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Exhibit 4(c)(3)
THIRD AMENDMENT TO CREDIT AGREEMENT
This Third Amendment to Credit Agreement ("Third Amendment") is made as
of this 11th day of May, 1998 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 Second Amended and Restated Credit Agreement dated as of December 4,
1996, as amended by that First Amendment and Consent dated as of June 4, 1997
and that Second Amendment dated as of December 12, 1997 (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 make certain amendments to the Credit Agreement and to
extend the Line of Credit Maturity Date presently in effect, and Agent and the
Banks are willing to do so, but only on the terms and conditions set forth in
this Third Amendment.
NOW, THEREFORE, Company, Permitted Borrowers, Agent and the Banks
agree:
l. Section 1 of the Credit Agreement is hereby amended, as follows:
(a) The definition of "Advances to Dealers" is amended and
restated in its entirety, as follows:
"'Advances to Dealers' shall mean, as of any applicable date
of determination, the dollar amount of advances, as such
amount would appear in the footnotes to the financial
statements of the Company and its Subsidiaries prepared in
accordance with GAAP (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 Advances
to Dealers shall not include (a) any such advances (and the
related Installment Contracts) transferred or encumbered
pursuant to a Permitted Securitization, (b) Excess New Dealer
Advances or (c) Charged-Off Advances, to the extent that such
Charged-Off Advances exceed the portion of the Company's
allowance for credit losses related to reserves against
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. For purposes of this definition, (i)
"Charged-Off Advances" shall mean those Advances to Dealers
which the Company or any of its Subsidiaries has determined,
based on the application of a static pool analysis or
otherwise, are completely or partially impaired, to the extent
of such impairment, (ii) "Excess New Dealer Advances" shall
mean, at any time, the aggregate amount of advances to New
Dealers to the extent such amount exceeds 10% of Gross
Advances to Dealers; and
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(iii) "'New Dealer' shall mean, at any time, a Dealer who
participates in the Company"s program of financing and
collecting installment contract receivables, whose oldest
pool of Installment Contracts held by the Company is dated
as of a date which is not more than six months prior to such
time and who has an advance balance in excess of Ten
Thousand Dollars ($10,000) at such time."
(b) The definition of "Aggregate Commitment" is added, as
follows:
"'Aggregate Commitment' shall mean the Line of Credit Maximum
Amount and the Revolving Credit Maximum Amount, as in effect
from time to time."
(c) The definition of "Cleanup Call(s)" is added, as follows:
"'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 or a Special Purpose
Subsidiary under the terms of the applicable Permitted
Securitization, in an amount not in excess of Five
Percent (5%) of the initial proceeds received by the
Company from the applicable Permitted Securitization,
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
Two and One-Half Percent (2 1/2%) of the initial
proceeds received by the Company from the applicable
Permitted Securitization, in either case, such Cleanup
Call to be exercisable only at such time as (both before
and after giving effect thereto) no Default or Event of
Default has occurred and is continuing hereunder and
being accompanied by the repurchase of or release of
encumbrances on Advances to Dealers previously
transferred or encumbered pursuant to such Permitted
Securitization in the amount of such cleanup call."
(d) The definition of "Consolidated Income Available for Fixed
Charges" is amended to add, in the third line thereof
(following the word "amortization") the parenthetical phrase
"(including the amortization of any excess servicing asset)."
(e) The definition of "Consolidated Net Income" is amended to
add the following words to the end of subparagraph (c)
thereof:
"(including, without limitation, any gain on sale
generated by a Permitted Securitization except to the
extent the Company has received a cash benefit therefrom
in the applicable reporting period); and any interest
income generated by a Permitted Securitization, except
to the extent the Company has received a cash benefit
therefrom in the applicable reporting period".
(f) The definition of "Consolidated Tangible Net Worth" is
amended to add the following clause at the end of such
definition, following the word "GAAP":
"(but excluding from the determination thereof, without
duplication, any capitalized gain on sales of Advances
to Dealers pursuant to a Permitted Securitization, the
equity interest in any Special Purpose Subsidiary, any
interest income generated by a Permitted Securitization
and any excess servicing asset except to the extent the
Company has
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received a cash benefit therefrom in the applicable
reporting period)".
(g) The definition of "Consolidated Total Assets" is amended to
add the following clause at the end of such definition,
following the word "GAAP":
"(but excluding from the determination thereof, without
duplication, any capitalized gain on sales of Advances
to Dealers pursuant to a Permitted Securitization, the
equity interest in any Special Purpose Subsidiary, any
interest income generated by a Permitted Securitization
and any excess servicing asset, except to the extent the
Company has received a cash benefit therefrom in the
applicable reporting period)".
(h) The definition of "Eurocurrency-Interest Period" is amended
and restated in its entirety as follows:
"'Eurocurrency-Interest Period' shall mean, (a) for
Swing Line Advances, an Interest Period of one month (or
any lesser number of days agreed to in advance by
Company or a Permitted Borrower, Agent and the Swing
Line Bank) and (b) for all other Eurocurrency-based
Advances, an Interest Period of seven days or one, two,
three or six months and, in addition, in the case of
Advances of the Revolving Credit only, twelve months (or
any other number of days or months agreed to in advance
by Agent and the Banks) as selected by Company or such
Permitted Borrower, as applicable, for a
Eurocurrency-based Advance pursuant to Section 2.3, 3.3,
or 3.5 hereof, as the case may be."
(i) The definition of "Funding Conditions" is amended by amending
and restating in its entirety subparagraph (d) thereof as
follows:
"(d) concurrently with the incurring of such additional
Debt, the Company shall be obligated (i) to permanently
reduce the Aggregate Commitment then in effect by an
amount not less than Eighty Percent (80%) of the
proceeds of such Debt, net of reasonable and customary
third party expenses incurred by the Company in
connection with the issuance of such Debt, reducing the
Line of Credit Maximum Amount and the Revolving Credit
Maximum Amount on a pro rata basis to the extent both
such facilities are in effect, each such reduction in
the Aggregate Commitment to be accompanied by the
prepayments of principal and other sums required under
Section 2.14 or 3.15, as the case may be (using the
proceeds of such additional Debt to make such
prepayments), and otherwise in compliance with this
Agreement and (ii) to apply the remaining proceeds of
such additional Debt (net of expenses, as aforesaid) to
the principal balance outstanding under the Line of
Credit and the Revolving Credit (to the extent then
outstanding, after giving effect to the mandatory
prepayments required under clause (i) of this
subparagraph), subject to the right to reborrow in
accordance with the terms hereof, after taking into
account the mandatory reductions of the Aggregate
Commitment under clause (i) of this subparagraph."
(j) The definition of "Future Debt" is amended to add, after the
reference to Three Hundred Million Dollars ($300,000,000) in
the
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preamble thereof, the words "less the aggregate
amount received by the Company or its Subsidiaries
from dispositions of Advances to Dealers made
pursuant to Permitted Securitizations" and to add,
after the phrase "except for acceleration on default"
at the end of paragraphs (x) and (y) thereof the
words "or following a change in control".
(k) The definition of "Installment Contract(s)" is
amended and restated in its entirety, as follows:
"'Installment Contract(s)' shall mean retail
installment contracts for the sale of used
motor vehicles assigned by Dealers to
Company or a Subsidiary of Company, as
nominee for the Dealer, for administration,
servicing, and collection pursuant to an
applicable Dealer Agreement; provided,
however, that to the extent the Company or
any Subsidiary transfers or encumbers its
interest in any Installment Contracts (or
any Advances to Dealers related thereto)
pursuant to a Permitted Securitization, such
Installment Contracts shall, from and after
the date of such transfer or encumbrance,
cease to be considered Installment Contracts
under this Agreement unless and until such
installment contracts are reassigned to the
Company or a Subsidiary of the Company or
such encumbrances are discharged."
(l) The definition of "Line of Credit Maturity Date" is
amended to extend the maturity date of the Line of
Credit from the date presently in effect (May 15,
1998) to July 31, 1998.
(m) The definition of "Line of Credit Maximum Amount" is
amended and restated in its entirety to read as
follows:
"'Line of Credit Maximum Amount' shall mean
One Hundred Twenty Million ($120,000,000),
less any reductions in the Line of Credit
Maximum Amount under Section 2.14 of this
Agreement."
(n) The definition of "Permitted Acquisition" is amended
to add (in the second line thereof following the word
"Subsidiaries") the words "(other than any Special
Purpose Subsidiary)".
(o) The definition of "Permitted Guaranties" is amended
to add, at the end of such definition (following the
word "hereof") the words:
"or any agreement or other undertaking by the
Company, as servicer of the Installment Contracts
covered by a Permitted Securitization, to advance
funds in an aggregate amount at any time outstanding
not to exceed $750,000 to cover the interest
component of obligations issued as part of such
securitization and payable from collections on such
Installment Contracts (such advances to be repayable
to Company on a priority basis from such
collections)."
(p) The definition of "Permitted Merger(s)" is amended to
add, in the second line thereof (following the word
"Guarantor"), the words ", excluding any Special
Purpose Subsidiary," and to add in the fifth line
thereof (following the word "Subsidiary"),
the parenthetical phrase "(excluding any Special
Purpose Subsidiary)".
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(q) The definition of "Permitted Securitization(s)" is
added, as follows:
"'Permitted Securitization(s)' shall mean each
transfer or encumbrance (each a "disposition") of
specific Advances to Dealers (and any interest in or
lien on the Installment Contracts or other rights
relating thereto) by the Company or 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
covered by such disposition; and the Advances
to Dealers (and the Installment Contracts or
other rights relating thereto) shall have
performance and other characteristics so that
the quality of such Advances to Dealers and
related Installment Contracts is comparable to,
but not materially better than, the overall
quality of the Company's Advances to Dealers
(and related Installment Contracts) as a whole,
as determined in good faith by the Company in
its reasonable discretion;
(b) The aggregate amount of all such dispositions
of Advances to Dealers conducted from and after
the date hereof (net of any replacements or
repurchases made in accordance with Section
8.8(i)(y) hereof), shall not exceed One Hundred
Forty Seven Million Dollars ($147,000,000),
less One Hundred and Seventeen Percent (117%)
of the principal amount of Future Debt incurred
from and after the effective date of the Third
Amendment pursuant to a Permitted
Securitization, and the Company shall receive
from each such disposition an amount not less
than eighty-five percent (85%) of the value of
the Advances to Dealers covered thereby;
(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, including, any
Cleanup Call provision;
(d) Concurrently with each such disposition, the
Company shall permanently reduce the Aggregate
Commitment then in effect by an amount not less
than Eighty Percent (80%) of the proceeds of
each such disposition (net of reasonable and
customary third party expenses incurred by the
Company in connection therewith), reducing the
Line of Credit Maximum Amount and the Revolving
Credit Maximum Amount on a pro rata basis
(based on the Aggregate Commitment then in
effect) to the extent both such facilities are
in effect, each such reduction in the Aggregate
Commitment to be accompanied by the prepayments
of principal and other sums required under
Section 2.14 or 3.15, as the case may be, and
otherwise in compliance with this Agreement;
(e) 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
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delivered by the Company and the requisite
holders of the Senior Debt reflecting such
amendments or consents; and
(f) 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 Advances to Dealers (and
providing collection information regarding the related
Installment Contracts) proposed to be covered by such
transaction (with evidence supporting its determination
under subparagraph (a) of this definition) 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 Advances to Dealers actually
covered by such transaction.
(r) The definition of "Revolving Credit Maximum Amount"
is amended and restated in its entirety to read as
follows:
"'Revolving Credit Maximum Amount' shall
mean Eighty Million Dollars ($80,000,000),
less any reductions in the Revolving Credit
Maximum Amount under Section 3.15 of this
agreement."
(s) The definition of "Revolving Credit Maturity Date" is
amended by deleting the date "May 15, 2000" (after
giving effect to the Request for Extension dated May
20, 1997) in the first line thereof and substituting
therefor the date "May 15, 1999";
(t) The definition of "Securitization Documents" is
added, as follows:
"'Securitization Document(s)' shall mean any note
purchase agreement (and any notes issued thereunder),
transfer or security documents, master trust or other
trust agreements, servicing agreement or other
documents, instruments and certificates executed and
delivered, subject to the terms of this Agreement, to
evidence or secure (or otherwise relating to) a
Permitted Securitization, as the same may be amended
from time to time (subject to the terms hereof) and
any and all other documents executed in connection
therefor or replacement or renewal thereof."
(u) The definition of "Significant Subsidiary(ies)" is
amended to add in the first line thereof (following
the word "Subsidiary"), the words "other than any
Special Purpose Subsidiary" and to add, at the end of
the first parenthetical phrase contained in such
definition (following the words "from time to time")
the words "and any assets which are acquired or arise
pursuant to a Permitted Securitization, including any
equity interest in a Special Purpose Subsidiary)."
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(v) The definition of "Special Purpose Subsidiary" is
added, as follows:
"'Special Purpose Subsidiary' shall mean any
wholly-owned direct or indirect subsidiary of the
Company established for the sole purpose of
conducting one or more Permitted Securitizations and
otherwise established and operated in accordance with
customary industry practices.
(w) The definition "Third Amendment" is added, as
follows:
"'Third Amendment' shall mean the Third Amendment to
Credit Agreement dated as of May 11, 1998 executed
and delivered by and among the Company, the Permitted
Borrowers signatory thereto, the Banks and Agent."
2. Sections 2.14 and 3.15 are amended (a) by adding in the third
line thereof, following the words "prior written notice to the
Agent", the words "and, regardless of whether a Default or
Event of Default has occurred and is continuing, shall to the
extent required under the definitions of "Funding Conditions"
and "Permitted Securitization"," and (b) by adding in clause
(iv) thereof, following the words "termination or reduction"
the parenthetical phrase "(except for terminations or
reductions required under the definitions of "Funding
Conditions" and "Permitted Securitization", which shall be
subject to the assessment of breakage charges hereunder)."
3. Sections 2.15 and 3.16 of the Credit Agreement are deleted in
their entirety and replaced with the word "[Reserved]."
4. Section 7 of the Credit Agreement is amended, as follows:
(a) The preamble to Section 7 is amended to add,
following the word "Subsidiaries" (in the second line
thereof), the parenthetical phrase "(but excluding,
for purposes of Sections 7.3 through 7.10, 7.19, 7.20
and 7.22 hereof, any Special Purpose
Subsidiary)".
(b) Section 7.3(c)(iii) is amended and restated in its
entirety, as follows:
"(iii) a "static pool analysis" substantially in the
form of Exhibit L attached hereto and in any event
satisfactory in form and substance to the Majority
Banks, which analyzes the performance of Company's
and each Permitted Borrower's Installment Contracts
on a quarterly basis, certified by an authorized
officer of the Company as to consistency with prior
such analyses, accuracy and fairness of presentation
and a comparable "static pool analysis" which
analyzes the performance of any installment contracts
related to any Advances to Dealers transferred or
encumbered pursuant to a Permitted Securitization;"
(c) Section 7.3(f) is amended to replace the phrase
"within five (5) Business Days from each incurrence
thereof" (in the third line thereof following the
words "Subsidiaries; and") with the phrase
"concurrently with each incurrence thereof".
(d) Section 7.3(h) is amended to add, at the end of said
Section (following the word "projections"), the
words: "and which shall
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reflect any Future Debt or Permitted Securitizations
contemplated to be incurred or made".
(e) Section 7.4 is amended and restated in its entirety
as follows:
"7.4 Maintain Total Debt Level. On a Consolidated
basis, maintain as of the end of each fiscal quarter,
Consolidated Total Debt at a level equal to or less than each
of the following tests:
(a) Two Hundred Percent (200%) of Company"s
Consolidated Tangible Net Worth from the
effective date of the Third Amendment until
such time (but in no event prior to December
31, 1998) as the Company has maintained a
Fixed Charge Coverage Ratio, pursuant to
Section 7.9 hereof, of not less than 2.00 to
1.00 for two consecutive fiscal quarters,
then Two Hundred Seventy-Five Percent (275%)
of Company's Consolidated Tangible Net
Worth; provided however that for the
purposes of this test, Consolidated Total
Debt shall be calculated by including all
Debt incurred by a Special Purpose
Subsidiary, whether or not included therein
under GAAP;
(b) Eighty Five Percent (85%) of Advances to
Dealers; and
(c) Sixty Percent (60%) of Gross Current
Installment Contract Receivables."
(f) Section 7.5 is amended and restated in its entirety,
as follows:
"7.5 Maintain Senior Funded Debt Level. On a
Consolidated basis, maintain as of the end of each fiscal
quarter Consolidated Senior Funded Debt in an amount not in
excess of Net Installment Contract Receivables less Net Dealer
Holdbacks, divided by 1.10."
(g) Section 7.7 is amended to change the reference to
"One Hundred Fifty Million Dollars ($150,000,000)" in
the second line thereof to "Two Hundred Million
Dollars ($200,000,000)" and to change the reference
to "January 1, 1996" to "January 1, 1998".
5. Section 8 of the Credit Agreement is hereby amended, as
follows:
(a) The preamble to Section 8 is amended to add,
following the word "Subsidiaries" (in the fifth line
thereof), the parenthetical phrase "(but excluding,
for purposes of Sections 8.10, 8.13, 8.14 hereof, any
Special Purpose Subsidiary)".
(b) Section 8.1 is amended to add a new clause (iii)
immediately prior to the words ", shall not
constitute" as follows:
"or (iii) securities issued by a Special Purpose
Subsidiary pursuant to a Permitted Securitization,"
(c) Section 8.3 is amended to add, at the end of said
section, the words "and Permitted Securitization(s)."
(d) Section 8.5 is amended to delete the word "and" at
the end of subparagraph (d) thereof, to redesignate
subparagraph (e) as subparagraph (f) and to add new
subparagraph (e), as follows:
"(e) non-recourse Debt incurred by a Special
Purpose Subsidiary pursuant to a Permitted
Securitization; and".
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(e) Subparagraph (c) of Section 8.6 is amended to add, at
the end of said subparagraph (after the word "Liens,"
but prior to the semicolon) the words "and any Lien
encumbering property interests, rights or proceeds
which are the subject of a transfer or encumbrance
pursuant to a Permitted Securitization".
(f) Section 8.7 is amended to add immediately following
the words "any Permitted Acquisition" in the first
line thereof, the words "or any acquisition of any
rights or property pursuant to a Permitted
Securitization".
(g) Section 8.8 is amended to delete the word "and" at
the end of subparagraph (h) thereof, to redesignate
subparagraph (i) thereof as subparagraph (j) and to
add a new subparagraph (i), as follows:
(i) "Investments in any Subsidiary (including,
without limitation, any Special Purpose
Subsidiary) from and after the date hereof,
consisting of (w) dispositions of specific
Advances to Dealers (and its interest in the
Installment Contracts relating thereto) made
pursuant to a Permitted Securitization and
any resultant Debt issued by a Special
Purpose Subsidiary to another Subsidiary as
part of a Permitted Securitization, in each
case to the extent constituting Investments
hereunder; (x) advances by Company (as
servicer) which are permitted under the
definition of Permitted Guaranties; (y) the
repurchase or replacement from and after the
date hereof of an aggregate amount not to
exceed $2,000,000 in Advances to Dealers
(and the Installment Contracts or other
rights relating thereto) subsequently
determined not to satisfy the eligibility
standards contained in the applicable
Securitization Documents relating to a
Permitted Securitization, so long as (i)
such replacement is accompanied by the
repurchase of or release of encumbrances on
Advances to Dealers previously transferred
or encumbered pursuant to such
securitization and in the amount thereof,
(ii) any replacement Advances to Dealers
(and the related Installment Contracts) are
selected by Company according to the
requirements set forth in clause (a) of the
definition of Permitted Securitization and
(iii) such replacements are made at a time
when (both before and after giving effect
thereto) no Default or Event of Default has
occurred and is continuing; and (z) amounts
required to fund any Cleanup Call under the
terms of such Permitted Securitization,
exercised at a time when (both before and
after giving effect thereto) no Default or
Event of Default has occurred and is
continuing; and"
(h) Section 8.9 is amended to add, in the first line
thereof (following the word "Banks"), the phrase "or
pursuant to a Permitted Securitization".
(i) Section 8.11 is amended to add, at the end of the
parenthetical phrase in the ninth line thereof
(following the word "Debt"), the words:
"and other than pursuant to any of the
Securitization Documents, but only to the extent of
the Advances to Dealers, and the other rights and
property transferred or encumbered in connection with
the Permitted Securitization covered by such
Securitization Documents)".
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(j) Section 8.12 is amended by adding at the end of such
subsection immediately before the "." the words "or,
with respect only to Permitted Securitizations, any
payment pursuant to a Cleanup Call."
(k) Section 8.15 is amended to add, in clause (i) thereof
(following the word "Subsidiary") the words "(other
than any Special Purpose Subsidiary)".
(l) New Section 8.16 is added, as follows:
"8.16 Amendment of Securitization Documents.
Once executed and delivered pursuant to a Permitted
Securitization, amend, modify or otherwise alter any of the
material terms and conditions of any Securitization Documents
or waive (or permit to be waived) any such provision thereof
in any material respect, without the prior written approval of
Agent and the Majority Banks. For purposes of such documents
and instruments, "material" and "materially" shall be deemed
to relate solely to recourse, Cleanup Calls or any change in
or waiver of conditions contained therein which are required
under or necessary for compliance with this Agreement."
6. Section 9.1(f) is amended to add, at the end of such section
(following the word "obligation"), the words "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.
7. Section 13.8(c) is amended to delete from the first sentence
thereof, the entire second proviso beginning with the words
"and provided further that" and ending with the words
"original interest therein" and replacing the semicolon after
the words "Federal Reserve Bank" with a period.
8. This Third 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 May 14,
1998, of the following conditions:
(a) Agent shall have received counterpart originals of
this Third 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; and
(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 Third
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 Third
Amendment, no Default or Event of Default has
occurred and is continuing on the proposed effective
date of the Third Amendment.
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If the foregoing conditions have not been satisfied or waived
on or before May 14, 1998, this Third Amendment shall lapse
and be of no further force and effect. Furthermore, within
five (5) Business Days from the effective date of this Third
Amendment, as aforesaid, Company shall pay to the Agent, for
distribution to each of the Banks, an amendment fee in the
amount of ten basis points on each such Bank's Percentage of
the Aggregate Commitment, as applicable, in effect as of the
date of this Third Amendment (after giving effect thereto) and
failure to comply with this provision shall be an Event of
Default under the Credit Agreement.
9. New Exhibits K (Advances to Dealers/Permitted Securitization)
and L (Form of Static Pool Analysis) attached hereto as
Attachment 1 and 2, respectively, are added to the Credit
Agreement; and new Schedule 6.15 (Litigation) attached hereto
as Attachment 3 shall replace existing Schedule 6.15 in its
entirety.
10. 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.
11. Except as specifically set forth above, this Third 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.
12. Unless otherwise defined to the contrary herein, all
capitalized terms used in this Third Amendment shall have the
meaning set forth in the Credit Agreement.
13. This Third Amendment may be executed in counterpart in
accordance with Section 13.10 of the Credit Agreement.
14. This Third Amendment shall be construed in accordance with and
governed by the laws of the State of Michigan.
[signatures follow on succeeding pages]
12
12
WITNESS the due execution hereof as of the day and year first above
written.
COMERICA BANK, CREDIT ACCEPTANCE CORPORATION
as Agent
By: Xxxxxxxxx Xxxxx By: Xxxxx X. Xxxxxxx
------------------------------- ---------------------------
Its: Corporate Finance Officer Its: Chief Financial Officer
------------------------------- ---------------------------
One Detroit Center
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
CREDIT ACCEPTANCE CORPORATION
UK LIMITED
By: Xxxxx X. Xxxxxxx
---------------------------------------
Its: Secretary
---------------------------------------
CAC OF CANADA LIMITED
By: Xxxxx X. Xxxxxxx
---------------------------------------
Its: Chief Financial Officer
---------------------------------------
CREDIT ACCEPTANCE CORPORATION IRELAND LIMITED
By: Xxxxx X. Xxxxxxx
---------------------------------------
Its: Secretary
---------------------------------------
12
13
COMERICA BANK
By: Xxxxxxx X. Xxxxxx
--------------------------------
Its: 1st Vice President
--------------------------------
14
LASALLE NATIONAL BANK
By: Xxx Xxxxxxxxx
-----------------------------
Its: Loan Officer
-----------------------------
15
THE FIRST NATIONAL BANK OF
CHICAGO
By: Xxxxx X. Xxxxx
-----------------------------
Its: Vice President
-----------------------------
16
THE SUMITOMO BANK, LIMITED,
CHICAGO BRANCH
By: Xxxx Xxxxxxx
------------------------------
Its: V.P. & Mgr.
------------------------------
and
By: Xxxx Xxxxxxxxx
------------------------------
Its: V.P. & Mgr.
------------------------------
17
XXXXXX TRUST AND SAVINGS BANK
By: Xxxxxxx Xxxxxx
-----------------------------
Its: V.P.
-----------------------------
18
THE BANK OF NEW YORK
By: Xxxxxxx Xxxxxx
-----------------------------
Its: Vice President
-----------------------------
19
THE FIFTH THIRD BANK OF NORTHWESTERN
OHIO, N.A.
By: Xxxxx X. Xxxxxxxxxx
-----------------------------
Its: Vice President
-----------------------------
20
U.S. BANK NATIONAL ASSOCIATION, as
successor by merger to United
States National Bank of Oregon
By: Xxxxxx Xxxxxxxx
-------------------------
Its: Vice President
-------------------------
21
THE BANK OF TOKYO-MITSUBISHI, LTD.
(CHICAGO BRANCH)
By: Xxxxxx Xxxxxxxx
-------------------------
Its: Deputy General Mgr.
-------------------------
22
BANQUE PARIBAS
By: Xxx X. XxXxxxx
--------------------
Its: Vice President
--------------------
and
By: Xxxxx X. Xxxxx
-------------------
Its: Vice President
-------------------
23
CREDIT LYONNAIS
NEW YORK BRANCH
By: W. Xxx Xxxxxxx
------------------
Its: Vice President
------------------
24
FIRST UNION NATIONAL BANK
By: Xxxx X. Xxxxxxx
--------------------------
Its: Senior Vice President
--------------------------
25
FIRSTAR BANK MILWAUKEE, N.A.
By: Xxxx Xxxxxxxx
-----------------------
Its: Vice President
-----------------------
26
NATIONSBANK, N.A.
By: Xxxxxxxxx Xxxxxxxx
-----------------------
Its: Senior Vice President
-----------------------
00
XXX XXXX XX XXXX XXXXXX
By: M.D. Xxxxx
-------------------------
Its: Agent Operations
-------------------------
28
CIBC INC.
By: Xxxxxx Girarti
-------------------------
Its: Executive Director
-------------------------
