<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
/X/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1996
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
-------- --------
Commission File Number 000-20202
---------
CREDIT ACCEPTANCE CORPORATION
-----------------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<S><C>
Michigan 38-1999511
- -----------------------------------------------------------------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization) (IRS Employer Identification)
25505 West Twelve Mile Road, Suite 3000, Southfield, Michigan 48034-8339
- -----------------------------------------------------------------------------------------------------------------------------
(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code (810) 353-2700
--------------------------------------------------------------------------
</TABLE>
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X . No .
----- -----
Indicate the number of shares outstanding of each of the issuer's class of
common stock, as of the latest practicable date.
Outstanding at
Class November 8, 1996
----- ----------------
Common Stock - $.005 par value 45,639,848
<PAGE> 2
TABLE OF CONTENTS
PART I. FINANCIAL INFORMATION PAGE NO.
Item 1. Financial Statements
Consolidated Balance Sheets -
As of December 31, 1995 and September 30, 1996 ................. 1
Consolidated Income Statements -
Three and nine month periods ended September 30, 1995 and
September 30, 1996 ............................................. 2
Consolidated Statements of Cash Flows -
Nine months ended September 30, 1995 and September 30, 1996 .... 3
Consolidated Statement of Shareholders' Equity -
Nine months ended September 30, 1996 ........................... 4
Notes to Consolidated Financial Statements ..................... 5
Item 2. Management's Discussion and Analysis
of Financial Condition and Results of Operations ............... 6
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K ............................... 12
Signatures .............................................................. 13
Index of Exhibits ....................................................... 14
Exhibits ................................................................ 15
<PAGE> 3
CREDIT ACCEPTANCE CORPORATION
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
As of 12/31/95 As of 9/30/96
-------------- -------------
(Dollars in thousands) (Unaudited)
<S> <C> <C> <C>
ASSETS
Cash and cash equivalents $ 1 $ 26
Investments 2,525 6,051
Installment contracts receivable 660,209 930,949
Allowance for credit losses (7,757) (10,658)
-------------- -------------
Installment contracts receivable, net 652,452 920,291
Floor plan receivables 13,249 15,325
Notes receivable 3,232 2,892
Property and equipment, net 10,342 13,183
Other assets, net 4,639 2,218
-------------- -------------
TOTAL ASSETS $ 686,440 $ 959,986
============== =============
LIABILITIES
Senior notes 60,000 130,000
Lines of credit 31,559 95,122
Mortgage loan payable to bank 4,221 4,069
Accounts payable and accrued liabilities 18,279 27,559
Income taxes payable 214 -
Deferred dealer enrollment fees, net 1,649 2,535
Dealer holdbacks, net 363,519 461,560
Deferred income taxes 8,024 8,328
-------------- -------------
TOTAL LIABILITIES 487,465 729,173
-------------- -------------
SHAREHOLDERS' EQUITY
Common stock 228 228
Paid-in capital 124,105 125,354
Retained earnings 74,977 104,945
Cumulative translation adjustment (335) 286
-------------- -------------
TOTAL SHAREHOLDERS' EQUITY 198,975 230,813
-------------- -------------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $ 686,440 $ 959,986
============== =============
</TABLE>
1
<PAGE> 4
CREDIT ACCEPTANCE CORPORATION
CONSOLIDATED INCOME STATEMENTS
(Unaudited)
<TABLE>
<CAPTION>
(Dollars in thousands, except per share data) 3 Months Ended 3 Months Ended 9 Months Ended 9 Months Ended
9/30/95 9/30/96 9/30/95 9/30/96
-------------- -------------- -------------- --------------
<S> <C> <C> <C> <C>
REVENUE
Finance charges $ 17,442 $ 23,720 $ 48,202 $ 66,252
Interest and other income 2,812 4,539 6,281 10,998
Dealer enrollment fees 729 1,378 1,978 3,603
Premiums earned 1,706 2,855 4,551 7,456
-------------- -------------- -------------- --------------
Total revenue 22,689 32,492 61,012 88,309
COSTS AND EXPENSES
Salaries and wages 2,460 2,900 6,906 8,605
General and administrative 2,567 3,881 7,183 10,634
Provision for credit losses 1,854 3,422 4,944 8,869
Sales and marketing 667 1,268 1,538 3,115
Provision for claims 505 936 1,371 2,470
Interest 2,892 3,801 7,057 8,625
-------------- -------------- -------------- --------------
Total costs and expenses 10,945 16,208 28,999 42,318
-------------- -------------- -------------- --------------
OPERATING INCOME 11,744 16,284 32,013 45,991
Foreign exchange gain(loss) -------------- -------------- -------------- --------------
(8) 2 (55) 3
-------------- -------------- -------------- --------------
INCOME BEFORE INCOME TAXES 11,736 16,286 31,958 45,994
Provision for income taxes 4,112 5,643 11,136 16,026
-------------- -------------- -------------- --------------
NET INCOME $ 7,624 $ 10,643 $ 20,822 $ 29,968
============== ============== ============== ==============
Net income per common share $ 0.18 $ 0.23 $ 0.49 $ 0.64
============== ============== ============== ==============
Weighted average shares outstanding 42,614,278 46,630,208 42,526,109 46,515,428
============== ============== ============== ==============
</TABLE>
2
<PAGE> 5
CREDIT ACCEPTANCE CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
(Dollars in thousands) 9 Months Ended 9 Months Ended
9/30/95 9/30/96
-------------- --------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net Income $ 20,822 $ 29,968
Adjustments to reconcile net income to net cash
provided by oper ating activities -
Provision for deferred income taxes 2,254 304
Depreciation and amortization 640 1,003
Provision for credit losses 4,944 8,869
Change in operating assets and liabilities -
Accounts payable and accrued liabilities 6,039 9,280
Income taxes payable (13) (214)
Unearned insurance premiums, insurance reserves, and fees 1,938 2,418
Deferred dealer enrollment fees, net 559 886
Other assets (2,830) 2,421
-------------- --------------
Net cash provided by operating activities 34,353 54,935
-------------- --------------
CASH FLOWS FROM INVESTING ACTIVITIES
Principal collected on installment contracts receivable 140,885 207,530
Purchase of marketable securities (751) (3,526)
Increase in floor plan receivables (5,750) (2,076)
Decrease(increase) in notes receivable (843) 340
Purchase of property and equipment (1,202) (3,844)
-------------- --------------
Net cash provided by investing activities 132,339 198,424
-------------- --------------
CASH FLOWS FROM FINANCING ACTIVITIES
Repayment of mortgage loan payable to bank (143) (152)
Advances to dealers and payments of dealer holdback (245,802) (388,615)
Net borrowings under line of credit agreement 76,230 63,563
Proceeds from senior note issuance - 70,000
Proceeds from stock options exercised 1,627 1,283
Proceeds from public stock offering, net 91,203 -
Payment of stock issuance costs - (34)
-------------- --------------
Net cash used in financing activities (76,885) (253,955)
-------------- --------------
Effect of exchange rate changes on cash 1 621
-------------- --------------
NET INCREASE IN CASH 89,808 25
Cash and cash equivalents - beginning of period 105 1
-------------- --------------
Cash and cash equivalents - end of period $ 89,913 $ 26
-------------- --------------
</TABLE>
3
<PAGE> 6
CREDIT ACCEPTANCE CORPORATION
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1996
(Unaudited)
<TABLE>
<CAPTION>
Cumulative
Paid-In Translation Retained
(Dollars in thousands) Common Stock Capital Adjustment Earnings
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Balance as of December 31, 1995 $ 228 $ 124,105 $ (335) $ 74,977
Net income - - - 29,968
Foreign currency translation adjustment - - 621 -
Stock options exercised - 1,283 - -
Stock issuance costs - (34) - -
------------ ------------ ------------ ------------
Balance as of September 30, 1996 $ 228 $ 125,354 $ 286 $ 104,945
============ ============ ============ ============
</TABLE>
4
<PAGE> 7
CREDIT ACCEPTANCE CORPORATION
Notes to Consolidated Financial Statements
(Unaudited)
1. GENERAL
The unaudited consolidated operating results have been prepared on the
same basis as the audited financial statements and, in the opinion of
management, include all adjustments, consisting of normal recurring items,
necessary for a fair presentation of the periods. The results of operations
for interim periods are not necessarily indicative of actual results achieved
for full fiscal years.
As contemplated by the Securities and Exchange Commission under rule 10-01
of Regulation S-X, the accompanying consolidated financial statements and
related notes have been condensed and do not contain certain information
included in the Company's annual consolidated financial statements and notes
thereto.
2. NET INCOME PER SHARE
The net income per share amounts are based on the average number of common
shares and common stock equivalents outstanding. All per share amounts have
been adjusted to reflect all stock splits declared by the Company.
3. STATEMENT OF FINANCIAL ACCOUNTING STANDARD NO. 121
Effective January 1, 1996, the Company adopted Statement of Financial
Accounting Standard No. 121, "Accounting for the Impairment of Long-Lived
Assets and Long-Lived Assets to be Disposed Of." This new accounting standard
requires impairment losses on long-lived assets to be recognized when an
asset's book value exceeds its expected future cash flows (undiscounted).
Measurement of the impairment loss is based on the fair value of the asset.
The adoption of this accounting standard did not impact the Company's financial
position or results of operations.
5
<PAGE> 8
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
RESULTS OF OPERATIONS
Three and Nine Months Ended September 30, 1996 Compared to Three and Nine
Months Ended September 30, 1995
Total Revenue. Total revenue increased from $22.7 million and $61.0 million
for the three and nine months ended September 30, 1995 to $32.5 million and
$88.3 million for the same periods in 1996, representing increases of 43.2% and
44.7%, respectively. These increases are primarily due to an increase in
finance charge revenue resulting from an increase in installment contracts
receivable. The increase in installment contracts receivable is primarily the
result of an increase in the number of dealers participating in the Company's
program and an increase in the average contract size. The Company enrolled
2,001 new dealers into the Company's program during the nine months ended
September 30, 1996, bringing the total number of dealers as of September 30,
1996 to 4,981 compared to 2,880 as of September 30, 1995.
The average yield on the Company's installment contract portfolio was
approximately 12.9% and 11.1% for the nine months ended September 30, 1995 and
1996, respectively. The decrease in the average yield resulted from an
increase in the percent of installment contracts which were greater than 120
days contractually past due (which were 29.2% and 33.0% of gross installment
contracts as of September 30, 1995 and 1996, respectively). The increase in
the level of contractual past due contracts, while significant, is mitigated by
the fact that when an installment contract is 120 days contractually past due,
the Company (i) transfers the contract to a non-accrual status; and (ii) makes
a provision to credit losses equal to the earned but unpaid revenue previously
recognized on such installment contract. In addition, the decline in the
average yield was also the result of an increase in the average outstanding
term of the Company's installment contract portfolio.
Also contributing to the increase in total revenue was premiums earned on the
Company's credit life and service contract programs. Premiums earned increased
from $1.7 million and $4.6 million for the three and nine months ended
September 30, 1995 to $2.9 million and $7.5 million for the same periods in
1996, representing increases of 67.4% and 63.8%, respectively. Interest and
other income increased from $2.8 million and $6.3 million during the three and
nine months ended September 30, 1995 to $4.5 million and $11.0 million during
the same periods in 1996, representing increases of 61.4% and 75.1%,
respectively. The increase is primarily due to commissions earned on credit
life and service contract products offered by dealers, and an increase in
interest earned on floor plan financing which resulted from increased floor
plan balances in 1996. Earned dealer enrollment fees increased from $729,000
and $2.0 million for the three and nine months ended September 30, 1995 to $1.4
million and $3.6 million for the same periods in 1996, representing increases
of 89.0% and 82.2%, respectively. The increase is due to the continued
increase in the number of dealers enrolled in the Company's financing program.
Salaries and Wages. Salaries and wages, as a percent of total revenue,
decreased from 10.8% and 11.3% for the three and nine months ended September
30, 1995 to 8.9% and 9.7% for the same periods in 1996. The Company continues
to benefit from increased efficiencies which have allowed it to increase
revenue with a less than proportionate increase in personnel costs.
General and Administrative. General and administrative expenses, as a percent
of total revenue, increased from 11.3% and 11.8% for the three and nine months
ended September 30, 1995 to 11.9% and 12.0% for the same periods in 1996. This
increase is primarily due to investments in technology which have enabled the
Company to more effectively service its growing installment contract portfolio
while having a positive impact on personnel costs.
6
<PAGE> 9
Provision for Credit Losses. The amount provided for credit losses, as a
percent of total revenue, increased from 8.2% and 8.1% for the three and nine
months ended September 30, 1995 to 10.5% and 10.0% for the same periods in
1996. This increase is the result of an increase in the Company's reserve on
advances made to dealers.
Sales and Marketing. Sales and marketing expenses, as a percent of total
revenue, increased from 2.9% and 2.5% during the three and nine months ended
September 30, 1995 to 3.9% and 3.5% during the same periods in 1996. This
increase is primarily the result of increased sales commissions as a result of
the increased enrollment of new dealers into the Company's program, as well as
an increase in other costs directly associated with the enrollment of new
dealers.
Provision for Claims. The amount provided for insurance and service contract
claims, as a percent of total revenue, increased from 2.2% during the three and
nine months ended September 30, 1995 to 2.9% and 2.8% during the same periods
in 1996. The increase is principally attributable to an increase in the level
of reserves necessary to cover unpaid claims, including incurred but unreported
claims. The increase is proportionate with the growth in the Company's credit
life and service contract programs.
Interest Expense. Interest expense, as a percent of total revenue, decreased
from 12.7% and 11.6% for the three and nine months ended September 30, 1995 to
11.7% and 9.8% for the same periods in 1996. The decrease, as a percent of
revenue, is primarily a result of a decrease in the level of borrowings under
the Company's revolving credit facility, as proceeds from the Company's equity
offering in September of 1995 were used to pay down this debt. To a lesser
extent, the decrease is also a result of lower average borrowing rates on the
revolving credit facility in 1996.
Operating Income. As a result of the aforementioned factors, operating income
increased from $11.7 million and $32.0 million for the three and nine months
ended September 30, 1995 to $16.3 million and $46.0 million for the same
periods in 1996, representing increases of 38.7% and 43.7%, respectively.
Foreign Exchange Loss. The Company incurred a foreign exchange loss of $8,000
and $55,000 for the three and nine months ended September 30, 1995 and a
foreign exchange gain of $2,000 and $3,000 for the same periods in 1996. The
gain and loss result from the effect of exchange rate fluctuations between the
U.S. dollar and British pound sterling on unhedged intercompany balances
between the Company and its subsidiary that operates in the United Kingdom.
Provision for Income Taxes. The provision for income taxes increased from $4.1
million and $11.1 million during the three and nine months ended September 30,
1995 to $5.6 million and $16.0 million during the same periods in 1996. The
increase is due to a higher level of pretax income in 1996. For the nine
months ended September 30, the effective tax rate was 34.8% in 1996 and 1995.
7
<PAGE> 10
INSTALLMENT CONTRACTS RECEIVABLE
The following table summarizes the composition of installment contracts
receivable at the dates indicated:
AS OF AS OF
(Dollars in thousands) 12/31/95 09/30/96
--------- ----------
(Unaudited)
Gross installment contracts receivable $ 790,607 $1,118,330
Unearned finance charges (125,536) (180,101)
Unearned insurance premiums, insurance
reserves, and fees (4,862) (7,280)
--------- ----------
Installment contracts receivable $ 660,209 $ 930,949
========= ==========
Non-accrual installment contracts as a percent
of total gross installment contracts 31.8% 33.0%
==== ====
A summary of changes in gross installment contracts receivable is as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
(Dollars in thousands) SEPTEMBER 30, SEPTEMBER 30,
-------------------------- --------------------------
1995 1996 1995 1996
--------- ---------- --------- -----------
(Unaudited) (Unaudited)
<S> <C> <C> <C> <C>
Balance, beginning of period $ 642,328 $ 981,145 $ 486,897 $ 790,607
Gross amount of installment
contracts accepted 153,665 272,836 462,017 697,050
Cash collections on installment
contracts receivable (68,353) (98,794) (190,790) (278,586)
Charge offs (19,080) (36,857) (49,564) (90,741)
--------- ---------- ---------- ----------
Balance, end of period $ 708,560 $1,118,330 $ 708,560 $1,118,330
========= ========== ========== ==========
</TABLE>
DEALER HOLDBACKS
The following table summarizes the composition of dealer holdbacks at the
dates indicated:
AS OF AS OF
(Dollars in thousands) 12/31/95 09/30/96
-------- --------
(Unaudited)
Dealer holdbacks $ 628,386 $ 891,982
Less: Advances (net of reserves of $3,214
and $6,928 at December 31, 1995 and
September 30, 1996, respectively) (264,867) (430,422)
--------- ---------
Dealer holdbacks, net $ 363,519 $ 461,560
========= =========
8
<PAGE> 11
CREDIT POLICY AND EXPERIENCE
The Company maintains an allowance for credit losses which, in the opinion
of management, adequately reserves against expected future losses. The risk of
loss to the Company related to the installment contracts receivable balance
relates primarily to the earned but unpaid servicing fee or finance charge
recognized on contractually delinquent accounts. To the extent that the
Company does not collect the gross amount of the contract, the remaining gross
installment receivable contract balance is charged off against dealer
holdbacks, unearned finance charges, and the allowances for credit losses.
The Company also maintains a reserve against advances to dealers
that are not expected to be recovered through collections on the related
installment contract receivable portfolio. Advance balances are reviewed by
management on a monthly basis, and those which are deemed to be unrecoverable
are charged against the reserve. Credit loss experience, changes in the
character and size of the receivables portfolio and the advance balance, and
management's judgment are primary factors used in assessing the overall
adequacy of the allowance and advance reserve and the resulting provisions for
credit losses. Ultimate losses may vary from current estimates and the amount
of the provision, which is a current expense, may be either greater or less
than actual charge offs.
Servicing fees, which are booked as finance charges, are recognized under
the interest method of accounting until the underlying obligation is 120 days
contractually past due. At such time, the Company suspends the accrual of
revenue and makes a provision for credit losses equal to the earned but unpaid
revenue. In all cases, installment contracts on which no material payment has
been received for one year are charged off against the related dealer holdback
and the allowance for credit losses. As future payments on any remaining
aggregate contracts from a given dealer are available to recover all advances
from such dealer, the risk of loss to the Company is mitigated.
The following table sets forth information relating to charge offs, the
allowance for credit losses, the reserve on advances, and dealer holdbacks.
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
(Dollars in thousands) SEPTEMBER 30, SEPTEMBER 30,
----------------------------- -----------------------------
1995 1996 1995 1996
---------- ----------- ---------- -----------
(Unaudited) (Unaudited)
<S> <C> <C> <C> <C>
Provision for credit losses-installment contracts $ 1,417 $ 2,090 $ 3,685 $ 4,904
Provision for credit losses-advances 437 1,332 1,259 3,965
Charged against dealer holdbacks 15,382 29,495 39,883 72,587
Charged against unearned finance charges 3,220 6,573 8,424 16,151
Charged against allowance for credit losses 478 789 1,257 2,003
---------- ----------- ----------- -----------
Total contracts charged off $ 19,080 $ 36,857 $ 49,564 $ 90,741
========== =========== =========== ===========
Net charge offs against the reserve on advances $ 10 $ 184 $ 10 $ 251
</TABLE>
9
<PAGE> 12
<TABLE>
<CAPTION>
AS OF AS OF
(Dollars in thousands) SEPTEMBER 30, 1995 SEPTEMBER 30, 1996
------------------ ------------------
(Unaudited)
<S> <C> <C>
Allowance for credit losses as a percent of gross
installment contracts receivable 0.9% 1.0%
Reserve on advances as a percent of advances 1.2% 1.6%
Dealer holdbacks as a percent of gross installment
contracts receivable 79.4% 79.8%
</TABLE>
The Company's relatively low level of amounts charged against the
allowance for credit losses is due to, among other factors:
(i) the requirement that each installment contract accepted must
meet established, formula-based criteria prior to the Company making
an advance on such contract;
(ii) experienced personnel, using computer-assisted accounts
receivable management and collection systems;
(iii) the security interest the Company receives in the vehicle at
the time it accepts an installment contract; and
(iv) the high level of dealer holdbacks, relative to the amount of
installment contracts.
LIQUIDITY AND CAPITAL RESOURCES
The Company's principal need for capital is to fund cash advances made to
dealers in connection with the acceptance of installment contracts and for the
payment of dealer holdbacks to dealers who have repaid their advance balances.
These cash outflows to dealers increased from $245.8 million during the nine
months ended September 30, 1995 to $388.6 million during the same period in
1996. These amounts have been funded from cash collections on installment
contracts, income from operations, and advances under the Company's credit
agreement. During the first nine months of 1996, the Company borrowed
approximately $133.6 million to assist in funding the Company's operations.
The borrowings were provided by the Company's line of credit agreements and
through the sale of senior notes. The increased need for capital is primarily
a result of the continued growth in new installment contracts accepted. To a
lesser extent, the increased need for capital is also due to an increase in the
amount advanced per contract, continued increases in dealers' utilization of
service contract products offered by the Company, and amounts needed to fund
the continued growth of the Company's operations in the United Kingdom.
During the quarter ended September 30, 1996, the Company commenced
operations in Canada and Ireland, offering essentially the same programs and
services as are offered in the United States and United Kingdom. The Company
expects, over the longer term, to fund these operations with borrowings from
the Company's available sources, subject to certain limitations in agreements
setting forth the terms of such borrowings. The extent of these operation's
need for capital will depend on the volume of contracts generated from dealers
in Canada and Ireland. The operations in Canada will be serviced from the
Company's Southfield, Michigan headquarters and the operations in Ireland will
be serviced from the Company's office in the United Kingdom.
The Company has a $152 million credit agreement with a commercial bank
syndicate. The agreement consists of a $92 million line of credit facility
with a commitment period through January 12, 1997 and a $60 million revolving
credit facility with a commitment period through January 13, 1999. Both
facilities are subject to annual extension for additional one year periods at
the request of the Company with the consent of each of the banks in the
facility. The borrowings are unsecured with interest payable at the
Eurocurrency rate plus a minimum of 80 basis points and a maximum of 140 basis
points (currently 105 basis points) dependent on the Company's debt ratings, or
at the prime rate. The Eurocurrency borrowings may be fixed for periods up to
one year. The credit agreement has certain restrictive covenants, including
limits on the ratio of the Company's debt-to-equity, limits on the Company's
investment in its subsidiary in the United Kingdom, and requirements that the
Company maintain a specified minimum level of net worth. As of September 30,
1996, there was approximately $92.7 million outstanding under these facilities.
10
<PAGE> 13
The Company also has a 2.0 million British pound sterling line of credit
agreement with a commercial bank in the United Kingdom, which is used to
fund the day to day cash flow requirements of the Company's subsidiary which
operates in the United Kingdom. The borrowings are secured by a letter of
credit issued by the Company's principal commercial bank with interest payable
at the United Kingdom bank's base rate (currently 6.00%) plus 65 basis points
or at the LIBOR rate plus 56.25 basis points. The rates may be fixed for
periods up to six months. As of September 30, 1996, there was approximately
1.6 million British pounds ($2.4 million U.S. dollars) outstanding under this
facility.
On August 29, 1996, the Company completed the sale of its $70.0 million
7.99% Senior Notes due July 1, 2001 to various insurance companies. The notes
are unsecured and require annual payments of principle and interest commencing
on July 1, 1997. The most restrictive covenants place limits on the ratios of
the Company's debt-to-equity, limits on the Company's investment in its
subsidiary in the United Kingdom, and requires the Company to maintain a
specified minimum level of net worth. Proceeds from the sale were used to
repay indebtedness under the Company's $152 million credit agreement.
The Company maintains a significant dealer holdback on installment
contracts accepted which assists the Company in funding its long-term cash flow
requirements. In future periods, the Company's short and long-term cash flow
requirements will continue to be funded primarily through earnings from
operations, cash flow from the collection of installment contracts, and the
Company's credit facilities. The Company will continue to utilize various
sources of financing available from time to time to fund the continuing growth
of the Company. The Company believes that such amounts will be sufficient to
meet its short-term and long-term cash flow requirements.
11
<PAGE> 14
PART II.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
See Index of Exhibits following the signature page.
(b) Reports on Form 8-K
The Company was not required to file a current report on
Form 8-K during the quarter ended September 30, 1996
and none were filed during that period.
12
<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CREDIT ACCEPTANCE CORPORATION
(Registrant)
Date: November 13, 1996 /S/Brett A. Roberts
-----------------------------
Brett A. Roberts
Chief Financial Officer
Signing on behalf of the registrant
and as principal financial officer.
Date: November 13, 1996 /S/John P. Cavanaugh
-----------------------------
John P. Cavanaugh
Corporate Controller and Assistant Secretary
Principal accounting officer.
13
<PAGE> 16
INDEX OF EXHIBITS
Exhibit Number Description
- -------------- -----------
10(p) (2) Second Amendment to Credit Acceptance Corporation
$60,000,000 8.87% Senior Notes Due November 1, 2001
10(q) (4) Third Amendment to Credit Acceptance Corporation
$152,000,000 Amended and Restated Credit Agreement
dated as of January 8, 1996
10(r) Note Purchase Agreement dated August 1, 1996 between
various insurance companies and the Company and related
form of note
11(1) Statement of Computation of Net Income Per Common Share
27 Financial Data Schedule
14
<PAGE> 1
EXHIBIT 10(p)(2)
SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT
Re: Credit Acceptance Corporation $60,000,000 8.87% Senior
Notes Due November 1, 2001
Dated as of August 29, 1996
To the Noteholders listed on
Annex 1 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 $60,000,000 in aggregate unpaid principal amount of its 8.87%
Senior Notes due November 1, 2001 which it issued pursuant to the separate Note
Purchase Agreements dated as of October 1, 1994 and amended as of November 15,
1995 (collectively and as amended, the "Agreement"), entered into by the
Company with each of you, respectively. Terms used herein but not otherwise
defined herein shall have the meanings assigned thereto in the Agreement.
1.2. PURPOSES OF AMENDMENT. The Company and you desire to amend
the Agreement to adjust certain financial covenants and to designate CAC of
Canada, Limited as a Restricted Subsidiary.
SECTION 2. AMENDMENTS 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 Second Amendment to Note
Purchase Agreement (the "Second Amendment") in the following respects:
2.1. SECTION 6.1. Paragraph (d) of Section 6.1 of the Agreement is
hereby amended in its entirety to read and the same shall hereafter read as
follows:
"(D) RESTRICTED SUBSIDIARY DEBT. The Company will not at
any time permit the sum of (i) Total Restricted Subsidiary Debt at
such time plus, without duplication, (ii) the aggregate amount of all
Debt and other obligations outstanding at such time secured by Liens
permitted by clause (v), clause (vi) and clause (vii) of Section
6.6(a) to exceed (A) on or before July 31, 1997, fifteen percent (15%)
of Consolidated Tangible Net Worth or (B) on or after August 1, 1997,
twenty percent (20%) of Consolidated Tangible Net Worth."
<PAGE> 2
2.2. SECTION 6.2. Section 6.2 of the Agreement is hereby amended
in its entirety to read and the same shall hereafter read as follows:
"6.2 FIXED CHARGE COVERAGE.
The Company will not at any time permit the ratio of
(a) Consolidated Income Available for Fixed
Charges for the period of four (4) consecutive fiscal quarters
of the Company most recently ended at such time to
(b) Consolidated Fixed Charges for such period
to be less than 2.5 to 1.0."
2.3. SECTION 6.6. Section 6.6(a)(vii) of the Agreement is hereby
amended in its entirety to read and the same shall hereafter read as follows:
"(vii) Liens on Property not otherwise permitted under
clause (i) through clause (vi) of this Section 6.6(a) if the
obligations secured by such Liens, when added to (A) the obligations
secured by Liens pursuant to clause (v) and clause (vi) of this
Section 6.6(a) plus, without duplication, (B) Total Restricted
Subsidiary Debt at such time, do not exceed (1) on or before July 31,
1997, fifteen percent (15%) of Consolidated Tangible Net Worth or (2)
on or after August 1, 1997, twenty percent (20%) of Consolidated
Tangible Net Worth."
2.4. SECTION 6.9. The first sentence of Section 6.9 of the
Agreement is hereby amended to read in its entirety and the same shall
hereafter read as follows:
"The Company will not, and will not permit any Restricted
Subsidiary to, engage in, or make any Investment in any business
engaged in, the provision of property and casualty insurance unless
the Company or such Restricted Subsidiary shall maintain reinsurance
of its underwriting risk, with one or more reinsurers rated "A-" or
better by Standard & Poor's Ratings Group or "A 3" or better by
Moody's Investors Service, Inc., for all of the Company's or such
Restricted Subsidiary's exposure in excess of one hundred percent
(100%) of the premiums written by the Company or such Restricted
Subsidiary."
2.5. SECTION 6.18. The Agreement is hereby amended to add a new
Section 6.18 to read in its entirety as follows:
"6.18. AMENDMENT OF BANK TERM DEBT OR SUBORDINATED DEBT
DOCUMENTS; TERMINATION OF RESTRICTION ON BANK TERM DEBT AMENDMENTS; NO
FURTHER RESTRICTIONS ON AMENDMENTS OF THIS AGREEMENT.
(A) AMENDMENT OF BANK TERM DEBT OR SUBORDINATED DEBT
DOCUMENTS. The Company will not amend, modify or otherwise alter (or
suffer to be amended, modified or altered), or waive (or permit to be
waived), in any material respect, any of the terms or provisions of
any document or instrument:
2
<PAGE> 3
(i) evidencing or otherwise relating to any Bank
Term Debt so as to shorten the maturity or original
amortization of such Bank Term Debt, or
(ii) evidencing or otherwise relating to any
Subordinated Debt so as to increase the original interest rate
on, or the principal amount of, such Subordinated Debt,
shorten the original amortization of such Subordinated Debt,
change any other repayment terms or any default or remedial
provisions in any such document or instrument, or change the
subordination provisions contained in any such document or
instrument,
in each case without the prior written approval of the Required Holders.
(B) TERMINATION OF RESTRICTION ON BANK TERM DEBT
AMENDMENTS. Subject to Section 6.18(c), the provisions of Section
6.18(a), insofar as such provisions relate to amendments,
modifications, alterations or waivers of Bank Term Debt, will
terminate and be of no further force or effect at such time as the
Company causes to be delivered to each holder of Notes a duly executed
copy of an amendment or modification of the Credit Agreement (or any
new agreement contemplated by Section 6.18(c)(ii) below) deleting
Section 8.13 of the Credit Agreement (or the comparable provision in
such new agreement) effective on or prior to the date of such
delivery.
(C) NO FURTHER RESTRICTIONS ON AMENDMENTS OF THIS
AGREEMENT. The Company will not:
(i) amend, modify or otherwise alter (or suffer
to be amended, modified or altered) the Credit Agreement
(including, without limitation, Section 8.13 thereof) or any
document or instrument relating thereto to include any
covenant or other provision (other than Section 8.13 of the
Credit Agreement as in effect on the Closing Date) that
requires, as a condition to the amendment of any term or
provision of this Agreement, or the waiver of any term or
provision herein, the approval or consent of any other
creditor of the Company; or
(ii) enter into any other agreement (or suffer to
be amended, modified or altered any other agreement to which
the Company is a party) that requires, as a condition to the
amendment of any term or provision of this Agreement, or the
waiver of any term or provision herein, the approval or
consent of any other creditor of the Company; provided that if
(A) any such agreement is entered into to replace, refinance
or supplement the Credit Agreement and (B) Section 8.13 of the
Credit Agreement (as in effect on the Closing Date) shall not
have been deleted from the Credit Agreement as of the time
such new agreement is to be entered into, such new agreement
may include a covenant substantially the same as (and not more
onerous on the Company than) Section 8.13 of the Credit
Agreement (as in effect on the Closing Date).
3
<PAGE> 4
2.6. SECTION 8.1. Section 8.1(c) of the Agreement is hereby
amended in its entirety to read and the same shall hereafter read as follows:
(C) PARTICULAR COVENANT DEFAULTS -- the Company or any
Subsidiary shall fail to perform or observe any covenant contained in
Section 6.1 through Section 6.8, inclusive, or in Section 6.18,
Section 7.1(h) or Section 7.1(i) of this Agreement;
2.7. SECTION 9.1.
(A) NEW DEFINED TERMS. Section 9.1 of the Agreement is
hereby amended to add the following defined terms to read as follows:
"BANK TERM DEBT -- means term Debt of the Company or
any Restricted Subsidiary owed to banks and having an initial
maturity of more than one (1) year and a fixed amortization
schedule, but in any event excluding any Debt which by its
terms is permitted to be readvanced or reborrowed, whether or
not subject to mandatory reductions or stepdowns in the
availability thereof."
"CAC INTERNATIONAL -- means CAC International, Inc.,
a wholly-owned Subsidiary of the Company."
"CAC UK -- means Credit Acceptance Corporation UK
Limited, a wholly-owned Subsidiary of the Company incorporated
under the laws of England for the purpose of acquiring
substantially all of the assets of CAC International."
"CREDIT AGREEMENT -- means the unsecured Amended and
Restated Credit Agreement, dated as of January 8, 1996, as
amended, restated or otherwise modified from time to time
subject to Section 6.18(c) hereof, among the Company, CAC UK,
Comerica Bank, as agent (or any successor agent), and the
financial institutions from time to time parties thereto.
"SUBORDINATED DEBT -- means, at any time, unsecured
Debt of the Company that is junior and subordinate in right of
payment to the Notes on terms and conditions satisfactory to
the Required Holders, as evidenced by their written consent."
(B) RESTRICTED INVESTMENT. Paragraphs (c), (d) and (k)
of the definition of "Restricted Investment" in Section 9.1 of the
Agreement are hereby amended in their entirety to read as follows:
"(c) Investments by the Company in the ordinary
course of its business in one or more Restricted Subsidiaries
or any corporation that concurrently with such Investment
becomes a Restricted Subsidiary, provided that the aggregate
amount of all Investments made pursuant to this paragraph (c)
and paragraph (d) of this definition (excluding Guaranties by
the Company of Debt of Restricted Subsidiaries) does not at
any time exceed twenty-five percent (25%) of
4
<PAGE> 5
Consolidated Tangible Net Worth (it being understood that
loans and advances to any Restricted Subsidiary by any
Person other than the Company or any other Restricted
Subsidiary, regardless of whether such loans and advances are
guaranteed by the Company or any other Restricted Subsidiary,
shall not be taken into account in determining the aggregate
amount of Investments made pursuant to this paragraph (c) and
paragraph (d) of this definition);"
"(d) Investments consisting of loans by the
Company or any Restricted Subsidiary, and advances from the
Company or any Restricted Subsidiary, in each case to the
Company or any Restricted Subsidiary in the ordinary course of
business of the Company and the Restricted Subsidiaries,
provided that the aggregate amount of all Investments made
pursuant to paragraph (c) of this definition and this
paragraph (d) (excluding Guarantees by the Company of Debt of
Restricted Subsidiaries) does not at any time exceed
twenty-five percent (25%) of Consolidated Tangible Net Worth
(it being understood that loans and advances to any Restricted
Subsidiary by any Person other than the Company or any other
Restricted Subsidiary, regardless of whether such loans and
advances are guaranteed by the Company or any other Restricted
Subsidiary, shall not be taken into account in determining the
aggregate amount of Investments made pursuant to this
paragraph (d) and paragraph (c) of this definition);"
"(k) Investments in receivables arising from floor
plan receivables and note receivables due from dealers in the
ordinary course of business of the Company and the Restricted
Subsidiaries, provided that the aggregate amount of all such
Investments does not at any time exceed ten percent (10%) of
Consolidated Total Assets; and"
(C) RESTRICTED SUBSIDIARY. The definition of "Restricted
Subsidiary" is hereby amended in its entirety to read as follows:
"RESTRICTED SUBSIDIARY -- means any Subsidiary (a) in
respect of which the Company owns, directly or indirectly, (i)
at least eighty percent (80%) (by number of votes) of each
class of such Subsidiary's Voting Stock, or (ii) in the case
of CAC Insurance Agency of Ohio, Inc., at least 99% of the
shares of capital stock issued and outstanding of all classes
in the aggregate, (b) that is organized under the laws of the
United States of America or any jurisdiction thereof, the
United Kingdom or any jurisdiction thereof (including, without
limitation, England, Scotland and Wales), Canada or any
jurisdiction thereof or the Republic of Ireland or any
jurisdiction thereof, and that conducts all of its business
in, and has all of its Property located in, the United States
of America, the United Kingdom, Canada and/or the Republic of
Ireland and (c) that is not an Unrestricted Subsidiary. Any
Restricted Subsidiary in compliance with the requirements set
forth in the first sentence of this definition and designated
as a Restricted Subsidiary on the Closing Date shall be deemed
to have been a Restricted Subsidiary for all periods prior to
the Closing Date. Notwithstanding any provision in Section
6.17 to the contrary, CAC International and CAC UK shall be
deemed Restricted Subsidiaries as of October 1, 1995 and CAC
of Canada, Limited and any Subsidiary formed
5
<PAGE> 6
by the Company to provide property and casualty insurance shall
each be deemed a Restricted Subsidiary as of the date of its
formation."
SECTION 3. MISCELLANEOUS
3.1. COUNTERPARTS. This Second Amendment may be executed in any
number of counterparts, each executed counterpart constituting an original, but
all together only one Second Amendment.
3.2. HEADINGS. The headings of the sections of this Second 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 Second 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 Amendment and (b) the terms and provisions of the Agreement, as amended by
this Amendment, shall continue in full force and effect. The Company hereby
acknowledges and reaffirms all of its obligations and duties under the
Agreement as modified by this Amendment and under the Notes issued thereunder.
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 Second Amendment may refer to the Agreement without
making specific reference to this Second Amendment but nevertheless all such
references shall be deemed to include, to the extent applicable, this Second
Amendment unless the context shall otherwise require.
3.6 COMPLIANCE. Pursuant to the provisions of Section 6.17(c) of the
Agreement, the Company certifies that immediately before and after, and after
giving effect to the designation of CAC of Canada, Limited as a Restricted
Subsidiary, no Default or Event of Default exists.
[Remainder of page intentionally blank. Next page is signature page.]
6
<PAGE> 7
If this Second Amendment is satisfactory to you, please so indicate by
signing the acceptance at the foot of a counterpart hereof and returning such
counterpart to the Company, whereupon this Second Amendment shall become
binding between us in accordance with its terms.
Very truly yours,
CREDIT ACCEPTANCE CORPORATION
By: /s/ Richard E. Beckman
--------------------------
Name: Richard E. Beckman
Title: President and Chief Operating Officer
7
<PAGE> 8
ACCEPTED:
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY
BY CIGNA INVESTMENTS, INC.
By /s/ James F. Coggins, Jr.
----------------------------
Name: James F. Coggins, Jr.
Title: Managing Director
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY,
ON BEHALF OF ONE OR MORE SEPARATE
ACCOUNTS
BY CIGNA INVESTMENTS, INC.
By /s/ James F. Coggins, Jr.
----------------------------
Name: James F. Coggins, Jr.
Title: Managing Director
8
<PAGE> 9
THE MUTUAL LIFE INSURANCE COMPANY OF
NEW YORK
By /s/ Emilia F. Wiener
----------------------------
Name: Emilia F. Wiener
Title: Managing Director
MONY LIFE INSURANCE COMPANY OF AMERICA
By /s/ Emilia F. Wiener
----------------------------
Name: Emilia F. Wiener
Title: Managing Director
9
<PAGE> 10
AID ASSOCIATION FOR LUTHERANS
By /s/ Alan D. Onstad
----------------------------
Name: Alan D. Onstad
Title: Assistant Vice President
- Securities
10
<PAGE> 11
WESTERN FARM BUREAU LIFE INSURANCE
COMPANY
By /s/ Richard D. Warming
----------------------------
Name: Richard D. Warming
Title: Vice President - Chief
Investment Officer
FBL INSURANCE COMPANY
By /s/ Richard D. Warming
----------------------------
Name: Richard D. Warming
Title: Vice President - Chief
Investment Officer
11
<PAGE> 12
THE OHIO CASUALTY INSURANCE COMPANY
By /s/ Richard B. Kelly
----------------------------
Name: Richard B. Kelly
Title: Senior Investment
Officer
THE OHIO LIFE INSURANCE COMPANY
By /s/ Richard B. Kelly
----------------------------
Name: Richard B. Kelly
Title: Senior Investment
Officer
12
<PAGE> 13
WASHINGTON NATIONAL INSURANCE COMPANY
By /s/ C. Bruce Dunn
----------------------------
Name: C. Bruce Dunn
Title: Director of Investments
13
<PAGE> 14
ANNEX 1
Connecticut General Life Insurance Company
900 Cottage Grove Road
Hartford, CT 06152
Connecticut General Life Insurance Company,
on behalf of one or more separate accounts
900 Cottage Grove Road
Hartford, CT 06152
The Mutual Life Insurance Company of New York
1740 Broadway, 11th Floor
New York, NY 10019
MONY Life Insurance Company of America
1740 Broadway, 11th Floor
New York, NY 10019
Aid Association for Lutherans
222 West College Avenue
Appleton, WI 54919
Western Farm Bureau Life Insurance Company
5400 University
West Des Moines, IA 50265
FBL Insurance Company
5400 University
West Des Moines, IA 50265
The Ohio Casualty Insurance Company
136 North Third Street
Hamilton, OH 45205
The Ohio Life Insurance Company
136 North Third Street
Hamilton, OH 45205
Washington National Insurance Company
300 Tower Parkway
Lincolnshire, IL 60069
14
<PAGE> 1
EXHIBIT 10(q)(4)
THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT
This THIRD AMENDMENT TO CREDIT AGREEMENT AND CONSENT ("Third Amendment")
is made as of this 28th day of August, 1996 by and among Credit Acceptance
Corporation, a Michigan corporation ("Company"), Credit Acceptance Corporation
UK Limited, a corporation organized under the laws of England ("Permitted
Borrower"), 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 Borrower, Agent and the Banks entered into that
certain Amended and Restated Credit Agreement dated as of January 8, 1996, as
amended by First Amendment dated April 19, 1996 and the Second Amendment dated
as of July 1, 1996 (as so amended, 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 and the Permitted Borrower have requested that Agent and
the Banks agree to make certain amendments to the Credit Agreement and consent
to specified transactions, 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 Borrower, Agent and the Banks agree:
1. Section 7.9 of the Credit Agreement (Fixed Charge Coverage Ratio) is
hereby amended by deleting the ratio "2.0 to 1" in the third line thereof and
replacing it with the ratio "2.5 to 1".
2. Section 8.2 (Business Purpose) is hereby amended by adding the
following language immediately following the words "casualty insurance" and
before the ";" in the third line thereof:
"unless the Company or such Subsidiary shall maintain reinsurance of its
underwriting risk with a third party(ies) rated "A-" or better by Standard
& Poor's Ratings Group or "A3" or better by Moody's Investor's Services,
Inc. for all of
<PAGE> 2
the Company's or such Subsidiary's exposure in excess of one hundred
percent (100%) of the premiums written by the Company or such
Subsidiary.".
3. Section 8.8(f) (Investments in Floor Plan Receivables and Notes
Receivables) is hereby amended by deleting the words "five percent (5%)"
beginning in the second line thereof and replacing them with the words "ten
percent (10%)".
4. Section 8.13 of the Credit Agreement is amended and restated in its
entirety as follows:
"8.13 Amendment of Senior Debt or Future Debt Documents. Except
with the prior written approval of Agent and the Majority Banks,
amend, modify or otherwise alter (or suffer to be amended, modified
or altered) or waive (or permit to be waived) in any material
respect, any documents or instruments evidencing or otherwise
related to Senior Debt or Future Debt so as to shorten the original
maturity date or amortization schedule thereof, or amend, modify or
otherwise alter (or suffer to be amended, modified or altered) any
documents or instruments evidencing or otherwise related to Senior
Debt or Future Debt to include (or enter into any Future Debt
Documents which include) any covenants or other provisions, other
than a provision not more onerous to the Company than Section 6.18
of the note purchase agreements governing the New Senior Debt as in
effect on the date of issuance thereof, that require, for the
amendment of any term or provision of this Agreement, or the waiver
of any term or provision hereof, the approval or consent of any
other creditor of the Company."
5. New Section 8.14 is added to the Credit Agreement, as follows:
"8.14 Amendment of Subordinated Debt Documents. Amend, modify or
otherwise alter (or suffer to be amended, modified or altered) any
of the material terms and conditions of those documents or
instruments evidencing or otherwise related to Subordinated Debt or
waive (or permit to be waived) any such provision thereof in any
2
<PAGE> 3
material respect, without the prior written approval of Agent and
the Majority Banks. For purposes of those documents and instruments
evidencing or otherwise related to the Subordinated Debt, any
increase in the original interest rate or principal amount, any
shortening of the original amortization, any change in any default,
remedial or other repayment terms, any change in or waiver of
conditions contained therein which are required under or necessary
for compliance with this Agreement or the other Loan Documents or
any change in the subordination provisions contained therein, shall
(without reducing the scope of this Section 8.14) be deemed to be
material."
6. Schedule 6.15 (Litigation-Company) is amended and restated in its
entirety by the attached Schedule A.
7. Notwithstanding the requirements set forth in Section 1.65 of the
Credit Agreement (defining "Future Debt"), the Banks hereby consent to
the Company's incurring, as Future Debt, up to $70,000,000 in additional Debt
(defined herein and for purposes of the Credit Agreement, as "New Senior Debt")
pursuant to that certain "Term Sheet $70 Million Senior Unsecured Notes Credit
Acceptance Corporation", attached hereto as Exhibit "A" (the "Term Sheet"),
provided that both immediately before and immediately after such additional
Debt is incurred, no Default or Event of Default (whether or not related to
such additional Debt, and taking into account the incurring of such additional
Debt) has occurred and is continuing.
8. This Third Amendment shall become operative upon satisfaction by the
Company and the Permitted Borrower, on or before August 31, 1996, 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 Borrower and the Banks, in form satisfactory to Agent and the
Banks;
(b) Agent shall have received from the Company and the Permitted
Borrower a certification that all necessary actions have been taken by
such parties to authorize execution and delivery of this Third Amendment,
supported by such
3
<PAGE> 4
resolutions or other evidence of corporate authority or action as
reasonably required by Agent and the Majority Banks; and
(c) Company (i) has issued, concurrently with the date upon which
this Third Amendment becomes operative, and in compliance with
paragraph 7 of this Third Amendment, the New Senior Debt and (ii) has
entered into an amendment to the Senior Debt Documents substantially in
the form of the second amendment attached to the Term Sheet.
If the foregoing conditions have not been satisfied or waived on or before
August 31, 1996, this Third Amendment shall lapse and be of no further force
and effect.
9. Company and Permitted Borrower ratify and confirm, as of the date
hereof, each of the representations and warranties set forth in
Sections 6.1 through 6.22, inclusive, of the Credit Agreement and acknowledge
that such representations and warranties are and shall remain continuing
representations and warranties during the entire life of the Credit Agreement.
10. 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.
11. 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.
12. This Third Amendment may be executed in counterpart in accordance with
Section 13.10 of the Credit Agreement.
[signatures follow on succeeding pages]
4
<PAGE> 5
WITNESS the due execution hereof as of the day and year first above
written.
COMERICA BANK, CREDIT ACCEPTANCE CORPORATION
as Agent
By: ________________________ By: _____________________________
Its: _______________________ Its: ____________________________
One Detroit Center
500 Woodward Avenue
Detroit, Michigan 48226
Attention: Douglas Busk
CREDIT ACCEPTANCE CORPORATION
UK LIMITED
By: _____________________________
Its: ____________________________
BANKS:
COMERICA BANK LASALLE NATIONAL BANK
By:___________________________ By:___________________________
Its:__________________________ Its:__________________________
THE FIRST NATIONAL BANK BANK HAPOALIM, B.M.
OF CHICAGO
5
<PAGE> 6
By:__________________________ By:___________________________
Its:_________________________ Its:__________________________
By:___________________________
Its:__________________________
6
<PAGE> 7
FIFTH THIRD BANK OF HARRIS TRUST AND SAVINGS BANK
NORTHWESTERN OHIO, N.A.
By:__________________________ By:___________________________
Its:_________________________ Its:__________________________
MERCANTILE BANK OF ST. LOUIS THE BANK OF NEW YORK
NATIONAL ASSOCIATION
By:__________________________ By:___________________________
Its:_________________________ Its:__________________________
THE SUMITOMO BANK, LIMITED,
CHICAGO BRANCH
By:__________________________
Its:_________________________
By:__________________________
Its:_________________________
7
<PAGE> 1
EXHIBIT 10(r)
================================================================================
CREDIT ACCEPTANCE CORPORATION
-----------------------
NOTE PURCHASE AGREEMENT
-----------------------
DATED AS OF AUGUST 1, 1996
$70,000,000 7.99% SENIOR NOTES DUE JULY 1, 2001
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
1. PURCHASE AND SALE OF NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Authorization of Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 The Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Purchase for Investment; ERISA. . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 Failure to Tender, Failure of Conditions. . . . . . . . . . . . . . . . . . . 4
1.5 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2. WARRANTIES AND REPRESENTATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.1 Nature of Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2 Financial Statements; Debt; Material Adverse Change. . . . . . . . . . . . . . 5
2.3 Subsidiaries and Affiliates. . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.4 Title to Properties; Patents, Trademarks, etc. . . . . . . . . . . . . . . . . 6
2.5 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.6 Pending Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.7 Full Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.8 Corporate Organization and Authority. . . . . . . . . . . . . . . . . . . . . 7
2.9 Charter Instruments, Other Agreements. . . . . . . . . . . . . . . . . . . . . 8
2.10 Restrictions on Company and Subsidiaries. . . . . . . . . . . . . . . . . . . 8
2.11 Compliance with Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.12 Pension Plans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.13 Environmental Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.14 Sale of Notes is Legal and Authorized; Obligations are Enforceable. . . . . . 10
2.15 Governmental Consent to Sale of Notes. . . . . . . . . . . . . . . . . . . . . 11
2.16 Private Offering of Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.17 No Defaults; Transactions Prior to Closing Date. . . . . . . . . . . . . . . . 11
2.18 Use of Proceeds of Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3. CLOSING CONDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.1 Opinions of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.2 Warranties and Representations True. . . . . . . . . . . . . . . . . . . . . . 12
3.3 Officers' Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.4 Legality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.5 Private Placement Number. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.6 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.7 Compliance with this Agreement. . . . . . . . . . . . . . . . . . . . . . . . 13
3.8 Consent of Banks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.9 Proceedings Satisfactory. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.10 Other Purchasers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4. PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.1 Mandatory Principal Amortization Payments. . . . . . . . . . . . . . . . . . . 14
4.2 Optional Prepayments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.3 Offer to Prepay upon Change in Control. . . . . . . . . . . . . . . . . . . . 15
4.4 Pro Rata Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
</TABLE>
i
<PAGE> 3
TABLE OF CONTENTS (CONT.)
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
4.5 Notation of Notes on Prepayment. . . . . . . . . . . . . . . . . . . . . . . . . 17
4.6 No Other Optional Prepayments. . . . . . . . . . . . . . . . . . . . . . . . . . 17
5. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES . . . . . . . . . . . . . . . . . . . . 17
5.1 Registration of Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5.2 Exchange of Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.3 Replacement of Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5.4 Issuance Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.1 Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.2 Fixed Charge Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.3 Consolidated Tangible Net Worth . . . . . . . . . . . . . . . . . . . . . . . . 20
6.4 Sale and Leaseback Transactions . . . . . . . . . . . . . . . . . . . . . . . . 20
6.5 Restricted Investments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.6 Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6.7 Merger and Consolidation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.8 Transfers of Property; Subsidiary Stock. . . . . . . . . . . . . . . . . . . . . 24
6.9 Line of Business. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.10 Transactions with Affiliates. . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.11 Maintenance of Properties; Corporate Existence; etc. . . . . . . . . . . . . . . 27
6.12 Payment of Taxes and Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
6.13 Payment of Notes and Maintenance of Office . . . . . . . . . . . . . . . . . . . 28
6.14 Pension Plans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
6.15 Pro-Rata Offers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.16 Private Offering. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
6.17 Designation of Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6.18 Amendment of Bank Term Debt or Subordinated Debt Documents;
Termination of Restriction on Bank Term Debt Amendments; No further
Restrictions on Amendments of this Agreement . . . . . . . . . . . . . . . . . . 31
7. INFORMATION AS TO COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
7.1 Financial and Business Information. . . . . . . . . . . . . . . . . . . . . . . 32
7.2 Officer's Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
7.3 Accountants' Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.4 Inspection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.5 Confidential Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
8. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
8.1 Nature of Events. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
8.2 Default Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
8.3 Annulment of Acceleration of Notes. . . . . . . . . . . . . . . . . . . . . . . 41
</TABLE>
CREDIT ACCEPTANCE CORPORATION ii NOTE PURCHASE AGREEMENT
<PAGE> 4
TABLE OF CONTENTS (CONT.)
<TABLE>
<CAPTION>
PAGE
<S> <C>
9. INTERPRETATION OF THIS AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . 41
9.1 Terms Defined. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
9.2 GAAP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
9.3 Directly or Indirectly. . . . . . . . . . . . . . . . . . . . . . . . . . . 60
9.4 Section Headings and Table of Contents and Construction. . . . . . . . . . . 60
9.5 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
10.1 Communications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
10.2 Reproduction of Documents. . . . . . . . . . . . . . . . . . . . . . . . . . 62
10.3 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
10.4 Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . . . 62
10.5 Amendment and Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
10.6 Payments on Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
10.7 Entire Agreement; Severability. . . . . . . . . . . . . . . . . . . . . . . 65
10.8 Duplicate Originals, Execution in Counterpart. . . . . . . . . . . . . . . . 65
Annex 1 -- Information as to Purchasers
Annex 2 -- Payment Instructions at Closing
Annex 3 -- Information as to Company
Exhibit A -- Form of 7.99% Senior Note due July 1, 2001
Exhibit B1 -- Form of Company's Counsel Closing Opinion
Exhibit B2 -- Form of Purchasers' Special Counsel Closing Opinion
Exhibit C -- Form of Officers' Certificate
Exhibit D -- Form of Secretary's Certificate
</TABLE>
CREDIT ACCEPTANCE CORPORATION iii NOTE PURCHASE AGREEMENT
<PAGE> 5
CREDIT ACCEPTANCE CORPORATION
-----------------------
NOTE PURCHASE AGREEMENT
-----------------------
$70,000,000 7.99% SENIOR NOTES DUE JULY 1, 2001
Dated as of August 1, 1996
[SEPARATELY ADDRESSED TO EACH OF THE
PURCHASERS LISTED ON ANNEX 1 HERETO]
Ladies and Gentlemen:
CREDIT ACCEPTANCE CORPORATION, a Michigan corporation (together with its
successors and assigns, the "Company"), hereby agrees with you as follows:
1. PURCHASE AND SALE OF NOTES
1.1 AUTHORIZATION OF NOTES.
The Company will authorize the issuance of Seventy Million Dollars
($70,000,000) in aggregate principal amount of its 7.99% Senior Notes due
July 1, 2001 (the "Notes," such term to include each Note delivered from
time to time in accordance with any of the Note Purchase Agreements).
Each Note will:
(a) bear interest (computed on the basis of a 360-day year of
twelve 30-day months) on the unpaid principal balance thereof from
the date of such Note at the rate of seven and ninety-nine
one-hundredths percent (7.99%) per annum, payable semi-annually on
the first (1st) day of January and the first (1st) day of July in
each year commencing on the later of January 1, 1997 or the payment
date next succeeding the date of such Note;
(b) bear interest, payable on demand, on any overdue principal
(including any overdue prepayment of principal) and Make-Whole
Amount, if any, and (to the extent permitted by applicable law) on
any overdue installment of interest, at a rate equal to the lesser
of
(i) the highest rate allowed by applicable law, or
CREDIT ACCEPTANCE CORPORATION NOTE PURCHASE AGREEMENT
<PAGE> 6
(ii) nine and ninety-nine one-hundredths percent (9.99%)
per annum;
(c) mature on July 1, 2001; and
(d) be in the form of the Note set out in Exhibit A.
The term "Note" as used herein shall include each Note delivered
pursuant to this Agreement and each Note delivered in substitution or
exchange for any such Note pursuant to Section 5.2 or Section 5.3.
1.2 THE CLOSING.
(A) PURCHASE AND SALE OF NOTES. The Company hereby agrees to sell
to you and you hereby agree to purchase from the Company, in accordance
with the provisions hereof, the aggregate principal amount of Notes set
forth below your name on Annex 1 at one hundred percent (100%) of the
principal amount thereof.
(B) THE CLOSING. The closing (the "Closing") of the Company's sale
of Notes will be held on August 29, 1996 (the "Closing Date") at 10:00
a.m., local time, at the office of Hebb & Gitlin, One State Street,
Hartford, Connecticut 06103. At the Closing, the Company will deliver to
you one or more Notes (as indicated below your name on Annex 1), in the
denominations indicated on Annex 1, in the aggregate principal amount of
your purchase, dated the Closing Date and payable to you or payable as
indicated on Annex 1, against payment by federal funds wire transfer in
immediately available funds of the purchase price thereof, as directed by
the Company on Annex 2.
(C) OTHER PURCHASERS. Contemporaneously with the execution and
delivery hereof, the Company is entering into a separate Note Purchase
Agreement identical (except for the name and signature of the purchaser)
hereto (this Agreement and such other separate Note Purchase Agreements,
collectively, the "Note Purchase Agreements") with each other purchaser
(collectively, the "Other Purchasers") listed on Annex 1, providing for
the sale to each Other Purchaser of Notes in the aggregate principal
amount set forth below its name on such Annex. The sales of the Notes to
you and to each Other Purchaser are to be separate sales.
1.3 PURCHASE FOR INVESTMENT; ERISA.
(A) PURCHASE FOR INVESTMENT. You represent to the Company that you
are purchasing the Notes listed on Annex 1 below your name for your own
account for investment and with no present intention of distributing the
Notes or any part thereof, but without prejudice to your right at all
times to:
(i) sell or otherwise dispose of all or any part of the Notes
under a registration statement filed under the Securities Act, or in
a transaction exempt from the registration requirements of the
Securities Act; and
CREDIT ACCEPTANCE CORPORATION 2 NOTE PURCHASE AGREEMENT
<PAGE> 7
(ii) have control over the disposition of all of your assets to
the fullest extent required by any applicable insurance law.
It is understood that, in making the representations set out in Section
2.14(a) and Section 2.15, the Company is relying, to the extent
applicable, upon your representation in the immediately preceding
sentence.
(b) ERISA. You represent, with respect to the funds with which you
are acquiring the Notes, that all of such funds are from or attributable
to one or more of:
(I) GENERAL ACCOUNT -- your "insurance company general
account" as defined in Department of Labor Prohibited Transaction
Exemption 95-60 (60 FR 35925, July 12, 1995) and in respect thereof
you represent that there is no "employee benefit plan" (as defined
in section 3(3) of ERISA and section 4975(e)(1) of the IRC, treating
as a single plan all plans maintained by the same employer or
employee organization or affiliate thereof) with respect to which
the amount of the reserves and liabilities of all general account
contracts held by or on behalf of such plan exceed ten percent (10%)
of the total reserves and liabilities of such general account
(exclusive of separate account liabilities) plus surplus, as set
forth in the National Association of Insurance Commissioners' Annual
Statement filed with your state of domicile and that the acquisition
and holding of the Notes is eligible for and satisfies all
requirements of such exemption;
(II) SEPARATE ACCOUNT -- a "separate account" (as defined in
section 3 of ERISA),
(A) 10% POOLED SEPARATE ACCOUNT -- in respect of which
all requirements for an exemption under DOL Prohibited
Transaction Class Exemption 90-1 are met with respect to the
use of such funds to purchase the Notes,
(B) IDENTIFIED PLAN ASSETS -- that is comprised of
employee benefit plans identified by you in writing and with
respect to which the Company hereby warrants and represents
that, as of the Closing Date, neither the Company nor any ERISA
Affiliate is a "party in interest" (as defined in section 3 of
ERISA) or a "disqualified person" (as defined in section 4975
of the IRC) with respect to any plan so identified, or
(C) GUARANTEED SEPARATE ACCOUNT -- that is maintained
solely in connection with fixed contractual obligations of an
insurance company, under which any amounts payable, or
credited, to any employee benefit plan having an interest in
such account and to any participant or beneficiary of such plan
(including an annuitant) are not affected in any manner by the
investment performance of the separate account (as provided by
29 C.F.R. Section 2510.3-101(h)(1)(iii));
CREDIT ACCEPTANCE CORPORATION 3 NOTE PURCHASE AGREEMENT
<PAGE> 8
(III) QUALIFIED PROFESSIONAL ASSET MANAGER -- an
"investment fund" managed by a "qualified professional asset
manager" (as such terms are defined in Part V of DOL Prohibited
Transaction Class Exemption 84-14) and all requirements for an
exemption under such Exemption are met with respect to the use of
such funds to purchase the Notes; or
(IV) EXCLUDED PLAN -- an employee benefit plan that is excluded
from the provisions of section 406(a) of ERISA by virtue of section
4(b) of ERISA.
1.4 FAILURE TO TENDER, FAILURE OF CONDITIONS.
If at the Closing the Company fails to tender to you the Notes to be
purchased by you at the Closing, or if the conditions specified in Section 3 to
be fulfilled at the Closing have not been fulfilled, you may thereupon elect to
be relieved of all further obligations hereunder. Nothing in this Section 1.4
shall operate to relieve the Company from any of its obligations hereunder or
to waive any of your rights against the Company.
1.5 EXPENSES.
(A) GENERALLY. Whether or not the Notes are sold, the Company will
promptly (and in any event within thirty (30) days of receiving any
statement or invoice therefor) pay all reasonable fees, expenses and costs
relating hereto, including, but not limited to:
(i) the reasonable cost of reproducing this Agreement, the
Notes and the other documents delivered in connection with the
Closing;
(ii) the reasonable fees and disbursements of your special
counsel incurred in connection herewith;
(iii) the reasonable cost of delivering to your home
office or custodian bank, insured to your satisfaction, the Notes
purchased by you at the Closing; and
(iv) the reasonable fees, expenses and costs incurred in
complying with each of the conditions to closing set forth in
Section 3.
(B) COUNSEL. Without limiting the generality of the foregoing, it
is agreed and understood that the Company will pay, at the Closing, the
statement for reasonable fees and disbursements of your special counsel
presented at the Closing and the Company will also pay upon receipt of any
statement therefor each additional statement for fees and disbursements of
your special counsel rendered after the Closing in connection with the
issuance of the Notes or the matters referred to in Section 1.5(a).
(C) SURVIVAL. The obligations of the Company under this Section
1.5, Section 5.4, Section 8.2(e) and Section 10.5(d) shall survive the
payment of the Notes and the termination hereof.
CREDIT ACCEPTANCE CORPORATION 4 NOTE PURCHASE AGREEMENT
<PAGE> 9
2. WARRANTIES AND REPRESENTATIONS
To induce you to enter into this Agreement and to purchase the Notes
listed on Annex 1 below your name, the Company warrants and represents, as of
the Closing Date, as follows:
2.1 NATURE OF BUSINESS.
The Private Placement Memorandum dated June, 1996, prepared by the Company
and the Placement Agent (together with all exhibits and annexes thereto, the
"Placement Memorandum") (a copy of which previously has been delivered to you),
correctly describes in all material respects the general nature of the business
and principal Properties of the Company and the Subsidiaries as of the Closing
Date.
2.2 FINANCIAL STATEMENTS; DEBT; MATERIAL ADVERSE CHANGE.
(A) FINANCIAL STATEMENTS. The Company has provided you with its
financial statements described in Part 2.2(a) of Annex 3. Such financial
statements have been prepared in accordance with GAAP consistently applied
(provided that the quarterly financial statements do not include footnotes
and are subject to year-end adjustments), and present fairly, in all
material respects, the consolidated financial position of the Company and
its consolidated subsidiaries as of such dates and the results of their
operations and cash flows for such periods.
(B) DEBT. Part 2.2(b) of Annex 3 lists all Debt of the Company and
the Subsidiaries as of the Closing Date, and provides the following
information with respect to each item of such Debt:
(i) the type thereof,
(ii) the holder thereof,
(iii) the outstanding amount,
(iv) the current portion, if any, and
(v) the collateral securing such Debt, if any.
(C) MATERIAL ADVERSE CHANGE. Since December 31, 1995, there has
been no change in the business, Properties or financial condition of the
Company or any of the Subsidiaries except changes in the ordinary course
of business (including, without limitation, the information set forth in
the consolidated financial statements of the Company and its Subsidiaries
as of March 31, 1996 and the increase in the loan amount available to, and
the borrowing of money by, the Company under the Credit Agreement) that,
in the aggregate for all such changes, could not reasonably be expected to
have a Material Adverse Effect.
CREDIT ACCEPTANCE CORPORATION 5 NOTE PURCHASE AGREEMENT
<PAGE> 10
2.3 SUBSIDIARIES AND AFFILIATES.
Part 2.3 of Annex 3 sets forth:
(a) the name of each Subsidiary, its jurisdiction of incorporation
and the percentage of its Voting Stock owned by the Company and each other
Subsidiary, and
(b) to the best knowledge of the Company as of the date hereof, the
name of each Affiliate (other than individuals) and the nature of its
affiliation.
Each of the Company and the Subsidiaries has good and marketable title to all
of the shares it purports to own of the stock of each Subsidiary, free and
clear in each case of any Lien. All such shares have been duly issued and are
fully paid and nonassessable.
2.4 TITLE TO PROPERTIES; PATENTS, TRADEMARKS, ETC.
(a) Each of the Company and the Subsidiaries has good and
marketable title to all of the real Property, and good title to all of the
other Property, reflected in the most recent audited statement of
financial condition referred to in Part 2.2(a) of Annex 3 (except as sold
or otherwise disposed of in the ordinary course of business), except for
such failures to have such good and marketable title as are immaterial to
such financial statements and that, in the aggregate for all such
failures, could not reasonably be expected to have a Material Adverse
Effect. All such Property is free from Liens not permitted by Section
6.6.
(b) Each of the Company and the Subsidiaries owns, possesses or has
the right to use all of the patents, trademarks, service marks, trade
names, copyrights and licenses, and rights with respect thereto, necessary
for the present and currently planned future conduct of its business,
without any known conflict with the rights of others, except for such
failures to own, possess, or have the right to use, that, in the aggregate
for all such failures, could not reasonably be expected to have a Material
Adverse Effect.
2.5 TAXES.
(A) RETURNS FILED; TAXES PAID.
(i) All tax returns required to be filed by each of the
Company and each Subsidiary and any other Person with which the
Company or any Subsidiary files or has filed a consolidated return
in any jurisdiction have been filed on a timely basis, and all
taxes, assessments, fees and other governmental charges upon each of
the Company, such Subsidiary and any such Person, and upon any of
their respective Properties, income or franchises, that are due and
payable have been paid, except for such failures to file tax returns
or pay taxes, assessments, fees and other governmental charges that,
in the aggregate for all such failures, could not reasonably be
expected to have a Material Adverse Effect.
CREDIT ACCEPTANCE CORPORATION 6 NOTE PURCHASE AGREEMENT
<PAGE> 11
(ii) All liabilities of each of the Company, the Subsidiaries
and the other Persons referred to in the preceding clause (i) with
respect to federal income taxes have been finally determined except
for the fiscal years 1993 through 1995, the only years not closed by
the completion of an audit or the expiration of the statute of
limitations.
(B) BOOK PROVISIONS ADEQUATE.
(i) The amount of the liability for taxes reflected in each of
the statements of financial condition referred to in Part 2.2(a) of
Annex 3 is in each case an adequate provision for taxes as of the
dates of such statements of financial condition (including, without
limitation, any payment due pursuant to any tax sharing agreement)
as are or may become payable by any one or more of the Company and
the other Persons consolidated with the Company in such financial
statements in respect of all tax periods ending on or prior to such
dates.
(ii) The Company does not know of any proposed additional tax
assessment against it or any such Person that is not reflected in
full in the most recent statement of financial condition referred to
in Part 2.2(a) of Annex 3.
2.6 PENDING LITIGATION.
(a) There are no proceedings, actions or investigations pending or,
to the knowledge of the Company, threatened against or affecting the
Company or any Subsidiary in any court or before any Governmental
Authority or arbitration board or tribunal that, in the aggregate for all
such proceedings, actions and investigations, could reasonably be expected
to have a Material Adverse Effect. Part 2.6(a) of Annex 3 sets forth
information with respect to certain proceedings and actions against or
affecting the Company, none of which could reasonably be expected to have
a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default with
respect to any judgment, order, writ, injunction or decree of any court,
Governmental Authority, arbitration board or tribunal that, in the
aggregate for all such defaults, could reasonably be expected to have a
Material Adverse Effect.
2.7 FULL DISCLOSURE.
The financial statements referred to in Part 2.2(a) of Annex 3 do not, nor
does this Agreement, the Placement Memorandum or any written statement
furnished by or on behalf of the Company to you in connection with the
negotiation or the closing of the sale of the Notes, contain any untrue
statement of a material fact or omit a material fact necessary to make the
statements contained therein and herein not misleading.
CREDIT ACCEPTANCE CORPORATION 7 NOTE PURCHASE AGREEMENT
<PAGE> 12
2.8 CORPORATE ORGANIZATION AND AUTHORITY.
Each of the Company and the Subsidiaries:
(a) is a corporation duly incorporated, validly existing and in
good standing under the laws of its jurisdiction of incorporation;
(b) has all corporate power and authority to own and operate its
Properties and to carry on its business as now conducted and as presently
proposed to be conducted;
(c) has all licenses, certificates, permits, franchises and other
governmental authorizations necessary to own and operate its Properties
and to carry on its business as now conducted and as presently proposed to
be conducted, except where the failure to have such licenses,
certificates, permits, franchises and other governmental authorizations,
in the aggregate for all such failures, could not reasonably be expected
to have a Material Adverse Effect; and
(d) has duly qualified or has been duly licensed, and is authorized
to do business and is in good standing, as a foreign corporation, in each
state (each of which states is listed in Part 2.8(d) of Annex 3) where the
failure to be so qualified or licensed and authorized and in good
standing, in the aggregate for all such failures, could reasonably be
expected to have a Material Adverse Effect.
2.9 CHARTER INSTRUMENTS, OTHER AGREEMENTS.
Neither the Company nor any Subsidiary is in violation in any respect of
any term of its respective charter instrument or bylaws. Neither the Company
nor any Subsidiary is in violation in any respect of any term in any agreement
or other instrument to which it is a party or by which it or any of its
Properties may be bound except for such failures that, in the aggregate for all
such failures, could not reasonably be expected to have a Material Adverse
Effect.
2.10 RESTRICTIONS ON COMPANY AND SUBSIDIARIES.
Neither the Company nor any Subsidiary:
(a) is a party to any contract or agreement, or subject to any
charter or other corporate restriction that, in the aggregate for all such
contracts, agreements, charters and corporate restrictions, could
reasonably be expected to have a Material Adverse Effect;
(b) is a party to any contract or agreement that restricts the
right or ability of such corporation to incur Debt, other than this
Agreement and the agreements listed in Part 2.10(b) of Annex 3, none of
which restricts the issuance and sale of the Notes or the performance of
the Company hereunder or under the Notes, and true, correct and complete
copies of each of which have been provided to you; or
CREDIT ACCEPTANCE CORPORATION 8 NOTE PURCHASE AGREEMENT
<PAGE> 13
(c) has agreed or consented to cause or permit in the future (upon
the happening of a contingency or otherwise) any of its Property, whether
now owned or hereafter acquired, to be subject to a Lien not permitted by
Section 6.6.
2.11 COMPLIANCE WITH LAW.
Neither the Company nor any Subsidiary is in violation of any law,
ordinance, governmental rule or regulation to which it is subject, which
violations, in the aggregate, could reasonably be expected to have a Material
Adverse Effect.
2.12 PENSION PLANS.
(A) DISCLOSURE. The only ERISA retirement plan maintained by the
Company is an IRC Section 401(k) plan (the "401(k) Plan"). The 401(k)
Plan meets the requirements for qualification under IRC Section 401 and is
exempt from taxation under IRC Section 501(a). The IRS has issued a
favorable determination letter with respect to the tax qualified status of
the 401(k) Plan and has not taken any action to revoke such letter. The
Company has performed all material obligations required to be performed by
it under the 401(k) Plan and is in substantial compliance with the
requirements prescribed by any and all statutes or regulations applicable
to the 401(k) Plan. There are no suits or material claims pending against
the 401(k) Plan. As of the Closing Date, the Company has made all
required employer contributions (salary deferrals and matching
contributions) to the 401(k) Plan.
(B) PROHIBITED TRANSACTIONS. Neither the execution of this
Agreement nor the purchase of the Notes by you will constitute a
"prohibited transaction" (as such term is defined in section 406 of ERISA
or section 4975 of the IRC). The representation by the Company in the
immediately preceding sentence is made in reliance upon and subject to the
accuracy of the representations in Section 1.3(b) as to the source of
funds used by you.
(C) MULTIEMPLOYER PLANS. Neither the Company nor any ERISA
Affiliate has ever been an employer required to contribute to any
Multiemployer Plan.
(D) MULTIPLE EMPLOYER PENSION PLANS. Neither the Company nor any
ERISA Affiliate has ever been a "contributing sponsor" (as such term is
defined in section 4001 of ERISA) in any Multiple Employer Pension Plan.
(E) FOREIGN PENSION PLANS. The Company has no Foreign Pension
Plans.
2.13 ENVIRONMENTAL COMPLIANCE.
(A) COMPLIANCE. Each of the Company and the Subsidiaries is in
compliance with all applicable Environmental Protection Laws in effect in
each jurisdiction where it is presently doing business and with which the
failure so to comply, in the aggregate for all such failures, could
reasonably be expected to have a Material Adverse Effect.
CREDIT ACCEPTANCE CORPORATION 9 NOTE PURCHASE AGREEMENT
<PAGE> 14
(B) LIABILITY. Neither the Company nor any Subsidiary is subject
to any liability under any applicable Environmental Protection Law that,
in the aggregate for all such liabilities, could reasonably be expected to
have a Material Adverse Effect.
(C) NOTICES. Neither the Company nor any Subsidiary has received
any:
(i) notice from any Governmental Authority by which any of its
present or previously-owned or leased Properties has been identified
in any manner by any Governmental Authority as a hazardous substance
disposal or removal site, "Super Fund" clean-up site or candidate
for removal or closure pursuant to any applicable Environmental
Protection Law;
(ii) notice of any Lien arising under or in connection with any
applicable Environmental Protection Law that has attached to any
revenues of, or to, any of its owned or leased Properties; or
(iii) communication, written or oral, from any Governmental
Authority concerning action or omission by the Company or such
Subsidiary in connection with its ownership or leasing of any
Property resulting in the release of any Hazardous Substance
resulting in any violation of any applicable Environmental Protection
Law;
where the effect of which, in the aggregate for all such notices and
communications, could reasonably be expected to have a Material Adverse
Effect.
2.14 SALE OF NOTES IS LEGAL AND AUTHORIZED; OBLIGATIONS ARE ENFORCEABLE.
(A) SALE OF NOTES IS LEGAL AND AUTHORIZED. Each of the issuance,
sale and delivery of the Notes by the Company, the execution and delivery
hereof by the Company and compliance by the Company with all of the
provisions hereof and of the Notes:
(i) is within the corporate powers of the Company; and
(ii) is legal and does not conflict with, result in any breach
of any of the provisions of, constitute a default under, or result
in the creation of any Lien upon any Property of the Company or any
Subsidiary under the provisions of, any agreement, charter
instrument, bylaw or other instrument to which it is a party or by
which it or any of its Properties may be bound.
(B) OBLIGATIONS ARE ENFORCEABLE. Each of this Agreement and the
Notes has been duly authorized by all necessary action on the part of the
Company, has been executed and delivered by duly authorized officers of
the Company and constitutes a legal, valid and binding obligation of the
Company, enforceable in accordance with its terms, except that the
enforceability hereof and of the Notes may be:
(i) limited by applicable bankruptcy, reorganization,
arrangement, insolvency, moratorium or other similar laws affecting
the enforceability of creditors' rights generally; and
CREDIT ACCEPTANCE CORPORATION 10 NOTE PURCHASE AGREEMENT
<PAGE> 15
(ii) subject to the availability of equitable remedies.
2.15 GOVERNMENTAL CONSENT TO SALE OF NOTES.
Neither the nature of the Company or any Subsidiary, or of any of their
respective businesses or Properties, nor any relationship between the Company
or any Subsidiary and any other Person, nor any circumstance in connection with
the offer, issuance, sale or delivery of the Notes and the execution and
delivery of this Agreement, is such as to require a consent, approval or
authorization of, or filing, registration or qualification with, any
Governmental Authority on the part of the Company as a condition to the
execution and delivery of this Agreement or the offer, issuance, sale or
delivery of the Notes. Neither the Company nor any Subsidiary is subject to
regulation under the Investment Company Act of 1940, as amended, the Public
Utility Holding Company Act of 1935, as amended, the Transportation Acts, as
amended, or the Federal Power Act, as amended.
2.16 PRIVATE OFFERING OF NOTES.
Neither the Company nor the Placement Agent (the only Person authorized or
employed by the Company as agent, broker, dealer or otherwise in connection
with the offering or sale of the Notes or any similar Security of the Company,
other than employees of the Company) has offered any of the Notes or any
similar Security of the Company for sale to, or solicited offers to buy any
thereof from, or otherwise approached or negotiated with respect thereto with,
any prospective purchaser, other than ninety-eight (98) institutional investors
(including the Purchasers), each of whom was offered all or a portion of the
Notes at private sale for investment.
2.17 NO DEFAULTS; TRANSACTIONS PRIOR TO CLOSING DATE.
(a) No event has occurred and no condition exists that, upon the
execution and delivery of this Agreement and the issuance of the Notes,
would constitute a Default or an Event of Default.
(b) The Company has not entered into any transaction since the date
of the most recent statement of financial condition referred to in Part
2.2(a) of Annex 3 that would have been prohibited by Section 6.4 through
Section 6.10, inclusive, had such Sections applied since such date.
2.18 USE OF PROCEEDS OF NOTES.
(A) USE OF PROCEEDS. The Company will apply the proceeds from the
sale of the Notes in the manner specified in Part 2.18(a) of Annex 3.
(B) MARGIN SECURITIES. None of the transactions contemplated
herein and in the Notes (including, without limitation, the use of the
proceeds from the sale of the Notes) violates, will violate or will result
in a violation of section 7 of the Exchange Act or any regulations issued
pursuant thereto, including, without limitation, Regulations G, T, U and X
of the Board of Governors of the Federal Reserve System, 12 C.F.R.,
Chapter II. The obligations of the Company under this Agreement and the
Notes are not
CREDIT ACCEPTANCE CORPORATION 11 NOTE PURCHASE AGREEMENT
<PAGE> 16
and will not be directly or indirectly secured (within the meaning of such
Regulation G) by any Margin Security, and no Notes are being sold on the
basis of any such collateral.
(C) ABSENCE OF FOREIGN OR ENEMY STATUS. Neither the Company nor any
Subsidiary is an "enemy" or an "ally of the enemy" within the meaning of
section 2 of the Trading with the Enemy Act (50 U.S.C. App. Section Section
1 et seq.), as amended. Neither the Company nor any Subsidiary is in
violation of, and neither the issuance and sale of the Notes by the Company
nor its use of the proceeds thereof as contemplated by this Agreement will
violate, the Trading with the Enemy Act, as amended, or any executive
orders, proclamations or regulations issued pursuant thereto, including,
without limitation, regulations administered by the Office of Foreign Asset
Control of the Department of the Treasury (31 C.F.R., Subtitle B, Chapter
V).
3. CLOSING CONDITIONS
Your obligation to purchase and pay for the Notes to be delivered to you
at the Closing is subject to the following conditions precedent:
3.1 OPINIONS OF COUNSEL.
You shall have received from
(a) Dykema Gossett PLLC, counsel for the Company, and
(b) Hebb & Gitlin, a Professional Corporation, your special
counsel,
closing opinions, each dated as of the Closing Date, substantially in the
respective forms set forth in Exhibit B1 and Exhibit B2 and as to such other
matters as you may reasonably request. This Section 3.1 shall constitute
direction by the Company to such counsel named in the foregoing clause (a) to
deliver such closing opinion to you.
3.2 WARRANTIES AND REPRESENTATIONS TRUE.
The warranties and representations contained in Section 2 shall be true on
the Closing Date with the same effect as though made on and as of that date.
3.3 OFFICERS' CERTIFICATES.
You shall have received:
(a) a certificate dated the Closing Date and signed by two Senior
Officers, substantially in the form of Exhibit C; and
(b) a certificate dated the Closing Date and signed by the
Secretary or an Assistant Secretary of the Company, substantially in the
form of Exhibit D.
CREDIT ACCEPTANCE CORPORATION 12 NOTE PURCHASE AGREEMENT
<PAGE> 17
3.4 LEGALITY.
The Notes shall on the Closing Date qualify as a legal investment for you
under applicable insurance law (without regard to any "basket" or "leeway"
provisions), and such acquisition shall not subject you to any penalty or other
onerous condition in or pursuant to any such law or regulation, and you shall
have received such evidence as you may reasonably request to establish
compliance with this condition.
3.5 PRIVATE PLACEMENT NUMBER.
The Company shall have obtained or caused to be obtained a private
placement number for the Notes from the CUSIP Service Bureau of Standard &
Poor's, a division of McGraw-Hill, Inc., and you shall have been informed of
such private placement number.
3.6 EXPENSES.
All fees and disbursements required to be paid pursuant to Section 1.5(b)
shall have been paid in full.
3.7 COMPLIANCE WITH THIS AGREEMENT.
Each of the Company and the Subsidiaries shall have performed and complied
with all agreements and conditions contained herein that are required to be
performed or complied with by the Company and the Subsidiaries on or prior to
the Closing Date, and such performance and compliance shall remain in effect on
the Closing Date.
3.8 CONSENT OF BANKS.
The Company shall have obtained from the banks that are parties to the
Credit Agreement (collectively, the "Banks"), and you shall have received a
copy of, the Banks' acknowledgement of and consent to (i) the Debt being
incurred by the Company hereunder and under the Notes and (ii) the provisions
of this Agreement and the Notes.
3.9 PROCEEDINGS SATISFACTORY.
All proceedings taken in connection with the issuance and sale of the
Notes and all documents and papers relating thereto shall be satisfactory to
you and your special counsel. You and your special counsel shall have received
copies of such documents and papers as you or they may reasonably request in
connection therewith or in connection with your special counsel's closing
opinion, all in form and substance satisfactory to you and your special
counsel.
CREDIT ACCEPTANCE CORPORATION 13 NOTE PURCHASE AGREEMENT
<PAGE> 18
3.10 OTHER PURCHASERS.
None of the Other Purchasers shall have failed to execute and deliver a
Note Purchase Agreement or to accept delivery of or make payment for the Notes
to be purchased by it on the Closing Date.
4. PAYMENTS
4.1 MANDATORY PRINCIPAL AMORTIZATION PAYMENTS.
The Company shall pay, and there shall become due and payable on the dates
set forth in the following table, the principal amount of the Notes set forth
opposite such dates (each, a "Mandatory Principal Amortization Payment"):
DATE MANDATORY PRINCIPAL AMORTIZATION AMOUNT
July 1, 1997 $12,500,000
July 1, 1998 $12,700,000
July 1, 1999 $13,800,000
July 1, 2000 $14,900,000
July 1, 2001 $16,100,000
Each Mandatory Principal Amortization Payment shall be at one hundred
percent (100%) of the principal amount payable, together with unpaid
interest accrued thereon to the date of payment. Without limitation of
the foregoing, all of the principal of the Notes remaining outstanding on
July 1, 2001 (if any), together with unpaid interest accrued thereon,
shall become due and payable on July 1, 2001.
4.2 OPTIONAL PREPAYMENTS.
(A) OPTIONAL PREPAYMENTS. The Company may at any time after the
Closing Date prepay the principal amount of the Notes, in part (in an
amount for each such partial prepayment of Two Million Dollars
($2,000,000) or any integral multiple of One Hundred Thousand Dollars
($100,000) in excess of Two Million Dollars ($2,000,000)), or in whole, in
each case together with:
(i) an amount equal to the Make-Whole Amount at such time in
respect of the principal amount of the Notes being so prepaid; and
(ii) interest on such principal amount then being prepaid
accrued to the prepayment date.
CREDIT ACCEPTANCE CORPORATION 14 NOTE PURCHASE AGREEMENT
<PAGE> 19
(B) NOTICE OF OPTIONAL PREPAYMENT. The Company will give notice of
any optional prepayment of the Notes to each holder of Notes not less than
thirty (30) days or more than sixty (60) days before the date fixed for
prepayment, specifying:
(i) such date;
(ii) the Section hereof under which the prepayment is to be
made;
(iii) the principal amount of each Note to be prepaid on
such date;
(iv) the interest to be paid on each such Note, accrued to the
date fixed for prepayment; and
(v) a reasonably detailed calculation of an estimated
Make-Whole Amount for such Notes, if any (calculated as if the date
of such notice were the date of prepayment), due in connection with
such prepayment.
Notice of prepayment having been so given, the aggregate principal amount
of the Notes to be prepaid specified in such notice, together with the
Make-Whole Amount as of the specified prepayment date with respect
thereto, if any, and accrued interest thereon shall become due and payable
on the specified prepayment date. Two (2) Business Days prior to the
making of such prepayment, the Company shall deliver to each holder of
Notes by facsimile transmission a certificate of a Senior Financial
Officer specifying the details of the calculation of such Make-Whole
Amount as of the specified prepayment date, together with a copy of the
Applicable H.15 used in determining the Make-Whole Discount Rate (as both
such terms are defined in the definition of Make-Whole Amount) in respect
of such prepayment.
(C) EFFECT OF PARTIAL PREPAYMENTS. The amount of each partial
prepayment of the principal of the Notes made under this Section 4.2 shall
be applied against and reduce the then unpaid Mandatory Principal
Amortization Payments in the inverse order of the due dates of such
payments.
4.3 OFFER TO PREPAY UPON CHANGE IN CONTROL.
(A) NOTICE AND OFFER. In the event of either
(i) a Change in Control, or
(ii) the obtaining of knowledge of a Control Event by any
Senior Officer (including, without limitation, via the receipt of
notice of a Control Event from any holder of Notes),
the Company will, within three (3) Business Days of the occurrence of
either of such events (or, in the case of any Change in Control the
consummation or finalization of which would involve any action of the
Company, at least thirty (30) days prior to such Change in Control), give
written notice of such Change in Control or Control Event to each holder
of Notes by registered mail and, simultaneously with the sending of such
CREDIT ACCEPTANCE CORPORATION 15 NOTE PURCHASE AGREEMENT
<PAGE> 20
written notice, send a copy of such notice to each such holder via an
overnight courier of national reputation. In the event of a Change in
Control, such written notice shall contain, and such written notice shall
constitute, an irrevocable offer to prepay all, but not less than all, the
Notes held by such holder on a date specified in such notice (the "Control
Prepayment Date") that is not less than thirty (30) days and not more than
sixty (60) days after the date of such notice. If the Control Prepayment
Date shall not be specified in such notice, the Control Prepayment Date
shall be the thirtieth (30th) day after the date of such holder's receipt
of such notice. In no event will the Company take any action to consummate
or finalize a Change in Control unless the Company has given the notice
required by this Section 4.3(a) and, contemporaneously with such action,
the Company prepays all Notes required to be prepaid in accordance with
Section 4.3(b).
(B) ACCEPTANCE AND PAYMENT. To accept such offered prepayment, a
holder of Notes shall cause a notice of such acceptance to be delivered to
the Company not later than twenty (20) days after the date of receipt by
such holder of the latest written offer of such prepayment (it being
understood that the failure by a holder to respond to such written offer
of prepayment within such period of twenty (20) days shall be deemed to
constitute an acceptance of such offer). If so accepted, such offered
prepayment shall be due and payable on the Control Prepayment Date. Such
offered prepayment shall be made at one hundred percent (100%) of the
principal amount of such Notes, together with any Make-Whole Amount as of
the Control Prepayment Date with respect thereto and interest on the Notes
then being prepaid accrued to the Control Prepayment Date. Two (2)
Business Days prior to the making of any such prepayment, the Company
shall deliver to each holder of such Notes by facsimile transmission a
certificate of a Senior Financial Officer specifying the details of the
calculation of such Make-Whole Amount as of the specified Control
Prepayment Date, together with a copy of the Applicable H.15 used in
determining the Make-Whole Discount Rate (as both such terms are defined
in the definition of Make-Whole Amount) in respect of such prepayment.
(C) OFFICER'S CERTIFICATE. Each offer to prepay the Notes pursuant
to this Section 4.3 shall be accompanied by a certificate, executed by a
Senior Officer and dated the date of such offer, specifying:
(i) the Control Prepayment Date;
(ii) the Section hereof under which such offer is made;
(iii) the principal amount of each Note offered to be
prepaid;
(iv) the unpaid interest that would be due on each such Note
offered to be prepaid, accrued to the date fixed for payment;
(v) a reasonably detailed calculation of an estimated
Make-Whole Amount, if any (calculated as if the date of such notice
was the date of prepayment), that would be due in connection with
such offered prepayment;
(vi) that the conditions of this Section 4.3 have been
fulfilled; and
CREDIT ACCEPTANCE CORPORATION 16 NOTE PURCHASE AGREEMENT
<PAGE> 21
(vii) in reasonable detail, the nature and date or
proposed date of the Change in Control.
(D) EFFECT OF PREPAYMENT. Each prepayment of the Notes pursuant to
this Section 4.3 shall be applied to reduce ratably each of the Mandatory
Principal Amortization Payments remaining after the date of such
prepayment.
4.4 PRO RATA PAYMENTS.
If at the time any required prepayment or optional prepayment of the
principal of the Notes made pursuant to Section 4.1 or Section 4.2 is due there
is more than one Note outstanding, the aggregate principal amount of each
required or optional partial prepayment of the Notes shall be allocated among
the holders of the Notes at the time outstanding in proportion, as nearly as
practicable, to the respective unpaid principal amounts of the Notes then
outstanding, with adjustments, to the extent practicable, to equalize for any
prior prepayments not in such proportion. For the purposes of this Section 4.4
only, any Notes reacquired by the Company or acquired by any Restricted
Subsidiary or any Affiliate shall be deemed to be outstanding for purposes of
allocating Mandatory Principal Amortization Payments made pursuant to Section
4.1 and the Company, any such Restricted Subsidiary or any such Affiliate shall
be deemed to be the holder thereof.
4.5 NOTATION OF NOTES ON PREPAYMENT.
Upon any partial prepayment of a Note, such Note may, at the option of the
holder thereof, be:
(a) surrendered to the Company pursuant to Section 5.2 in exchange
for a new Note in a principal amount equal to the principal amount
remaining unpaid on the surrendered Note;
(b) made available to the Company for notation thereon of the
portion of the principal so prepaid; or
(c) marked by such holder with a notation thereon of the portion of
the principal so prepaid.
In case the entire principal amount of any Note is paid, such Note shall be
surrendered to the Company for cancellation and shall not be reissued, and no
Note shall be issued in lieu of the paid principal amount of any Note.
4.6 NO OTHER OPTIONAL PREPAYMENTS.
Except as provided in Section 4.2 or in accordance with an offer made in
compliance with Section 6.15, the Company may not make any optional prepayment
(whether directly or indirectly by purchase or other acquisition) in respect of
the Notes.
CREDIT ACCEPTANCE CORPORATION 17 NOTE PURCHASE AGREEMENT
<PAGE> 22
5. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES
5.1 REGISTRATION OF NOTES.
The Company will cause to be kept at its office maintained pursuant to
Section 6.13 a register for the registration and transfer of Notes. The name
and address of each holder of one or more Notes, each transfer thereof and the
name and address of each transferee of one or more Notes shall be registered in
such register. The Person in whose name any Note shall be registered shall be
deemed and treated as the owner and holder thereof for all purposes hereof.
5.2 EXCHANGE OF NOTES.
(a) Upon surrender of any Note at the office of the Company
maintained pursuant to Section 6.13 duly endorsed or accompanied by a
written instrument of transfer duly executed by the registered holder of
such Note or such holder's attorney duly authorized in writing, the
Company will execute and, within five (5) Business Days after such
surrender, deliver, at the Company's expense (except as provided below),
new Notes in exchange therefor, in an aggregate principal amount equal to
the unpaid principal amount of the surrendered Note. Such instrument of
transfer shall be deemed to be a representation by the registered holder
of the Note being transferred that such transfer is in compliance with all
applicable state and federal securities laws. Each such new Note shall be
payable to such Person as such holder may request, shall be substantially
in the form of Exhibit A and shall include the restrictive legend set
forth on Exhibit A. Each such new Note shall be dated and bear interest
from the date to which interest shall have been paid on the surrendered
Note or dated the date of the surrendered Note if no interest shall have
been paid thereon. The Company may require payment of a sum sufficient to
cover any stamp tax or governmental charge imposed in respect of any such
transfer of Notes.
(b) The Company will pay the cost of delivering to or from such
holder's home office or custodian bank from or to the Company, insured to
the reasonable satisfaction of such holder, the surrendered Note and any
Note issued in substitution or replacement for the surrendered Note.
(c) Each holder of Notes agrees that, in the event it shall sell or
transfer any Note without surrendering such Note to the Company as set
forth in Section 5.2(a), it shall:
(i) prior to the delivery of such Note, make a notation
thereon of all principal, if any, paid on such Note and shall also
indicate thereon the date to which interest shall have been paid on
such Note; and
(ii) promptly notify (or cause the transferee of any such Note
to notify) the Company of the name and address of the transferee of
any such Note so transferred and the effective date of such
transfer.
CREDIT ACCEPTANCE CORPORATION 18 NOTE PURCHASE AGREEMENT
<PAGE> 23
5.3 REPLACEMENT OF NOTES.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the ownership of and the loss, theft, destruction or mutilation of any Note
(which evidence shall be, in the case of an Institutional Investor, an
affidavit of an authorized officer of such Institutional Investor of such
ownership (or of ownership by such Institutional Investor's nominee) and such
loss, theft, destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to the Company (provided that if the holder of
such Note is an Institutional Investor or a nominee of such Institutional
Investor, such Institutional Investor's own unsecured agreement of
indemnity shall be deemed to be satisfactory for such purpose), or
(b) in the case of mutilation, upon surrender and cancellation
thereof,
the Company at its own expense will execute and, within ten (10) Business Days
after such receipt, deliver, in lieu thereof, a new Note, dated and bearing
interest from the date to which interest shall have been paid on such lost,
stolen, destroyed or mutilated Note or dated the date of such lost, stolen,
destroyed or mutilated Note if no interest shall have been paid thereon.
5.4 ISSUANCE TAXES.
The Company will pay all taxes (if any) due in connection with and as the
result of the initial issuance and sale of the Notes and in connection with any
modification of this Agreement or the Notes (other than any taxes due in
connection with a modification of this Agreement or the Notes resulting from a
negotiation or request initiated by, and for the benefit of, the holders of the
Notes) and shall save each holder of Notes harmless without limitation as to
time against any and all liabilities with respect to all such taxes, provided
that this Section 5.4 shall not be construed to require the Company to pay, or
to save any holder of Notes harmless against any liabilities with respect to,
any income tax imposed on any holder of Notes. The obligations of the Company
under this Section 5.4 shall survive the payment or prepayment of the Notes and
the termination hereof.
6. COVENANTS
The Company covenants that on and after the Closing Date and so long as
any of the Notes shall be outstanding:
6.1 DEBT.
(A) TOTAL DEBT. The Company will not at any time permit
Consolidated Total Debt to exceed two hundred seventy-five percent (275%)
of Consolidated Tangible Net Worth at such time.
(B) SENIOR FUNDED DEBT. The Company will not at any time permit
Consolidated Senior Funded Debt to exceed either
CREDIT ACCEPTANCE CORPORATION 19 NOTE PURCHASE AGREEMENT
<PAGE> 24
(i) two hundred percent (200%) of Consolidated Tangible Net
Worth at such time, or
(ii) (A) Net Installment Contract Receivables minus Net Dealer
Holdbacks, in each case at such time, divided by
(B) 1.10.
(C) SUBORDINATED FUNDED DEBT. The Company will not at any time
permit Consolidated Subordinated Funded Debt to exceed one hundred fifty
percent (150%) of Consolidated Tangible Net Worth at such time.
(D) RESTRICTED SUBSIDIARY DEBT. The Company will not at any time
permit the sum of (i) Total Restricted Subsidiary Debt at such time plus,
without duplication, (ii) the aggregate amount of all Debt and other
obligations outstanding at such time secured by Liens permitted by clause
(v), clause (vi) and clause (vii) of Section 6.6(a) to exceed (A) on or
before July 31, 1997, fifteen percent (15%) of Consolidated Tangible Net
Worth or (B) on or after August 1, 1997, twenty percent (20%) of
Consolidated Tangible Net Worth.
(E) COMMERCIAL PAPER. The Company will not, and will not permit
any Restricted Subsidiary to, issue commercial paper unless the
obligations of the Company or such Restricted Subsidiary with respect to
such commercial paper are backed by a Letter of Credit Facility.
6.2 FIXED CHARGE COVERAGE.
The Company will not at any time permit the ratio of
(a) Consolidated Income Available for Fixed Charges for the period
of four (4) consecutive fiscal quarters of the Company most recently ended
at such time to
(b) Consolidated Fixed Charges for such period
to be less than 2.5 to 1.0.
6.3 CONSOLIDATED TANGIBLE NET WORTH.
The Company will not at any time permit Consolidated Tangible Net Worth,
determined at such time, to be less than the result of
(a) One Hundred Fifty Million Dollars ($150,000,000), plus
(b) fifty percent (50%) of Consolidated Net Income for each fiscal
year ended during the period beginning on January 1, 1996 and ending on
such date (unless Consolidated Net Income shall be a loss in any fiscal
year, in which event the amount determined pursuant to this clause (b) for
such fiscal year shall be zero).
CREDIT ACCEPTANCE CORPORATION 20 NOTE PURCHASE AGREEMENT
<PAGE> 25
6.4 SALE AND LEASEBACK TRANSACTIONS.
The Company will not, and will not permit any Restricted Subsidiary to,
enter into, at any time, any Sale and Leaseback Transaction unless,
(a) after giving effect thereto,
(i) the sale of Property in connection with such Sale and
Leaseback Transaction is permitted pursuant to Section 6.8 and
(ii) the Debt to be secured by a Lien on the Property to be
leased in connection with such Sale and Leaseback Transaction is
permitted pursuant to the provisions of Section 6.1 and Section 6.6,
and
(b) the lease of such Property constitutes a Capital Lease.
6.5 RESTRICTED INVESTMENTS.
The Company will not, and will not permit any Restricted Subsidiary to,
make any Restricted Investment.
6.6 LIENS.
(A) NEGATIVE PLEDGE. The Company will not, and will not permit any
Restricted Subsidiary to, cause or permit to exist, or agree or consent to
cause or permit to exist in the future (upon the happening of a
contingency or otherwise), any of their Property, whether now owned or
hereafter acquired, to be subject to any Lien except:
(i) Liens securing Property taxes, assessments or governmental
charges or levies or the claims or demands of materialmen,
mechanics, carriers, warehousemen, vendors, landlords and other like
Persons, provided that the payment thereof is not at the time
required by Section 6.12;
(ii) Liens
(A) arising from judicial attachments and judgments,
(B) securing appeal bonds or supersedeas bonds, and
(C) arising in connection with court proceedings
(including, without limitation, surety bonds and letters of
credit or any other instrument serving a similar purpose),
provided that (1) the execution or other enforcement of such Liens
is effectively stayed, (2) the claims secured thereby are being
contested in good faith and by appropriate proceedings, (3) adequate
book reserves in accordance with GAAP shall have been established
and maintained and shall exist with respect thereto, (4) such Liens
do not in the aggregate detract from the value of such Property
CREDIT ACCEPTANCE CORPORATION 21 NOTE PURCHASE AGREEMENT
<PAGE> 26
and (5) the title of the Company or the Restricted Subsidiary, as the
case may be, to, and its right to use, such Property, is not
materially adversely affected thereby;
(iii) Liens incurred or deposits made in the ordinary
course of business
(A) in connection with workers' compensation,
unemployment insurance, social security and other like laws, and
(B) to secure the performance of letters of credit,
bids, tenders, sales contracts, leases, statutory obligations,
surety and performance bonds (of a type other than set forth in
Section 6.6(a)(ii)) and other similar obligations not incurred
in connection with the borrowing of money, the obtaining of
advances or the payment of the deferred purchase price of
Property;
(iv) Liens in the nature of reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions,
restrictions, leases and other similar title exceptions or
encumbrances affecting real Property, provided that (1) such
exceptions and encumbrances do not in the aggregate materially
detract from the value of such Property and (2) title of the Company
or the Restricted Subsidiary, as the case may be, to, and the right
to use, such Property, is not materially adversely affected thereby;
(v) Liens in existence on the Closing Date securing Debt,
provided that such Liens are described in Part 6.6(a)(v) of Annex 3;
(vi) Purchase Money Liens, if, after giving effect thereto and
to any concurrent transactions:
(A) each such Purchase Money Lien secures Debt in an
amount not exceeding the cost of acquisition or construction of
the particular Property to which such Debt relates; and
(B) immediately after giving effect thereto, no Default
or Event of Default would exist; and
(vii) Liens on Property not otherwise permitted under
clause (i) through clause (vi) of this Section 6.6(a) if the
obligations secured by such Liens, when added to (A) the obligations
secured by Liens pursuant to clause (v) and clause (vi) of this
Section 6.6(a) plus, without duplication, (B) Total Restricted
Subsidiary Debt at such time, do not exceed (1) on or before July
31, 1997, fifteen percent (15%) of Consolidated Tangible Net Worth
or (2) on or after August 1, 1997, twenty percent (20%) of
Consolidated Tangible Net Worth.
(B) EQUAL AND RATABLE LIEN; EQUITABLE LIEN. In case any Property
shall be subjected to a Lien in violation of this Section 6.6, the Company
will immediately make or cause to be made, to the fullest extent permitted
by applicable law, provision whereby the Notes will be secured equally and
ratably with all other obligations secured thereby
CREDIT ACCEPTANCE CORPORATION 22 NOTE PURCHASE AGREEMENT
<PAGE> 27
pursuant to such agreements and instruments as shall be approved by the
Required Holders, and the Company will cause to be delivered to each holder
of a Note an opinion, satisfactory in form and substance to the Required
Holders, of independent counsel to the effect that such agreements and
instruments are enforceable in accordance with their terms, and in any such
case the Notes shall have the benefit, to the fullest extent that, and with
such priority as, the holders of Notes may be entitled thereto under
applicable law, of an equitable Lien on such Property securing the Notes
(provided that, notwithstanding the foregoing, each holder of Notes shall
have the right to elect at any time, by delivery of written notice of such
election to the Company, to cause the Notes held by such holder not to be
secured by such Lien or such equitable Lien). A violation of this Section
6.6 will constitute an Event of Default, whether or not any such provision
is made pursuant to this Section 6.6(b).
(C) FINANCING STATEMENTS. The Company will not, and will not permit
any Restricted Subsidiary to, sign or file a financing statement under the
Uniform Commercial Code of any jurisdiction that names the Company or such
Restricted Subsidiary as debtor, or sign any security agreement authorizing
any secured party thereunder to file any such financing statement, except,
in any such case, a financing statement filed or to be filed to perfect or
protect a security interest that the Company or such Restricted Subsidiary
is permitted to create, assume or incur, or permit to exist, under the
foregoing provisions of this Section 6.6 or to evidence for informational
purposes a lessor's interest in Property leased to the Company or any such
Restricted Subsidiary.
6.7 MERGER AND CONSOLIDATION.
The Company will not, and will not permit any Restricted Subsidiary
to, merge or consolidate with or into, or sell, lease, transfer or
otherwise dispose of all or substantially all of its Property to, any
other Person or permit any other Person to merge or consolidate with or
into it (the Company, the Restricted Subsidiary or such other Person that
is the surviving corporation or transferee being herein referred to as the
"Surviving Corporation"), provided that the foregoing restrictions shall
not apply to:
(a) the merger or consolidation of the Company with or into,
or the sale of all or substantially all of the Property of the
Company to, another corporation, if:
(i) the Surviving Corporation is solvent and is
organized under the laws of the United States of America or any
state thereof;
(ii) the due and punctual payment of the principal of and
Make-Whole Amount, if any, and interest on all of the Notes,
according to their tenor, and the due and punctual performance
and observance of all the covenants in the Notes and this
Agreement to be performed or observed by the Company, are
expressly assumed or acknowledged by the Surviving Corporation
in a manner satisfactory to the Required Holders, and the
Company causes to be delivered to each holder of Notes an
opinion of independent counsel, in form, scope and substance
satisfactory
CREDIT ACCEPTANCE CORPORATION 23 NOTE PURCHASE AGREEMENT
<PAGE> 28
to the Required Holders, to the effect that such assumption or
acknowledgement is enforceable in accordance with its terms; and
(iii) immediately prior to, and immediately after the
consummation of the transaction, and after giving effect
thereto, no Default or Event of Default exists or would exist;
or
(b) the merger or consolidation of a Restricted Subsidiary
with or into, or the sale of all or substantially all of the
Property of such Restricted Subsidiary to, the Company, another
Restricted Subsidiary or any other Person that concurrently with
such merger, consolidation or sale becomes a Restricted Subsidiary,
if:
(i) the Surviving Corporation is organized under the laws
of the United States of America or any state thereof; and
(ii) immediately prior to, and immediately after the
consummation of the transaction, and after giving effect
thereto, no Default or Event of Default exists or would exist.
Notwithstanding the provisions of Section 6.7(b)(i), CAC UK may acquire
all or substantially all of the assets of CAC International.
6.8 TRANSFERS OF PROPERTY; SUBSIDIARY STOCK.
(A) TRANSFERS OF PROPERTY. Except as permitted under Section 6.7,
the Company will not, and will not permit any Restricted Subsidiary to,
sell, lease as lessor, transfer or otherwise dispose of any Property
(including, without limitation, Restricted Subsidiary Stock)
(collectively, "Transfers"), except:
(i) Transfers from a Restricted Subsidiary to the Company or
to a Wholly-Owned Restricted Subsidiary; and
(ii) any other Transfer at any time of any Property to a Person,
other than an Affiliate, for an Acceptable Consideration, if each of
the following conditions would be satisfied with respect to such
Transfer:
(A) the result of
(1) the sum of
(aa) the current book value of such Property,
plus
(bb) the aggregate book value of all other
Property of the Company and the Restricted
Subsidiaries, determined on a consolidated basis,
Transferred (other than in Transfers referred to in
the foregoing clause (i) (the "Excluded Transfers"),
but including Transfers pursuant to
CREDIT ACCEPTANCE CORPORATION 24 NOTE PURCHASE AGREEMENT
<PAGE> 29
Section 6.8(b)) during the twelve (12) month period
ended immediately prior to the date of such Transfer,
minus
(2) the aggregate cost of all Capital Assets
acquired by the Company and the Restricted Subsidiaries,
determined on a consolidated basis, during such twelve
(12) month period,
would not exceed ten percent (10%) of Consolidated Net Tangible
Assets determined as at the end of the most recently ended
fiscal year of the Company prior to giving effect to such
Transfer, and
(B) immediately before and after the consummation of such
Transfer, and after giving effect thereto, no Default or Event of
Default would exist.
(B) TRANSFERS OF SUBSIDIARY STOCK. The Company will not, and will
not permit any Restricted Subsidiary to, Transfer any shares of the stock
(or any warrants, rights or options to purchase stock or other Securities
exchangeable for or convertible into stock) of a Restricted Subsidiary
(such stock, warrants, rights, options and other Securities herein called
"Restricted Subsidiary Stock"), nor will any Restricted Subsidiary issue,
sell or otherwise dispose of any shares of its own Restricted Subsidiary
Stock, provided that the foregoing restrictions do not apply to:
(i) the issuance by a Restricted Subsidiary of shares of its
own Restricted Subsidiary Stock to the Company or a Wholly-Owned
Restricted Subsidiary;
(ii) Transfers by the Company or a Restricted Subsidiary of
shares of Restricted Subsidiary Stock to the Company or a Wholly-
Owned Restricted Subsidiary;
(iii) the issuance by a Restricted Subsidiary of
directors' qualifying shares; and
(iv) the Transfer of all of the Restricted Subsidiary Stock of
a Restricted Subsidiary owned by the Company and the other
Restricted Subsidiaries if:
(A) such Transfer satisfies the requirements of Section
6.8(a)(ii);
(B) in connection with such Transfer the entire
Investment (whether represented by stock, Debt, claims or
otherwise) of the Company and the other Restricted Subsidiaries
in such Restricted Subsidiary is Transferred to a Person other
than the Company or a Restricted Subsidiary not simultaneously
being disposed of;
CREDIT ACCEPTANCE CORPORATION 25 NOTE PURCHASE AGREEMENT
<PAGE> 30
(C) the Restricted Subsidiary being disposed of has no
continuing Investment in any other Restricted Subsidiary not
simultaneously being disposed of or in the Company; and
(D) immediately before and after the consummation of
such Transfer, and after giving effect thereto, no Default or
Event of Default would exist.
For purposes of determining the book value of Property constituting
Restricted Subsidiary Stock being Transferred as provided in clause (iv)
above, such book value shall be deemed to be the aggregate book value of
all assets of the Restricted Subsidiary that shall have issued such
Restricted Subsidiary Stock. Any Transfer of Restricted Subsidiary Stock
pursuant to clause (iv) above shall be deemed to be a Transfer of the
accounts receivable of such Restricted Subsidiary which must satisfy the
requirements of Section 6.8(c).
(C) ACCOUNTS RECEIVABLE. Notwithstanding the provisions of Section
6.8(a), neither the Company nor any Restricted Subsidiary will Transfer
any accounts receivable if the sum of
(i) the face value of the accounts receivable proposed to be
Transferred, plus
(ii) the face value of accounts receivable Transferred by the
Company and all Restricted Subsidiaries during the then current
fiscal year of the Company,
would exceed five percent (5%) of the face value of the accounts
receivable of the Company and the Restricted Subsidiaries determined on a
consolidated basis as at the end of the most recently ended fiscal year of
the Company prior to giving effect to such Transfer.
6.9 LINE OF BUSINESS.
The Company will not, and will not permit any Restricted Subsidiary to,
engage in, or make any Investment in any business engaged in, the provision of
property and casualty insurance unless the Company or such Restricted
Subsidiary shall maintain reinsurance of its underwriting risk, with one or
more reinsurers rated "A-" or better by Standard & Poor's Ratings Group or "A3"
or better by Moody's Investors Service, Inc., for all of the Company's or such
Restricted Subsidiary's exposure in excess of one hundred percent (100%) of the
premiums written by the Company or such Restricted Subsidiary. In addition to
the foregoing, the Company will not, and will not permit any Restricted
Subsidiary to, engage in any business if, after giving effect thereto, the
general nature of the businesses of the Company and the Restricted
Subsidiaries, taken as a whole, would no longer be the provision of financing
programs for the purchase of used motor vehicles, motor vehicle service
protection programs, credit life, accident and health insurance programs and
other programs related to the foregoing (it being understood that, in the
course of the provision of such programs, the Company may be obligated to remit
monies held by it in connection with dealer holdbacks, claims or refunds under
CREDIT ACCEPTANCE CORPORATION 26 NOTE PURCHASE AGREEMENT
<PAGE> 31
insurance policies, claims or refunds under service contracts, and to make
deposits in trust or otherwise as required under reinsurance agreements or
pursuant to state regulatory requirements). The Company shall manage and
operate such businesses in substantially the same manner that they are managed
and operated as of the date hereof.
6.10 TRANSACTIONS WITH AFFILIATES.
The Company will not, and will not permit any Restricted Subsidiary to,
enter into any transaction, including, without limitation, the purchase, sale
or exchange of Property or the rendering of any service, with any Affiliate,
except in the ordinary course of and pursuant to the reasonable requirements of
the Company's or such Restricted Subsidiary's business and upon fair and
reasonable terms no less favorable to the Company or such Restricted Subsidiary
than would obtain in a comparable arm's-length transaction with a Person not an
Affiliate.
6.11 MAINTENANCE OF PROPERTIES; CORPORATE EXISTENCE; ETC.
The Company will, and will cause each Restricted Subsidiary to:
(A) PROPERTY -- maintain, preserve and keep its Property in good
condition and working order, ordinary wear and tear excepted, and make all
necessary repairs, renewals, replacements, additions, betterments and
improvements thereto, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect;
(B) INSURANCE -- maintain, with financially sound and reputable
insurers, insurance with respect to its Property and business against such
casualties and contingencies, of such types (including, without
limitation, insurance with respect to losses arising out of Property loss
or damage, public liability, business interruption, larceny, workers'
compensation, embezzlement or other criminal misappropriation) and in such
amounts as is customary in the case of corporations of established
reputations engaged in the same or a similar business and similarly
situated, provided that such insurance is commercially available, it being
understood that the Company and the Restricted Subsidiaries may
self-insure against hazards and risks with respect to which, and in such
amounts as, the Company in good faith determines to be prudent and
consistent with sound financial and business practice;
(C) FINANCIAL RECORDS -- keep accurate and complete books of
records and accounts in which accurate and complete entries shall be made
of all its business transactions and that will permit the provision of
accurate and complete financial statements in accordance with GAAP;
(D) CORPORATE EXISTENCE AND RIGHTS --
(i) do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence, rights
(charter and statutory) and franchises, except where the failure to
do so, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect, and
(ii) to maintain each Subsidiary as a Subsidiary,
CREDIT ACCEPTANCE CORPORATION 27 NOTE PURCHASE AGREEMENT
<PAGE> 32
in each case except as permitted by Section 6.7 and Section 6.8(b) and
except that the Company shall not be required to preserve the corporate
existence of CAC International if CAC UK shall have acquired substantially
all of CAC International's assets; and
(E) COMPLIANCE WITH LAW -- not be in violation of any law,
ordinance or governmental rule or regulation to which it is subject
(including, without limitation, any Environmental Protection Law and OSHA)
and not fail to obtain any license, certificate, permit, franchise or other
governmental authorization necessary to the ownership of its Properties or
to the conduct of its business if such violations or failures to obtain, in
the aggregate, could reasonably be expected to have a Material Adverse
Effect.
6.12 PAYMENT OF TAXES AND CLAIMS.
The Company will, and will cause each Subsidiary to, pay before they become
delinquent:
(a) all taxes, assessments and governmental charges or levies
imposed upon it or its Property; and
(b) all claims or demands of materialmen, mechanics, carriers,
warehousemen, vendors, landlords and other like Persons that, if unpaid,
might result in the creation of a Lien upon its Property;
provided, that items of the foregoing description need not be paid
(i) while being contested in good faith and by appropriate
proceedings as long as adequate book reserves have been established
and maintained and exist with respect thereto, and
(ii) so long as the title of the Company or the Subsidiary, as
the case may be, to, and its right to use, such Property, is not
materially adversely affected thereby.
6.13 PAYMENT OF NOTES AND MAINTENANCE OF OFFICE.
The Company will punctually pay, or cause to be paid, the principal of and
interest (and Make-Whole Amount, if any) on, the Notes, as and when the same
shall become due according to the terms hereof and of the Notes, and will
maintain an office at the address of the Company set forth in Section 10.1 where
notices, presentations and demands in respect hereof or of the Notes may be made
upon it. Such office will be maintained at such address until such time as the
Company shall notify the holders of the Notes in writing of any change of
location of such office, which will in any event be located within the United
States of America.
6.14 PENSION PLANS.
(A) COMPLIANCE. The Company will, and will cause each ERISA
Affiliate to, at all times with respect to each Pension Plan, make timely
payment of contributions required to meet the minimum funding standard set
forth in ERISA or the IRC with respect thereto, and to comply with all
other applicable provisions of ERISA and the IRC.
CREDIT ACCEPTANCE CORPORATION 28 NOTE PURCHASE AGREEMENT
<PAGE> 33
(B) RELATIONSHIP OF VESTED BENEFITS TO PENSION PLAN ASSETS. The
Company will not at any time permit the present value of all employee
benefits vested under each Pension Plan to exceed the assets of such
Pension Plan allocable to such vested benefits at such time, in each case
determined pursuant to Section 6.14(c).
(C) VALUATIONS. All assumptions and methods used to determine the
actuarial valuation of vested employee benefits under Pension Plans and the
present value of assets of Pension Plans will be reasonable in the good
faith judgment of the Company and will comply with all requirements of law.
(D) PROHIBITED ACTIONS. The Company will not, and will not permit any
ERISA Affiliate to:
(i) engage in any "prohibited transaction" (as defined in
section 406 of ERISA or section 4975 of the IRC) that would result in
the imposition of a material tax or penalty;
(ii) incur with respect to any Pension Plan any "accumulated
funding deficiency" (as defined in section 302 of ERISA), whether or
not waived;
(iii) terminate any Pension Plan in a manner that could result
in the imposition of a Lien on the Property of the Company or any
Subsidiary pursuant to section 4068 of ERISA or the creation of any
liability under section 4062 of ERISA;
(iv) fail to make any payment required by section 515 of ERISA;
or
(v) at any time be an "employer" (as defined in section 3(5) of
ERISA) required to contribute to any Multiemployer Plan or a
"substantial employer" (as defined in section 4001 of ERISA) required
to contribute to any Multiple Employer Pension Plan if, at such time,
it could reasonably be expected that the Company or any Subsidiary
will incur withdrawal liability in respect of such Multiemployer Plan
or Multiple Employer Pension Plan and such liability, if incurred,
together with the aggregate amount of all other withdrawal liability
as to which there is a reasonable expectation of incurrence by the
Company or any Subsidiary under any one or more Multiemployer Plans or
Multiple Employer Pension Plans, could reasonably be expected to have
a Material Adverse Effect.
6.15 PRO-RATA OFFERS.
The Company will not, and will not permit any Subsidiary or any Affiliate
to, directly or indirectly, acquire or make any offer to acquire any Notes
unless the Company or such Subsidiary or Affiliate shall have offered to acquire
Notes, pro rata, from all holders of the Notes and upon the same terms. In case
the Company acquires any Notes, such Notes will immediately thereafter be
cancelled and no Notes will be issued in substitution therefor. Each purchase
of the Notes pursuant to this Section 6.15 shall be applied to reduce ratably
each of the Mandatory Principal Amortization Payments remaining after the date
of such purchase.
CREDIT ACCEPTANCE CORPORATION 29 NOTE PURCHASE AGREEMENT
<PAGE> 34
6.16 PRIVATE OFFERING.
The Company will not, and will not permit any Person acting on its behalf
to, offer the Notes or any part thereof or any similar Securities for issuance
or sale to, or solicit any offer to acquire any of the same from, any Person so
as to bring the issuance and sale of the Notes within the provisions of section
5 of the Securities Act.
6.17 DESIGNATION OF SUBSIDIARIES.
(A) RIGHT OF DESIGNATION. Subject to the satisfaction of the
requirements of Section 6.17(c), the Company shall have the right to
designate any newly acquired or formed Subsidiary as an Unrestricted
Subsidiary by delivering to each holder of Notes a writing, signed by a
Vice President or the President of the Company, so designating such
Subsidiary within thirty (30) days of the acquisition or formation of such
Subsidiary by the Company or any Restricted Subsidiary. Any such
Subsidiary so designated within such thirty (30) day period shall be deemed
to have been an Unrestricted Subsidiary as of the date of such acquisition
or formation and any such Subsidiary not so designated within such thirty
(30) day period shall be deemed to have been a Restricted Subsidiary as of
the date of such acquisition or formation. For all purposes of this
Agreement, each Subsidiary designated as an Unrestricted Subsidiary in Part
6.17(a) of Annex 3 shall, subject to Section 6.17(b), be an Unrestricted
Subsidiary and all other Subsidiaries, if any, listed in Part 2.3 of Annex
3 shall be Restricted Subsidiaries.
(B) RIGHT OF REDESIGNATION. No Restricted Subsidiary shall be
redesignated as an Unrestricted Subsidiary. Subject to the satisfaction of
the requirements of Section 6.17(c), the Company may at any time designate
any Unrestricted Subsidiary as a Restricted Subsidiary by delivering a
written notice to such effect, signed by a Vice President or the Chairman,
President or Treasurer of the Company, to each holder of Notes.
(C) DESIGNATION CRITERIA.
(i) No corporation acquired or formed after the Closing Date
shall be designated as a Restricted Subsidiary (including deemed
designation pursuant to Section 6.17(a)) unless:
(A) such Subsidiary at such time meets all of the
requirements of a "Restricted Subsidiary" as set forth in the
definition thereof; and
(B) immediately before and after, and after giving effect
to such designation, no Default or Event of Default exists or
would exist.
(ii) No Subsidiary shall at any time after the Closing Date be
designated as an Unrestricted Subsidiary pursuant to Section 6.17(a)
unless:
(A) immediately before and after, and after giving effect
to such designation, no Default or Event of Default exists or
would exist; and
CREDIT ACCEPTANCE CORPORATION 30 NOTE PURCHASE AGREEMENT
<PAGE> 35
(B) such Subsidiary does not own, directly or indirectly,
any Funded Debt or capital stock of any Restricted Subsidiary.
(D) EFFECTIVENESS. Any designation under Section 6.17(b) that
satisfies all of the conditions set forth in Section 6.17(c) shall become
effective, for purposes of this Agreement, on the day that notice thereof
shall have been mailed (postage prepaid, by registered or certified mail,
return receipt requested) by the Company to each holder of Notes at the
addresses as provided in Section 10.1.
6.18 AMENDMENT OF BANK TERM DEBT OR SUBORDINATED DEBT DOCUMENTS;
TERMINATION OF RESTRICTION ON BANK TERM DEBT AMENDMENTS; NO FURTHER
RESTRICTIONS ON AMENDMENTS OF THIS AGREEMENT.
(A) AMENDMENT OF BANK TERM DEBT OR SUBORDINATED DEBT DOCUMENTS.
The Company will not amend, modify or otherwise alter (or suffer to be
amended, modified or altered), or waive (or permit to be waived), in any
material respect, any of the terms or provisions of any document or
instrument:
(i) evidencing or otherwise relating to any Bank Term Debt so
as to shorten the maturity or original amortization of such Bank Term
Debt, or
(ii) evidencing or otherwise relating to any Subordinated Debt
so as to increase the original interest rate on, or the principal
amount of, such Subordinated Debt, shorten the original amortization
of such Subordinated Debt, change any other repayment terms or any
default or remedial provisions in any such document or instrument, or
change the subordination provisions contained in any such document or
instrument,
in each case without the prior written approval of the Required Holders.
(B) TERMINATION OF RESTRICTION ON BANK TERM DEBT AMENDMENTS.
Subject to Section 6.18(c), the provisions of Section 6.18(a), insofar as
such provisions relate to amendments, modifications, alterations or waivers
of Bank Term Debt, will terminate and be of no further force or effect at
such time as the Company causes to be delivered to each holder of Notes a
duly executed copy of an amendment or modification of the Credit Agreement
(or any new agreement contemplated by Section 6.18(c)(ii) below) deleting
Section 8.13 of the Credit Agreement (or the comparable provision in such
new agreement) effective on or prior to the date of such delivery.
(C) NO FURTHER RESTRICTIONS ON AMENDMENTS OF THIS AGREEMENT. The
Company will not:
(i) amend, modify or otherwise alter (or suffer to be amended,
modified or altered) the Credit Agreement (including, without
limitation, Section 8.13 thereof) or any document or instrument
relating thereto to include any covenant or other provision (other
than Section 8.13 of the Credit Agreement as in effect on the Closing
Date) that requires, as a condition to the amendment of
CREDIT ACCEPTANCE CORPORATION 31 NOTE PURCHASE AGREEMENT
<PAGE> 36
any term or provision of this Agreement, or the waiver of any term or
provision herein, the approval or consent of any other creditor of the
Company; or
(ii) enter into any other agreement (or suffer to be amended,
modified or altered any other agreement to which the Company is a
party) that requires, as a condition to the amendment of any term or
provision of this Agreement, or the waiver of any term or provision
herein, the approval or consent of any other creditor of the Company;
provided that if (A) any such agreement is entered into to replace,
refinance or supplement the Credit Agreement and (B) Section 8.13 of
the Credit Agreement (as in effect on the Closing Date) shall not have
been deleted from the Credit Agreement as of the time such new
agreement is to be entered into, such new agreement may include a
covenant substantially the same as (and not more onerous on the
Company than) Section 8.13 of the Credit Agreement (as in effect on
the Closing Date).
7. INFORMATION AS TO COMPANY
7.1 FINANCIAL AND BUSINESS INFORMATION.
The Company will deliver to each holder of Notes:
(A) QUARTERLY STATEMENTS -- as soon as practicable after the end of
each quarterly fiscal period in each fiscal year of the Company (other than
the last quarterly fiscal period of each such fiscal year), and in any
event within sixty (60) days thereafter, duplicate copies of
(i) a consolidated balance sheet of the Company and its
consolidated subsidiaries and consolidated and consolidating balance
sheets of the Company and the Restricted Subsidiaries, as at the end
of such quarter, and
(ii) consolidated statements of income and cash flows of the
Company and its consolidated subsidiaries and consolidated and
consolidating statements of income and cash flows of the Company and
the Restricted Subsidiaries, for such quarter and (in the case of the
second and third quarters) for the portion of the fiscal year ending
with such quarter,
setting forth in each case in comparative form the figures for the
corresponding periods in the immediately preceding fiscal year, all in
reasonable detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally, and accompanied by the certificate required
by Section 7.2, and, in the case of the financial statements relating to
the Company and its Restricted Subsidiaries, certified as complete and
correct, subject to changes resulting from year-end adjustments, by a
Senior Financial Officer, and, in the case of the financial statements
relating to the Company and its consolidated subsidiaries at any time when
a Quarterly Report on Form 10-Q is not filed by the Company with the
Securities and Exchange Commission and delivered to the holders of the
Notes pursuant to clause (d) of this Section 7.1, certified as complete and
correct, subject to changes resulting from year-end adjustments, by a
Senior Financial Officer;
CREDIT ACCEPTANCE CORPORATION 32 NOTE PURCHASE AGREEMENT
<PAGE> 37
(B) ANNUAL STATEMENTS -- as soon as practicable after the end of each
fiscal year of the Company, and in any event within one hundred twenty
(120) days thereafter, duplicate copies of
(i) a consolidated balance sheet of the Company and its
consolidated subsidiaries and consolidated and consolidating balance
sheets of the Company and the Restricted Subsidiaries, as at the end
of such year, and
(ii) consolidated statements of income, shareholders' equity and
cash flows of the Company and its consolidated subsidiaries and
consolidated and consolidating statements of income, shareholders'
equity and cash flows of the Company and the Restricted Subsidiaries,
for such year,
setting forth in each case in comparative form the figures for the
immediately preceding fiscal year, all in reasonable detail, prepared in
accordance with GAAP, and accompanied by
(A) in the case of the financial statements relating to the
Company and its consolidated subsidiaries, an opinion of
independent certified public accountants of recognized national
standing, which opinion shall, without qualification, state that
such financial statements present fairly, in all material
respects, the financial position of the companies being reported
upon and their results of operations and cash flows and have been
prepared in conformity with GAAP, and that the examination of
such accountants in connection with such financial statements has
been made in accordance with generally accepted auditing
standards, and that such audit provides a reasonable basis for
such opinion in the circumstances, and
(B) in the case of the financial statements relating to the
Company and its Restricted Subsidiaries, certified as complete
and correct by a Senior Financial Officer, and
(C) the certificate required by Section 7.2 and, in the case
of the financial statements relating to the Company and its
consolidated subsidiaries, the certificate required by Section
7.3;
(C) AUDIT REPORTS -- promptly upon receipt thereof, a copy of each
other report submitted to the Company or any Restricted Subsidiary by
independent accountants in connection with any management report, special
audit report or comparable analysis prepared by them with respect to the
books of the Company or any Restricted Subsidiary;
(D) SEC AND OTHER REPORTS -- promptly upon their becoming available, a
copy of each financial statement, report (including, without limitation,
each Quarterly Report on Form 10-Q, each Annual Report on Form 10-K and
each Current Report on Form 8-K), notice or proxy statement sent by the
Company or any Subsidiary to stockholders generally and of each regular or
periodic report and any registration statement,
CREDIT ACCEPTANCE CORPORATION 33 NOTE PURCHASE AGREEMENT
<PAGE> 38
prospectus or written communication (other than transmittal letters), and
each amendment thereto, in respect thereof filed by the Company or any
Subsidiary with, or received by, such Person in connection therewith from,
the National Association of Securities Dealers, any securities exchange or
the Securities and Exchange Commission or any successor agency;
(E) ERISA --
(i) immediately upon becoming aware of the occurrence of any
(A) "reportable event" (as defined in section 4043 of
ERISA), excluding, however, such events as to which the PBGC by
regulation shall have waived the requirement of section 4043(a)
of ERISA that it be notified within thirty (30) days of the
occurrence of such event (provided that a failure to meet the
minimum funding standard of section 412 of the IRC and of section
302 of ERISA shall not be so excluded regardless of the issuance
of any such waiver of the notice requirement in accordance with
either section 4043(a) of ERISA or section 412(d) of the IRC), or
(B) "prohibited transaction" (as defined in section 406 of
ERISA or section 4975 of the IRC),
in connection with any Pension Plan or any trust created thereunder, a
written notice specifying the nature thereof, what action the Company
is taking or proposes to take with respect thereto and, when known,
any action taken by the IRS, the DOL or the PBGC with respect thereto,
and
(ii) prompt written notice of and, where applicable, a
description of
(A) any notice from the PBGC in respect of the commencement
of any proceedings pursuant to section 4042 of ERISA to terminate
any Pension Plan or for the appointment of a trustee to
administer any Pension Plan,
(B) any distress termination notice delivered to the PBGC
under section 4041 of ERISA in respect of any Pension Plan, and
any determination of the PBGC in respect thereof,
(C) the placement of any Multiemployer Plan in
reorganization status under Title IV of ERISA,
(D) any Multiemployer Plan becoming "insolvent" (as defined
in section 4245 of ERISA) under Title IV of ERISA, and
(E) the whole or partial withdrawal of the Company or any
ERISA Affiliate from any Multiemployer Plan or Multiple Employer
Pension Plan and the withdrawal liability incurred in connection
therewith;
CREDIT ACCEPTANCE CORPORATION 34 NOTE PURCHASE AGREEMENT
<PAGE> 39
(F) ACTIONS, PROCEEDINGS -- promptly after the commencement thereof,
notice of any action or proceeding relating to the Company or any
Subsidiary in any court or before any Governmental Authority or arbitration
board or tribunal as to which there is a reasonable possibility of an
adverse determination and that, if adversely determined, would have a
Material Adverse Effect;
(G) CERTAIN ENVIRONMENTAL MATTERS -- prompt written notice of and a
description of any event or circumstance that, had such event or
circumstance occurred or existed immediately prior to the Closing Date,
would have been required to be disclosed as an exception to any statement
set forth in Section 2.13;
(H) NOTICE OF DEFAULT OR EVENT OF DEFAULT -- immediately upon
becoming aware of the existence of any condition or event that constitutes
a Default or an Event of Default, a written notice specifying the nature
and period of existence thereof and what action the Company is taking or
proposes to take with respect thereto;
(I) NOTICE OF CLAIMED DEFAULT -- immediately upon becoming aware that
the holder of any Note, or of any Debt or any Security of the Company or
any Subsidiary, shall have given notice or taken any other action with
respect to a claimed Default, Event of Default, default or event of
default, a written notice specifying the notice given or action taken by
such holder and the nature of the claimed Default, Event of Default,
default or event of default and what action the Company is taking or
proposes to take with respect thereto; and
(J) REQUESTED INFORMATION -- with reasonable promptness, such other
data and information as from time to time may be reasonably requested by
any holder of Notes, including, without limitation,
(i) copies of any statement, report or certificate furnished to
any holder of any Debt or any Security of the Company or any
Subsidiary,
(ii) information requested to comply with any request of the
National Association of Insurance Commissioners in respect of the
designation of the Notes, and
(iii) information requested to comply with 17 C.F.R. Section
230.144A, as amended from time to time;
provided that any such request with respect to any of the data and
information referred to in the foregoing clauses (i), (ii) and (iii) shall
be deemed to be reasonable for purposes of this Section 7.1(j).
7.2 OFFICER'S CERTIFICATES.
Each set of financial statements delivered to each holder of Notes pursuant
to Section 7.1(a) or Section 7.1(b) shall be accompanied by a certificate of a
Senior Financial Officer setting forth:
CREDIT ACCEPTANCE CORPORATION 35 NOTE PURCHASE AGREEMENT
<PAGE> 40
(A) COVENANT COMPLIANCE -- the information (including detailed
calculations) required in order to establish whether the Company was in
compliance with the requirements of Section 6.1 through Section 6.8,
inclusive, during the period covered by the income statement then being
furnished (including with respect to each such Section, where applicable,
the calculations of the maximum or minimum amount, ratio or percentage, as
the case may be, permissible under the terms of such Sections, and the
calculation of the amounts, ratio or percentage then in existence); and
(B) EVENT OF DEFAULT -- a statement that the signer has reviewed the
relevant terms hereof and has made, or caused to be made, under his or her
supervision, a review of the transactions and conditions of the Company and
the Subsidiaries from the beginning of the accounting period covered by the
income statements being delivered therewith to the date of the certificate
and that such review shall not have disclosed the existence during such
period of any condition or event that constitutes a Default or an Event of
Default or, if any such condition or event existed or exists, specifying
the nature and period of existence thereof and what action the Company
shall have taken or proposes to take with respect thereto.
7.3 ACCOUNTANTS' CERTIFICATES.
Each set of annual financial statements relating to the Company and its
consolidated subsidiaries delivered pursuant to Section 7.1(b) shall be
accompanied by a certificate of the accountants who certify such financial
statements stating that they have reviewed this Agreement and stating further,
whether, in making their audit, such accountants have become aware of any
condition or event that then constitutes a Default or an Event of Default, and,
if such accountants are aware that any such condition or event then exists,
specifying the nature and period of existence thereof.
7.4 INSPECTION.
The Company will permit the representatives of each holder of Notes, at the
expense of the Company at any time when a Default or an Event of Default has
occurred and is in existence, and otherwise at the expense of such holder, to
visit and inspect any of the Properties of the Company or any Subsidiary, to
examine all of their respective books of account, records, reports and other
papers, to make copies and extracts therefrom, and to discuss their respective
affairs, finances and accounts with their respective officers, employees and
independent public accountants (and by this provision the Company authorizes
such accountants to discuss the finances and affairs of the Company and the
Subsidiaries), all at such reasonable times and as often as may be reasonably
requested.
7.5 CONFIDENTIAL INFORMATION.
You will employ reasonable procedures and standards designed to maintain
the confidential nature of all data and information that has been or in the
future is furnished to or obtained by you in connection with this Agreement
(provided that you shall be deemed to have complied with the foregoing
requirement if in respect of such data and information you shall employ your
customary business practices as used respecting your own proprietary business
records), except such data and information that was or is available to the
public or was not or
CREDIT ACCEPTANCE CORPORATION 36 NOTE PURCHASE AGREEMENT
<PAGE> 41
is not treated as confidential by any one or more of the Company, the
Subsidiaries or the Affiliates. Notwithstanding the foregoing, you may
disclose any data and information furnished to or obtained by you in connection
with this Agreement and the Notes:
(a) the disclosure of which is, in your sole good faith business
and/or legal judgment, required in connection with regulatory requirements
(including, without limitation, the requirements of the National
Association of Insurance Commissioners) or other legal requirements related
to your affairs, including, without limitation, the disclosure of such data
and information in connection with or in response to (i) compliance with
any law, ordinance or governmental order, regulation, rule, policy,
subpoena, investigation or request, or (ii) any order, decree, judgment,
subpoena, notice of discovery or similar ruling, or pleading issued, filed,
served or purported on its face to be issued, filed or served (A) by or
under authority of any court, tribunal, arbitration board or any
governmental agency, commission, authority, board or similar entity or (B)
in connection with any proceeding (including, without limitation, any
proceeding to enforce the obligations of the Company under this Agreement
or the Notes), cause or matter pending (or on its face purported to be
pending) before any court, tribunal, arbitration board or any governmental
agency, commission, authority, board or similar entity;
(b) to any one or more of your employees, officers, directors, agents,
attorneys, accountants or professional consultants who would have access to
such data and information in the normal course of the performance of such
Person's duties for you, so long as you employ reasonable procedures and
standards designed to maintain the confidential nature of all such data and
information that is disclosed to such Persons (provided that you shall be
deemed to have complied with the foregoing requirement if in respect of
such data and information you shall employ your customary business
practices as used respecting your own proprietary business records);
(c) to Moody's Investors Service, Inc., Standard & Poor's Ratings
Group or any other nationally recognized financial rating service that is
reviewing the credit rating of any holder of Notes or is rating or
reviewing the rating of the Notes; and
(d) to any prospective purchaser, securities broker or dealer or
investment banker (who shall have agreed in writing, prior to such
disclosure, to be bound by the provisions of this Section 7.5) in
connection with the resale or proposed resale of all or any portion of the
Notes by you.
You will not be liable for the breach of this Section 7.5 by any other holder
of Notes or by any Person to which any confidential data or information shall
be delivered in accordance with this Section 7.5.
8. EVENTS OF DEFAULT
8.1 NATURE OF EVENTS.
An "Event of Default" shall exist if any of the following occurs and is
continuing at any time:
37
<PAGE> 42
(A) PRINCIPAL PAYMENTS -- the Company shall fail to make any payment
of principal on any Note on or before the date such payment is due;
(B) INTEREST OR MAKE-WHOLE AMOUNT PAYMENTS -- the Company shall fail
to make any payment of interest or Make-Whole Amount on any Note on or
before five (5) Business Days after the date such payment is due;
(C) PARTICULAR COVENANT DEFAULTS -- the Company or any Subsidiary
shall fail to perform or observe any covenant contained in Section 6.1
through Section 6.8, inclusive, or in Section 6.18, Section 7.1(h) or
Section 7.1(i) of this Agreement;
(D) OTHER DEFAULTS -- the Company or any Subsidiary shall fail to
comply with any other provision hereof, and such failure shall continue for
more than thirty (30) days after the earlier of the date on which (i) such
failure shall first become known to any officer of the Company or (ii) the
Company shall have received written notice from any holder of Notes;
(E) WARRANTIES OR REPRESENTATIONS -- any warranty, representation or
other statement by or on behalf of the Company contained herein or in any
certificate or instrument furnished in compliance with or in reference
hereto shall have been false or misleading in any respect when made;
(F) DEFAULT ON DEBT OR SECURITY -- any event shall occur or any
condition shall exist in respect of any Debt (other than Non-Recourse Debt)
or any Security of the Company or any Restricted Subsidiary (including,
without limitation, the failure to make any payment on such Debt or
Security when due), or under any agreement securing or relating to any such
Debt or Security, that immediately or with any one or more of the passage
of time, the giving of notice or the expiration of waivers or modifications
granted in respect of such event or condition:
(i) causes (or permits any one or more of the holders thereof or
a trustee therefor to cause) such Debt or Security, or a portion
thereof, to become due prior to its stated maturity or prior to its
regularly scheduled date or dates of payment; or
(ii) permits any one or more of the holders thereof or a trustee
therefor to require the Company or any Restricted Subsidiary to
repurchase such Debt or Security from such holder;
provided that the aggregate amount of all obligations in respect of all
such Debt and Securities referred to in this clause (f) exceeds at such
time Two Million Dollars ($2,000,000);
(G) INVOLUNTARY BANKRUPTCY PROCEEDINGS --
(i) a receiver, liquidator, custodian or trustee of the Company
or any Restricted Subsidiary, or of all or any part of the Property of
the Company or any Restricted Subsidiary, shall be appointed by court
order and such order shall
CREDIT ACCEPTANCE CORPORATION 38 NOTE PURCHASE AGREEMENT
<PAGE> 43
remain in effect for more than sixty (60) days, or an order for relief
shall be entered with respect to the Company or any Restricted
Subsidiary, or the Company or any Restricted Subsidiary shall be
adjudicated a bankrupt or insolvent;
(ii) any of the Property of the Company or any Restricted
Subsidiary shall be sequestered by court order and such order shall
remain in effect for more than sixty (60) days; or
(iii) a petition shall be filed against the Company or any
Restricted Subsidiary under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or
liquidation law of any jurisdiction, whether now or hereafter in
effect, and shall not be dismissed within sixty (60) days after such
filing;
(H) VOLUNTARY PETITIONS -- the Company or any Restricted Subsidiary
shall file a petition in voluntary bankruptcy or seeking relief under any
provision of any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any jurisdiction,
whether now or hereafter in effect, or shall consent to the filing of any
petition against it under any such law;
(I) ASSIGNMENTS FOR BENEFIT OF CREDITORS, ETC. -- the Company or any
Restricted Subsidiary shall make an assignment for the benefit of its
creditors, or shall admit in writing its inability, or shall fail, to pay
its debts generally as they become due, or shall consent to the appointment
of a receiver, liquidator or trustee of the Company or any Restricted
Subsidiary or of all or any part of the Property of the Company or any
Restricted Subsidiary; or
(J) UNDISCHARGED FINAL JUDGMENTS -- a final judgment or final
judgments for the payment of money aggregating in excess of Two Million
Dollars ($2,000,000) shall be outstanding against any one or more of the
Company and the Restricted Subsidiaries and any one of such judgments shall
have been outstanding for more than thirty (30) days from the date of its
entry, except to the extent that any such judgment is being contested in
good faith by appropriate proceedings which provide for a stay of any
enforcement action against the Company or such Restricted Subsidiary during
the pendency of such proceedings and for which adequate reserves have been
established and where nonpayment of such judgment could not reasonably be
expected to have a Material Adverse Effect.
8.2 DEFAULT REMEDIES.
(A) ACCELERATION ON EVENT OF DEFAULT.
(i) If an Event of Default specified in clause (g), clause (h)
or clause (i) of Section 8.1 shall exist, all of the Notes at the time
outstanding shall automatically become immediately due and payable,
together with interest accrued thereon and the Make-Whole Amount at
such time with respect to such
CREDIT ACCEPTANCE CORPORATION 39 NOTE PURCHASE AGREEMENT
<PAGE> 44
principal amount of such Notes, in each case without presentment,
demand, protest or notice of any kind, all of which are hereby
expressly waived.
(ii) If an Event of Default other than those specified in clause
(g), clause (h) and clause (i) of Section 8.1 shall exist, the holder
or holders of at least thirty-five percent (35%) in principal amount
of the Notes then outstanding (exclusive of Notes then owned by any
one or more of the Company, any Subsidiary or any Affiliate) may
exercise any right, power or remedy permitted to such holder or
holders by law and shall have, in particular, without limiting the
generality of the foregoing, the right to declare the entire principal
of, and all interest accrued on, all the Notes then outstanding to be,
and such Notes shall thereupon become, immediately due and payable,
without any presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived, and the Company shall
immediately pay to the holder or holders of all the Notes then
outstanding the entire principal of, and interest accrued on, the
Notes and, to the extent permitted by applicable law, the Make-Whole
Amount on the date of such declaration with respect to such principal
amount of such Notes.
(B) ACCELERATION ON PAYMENT DEFAULT. During the existence of an Event
of Default described in Section 8.1(a) or Section 8.1(b), and irrespective
of whether the Notes then outstanding shall have been declared to be due
and payable pursuant to Section 8.2(a)(ii), any holder of Notes that shall
have not consented to any waiver with respect to such Event of Default may,
at such holder's option, by notice in writing to the Company, declare the
Notes then held by such holder to be, and such Notes shall thereupon
become, immediately due and payable together with all interest accrued
thereon, without any presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived, and the Company shall
immediately pay to such holder the entire principal of and interest accrued
on such Notes and, to the extent permitted by applicable law, the
Make-Whole Amount at such time with respect to such principal amount of
such Notes.
(C) VALUABLE RIGHTS. The Company acknowledges, and the parties hereto
agree, that the right of each holder to maintain its investment in the
Notes free from repayment by the Company (except as herein specifically
provided for) is a valuable right and that the provision for payment of a
Make-Whole Amount by the Company in the event that the Notes are prepaid or
are accelerated as a result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such circumstances.
(D) OTHER REMEDIES. During the existence of an Event of Default and
irrespective of whether the Notes then outstanding shall have been declared
to be due and payable pursuant to Section 8.2(a)(ii) and irrespective of
whether any holder of Notes then outstanding shall otherwise have pursued
or be pursuing any other rights or remedies, any holder of Notes may
proceed to protect and enforce its rights hereunder and under such Notes by
exercising such remedies as are available to such holder in respect thereof
under applicable law, either by suit in equity or by action at law, or
both, whether for specific performance of any agreement contained herein or
in aid of the
40
<PAGE> 45
exercise of any power granted herein, provided that the maturity of such
holder's Notes may be accelerated only in accordance with Section 8.2(a)
and Section 8.2(b).
(E) NONWAIVER AND EXPENSES. No course of dealing on the part of any
holder of Notes nor any delay or failure on the part of any holder of Notes
to exercise any right shall operate as a waiver of such right or otherwise
prejudice such holder's rights, powers and remedies. If the Company shall
fail to pay when due any principal of, or Make-Whole Amount or interest on,
any Note, or shall fail to comply with any other provision hereof, or if
there shall be a controversy or potential controversy between the Company
and one or more holders of Notes as to any of the provisions of this
Agreement or the Notes, the Company shall pay to each holder of Notes, to
the extent permitted by applicable law, such further amounts as shall be
sufficient to cover the costs and expenses (including, without limitation,
reasonable attorneys' fees) incurred by each such holder in collecting any
sums due on such Notes or in otherwise assessing, analyzing or enforcing
any rights or remedies that are or may be available to it.
8.3 ANNULMENT OF ACCELERATION OF NOTES.
If a declaration is made pursuant to Section 8.2(a)(ii), then and in every
such case, the holders of at least sixty-six percent (66%) in aggregate
principal amount of the Notes then outstanding (exclusive of Notes then owned by
any one or more of the Company, any Subsidiary or any Affiliate) may, by written
instrument filed with the Company, rescind and annul such declaration and the
consequences thereof, provided that at the time such declaration is annulled and
rescinded:
(a) no judgment or decree shall have been entered for the payment of
any moneys due on or pursuant hereto or the Notes;
(b) all arrears of interest upon all the Notes and all other sums
payable hereunder and under the Notes (except any principal of, or interest
or Make-Whole Amount on, the Notes that shall have become due and payable
by reason of such declaration under Section 8.2(a)(ii)) shall have been
duly paid; and
(c) each and every other Default and Event of Default shall have been
waived pursuant to Section 10.5 or otherwise made good or cured;
and provided further that no such rescission and annulment shall extend to or
affect any subsequent Default or Event of Default or impair any right
consequent thereon.
9. INTERPRETATION OF THIS AGREEMENT
9.1 TERMS DEFINED.
As used herein, the following terms have the respective meanings set forth
below or set forth in the Section hereof following such term:
ACCEPTABLE CONSIDERATION -- means, with respect to any Transfer of any
Property of the Company or a Restricted Subsidiary, cash consideration,
promissory notes or such
CREDIT ACCEPTANCE CORPORATION 41 NOTE PURCHASE AGREEMENT
<PAGE> 46
other consideration (or any combination of the foregoing) received by such
Person in connection with such Transfer as is, in each case, determined by
the Board of Directors, in its good faith opinion, to be in the best
interests of the Company and to reflect the Fair Market Value of such
Property. It is understood that the Company's or such Restricted
Subsidiary's acceptance of any such consideration in connection with such
Transfer will constitute an Investment and may, depending upon the form of
such consideration, constitute a Restricted Investment made by the Company
or such Restricted Subsidiary.
AFFILIATE -- means, at any time, a Person (other than a Restricted
Subsidiary):
(a) that directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common
Control with, the Company;
(b) that beneficially owns or holds five percent (5%) or more of
any class of the Voting Stock of the Company;
(c) five percent (5%) or more of the Voting Stock (or in the case
of a Person that is not a corporation, five percent (5%) or more of
the equity interest) of which is beneficially owned or held by the
Company or a Subsidiary; or
(d) that is an officer or director (or a member of the immediate
family of an officer or director) of the Company or any Subsidiary;
at such time.
As used in this definition:
Control -- means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies
of a Person, whether through the ownership of voting securities, by
contract or otherwise.
AGREEMENT, THIS -- means this agreement, as it may be amended and
restated from time to time.
BANK TERM DEBT -- means term Debt of the Company or any Restricted
Subsidiary owed to banks and having an initial maturity of more than one
(1) year and a fixed amortization schedule, but in any event excluding any
Debt which by its terms is permitted to be readvanced or reborrowed,
whether or not subject to mandatory reductions or stepdowns in the
availability thereof.
BANKS -- Section 3.8.
BOARD OF DIRECTORS -- means the board of directors of the Company or
any committee thereof that, in the instance, shall have the lawful power to
exercise the power and authority of such board of directors.
BUSINESS DAY -- means, at any time, a day other than a Saturday, a
Sunday or a day on which the bank designated by the holder of a Note to
receive (for such holder's
CREDIT ACCEPTANCE CORPORATION 42 NOTE PURCHASE AGREEMENT
<PAGE> 47
account) payments on such Note is required by law (other than a general
banking moratorium or holiday for a period exceeding four (4) consecutive
days) to be closed.
CAC INTERNATIONAL -- means CAC International, Inc., a wholly-owned
Subsidiary of the Company.
CAC LIFE -- means Credit Acceptance Corporation Life Insurance
Company, a Wholly-Owned Restricted Subsidiary of the Company.
CAC UK -- means Credit Acceptance Corporation UK Limited, a
wholly-owned Subsidiary of the Company incorporated under the laws of
England for the purpose of acquiring substantially all of the assets of CAC
International.
CAPITAL ASSETS -- means all assets of a Person other than Intangible
Assets, inventories, accounts receivable and Investments (as defined in
clause (a) of the definition of such term) in and Securities of any other
Person.
CAPITAL LEASE -- means, at any time, a lease with respect to which the
lessee is required by GAAP to recognize the acquisition of an asset and the
incurrence of a liability at such time.
CHANGE IN CONTROL -- means, at any time, either
(a) the failure of Donald A. Foss, his wife and children, or
trusts for his or their benefit, to beneficially own, in the
aggregate, at least thirty-five percent (35%) (by number of votes) of
the Voting Stock of the Company outstanding at such time (excluding
for such purpose Persons who own shares through any employee benefit
plan of the Company or any trust established in connection therewith),
or
(b) except for the individuals and trusts identified in the
foregoing clause (a), the acquisition, holding or control (whether
directly or indirectly) by
(i) any "person" (as such term is used in section 13(d) and
section 14(d)(2) of the Exchange Act as in effect on the Closing
Date), or
(ii) related Persons constituting a "group" (as such term
is used in Rule 13d-5 under the Exchange Act as in effect on the
Closing Date),
of beneficial ownership of more than twenty-five percent (25%) (by
number of votes) of the Voting Stock of the Company outstanding at
such time (excluding for such purpose Persons who own shares through
any employee benefit plan of the Company or any trust established in
connection therewith), or
(c) all or substantially all of the assets of the Company are
sold or otherwise transferred, in a single transaction or in a series
of related transactions, to any "person" or "group of persons" (as
such terms are used in section 13(d)(3) of the Exchange Act as in
effect on the Closing Date).
CREDIT ACCEPTANCE CORPORATION 43 NOTE PURCHASE AGREEMENT
<PAGE> 48
CLOSING -- Section 1.2(b).
CLOSING DATE -- Section 1.2(b).
COMPANY -- introductory paragraph hereof.
CONSOLIDATED CURRENT LIABILITIES -- means, at any time, the aggregate
amount of current liabilities of the Company and the Restricted
Subsidiaries, determined at such time after eliminating inter-company
transactions among the Company and the Restricted Subsidiaries.
CONSOLIDATED FIXED CHARGES -- means, for any period, the sum of
(a) Consolidated Interest Expense for such period, plus
(b) the amount payable in respect of such period with respect to
Operating Rentals payable by the Company and the Restricted
Subsidiaries, determined after eliminating intercompany transactions
among the Company and the Restricted Subsidiaries.
CONSOLIDATED INCOME AVAILABLE FOR FIXED CHARGES -- means, for any
period, the sum of
(a) Consolidated Net Income, plus
(b) the aggregate amount of income taxes, depreciation,
amortization and Consolidated Fixed Charges (to the extent, and only
to the extent, that such aggregate amount was reflected in the
computation of Consolidated Net Income for such period),
in each case accrued for such period by the Company and the Restricted
Subsidiaries, determined on a consolidated basis for such Persons.
CONSOLIDATED INTEREST EXPENSE -- means, for any period, the amount of
interest accrued or capitalized on, or with respect to, Consolidated Total
Debt for such period, including, without limitation, amortization of debt
discount, imputed interest on Capital Leases and interest on the Notes.
CONSOLIDATED NET INCOME -- means, for any period, net earnings (or
loss) after income taxes of the Company and the Restricted Subsidiaries,
determined on a consolidated basis for such Persons, but excluding:
(a) net earnings (or loss) of any Restricted Subsidiary accrued
prior to the date it became a Restricted Subsidiary;
(b) any gain or loss (net of tax effects applicable thereto)
resulting from the sale, conversion or other disposition of Capital
Assets other than in the ordinary course of business;
CREDIT ACCEPTANCE CORPORATION 44 NOTE PURCHASE AGREEMENT
<PAGE> 49
(c) any extraordinary or nonrecurring gains or losses;
(d) any gain arising from any reappraisal or write-up of assets;
(e) any portion of the net earnings of any Restricted Subsidiary that
for any reason is unavailable for payment of dividends to the Company or a
Restricted Subsidiary, provided that the net earnings of CAC Life that are
unavailable (due to regulatory requirements applicable to CAC Life) for the
payment of dividends to the Company may be included in the determination of
Consolidated Net Income, to the extent that such unavailable net earnings
do not exceed five percent (5%) of Consolidated Net Income (determined
without giving effect to this proviso), and provided, further that so long
as the net earnings of CAC Life shall be included in Consolidated Net
Income pursuant to the preceding proviso, CAC Life shall not have
outstanding any Debt, regardless of whether any other Restricted Subsidiary
may be permitted to have Debt outstanding at such time by reason of a
waiver of or an amendment to Section 6.1(d);
(f) any gain or loss (net of tax effects applicable thereto) during
such period resulting from the receipt of any proceeds of any insurance
policy;
(g) any earnings of any Person acquired by the Company or any
Restricted Subsidiary through purchase, merger or consolidation or
otherwise, or earnings of any Person substantially all of whose assets have
been acquired by the Company or any Restricted Subsidiary, for any period
prior to the date of acquisition;
(h) net earnings of any Person (other than a Restricted Subsidiary) in
which the Company or any Restricted Subsidiary shall have an ownership
interest unless such net earnings shall have actually been received by the
Company or such Restricted Subsidiary in the form of cash distributions;
and
(i) any restoration during such period to income of any contingency
reserve, except to the extent that provision for such reserve
(i) was made during such period out of income accrued during
such period,
(ii) was made in connection with the Company's program of
financing installment contract receivables
(A) to provide for warranty claims for which the Company may
be responsible, or
(B) to cover credit losses in connection with advances to
dealers, or
(iii) is required by applicable law with respect to reserves for
claims related to the operation of CAC Life,
CREDIT ACCEPTANCE CORPORATION 45 NOTE PURCHASE AGREEMENT
<PAGE> 50
provided that the aggregate restoration to income during any period
from reserves described in clause (ii) and clause (iii) above shall
not exceed ten percent (10%) of Consolidated Net Income for such
period, prior to giving effect to such restoration.
CONSOLIDATED NET TANGIBLE ASSETS -- means, at any time, the remainder
of
(a) Consolidated Total Assets at such time minus
(b) the sum of
(i) Consolidated Current Liabilities at such time, plus
(ii) Intangible Assets of the Company and the Restricted
Subsidiaries as would be reflected on a consolidated balance sheet of
such Persons at such time.
CONSOLIDATED SENIOR FUNDED DEBT -- means, at any time, Funded Debt of
the Company and the Restricted Subsidiaries, other than Subordinated Funded
Debt, determined on a consolidated basis for such Persons at such time.
CONSOLIDATED SUBORDINATED FUNDED DEBT -- means, at any time, the
aggregate amount of Subordinated Funded Debt of the Company and the
Restricted Subsidiaries, determined on a consolidated basis for such
Persons at such time.
CONSOLIDATED TANGIBLE NET WORTH -- means, at any time, the result of
(a) the shareholders' equity of the Company and its Subsidiaries,
minus
(b) the retained earnings of the Unrestricted Subsidiaries, minus
(c) all Intangible Assets of the Company and the Subsidiaries,
in each case as would be reflected on a consolidated balance sheet of such
Persons at such time.
CONSOLIDATED TOTAL ASSETS -- means, at any time, all assets of the
Company and the Restricted Subsidiaries, determined on a consolidated basis
for such Persons at such time.
CONSOLIDATED TOTAL DEBT -- means, at any time, the aggregate amount of
Funded Debt and Current Debt of the Company and the Restricted
Subsidiaries, determined on a consolidated basis for such Persons at such
time.
CONTROL EVENT -- means the execution of any written agreement that,
when fully performed by the parties thereto, would result in a Change in
Control.
CREDIT ACCEPTANCE CORPORATION 46 NOTE PURCHASE AGREEMENT
<PAGE> 51
CONTROL PREPAYMENT DATE -- Section 4.3(a).
CREDIT AGREEMENT -- means the Credit Agreement described in Part
2.2(b) of Annex 3, as may be amended, restated or otherwise modified from
time to time.
CURRENT DEBT -- means, with respect to any Person, at any time, all
Debt of such Person other than Funded Debt.
DEBT -- means, with respect to any Person, without duplication:
(a) its liabilities for borrowed money (whether or not evidenced
by a Security);
(b) any liabilities secured by any Lien existing on Property
owned by such Person (whether or not such liabilities have been
assumed);
(c) its liabilities in respect of Capital Leases;
(d) the present value of all payments due under any arrangement
for retention of title or any conditional sale agreement (other than a
Capital Lease) discounted at the implicit rate, if known, with respect
thereto or, if unknown, at eight and eighty-seven one-hundredths
percent (8.87%) per annum; and
(e) its Guaranties of any liabilities of another Person
constituting liabilities of a type set forth above.
Dealer holdbacks shall not be considered Debt of the Company.
DEFAULT -- means an event or condition the occurrence of which would,
with the lapse of time or the giving of notice or both, become an Event of
Default.
DOL -- means the Department of Labor and any successor agency.
DOLLARS or $ -- means United States of America dollars.
ENVIRONMENTAL PROTECTION LAWS -- means any federal, state, county,
regional or local law, statute or regulation (including, without
limitation, CERCLA, RCRA and SARA) enacted in connection with or relating
to the protection or regulation of the environment, including, without
limitation, those laws, statutes and regulations regulating the disposal,
removal, production, storing, refining, handling, transferring, processing
or transporting of Hazardous Substances, and any regulations issued or
promulgated in connection with such statutes by any Governmental Authority,
and any orders, decrees or judgments issued by any court of competent
jurisdiction in connection with any of the foregoing.
As used in this definition:
CREDIT ACCEPTANCE CORPORTATION 47 NOTE PURCHASE AGREEMENT
<PAGE> 52
CERCLA -- means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended from time to time
(by SARA or otherwise), and all rules and regulations promulgated in
connection therewith.
RCRA -- means the Resource Conservation and Recovery Act of 1976,
as amended from time to time, and all rules and regulations
promulgated in connection therewith.
SARA -- means the Superfund Amendments and Reauthorization Act of
1986, as amended from time to time, and all rules and regulations
promulgated in connection therewith.
ERISA -- means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
ERISA AFFILIATE -- means any corporation or trade or business that:
(a) is a member of the same controlled group of corporations
(within the meaning of section 414(b) of the IRC) as the Company; or
(b) is under common control (within the meaning of section 414(c)
of the IRC) with the Company.
EVENT OF DEFAULT -- Section 8.1.
EXCHANGE ACT -- means the Securities Exchange Act of 1934, as amended.
EXCLUDED TRANSFERS -- Section 6.8(a).
FAIR MARKET VALUE -- means, at any time, with respect to any Property,
the sale value of such Property that would be realized in an arm's- length
sale at such time between an informed and willing buyer and an informed and
willing seller under no compulsion to buy or sell, respectively.
FOREIGN PENSION PLAN -- means any plan, fund or other similar program
(a) established or maintained outside of the United States of
America by any one or more of the Company or the Subsidiaries
primarily for the benefit of the employees (substantially all of whom
are aliens not residing in the United States of America) of the
Company or such Subsidiaries which plan, fund or other similar program
provides for retirement income for such employees or results in a
deferral of income for such employees in contemplation of retirement,
and
(b) not otherwise subject to ERISA.
401(K) PLAN -- Section 2.12(a).
CREDIT ACCEPTANCE CORPORTATION 48 NOTE PURCHASE AGREEMENT
<PAGE> 53
FUNDED DEBT -- means, at any time of determination, with respect to
any borrower, all Debt of such borrower that is expressed to mature more
than one (1) year from the date of the creation thereof or that is
extendible or renewable at the option of such borrower to a time more than
one (1) year after the date of the creation thereof (whether or not at such
time of determination such Debt is payable within one (1) year).
GAAP -- means accounting principles as promulgated from time to time
in statements, opinions and pronouncements by the American Institute of
Certified Public Accountants and the Financial Accounting Standards Board
and in such statements, opinions and pronouncements of such other entities
with respect to financial accounting of for-profit entities as shall be
accepted by a substantial segment of the accounting profession in the
United States.
GOVERNMENTAL AUTHORITY -- means:
(a) the government of
(i) the United States of America and any state or other
political subdivision thereof, or
(ii) any other jurisdiction (y) in which the Company or any
Subsidiary conducts all or any part of its business or (z) that
asserts jurisdiction over the conduct of the affairs or
Properties of the Company or any Subsidiary; and
(b) any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any such
government.
GUARANTY -- means, with respect to any Person (for the purposes of
this definition, the "Guarantor"), any obligation (except the endorsement
in the ordinary course of business of negotiable instruments for deposit or
collection) of the Guarantor guaranteeing or in effect guaranteeing
(including, without limitation, by means of a surety bond, letter of credit
or other similar instrument, whether or not designated as a "guaranty") any
indebtedness, dividend or other obligation of any other Person (the
"Primary Obligor") in any manner, whether directly or indirectly,
including, without limitation, obligations incurred through an agreement,
contingent or otherwise, by the Guarantor:
(a) to purchase such indebtedness or obligation or any Property
constituting security therefor;
(b) to advance or supply funds
(i) for the purpose of payment of such indebtedness or
obligation, or
(ii) to maintain working capital or other balance sheet (or
statement of financial condition) condition or any income
statement
CREDIT ACCEPTANCE CORPORTATION 49 NOTE PURCHASE AGREEMENT
<PAGE> 54
condition of the Primary Obligor or otherwise to advance or make
available funds for the purchase or payment of such indebtedness
or obligation;
(c) to lease Property or to purchase Securities or other Property
or services primarily for the purpose of assuring the owner of such
indebtedness or obligation of the ability of the Primary Obligor to
make payment of the indebtedness or obligation; or
(d) otherwise to assure the owner of the indebtedness or
obligation of the Primary Obligor against loss in respect thereof.
For purposes of computing the amount of any Guaranty in connection with any
computation of indebtedness or other liability, it shall be assumed that
the indebtedness or other liabilities that are the subject of such Guaranty
are direct obligations of the issuer of such Guaranty. Without limiting
the generality of the foregoing, it is agreed and understood that each
general partner of a partnership shall be deemed to be a Guarantor of all
indebtedness and other obligations of such partnership and such partnership
shall be deemed to be the Primary Obligor in respect of such indebtedness
and other obligations. For purposes of the immediately preceding sentence,
a Person shall be deemed to be a general partner of any so-called "joint
venture" or other arrangement (whether or not constituting a partnership),
and such joint venture or other arrangement shall be deemed to be a
partnership, if, pursuant to applicable law, by contract or otherwise, such
Person is liable, directly or indirectly, contingently or otherwise, either
individually or jointly with one or more other Persons, for the
indebtedness or other obligations of such joint venture or other
arrangement.
HAZARDOUS SUBSTANCES -- means any and all pollutants, contaminants,
toxic or hazardous wastes and any other substances that might pose a hazard
to health or safety, the removal of which may be required or the
generation, manufacture, refining, production, processing, treatment,
storage, handling, transportation, transfer, use, disposal, release,
discharge, spillage, seepage or filtration of which is or shall be, in each
of the foregoing cases, restricted, prohibited or penalized by any
applicable law.
INSTITUTIONAL INVESTOR -- means the Purchasers, any affiliate of any
of the Purchasers and any holder or beneficial owner of Notes that is an
"accredited investor" as defined in section 2(15) of the Securities Act or
a "qualified institutional buyer" as defined in 17 C.F.R Section 230.144A,
as amended from time to time.
INTANGIBLE ASSETS -- means any assets of a Person that would be
classified as "intangible assets" under GAAP, including, without
limitation, goodwill, trademarks, trade names, patents, copyrights,
franchises and other intangible assets of such Person.
INVESTMENT -- means any investment, made in cash or by delivery of
Property, by the Company or any Restricted Subsidiary:
(a) in any Person, whether by acquisition of stock, indebtedness
or other obligation or Security, or by loan, Guaranty, advance,
capital contribution or otherwise; or
CREDIT ACCEPTANCE CORPORATION 50 NOTE PURCHASE AGREEMENT
<PAGE> 55
(b) in any Property.
Investments shall be valued at cost less any net return of capital through
the sale or liquidation thereof or other return of capital thereon. Any
designation of a Subsidiary as an Unrestricted Subsidiary pursuant to
Section 6.17 shall be deemed to be an Investment, in an amount equal to the
net worth of such Subsidiary, at the time of such designation and any
Investments of a Person existing at the time it shall become a Restricted
Subsidiary shall be deemed to have been made immediately after such time.
IRC -- means the Internal Revenue Code of 1986, together with all
rules and regulations promulgated pursuant thereto, as amended from time to
time.
IRS -- means the Internal Revenue Service and any successor agency.
LETTER OF CREDIT FACILITY -- means a letter of credit issued by a
commercial bank for the account of the Company or a Restricted Subsidiary,
solely in support of the Company's or such Restricted Subsidiary's
obligations in respect of commercial paper issued by the Company or such
Restricted Subsidiary.
LIEN -- means any interest in Property securing an obligation owed to,
or a claim by, a Person other than the owner of the Property, whether such
interest is based on the common law, statute or contract, and including,
but not limited to, the security interest lien arising from a mortgage,
encumbrance, pledge, conditional sale, sale with recourse or a trust
receipt, or a lease, consignment or bailment for security purposes. The
term "Lien" includes, without limitation, reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions,
restrictions, leases and other title exceptions and encumbrances affecting
real Property and includes, without limitation, with respect to stock,
stockholder agreements, voting trust agreements, buy-back agreements and
all similar arrangements. For the purposes hereof, the Company and each
Subsidiary shall be deemed to be the owner of any Property that it shall
have acquired or holds subject to a conditional sale agreement, Capital
Lease or other arrangement pursuant to which title to the Property has been
retained by or vested in some other Person for security purposes, and such
retention or vesting is deemed a Lien. The term "Lien" does not include
negative pledge clauses in agreements relating to the borrowing of money or
the obligation of the Company (a) to remit monies held by it in connection
with dealer holdbacks, claims or refunds under insurance policies, or
claims or refunds under service contracts or (b) to make deposits in trust
or otherwise as required under reinsurance agreements or pursuant to state
regulatory requirements, unless the Company has encumbered its interest in
such monies or deposits or in other Property of the Company to secure such
obligations.
MAKE-WHOLE AMOUNT -- means, with respect to any date (a "Prepayment
Date") and any principal amount ("Prepaid Principal") of Notes required for
any reason to be paid prior to the regularly scheduled maturity thereof on
such Prepayment Date, the greater of
(a) Zero Dollars ($0), and
CREDIT ACCEPTANCE CORPORATION 51 NOTE PURCHASE AGREEMENT
<PAGE> 56
(b) (i) the sum of the present values of the then remaining
scheduled payments of principal and interest that would be
payable in respect of such Prepaid Principal but for such
prepayment or acceleration, minus
(ii) the sum of
(A) the amount of such Prepaid Principal, plus
(B) the amount of interest accrued on such Prepaid
Principal since the scheduled interest payment date
immediately preceding such Prepayment Date.
In determining such present values, a discount rate equal to the Make-Whole
Discount Rate with respect to such Prepayment Date and Prepaid Principal
divided by two (2), and a discount period of six (6) months of thirty (30)
days each, shall be used.
As used in this definition:
Make-Whole Discount Rate -- means, with respect to any Prepayment
Date and Prepaid Principal, the sum of
(a) the per annum percentage rate (rounded to the nearest
three (3) decimal places) equal to the bond equivalent yield to
maturity derived from the Bloomberg Rate with respect to such
Prepaid Principal, or if such Bloomberg Rate is not then
available, the Applicable H.15 Rate, in either case, determined
as of the date that is two (2) Business Days prior to such
Payment Date, plus
(b) fifty one-hundredths percent (0.50%) per annum.
For purposes of clause (a) of the preceding sentence, if no United
States Treasury obligation with a Treasury Constant Maturity
corresponding exactly to the Weighted Average Life to Maturity of such
Prepaid Principal is listed, the yields for the two (2) published
United States Treasury obligations with Treasury Constant Maturities
most closely corresponding to such Weighted Average Life to Maturity
(one (1) with a longer maturity and one (1) with a shorter maturity,
if available) shall be calculated pursuant to the immediately
preceding sentence and the Make-Whole Discount Rate shall be
interpolated or extrapolated from such yields on a straight-line
basis.
Applicable H.15 -- means, at any time, United States Federal
Reserve Statistical Release H.15(519) or its successor publication
then most recently published and available to the public or, if no
such successor publication is available, then any other source of
current information in respect of interest rates on securities of the
United States of America that is generally available and, in the
judgment of the Required Holders, provides information reasonably
comparable to the H.15(519) report.
CREDIT ACCEPTANCE CORPORATION 52 NOTE PURCHASE AGREEMENT
<PAGE> 57
Applicable H.15 Rate -- means, at any time with respect to any Prepaid
Principal, the then most current annual yield to maturity of the
hypothetical United States Treasury obligation listed in the Applicable
H.15 for the then most recently available day in such Applicable H.15 with
a Treasury Constant Maturity (as defined in such Applicable H.15) equal to
the Weighted Average Life to Maturity of such Prepaid Principal determined
as of such Prepayment Date. If no such United States Treasury obligation
with a Treasury Constant Maturity corresponding exactly to such Weighted
Average Life to Maturity is listed, then the yields for the two (2)
published United States Treasury obligations with Treasury Constant
Maturities most closely corresponding to such Weighted Average Life to
Maturity (one (1) with a longer maturity and one (1) with a shorter
maturity, if available) shall be calculated pursuant to the immediately
preceding sentence and the Make-Whole Discount Rate shall be interpolated
or extrapolated from such yields on a straight-line basis.
Bloomberg Rate -- means, on any date, with respect to any Prepaid
Principal, the yields reported, as of 10:00 A.M. (New York City time) on
such date with respect to such Prepaid Principal, on the display designated
as "UST" on the Bloomberg Financial Market Service (or such other display
as may replace Page UST on the Bloomberg Financial Market Service) for
actively traded U.S. Treasury securities having a maturity equal to the
Weighted Average Life to Maturity of such Prepaid Principal as of such
date. If no such U.S. Treasury security with a maturity corresponding
exactly to the Weighted Average Life to Maturity of such Prepaid Principal
is reported, then the yields for the two (2) U.S. Treasury securities with
maturities most closely corresponding to the Weighted Average Life to
Maturity of such Prepaid Principal (one (1) with a longer maturity and one
(1) with a shorter maturity, if available) shall be calculated pursuant to
the immediately preceding sentence and the Make-Whole Discount Rate shall
be interpolated or extrapolated from such yields on a straight-line basis.
Weighted Average Life to Maturity -- means, with respect to any
Prepayment Date and Prepaid Principal, the number of years obtained by
dividing the Remaining Dollar-Years of such Prepaid Principal determined on
such Prepayment Date by such Prepaid Principal.
Remaining Dollar-Years -- means, with respect to any Prepayment Date
and Prepaid Principal, the result obtained by
(a) multiplying, in the case of each required payment of
principal (including payment at maturity) that would be payable in
respect of such Prepaid Principal but for such prepayment,
(i) an amount equal to such required payment of principal,
by
(ii) the number of years (calculated to the nearest
one-twelfth (1/12)) that will elapse between such Prepayment Date
and
CREDIT ACCEPTANCE CORPORATION 53 NOTE PURCHASE AGREEMENT
<PAGE> 58
the date such required principal payment would be due if
such Prepaid Principal had not been so prepaid, and
(b) calculating the sum of each of the products obtained in
the preceding subsection (a).
MANDATORY PRINCIPAL AMORTIZATION PAYMENT -- Section 4.1.
MARGIN SECURITY -- means "margin stock" within the meaning of
Regulations G, T, U and X of the Board of Governors of the Federal Reserve
System, 12 C.F.R., Chapter II, as amended from time to time.
MATERIAL ADVERSE EFFECT -- means a material adverse effect on the
business, profits, Properties or financial condition of the Company and the
Restricted Subsidiaries, taken as a whole, or on the ability of the Company
to perform its obligations set forth herein and in the Notes.
MULTIEMPLOYER PLAN -- means any "multiemployer plan" (as defined in
section 3 of ERISA) in respect of which the Company or any ERISA Affiliate
is an "employer" (as defined in section 3 of ERISA).
MULTIPLE EMPLOYER PENSION PLAN -- means any "employee benefit plan"
within the meaning of section 3(3) of ERISA (other than a Multiemployer
Plan), subject to Title IV of ERISA, constituting a "single-employer plan"
(as defined in section 4001 of ERISA) which has two (2) or more
"contributing sponsors" (as defined in section 4001 of ERISA), at least two
(2) of which are not under "common control" (as defined in section 4001 of
ERISA) and to which the Company or any ERISA Affiliate contribute.
NET DEALER HOLDBACKS -- means, at any time, (a) dealer holdbacks minus
(b) Advances, as such amounts would appear in the footnotes to the
financial statements of the Company and the Restricted Subsidiaries
prepared in accordance with GAAP at such time.
As used in this definition:
Advances -- means, at any time, the dollar amount of advances, as
such amount would appear in the footnotes to the financial statements
of the Company and the Restricted Subsidiaries prepared in accordance
with GAAP at such time, provided that Advances shall not include
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 the Restricted Subsidiaries prepared in
accordance with GAAP at such time.
Charged-Off Advances -- means, with respect to an Established
Dealer, at any time, the dollar amount of the advance balance related
to the pool of
CREDIT ACCEPTANCE CORPORATION 54 NOTE PURCHASE AGREEMENT
<PAGE> 59
installment contract receivables of such Established Dealer which
exceeds the Trailing Twelve Months Payments for such pool multiplied
by three (3).
Established Dealer -- means, at any time, a dealer that has
participated in the Company's program of financing and collecting
installment contract receivables for the immediately preceding period
of twelve (12) consecutive complete calendar months and has an advance
balance in excess of Ten Thousand Dollars ($10,000) at such time.
Trailing Twelve Months Payments -- means, at any time, the gross
amount of payments on installment contract receivables received by the
Company for the account of an Established Dealer during the
immediately preceding period of twelve (12) consecutive complete
calendar months.
NET INSTALLMENT CONTRACT RECEIVABLES -- means, at any time,
installment contract receivables, net, as such amount would appear on a
consolidated balance sheet of the Company and the Restricted Subsidiaries
prepared in accordance with GAAP at such time and computed as the result of
(a) gross installment contract receivables minus (b) unearned finance
charges minus (c) allowance for credit losses.
NON-RECOURSE DEBT -- means Debt of a partnership, joint venture or
similar entity in which the Company or a Restricted Subsidiary is a
participant, so long as the holder or holders of such Debt shall have no
rights or recourse against any Property of the Company or any Restricted
Subsidiary, other than Property used solely in connection with such
partnership, joint venture or similar entity.
NOTE PURCHASE AGREEMENTS -- Section 1.2(c).
NOTES -- Section 1.1.
OPERATING LEASE -- means, with respect to any Person, any lease other
than a Capital Lease.
OPERATING RENTALS -- means all fixed payments that the lessee is
required to make by the terms of any Operating Lease.
OSHA -- means the Occupational Safety and Health Act of 1970, together
with all rules, regulations and standards promulgated pursuant thereto, all
as amended from time to time.
OTHER PURCHASERS -- Section 1.2(c).
PBGC -- means the Pension Benefit Guaranty Corporation and any
successor corporation or governmental agency.
PENSION PLAN -- means, at any time, any "employee pension benefit
plan" (as defined in section 3 of ERISA) maintained at such time by the
Company or any ERISA
CREDIT ACCEPTANCE CORPORATION 55 NOTE PURCHASE AGREEMENT
<PAGE> 60
Affiliate for employees of the Company or such ERISA Affiliate, excluding
any Multiemployer Plan, but including any Multiple Employer Pension Plan.
PERSON -- means an individual, sole proprietorship, partnership,
corporation, limited liability company, trust, joint venture,
unincorporated organization, or a government or agency or political
subdivision thereof.
PLACEMENT AGENT -- means William Blair & Company, L.L.C.
PLACEMENT MEMORANDUM -- Section 2.1.
PROPERTY -- means any interest in any kind of property or asset,
whether real, personal or mixed, and whether tangible or intangible.
PURCHASE MONEY LIEN -- means a Lien held by any Person (whether or not
the seller of such Property) on tangible Property (or a group of related
items of Property the substantial portion of which is tangible) acquired or
constructed by the Company or any Restricted Subsidiary, which Lien secures
all or a portion of the related purchase price or construction costs of
such Property, provided that such Lien
(a) is created contemporaneously with, or within thirty (30) days
of, such acquisition or construction,
(b) encumbers only Property purchased or constructed after the
Closing Date and acquired with the proceeds of the Debt secured
thereby, and
(c) is not thereafter extended to any other Property.
PURCHASERS -- means you and the Other Purchasers.
REQUIRED HOLDERS -- means, at any time, the holders of at least
sixty-six and two-thirds percent (66- 2/3%) in principal amount of the
Notes at the time outstanding (exclusive of Notes then owned by any one or
more of the Company, any Restricted Subsidiary and any Affiliate).
RESTRICTED INVESTMENT -- means, at any time, all Investments except
the following:
(a) Investments in Property to be used in the ordinary course of
business of the Company and the Restricted Subsidiaries;
(b) subject to clause (k) of this definition, Investments in
receivables and advances arising from the sale of goods and services
in the ordinary course of business of the Company and the Restricted
Subsidiaries;
(c) Investments by the Company in the ordinary course of its
business in one or more Restricted Subsidiaries or any corporation
that concurrently with such Investment becomes a Restricted
Subsidiary, provided that the aggregate
CREDIT ACCEPTANCE CORPORATION 56 NOTE PURCHASE AGREEMENT
<PAGE> 61
amount of all Investments made pursuant to this paragraph (c) and paragraph
(d) of this definition (excluding Guaranties by the Company of Debt of
Restricted Subsidiaries) does not at any time exceed twenty-five percent
(25%) of Consolidated Tangible Net Worth (it being understood that loans
and advances to any Restricted Subsidiary by any Person other than the
Company or any other Restricted Subsidiary, regardless of whether such
loans and advances are guaranteed by the Company or any other Restricted
Subsidiary, shall not be taken into account in determining the aggregate
amount of Investments made pursuant to this paragraph (c) and paragraph (d)
of this definition);
(d) Investments consisting of loans by the Company or any Restricted
Subsidiary, and advances from the Company or any Restricted Subsidiary, in
each case to the Company or any Restricted Subsidiary in the ordinary
course of business of the Company and the Restricted Subsidiaries, provided
that the aggregate amount of all Investments made pursuant to paragraph (c)
of this definition and this paragraph (d) (excluding Guarantees by the
Company of Debt of Restricted Subsidiaries) does not at any time exceed
twenty-five percent (25%) of Consolidated Tangible Net Worth (it being
understood that loans and advances to any Restricted Subsidiary by any
Person other than the Company or any other Restricted Subsidiary,
regardless of whether such loans and advances are guaranteed by the Company
or any other Restricted Subsidiary, shall not be taken into account in
determining the aggregate amount of Investments made pursuant to this
paragraph (d) and paragraph (c) of this definition);
(e) Investments in direct obligations of, or obligations guarantied
by, the United States of America or any agency of the United States of
America the obligations of which agency carry the full faith and credit of
the United States of America, provided that such obligations (other than
Investments by CAC Life in such obligations made to match liabilities
incurred in the ordinary course of business) mature within one (1) year
from the date of acquisition thereof;
(f) Investments in any obligation of any state or municipality thereof
that at the time of acquisition thereof have an assigned rating of "A" or
higher by Standard & Poor's Ratings Group (or an equivalent or higher
rating by another credit rating agency of recognized national standing in
the United States of America), provided that such obligations (other than
Investments by CAC Life in such obligations made to match liabilities
incurred in the ordinary course of business) mature within one (1) year
from the date of acquisition thereof;
(g) Investments in negotiable certificates of deposit issued by
commercial banks organized under the laws of the United States of America
or any state thereof, having capital, surplus and undivided profits
aggregating at least Fifty Million Dollars ($50,000,000) and the long-term
unsecured debt obligations of which are rated "A" or higher by Standard &
Poor's Ratings Group (or an equivalent or higher rating by another credit
rating agency of recognized national standing in the United States of
America), provided that such certificates of deposit (other than
Investments by CAC Life in such certificates of deposit
CREDIT ACCEPTANCE CORPORATION 57 NOTE PURCHASE AGREEMENT
<PAGE> 62
made to match liabilities incurred in the ordinary course of business)
mature within one (1) year from the date of acquisition thereof;
(h) Investments in corporate debt obligations of corporations
organized under the laws of the United States of America or any state
thereof that at the time of acquisition thereof have an assigned
rating of "A" or higher by Standard & Poor's Ratings Group (or an
equivalent or higher rating by another credit rating agency of
recognized national standing in the United States of America);
(i) Investments in preferred stock of corporations organized
under the laws of the United States of America or any state thereof
that have an assigned rating of "A" or higher by Standard & Poor's
Ratings Group (or an equivalent or higher rating by another credit
rating agency of recognized national standing in the United States of
America);
(j) Investments in loans or advances, in the ordinary course
of business and necessary to carrying on the business of the Company
or any Restricted Subsidiary, to officers, directors and employees of
the Company and the Restricted Subsidiaries, provided that the
aggregate amount of all such Investments does not at any time exceed
One Million Dollars ($1,000,000);
(k) Investments in receivables arising from floor plan
receivables and note receivables due from dealers in the ordinary
course of business of the Company and the Restricted Subsidiaries,
provided that the aggregate amount of all such Investments does not at
any time exceed ten percent (10%) of Consolidated Total Assets; and
(l) Investments not otherwise included in clause (a) through
clause (k) of this definition, provided that the aggregate amount of
all such Investments does not at any time exceed One Million Dollars
($1,000,000).
RESTRICTED SUBSIDIARY -- means any Subsidiary (a) in respect of which
the Company owns, directly or indirectly, (i) at least eighty percent (80%) (by
number of votes) of each class of such Subsidiary's Voting Stock, or (ii) in the
case of CAC Insurance Agency of Ohio, Inc., at least 99% of the shares of
capital stock issued and outstanding of all classes in the aggregate, (b) that
is organized under the laws of the United States of America or any jurisdiction
thereof, the United Kingdom or any jurisdiction thereof (including, without
limitation, England, Scotland and Wales), Canada or any jurisdiction thereof or
the Republic of Ireland or any jurisdiction thereof, and that conducts all of
its business in, and has all of its Property located in, the United States of
America, the United Kingdom, Canada and/or the Republic of Ireland and (c) that
is not an Unrestricted Subsidiary. Any Restricted Subsidiary in compliance with
the requirements set forth in the first sentence of this definition and
designated as a Restricted Subsidiary on the Closing Date shall be deemed to
have been a Restricted Subsidiary for all periods prior to the Closing Date.
Notwithstanding any provision in Section 6.17 to the contrary, CAC International
and CAC UK shall be deemed Restricted Subsidiaries as of October 1, 1995 and CAC
of Canada, Limited and any Subsidiary
CREDIT ACCEPTANCE CORPORATION 58 NOTE PURCHASE AGREEMENT
<PAGE> 63
formed by the Company to provide property and casualty insurance shall each be
deemed a Restricted Subsidiary as of the date of its formation.
RESTRICTED SUBSIDIARY STOCK -- Section 6.8(b).
SALE AND LEASEBACK TRANSACTION -- means any transaction or series of
related transactions in which the Company or a Restricted Subsidiary sells or
transfers any of its Property to any Person (other than to the Company or to a
Restricted Subsidiary) and concurrently with such sale or transfer, or
thereafter, rents or leases such transferred Property or substantially similar
Property from any Person.
SECURITIES ACT -- means the Securities Act of 1933, as amended.
SECURITY -- means "security" as defined in section 2(1) of the Securities
Act.
SENIOR FINANCIAL OFFICER -- means the chief financial officer, the
principal accounting officer, the controller or the treasurer of the Company.
SENIOR OFFICER -- means the chief executive officer, the president or the
chief financial officer of the Company.
STANDARD & POOR'S RATINGS GROUP -- means Standard & Poor's Ratings Group, a
division of McGraw-Hill, Inc.
SUBORDINATED DEBT -- means, at any time, unsecured Debt of the Company that
is junior and subordinate in right of payment to the Notes on terms and
conditions satisfactory to the Required Holders, as evidenced by their written
consent.
SUBORDINATED FUNDED DEBT -- means, at any time, Funded Debt of the Company
or any Restricted Subsidiary that is:
(a) junior and subordinate in right of payment to the Notes on terms
and conditions satisfactory to the Required Holders, as evidenced by their
written consent thereto,
(b) not subject to any sinking fund or required prepayment provisions
that would result in its having at any time an average life to maturity,
computed in accordance with accepted financial practice, shorter than the
Weighted Average Life to Maturity (as defined in the definition of
"Make-Whole Amount") of the Notes at such time or a final maturity earlier
than the stated final maturity of the Notes, and
(c) not secured by a Lien on the Property of the Company or any
Restricted Subsidiary (whether or not such Funded Debt is recourse to the
Company or any Restricted Subsidiary).
CREDIT ACCEPTANCE CORPORATION 59 NOTE PURCHASE AGREEMENT
<PAGE> 64
SUBSIDIARY -- means, at any time, a corporation of which the Company
owns, directly or indirectly, more than fifty percent (50%) (by number of
votes) of each class of the Voting Stock at such time.
SURVIVING CORPORATION -- Section 6.7.
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.
TRANSFERS -- Section 6.8(a).
UNRESTRICTED SUBSIDIARY -- means any Subsidiary that, as of the date of
this Agreement, is designated in Part 6.17(a) of Annex 3 as an
Unrestricted Subsidiary or, after the date of this Agreement, has been
designated as an Unrestricted Subsidiary as provided in Section 6.17.
VOTING STOCK -- means capital stock of any class or classes of a
corporation the holders of which are ordinarily, in the absence of
contingencies, entitled to elect corporate directors (or Persons
performing similar functions).
WHOLLY-OWNED RESTRICTED SUBSIDIARY -- means, at any time, any
Restricted Subsidiary one hundred percent (100%) of all of the equity
Securities (except directors' qualifying shares) and voting Securities of
which are owned by, and all of the Debt of which is held by, any one or
more of the Company and the other Wholly-Owned Restricted Subsidiaries at
such time.
9.2 GAAP.
Where the character or amount of any asset or liability or item of income
or expense, or any consolidation or other accounting computation is required to
be made for any purpose hereunder, it shall, unless otherwise specified, be done
in accordance with GAAP, provided, that if any term defined herein includes or
excludes amounts, items or concepts that would not be included in or excluded
from such term if such term were defined with reference solely to GAAP, such
term will be deemed to include or exclude such amounts, items or concepts as set
forth herein.
9.3 DIRECTLY OR INDIRECTLY.
Where any provision herein refers to action to be taken by any Person, or
that such Person is prohibited from taking, such provision shall be applicable
whether such action is taken directly or indirectly by such Person, including
actions taken by or on behalf of any partnership in which such Person is a
general partner.
CREDIT ACCEPTANCE CORPORATION 60 NOTE PURCHASE AGREEMENT
<PAGE> 65
9.4 SECTION HEADINGS AND TABLE OF CONTENTS AND CONSTRUCTION.
(A) SECTION HEADINGS AND TABLE OF CONTENTS, ETC. The titles of the
Sections of this Agreement and the Table of Contents of this Agreement appear as
a matter of convenience only, do not constitute a part hereof and shall not
affect the construction hereof. The words "herein," "hereof," "hereunder" and
"hereto" refer to this Agreement as a whole and not to any particular Section or
other subdivision. Unless otherwise specified, references to Sections are to
Sections of this Agreement, references to Annexes are to Annexes to this
Agreement and references to Exhibits are to Exhibits to this Agreement.
(B) CONSTRUCTION. Each covenant contained herein shall be construed
(absent an express contrary provision herein) as being independent of each other
covenant contained herein, and compliance with any one covenant shall not
(absent such an express contrary provision) be deemed to excuse compliance with
one or more other covenants.
9.5 GOVERNING LAW.
THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, INTERNAL CONNECTICUT LAW.
10. MISCELLANEOUS
10.1 COMMUNICATIONS.
(A) METHOD; ADDRESS. All communications hereunder or under the Notes shall
be (x) in writing, (y) hand delivered or deposited into the United States mail
(registered or certified mail), postage prepaid and (z) sent by overnight
courier or by facsimile transmission, and shall be addressed,
(i) if to the Company,
Credit Acceptance Corporation
25505 West Twelve Mile Road Suite
3000 Southfield, Michigan 48034-8339
Attention: Brett A. Roberts
Chief Financial Officer
Facsimile: (810) 827-8513
or at such other address as the Company shall have furnished in writing to
all holders of the Notes at the time outstanding, and
CREDIT ACCEPTANCE CORPORATION 61 NOTE PURCHASE AGREEMENT
<PAGE> 66
(ii) if to any of the holders of the Notes,
(A) if such holders are the Purchasers, at their respective
addresses set forth on Annex 1, and further including any parties
referred to on Annex 1 that are required to receive notices in
addition to such holders of the Notes, and
(B) if such holders are not the Purchasers, at their respective
addresses set forth in the register for the registration and transfer
of Notes maintained pursuant to Section 6.13,
or to any such party at such other address as such party may designate
by notice duly given in accordance with this Section 10.1 to the Company
(which other address shall be entered in such register).
(b) WHEN GIVEN. Any communication so addressed and deposited in the United
States mail, postage prepaid, by registered or certified mail (in each case,
with return receipt requested) shall be deemed to be received on the third (3rd)
succeeding Business Day after the day of such deposit (not including the date of
such deposit). Any communication so addressed and otherwise delivered shall be
deemed to be received when actually received at the address of the addressee.
(c) CERTIFICATES, ETC. Whenever under this Agreement any certificate or
other writing is given by any director, officer or employee of the Company or
any Subsidiary, such certificate or other writing shall be delivered by such
director, officer or employee on behalf of the Company or such Subsidiary in his
or her capacity as such director, officer or employee, and not in his or her
individual capacity.
10.2 REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating hereto, including, without limitation,
(a) consents, waivers and modifications that may hereafter be executed,
(b) documents received by you at the closing of your purchase of the Notes
(except the Notes themselves), and
(c) financial statements, certificates and other information previously or
hereafter furnished to you or any other holder of Notes,
may be reproduced by any holder of Notes by any photographic, photostatic,
microfilm, micro-card, miniature photographic, digital or other similar process
and each holder of Notes may destroy any original document so reproduced. The
Company agrees and stipulates that any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not such
reproduction was made by such holder of Notes in the regular course of business)
and that any enlargement, facsimile or further reproduction of such reproduction
shall likewise be admissible
CREDIT ACCEPTANCE CORPORATION 62 NOTE PURCHASE AGREEMENT
<PAGE> 67
in evidence. Nothing in this Section 10.2 shall prohibit the Company or any
holder of Notes from contesting the validity or the accuracy of any such
reproduction.
10.3 SURVIVAL.
(a) All warranties, representations, certifications and covenants made by
the Company herein or in any certificate or other instrument delivered by it or
on its behalf hereunder shall be considered to have been relied upon by you and
shall survive the delivery to you of the Notes regardless of any investigation
made by you or on your behalf. All statements in any such certificate or other
instrument shall constitute warranties and representations by the Company
hereunder.
(b) All warranties and representations made by you herein shall be
considered to have been relied upon by the Company and shall survive the
execution and delivery of this Agreement regardless of any investigation made by
the Company or on its behalf.
10.4 SUCCESSORS AND ASSIGNS.
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties hereto. Subject to the last
sentence of Section 5.1, the provisions hereof are intended to be for the
benefit of all holders, from time to time, of Notes, and shall be enforceable by
any such holder, whether or not an express assignment to such holder of rights
hereunder shall have been made by you or your successor or assign.
10.5 AMENDMENT AND WAIVER.
(A) REQUIREMENTS. This Agreement may be amended, and the observance of any
term hereof may be waived, with (and only with) the written consent of the
Company and the Required Holders; provided that no such amendment or waiver of
any of the provisions of Section 1 through Section 4, inclusive, or any defined
term used therein, shall be effective as to any holder of Notes unless consented
to by such holder in writing; and provided further that no such amendment or
waiver shall, without the written consent of the holders of all Notes (exclusive
of Notes held by the Company, any Subsidiary or any Affiliate) at the time
outstanding,
(i) subject to Section 8, change the amount or time of any prepayment
or payment of principal or Make-Whole Amount or the rate or time of payment
of interest,
(ii) amend Section 8,
(iii) amend the definition of Required Holders, or
(iv) amend this Section 10.5.
CREDIT ACCEPTANCE CORPORATION 63 NOTE PURCHASE AGREEMENT
<PAGE> 68
(b) SOLICITATION OF NOTEHOLDERS.
(I) SOLICITATION. The Company shall not solicit, request or
negotiate for or with respect to any proposed waiver or amendment of
any of the provisions hereof or the Notes unless each holder of the
Notes (irrespective of the amount of Notes then owned by it) shall be
provided by the Company with sufficient information to enable it to
make an informed decision with respect thereto. Executed or true and
correct copies of any waiver or consent effected pursuant to the
provisions of this Section 10.5 shall be delivered by the Company to
each holder of outstanding Notes immediately following the date on
which the same shall have been executed and delivered by all holders
of outstanding Notes required to consent or agree to such waiver or
consent.
(II) PAYMENT. The Company shall not, directly or indirectly,
pay or cause to be paid any remuneration, whether by way of
supplemental or additional interest, fee or otherwise, or grant any
security, to any holder of Notes as consideration for or as an
inducement to the entering into by any holder of Notes of any waiver
or amendment of any of the terms and provisions hereof unless such
remuneration is concurrently paid, or security is concurrently
granted, on the same terms, ratably to the holders of all Notes then
outstanding.
(III) SCOPE OF CONSENT. Any consent made pursuant to this
Section 10.5 by a holder of Notes that has transferred or has agreed
to transfer its Notes to the Company, any Subsidiary or any Affiliate
and has provided or has agreed to provide such written consent as a
condition to such transfer shall be void and of no force and effect
except solely as to such holder, and any amendments effected or
waivers granted or to be effected or granted that would not have been
or would not be so effected or granted but for such consent (and the
consents of all other holders of Notes that were acquired under the
same or similar conditions) shall be void and of no force and effect,
retroactive to the date such amendment or waiver initially took or
takes effect, except solely as to such holder.
(C) BINDING EFFECT. Except as provided in Section 10.5(b)(iii), any
amendment or waiver consented to as provided in this Section 10.5 shall
apply equally to all holders of Notes and shall be binding upon them and
upon each future holder of any Note and upon the Company whether or not
such Note shall have been marked to indicate such amendment or waiver.
No such amendment or waiver shall extend to or affect any obligation,
covenant, agreement, Default or Event of Default not expressly amended or
waived or impair any right consequent thereon.
(D) EXPENSES. The Company shall pay when billed your reasonable
expenses relating to the consideration, negotiation, preparation or
execution of any amendments, waivers or consents pursuant to the provisions
hereof (including, without limitation, the allocated cost of your counsel
who are your employees or your affiliates' employees), whether or not any
such amendments, waivers or consents are executed, including, without
limitation, any amendments, waivers or consents resulting from any
work-out, restructuring or similar proceedings relating to the performance
by the Company of its obligations under this Agreement or the Notes.
CREDIT ACCEPTANCE CORPORATION 64 NOTE PURCHASE AGREEMENT
<PAGE> 69
10.6 PAYMENTS ON NOTES.
(A) MANNER OF PAYMENT. The Company shall pay all amounts payable
with respect to each Note (without any presentment of such Notes and
without any notation of such payment being made thereon) by crediting,
by federal funds bank wire transfer, the account of the holder thereof
in any bank in the United States of America as may be designated
in writing by such holder, or in such other manner as may be reasonably
directed or to such other address in the United States of America as
may be reasonably designated in writing by such holder. Annex 1 shall
be deemed to constitute notice, direction or designation (as
appropriate) to the Company with respect to payments as aforesaid. In
the absence of such written direction, all amounts payable with respect
to each Note shall be paid by check mailed and addressed to the
registered holder of such Note at the address shown in the register
maintained by the Company pursuant to Section 5.1.
(B) PAYMENTS DUE ON HOLIDAYS. If any payment due on, or with
respect to, any Note shall fall due on a day other than a Business Day,
then such payment shall be made on the first (1st) Business Day
immediately preceding the day on which such payment shall have so
fallen due.
(C) PAYMENTS, WHEN RECEIVED. Any payment to be made to the
holders of Notes hereunder or under the Notes shall be deemed to have
been made on the Business Day such payment actually becomes available
to such holder at such holder's bank prior to 11:00 a.m. (local time
of such bank).
10.7 ENTIRE AGREEMENT; SEVERABILITY.
This Agreement constitutes the final written expression of all of the terms
hereof and is a complete and exclusive statement of those terms. In case any
one or more of the provisions contained in this Agreement or in any Note, or any
application thereof, shall be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein and therein, and any other application thereof, shall not in any way be
affected or impaired thereby.
10.8 DUPLICATE ORIGINALS, EXECUTION IN COUNTERPART.
Two (2) or more duplicate originals hereof may be signed by the parties,
each of which shall be an original but all of which together shall constitute
one and the same instrument. This Agreement may be executed in one or more
counterparts and shall be effective when at least one counterpart shall have
been executed by each party hereto, and each set of counterparts that,
collectively, show execution by each party hereto shall constitute one duplicate
original.
[REMAINDER OF PAGE INTENTIONALLY BLANK; NEXT PAGE IS SIGNATURE PAGE.]
CREDIT ACCEPTANCE CORPORATION 65 NOTE PURCHASE AGREEMENT
<PAGE> 70
If this Agreement is satisfactory to you, please so indicate by signing the
acceptance at the foot of a counterpart hereof and returning such counterpart to
the Company, whereupon this Agreement shall become binding between us in
accordance with its terms.
Very truly yours,
CREDIT ACCEPTANCE CORPORATION
By /s/ Richard E. Beckman
----------------------------------
Name: Richard E. Beckman
Title: President and
Chief Operating Officer
Accepted:
[Separately Executed by each
of the Following Purchasers]
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By /s/ Mark A. Ahmed
--------------------------------------------
Name: Mark A. Ahmed
Title: Managing Director
UNICARE LIFE & HEALTH INSURANCE COMPANY
By: Massachusetts Mutual Life Insurance Company
Its Investment Advisor
By /s/ Mark A. Ahmed
--------------------------------------------
Name: Mark A. Ahmed
Title: Managing Director
CM LIFE INSURANCE COMPANY
By /s/ MaryAnn McCarthy
------------------------------------------
Name: MaryAnn McCarthy
Title: Managing Director
CREDIT ACCEPTANCE CORPORATION 66 NOTE PURCHASE AGREEMENT
<PAGE> 71
NATIONWIDE LIFE INSURANCE COMPANY
By /s/ Michael D. Groseclose
-------------------------
Name: Michael D. Groseclose
Title: Associate Vice President
Corporate Fixed-Income Securities
PHOENIX HOME LIFE MUTUAL INSURANCE COMPANY
By /s/ Keith D. Robbins
--------------------
Name: Keith D. Robbins
Title: Vice President
ASSET ALLOCATION & MANAGEMENT COMPANY
AS AGENT FOR
CENTRAL STATES HEALTH & LIFE COMPANY OF OMAHA
By /s/ Kathy R. Lange
-----------------
Name: Kathy R. Lange
Title: Senior Portfolio Manager
ASSET ALLOCATION & MANAGEMENT COMPANY
AS AGENT FOR THE CHARLES SCHWAB TRUST COMPANY
FBO GUARANTY INCOME LIFE INSURANCE COMPANY
By /s/ Kathy R. Lange
-----------------
Name: Kathy R. Lange
Title: Senior Portfolio Manager
CREDIT ACCEPTANCE CORPORATION 67 NOTE PURCHASE AGREEMENT
<PAGE> 72
ASSET ALLOCATION & MANAGEMENT COMPANY
AS AGENT FOR
AMERICAN COMMUNITY MUTUAL INSURANCE
By /s/ Kathy R. Lange
-------------------
Name: Kathy R. Lange
Title: Senior Portfolio Manager
ASSET ALLOCATION & MANAGEMENT COMPANY
AS AGENT FOR
CENTRAL RE CORP. & PHOENIX
By /s/ Kathy R. Lange
------------------
Name: Kathy R. Lange
Title: Senior Portfolio Manager
ASSET ALLOCATION & MANAGEMENT COMPANY
AS AGENT FOR
LONE STAR LIFE INSURANCE COMPANY
By /s/ Kathy R. Lange
-------------------
Name: Kathy R. Lange
Title: Senior Portfolio Manager
ASSET ALLOCATION & MANAGEMENT COMPANY
AS AGENT FOR
OZARK NATIONAL LIFE INSURANCE COMPANY
By /s/ Kathy R. Lange
------------------
Name: Kathy R. Lange
Title: Senior Portfolio Manager
CREDIT ACCEPTANCE CORPORATION 68 NOTE PURCHASE AGREEMENT
<PAGE> 73
ASSET ALLOCATION & MANAGEMENT COMPANY
AS AGENT FOR
CSA FRATERNAL LIFE
By /s/ Kathy R. Lange
-------------------
Name: Kathy R. Lange
Title: Senior Portfolio Manager
ASSET ALLOCATION & MANAGEMENT COMPANY
AS AGENT FOR
KANAWHA INSURANCE COMPANY
By /s/ Kathy R. Lange
-------------------
Name: Kathy R. Lange
Title: Senior Portfolio Manager
ASSET ALLOCATION & MANAGEMENT COMPANY
AS AGENT FOR
OLD GUARD MUTUAL INSURANCE COMPANY
By /s/ Kathy R. Lange
-------------------
Name: Kathy R. Lange
Title: Senior Portfolio Manager
SECURITY BENEFIT LIFE INSURANCE COMPANY
By /s/ Steven M. Bowser
--------------------
Name: Steven M. Bowser
Title: Assistant Vice President
CREDIT ACCEPTANCE CORPORATION 69 NOTE PURCHASE AGREEMENT
<PAGE> 74
AID ASSOCIATION FOR LUTHERANS
By /s/ Alan D. Onstad
------------------
Name: Alan D. Onstad
Title: Assistant Vice President-Securities
GLOBE INDEMNITY COMPANY
By /s/ Leonard D. Davenport
--------------------
Name: Leonard D. Davenport, CFA
Title: Vice President
Manager, Fixed Income Securities Operations
Royal Investment Management Company
ROYAL INDEMNITY COMPANY
By /s/ Leonard D. Davenport
------------------------
Name: Leonard D. Davenport, CFA
Title: Vice President
Manager, Fixed Income Securities Operations
Royal Investment Management Company
SAFEGUARD INSURANCE COMPANY
By /s/ Leonard D. Davenport
------------------------
Name: Leonard D. Davenport, CFA
Title: Vice President
Manager, Fixed Income Securities Operations
Royal Investment Management Company
CREDIT ACCEPTANCE CORPORATION 70 NOTE PURCHASE AGREEMENT
<PAGE> 75
AMERICAN & FOREIGN INS. CO.
By /s/ Leonard D. Davenport
------------------------
Name: Leonard D. Davenport, CFA
Title: Vice President
Manager, Fixed Income Securities Operations
Royal Investment Management Company
NEWARK INSURANCE COMPANY
By /s/ Leonard D. Davenport
------------------------
Name: Leonard D. Davenport, CFA
Title: Vice President
Manager, Fixed Income Securities Operations
Royal Investment Management Company
COMBINED INSURANCE COMPANY OF AMERICA
By: Aon Advisors, Inc.
By /s/ Keith Lemmer
-------------------
Name: Keith Lemmer
Title: Senior Portfolio Manager
PAN-AMERICAN LIFE INSURANCE COMPANY
By /s/ F. Anderson Stone
---------------------
Name: F. Anderson Stone
Title: Vice President
Corporate Securities
CREDIT ACCEPTANCE CORPORATION 71 NOTE PURCHASE AGREEMENT
<PAGE> 76
ANNEX 1
INFORMATION AS TO PURCHASERS
<TABLE>
<CAPTION>
PURCHASER NAME MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
<S> <C>
Name in which to register Note MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
Note registration number; R-1; $8,500,000
Principal amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information Citibank, N.A.
111 Wall Street
New York, NY 10043
ABA # 021000089
For MassMutual Long Term Pool
Account No. 4067-3488
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal,
Make-Whole Amount and interest) of the
payment being made:
Contact name and telephone no.:
Address for notices related to Massachusetts Mutual Life Insurance Company
payments 1295 State Street
Springfield, MA 01111
Attention: Securities Custody and
Collection Department
F 381
With telephone advice of payment to the Securities
Custody and Collection Department of Massachusetts
Mutual Life Insurance Company at (413) 744-3878
Address for all other notices Massachusetts Mutual Life Insurance Company
1295 State Street
Springfield, MA 01111
Attention: Securities Investment Division
Instructions re: Delivery of Law Department of Purchaser
Notes
Other Instructions Signature Block:
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By:
----------------------------------------
Name:
Title:
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-1 NOTE PURCHASE AGREEMENT
<PAGE> 77
<TABLE>
<CAPTION>
PURCHASER NAME MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
<S> <C>
Tax identification number 04-1590850
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-2 NOTE PURCHASE AGREEMENT
<PAGE> 78
ANNEX 1
INFORMATION AS TO PURCHASERS (CONT.)
<TABLE>
<CAPTION>
PURCHASER NAME UNICARE LIFE & HEALTH INSURANCE COMPANY
<S> <C>
Name in which to register Note AUER & CO.
Note registration number; R-2; $3,000,000
Principal amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information Bankers Trust New York
ABA No.: 021-001-033
Account No.: 99-911-145
Ref: Unicare Life & Health Ins. Co.
A/C #093381
Accompanying information Name of Company: Credit Acceptance
Corporation Description of
Security: 7.99% Senior Notes Due
July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.:
Address for notices related to Bankers Trust Company
payments Attention: Private Placement Unit
P.O. Box 998
Bowling Green Station
New York, NY 10274
Re: UniCare Life & Health Ins. Co.
A/C #093381
With telephone advice of payment to Jeanie Jarvis at (818) 703-3547
Address for all other notices UniCare Life & Health Insurance Company
21555 Oxnard Street 7B
Woodland Hills, CA 91367
Instructions re: Delivery of Bankers Trust Company
Notes 16 Wall Street
Fourth Floor, Window 44
New York, NY 10005
Re: UniCare Life & Health Insurance Co.
A/C #093381
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-3 NOTE PURCHASE AGREEMENT
<PAGE> 79
<TABLE>
<CAPTION>
PURCHASER NAME UNICARE LIFE & HEALTH INSURANCE COMPANY
<S> <C>
Other Instructions Signature Block:
UNICARE LIFE & HEALTH INSURANCE COMPANY
By: Massachusetts Mutual Life Insurance Company
Its Investment Advisor
By:
-------------------------------------------------------------
Name:
Title: Managing Director
Tax identification number 52-0913817
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-4 NOTE PURCHASE AGREEMENT
<PAGE> 80
ANNEX 1
INFORMATION AS TO PURCHASERS (CONT.)
<TABLE>
<CAPTION>
PURCHASER NAME MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
<S> <C>
Name in which to register Note MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
Note registration number; R-3; $2,750,000
Principal amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information Chase Manhattan Bank, N.A.
4 Chase MetroTech Center
New York, NY 10081
ABA # 021000021
For MassMutual IFM Non-Traditional
Account # 910-2509073
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.:
Address for notices related to Massachusetts Mutual Life Insurance Company
payments 1295 State Street
Springfield, MA 01111
Attention: Securities Custody and
Collection Department
F 381
With telephone advice of payment to the Securities
Custody and Collection Department of Massachusetts Mutual Life
Insurance Company at (413) 744-3878
Address for all other notices Massachusetts Mutual Life Insurance Company
1295 State Street
Springfield, MA 01111
Attention: Securities Investment Division
Instructions re: Delivery of Law Department of Purchaser
Notes
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-5 NOTE PURCHASE AGREEMENT
<PAGE> 81
<TABLE>
<CAPTION>
PURCHASER NAME MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
<S> <C>
Other Instructions Signature Block:
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By:
------------------------------------------------------------
Name:
Title:
Tax identification number 04-1590850
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-6 NOTE PURCHASE AGREEMENT
<PAGE> 82
ANNEX 1
INFORMATION AS TO PURCHASERS (CONT.)
<TABLE>
<CAPTION>
PURCHASER NAME CM LIFE INSURANCE COMPANY
<S> <C>
Name in which to register Note CM LIFE INSURANCE COMPANY
Note registration number; R-4; $750,000
Principal amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information Citibank, N.A.
111 Wall Street
New York, NY 10043
ABA # 021000089
For Segment 43 - Universal Life
Account No. 4068-6561
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.:
Address for notices related to CM Life Insurance Company
payments c/o Massachusetts Mutual Life Insurance Company
1295 State Street
Springfield, MA 01111
Attention: Securities Custody and
Collection Department
F 381
With telephone advice of payment to the Securities
Custody and Collection Department of Massachusetts Mutual Life
Insurance Company at (413) 744-3878
Address for all other notices CM Life Insurance Company
c/o Massachusetts Mutual Life Insurance Company
1295 State Street
Springfield, MA 01111
Attention: Securities Investment Division
Instructions re: Delivery of Law Department of Purchaser
Notes
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-7 NOTE PURCHASE AGREEMENT
<PAGE> 83
ANNEX 1
INFORMATION AS TO PURCHASERS (Cont.)
<TABLE>
<CAPTION>
PURCHASER NAME CM LIFE INSURANCE COMPANY
<S> <C>
Other Instructions Signature Block:
CM LIFE INSURANCE COMPANY
By:
-------------------------------------------------------------
Name:
Title:
Tax identification number 06-1041383
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-8 NOTE PURCHASE AGREEMENT
<PAGE> 84
ANNEX 1
INFORMATION AS TO PURCHASERS (CONT.)
<TABLE>
<CAPTION>
PURCHASER NAME NATIONWIDE LIFE INSURANCE COMPANY
<S> <C>
Name in which to register Note NATIONWIDE LIFE INSURANCE COMPANY
Note registration number; R-5; $12,500,000
Principal amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information Morgan Guaranty Trust Company of New York
ABA No. 021-000-238
Journal #999-99-024
F/A/O Nationwide Life Insurance Company Custody A/C #71615
Attn: Custody Service Dept.
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.:
Address for notices related to Nationwide Life Insurance Company
payments One Nationwide Plaza (1-32-09)
Columbus Ohio 43215-2220
Attn: Corporate Money Management
Address for all other notices Nationwide Life Insurance Company
One Nationwide Plaza (1-33-07)
Columbus Ohio 43215-2220
Attn: Corporate Fixed-Income Securities
Instructions re: Delivery of Morgan Guaranty Trust Company of New York
Notes Safekeeping Incoming
55 Exchange Place - A Level
New York, NY 10260-0023
F/A/O Nationwide Life Insurance Company
Custody Account #71615
Other Instructions Signature Block:
NATIONWIDE LIFE INSURANCE COMPANY
By:
------------------------------------
Name:
Title:
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-9 NOTE PURCHASE AGREEMENT
<PAGE> 85
ANNEX 1
INFORMATION AS TO PURCHASERS (Cont.)
<TABLE>
<CAPTION>
PURCHASER NAME NATIONWIDE LIFE INSURANCE COMPANY
<S> <C>
Tax identification number 31-4156830
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-10 NOTE PURCHASE AGREEMENT
<PAGE> 86
ANNEX 1
INFORMATION AS TO PURCHASERS (CONT.)
<TABLE>
<CAPTION>
PURCHASER NAME PHOENIX HOME LIFE MUTUAL INSURANCE COMPANY
<S> <C>
Name in which to register Note PHOENIX HOME LIFE MUTUAL INSURANCE COMPANY
Note registration number; R-6; $5,000,000
Principal amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information Chase Manhattan Bank, N.A.
New York, NY
ABA # 021000021
Account No.: 900 9000 200
Income Processing
Reference: Phoenix Home Life Account No.: G05134
OBI=(issuer name), PPN=(Pvt. Plcmt. #), RATE=(coupon), DUE=(mat.
date)
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.:
Address for notices related to Phoenix Home Life Mutual Insurance Company
payments c/o Phoenix Duff & Phelps, Inc.
56 Prospect Street
P.O. Box 150480
Hartford, CT 06115-0480
Attention: Private Placements Division
FAX: (860) 403-5451
Address for all other notices Phoenix Home Life Mutual Insurance Company
c/o Phoenix Duff & Phelps, Inc.
56 Prospect Street
P.O. Box 150480
Hartford, CT 06115-0480
Attention: Private Placements Division
FAX: (860) 403-5451
Instructions re: Delivery of Law Department of Purchaser
Notes
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-11 NOTE PURCHASE AGREEMENT
<PAGE> 87
ANNEX 1
INFORMATION AS TO PURCHASERS (CONT.)
<TABLE>
<CAPTION>
PURCHASER NAME PHOENIX HOME LIFE MUTUAL INSURANCE COMPANY
<S> <C>
Other Instructions Signature Block:
PHOENIX HOME LIFE MUTUAL INSURANCE COMPANY
By:
-------------------------------------------------------------
Name:
Title:
Tax identification number 06-0493340
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-12 NOTE PURCHASE AGREEMENT
<PAGE> 88
ANNEX 1
INFORMATION AS TO PURCHASERS (CONT.)
<TABLE>
<CAPTION>
PURCHASER NAME PHOENIX HOME LIFE MUTUAL INSURANCE COMPANY
<S> <C>
Name in which to register Note PHOENIX HOME LIFE MUTUAL INSURANCE COMPANY
Note registration number; R-7; $5,000,000
Principal amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information Chase Manhattan Bank, N.A.
New York, NY
ABA # 021000021
Account No.: 900 9000 200
Income Processing
Reference: Phoenix Home Life Account No.: G05515
OBI=(issuer name), PPN=(Pvt. Plcmt. #), RATE=(coupon), DUE=(mat.
date)
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.:
Address for notices related to Phoenix Home Life Mutual Insurance Company
payments c/o Phoenix Duff & Phelps, Inc.
56 Prospect Street
P.O. Box 150480
Hartford, CT 06115-0480
Attention: Private Placements Division
FAX: (860) 403-5451
Address for all other notices Phoenix Home Life Mutual Insurance Company
c/o Phoenix Duff & Phelps, Inc.
56 Prospect Street
P.O. Box 150480
Hartford, CT 06115-0480
Attention: Private Placements Division
FAX: (860) 403-5451
Instructions re: Delivery of Law Department of Purchaser
Notes
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-13 NOTE PURCHASE AGREEMENT
<PAGE> 89
ANNEX 1
INFORMATION AS TO PURCHASERS (Cont.)
<TABLE>
<CAPTION>
PURCHASER NAME PHOENIX HOME LIFE MUTUAL INSURANCE COMPANY
<S> <C>
Other Instructions Signature Block:
PHOENIX HOME LIFE MUTUAL INSURANCE COMPANY
By:
------------------------------------------------------------
Name:
Title:
Tax identification number 06-0493340
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-14 NOTE PURCHASE AGREEMENT
<PAGE> 90
ANNEX 1
INFORMATION AS TO PURCHASERS (CONT.)
<TABLE>
<CAPTION>
PURCHASER NAME CENTRAL STATES HEALTH & LIFE COMPANY OF OMAHA
<S> <C>
Name in which to register Note HARE & CO. AS NOMINEE FOR BANK OF NEW YORK
Note registration number; R-8; $1,500,000
Principal amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information ABA #104000016
First National Bank of Omaha
First OMA/TRUST/ATTN: Income Collections
Acct.#11090200 (wire desk acct. to notify which department)
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.:
Address for notices related to First National Bank of Omaha
payments P.O. Box 3128
Omaha, NE 68102
Attn: Brenda Wilkins
with a copy to:
Central States Health & Life Company of Omaha
P.O. Box 34350
Omaha, NE 68134
Attn: Carol Weeder, Corporate Accounting
with a copy to:
Asset Allocation & Management Co.
30 N. LaSalle Street
Suite 3600
Chicago, IL 60602
Attn: Kathy Lange
Address for all other notices Asset Allocation & Management Co.
30 N. LaSalle Street
Suite 3600
Chicago, IL 60602
Attn: Kathy Lange
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-15 NOTE PURCHASE AGREEMENT
<PAGE> 91
ANNEX 1
INFORMATION AS TO PURCHASERS (Cont.)
<TABLE>
<CAPTION>
PURCHASER NAME CENTRAL STATES HEALTH & LIFE COMPANY OF OMAHA
<S> <C>
Instructions re: Delivery of The Bank of New York
Notes One Wall Street, Fifth Floor, Transfer Department
For Acct. First National Bank of Omaha #122210
New York, NY 10004
Other Instructions Signature Block:
ASSET ALLOCATION & MANAGEMENT COMPANY AS AGENT FOR
CENTRAL STATES HEALTH & LIFE COMPANY OF OMAHA
By:
-------------------------------------------------------------
Name:
Title:
Tax identification number 13-6062916
CREDIT ACCEPTANCE CORPORATION ANNEX 1-16 NOTE PURCHASE AGREEMENT
</TABLE>
<PAGE> 92
ANNEX 1
INFORMATION AS TO PURCHASERS (CONT.)
<TABLE>
<CAPTION>
PURCHASER NAME THE CHARLES SCHWAB TRUST COMPANY
<S> <C>
FBO GUARANTY INCOME LIFE INSURANCE COMPANY
Name in which to register Note THE CHARLES SCHWAB TRUST COMPANY
FBO GUARANTY INCOME LIFE INSURANCE COMPANY
Note registration number; Principal R-9; $1,500,000
amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information Bank of America NT & SA
ABA #121000358
FBO The Charles Schwab Trust Company
A/C #12337-11961
Credit to A/C #101421
Guarantee Income Life Insurance Company
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.:
Address for notices related to The Charles Schwab Trust Company
payments c/o Brian Keil
One Montgomery Street, 7th Floor
San Francisco, CA 94104
with a copy to:
Asset Allocation & Management Co.
30 N. LaSalle
Suite 3600
Chicago, IL 60602
Attn: Kathy Lange
(312) 263-2900
Address for all other notices Asset Allocation & Management Co.
30 N. LaSalle
Suite 3600
Chicago, IL 60602
Attn: Kathy Lange
Tel: (312) 263-2900
</TABLE>
ANNEX 1-17
<PAGE> 93
ANNEX 1
INFORMATION AS TO PURCHASERS (CONT.)
<TABLE>
<CAPTION>
PURCHASER NAME THE CHARLES SCHWAB TRUST COMPANY
<S> <C>
FBO GUARANTY INCOME LIFE INSURANCE COMPANY
Instructions re: Delivery of Notes The Charles Schwab Trust Company
c/o Brian Keil
One Montgomery Street, 7th Floor
San Francisco, CA 94104
Tel: (415) 636-3633
Other Instructions Signature Block:
ASSET ALLOCATION & MANAGEMENT COMPANY AS AGENT FOR
THE CHARLES SCHWAB TRUST COMPANY
FBO GUARANTY INCOME LIFE INSURANCE COMPANY
By:
---------------------------------
Name:
Title:
Tax identification number 94-3149038
</TABLE>
CREDIT ACCEPTANCE AGREEMENT ANNEX 1-18 NOTE PURCHASE AGREEMENT
<PAGE> 94
ANNEX 1
INFORMATION AS TO PURCHASERS (CONT.)
<TABLE>
<CAPTION>
PURCHASER NAME AMERICAN COMMUNITY MUTUAL INSURANCE
<S> <C>
Name in which to register Note POLLY & COMPANY
Note registration number; Principal R-10; $1,000,000
amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information Federal Funds Wire Transfer
ABA No. 021000018
IOC 566
ATTN: Income Collection
Ref A/C # 117429
For further credit to A/C #21081005
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.:
Address for notices related to Asset Allocation & Management Co.
payments 30 N. LaSalle, Suite 3600
Chicago, IL 60602
Attn: Kathy Lange
Tel: (312) 263-2900
Address for all other notices Asset Allocation & Management Co.
30 N. LaSalle, Suite 3600
Chicago, IL 60602
Attn: Kathy Lange
Tel: (312) 263-2900
Instructions re: Delivery of Notes The Bank of New York
One Wall Street
Third Floor, Window A
F/A First of America
A/C #117429
For further credit to: American Community
A/C #021081005
</TABLE>
CREDIT ACCEPTANCE AGREEMENT ANNEX 1-19 NOTE PURCHASE AGREEMENT
<PAGE> 95
ANNEX 1
INFORMATION AS TO PURCHASERS (CONT.)
<TABLE>
<CAPTION>
PURCHASER NAME AMERICAN COMMUNITY MUTUAL INSURANCE
<S> <C>
Other Instructions Signature Block:
ASSET ALLOCATION & MANAGEMENT COMPANY AS AGENT FOR
AMERICAN COMMUNITY MUTUAL INSURANCE
By:
-------------------------------
Name:
Title:
Tax identification number 136582163
</TABLE>
CREDIT ACCEPTANCE AGREEMENT ANNEX 1-20 NOTE PURCHASE AGREEMENT
<PAGE> 96
ANNEX 1
INFORMATION AS TO PURCHASERS (CONT.)
<TABLE>
<CAPTION>
PURCHASER NAME CENTRAL RE CORP. & PHOENIX
<S> <C>
Name in which to register Note INCE & CO.
Note registration number; Principal R-11; $1,000,000
amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information Morgan Guaranty NYC
ABA #021000238
Acct #99999024
For Acct #636234000
Attn: Mike Piccia
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.: Mike Piccia
Address for notices related to Asset Allocation & Management Co.
payments 30 N. LaSalle
Suite 3600
Chicago, IL 60602
Attn: Kathy Lange
Tel: (312) 263-2900
Address for all other notices Asset Allocation & Management Co.
30 N. LaSalle
Suite 3600
Chicago, IL 60602
Attn: Kathy Lange
Tel: (312) 263-2900
Instructions re: Delivery of Notes Morgan Guaranty Trust Co.
15 Broad Street - 17th Floor
Safekeeping Incoming Department for Acct. # 73918
Basement Level, Window A
New York, NY 10015
For further credit to Acct #636234000
</TABLE>
CREDIT ACCEPTANCE AGREEMENT ANNEX 1-21 NOTE PURCHASE AGREEMENT
<PAGE> 97
ANNEX 1
INFORMATION AS TO PURCHASERS (CONT.)
<TABLE>
<CAPTION>
PURCHASER NAME CENTRAL RE CORP. & PHOENIX
<S> <C>
Other Instructions Signature Block:
ASSET ALLOCATION & MANAGEMENT COMPANY AS AGENT FOR
CENTRAL RE CORP. & PHOENIX
By:
------------------------------
Name:
Title:
Tax identification number 13-6020781
</TABLE>
CREDIT ACCEPTANCE AGREEMENT ANNEX 1-22 NOTE PURCHASE AGREEMENT
<PAGE> 98
ANNEX 1
INFORMATION AS TO PURCHASERS (C0NT.)
<TABLE>
<CAPTION>
PURCHASER NAME LONE STAR LIFE INSURANCE COMPANY
<S> <C>
Name in which to register Note POLLY & CO.
Note registration number; Principal R-12; $1,000,000
amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information BK One Col
ABA No. 044000037
F/A/O Lone Star Life Insurance Co.
Credit Account No.: 9804-01787
Attn: Bob Wallace
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.:
Address for notices related to Asset Allocation & Management Co.
payments 30 N. LaSalle
Suite 3600
Chicago, IL 60602
Attn: Kathy Lange
Tel: (312) 263-2900
Address for all other notices Asset Allocation & Management Co.
30 N. LaSalle
Suite 3600
Chicago, IL 60602
Attn: Kathy Lange
Tel: (312) 263-2900
Instructions re: Delivery of Notes The Bank of New York
One Wall Street
Third Floor - Window A
New York, NY 10004
F/A/O Bank One Trust Co
Account # 016084
</TABLE>
CREDIT ACCEPTANCE AGREEMENT ANNEX 1-23 NOTE PURCHASE AGREEMENT
<PAGE> 99
<TABLE>
<CAPTION>
PURCHASER NAME LONE STAR LIFE INSURANCE COMPANY
<S> <C>
Other Instructions Signature Block:
ASSET ALLOCATION & MANAGEMENT COMPANY AS AGENT FOR
LONE STAR LIFE INSURANCE COMPANY
By:
--------------------------------
Name:
Title:
Tax identification number 136582163
</TABLE>
CREDIT ACCEPTANCE AGREEMENT ANNEX 1-24 NOTE PURCHASE AGREEMENT
<PAGE> 100
ANNEX 1
INFORMATION AS TO PURCHASERS (C0NT.)
<TABLE>
<CAPTION>
PURCHASER NAME OZARK NATIONAL LIFE INSURANCE COMPANY
<S> <C>
Name in which to register Note UMBTRU & CO.
Note registration number; Principal R-13; $1,000,000
amount
Payment on account of Note
Method Wire Funds via Federal Reserve Bank of KC
Account information ABA #101000695
For deposit account #0006823
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.:
Address for notices related to Asset Allocation & Management Co.
payments 30 N. LaSalle
Suite 3600
Chicago, IL 60602
Attn: Kathy Lange
Tel: (312) 263-2900
Address for all other notices Asset Allocation & Management Co.
30 N. LaSalle
Suite 3600
Chicago, IL 60602
Attn: Kathy Lange
Tel: (312) 263-2900
Instructions re: Delivery of Notes United Missouri Trust Company
One Battery Park Plaza, 8th Floor
New York, NY 10004
Attn: John Demarco
Tel: (212) 968-1990
For further credit to: UMB
A/C #690256003
</TABLE>
CREDIT ACCEPTANCE AGREEMENT ANNEX 1-25 NOTE PURCHASE AGREEMENT
<PAGE> 101
ANNEX 1
INFORMATION AS TO PURCHASERS (C0NT.)
<TABLE>
<CAPTION>
PURCHASER NAME OZARK NATIONAL LIFE INSURANCE COMPANY
<S> <C>
Other Instructions Signature Block:
ASSET ALLOCATION & MANAGEMENT COMPANY AS AGENT FOR
OZARK NATIONAL LIFE INSURANCE COMPANY
By:
----------------------------------
Name:
Title:
Tax identification number 43-6295832
</TABLE>
CREDIT ACCEPTANCE AGREEMENT ANNEX 1-26 NOTE PURCHASE AGREEMENT
<PAGE> 102
ANNEX 1
INFORMATION AS TO PURCHASERS (C0NT.)
<TABLE>
<CAPTION>
PURCHASER NAME CSA FRATERNAL LIFE
<S> <C>
Name in which to register Note GALE & CO.
Note registration number; Principal R-14; $500,000
amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information Harris Bank
ABA #071000288
Attn. Trust Collections
A/C #109-211-3
F/F/C CSA Fraternal Life A/C #21-21701
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.:
Address for notices related to Asset Allocation & Management & Co.
payments 30 N. LaSalle
Suite 3600
Chicago, IL 60602
Attn: Kathy Lange
Tel: (312) 263-2900
Address for all other notices Asset Allocation & Management & Co.
30 N. LaSalle
Suite 3600
Chicago, IL 60602
Attn: Kathy Lange
Tel: (312) 263-2900
Instructions re: Delivery of Notes Bank of Montreal Trust Co.
Security Services
77 Water Street, Fifth Floor
New York, NY 10005
F/A Harris Trust & Savings Bank - Trust Sub A/C CSA Fraternal Life
A/C #21-21701
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-27 NOTE PURCHASE AGREEMENT
<PAGE> 103
ANNEX 1
INFORMATION AS TO PURCHASERS (C0NT.)
<TABLE>
<CAPTION>
PURCHASER NAME CSA FRATERNAL LIFE
<S> <C>
Other Instructions Signature Block:
ASSET ALLOCATION & MANAGEMENT COMPANY AS AGENT FOR
CSA FRATERNAL LIFE
By:
-------------------------------
Name:
Title:
Tax identification number 36-2482116
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-28 NOTE PURCHASE AGREEMENT
<PAGE> 104
ANNEX 1
INFORMATION AS TO PURCHASERS (C0NT.)
<TABLE>
<CAPTION>
PURCHASER NAME KANAWHA INSURANCE COMPANY
<S> <C>
Name in which to register Note INCE & CO.
Note registration number; Principal R-15; $500,000
amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information Morgan Guaranty NYC
ABA #021000238
Acct #99999024
For Acct #635750020
Attn: Mike Piccia
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.:
Address for notices related to Asset Allocation & Management Co.
payments 30 N. LaSalle
Suite 3600
Chicago, IL 60602
Attn: Kathy Lange
Tel: (312) 263-2900
Address for all other notices Asset Allocation & Management Co.
30 N. LaSalle
Suite 3600
Chicago, IL 60602
Attn: Kathy Lange
Tel: (312) 263-2900
Instructions re: Delivery of Notes Morgan Guaranty Trust Co.
15 Broad Street - 17th Floor
Safekeeping Incoming Department for Acct. #73918
Basement Level, Window A
New York, NY 10015
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-29 NOTE PURCHASE AGREEMENT
<PAGE> 105
ANNEX 1
INFORMATION AS TO PURCHASERS (C0NT.)
<TABLE>
<CAPTION>
PURCHASER NAME KANAWHA INSURANCE COMPANY
<S> <C>
Other Instructions Signature Block:
ASSET ALLOCATION & MANAGEMENT COMPANY AS AGENT FOR
KANAWHA INSURANCE COMPANY
By:
---------------------------------
Name:
Title:
Tax identification number 13-6020781
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-30 NOTE PURCHASE AGREEMENT
<PAGE> 106
ANNEX 1
INFORMATION AS TO PURCHASERS (CONT.)
<TABLE>
<CAPTION>
PURCHASER NAME OLD GUARD MUTUAL INSURANCE COMPANY
<S> <C>
Name in which to register Note PATTERSON & COMPANY
Note registration number; Principal R-16; $500,000
amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information Corestates
ABA# 031000011
DDA# 01155258
Ref: A/C #13-00060-01
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.:
Address for notices related to Asset Allocation & Management Co.
payments 30 N. LaSalle
Suite 3600
Chicago, IL 60602
Attn: Kathy Lange
Tel: (312) 263-2900
Address for all other notices Asset Allocation & Management Co.
30 N. LaSalle
Suite 3600
Chicago, IL 60602
Attn: Kathy Lange
Tel: (312) 263-2900
Instructions re: Delivery of Notes The Bank of New York
One Wall Street
Third Floor
Window A
New York, NY 10004
Corestates A/C 071-395
Ref: TRUST A/C #13-00060-01
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-31 NOTE PURCHASE AGREEMENT
<PAGE> 107
ANNEX 1
INFORMATION AS TO PURCHASERS (C0NT.)
<TABLE>
<CAPTION>
PURCHASER NAME OLD GUARD MUTUAL INSURANCE COMPANY
<S> <C>
Other Instructions Signature Block:
ASSET ALLOCATION & MANAGEMENT COMPANY AS AGENT FOR
OLD GUARD MUTUAL INSURANCE COMPANY
By:
-----------------------------------
Name:
Title:
Tax identification number 23-6209274
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-32 NOTE PURCHASE AGREEMENT
<PAGE> 108
ANNEX 1
INFORMATION AS TO PURCHASERS (C0NT.)
<TABLE>
<CAPTION>
PURCHASER NAME SECURITY BENEFIT LIFE INSURANCE COMPANY
<S> <C>
Name in which to register Note UMBTRU&CO
Note registration number; Principal R-17; $6,000,000
amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information Wire Funds via Federal Reserve Bank of KC
ABA No. 101000695
For deposit to Account No.: 9800006823
For further credit to UMB Account No.: 690308002
Attn: Debbie
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.:
Address for notices related to Security Benefit Life Insurance Company
payments Investment Department
700 Harrison
Topeka, KS 66636
Attn: Troy McMaster
with a copy to:
United Missouri Bank
P.O. Box 419226
Kansas City, MO 64141-6226
Attn: Debbie Cadwell
Fax: 816-860-4994
Address for all other notices Security Benefit Life Insurance Company
Investment Department
700 Harrison
Topeka, KS 66636
Attn: Troy McMaster
Fax: 913-295-3099
</TABLE>
ANNEX 1-33
<PAGE> 109
ANNEX 1
INFORMATION AS TO PURCHASERS (CONT.)
<TABLE>
<CAPTION>
PURCHASER NAME SECURITY BENEFIT LIFE INSURANCE COMPANY
<S> <C>
Instructions re: Delivery of Notes United Missouri Trust Company
1 Battery Park Plaza, 8th Floor
New York, NY 10004
Attention: John DeMarco
212-968-1990
for further credit to UMB Account #69-0308-002
Other Instructions Signature Block:
SECURITY BENEFIT LIFE INSURANCE COMPANY
By:
----------------------------------
Name:
Title:
Tax identification number 48-0409770
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-34 NOTE PURCHASE AGREEMENT
<PAGE> 110
ANNEX 1
INFORMATION AS TO PURCHASERS (C0NT.)
<TABLE>
<CAPTION>
PURCHASER NAME AID ASSOCIATION FOR LUTHERANS
<S> <C>
Name in which to register Note AID ASSOCIATION FOR LUTHERANS
Note registration number; Principal R-18; $5,000,000
amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information Citibank, NYC/CUST.
ABA # 021-000-089
DDA # 36112805
Attn: John Colavito
Ref Account # 846647
Aid Association for Lutherans Custody Account
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.:
Address for notices related to Aid Association for Lutherans
payments Investment Department
4321 N. Ballard Road
Appleton, WI 54919
with a copy to:
Citicorp Services Inc
Income Collection and Disbursement
1410 N. Westshore Blvd
4th Floor
Tampa, FL 33607
Ref Account # 846647
Aid Association for Lutherans Custody Account
Address for all other notices Aid Association for Lutherans
Investment Department
4321 N. Ballard Road
Appleton, WI 54919
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-35 NOTE PURCHASE AGREEMENT
<PAGE> 111
ANNEX 1
INFORMATION AS TO PURCHASERS (C0NT.)
<TABLE>
<CAPTION>
PURCHASE NAME AID ASSOCIATION FOR LUTHERANS
<S> <C>
Instructions re: Delivery of Notes Bradley Rench
Citibank
Level C
20 Exchange Place
New York, NY 10043
Ref Account # 846647
Aid Association for Lutherans Custody Account
Other Instructions Signature Block:
AID ASSOCIATION FOR LUTHERANS
By:
--------------------------------
Name:
Title:
Tax identification number 39-0123480
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-36 NOTE PURCHASE AGREEMENT
<PAGE> 112
ANNEX 1
INFORMATION AS TO PURCHASERS (C0NT.)
<TABLE>
<CAPTION>
PURCHASER NAME GLOBE INDEMNITY COMPANY
<S> <C>
Name in which to register Note ATWELL & CO.
Note registration number; Principal R-19; $2,000,000
amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information Chase NYC/Trust
ABA No.: 021000021
For Account No.: 898225
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.:
Address for notices related to payments Royal Insurance Company of America
Attn: Investment Accounting
P.O. Box 1000
Charlotte, NC 28201
Address for all other notices Royal Insurance Company of America
Attn: Investment Accounting
P.O. Box 1000
Charlotte, NC 28201
Instructions re: Delivery of Notes The Chase Manhattan Bank
Securities Services and Trust Operations
1 Chase Manhattan Plaza
Level 5B - Receive Window
New York, NY 10081
For Account No.: 898225
Other Instructions Signature Block:
GLOBE INDEMNITY COMPANY
By:
-------------------------------
Name:
Title:
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-37 NOTE PURCHASE AGREEMENT
<PAGE> 113
ANNEX 1
INFORMATION AS TO PURCHASERS (C0NT.)
<TABLE>
<CAPTION>
PURCHASE NAME GLOBE INDEMNITY NO.
<S> <C>
Tax identification number 13-5104840
</TABLE>
<PAGE> 114
ANNEX 1
INFORMATION AS TO PURCHASERS (C0NT.)
<TABLE>
<CAPTION>
PURCHASER NAME ROYAL INDEMNITY COMPANY
<S> <C>
Name in which to register Note ATWELL & CO.
Note registration number; Principal R-20; $500,000
amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information Chase NYC/Trust
ABA No.: 021000021
For Account No.: 898702
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.:
Address for notices related to Royal Insurance Company of America
payments Attn: Investment Accounting
P.O. Box 1000
Charlotte, NC 28201
Address for all other notices Royal Insurance Company of America
Attn: Investment Accounting
P.O. Box 1000
Charlotte, NC 28201
Instructions re: Delivery of Notes The Chase Manhattan Bank
Securities Services and Trust Operations
1 Chase Manhattan Plaza
Level 5B Receive Window
New York, NY 10081
Account No.: 898702
Other Instructions Signature Block:
ROYAL INDEMNITY COMPANY
By:
----------------------------
Name:
Title:
Tax identification number 13-5358230
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-39 NOTE PURCHASE AGREEMENT
<PAGE> 115
ANNEX 1
INFORMATION AS TO PURCHASERS (C0NT.)
<TABLE>
<CAPTION>
PURCHASER NAME SAFEGUARD INSURANCE COMPANY
<S> <C>
Name in which to register Note ATWELL & CO.
Note registration number; Principal R-21; $1,000,000
amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information Chase NYC/Trust
ABA No.: 021000021
for Account No.: 899251
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.:
Address for notices related to Royal Insurance Company of America
payments Attn: Investment Accounting
P.O. Box 1000
Charlotte, NC 28201
Address for all other notices Royal Insurance Company of America
Attn: Investment Accounting
P.O. Box 1000
Charlotte, NC 28201
Instructions re: Delivery of Notes The Chase Manhattan Bank
Securities Services and Trust Operations
1 Chase Manhattan Plaza
Level 5B Receive Window
New York, NY 10081
Account No.: 899251
Other Instructions Signature Block:
SAFEGUARD INSURANCE COMPANY
By:
-----------------------------
Name:
Title:
Tax identification number 06-0480695
</TABLE>
CREDIT ACCEPTANCE ANNEX 1-40 NOTE PURCHASE AGREEMENT
<PAGE> 116
ANNEX 1
INFOMRATION AS TO PURCHASERS (C0NT.)
<TABLE>
<CAPTION>
PURCHASER NAME AMERICAN & FOREIGN INS. CO.
<S> <C>
Name in which to register Note ATWELL & CO.
Note registration number; Principal R-22; $1,000,000
amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information Chase NYC/Trust
ABA # 021000021
for Account No.: 89925109
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.:
Address for notices related to Royal Insurance Company of America
payments Attn: Investment Accounting
P.O. Box 1000
Charlotte, NC 28201
Address for all other notices Royal Insurance Company of America
Attn: Investment Accounting
P.O. Box 1000
Charlotte, NC 28201
Instructions re: Delivery of Notes The Chase Manhattan Bank
Securities Services and Trust Operations
1 Chase Manhattan Plaza
Level 5B - Receive Window
New York, NY 10081
For Account No.: 89925109
Other Instructions Signature Block:
AMERICAN & FOREIGN INS. CO.
By:
---------------------------------
Name:
Title:
</TABLE>
CREDIT ACCEPTANCE ANNEX 1-41 NOTE PURCHASE AGREEMENT
<PAGE> 117
ANNEX 1
INFORMATION AS TO PURCHASERS (C0NT.)
<TABLE>
<CAPTION>
PURCHASERS NAME AMERICAN AND FOREIGN INS. CO.
<S> <C>
Tax identification number 13-4922485
</TABLE>
ANNEX 1-42
<PAGE> 118
ANNEX 1
INFORMATION AS TO PURCHASERS (C0NT.)
<TABLE>
<CAPTION>
PURCHASER NAME NEWARK INSURANCE COMPANY
<S> <C>
Name in which to register Note CUST & CO.
Note registration number; Principal R-23; $500,000
amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information Bank of NYC/CUST
ABA No.: 021000018
Newark Insurance Company
Account No.: 266011
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.:
Address for notices related to Royal Insurance Company of America
payments Attn: Investment Accounting
P.O. Box 1000
Charlotte, NC 28201
Address for all other notices Royal Insurance Company of America
Attn: Investment Accounting P.O. Box 1000
Charlotte, NC 28201
Instructions re: Delivery of Notes The Bank of New York
One Wall Street - 3rd Floor
Window A
Newark Insurance Company
Account No.: 266011
Other Instructions Signature Block:
NEWARK INSURANCE COMPANY
By:
------------------------------
Name:
Title:
Tax identification number 13-5276670
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-43 NOTE PURCHASE AGREEMENT
<PAGE> 119
ANNEX 1
INFORMATION AS TO PURCHASERS (CONT.)
<TABLE>
<CAPTION>
PURCHASER NAME COMBINED INSURANCE COMPANY OF AMERICA
<S> <C>
Name in which to register Note OLEN & CO.
Note registration number; Principal R-24; $5,000,000
amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information First National Bank of Chicago
ABA No. 071000013
Account No.: 4811-5200
For further credit to Combined Insurance Company of America
Account No. 10122164FCOA
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.:
Address for notices related to First National Bank of Chicago
payments One First National Plaza
Mail Suite 0115
13th Floor, Main
Chicago, IL 60670
Attn: Jeri Quercia
Address for all other notices Aon Advisors, Inc.
123 N. Wacker Drive, 29th Floor
Chicago, IL 60606
Attn: Keith Lemmer
Instructions re: Delivery of Notes First Chicago Trust Co.
14 Wall Street, 8th Floor
New York, New York 10005
Ref: Combined Insurance Company of America
Account # 10122164FCOA
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-44 NOTE PURCHASE AGREEMENT
<PAGE> 120
ANNEX 1
INFORMATION AS TO PURCHASERS (C0NT.)
<TABLE>
<CAPTION>
PURCHASER NAME COMBINED INSURANCE COMPANY OF AMERICA
<S> <C>
Other Instructions Signature Block:
COMBINED INSURANCE COMPANY OF AMERICA
By: Aon Advisors, Inc.
By:
------------------------------
Name: Keith Lemmer
Title: Senior Portfolio Manager
Tax identification number 36-2136262
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-45 NOTE PURCHASE AGREEMENT
<PAGE> 121
ANNEX 1
INFORMATION AS TO PURCHASERS (C0NT.)
<TABLE>
<CAPTION>
PURCHASER NAME PAN-AMERICAN LIFE INSURANCE COMPANY
<S> <C>
Name in which to register Note PAN-AMERICAN LIFE INSURANCE COMPANY
Note registration number; Principal R-25; $3,000,000
amount
Payment on account of Note
Method Federal Funds Wire Transfer
Account information First National Bank of Commerce
210 Baronne Street
New Orleans, LA 70112
ABA No. 076-000-029
For credit to Pan-American Life Insurance Company
Account No. 1100-29496
Accompanying information Name of Company: Credit Acceptance Corporation
Description of
Security: 7.99% Senior Notes Due July 1, 2001
PPN: 225310 A@ 0
Due date and application (as among principal, Make-Whole Amount and
interest) of the payment being made:
Contact name and telephone no.:
Address for notices related to Pan-American Life Insurance Company
payments Pan American Life Center
601 Poydras Street
New Orleans, LA 70130
Attn: Investment Department - 28th Floor, Bond & Stock Accounting
Address for all other notices Pan-American Life Insurance Company
Pan American Life Center
601 Poydras Street
New Orleans, LA 70130
Attn: Investment Department - 28th Floor, Fixed Income Securities
Instructions re: Delivery of Notes Pan-American Life Insurance Company
Pan American Life Center
601 Poydras Street
New Orleans, LA 70130
Attn: Marylyn Andree, Investment Department - 28th Floor
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-46 NOTE PURCHASE AGREEMENT
<PAGE> 122
ANNEX 1
INFORMATION AS TO PURCHASERS (Cont.)
<TABLE>
<CAPTION>
PURCHASER NAME PAN-AMERICAN LIFE INSURANCE COMPANY
<S> <C>
Other Instructions Signature Block:
PAN-AMERICAN LIFE INSURANCE COMPANY
By:________________________________
Name:
Title:
Tax identification number 72-0281240
</TABLE>
CREDIT ACCEPTANCE CORPORATION ANNEX 1-47 NOTE PURCHASE AGREEMENT
<PAGE> 123
ANNEX 2
PAYMENT INSTRUCTIONS AT CLOSING
In accordance with Section 1.2(b) of the Agreement, the Company
authorizes and directs you to make payment for the Note or Notes being
purchased by you by payment by federal funds wire transfer in immediately
available funds of the purchase price thereof to:
COMERICA BANK
DETROIT, MICHIGAN
ABA #072 000 096
ACCOUNT NAME: CREDIT ACCEPTANCE CORPORATION
ACCOUNT NO.: 10 76 135 068
ANNEX 2-1
<PAGE> 124
ANNEX 3
INFORMATION AS TO COMPANY
PART 2.2(a) -- FINANCIAL STATEMENTS.
The Company has provided to the purchasers of the Notes (i) the
consolidated balance sheets of the Company and its Subsidiaries as of December
31, 1994 and December 31, 1995 (audited) and the related statements of income,
shareholders' equity and cash flows for such years and (ii) the consolidated
balance sheet of the Company and its Subsidiaries as of March 31, 1996
(unaudited) and the related statements of income and cash flows for such
period.
PART 2.2(b) -- DEBT.
The Company is indebted to Comerica Bank pursuant to a Continuing
collateral Mortgage dated April 28, 1994 in the amount of $4,119,754 (as of
June 30, 1996), secured by a first lien on the Silver Triangle Building, 25505
West Twelve Mile Road, Southfield, Michigan. As of June 30, 1996, the current
portion of such indebtedness was $214,117.
The Company and CAC UK are indebted to Comerica Bank, LaSalle National
Bank, Bank Hapoalim, B.M., NBD Bank, Fifth Third Bank of Northwestern Ohio,
N.A., Mercantile Bank of St. Louis National Association, The Sumitomo Bank,
Limited, Chicago Branch, Harris Trust and Savings Bank and The Bank of New York
(collectively, the "Banks") pursuant to a $152,000,000 unsecured Amended and
Restated Credit Agreement, dated as of January 8, 1996, as amended (the "Credit
Agreement"). As of June 30, 1996, the Company and CAC UK were indebted to the
Banks under the Credit Agreement in an amount totalling $105,590,000,
$62,628,960 of which is current. There is no collateral securing the
indebtedness, other than a customary right of each Bank, upon acceleration of
the indebtedness under the Credit Agreement, to apply to the payment of such
indebtedness any and all balances, credits, deposits, accounts or moneys of the
Company or CAC UK then or thereafter with such Bank.
The Company has unsecured senior indebtedness outstanding in the
amount of $60,000,000 pursuant to the separate Note Purchase Agreements, each
dated as of October 1, 1994, as amended as of November 15, 1995 and August 28,
1996, between the Company and each of the purchasers listed on Annex 1 thereto.
Of this amount, $6,600,000 is current.
CAC UK is indebted to National Westminster Bank PLC in the amount of
L2,000,000 under a revolving credit facility letter dated March 1, 1996, all of
which indebtedness is current. Such indebtedness is secured by an irrevocable
standby letter of credit issued by Comerica Bank in the amount of #2,000,000.
ANNEX 3-1
<PAGE> 125
ANNEX 3
INFORMATION AS TO COMPANY (CONT.)
PART 2.3 -- SUBSIDIARIES AND AFFILIATES.
<TABLE>
<CAPTION>
(I) SUBSIDIARIES:
------------
JURISDICTION OF
INCORPORATION/
ORGANIZATION
------------
<S> <C>
Buyers Vehicle Protection Plan, Inc. Michigan
Credit Acceptance Corporation Life
Insurance Company Arizona
Credit Acceptance Corporation of
Nevada, Inc. Nevada
Credit Acceptance Corporation of
South Dakota, Inc. South Dakota
CAC International, Inc. Michigan
Credit Acceptance Property and
Casualty Agency, Inc. Michigan
CAC Insurance Agency of Ohio, Inc. Ohio*
Credit Acceptance Corporation UK
Limited England**
CAC of Canada, Limited Canada
CAC Leasing, Inc. Michigan
</TABLE>
*100% of the common stock, representing a 1% equity interest, of this
Subsidiary is held by an unrelated third party, resident in Ohio, in order to
qualify for the issuance of an Ohio insurance agency license.
**Two shares of stock are issued and outstanding, one of which is owned by the
Company and one of which is owned by CAC International.
All Subsidiaries are 100% owned by the Company, except as noted above.
(II) AFFILIATES:
1. See the list of Subsidiaries listed in Part 2.3(I) above,
which is incorporated herein by reference. The Company also
controls a non-profit, directorship-based (no members or
voting stock) association, CAC Dealer Association.
2. The Donald A. Foss Revocable Living Trust is a 52.6%
shareholder of the Company.
3. The following companies are owned or controlled by Donald A.
Foss, his spouse, or trusts established for his or her benefit
or the benefit of his or her immediate family:
ANNEX 3-2
<PAGE> 126
ANNEX 3
INFORMATION AS TO COMPANY (CONT.)
Larry Lee's Auto Finance Center, Inc.
KAF Agency, Inc.
KAF Agency of Ohio, Inc.
American Dealer Enterprise Group LLC (owned by Larry Lee's
Auto Finance Center, Inc.)
Mark Enterprises, LLC (owned by American Dealer Enterprise
Group LLC)
Detroit II Leasing Company (owned by Larry Lee's Auto Finance
Center, Inc.)
Foss Realty, LLC
Detroit II Air, LLC
PART 2.6(A) -- LITIGATION.
1. Credit Acceptance Corporation v. Lisa Jeanne Ertle, State of
Minnesota, Ramsey County District Court. The Company brought this
action to collect upon a defaulted installment contract in the amount
of approximately $1,400.00. The defendant has asserted counterclaims
against the Company on behalf of herself and a purported class of "all
persons similarly situated who have entered into Motor Vehicle Retail
Installment Contracts which have been assigned to [the Company]
representing motor vehicle sales from motor vehicle dealers in the
State of Minnesota." The counterclaim alleges that the Company has
acted improperly by not having a license to conduct its business in
Minnesota, charges usurious interest rates and, together with
participating dealers, sets the prices of used vehicles at
artificially high levels. The counterclaim reserves the right to add
claims based upon the Federal RICO statute. The Company has denied
the substantive allegations of the counterclaim and has operated in
Minnesota on the basis of written advice from the Minnesota Department
of Commerce that no license is required.
2. Kenneth Ray Lee, Lisa Jeanne Ertle, Brenda Osen, Juan Martinez, Amy
Schwandt, Glenda Richards, Michael O'Donnell, John Kant and Kim
Swanson, on behalf of themselves and all others similarly situated,
Plaintiffs v. L.B. Sales, Inc. d/b/a Continental Motors, Credit
Acceptance Corporation, Community Credit Corporation, Bankers &
Shippers Insurance Company, First Lenders Insurance Company and John
Doe and Mary Doe, Defendants, United States District Court, District
of Minnesota, Fourth Division. This case was commenced as a purported
class action on July 20, 1994 in Ramsey County District Court,
Minnesota, and was subsequently removed to Federal Court by the
defendants. The complaint alleges violations of the Minnesota Motor
Vehicle Retail Installment Sales Act, the United States Truth-
In-Lending Act, Minnesota Usury laws, breaches of warranty, common law
fraud and violations of the United States Racketeer Influenced and
Corrupt Organizations Act. It suggests on its face that the case
referred to in item 1 above is consolidated with this case. The
Company has filed an answer denying the substantive allegations of the
complaint and has filed counterclaims against certain of the named
plaintiffs for collection of amounts due under the installment
contracts for the purchase of motor vehicles. The discovery now is
closed; and the court-
ANNEX 3-3
<PAGE> 127
ANNEX 3
INFORMATION AS TO COMPANY (CONT.)
imposed dates for filing another amended complaint and for filing and
hearing plaintiffs' motion for class certification have passed without
any action having been taken by plaintiffs. The Company has brought a
motion for summary judgment seeking the dismissal of all claims
against it. The motion has been fully briefed and presented to the
court for decision. Oral argument on the motion concluded on August
7, 1996 and at the conclusion of the hearing, the court orally ruled
that the plaintiffs' claims against the Company would be dismissed in
their entirety. No order containing those rulings has been received.
3. Alan W. Wadlington, Tammy M. Berry, Chip C. Brunette, for themselves
and all other persons similarly situated, Plaintiffs v. Credit
Acceptance Corporation, Leiken & Ingber, P.C., George Leiken, Howard
Alan Katz, P.C. and Howard Alan Katz, Defendants, United States
District Court, Western District of Michigan. This case was filed as
a purported class action in April 1994, alleging violations of the
United States Fair Debt Collection Practices Act, the United States
Racketeer Influenced and Corrupt Organizations Act and Michigan
consumer protection statutes. On September 6, 1994, the Court issued
a judgment in favor of the defendants on the federal claims (the
plaintiffs had earlier withdrawn their RICO claim) by granting motions
for summary judgment. At the same time, the Court dismissed, without
prejudice, the state law claims. The plaintiffs appealed to the Sixth
Circuit Court of Appeals. On February 21, 1996, the Court of Appeals
issued its opinion affirming judgment in favor of the Company.
Although the federal case now is concluded, the state court collection
case which the Company instituted against Tammy M. Berry and Chip C.
Brunette remains pending in Kent County Circuit Court. The case is
entitled "Credit Acceptance Corp., Plaintiff v. Tammy M. Berry and
Chip C. Brunette, Defendants," Case No. 93-06169-CK. Berry and
Brunette recently filed a class action counterclaim against the
Company and removed the case from the district court to state circuit
court. The counterclaim attempts to plead essentially the same state
law claims which had been dismissed without prejudice from the federal
court case. The Company filed a motion seeking summary dismissal of
the counterclaim. That motion, however, was denied without prejudice
to the Company's renewal of the motion after discovery. The Company
plans to file an application for leave to appeal from the July 17,
1996 order denying its motion for summary judgment. Berry's class
certification motion must be filed by December 31, 1996. No trial
date has been set.
4. Due to the consumer-oriented nature of the industry in which the
Company operates, industry participants frequently are named as
defendants in litigation involving alleged violations of state,
federal and foreign truth-in-lending, credit availability, credit
reporting, consumer protection, warranty, debt collection, insurance
and other consumer-oriented laws and regulations, if applicable. Many
of these cases are filed as purported class actions and seek damages
in large dollar amounts. Although the Company has been, and is
currently, involved in litigation of this type, the Company's
experience has been
ANNEX 3-4
<PAGE> 128
ANNEX 3
INFORMATION AS TO COMPANY (CONT.)
that such claims are often brought as counterclaims in response to
efforts by the Company to collect delinquent accounts and have not
been financially significant.
5. In December 1995, the Company was notified orally by the Department of
Consumer and Regulatory Affairs of the Government of the District of
Columbia that it may be operating in that jurisdiction improperly due
to (a) the lack of a required license; and (b) the failure to have
installment contract forms approved by the Department. The Company
has filed an application for the license and has submitted the form of
installment contract used in the District of Columbia therewith.
Based upon preliminary discussions with regulatory authorities, the
Company believes that this matter will be resolved in a manner that
will not result in a material adverse effect on the Company and its
Subsidiaries, taken as a whole. Pending resolution of this matter,
the Company has voluntarily ceased accepting installment contracts
from dealers in the District of Columbia.
6. In connection with a public offering of securities that was
consummated in September 1995, the Company obtained opinions from
counsel in each jurisdiction in which it does business with respect
to, among other things, compliance with licensing laws. Certain of
such counsel were unable to opine that the Company's subsidiary,
Credit Acceptance Corporation Property & Casualty Agency, Inc. did not
require licensing as an insurance agency in connection with the
Company's point-of-sale dual interest collateral protection insurance
program. The Company has filed an application for such license in
Illinois (a state in which a significant volume of business is
conducted where counsel raised the licensing issue) and intends to
file applications in Connecticut, Idaho, Maine, Massachusetts, New
Mexico, North Carolina, Oregon, Virginia, Washington and in any other
jurisdiction in which the question of proper licensing is raised.
7. In March 1996, the Company received requests for information
respecting the operation of the point-of-sale dual interest collateral
protection insurance program in the State of Minnesota as part of a
review by the Department of Commerce of such program. The Company is
cooperating with the request for information and does not believe that
the matter will result in a material adverse effect on the Company and
its Subsidiaries, taken as a whole.
8. Ann M. LaBarre, individually and on behalf of all persons similarly
situated v. Credit Acceptance Corporation, Bankers and Shippers
Insurance Company and First Lenders Insurance Services, Inc., United
States District Court, District of Minnesota, Fourth Division. This
case was commenced on June 19, 1996 as a purported class action by the
same attorneys representing the plaintiffs in Lee. The allegations
are substantially similar to those made in Lee. The Company has filed
an answer to the complaint and is attempting to get the case
re-assigned to the judge presiding over Lee.
9. Credit Acceptance Corporation, Plaintiff, v. Hosea Garrett,
Defendant/Third-Party Plaintiff, v. Credit Acceptance Corporation and
Spirit Nissan Jeep Eagle, Inc., Third-Party Defendants, in the Circuit
Court for Talladega County, Alabama. The Company brought
ANNEX 3-5
<PAGE> 129
ANNEX 3
INFORMATION AS TO COMPANY (CONT.)
this action to collect upon a defaulted installment contract
in the amount of $7,209.13. The Defendant has asserted
counterclaims against the Company on behalf of himself and a
purported class of "Each and every person who has entered into
a dealer contract or entered into a loan on a precomputed
installment contract with the defendant Spirit on which credit
life insurance and accident and health insurance was written
on a gross balance and the contract was financed by and
through the defendant Credit Acceptance Corporation; and each
and every person who purchased an extended service contract by
and through the defendant Spirit; and each and every person
who entered into a dealer contract or entered into a loan on
an installment contract with Defendant Spirit and for which
defendant Credit Acceptance Corporation provided the
financing, wherein the aforementioned Defendants shared
finance charges produced as a result of the contract." The
Company has denied the substantive allegations of the
counterclaim and is actively challenging the propriety of the
class certification. The counterclaim alleges that the
Company participated in a scheme to defraud purchasers of
automobiles in Alabama by requiring purchasers of the vehicles
to purchase credit life insurance for the entire value of the
loan obligation as opposed to the value of the collateral. At
all relevant times, the Company was acting in accordance with
the regulations promulgated by the Alabama Department of
Banking.
10. Beverly Royal v. Credit Acceptance Corporation, Walt Allinder
Daihatsu and Western Diversified Life Insurance Company, in
the Circuit Court of Jefferson County, Alabama. This case was
brought by Beverly Royal against the Company and the other
Defendants alleging substantially the same violations as
referenced in number 9 above. Ms. Royal and Mr. Garrett
(above) are represented by the same attorney. At present, the
Plaintiff has not sought class certification. The Company is
defending the allegations brought by Ms. Royal in the same
fashion as it is defending the claims raised in number 9
above.
PART 2.8(d) -- QUALIFICATION AS FOREIGN CORPORATION.
The Company is qualified to do business in 47 states (excluding
Alaska, Nevada and South Dakota) and the District of Columbia, and its
Subsidiary, Buyers Vehicle Protection Plan, Inc., is qualified to do business
in 49 states (excluding Alaska) and the District of Columbia. The Company's
other Subsidiaries are not qualified to do business in states other than their
respective states of incorporation.
PART 2.10(b) -- AGREEMENTS RESTRICTING ABILITY TO INCUR DEBT.
The only agreements to which the Company or any Subsidiary is a party
that restrict the ability to incur Debt are (a) the Credit Agreement and (b)
the separate Note Purchase Agreements, each dated as of October 1, 1994,
between the Company and each of the purchasers listed on Annex 1 thereto.
PART 2.18(a) -- USE OF PROCEEDS.
ANNEX 3-6
<PAGE> 130
ANNEX 3
INFORMATION AS TO COMPANY (CONT.)
The net proceeds from the sale of the Notes will be used to repay
outstanding Debt of the Company to the Banks under the Credit Agreement.
PART 6.6(a)(V) -- CERTAIN LIENS EXISTING ON THE CLOSING DATE.
The only Liens existing on Property of the Company or any Restricted
Subsidiary as of the Closing Date are described in Part 2.2(b) above.
PART 6.17(a) -- UNRESTRICTED SUBSIDIARIES.
None.
ANNEX 3-7
<PAGE> 131
EXHIBIT A
[FORM OF NOTE]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). ANY RESALE OR TRANSFER OF THIS NOTE WITHOUT
REGISTRATION UNDER THE SECURITIES ACT MAY ONLY BE MADE IN A TRANSACTION EXEMPT
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
CREDIT ACCEPTANCE CORPORATION
7.99% SENIOR NOTE DUE JULY 1, 2001
NO. R-___
$____________
PPN: 225310 A@ 0
[DATE]
CREDIT ACCEPTANCE CORPORATION, a Michigan corporation (the "Company"),
for value received, hereby promises to pay to ____________ or registered
assigns the principal sum of ____________ DOLLARS ($____________) on July 1,
2001 and to pay interest (computed on the basis of a 360-day year of twelve
30-day months) on the unpaid principal balance thereof from the date of this
Note at the rate of seven and ninety-nine one-hundredths percent (7.99%) per
annum, semi-annually on the first (1st) day of January and July in each year,
commencing on the later of January 1, 1997 or the payment date next succeeding
the date hereof, until the principal amount hereof shall become due and
payable; and to pay on demand interest on any overdue principal (including any
overdue prepayment of principal) and Make-Whole Amount, if any, and (to the
extent permitted by applicable law) on any overdue installment of interest, at
a rate equal to the lesser of (a) the highest rate allowed by applicable law or
(b) nine and ninety-nine one-hundredths percent (9.99%) per annum.
Payments of principal, Make-Whole Amount, if any, and interest shall
be made in such coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private debts to the
registered holder hereof at the address shown in the register maintained by the
Company for such purpose, in the manner provided in the Note Purchase Agreement
(defined below).
This Note is one of an issue of Notes of the Company issued in an
aggregate principal amount limited to Seventy Million Dollars ($70,000,000)
pursuant to the Company's separate Note Purchase Agreements, each dated as of
August 1, 1996 (collectively, as may be amended from time to time, the "Note
Purchase Agreement"), with the purchasers listed on Annex 1 thereto. This Note
is entitled to the benefits of the Note Purchase Agreement and the terms
thereof are incorporated herein by reference. Capitalized terms used herein
and not otherwise defined herein have the meanings specified in the Note
Purchase Agreement. As provided in the Note Purchase Agreement, this Note is
subject to prepayment, in whole or in part, in certain cases without a
Make-Whole Amount and in other cases with a Make-Whole Amount. The
EXHIBIT A-1
<PAGE> 132
Company agrees to make required prepayments on account of such Notes in
accordance with the provisions of the Note Purchase Agreement.
This Note is a registered Note and is transferable only by surrender
hereof at the principal office of the Company as specified in the Note Purchase
Agreement, duly endorsed or accompanied by a written instrument of transfer
duly executed by the registered holder of this Note or its attorney duly
authorized in writing.
Under certain circumstances, as specified in the Note Purchase
Agreement, the principal of this Note (in certain cases together with any
applicable Make-Whole Amount) may be declared due and payable in the manner and
with the effect provided in the Note Purchase Agreement.
THIS NOTE AND THE NOTE PURCHASE AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, INTERNAL CONNECTICUT LAW.
CREDIT ACCEPTANCE CORPORATION
By________________________________
Name:
Title:
EXHIBIT A-2
<PAGE> 133
EXHIBIT B1
[FORM OF COMPANY'S COUNSEL OPINION]
[Letterhead of Dykema Gossett PLLC]
[Closing Date]
To each of the Persons
listed on Annex 1 hereto
Re: Credit Acceptance Corporation, a Michigan corporation (the
"Company")
Ladies and Gentlemen:
We have acted as special counsel to the Company and have provided this
opinion pursuant to the separate Note Purchase Agreements, each dated as of
August 1, 1996 (collectively, the "Note Purchase Agreement"), between the
Company and each of the purchasers listed on Annex 1 thereto (the
"Purchasers"), which provides, among other things, for the issuance and sale by
the Company of its 7.99% Senior Notes due July 1, 2001, in the aggregate
principal amount of Seventy Million Dollars ($70,000,000). The capitalized
terms used herein and not defined herein have the meanings specified in the
Note Purchase Agreement.
The law covered by the opinions expressed herein is limited to the
federal law of the United States and the laws of the State of Michigan. In
rendering the opinion in paragraph (4) below, we have assumed that the laws of
the State of Connecticut as to the enforceability of the Note Purchase
Agreement and the Notes are not different from the State of Michigan (excluding
the choice of law rules). In this regard, insofar as our opinions may involve
the laws of the State of Connecticut, we have relied, with the Purchasers'
consent, solely upon the opinion of Hebb & Gitlin, counsel to the Purchasers
referred to below.
In our examination, we have assumed the genuineness of all signatures
(other than signatures of officers of the Company), the legal capacity of
natural persons, the authenticity of all documents submitted to us as originals
or copies, the conformity with originals of all documents submitted to us as
copies and, as to documents executed by the Purchasers and Persons other than
the Company, that each such Person executing documents had the power to enter
into and perform its obligations under such documents, and that such documents
have been duly authorized, executed and delivered by, and are binding upon and
enforceable against, such Persons.
In rendering our opinion, we have relied, without further
investigation or analysis, upon certificates of officers of the Company
attached hereto; warranties and representations as to certain factual matters
made by the Company and by the Purchasers in the Note Purchase Agreement and in
related documents delivered to the Purchasers at the Closing pursuant thereto;
a letter to us and certain other Persons from the Placement Agent, describing
the
EXHIBIT B1-1
<PAGE> 134
manner of the offering of the Notes (the "Offeree Letter"); and said opinion of
Hebb & Gitlin with respect to all matters of Connecticut law.
In acting as such counsel, we have examined:
(a) the Note Purchase Agreement;
(b) the Company's 7.99% Senior Notes due July 1, 2001,
dated the date hereof, in the form of Exhibit A to the Note Purchase
Agreement and registered in the names, in the principal amounts and
with the registration numbers set forth on Annex 1 to the Note
Purchase Agreement (the "Notes");
(c) the documents executed and delivered by the Company
in connection with the transactions contemplated by the Note Purchase
Agreement;
(d) the bylaws of the Company, the records of proceedings
of the board of directors of the Company and a certified copy of the
articles of incorporation of the Company, as in effect on the date
hereof;
(e) a good standing certificate from the state of
incorporation of the Company, good standing certificates from the
state of incorporation of each Subsidiary, and foreign good standing
certificates for each of such corporations from each of the states set
forth in Part 2.8(d) of Annex 3 to the Note Purchase Agreement;
(f) the agreements identified as exhibits to the
Company's Annual Report on Form 10-K for the year ended December 31,
1995 (other than any such agreements which are expired, terminated or
superceded), together with the amendments dated as of April 19, 1996
and July 1, 1996 to the Credit Agreement (such agreements and notes
are referred to herein collectively as the "Material Agreements");
(g) the opinion of Hebb & Gitlin, counsel to the
Purchasers, dated the date hereof;
(h) originals, or copies certified or otherwise
identified to our satisfaction, of such other documents, records,
instruments and certificates of public officials as we have deemed
necessary or appropriate to enable us to render this opinion; and
(i) the Third Amendment to the Credit Agreement, dated
August 28, 1996, which includes the consent of the Banks to be
delivered to the Purchasers pursuant to Section 3.8 of the Note
Purchase Agreement, and the letter, dated August 28, 1996, from
Comerica Bank, as agent for the Banks.
Whenever our opinions herein are indicated to be to our knowledge or
awareness, it is intended to signify that during the course of our
representation of the Company as set forth above, no information has come to
the attention of the attorneys of this firm who have given substantive
attention to matters concerning the Company which would give such attorneys
actual knowledge of the existence or absence of facts contrary to such
opinions. However, except to the extent expressly set forth herein, we have
not undertaken an independent investigation to
EXHIBIT B1-2
<PAGE> 135
determine the existence or absence of such facts, and no inference as to our
knowledge of the existence or absence of such facts should be drawn from our
representation of the Company as set forth above.
The opinions in paragraphs (1) and (2) below as to the good standing
of the Company and the Subsidiaries are based solely upon certificates from
public officials of the states and countries listed in Part 2.3 and Part 2.8(d)
of Annex 3 to the Note Purchase Agreement; however, we have no knowledge of
information that would lead us to believe otherwise.
Based upon and subject to the foregoing and to the additional
assumptions, qualifications and limitations set forth herein, we are of the
opinion that:
1. Each of the Company and the Subsidiaries is a corporation duly
incorporated, validly existing and in good standing under the laws of its state
of incorporation and has the corporate power and authority to carry on its
business and own its Property.
2. Each of the Company and the Subsidiaries has duly qualified
and is in good standing as a foreign corporation in each state listed on Part
2.8(d) of Annex 3 to the Note Purchase Agreement.
3. The Company has the corporate power and authority to execute
and deliver the Note Purchase Agreement, to issue and sell the Notes as set
forth in, and subject to the terms and conditions of, the Note Purchase
Agreement, and to perform its obligations set forth in each of the Note
Purchase Agreement and the Notes.
4. Each of the Note Purchase Agreement and the Notes has been
duly authorized by all necessary corporate action on the part of the Company,
has been executed and delivered by duly authorized officers of the Company and
constitutes a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as (a) the
enforceability thereof may be limited by or subject to bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or similar laws now or
hereafter affecting creditors' rights generally, and (b) rights or remedies
(including, without limitation, acceleration, specific enforcement and
injunctive relief) may be limited by equitable principles of general
applicability (including, without limitation, standards of materiality, good
faith, fair dealing and reasonableness) whether such principles are considered
in a proceeding in equity or at law, and may be subject to the discretion of
the court before which any proceedings therefor may be brought.
5. All consents, approvals and authorizations of, and all
designations, declarations, filings, registrations, qualifications and
recordations with, Governmental Authorities required on the part of the Company
have been obtained in connection with the execution and delivery of the Note
Purchase Agreement and the Notes and the issuance and sale of the Notes.
6. The execution and delivery of the Note Purchase Agreement and
the Notes, and the issuance and sale of the Notes, in accordance with, and
subject to the terms and conditions of, the Note Purchase Agreement, by the
Company and the performance by the Company of its obligations thereunder do not
(a) violate the articles of incorporation or bylaws of the Company, (b) violate
any applicable statute, rule or regulation to which the Company is subject, or
(c) result
EXHIBIT B1-3
<PAGE> 136
in a breach of any provision of, constitute a default under, or result in the
creation or imposition of any Lien or encumbrance upon any of its Property or
the Property of a Subsidiary pursuant to any Material Agreement.
7. Under existing law, the offering, issuance, sale and delivery
of the Notes under the circumstances contemplated by the Note Purchase
Agreement are exempt transactions under the Securities Act and neither the
registration of the Notes under the Securities Act, nor the qualification of an
indenture with respect thereto under the Trust Indenture Act of 1939, as
amended, is required in connection with such transactions.
8. Neither the issuance of the Notes nor the intended use of the
proceeds of the Notes (as set forth in Part 2.18(a) of Annex 3 to the Note
Purchase Agreement) will violate Regulations G, T, U or X of the Federal
Reserve Board.
9. Neither the issuance and sale of the Notes nor the performance
by the Company of its obligations under the Note Purchase Agreement is subject
to regulation under the Investment Company Act of 1940, as amended, the Public
Utility Holding Company Act of 1935, as amended, the Transportation Acts, as
amended, or the Federal Power Act, as amended.
10. Except as set forth in Part 2.3 of Annex 3 to the Note
Purchase Agreement, all of the shares of the Subsidiaries have been validly
issued in the name of the Company and, to our knowledge, the Company owns such
shares free and clear of any Lien.
We hereby confirm, based solely upon inquiries of responsible officers
of the Company, the certificate of Brett A. Roberts attached hereto and
representations made by the Company in the Note Purchase Agreement, that, to
our knowledge, there are no actions, suits or proceedings pending, or overtly
threatened in writing against, the Company or any one or more of the
Subsidiaries, at law or in equity, before any court or Governmental Authority
except for any such action, suit or proceeding arising in the ordinary course
of the Company's business and those set forth in Part 2.6(a) of Annex 3 to the
Note Purchase Agreement.
In rendering the opinions expressed in paragraph (7), we have further
assumed, without investigation, (a) that neither the Company nor any person or
other entity will, after the offer, issue, sale, and delivery of the Notes,
take or omit to take any action which would cause such offer, issue, sale, and
delivery of the Notes not to constitute an exempt transaction under the
Securities Act, and (b) the accuracy and completeness of the Offeree Letter.
We express no opinion as to the conditions under which the Notes may be resold.
In rendering this opinion, we assume no obligation to revise or
supplement this opinion should any law now in effect be changed by legislative
action, judicial decision or otherwise.
We acknowledge that this opinion is being issued at the request of the
Company pursuant to Section 3.1 of the Note Purchase Agreement and we agree
that the parties listed on Annex 1 hereto may rely and are relying hereon in
connection with the consummation of the transactions contemplated by the Note
Purchase Agreement. Hebb & Gitlin may rely on this opinion for the sole
purpose of rendering their opinion to be rendered pursuant to Section 3.1(b) of
the Note Purchase Agreement.
EXHIBIT B1-4
<PAGE> 137
This opinion is solely for the information of the addressees hereof,
and is not to be quoted in whole or in part or otherwise referred to, nor is it
to be filed with any governmental agency or other person without our prior
written consent (except that you may furnish a copy hereof (i) to any one or
more of your employees, officers, directors, agents, attorneys, accountants or
professional consultants, (ii) to any state or federal authority or independent
insurance board or body having regulatory jurisdiction over any holder of a
Note, (iii) pursuant to order or legal process of any court or governmental
agency, (iv) in connection with any legal action in which you are a party
arising out of or in respect of the transactions contemplated under the Note
Purchase Agreement, and (v) for informational and due diligence purposes only,
to prospective transferees of the Notes). Other than the addressees hereof, no
one is entitled to rely on this opinion.
Very truly yours,
EXHIBIT B1-5
<PAGE> 138
ANNEX 1
ADDRESSEES
Massachusetts Mutual Life Insurance Company
1295 State Street
Springfield, Massachusetts 01111
UniCare Life & Health Insurance Company
21555 Oxnard Street 7B
Woodland Hills, California 91367
CM Life Insurance Company
1295 State Street
Springfield, Massachusetts 01111
Nationwide Life Insurance Company
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215-2220
Phoenix Home Life Mutual Insurance Company
56 Prospect Street
Hartford, Connecticut 06115-0480
Central States Health & Life Company of Omaha
30 N. LaSalle Street
Suite 3600
Chicago, Illinois 60602
The Charles Schwab Trust Company
FBO Guarantee Income Life Insurance Company
30 N. LaSalle
Suite 3600
Chicago, Illinois 60602
American Community Mutual Insurance
30 N. LaSalle, Suite 3600
Chicago, Illinois 60602
Central Re Corp. & Phoenix
30 N. LaSalle
Suite 3600
Chicago, Illinois 60602
Lone Star Life Insurance Company
30 N. LaSalle
Suite 3600
Chicago, Illinois 60602
EXHIBIT B1-6
<PAGE> 139
Ozark National Life Insurance Company
30 N. LaSalle
Suite 3600
Chicago, Illinois 60602
CSA Fraternal Life
30 N. LaSalle
Suite 3600
Chicago, Illinois 60602
Kanawha Insurance Company
30 N. LaSalle
Suite 3600
Chicago, Illinois 60602
Old Guard Mutual Insurance Company
30 N. LaSalle
Suite 3600
Chicago, Illinois 60602
Security Benefit Life Insurance Company
700 Harrison
Topeka, Kansas 66636
Aid Association for Lutherans
4321 N. Ballard Road
Appleton, Wisconsin 54919
Globe Indemnity Company
P.O. Box 1000
Charlotte, North Carolina 28201
Royal Indemnity Company
P.O. Box 1000
Charlotte, North Carolina 28201
Safeguard Insurance Company
P.O. Box 1000
Charlotte, North Carolina 28201
American & Foreign Ins. Co.
P.O. Box 1000
Charlotte, North Carolina 28201
Newark Insurance Company
P.O. Box 1000
Charlotte, North Carolina 28201
EXHIBIT B1-7
<PAGE> 140
Combined Insurance Company of America
123 N. Wacker Drive, 29th Floor
Chicago, Illinois 60606
Pan-American Life Insurance Company
Pan American Life Center
601 Poydras Street
New Orleans, Louisiana 70130
EXHIBIT B1-8
<PAGE> 141
CREDIT ACCEPTANCE CORPORATION
OFFICER'S CERTIFICATE
I, Brett A. Roberts, a duly elected officer of CREDIT ACCEPTANCE
CORPORATION, a Michigan corporation (the "Company"), hereby certify as follows:
1. I have access to the Company's corporate records and am
familiar with the matters certified herein, and I am authorized to execute and
deliver this certificate in the name and on behalf of the Company;
2. There are no actions, suits or proceedings pending, or overtly
threatened in writing against, the Company or any of its subsidiaries, at law
or in equity, before any court or Governmental Authority (as defined in the
Note Purchase Agreements dated as of August 1, 1996 between the Company and the
purchasers listed on Annex 1 thereto) except for any such action, suit or
proceeding arising in the ordinary course of the Company's business and those
set forth in Part 2.6(a) of Annex 3 to such Note Purchase Agreements.
IN WITNESS WHEREOF, I have executed this certificate in the name and
on behalf of the Company on August ___, 1996.
CREDIT ACCEPTANCE CORPORATION
By___________________________________
Brett A. Roberts
Treasurer and Chief Financial Officer
EXHIBIT B1-9
<PAGE> 142
SUBSIDIARY OFFICER'S CERTIFICATE
The undersigned, Richard E. Beckman, a duly elected officer of Credit
Acceptance Corporation, a Michigan corporation (the "Company"), and the
companies listed below (the "Subsidiaries"), all of which are subsidiaries of
the Company, hereby certifies as follows:
1. I have access to the Company's and the Subsidiaries' corporate
records and am familiar with the matters certified herein, and I am authorized
to execute and deliver this certificate in the name and on behalf of the
Company and the Subsidiaries;
2. Since October 1, 1994, none of the Subsidiaries have issued
any capital stock, except that CAC Insurance Agency of Ohio, Inc. has
recapitalized such that 10 shares of common stock are outstanding and are owned
by Thomas Ciatti and 1,000 shares of preferred stock are outstanding and are
owned by the Company;
3. The Company has not transferred or in any way disposed of any
of the shares of the Subsidiaries and holders all of the certificates
evidencing the outstanding capital stock of the Subsidiaries (other than a
certificate for 10 shares of common stock of CAC Insurance Agency of Ohio, Inc.
held by Thomas Ciatti).
IN WITNESS WHEREOF, I have executed this certificate in the name and
on behalf of the Company and the Subsidiaries on August ___, 1996.
CREDIT ACCEPTANCE CORPORATION
BUYERS VEHICLE PROTECTION PLAN, INC.
CREDIT ACCEPTANCE CORPORATION LIFE INSURANCE COMPANY
CREDIT ACCEPTANCE CORPORATION OF NEVADA, INC.
CREDIT ACCEPTANCE CORPORATION OF SOUTH DAKOTA, INC.
CAC INTERNATIONAL, INC.
CREDIT ACCEPTANCE PROPERTY AND CASUALTY AGENCY, INC.
CAC INSURANCE AGENCY OF OHIO, INC.
By:_____________________________
Richard E. Beckman
An Authorized Officer
EXHIBIT B1-10
<PAGE> 143
EXHIBIT B2
[FORM OF PURCHASERS' SPECIAL COUNSEL OPINION]
[Letterhead of Hebb & Gitlin]
[Closing Date]
To each of the Persons
listed on Annex 1 hereto
Re: Credit Acceptance Corporation, a Michigan corporation (the
"Company")
Ladies and Gentlemen:
Reference is made to the separate Note Purchase Agreements, each dated
as of August 1, 1996 (collectively, the "Note Purchase Agreement"), between the
Company and each of the purchasers listed on Annex 1 thereto (the
"Purchasers"), which provide, among other things, for the issuance and sale by
the Company of its 7.99% Senior Notes due July 1, 2001, in the aggregate
principal amount of Seventy Million Dollars ($70,000,000). The capitalized
terms used herein and not defined herein have the meanings specified in the
Note Purchase Agreement.
We have acted as special counsel to the Purchasers in connection with
the transactions contemplated by the Note Purchase Agreement. This opinion is
being delivered to you pursuant to Section 3.1(b) of the Note Purchase
Agreement.
In acting as such counsel, we have examined:
(a) the Note Purchase Agreement;
(b) the Company's 7.99% Senior Notes due July 1, 2001,
dated the date hereof, in the form of Exhibit A to the Note Purchase
Agreement, and registered in the names, in the principal amounts and
with the registration numbers set forth on Annex 1 to the Note
Purchase Agreement (the "Notes");
(c) a certificate of Senior Officers, substantially in
the form attached to the Note Purchase Agreement as Exhibit C;
(d) a certificate of the Assistant Secretary of the
Company, substantially in the form attached to the Note Purchase
Agreement as Exhibit D;
(e) a letter to Hebb & Gitlin and certain other Persons
from the Placement Agent, describing the manner of the offering of the
Notes (the "Offeree Letter");
EXHIBIT B2-1
<PAGE> 144
To each of the Persons
listed on Annex 1 hereto
[Closing Date]
Page 2
(f) the opinion of Dykema Gossett PLLC, counsel to the
Company, dated the date hereof and delivered to the Purchasers
pursuant to Section 3.1(a) of the Note Purchase Agreement; and
(g) originals, or copies certified or otherwise
identified to our satisfaction, of such other documents, records,
instruments and certificates of public officials as we have deemed
necessary or appropriate to enable us to render this opinion.
We have assumed the genuineness of all signatures and documents
submitted to us as originals, that all copies submitted to us conform to the
originals, the legal capacity of all natural Persons, and that each Person
(other than the Company) executing documents had the power to enter into and
perform its obligations under such documents, and that such documents have been
duly authorized, executed and delivered by, and are binding upon and
enforceable against, each such Person.
In rendering our opinion, we have relied, to the extent we deem
necessary and proper, on:
(A) warranties and representations as to certain factual
matters contained in the Note Purchase Agreement;
(B) the Offeree Letter; and
(C) such opinion of Dykema Gossett PLLC with respect to
all questions
(i) governed by Michigan law, and
(ii) concerning the due incorporation, valid
existence, good standing and corporate power and authority of,
and the authorization, execution and delivery of documents and
instruments by, the Company (except that we have made an
independent examination of a certified copy of the articles of
incorporation of the Company, a good standing certificate with
respect to the Company from the Department of Commerce of the
State of Michigan and the certificate of the Secretary of the
Company setting forth its bylaws and corporate resolutions
authorizing its participation in the transactions contemplated
by the Note Purchase Agreement);
based on such investigation as we have deemed appropriate, such
opinion is satisfactory in form and scope to us and in our opinion the
Purchasers and we are justified in relying thereon.
EXHIBIT B2-2
<PAGE> 145
To each of the Persons
listed on Annex 1 hereto
[Closing Date]
Page 3
Based on the foregoing, we are of the following opinions:
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Michigan.
2. The Company has the corporate power and authority to execute
and deliver the Note Purchase Agreement, to issue and sell the Notes and to
perform its obligations set forth in each of the Note Purchase Agreement and
the Notes.
3. Each of the Note Purchase Agreement and the Notes has been
duly authorized by all necessary corporate action on the part of the Company,
has been executed and delivered by a duly authorized officer of the Company and
constitutes a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms.
4. No consent, approval or authorization of any Governmental
Authority is required on the part of the Company under the laws of the United
States of America or the State of Connecticut in connection with the execution
and delivery by the Company of each of the Note Purchase Agreement and the
Notes, and the issuance and sale of the Notes by the Company. Our opinion in
this paragraph 4 is based solely on a review of generally applicable laws of
the United States of America and the State of Connecticut, and not on any
search with respect to, or review of, any orders, decrees, judgments or other
determinations specifically applicable to the Company.
5. The execution and delivery of the Note Purchase Agreement and
the Notes, and the issuance and sale of the Notes, by the Company and the
performance by the Company of its obligations thereunder do not violate the
articles of incorporation or bylaws of the Company.
6. Under existing law, neither the registration of the Notes
under the Securities Act, nor the qualification of an indenture with respect to
any thereof under the Trust Indenture Act of 1939, as amended, is required in
connection with the offering, issuance, sale and delivery of the Notes under
the circumstances contemplated by the Note Purchase Agreement.
All opinions contained herein with respect to the enforceability of
documents and instruments are qualified to the extent that:
(a) the availability of equitable remedies, including,
without limitation, specific enforcement and injunctive relief, is
subject to the discretion of the court before which any proceedings
therefor may be brought; and
(b) the enforceability of certain provisions of the Note
Purchase Agreement and the Notes may be limited by
EXHIBIT B2-3
<PAGE> 146
To each of the Persons
listed on Annex 1 hereto
[Closing Date]
Page 4
(i) applicable bankruptcy, reorganization,
arrangement, insolvency, moratorium or similar laws affecting
the enforcement of creditors' rights generally as at the time
in effect, and
(ii) common law or statutory requirements with
respect to commercial reasonableness.
Except in reliance on such opinion of Dykema Gossett PLLC, we express
no opinion as to the law of any jurisdiction other than the law of the State of
Connecticut and United States federal law.
Future holders of the Notes may rely on this opinion as if it were
addressed to them.
Very truly yours,
EXHIBIT B2-4
<PAGE> 147
ANNEX 1
ADDRESSEES
Massachusetts Mutual Life Insurance Company
1295 State Street
Springfield, Massachusetts 01111
UniCare Life & Health Insurance Company
21555 Oxnard Street 7B
Woodland Hills, California 91367
CM Life Insurance Company
1295 State Street
Springfield, Massachusetts 01111
Nationwide Life Insurance Company
One Nationwide Plaza (1-33-07)
Columbus, Ohio 43215
Phoenix Home Life Mutual Insurance Company
56 Prospect Street
Hartford, Connecticut 06115
Central States Health & Life Company of Omaha
30 N. LaSalle Street, Suite 3600
Chicago, Illinois 60602
The Charles Schwab Trust Company
FBO Guarantee Income Life Insurance Company
30 N. LaSalle, Suite 3600
Chicago, Illinois 60602
American Community Mutual Insurance
30 N. LaSalle, Suite 3600
Chicago, Illinois 60602
Central Re Corp. & Phoenix
30 N. LaSalle, Suite 3600
Chicago, Illinois 60602
Lone Star Life Insurance Company
30 N. LaSalle, Suite 3600
Chicago, Illinois 60602
Ozark National Life Insurance Company
30 N. LaSalle, Suite 3600
Chicago, Illinois 60602
EXHIBIT B2-5
<PAGE> 148
CSA Fraternal Life
30 N. LaSalle, Suite 3600
Chicago, Illinois 60602
Kanawha Insurance Company
30 N. LaSalle, Suite 3600
Chicago, Illinois 60602
Old Guard Mutual Insurance Company
30 N. LaSalle, Suite 3600
Chicago, Illinois 60602
Security Benefit Life Insurance Company
700 Harrison
Topeka, Kansas 66636
Aid Association for Lutherans
4321 N. Ballard Road
Appleton, Wisconsin 54919
Globe Indemnity Company
P.O. Box 1000
Charlotte, North Carolina 28201
Royal Indemnity Company
P.O. Box 1000
Charlotte, North Carolina 28201
Safeguard Insurance Company
P.O. Box 1000
Charlotte, North Carolina 28201
American & Foreign Ins. Co.
P.O. Box 1000
Charlotte, North Carolina 28201
Newark Insurance Company
P.O. Box 1000
Charlotte, North Carolina 28201
Combined Insurance Company of America
123 N. Wacker Drive, 29th Floor
Chicago, Illinois 60606
Pan-American Life Insurance Company
Pan American Life Center
601 Poydras Street
New Orleans, Louisiana 70130
EXHIBIT B2-6
<PAGE> 149
EXHIBIT C
[FORM OF OFFICERS' CERTIFICATE]
CREDIT ACCEPTANCE CORPORATION
CERTIFICATE OF OFFICERS
We, Richard E. Beckman and Donald A. Foss, each hereby certify that we
are, respectively, the President and Chief Operating Officer and the Chairman
and Chief Executive Officer of CREDIT ACCEPTANCE CORPORATION, a Michigan
corporation (the "Company"), and that, as such, we have access to its corporate
records and are familiar with the matters certified herein, and we are
authorized to execute and deliver this certificate in the name and on behalf of
the Company, and that:
1. This certificate is being delivered pursuant to
Section 3.3(a) of the Company's separate Note Purchase Agreements,
each dated as of August 1, 1996 (collectively, the "Note Purchase
Agreement"), with each of the purchasers listed on Annex 1 thereto
(collectively, the "Purchasers"). The terms used in this certificate
and not defined herein have the respective meanings specified in the
Note Purchase Agreement.
2. The warranties and representations contained in
Section 2 of the Note Purchase Agreement are true in all material
respects on the date hereof with the same effect as though made on and
as of the date hereof.
3. The Company has performed and complied with all
agreements and conditions contained in the Note Purchase Agreement
that are required to be performed or complied with by the Company
before or at the date hereof.
4. John Cavanaugh, from prior to August 8, 1996 to the
date hereof, inclusive, has been and is the duly elected, qualified
and acting Assistant Secretary of the Company, and the signature
appearing on the Certificate of Secretary dated the date hereof and
delivered to the Purchasers contemporaneously herewith is such
person's genuine signature.
EXHIBIT C-1
<PAGE> 150
IN WITNESS WHEREOF, we have executed this certificate in the name and
on behalf of the Company on August __, 1996.
CREDIT ACCEPTANCE CORPORATION
By______________________________
Name: Richard E. Beckman
Title: President and Chief Operating
Officer
By______________________________
Name: Donald A. Foss
Title: Chairman and Chief Executive
Officer
EXHIBIT C-2
<PAGE> 151
EXHIBIT D
[FORM OF ASSISTANT SECRETARY'S CERTIFICATE]
CREDIT ACCEPTANCE CORPORATION
CERTIFICATE OF ASSISTANT SECRETARY
I, John P. Cavanaugh, hereby certify that I am the duly elected,
qualified and acting Assistant Secretary of CREDIT ACCEPTANCE CORPORATION, a
Michigan corporation (the "Company"), and that, as such, I have access to its
corporate records and am familiar with the matters certified herein, and I am
authorized to execute and deliver this certificate in the name and on behalf of
the Company, and that:
1. This certificate is being delivered pursuant to
Section 3.3(b) of the Company's separate Note Purchase Agreements,
each dated as of August 1, 1996 (collectively, the "Note Purchase
Agreement"), with each of the purchasers listed on Annex 1 thereto
(collectively, the "Purchasers"). The terms used in this certificate
and not defined herein have the respective meanings specified in the
Note Purchase Agreement.
2. Attached hereto as Attachment A is a true and correct
copy of resolutions, and the preamble thereto, adopted by the Board of
Directors of the Company on August 8, 1996, and such resolutions and
preamble set forth in Attachment A hereto were duly adopted by such
Board of Directors and are in full force and effect on and as of the
date hereof, not having been amended, altered or repealed, and such
resolutions are filed with the records of the Board of Directors.
3. The documents listed below were executed and
delivered by the Company pursuant to and in accordance with the
resolutions set forth in Attachment A hereto and such documents as
executed are substantially in the form submitted to and approved by
the board of directors of the Company as aforementioned:
(a) the Note Purchase Agreement, providing for
the sale by the Company and the purchase by the Purchasers of
the Company's 7.99% Senior Notes due July 1, 2001 (the
"Notes"); and
(b) the Notes.
4. Attached hereto as Attachment B is a true, correct
and complete copy of the bylaws of the Company as in full force and
effect on and as of the date hereof, which bylaws were last amended by
the Board of Directors of the Company on, and have been in full effect
in such form at all times from October 28, 1994 to the date hereof,
inclusive, without modification or amendment in any respect.
EXHIBIT D-1
<PAGE> 152
5. Each of the following named persons is and has been a
duly elected, qualified and acting officer of the Company holding the
office or offices set forth below opposite such person's name from
prior to August 8, 1996 to the date hereof, inclusive:
Name Office Signature
Donald A. Foss Chairman of the Board and
Chief Executive Officer
/s/________________________
President and
Richard E. Beckman Chief Operating Officer
/s/________________________
Treasurer and
Brett A. Roberts Chief Financial Officer
/s/________________________
Allan V. Apple Secretary
/s/________________________
John P. Cavanaugh Assistant Secretary
/s/________________________
6. The signature appearing opposite the name of each
such person set forth above is such person's genuine
signature.
7. Attached hereto as Attachment C is a certificate of
Good Standing with respect to the Company from the State of Michigan.
8. Attached hereto as Attachment D are the Articles of
Incorporation of the Company certified by the Director of the Michigan
Department of Consumer and Industry Services.
9. There have been no amendments or supplements to or
restatements of the Articles of Incorporation of the Company since
July 31, 1996.
IN WITNESS WHEREOF, I have executed this certificate in the name and
on behalf of the Company on August __, 1996.
CREDIT ACCEPTANCE CORPORATION
______________________________
Assistant Secretary
EXHIBIT D-2
<PAGE> 153
ATTACHMENT A
BOARD OF DIRECTORS
CREDIT ACCEPTANCE CORPORATION
RESOLUTIONS ADOPTED
WHEREAS, there has been submitted to this Board a draft of the form of
Note Purchase Agreement (together with all exhibits and schedules thereto, the
"Note Purchase Agreement"), to be entered into separately by the Company and
each of the purchasers listed on Annex 1 thereto (together with any affiliate
thereof, the "Purchasers") pursuant to which the Purchasers will purchase from
the Company the aggregate principal amount of $70,000,000 of the Company's
7.99% Senior Notes due 2001 (the "Notes"); and
WHEREAS, this Board has reviewed in detail and discussed the terms and
provisions of the Note Purchase Agreement, including the form of the Notes
specified therein; and
WHEREAS, on the basis of its review of the Note Purchase Agreement and
of the principal terms and provisions of the transactions provided for therein,
this Board deems it advisable and in the best interests of the Company that the
transactions provided in the Note Purchase Agreement be consummated
substantially in accordance with the provisions of the Note Purchase Agreement;
and
WHEREAS, terms used in these preambles and resolutions and not defined
herein shall have the respective meanings specified in the Note Purchase
Agreement;
NOW THEREFORE, BE IT RESOLVED, that the form of, and each of the terms
and provisions contained in, the Note Purchase Agreement, are hereby authorized
and approved in each and every respect; and each and every transaction effected
or to be effected pursuant to and substantially in accordance with the terms of
the Note Purchase Agreement, including, but not limited to, each specific
transaction that is described, authorized and approved in these resolutions, is
hereby authorized and approved in each and every respect;
RESOLVED, that the Company enter into a Note Purchase Agreement with
each of the Purchasers or any affiliate thereof; and that each of the Chairman
of the Board, the President, any Vice President, the Treasurer and each other
officer of the Company (each an "Authorized Officer") is hereby severally
authorized to execute and deliver, in the name and on behalf of the Company,
the Note Purchase Agreements, each substantially in the form thereof presented
to this Board and heretofore approved, with such changes therein as shall be
approved by the officer executing and delivering the same, such approval to be
evidenced conclusively by such execution and delivery; and
RESOLVED, that the Company borrow from the Purchasers an aggregate
amount of funds as provided in the Note Purchase Agreement, such indebtedness
to be evidenced by the Notes, in the amounts and upon the terms and conditions
provided for in the Note Purchase
EXHIBIT D-3
<PAGE> 154
Agreement; and that each of the Authorized Officers is hereby severally
authorized to execute and deliver the Notes, in the name and on behalf of the
Company, substantially in the form thereof presented to this Board and
heretofore approved, with such changes therein as shall be approved by the
officer or officers executing and delivering the same, such approval to be
evidenced conclusively by such execution and delivery; and
RESOLVED, that the Company enter into an amendment of the Company's
note purchase agreements dated as of October 1, 1994 (the "Second Amendment")
to amend certain covenants and defined terms therein to conform the same to the
corresponding covenants and defined terms set forth in the Note Purchase
Agreement; and
RESOLVED, that this Board hereby authorizes each of the Authorized
Officers, severally, to execute and deliver for and on behalf of the Company
the certificates required by the Note Purchase Agreement; and
RESOLVED, that the Authorized Officers and any person or persons
designated and authorized so to act by any Authorized Officer are hereby each
severally authorized to do and perform or cause to be done and performed, in
the name and on behalf of the Company, all other acts, to pay or cause to be
paid, on behalf of the Company, all related costs and expenses and to execute
and deliver or cause to be executed and delivered such other notices, requests,
demands, directions, consents, approvals, orders, applications, agreements,
instruments, certificates, undertakings, supplements, amendments, further
assurances or other communications of any kind, under the corporate seal of the
Company or otherwise and in the name of and on behalf of the Company or
otherwise, as he, she or they may deem necessary, advisable or appropriate to
effect the intent of the foregoing resolutions or to comply with the
requirements of the instruments approved and authorized by the foregoing
resolutions, including, but not limited to, the Note Purchase Agreement, the
Notes and the Second Amendment; and
RESOLVED, that any acts of any Authorized Officer of the Company and
of any person or persons designated and authorized to act by any Authorized
Officer of the Company, which acts would have been authorized by the foregoing
resolutions except that such acts were taken prior to the adoption of such
resolutions, are hereby severally ratified, confirmed, approved and adopted as
the acts of the Company; and
RESOLVED, that each of the Secretary and each Assistant Secretary of
the Company is hereby severally authorized and empowered to certify to the
passage of the foregoing resolutions under the seal of this Company or
otherwise.
EXHIBIT D-4
<PAGE> 155
ATTACHMENT B
BYLAWS OF THE COMPANY
[TO BE SUPPLIED BY COMPANY]
EXHIBIT D-5
<PAGE> 156
ATTACHMENT C
CERTIFICATE OF GOOD STANDING OF THE COMPANY
[TO BE SUPPLIED BY COMPANY]
EXHIBIT D-6
<PAGE> 157
ATTACHMENT D
ARTICLES OF INCORPORATION OF THE COMPANY
[TO BE SUPPLIED BY COMPANY]
EXHIBIT D-7
<PAGE> 1
CREDIT ACCEPTANCE CORPORATION EXHIBIT 11(1)
STATEMENT OF COMPUTATION OF NET
INCOME PER COMMON SHARE
(Unaudited)
<TABLE>
<CAPTION>
(Dollars in thousands, except per share data) THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
-------------------------- --------------------------
1995 1996 1995 1996
------------ ----------- ------------ -----------
<S> <C> <C> <C> <C>
Actual
Net income ....................................... $ 7,624 $ 10,643 $ 20,822 $ 29,968
Weighted average common shares outstanding ....... 41,443,376 45,629,053 41,345,337 45,570,328
Common stock equivalents ......................... 1,170,902 1,001,155 1,180,772 945,100
Weighted average common shares and
common stock equivalents ...................... 42,614,278 46,630,208 42,526,109 46,515,428
------------ ----------- ----------- -----------
Net earnings per share ......................... $ .18 $ .23 $ .49 $ .64
============ =========== =========== ===========
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> SEP-30-1996
<CASH> 26
<SECURITIES> 6,051
<RECEIVABLES> 930,949
<ALLOWANCES> (10,658)
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 16,370
<DEPRECIATION> (3,187)
<TOTAL-ASSETS> 959,986
<CURRENT-LIABILITIES> 0
<BONDS> 134,069
0
0
<COMMON> 228
<OTHER-SE> 230,585
<TOTAL-LIABILITY-AND-EQUITY> 959,986
<SALES> 0
<TOTAL-REVENUES> 88,309
<CGS> 0
<TOTAL-COSTS> 22,354
<OTHER-EXPENSES> 2,470
<LOSS-PROVISION> 8,869
<INTEREST-EXPENSE> 8,625
<INCOME-PRETAX> 45,994
<INCOME-TAX> 16,026
<INCOME-CONTINUING> 29,968
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 29,968
<EPS-PRIMARY> .64
<EPS-DILUTED> .64
</TABLE>
