the property described
in clause (b) of the definition of Collateral and (iv) those certain lien,
charge or other security documents to be executed and delivered under the Fifth
Amendment by the Company in favor of the Agent, as Collateral Agent pursuant to
the Intercreditor Agreement and encumbering the Collateral described in clause
(f) of the definition of Collateral, and all other security documents
(including, without limitation, financing statements, stock powers,
acknowledgments, registrations, joinders and the like) executed by the Company
or any of its Subsidiaries and delivered to the Agent, as Collateral Agent (as
aforesaid), as of the date thereof or, from time to time, subsequent thereto in
connection with such security documents, this Agreement or the other Loan
Documents, as such security documents may be in each case amended or further
amended (subject to the Intercreditor Agreement) from time to time.
"Equity Offering" shall mean the issuance and sale for cash, on or
after the Effective Date by Company or any of its Subsidiaries of additional
capital stock or other equity interests, other than upon the exercise of
employee and dealer stock options pursuant to stock option plans maintained or
offered by the Company or its Subsidiaries in the ordinary course of business
and not in anticipation of any sale of capital stock or equity interests to the
general public, and other than the creation or disposition of any interest in
the Titling Subsidiary.
"Leased Vehicles" shall mean, as of any applicable date of
determination, the Dollar Amount of advances in respect of Leases, as such
amount would appear in the footnotes to the financial statements of the Company
and its Subsidiaries prepared in accordance with GAAP or, if specifically
identified, elsewhere in such financial statements, net of depreciation on the
motor vehicles which are covered by Leases with respect to which such Leased
Vehicles are attributable (and if such amount is not shown net of such reserves,
then net of any reserves established by the Company as an Allowance for Credit
Losses related to such advances not expected to be recovered), provided that
Leased Vehicles shall not include (a) the amount of any such advances
attributable to any Leases transferred or encumbered or reallocated from the
Non-Specified Interest to a Specified Interest pursuant to a Permitted
Securitization (whether or not attributable to the Company under GAAP) unless
and until such advances (and the related Leases) are either reassigned to the
Company or a Subsidiary of the Company (other than the Titling Subsidiary) or
such encumbrances are discharged, or such advances (and the related Leases and
vehicles) are reallocated from the applicable Specified Interest to the
Non-Specified Interest or (b) Charged-Off Advances, to the extent that such
Charged-Off Advances (i) exceed the portion of the Company's Allowance for
Credit Losses related to reserves against such advances not expected to be
recovered, as such allowance would appear in the footnotes to the financial
statements of the Company and its Subsidiaries prepared in accordance with GAAP
at such time or if specifically identified, elsewhere in such financial
statements and (ii) have not already been eliminated in the determination of
Leased Vehicles. For purposes of this definition, "Charged-off Advances" shall
mean those Leased Vehicles which the Company or any of its
3
[ATTACHMENT B]
18
Subsidiaries has determined, based on the application of a static pool or
comparable analysis or otherwise, are completely or partially impaired, to the
extent of such impairment.
"Lease(s)" shall mean the retail agreements for the lease of motor
vehicles assigned outright by Dealers to Company or a Subsidiary of Company or
written by a Dealer in the name of the Company or a Subsidiary of Company (and
funded by Company or such Subsidiary) or assigned by Dealers to Company or a
Subsidiary of Company, as nominee for the Dealer, for administration, servicing
and collection, in each case pursuant to an applicable Dealer Agreement;
provided, however, that to the extent the Company or any Subsidiary transfers or
encumbers its interest in any Leases or reallocates such Leases from the
Non-Specified Interest to a Specified Interest pursuant to a Permitted
Securitization, such Leases shall, from and after the date of such transfer or
encumbrance or such reallocation, cease to be considered Leases under this
Agreement (reducing the amount of Leased Vehicles by the outstanding amount of
Leased Vehicles attributable to such Leases) unless and until such Leases are
reassigned to Company or a Subsidiary of the Company (other than the Titling
Subsidiary) or such encumbrances have been discharged or such Leases are
reallocated from the applicable Specified Interest to the Non-Specified
Interest.
"Net Leased Vehicle Dealer Holdbacks" shall mean, as of any date of
determination thereof, with respect to Dealer Agreements relating to Leases,
amounts due to Dealers at such time from collections of Leased Vehicles by the
Company or any Subsidiary (other than with respect to Leases which have been
transferred or encumbered or reallocated from the Non-Specified Interest to a
Specified Interest pursuant to a Permitted Securitization and (x) have not been
reassigned to the Company or a Subsidiary of the Company or the encumbrances on
which have not been discharged or (y) have not been reallocated from the
applicable Specified Interest to the Non-Specified Interest) pursuant to the
applicable Dealer Agreements.
"Permitted Acquisition" shall mean any acquisition by the Company or
any of its Subsidiaries (other than the Titling Subsidiary or any Special
Purpose Subsidiary) of assets, businesses or business interests or shares of
stock or other ownership interests of or in any Person conducted in accordance
with the following requirements:
(a) not less than twenty (20) nor more than ninety (90)
days prior to the commencement of each such proposed
acquisition, the Company provides written notice thereof to
Agent (with drafts of all material documents pertaining to
such proposed acquisition to be furnished to Agent within not
less than twenty (20) days prior to such proposed
acquisition);
(b) on the date of any such acquisition, all necessary or
appropriate governmental, quasi-governmental, agency,
regulatory or similar approvals of applicable jurisdictions
(or the respective agencies, instrumentalities or political
subdivisions, as applicable, of such jurisdictions) and all
necessary or appropriate non-governmental and other
third-party approvals which, in each case, are
4
[ATTACHMENT B]
19
material to such acquisition have been obtained and are in
effect, and the Company and its Subsidiaries are in full
compliance therewith, and all necessary or appropriate
declarations, registrations or other filings with any court,
governmental or regulatory authority, securities exchange or
any other person have been made;
(c) the aggregate value of all of such acquisitions, including the
value of any proposed new acquisition, conducted while this
Agreement remains in effect as Permitted Acquisitions (but
excluding any acquisition conducted with the specific written
approval of the Majority Banks, and not as a Permitted
Acquisition hereunder) computed on the basis of total
acquisition consideration paid or incurred, or to be paid or
incurred, by the Company or its Subsidiaries with respect
thereto, including all indebtedness which is assumed or to
which such assets, businesses or business or ownership
interests or shares, or any Person so acquired, is subject,
shall not exceed Ten Million Dollars ($10,000,000) (or the
Alternative Currency equivalent thereof, if applicable),
determined as of the date of such acquisition;
(d) within thirty (30) days after any such acquisition has been
completed the Company shall deliver to the Agent executed
copies of all material documents pertaining to such
acquisition, and the Company, its Subsidiaries and any of the
corporate entities involved in such acquisition shall execute
or cause to be executed, and provide or cause to be provided
to Agent, for the Banks, such documents and instruments
(including without limitation, the Guaranties as required by
Section 7.22 hereof, and opinions of counsel, amendments,
acknowledgments, consents and evidence of approvals or
filings) as reasonably requested by Agent, if any; and
(e) both immediately before and after such acquisition, no Default
or Event of Default (whether or not related to such
acquisition), has occurred and is continuing.
"Permitted Guaranties" shall mean (i) any guaranties or other support
provided by the Company, for the benefit of the Permitted Borrowers, covering
any overdraft lines of credit or similar credit arrangements maintained by the
Permitted Borrowers or Arlington Investment Company under Section 8.5(d) hereof,
(ii) any guaranties provided by a Significant Subsidiary of the Company of the
Debt outstanding to the Noteholders or the Future Debt Holders, provided that
concurrently with the giving of any such guaranty, such Subsidiary shall enter
into a Guaranty on substantially similar terms and providing an equal and
ratable benefit to the Banks or (iii) any agreement or other undertaking by the
Company, as servicer or administrative agent of the Installment Contracts or
Leases covered by a Permitted Securitization or as administrative agent for the
Titling Subsidiary under the Titling Subsidiary Agreements, (A) to advance funds
equal to the interest component of obligations issued as part of a Permitted
Securitization and
5
[ATTACHMENT B]
20
payable from collections on such Installment Contracts or Leases or (B) to
advance funds, upon the expiration or termination of a Lease held by the Titling
Subsidiary or a Lease included in a Permitted Securitization, in the amount the
Company and its Subsidiaries expect to receive upon the sale or other
disposition of the vehicle subject to such Lease or (C) to advance funds equal
to any portion of the "constant yield payment" (as defined in the Administrative
Agency Agreement or the applicable Securitization Documents) due in any
particular period which was not received with respect to a Lease held by the
Titling Subsidiary or a securitized Lease, such payments in the case of each of
subclauses (A), (B) and (C) of this clause (iii), to be repayable to Company on
a priority basis from such collections, sales or other dispositions, provided
that the aggregate amount of such advances under subclause (A), (B), and (C) of
this clause (iii) at any time outstanding shall not exceed $1,500,000 or (D) to
transfer funds to the Titling Subsidiary to reacquire Leases (and the related
leased vehicles) as may be required from time to time under the Administrative
Agency Agreement, but only to the extent such Leases (and leased vehicles) are
allocated to a Specified Interest immediately prior to the making of the related
transfer.
"Permitted Securitization(s)" shall mean each transfer or encumbrance
(each a "disposition") of specific Advances to Dealers or Leased Vehicles funded
under Back-End Dealer Agreements (and any interest in or lien on the Installment
Contracts, Leases, motor vehicles or other rights relating thereto) or of
specific Installment Contracts or Leases (and any interest in or lien on motor
vehicles or other rights relating thereto) arising under Outright Dealer
Agreements and each transfer or encumbrance (also, a "disposition") of a
Specified Interest (and the reallocation of Leased Vehicles, Leases and related
financial assets from the Non-Specified Interest to such Specified Interest in
connection therewith), in each case by the Company or one or more of its
Subsidiaries to a Special Purpose Subsidiary conducted in accordance with the
following requirements:
(a) Each disposition shall identify with reasonable certainty the
specific Advances to Dealers, Leased Vehicles, Installment
Contracts or Leases covered by such disposition; and such
Advances to Dealers or Leased Vehicles (and the Installment
Contracts, Leases, motor vehicles or other rights relating
thereto) and the Installment Contracts and Leases shall have
performance and other characteristics so that the quality of
such Advances to Dealers, Leases Vehicles, Installment
Contracts or Leases, as the case may be, is comparable to, but
not materially better than, the overall quality of the
Company's Advances to Dealers, Leased Vehicles, Installment
Contracts or Leases, as applicable, as determined in good
faith by the Company in its reasonable discretion;
(b) (i) The disposition of Advances to Dealers, Leased Vehicles,
Installment Contracts or Leases will not result in the
aggregate principal amount of Debt at any time outstanding,
and (without duplication) of similar 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 Subsidiaries pursuant to Permitted
Securitizations exceeding $125,000,000, which amount may be
6
[ATTACHMENT B]
21
readvanced and reborrowed and (ii) the Company or the
Subsidiary disposing of Advances to Dealers, Leased Vehicles,
Installment Contracts or Leases (directly, or by the transfer
or encumbrance or other disposition of a Specified Interest)
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 financial assets in connection with any
such Securitization Transaction in an amount not less than
Seventy-Five Percent (75%) of the sum of (A) the amount of
such Advances to Dealers, (B) the amount of Net Installment
Contract Receivables in respect of Installment Contracts
arising under Outright Dealer Agreements, and (C) the amount
of Leased Vehicles, in each case determined on the date of
such Securitization Transaction;
(c) Each such disposition shall be without recourse
(except to the extent of normal and customary representations
and warranties given as of the date of each such disposition,
and not as continuing representations and warranties) and
otherwise on normal and customary terms and conditions for
comparable asset-based securitization transactions, which may
include Cleanup Call provisions;
(d) Concurrently with each such disposition, the
aforesaid net proceeds shall be applied to reduce the
principal balance outstanding under the Revolving Credit (to
the extent then outstanding, and including the aggregate
amount of drawings made under any Letter of Credit for which
the Agent has not received full payment) by the amount of such
net proceeds, subject to the right to reborrow in accordance
with this Agreement; provided, however, that to the extent
that, on the date any reduction of the principal balance
outstanding under the Revolving Credit shall be required under
this clause (d), the Indebtedness under the Revolving Credit
is being carried, in whole or in part, at the Euro
Currency-based Rate and no Default or Event of Default has
occurred and is continuing, the Company may, after prepaying
that portion of the Indebtedness then carried at the
Prime-based Rate, deposit the amount of such required
principal reductions in a cash collateral account to be held
by the Agent, for and on behalf of the Banks (which shall be
an interest-bearing account), on such terms and conditions as
are reasonably acceptable to Agent and the Majority Banks and,
subject to the terms and conditions of such cash collateral
account, sums on deposit therein shall be applied (until
exhausted) to reduce the principal balance of the revolving
credit on the last day of each Interest Period attributable to
the applicable Eurocurrency-based Advances of the Revolving
Credit;
(e) Each such Securitization Transaction shall be structured on
the basis of the issuance of non-recourse Debt or other
similar securities by the Special Purpose Subsidiary;
7
[ATTACHMENT B]
22
(f) Before conducting a Permitted Securitization, Agent
shall have received, to the extent the applicable Senior Debt
Documents require amendment or consent in order to effect such
Permitted Securitization, copies of amendments to or consents
under the Senior Debt Documents executed and delivered by the
Company and the requisite holders of the Senior Debt
reflecting such amendments or consents; and
(g) Both immediately before and after such disposition, no Default
or Event of Default (whether or not related to such
disposition) has occurred and is continuing.
In connection with each Permitted Securitization conducted hereunder,
not less than ten (10) Business Days prior to the date of consummation
thereof, the Company shall provide to the Agent and each of the Banks
(i) a schedule in the form attached hereto as Exhibit K identifying the
specific Installment Contracts or Leases or the Advances to Dealers or
Leased Vehicles (and providing collection information regarding the
related Installment Contracts or Leases) proposed to be covered by such
transaction (with evidence supporting its determination under
subparagraph (a) of this definition, including without limitation a
"static pool analysis" comparable to the static pool analysis required
to be delivered under Section 7.3(c) hereof with respect to such
Installment Contracts or Leases) and (ii) proposed drafts of the
material Securitization Documents covering the applicable
securitization (and the term sheet or commitment relating thereto) and
within five (5) Business Days following the consummation thereof, the
Company shall have provided to Agent and each Bank copies of the
material Securitization Documents, as executed, including an updated
schedule, substantially in the form of the schedule delivered under
clause (i) above, identifying the financial assets actually covered by
such transaction (and, if such financial assets are materially
different, as reasonably determined by the Company, from those shown in
the schedule delivered under clause (i), above, collection information
and evidence supporting its determination under subparagraph (a) of
this definition, including a comparable "static pool analysis," as
aforesaid, with respect to such financial assets).
"Permitted Transfer(s)" shall mean (i) any sale, assignment, transfer
or other disposition of inventory or worn-out or obsolete machinery, equipment
or other such personal property in the ordinary course of business, (ii) any
transfer of property by a Subsidiary to the Company, (iii) the transfer of the
Teletrack name (owned by the Company) in connection with the sale of Teletrack,
Inc., approved by the Banks under the Prior Credit Agreement, (iv) the sale of
the business of Arlington Investment Company and/or any of its subsidiaries for
net proceeds totaling at least $4,000,000 in cash (all of which net proceeds are
used to reduce Debt outstanding under this Agreement), pursuant to (x) the sale
of all or substantially all of the assets of Arlington Investment Company and/or
any of its subsidiaries or divisions, (y) the sale of all of the capital stock
of Arlington Investment Company and/or any of its subsidiaries or (z) the merger
of Arlington Investment Company and/or any of its subsidiaries with and into any
Person
8
[ATTACHMENT B]
23
other than the Company or any 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; and (v) any transfer of the capital
stock of a Special Purpose Subsidiary to the Company or to any other Subsidiary
which is not a Special Purpose Subsidiary.
"Securitization Transaction" shall mean a transfer of, or grant of a
Lien on, Advances to Dealers, Leased Vehicles, Installment Contracts, Leases,
accounts receivable and/or other financial assets by the Company or any
Subsidiary to a Special Purpose Subsidiary or other special purpose or limited
purpose entity or the reallocation of Leases and Leased Vehicles (and related
financial assets) by the Company or any Subsidiary from the Non-Specified
Interest to a Specified Interest and the transfer of a Specified Interest to a
Special Purpose Subsidiary or other special purpose or limited purpose entity
and the issuance (whether by such Special Purpose Subsidiary or other special
purpose or limited purpose entity or any other Person) of Debt or of any
securities secured directly or indirectly by interests in, or of trust
certificates, Specified Interests or other securities directly or indirectly
evidencing interests in, such Advances to Dealers, Leased Vehicles, Installment
Contracts, Leases, accounts receivable and/or other financial assets.
"Significant Subsidiary(ies)" shall mean, as of any date of
determination, any Subsidiary other than any Special Purpose Subsidiary which is
a Permitted Borrower or which has total assets (but excluding in the calculation
of total assets, for any Domestic Subsidiary, any assets which constitute
Intercompany Loans, advances, or extensions of credit by such Subsidiary to
Company outstanding from time to time and any assets which are acquired or arise
pursuant to a Permitted Securitization, including any equity interest in a
Special Purpose Subsidiary) [this change retroactive to March 31, 1997] in
excess of five percent (5%) of Company's Consolidated Tangible Net Worth,
determined as of the end of each fiscal quarter based upon the financial
statements required to be delivered under Section 7.3(b) or 7.3(c) hereof, as
the case may be (and giving effect to any changes in net worth shown in such
financial statements on the required date of delivery thereof); provided,
however, that none of the Titling Subsidiary, the English Special Purpose
Subsidiary, the Scottish Partnership or the Luxembourg Subsidiary shall be a
Significant Subsidiary, whether or not it satisfies the aforesaid net worth
test.
"Subsidiary(ies)" shall mean any other corporation, association, joint
stock company, business trust, limited liability company, partnership (whether
general or limited) or any other business entity of which more than fifty
percent (50%) of the outstanding voting stock, share capital, membership or
other interests, as the case may be, is owned either directly or indirectly by
any Person or one or more of its Subsidiaries, or the management of which is
otherwise controlled, directly, or indirectly through one or more
intermediaries, or both, by any Person and/or its Subsidiaries. Unless otherwise
specified to the contrary herein or the context otherwise requires,
Subsidiary(ies) shall include the Titling Subsidiary and shall refer to each
Person which is a Subsidiary of the Company and "100% Subsidiary(ies) shall mean
any Subsidiary whose stock or partnership, membership or other equity interests
(other than directors' or qualifying
9
[ATTACHMENT B]
24
shares or other interests to the extent required under applicable law) are owned
directly or indirectly entirely by the Company and/or any of the Permitted
Borrowers.
10
[ATTACHMENT B]
