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Exhibit 10.1

THIRD AMENDMENT TO CREDIT AGREEMENT

THIS THIRD AMENDMENT TO CREDIT AGREEMENT, dated as of May 28, 2010 (this “Amendment”), is by and among ASSET ACCEPTANCE CAPITAL CORP. (the “Borrower”), the Lenders party to the Credit Agreement described below (collectively, the “Lenders” and individually, a “Lender”), and JPMORGAN CHASE BANK, N.A., a national banking association, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”).

RECITALS

A. The Borrower, the Administrative Agent and the Lenders entered into a Credit Agreement, dated as of June 5, 2007 (as amended or modified from time to time, the “Credit Agreement”).

B. The Borrower desires to amend the Credit Agreement, and the Administrative Agent and the Lenders are willing to do so strictly in accordance with the terms hereof.

TERMS

In consideration of the premises and of the mutual agreements herein contained, the parties agree as follows:

ARTICLE 1.

AMENDMENTS

Upon the satisfaction of the conditions set forth in Article 3 hereof, the Credit Agreement shall be amended as follows:

1.1 The following definitions in Section 1.01 of the Credit Agreement are restated as follows:

Applicable Margin” means, for any day, (a) with respect to any Eurocurrency Loan or ABR Loan that is a Tranche B Term Loan, as the case may be, the applicable rate per annum set forth below under the caption “Tranche B Eurocurrency Spread” or “Tranche B ABR Spread”, as the case may be, based upon the Leverage Ratio as of the most recent determination date and (b) with respect to any Eurocurrency Loan or ABR Loan that is a Revolving Loan or with respect to the commitment fees or fees on Letters of Credit payable hereunder, as the case may be, the applicable rate per annum set forth below under the caption “Revolving Eurocurrency Spread”, “Revolving ABR Spread”, “Commitment Fee Rate” or “Letter of Credit Fee”, as the case may be, based upon the Leverage Ratio as of the most recent determination date:

 

Level

   Leverage Ratio    Tranche B
Eurocurrency
Spread
  Revolving
Eurocurrency
Spread and Letter
of Credit Fee
  Tranche B
ABR  Spread
   Revolving
ABR Spread
   Commitment
Fee Rate
I    < 0.875    3.25%   3.00%   2.25%    2.00%    0.50%
II    ³ 0.875 and < 1.125    3.50%   3.25%   2.50%    2.25%    0.50%
III    ³1.125    3.50%   3.50%   2.50%    2.50%    0.50%

 

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The Applicable Margin shall be determined in accordance with the foregoing table based on the Leverage Ratio as of the end of each Fiscal Quarter. Adjustments, if any, to the Applicable Margin shall be effective the first day of the month following the month that the Administrative Agent is scheduled to receive the applicable financials under Section 5.01(a) or (b) and certificate under Section 5.01(c). If the Borrower fails to deliver the financials to the Administrative Agent at the time required hereunder, then the Applicable Margin shall be set at Level III until such financials are so delivered. Notwithstanding anything herein to the contrary, the Applicable Margin shall be set at Level III as of the effective date of the Third Amendment to this Agreement, and shall not be changed from Level III until receipt of the financials under Section 5.01(a) and the certificate under Section 5.01(c) for the fiscal year ending December 31, 2010.

Consolidated Adjusted EBITDA” means Consolidated Net Income plus, to the extent deducted from revenues in determining Consolidated Net Income, (a) Consolidated Interest Expense, (b) expense for taxes paid or accrued net of tax refunds, (c) depreciation expense, (d) amortization expense (excluding amortization of Receivables), (e) the Amortized Collections, (f) non-cash losses and non-cash expenses, and (g) the FTC Charges, minus, to the extent included in Consolidated Net Income, extraordinary gains (as determined in accordance with GAAP) realized other than in the ordinary course of business and non-cash gains and other non-cash income, all calculated for the Borrower and its Subsidiaries on a consolidated basis.

Consolidated Tangible Net Worth” means at any time the consolidated stockholders’ equity of the Borrower and its Subsidiaries calculated on a consolidated basis as of such time, less the net book value of all goodwill and other assets which are deemed intangible assets under GAAP, provided that (i) leasehold improvements and computer software shall not be considered intangible assets for purposes of this definition regardless of their classification under GAAP and (ii) the FTC Charges shall be added back to Consolidated Tangible Net Worth.

1.2 The following definitions are added to Section 1.01 of the Credit Agreement in appropriate alphabetical order:

FTC Charges” means the lesser of (a) the aggregate amount of charges and other losses resulting from the investigation (the “Investigation”) commenced prior to the effective date of the Third Amendment to this Agreement by the Federal Trade Commission of the debt collection-related practices of the Borrower and its Subsidiaries, to include, without limitation, any fines, civil monetary penalties, or other monetary relief to be paid by the Borrower or any of its Subsidiaries as a result of a consent decree or a contested action, any expense related to any accrual for such amounts, and fees and disbursements of counsel for the Borrower or any of its Subsidiaries incurred in connection with the Investigation or defense of any governmental action or other proceeding arising from the Investigation, or (b) $7,000,000.

2009 Q-4 Impairment Charges” means the lesser of (a) the amount of the losses resulting from the recognition of asset impairment charges on purchased receivables of the Borrower and its Subsidiaries in the fourth Fiscal Quarter of 2009 or (b) $20,000,000.

1.3 Section 6.12(c) is restated as follows:

(c) Ratio of Total Liabilities to Tangible Net Worth. Permit or suffer the ratio of the Consolidated Total Liabilities to the Consolidated Tangible Net Worth to exceed (i) 2.50 to 1.0 at any time on or before December 30, 2011, (ii) 2.25 to 1.0 at any time on or after December 31, 2011 and on or before March 30, 2012, or (iii) 2.00 to 1.0 to any time thereafter; provided that, for purposes of this Section 6.12(c) only, the 2009 Q-4 Impairment Charges shall be added back to Consolidated Tangible Net Worth.

 

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ARTICLE 2.

REPRESENTATIONS

The Borrower represents and warrants to the Administrative Agent and the Lenders that:

2.1 The execution, delivery and performance of this Amendment are within the Borrower’s corporate powers and have been duly authorized by all necessary corporate and, if required, stockholder action. This Amendment has been duly executed and delivered by the Borrower and constitutes a legal, valid and binding obligation of the Borrower, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

2.2 The execution, delivery and performance of this Amendment by the Borrower (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (b) will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of the Borrower or any of its Subsidiaries or any order of any Governmental Authority, (c) will not violate or result in a default under any indenture, agreement or other instrument binding upon the Borrower or any of its Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by the Borrower or any of its Subsidiaries, and (d) will not result in the creation or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.

2.3 After giving effect to the amendments herein contained, the representations and warranties contained in Article III of the Credit Agreement and the representations and warranties contained in the other Loan Documents are true on and as of the date hereof with the same force and effect as if made on and as of the date hereof.

2.4 No Default exists or has occurred and is continuing on the date hereof.

ARTICLE 3.

CONDITIONS PRECEDENT

This Amendment shall become effective as of the date hereof when each of the following conditions is satisfied:

3.1 The Borrower and the Required Lenders shall have signed this Amendment.

3.2 The Guarantors shall have signed the Consent and Agreement hereto.

3.3 The Borrower shall have paid to the Administrative Agent, for the account of each Lender that has signed this Amendment on or before 5:00 pm eastern time on the date hereof, a fee in an amount equal to 25.0 basis points on the sum of such Lender’s Revolving Commitment plus the outstanding principal balance of such Lender’s Tranche B Term Loan.

3.4 The Borrower shall have delivered or caused to be delivered to the Administrative Agent such other documents and satisfied such other conditions as required by the Administrative Agent.

 

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ARTICLE 4.

MISCELLANEOUS.

4.1 References in the Credit Agreement or in any other Loan Document to the Credit Agreement shall be deemed to be references to the Credit Agreement as amended hereby and as further amended from time to time.

4.2 Except as expressly amended hereby, each of the Borrower and each Guarantor (by Consent and Agreement hereto) acknowledges and agrees that (a) the Credit Agreement and all other Loan Documents are ratified and confirmed and shall remain in full force and effect, (b) it has no set off, counterclaim, defense or other claim or dispute with respect to any Loan Document, and (c) it has no actual or potential claim or cause of action against the Administrative Agent or any Lender with respect to any matters through the date hereof, and hereby waives and agrees not to assert any claims or causes of action against the Administrative Agent, any Lender or any of their Affiliates, or any of their respective officers, directors, employees, attorneys and agents, on any theory of liability, whether known or unknown, matured or contingent, including, without limitation, for special, indirect, consequential or punitive damages, arising by virtue of any actions taken, actions omitted, or the occurrence of any event prior to the date hereof, arising out of or relating to, or in connection with, this Amendment, the other Loan Documents or any of the transactions entered into in connection therewith or contemplated thereby.

4.3 This Amendment shall be governed by and construed in accordance with the laws of the State of Michigan. This Amendment may be signed upon any number of counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument, and signatures sent by facsimile or electronic mail message shall be effective as originals. Terms used but not defined herein shall have the respective meanings ascribed thereto in the Credit Agreement. This Amendment is a Loan Document.

 

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IN WITNESS WHEREOF, the parties signing this Amendment have caused this Amendment to be executed and delivered as of the day and year first above written.

 

ASSET ACCEPTANCE CAPITAL CORP.
By  

/s/ Rion B. Needs

  Name:   Rion B. Needs
  Title:   President

 

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JPMORGAN CHASE BANK, NATIONAL ASSOCIATION

individually and as Administrative Agent,

By  

/s/ Carlton M. Faison

  Name:   Carlton M. Faison
  Title:   Senior Vice President

 

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RBS CITIZENS, N.A. (f/k/a Charter One Bank, N.A.)
By  

/s/ Megan Livingston

  Name:   Megan Livingston
  Title:   Vice President
CITIZENS BANK
By  

/s/ Matthew Nelson

  Name:   Matthew Nelson
  Title:   Fist Vice President
FIFTH THIRD BANK, an Ohio banking corporation, successor by merger with Fifth Third Bank, a Michigan banking corporation
By  

/s/ John Antonczak

  Name:   John Antonczak
  Title:   Vice President
BANK OF AMERICA, N.A., successor to LASALLE BANK MIDWEST N.A.
By  

/s/ Neil Hilton

  Name:   Neil Hilton
  Title:   SVP
BANK OF SCOTLAND plc
By  

/s/ Julia R. Franklin

  Name:   Julia R. Franklin
  Title:   Assistant Vice President
BMO CAPITAL MARKETS FINANCING, INC.
By  

/s/ Catherine Grycz

  Name:   Catherine Grycz
  Title:   Vice President
PNC BANK, NATIONAL ASSOCIATION, successor by merger with NATIONAL CITY BANK
By  

/s/ Steven E. Dicker

  Name:   Steven E. Dicker
  Title:   Vice President

 

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Term Loan B Lenders:
Name: Airlie CLO 2006-I, Ltd.

By Neuberger Berman Fixed Income LLC

as collateral manager

By  

/s/ Colin Donlan

  Name:   Colin Donlan
  Title:   Authorized Signatory
AMMC CLO VI, LIMITED
By:  

American Money Management Corp.,

as Collateral Manager

By  

/s/ Kenneth J. Bushman

  Name:   Kenneth J. Bushman
  Title:   Vice President
AMMC VIII, LIMITED
By:  

American Money Management Corp.,

as Collateral Manager

By  

/s/ Kenneth J. Bushman

  Name:   Kenneth J. Bushman
  Title:   Vice President
Name:  

Apidos CDO I

By its investment adviser Apidos Capital Management, LLC
By  

/s/ Gretchen Bergstresser

  Name:   Gretchen Bergstresser
  Title:   Managing Director
Name:  

Apidos CDO II

By its investment adviser Apidos Capital Management, LLC
By  

/s/ Gretchen Bergstresser

  Name:   Gretchen Bergstresser
  Title:   Managing Director
Name:  

Apidos CDO III

By its investment adviser Apidos Capital Management, LLC
By  

/s/ Gretchen Bergstresser

  Name:   Gretchen Bergstresser
  Title:   Managing Director

 

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Name:  

Apidos CDO IV

By its investment adviser Apidos Capital Management, LLC
By  

/s/ Gretchen Bergstresser

  Name:   Gretchen Bergstresser
  Title:   Managing Director
Name:  

Apidos Cinco CDO

By its investment adviser Apidos Capital Management, LLC
By  

/s/ Gretchen Bergstresser

  Name:   Gretchen Bergstresser
  Title:   Managing Director
Name:  

Atrium VI Funding

By  

/s/ Louis Farano

  Name:   Louis Farano
  Title:   Authorized Signatory
By Commercial Industrial Finance Corp., the Collateral Manager for:
Name:   CIFC Funding 2007-3, Ltd.
  CIFC Funding 2007-4, Ltd.
By  

/s/ Steve Vaccaro

  Name:   Steve Vaccaro
  Title:   Co Chief Investment Officer
EAGLE LOAN TRUST
By:   Stanfield Capital Partners, LLC as its Collateral Manager
By  

/s/ Christopher E. Jansen

  Name:   Christopher E. Jansen
  Title:   Managing Partner
Name:   General Electric Capital Corporation
By  

/s/ Jeff Skinner

  Name:   Jeff Skinner
  Title:   Duly Authorized Signatory

 

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Name: GREENLANE CLO LTD.
By:  

Guggenheim Investment Management, LLC

as Collateral Manager

By  

/s/ Kaitlin Trinh

  Name:   Kaitlin Trinh
  Title:   Director
GULF STREAM-SEXTANT CLO 2007-I, LTD
By:  

Gulf Stream Asset Management LLC

as Collateral Manager

By  

/s/ Stephen M. Riddell

  Name:   Stephen M. Riddell
  Title:   Portfolio Manager
KINGSLAND I, LTD
By:  

Kingsland Capital Management, LLC,

as Manager

By  

/s/ Vincent Siino

  Name:   Vincent Siino
  Title:   Authorized Officer
KINGSLAND II, LTD
By:  

Kingsland Capital Management, LLC,

as Manager

By  

/s/ Vincent Siino

  Name:   Vincent Siino
  Title:   Authorized Officer
KINGSLAND III, LTD
By:  

Kingsland Capital Management, LLC,

as Manager

By  

/s/ Vincent Siino

  Name:   Vincent Siino
  Title:   Authorized Officer
KINGSLAND IV, LTD
By:  

Kingsland Capital Management, LLC,

as Manager

By  

/s/ Vincent Siino

  Name:   Vincent Siino
  Title:   Authorized Officer

 

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KINGSLAND V, LTD
By:  

Kingsland Capital Management, LLC,

as Manager

By  

/s/ Vincent Siino

  Name:   Vincent Siino
  Title:   Authorized Officer
Name:   LightPoint CLO III, Ltd.

By Newberger Berman Fixed Income LLC

as collateral manager

By  

/s/ Colin Donlan

  Name:   Colin Donlan
  Title:   Authorized Signatory
Name:   LightPoint CLO IV, Ltd.

By Newberger Berman Fixed Income LLC

as collateral manager

By  

/s/ Colin Donlan

  Name:   Colin Donlan
  Title:   Authorized Signatory
Name:   LightPoint CLO V, Ltd.

By Newberger Berman Fixed Income LLC

as collateral manager

By  

/s/ Colin Donlan

  Name:   Colin Donlan
  Title:   Authorized Signatory
Name:   LightPoint CLO VII, Ltd.

By Newberger Berman Fixed Income LLC

as collateral manager

By  

/s/ Colin Donlan

  Name:   Colin Donlan
  Title:   Authorized Signatory
Name:   LightPoint CLO VIII, Ltd.

By Newberger Berman Fixed Income LLC

as collateral manager

By  

/s/ Colin Donlan

  Name:   Colin Donlan
  Title:   Authorized Signatory

 

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FEINGOLD O’KEEFFE CAPITAL, LLC
as Collateral Manager for Lime Street CLO, Ltd.
By  

/s/ Scott D’Orsi

  Name:   Scott D’Orsi
  Title:   Portfolio Manager
Name:   Longhorn CDO III Ltd.
  BlackRock Senior Income Series V Limited
By  

/s/ Zack Alpern

  Name:   Zack Alpern
  Title:   Authorized Signatory.
Name:   Mountain View CLO III Ltd.
By:  

Seix Investment Advisors LLC,

as Collateral Manager

By  

/s/ George Goudelias

  Name:   George Goudelias
  Title:   Managing Director
Name:   Pioneer Floating Rate Fund
  Pioneer Diversified High Income Trust
  Pioneer Institutional Solutions – Credit Opportunities
By:   Pioneer Investment Management, Inc.,
  Its advisor
By  

/s/ Margaret C. Begley

  Name:   Margaret C. Begley
  Title:   Assistant Secretary and
    Associate General Counsel
Name:   Montpelier Investments Holdings, Ltd.
By:   Pioneer Institutional Asset Management, Inc.,
  Its advisor
By:  

/s/ Margaret C. Begley

  Name:   Margaret C. Begley
  Title:   Assistant Secretary and
    Associate General Counsel

 

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Name: PPM GRAYHAWK CLO, LTD.
By  

/s/ David C. Wagner

  PPM America, Inc. as Collateral Manager
  Name:   David C. Wagner
  Title:   Managing Director
Name:   Shiprock Finance, SPC, acting on behalf of and for the account of SF-3 Segregated Portfolio
By  

/s/ Patrick M. Cook

  Name:   Patrick M. Cook
  Title:   Assistance Vice President
SPR, LTD.
By:  

Four Corners Capital Management, LLC

As Collateral Manager

By  

/s/ Matt O’Mara

  Name:   Matt O’Mara
  Title:   Vice President
SILVERADO CLO 2006-II LIMITED
By:  

New York Life Investment Management, LLC

as Portfolio Manager and Attorney-in-Fact

By  

/s/ Arthur Torrey

  Name:   Arthur Torrey
  Title:   Director
Stanfield Arnage CLO Ltd.
By:  

Stanfield Capital Partners, LLC

as its Collateral Manager

By  

/s/ Christopher E. Jansen

  Name:   Christopher E. Jansen
  Title:   Managing Partner
Stanfield Azure, CLO Ltd.
By:  

Stanfield Capital Partners, LLC

as its Collateral Manager

By  

/s/ Christopher E. Jansen

  Name:   Christopher E. Jansen
  Title:   Managing Partner

 

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Stanfield Bristol CLO, Ltd.
By:  

Stanfield Capital Partners, LLC

as its Collateral Manager

By  

/s/ Christopher E. Jansen

  Name:   Christopher E. Jansen
  Title:   Managing Partner
Stanfield Carrera CLO, Ltd.
By:  

Stanfield Capital Partners, LLC

as its Asset Manager

By  

/s/ Christopher E. Jansen

  Name:   Christopher E. Jansen
  Title:   Managing Partner
Stanfield Daytona CLO, Ltd.
By:  

Stanfield Capital Partners, LLC

as its Collateral Manager

By  

/s/ Christopher E. Jansen

  Name:   Christopher E. Jansen
  Title:   Managing Partner
Stanfield McLaren CLO, Ltd.
By:  

Stanfield Capital Partners, LLC

as its Collateral Manager

By  

/s/ Christopher E. Jansen

  Name:   Christopher E. Jansen
  Title:   Managing Partner
Stanfield Modena CLO, Ltd.
By:  

Stanfield Capital Partners, LLC

as its Asset Manager

By  

/s/ Christopher E. Jansen

  Name:   Christopher E. Jansen
  Title:   Managing Partner
Stanfield Vantage CLO, Ltd.
By:  

Stanfield Capital Partners, LLC

as its Asset Manager

By  

/s/ Christopher E. Jansen

  Name:   Christopher E. Jansen
  Title:   Managing Partner

 

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Stanfield Veyron CLO, Ltd.
By:  

Stanfield Capital Partners, LLC

as its Collateral Manager

By  

/s/ Christopher E. Jansen

  Name:   Christopher E. Jansen
  Title:   Managing Partner
Name: Symphony CLO IV, Ltd.
By:   Symphony Asset Management, LLC
By  

/s/ Scott Caraher

  Name:   Scott Caraher
  Title:   Portfolio Manager
Name:   Symphony CLO V, Ltd.
By:   Symphony Asset Management, LLC
By  

/s/ Scott Caraher

  Name:   Scott Caraher
  Title:   Portfolio Manager
WhiteHorse I, Ltd.
By:  

WhiteHorse Capital Partners, L.P.

as collateral manager

By   WhiteRock Asset Advisor, LLC, its G.P.
By  

/s/ Ethan M. Underwood, CFA

  Name:   Ethan M. Underwood, CFA
  Title:   Portfolio Manager
Name:   1888 Fund, LTD.
By:  

Guggenheim Investment Management, LLC

as Collateral Manager

By  

/s/ Kaitlin Trinh

  Name:   Kaitlin Trinh
  Title:   Director

 

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CONSENT AND AGREEMENT

As of the date and year first above written, each of the undersigned hereby:

(a) fully consents to the terms and provisions of the above Amendment and the consummation of the transactions contemplated hereby and acknowledges and agrees to all of the representations, covenants, terms and provisions of the above Amendment applicable to it;

(b) represents and warrants to the Administrative Agent and the Lenders that (i) the execution, delivery and performance of this Consent and Agreement are within its corporate powers and have been duly authorized by all necessary corporate and, if required, stockholder action, (ii) this Consent and Agreement has been duly executed and delivered by it and constitutes a legal, valid and binding obligation of it, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law and (iii) the execution, delivery and performance of this Consent and Agreement by it (w) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (x) will not violate any applicable law or regulation or its charter, by-laws or other organizational documents or any of its Subsidiaries or any order of any Governmental Authority, (y) will not violate or result in a default under any indenture, agreement or other instrument binding upon it or any of its Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by it or any of its Subsidiaries, and (z) will not result in the creation or imposition of any Lien on any of its assets; and

(c) acknowledges that its consent and agreement hereto is a condition to the Lenders’ obligation under the above Amendment and it is in its interest and to its financial benefit to execute this consent and agreement.

 

ASSET ACCEPTANCE, LLC
By  

/s/ Rion B. Needs

  Name:   Rion B. Needs
  Title:   President
CONSUMER CREDIT, LLC
By  

/s/ Rion B. Needs

  Name:   Rion B. Needs
  Title:   President
PREMIUM ASSET RECOVERY CORPORATION
By  

/s/ Rion B. Needs

  Name:   Rion B. Needs
  Title:   President

 

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