EXHIBIT 4(c)(14)
EXECUTION COPY
FIRST AMENDMENT
TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
("First Amendment") is made as of this 10th day of December, 2004 by and among
Credit Acceptance Corporation, a Michigan corporation ("Company"), Comerica Bank
and the other banks signatory hereto (individually, a "Bank" and collectively,
the "Banks") and Comerica Bank, as administrative agent for the Banks (in such
capacity, "Agent").
RECITALS
A. Company, Agent and the Banks entered into that certain Third Amended
and Restated Credit Acceptance Corporation Credit Agreement dated as of June 9,
2004 (the "Credit Agreement") under which the Banks renewed and extended (or
committed to extend) credit to the Company, as set forth therein.
B. The Company has requested that Agent and the Banks agree to certain
amendments 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 First Amendment.
NOW, THEREFORE, Company, Agent and the Banks agree:
1. Section 1 of the Credit Agreement is hereby amended by amending and
restating, the definition of Borrowing Base as follows:
"Borrowing Base Limitation" shall mean, as of any date of determination,
an amount equal to (i) sixty-five percent (65%) of Advances to Dealers,
plus (ii) sixty-five percent (65%) of the Outright Contract Balance minus
(iii) the Hedging Reserve and minus (iv) the aggregate principal amount
outstanding from time to time of any Debt (other than the Indebtedness)
secured by any of the Collateral; provided, however, that, at any time,
the portion of the Borrowing Base Limitation derived from the Outright
Contract Balance under clause (ii) of this definition shall not exceed a
maximum of twenty-five percent (25%) of the aggregate Borrowing Base
Limitation."
2. Section 7 of the Credit Agreement is amended by amending and restating
Section 7.6 as follows:
"7.6 Minimum Tangible Net Worth. On a Consolidated basis, maintain
Consolidated Tangible Net Worth of not less than Two Hundred Ten Million
Dollars ($210,000,000), plus the sum of (i) eighty percent (80%) of
Consolidated Net Income for each fiscal quarter of the Company (A)
beginning on or after April 1, 2004, (B) ending on or before the
applicable date of determination thereof, and (C) for which Consolidated
Net Income as determined above is a positive amount and (ii) the Equity
Offering Adjustment."
3. Replacement Exhibit O (Form of Borrowing Base Certificate) to the Credit
Agreement set forth on Attachment 1 hereto shall replace, in its entirety,
existing Exhibit O to the Credit Agreement.
4. This First Amendment shall become effective, according to the terms and as
of the date hereof, upon satisfaction by the Company of the following
conditions:
(a) Agent shall have received counterpart originals of this First
Amendment, in each case duly executed and delivered by the Company
and the requisite Banks, in form satisfactory to Agent and the
Banks; and
(b) Agent shall have received from a responsible senior officer of the
Company a certification (i) that all necessary actions have been
taken by the Company to authorize execution and delivery of this
First 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 First Amendment, no Default or
Event of Default has occurred and is continuing on the proposed
effective date of the First Amendment.
5. The Company 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 6.18, 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.
6. Except as specifically set forth above, this First 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.
7. Unless otherwise defined to the contrary herein, all capitalized terms
used in this First Amendment shall have the meaning set forth in the
Credit Agreement.
8. This First Amendment may be executed in counterpart in accordance with
Section 13.10 of the Credit Agreement.
9. This First Amendment shall be construed in accordance with and governed by
the laws of the State of Michigan.
[SIGNATURES FOLLOW ON SUCCEEDING PAGES]
2
WITNESS the due execution hereof as of the day and year first above
written.
COMERICA BANK, CREDIT ACCEPTANCE CORPORATION
as Agent
By: /s/ Harve Light By: /s/ Douglas W. Busk
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Its: VP Its: TREASURER
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Signature Page For
CAC First Amendment
BANKS:
COMERICA BANK
By: /s/ Harve Light
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Its: VP
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Signature Page For
CAC First Amendment
BANK OF AMERICA, N.A.
By: /s/ MARY P RIGGINS
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Its: Senior Vice President
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Signature Page For
CAC First Amendment
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ DANIEL J. VASILE
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Its: ASST. VICE PRESIDENT
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Signature Page For
CAC First Amendment
HARRIS TRUST AND SAVINGS BANK
By: /s/ Paul Rubrich
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Its: VICE PRESIDENT
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Signature Page For
CAC First Amendment
FIFTH THIRD BANK
(EASTERN MICHIGAN)
By: /s/ MICHAEL BLACKBURN
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MICHAEL BLACKBURN
Its: VICE PRESIDENT
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Signature Page For
CAC First Amendment
NATIONAL CITY BANK OF THE
MIDWEST, FORMERLY KNOWN AS
NATIONAL CITY BANK OF
MICHIGAN/ILLINOIS
By: /s/ Ken R. Ehrhardt
--------------------------
Its: SENIOR VICE PRESIDENT
--------------------------
Signature Page For
CAC First Amendment
EXHIBIT O
BORROWING BASE CERTIFICATE
This certificate submitted for the__________ [quarter or month]
ending__________________, as follows:
(A) Advances to Dealers(1) $_________
times Advance Rate (65%) $_________
(B) Outright Contract Balance(1) $_________ (cannot exceed
25% of the
aggregate
Borrowing Base
Limitation).
times Advance Rate (65%) $_________
Total (A PLUS B) $_________
MINUS:
(C) Hedging Reserve(2) (see attached
breakdown) $_________
MINUS
(D) Other Debt Secured by the Collateral
(excluding Indebtedness under
Credit Agreement)(3)
(1) Future Debt $ [0]
Subtotal $_________
Borrowing Base Limitation $_________
- ----------------
(1) Calculated as of the most recent quarter end for regular quarterly
certificates and as of the most recent month end for which financial
information is available for all other certificates
(2) Calculated as of the most recent quarter end, and with disclosure of
additional Hedging Agreements not included in calculation Adequacy of
reserve subject to review and approval of Majority Banks and affected
Banks, upon request
(3) These amounts calculated as of the date of the certificate set forth in
the signature block
The undersigned authorized officer certifies the matters contained in this
Borrowing Base Certificate as correct, accurate and complete as of the date set
forth below.
CREDIT ACCEPTANCE CORPORATION
By:___________________________
Its:__________________________
Date:_________________________
ATTACHMENT TO BORROWING BASE CERTIFICATE
(Breakdown of Hedging Reserve
for_________________ [month or quarter) ending________)
(i) HEDGING RESERVE AS ALLOCATED TO BANKS OR AFFILIATES BY CREDIT ACCEPTANCE
CORPORATION AS OF MOST RECENT QUARTER END:
1. Bank (or Affiliate) ________________ $_____________
2. Bank (or Affiliate) ________________ $_____________
3. Bank (or Affiliate) ________________ $_____________
Subtotal $____________
Maximum: Hedging Reserve Cannot Exceed $1,000,000 $___________
(ii) HEDGING AGREEMENTS NOT INCLUDED IN HEDGING RESERVE CALCULATION (ENTERED
INTO AFTER MOST RECENT QUARTER END):
1. Bank (or affiliate) ________________ ______________________________
______________________________
2. Bank (or affiliate) ________________ ______________________________
______________________________
3. Bank (or affiliate) ________________ ______________________________
______________________________
[Brief description, including
date, nature of instrument,
etc.]