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Exhibit 4(a)(6)
FIFTH AMENDMENT TO NOTE PURCHASE AGREEMENT
RE:
CREDIT ACCEPTANCE CORPORATION
FIRST AMENDED AND RESTATED 9.12% SENIOR NOTES DUE NOVEMBER 1, 2001
Dated as of April 13, 1999
To the Noteholders listed on Annex I hereto
Ladies and Gentlemen:
Credit Acceptance Corporation, a Michigan corporation (together with
its successors and assigns, the "Company"), hereby agrees with you as follows:
SECTION 1. INTRODUCTORY MATTERS.
1.1 DESCRIPTION OF OUTSTANDING NOTES. The Company currently has
outstanding $_________ in aggregate unpaid principal amount of its First Amended
and Restated 9.12% Senior Notes due November 1, 2001 (collectively, the "Notes")
which it issued pursuant to the separate Note Purchase Agreements, each dated as
of October 1, 1994 (collectively, as amended by the First Amendment to Note
Purchase Agreement dated as of November 15, 1995, the Second Amendment to Note
Purchase Agreement dated as of August 29, 1996, the Third Amendment to Note
Purchase Agreement dated as of December 12, 1997 and the Fourth Amendment to
Note Purchase Agreement, dated as of July 1, 1998, the "Agreement"), entered
into by the Company with each of the original holders of the Notes listed on
Annex 1 thereto, respectively. Terms used herein but not otherwise defined
herein shall have the meanings assigned thereto in the Agreement, as amended
hereby.
1.2 PURPOSE OF AMENDMENT. The Company and you desire to amend the
Agreement as set forth in Section 2 hereof and to include in this amendment the
revision to the "Total Restricted Subsidiary Debt" definition, which revision
was included in the terms of the Intercreditor Agreement, dated as of December
15, 1998 among Comerica Bank, as collateral agent, the lenders under the Credit
Agreement and the holders of the Notes and other notes issued by the Company.
SECTION 2. AMENDMENT TO THE AGREEMENT.
Pursuant to Section 10.5 of the Agreement, the Company hereby agrees
with you that the Agreement shall be amended by this Fifth Amendment to Note
Purchase Agreement (the "Fifth Amendment") in the following respects:
2.1 SECTION 6.1
Clause (ii) of paragraph (a) of Section 6.1 is hereby amended and
restated in its entirety as follows:
(ii) seventy-five percent (75%) of Advances; and.
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Exhibit 4(a)(6)
2.2 SECTION 6.7
Section 6.7 is amended by replacing the word "or" with the word
"and" at the end of clause (ii) of paragraphs (a) and (b), redesignating clause
(iii) of paragraph (b) as paragraph (c), replacing the "." at the end of new
paragraph (c) with "; and" and adding the following paragraph (d):
(d) a merger, consolidation or Transfer of a Restricted
Subsidiary or Restricted Subsidiaries pursuant to the Montana
Disposition."
2.3 SECTION 6.8
(A) Paragraph (a) of Section 6.8 is amended by replacing the "." at
the end of clause (iv) with "; and", by adding, at the end of each of clauses
(iii) and (iv) before the semicolon the phrase "if, immediately before and after
the consummation of such Transfer, and after giving effect thereto, no Default
or Event of Default would exist", and by adding the following clause (v):
(v) any Transfer made pursuant to the Montana
Disposition if, immediately before and after the consummation
of such Transfer, and after giving effect thereto, no Default
or Event of Default would exist."
(B) Paragraph (b) of Section 6.8 is amended by amending and restating
the lead-in phrase of clause (iv) as follows:
(iv) the Transfer of all of the Restricted Subsidiary
Stock of a Restricted Subsidiary owned by the Company and the
other Restricted Subsidiaries pursuant to the Montana Disposition
or if:"
(C) Paragraph (c) of Section 6.8 is amended by adding in the second
line thereof after "except in connection with a Permitted Securitization" the
words "or in connection with the Montana Disposition".
2.4 SECTION 9.1
(A) The definition of "Permitted Securitization" in Section 9.1 of
the Agreement is hereby amended by deleting paragraph (d) in its entirety,
redesignating paragraph (e) as paragraph (d) and amending and restating
paragraph (b) of such definition as follows:
(b) (i) The disposition of Advances will not result in
the aggregate principal amount of Debt at any time
outstanding, and (without duplication) of Securities
at any time issued and outstanding (other than
subordinated Securities issued to and held by the
Company or a Subsidiary), of any Special Purpose
Subsidiary pursuant to Permitted Securitizations
occurring from and after the effective date of the
Second Amendment exceeding $100,000,000 (which amount
may be readvanced and reborrowed); and (ii) the
Company or the Restricted Subsidiary disposing of
Advances to a Special
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Exhibit 4(a)(6)
Purpose Subsidiary pursuant to such Permitted
Securitization shall itself actually receive
(substantially contemporaneously with such
disposition) cash from each disposition of such
Advances in connection with any such securitization
transaction in an amount not less than Seventy-Five
Percent (75%) of the value of such Advances;.
(B) The definition of "Total Restricted Subsidiary Debt" is amended
and restated in its entirety as follows:
TOTAL RESTRICTED SUBSIDIARY DEBT -- means, at any
time, the aggregate amount of Debt of all Restricted
Subsidiaries determined at such time after eliminating
intercompany transactions among the Company and the
Restricted Subsidiaries. For the avoidance of doubt, the
Company hereby acknowledges that Total Restricted
Subsidiary Debt includes the amount of Debt of any
Restricted Subsidiary attributable to its Guaranty of any
liabilities of another Person (including the Company or
any Subsidiary) made in favor of any Person other than the
Company or another Restricted Subsidiary. Notwithstanding
the foregoing, (i) Total Restricted Subsidiary Debt does
not include the amount of Debt of any Restricted
Subsidiary attributable to its Guaranty of obligations
under the Credit Agreement (and any related notes, letters
of credit and other agreements) of any Person (including
the Company or any Subsidiary) made in favor of the Banks
if, concurrently with the giving of any such Guaranty, you
are given the benefit of an equal and ratable Guaranty on
substantially similar terms; and (ii) the term "Total
Restricted Subsidiary Debt" shall not, at any time prior
to May 15, 1997 (but shall, at all times from and after
May 15, 1997), be deemed to include any Debt of CAC
International attributable to its Guaranty, for the
benefit of the Banks, of the liabilities of the Company
and certain Subsidiaries under the Credit Agreement.
(C) The definition of "Montana Disposition" is added to Section 9.1:
"MONTANA DISPOSITION -- means the sale of Montana
Investment Group, Inc. and its subsidiaries for net
proceeds totaling at least $16,000,000 in cash (all of
which net proceeds are used to reduce Debt outstanding
under the Credit Agreement), pursuant to (i) the sale of
all or substantially all of the assets of Montana
Investment Group, Inc. and its subsidiaries, (ii) the sale
of all of the capital stock of Montana Investment Group,
Inc. or (iii) the merger of Montana Investment Group, Inc.
with and into any Person other than the Company or a
Restricted Subsidiary; in each case, immediately prior to
and immediately after the consummation of which, and after
giving effect thereto, no Default or Event of Default
would exist.
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Exhibit 4(a)(6)
SECTION 3. MISCELLANEOUS
3.1 COUNTERPARTS. This Fifth Amendment may be executed in any number
of counterparts, each executed counterpart constituting an original, but all
together only one Fifth Amendment.
3.2 HEADINGS. The headings of the sections of this Fifth Amendment
are for purposes of convenience only and shall not be construed to affect the
meaning or construction of any of the provisions hereof.
3.3 GOVERNING LAW. This Fifth Amendment shall be governed by and
construed in accordance with the internal laws of the State of Connecticut.
3.4 EFFECT OF AMENDMENT. Except as expressly provided herein (a) no
other terms and provisions of the Agreement shall be modified or changed by this
Fifth Amendment and (b) the terms and provisions of the Agreement, as amended by
this Fifth Amendment, shall continue in full force and effect. The Company
hereby acknowledges and reaffirms all of its obligations and duties under each
of the Agreement, as modified by this Fifth Amendment, and the Notes.
3.5 REFERENCES TO THE AGREEMENT. Any and all notices, requests,
certificates and other instruments executed and delivered concurrently with or
after the execution of the Fifth Amendment may refer to the Agreement without
making specific reference to this Fifth Amendment but nevertheless all such
references shall be deemed to include, to the extent applicable, this Fifth
Amendment unless the context shall otherwise require.
3.6 COMPLIANCE. The Company certifies that immediately before and
after giving effect to this Fifth Amendment, no Default or Event of Default
exists or would exist after giving effect hereto.
3.7 EFFECTIVENESS OF AMENDMENTS.
The amendments to the Agreement contemplated by Section 2 hereof shall
(in accordance with Section 10.5(a) of the Agreement) become effective, if at
all, at such time as the Company and the Required Holders of the Notes shall
have indicated their written consent to such amendments by executing and
delivering the applicable counterparts of this Fifth Amendment. It is understood
that any holder of Notes may withhold its consent for any reason, including,
without limitation, any failure of the Company to satisfy all of the following
conditions:
(a) This Fifth Amendment shall have been executed and
delivered by the Company and each of the Required Holders of the Notes.
(b) The execution, delivery and effectiveness of an agreement,
signed by the Company and the requisite holders of the Company's First
Amended and Restated 8.24% Senior Notes due July 1, 2001 issued under
Note Purchase Agreements dated as of August
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Exhibit 4(a)(6)
1, 1996, containing amendments to such Note Purchase Agreements
identical in substance to the amendments set forth in Section 2 hereof.
(c) The execution, delivery and effectiveness of an agreement,
signed by the Company and the requisite holders of the Company's First
Amended and Restated 8.02% Senior Notes due October 1, 2001 issued
under Note Purchase Agreements dated as of March 25, 1997, containing
amendments to such Note Purchase Agreements identical in substance to
the amendments set forth in Section 2 hereof.
(d) The Company shall have paid the statement for reasonable
fees and disbursements of ▇▇▇▇ & ▇▇▇▇▇▇, your special counsel,
presented to the Company on or prior to the effective date of this
Fifth Amendment.
[Remainder of page intentionally blank. Next page is signature page.]
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Exhibit 4(a)(6)
If this Fifth Amendment is satisfactory to you, please sign the form of
acceptance on the enclosed counterpart of this letter and return the same to the
Company, whereupon this Fifth Amendment shall become binding between us in
accordance with its terms.
Very truly yours,
CREDIT ACCEPTANCE CORPORATION
By: /S/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
[Signature Page to Fifth Amendment to Note Purchase Agreement in respect of
9.12% Senior Notes Due November 1, 2001 of Credit Acceptance Corporation]
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Exhibit 4(a)(6)
ACCEPTED:
ALLSTATE LIFE INSURANCE CO.
By: /S/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
By: /S/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇▇ ▇▇▇▇▇ & COMPANY, LLC
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, LLC
Attorney-in-Fact
By: /S/▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇
Title: Partner and Manager
Fixed Income Department
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY
BY CIGNA INVESTMENTS, INC. (authorized agent)
By: /S/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
CONNECTICUT GENERAL LIFE INSURANCE COMPANY,
ON BEHALF OF ONE OR MORE SEPARATE ACCOUNTS
BY CIGNA INVESTMENTS, INC. (authorized agent)
By: /S/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
[Signature Page to Fifth Amendment to Note Purchase Agreement in respect of
9.12% Senior Notes Due November 1, 2001 of Credit Acceptance Corporation]
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Exhibit 4(a)(6)
ACCEPTED:
WESTERN FARM BUREAU LIFE INSURANCE COMPANY
By /S/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Fixed Income-Vice President
FARM BUREAU LIFE INSURANCE COMPANY
By /S/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Fixed Income-Vice President
WASHINGTON NATIONAL INSURANCE COMPANY
By: /S/▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Second Vice President
PHOENIX HOME LIFE MUTUAL INSURANCE
COMPANY
BY: PHOENIX INVESTMENT COUNSEL, INC.
By: /S/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Managing Director
[Signature Page to Fifth Amendment to Note Purchase Agreement in respect of
9.12% Senior Notes Due November 1, 2001 of Credit Acceptance Corporation]
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