Attached files
| file | filename |
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| 8-K - DRIVETIME AUTOMOTIVE GROUP INC | v200022_8k.htm |
Exhibit 10.1
AMENDMENT NO. 7 TO THE
THIRD AMENDED AND RESTATED LOAN
AND S
ECURITY
AGREEMENT
This
AMENDMENT NO. 7 TO THE THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
(this “Amendment”), dated as
of October 20, 2010, is entered into by and among DriveTime Automotive Group,
Inc., a Delaware corporation (“DriveTime”),
DriveTime Sales and Finance Company, LLC, an Arizona limited liability company
(“DriveTime
Sales”), as successor in interest to DriveTime Sales and Finance
Corporation, DriveTime Car Sales Company, LLC, an Arizona limited liability
company (“Car
Sales”), as successor in interest to DriveTime Car Sales, Inc. (each a
“Borrower” and
collectively, the “Borrowers”), and
Santander Consumer USA Inc., an Illinois corporation, as a lender, and as the
agent for the Lenders (“SCUSA” or the “Agent”), and Manheim
Automotive Financial Services, Inc., a Delaware corporation, as a lender (“MAFS” and, together
with the Agent, the “Lenders” and each a
“Lender”).
WHEREAS,
on August 10, 2009, the Borrowers and the Lenders entered into the Third Amended
and Restated Loan and Security Agreement, as further amended, supplemented or
otherwise modified from time to time in accordance with the terms thereof (the
“Loan
Agreement”); and
WHEREAS,
the Borrowers and the Lenders desire to amend certain terms of the Loan
Agreement as set forth herein to further reflect the foregoing in accordance
with Section
13.8 thereof.
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
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1.
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Definitions. Capitalized
terms not otherwise defined herein shall have the meaning ascribed to them
in the Loan Agreement.
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2.
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Amendments. Subject
to the satisfaction of the conditions set forth in Section 7, the Loan
Agreement shall be amended as
follows:
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(a)
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The
definitions of the terms “Applicable Margin” and “Termination Date” set
forth in Section 1.1 shall be deleted in their entirety and replaced with
the following:
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Applicable Margin: 3.00% per
annum; provided, however,
immediately upon the occurrence of an Event of Default, the Applicable Margin
shall be 6.00% per annum.
Termination Date: October 19,
2011 or such earlier date on which this Agreement shall terminate in accordance
with the provisions hereof or by operation of law as the same may be extended
pursuant to Section
2.5(a) hereof.
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(b)
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The
definition of the term “Approved Indebtedness” in Section 1.1 shall be
amended by deleting the reference to “December 31, 2011” in clause (ii)(A)
thereof and replacing it with a reference to “December 31,
2012”.
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(c)
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The
definition of the term “DT Entity” in Section 1.1 shall be amended by (i)
replacing the word “and” therein with a comma and (ii) inserting the
phrase “and any other Subsidiary of either Parent Company” immediately
after the phrase “DriveTime Sales” therein.
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(d)
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Section
3.2(b) shall be amended in its entirety to read as
follows:
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“(b) Non-Utilization
Fee. The Borrowers agree to pay to the Agent, for payment to
each applicable Lender, in arrears, on each Payment Date, a non-refundable fee
(the “Non-Utilization
Fee”) for the Borrowers’ non-use of available funds in an amount, for
each Lender, equal to the product of (i) 0.50% per annum (the “Applicable Unused Line Fee
Margin”) (calculated on the basis of a 360-day year for actual days
elapsed in the Accrual Period for which the Non-Utilization Fee is payable,
including the first day, but excluding the last day of such period) and (ii) the
excess of (x) such Lender’s Aggregate Commitment over (y) the average of the
daily closing balances during the Accrual Period of the aggregate Advances made
by such Lender for which such fee is due; provided, however, so long as
the aggregate outstanding Advances made by such Lender for such period shall
exceed fifty percent (50%) of such Lender’s Aggregate Commitment, no such
Non-Utilization Fee shall be due and payable to such Lender. If, with
respect to any Accrual Period, there are insufficient funds paid by the
Borrowers to satisfy the required Non-Utilization Fees for all Lenders then owed
a Non-Utilization Fee, the Agent shall pay to each such Lender a portion of the
amount of such fee actually received equal to a fraction, the numerator of which
is the Non-Utilization Fee owed to such Lender and the denominator of which is
the aggregate amount of the Non-Utilization Fees owed to all Lenders entitled to
a Non-Utilization Fee. The Borrowers further agree to maintain a daily minimum
closing balance of the aggregate Advances of $5,000,000.00, except as provided
in Section
12.3(b) and (c).”
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(e)
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The
parenthetical in Section 4.2(c) shall be amended in its entirety to read
as follows: “(or if such rate is not available, the greater of
(i) zero or (ii) the Alternate Base Rate minus
2.50%)”.
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(f)
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Section
10.14(a) shall be amended in its entirety to read as
follows:
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“(a) upon
any Borrower becoming aware of, and in any event within one (1) Business Day
after, the occurrence of (i) any Pre-Default Event or Event of Default under any
Loan Document or (ii) any breach, event of default or default, event of
termination, acceleration or the occurrence of any event requiring a mandatory
prepayment or mandatory offer to purchase (or similar event) under any other
material agreement of any Borrower, the Guarantor or any subsidiary of either
Parent Company, including, without limitation, under the Subordinated Loan
Agreement, any Warehouse Facility, the SCUSA Sale Warehouse, or the Master
Repurchase Agreement, which shall include a copy of such notice given from the
holder of such Indebtedness (or agent on behalf of one or more
holders);”
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(g)
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The
reference to “DT Warehouse” in the second to last line of Section 10.14
shall be deleted and replaced with the following language: “any Subsidiary
of either Parent Company”.
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(h)
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Section
12.1(k) shall be amended by adding the language “or shall cease to be a
first priority Lien” after the phrase “full force and effect” in the third
line of that Section.
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(i)
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Section
13.16 shall be amended by adding the phrase “or pdf” after each use of the
word “faxed” in that Section.
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3.
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Renewal Fee.
The Borrowers agree to pay directly to each Lender hereunder, on the date
hereof a renewal fee in an amount equal to the product of (i) 1.00% and
(ii) such Lender’s Aggregate Commitment in effect as of the date
hereof.
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4.
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Representations and
Warranties. Each Borrower represents and warrants to the
Lenders that:
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(a)
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Each
Borrower hereby reaffirms all representations and warranties made by such
entity in the Loan Agreement and agrees that all such representations and
warranties are deemed to have been remade as of the Effective Date
(defined below) and are true and correct in all material respects as of
such date, unless and to the extent that any such representation and
warranty is stated to relate solely to an earlier date, in which case such
representation and warranty shall be true and correct in all
material respects as of such earlier
date.
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(b)
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This
Amendment (i) has been duly and validly authorized, executed and delivered
by each Borrower and (ii) constitutes the legal, valid and binding
obligations of each Borrower, and is enforceable against each Borrower in
accordance with its terms.
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(c)
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After
giving effect to this Amendment, no Default or Event of Default has
occurred and is continuing.
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5.
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Survival of Other
Provisions. Unless specifically amended herein, all of
the other covenants, agreements, representations, warranties, promises or
other terms and conditions of the Loan Agreement shall remain in full
force and effect without any change
whatsoever.
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3
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6.
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Execution of New
Notes.
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(a)
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Borrowers
shall execute and deliver to each Lender a new Note in the amount of such
Lender’s Aggregate Commitment as of the effective date hereof in
substantially the form set forth on Schedule I
hereto (the “New
Notes”).
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(b)
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Each
party hereby acknowledges and agrees that, notwithstanding anything to the
contrary in the Loan Agreement or any other Loan Document, as used
therein, the term “Note” or “Notes” shall refer to a New Note or the New
Notes.
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7.
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Conditions to
Effectiveness. This Amendment shall become effective
upon the date on which all of the following conditions are satisfied (the
“Effective
Date”):
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(a)
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execution
and delivery of this Amendment by each of the parties
hereto;
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(b)
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the
payment by the Borrowers to the Lenders of the Renewal Fee provided in
Section 3 above;
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(c)
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execution
and delivery by Borrowers of the New Notes;
and
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(d)
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reaffirmation
from the Guarantor that, after giving effect to this Amendment, its
obligations and representations and warranties under the Guaranty continue
in full force and effect.
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8.
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Reimbursement. The
Borrowers agree to pay or reimburse each Lender for all costs and expenses
(including, without limitation, legal fees and disbursements) incurred by
each Lender in connection with the preparation, negotiation, execution,
delivery and enforcement of this
Amendment.
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9.
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Entire
Agreement. This Amendment constitutes the full and entire
understanding and agreement of the Borrowers and the Lenders with respect
to the subject matter hereof, and there are no further or other agreements
or undertakings, written or oral, in effect between the Borrowers and the
Lenders relating to the subject matter hereof unless expressly referred to
in this Amendment.
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10.
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GOVERNING
LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW
YORK.
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11.
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Execution in
Counterparts. This Amendment may be executed in any
number of counterparts and in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which
taken together shall constitute one and the same
instrument. Any signature delivered by a party by facsimile
transmission or by electronic mail in a “.pdf” file shall be deemed an
original signature hereto.
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* * * * *
4
IN
WITNESS WHEREOF, the Borrowers and the Lenders have caused this Amendment to be
executed and delivered by their duly authorized officers as of the date
hereof.
| Lenders: | |||
| SANTANDER CONSUMER USA INC. | |||
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By:
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/s/ Jason Kulas | |
| Name: | Jason Kulas | ||
| Title: | CFO | ||
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MANHEIM
AUTOMOTIVE FINANCIAL
SERVICES,
INC.
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By:
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/s/ Katherine K. Decker | |
| Name: | Katherine K. Decker | ||
| Title: | Group VP | ||
| Borrowers: | |||
| DRIVETIME AUTOMOTIVE GROUP, INC. | |||
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By:
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/s/ Jon D. Ehlinger | |
| Name: | Jon D. Ehlinger | ||
| Title: | Secretary | ||
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DRIVETIME
CAR SALES COMPANY, LLC.
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By:
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/s/ Jon D. Ehlinger | |
| Name: | Jon D. Ehlinger | ||
| Title: | Manager | ||
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DRIVETIME
SALES AND FINANCE COMPANY, LLC
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By:
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/s/ Jon D. Ehlinger | |
| Name: | Jon D. Ehlinger | ||
| Title: | Secretary | ||
5
Consent
The
Guarantor consents to the foregoing Amendment No. 7 to the Third Amended and
Restated Loan and Security Agreement and reaffirms its obligations pursuant to
the applicable Loan Documents. The Guarantor further acknowledges and
agrees that the term “Credit Agreement” as used in the Guaranty means the Credit
Agreement as amended, amended and restated, supplemented or otherwise modified
from time to time.
| DT ACCEPTANCE CORPORATION | |||
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By:
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/s/ Steven P. Johnson | |
| Name: | Steven P. Johnson | ||
| Title: | President | ||