Unassociated Document


    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:

       

      
        	
                1.

              	
                Definitions.  Capitalized
      terms not otherwise defined herein shall have the meaning ascribed to them
      in the Loan Agreement.

              


      

       

      
        	
                2.

              	
                Amendments.  Subject
      to the satisfaction of the conditions set forth in Section 7, the Loan
      Agreement shall be amended as
follows:

              


      

       

      
        	
                 
      

              	
                (a)

              	
                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:

              


      

       

      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.

       

      
        
           

        

        
           

          
            

          

        

        
           

        

      

       

      
        	 	      
                (b)

              	      
                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”.

              
	 	 	 
	 	      
                (c)

              	      
                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.

              
	 	 	 
	
                 
      

              	
                (d)

              	
                Section
      3.2(b) shall be amended in its entirety to read as
  follows:

              


      

       

      “(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).”

       

      
        	
                 
      

              	
                (e)

              	
                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%)”.

              


      

       

      
        	
                 
      

              	
                (f)

              	
                Section
      10.14(a) shall be amended in its entirety to read as
    follows:

              


      

       

      “(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);”

       

      
        
           

        

        
          2

          
            

          

        

        
           

        

      

       

      
        	
                 
      

              	
                (g)

              	
                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”.

              


      

       

      
        	
                 
      

              	
                (h)

              	
                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.

              


      

       

      
        	
                 
      

              	
                (i)

              	
                Section
      13.16 shall be amended by adding the phrase “or pdf” after each use of the
      word “faxed” in that Section.

              


      

       

      
        	
                3.

              	
                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.

              


      

       

      
        	
                4.

              	
                Representations and
      Warranties.  Each Borrower represents and warrants to the
      Lenders that:

              


      

       

      
        	
                 
      

              	
                (a)

              	
                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.

              


      

       

      
        	
                 
      

              	
                (b)

              	
                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.

              


      

       

      
        	
                 
      

              	
                (c)

              	
                After
      giving effect to this Amendment, no Default or Event of Default has
      occurred and is continuing.

              


      

       

      
        	
                5.

              	
                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.

              


      

       

      
        
           

        

        
          3

          
            

          

        

        
           

        

      

       

      
        	
                6.

              	
                Execution of New
      Notes.

              


      

       

      
        	
                 
      

              	
                (a)

              	
                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”).

              


      

       

      
        	
                 
      

              	
                (b)

              	
                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.

              


      

       

      
        	
                7.

              	
                Conditions to
      Effectiveness.  This Amendment shall become effective
      upon the date on which all of the following conditions are satisfied (the
      “Effective
      Date”):

              


      

       

      
        	
                 
      

              	
                (a)

              	
                execution
      and delivery of this Amendment by each of the parties
    hereto;

              


      

       

      
        	
                 
      

              	
                (b)

              	
                the
      payment by the Borrowers to the Lenders of the Renewal Fee provided in
      Section 3 above;

              


      

       

      
        	
                 
      

              	
                (c)

              	
                execution
      and delivery by Borrowers of the New Notes;
and

              


      

       

      
        	
                 
      

              	
                (d)

              	
                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.

              


      

       

      
        	
                8.

              	
                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.

              


      

       

      
        	
                9.

              	
                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.

              


      

       

      
        	
                10.

              	
                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.

              


      

       

      
        	
                11.

              	
                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.

              


      

       

      *     *     *     *     *

       

      
        
           

        

        
          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.	 
	 	 	 	 
	
                   

                	
                  By:

                	/s/
      Jason Kulas	 
	 	Name:	Jason
      Kulas	 
	 	Title:	CFO	 
	 	 	 	 


        

      

       

      
        	 	
                MANHEIM
      AUTOMOTIVE FINANCIAL 

                SERVICES,
      INC.

              	 
	 	 	 	 
	
                 

              	
                By:

              	/s/
      Katherine K. Decker	 
	 	Name:	Katherine
      K. Decker	 
	 	Title:	Group
      VP	 
	 	 	 	 


      

                                                        

      
        
          
            	 	Borrowers:	 
	 	 	 
	 	DRIVETIME
      AUTOMOTIVE GROUP, INC.	 
	 	 	 	 
	
                     

                  	
                    By:

                  	/s/
      Jon D. Ehlinger	 
	 	Name:	Jon
      D. Ehlinger	 
	 	Title:	Secretary	 
	 	 	 	 


          

        

         

        
          	 	
                  DRIVETIME
      CAR SALES COMPANY, LLC.

                	 
	 	 	 	 
	
                   

                	
                  By:

                	/s/
      Jon D. Ehlinger	 
	 	Name:	Jon
      D. Ehlinger	 
	 	Title:	Manager	 
	 	 	 	 


        

                                                          

        
          	 	
                  DRIVETIME
      SALES AND FINANCE COMPANY, LLC

                	 
	 	 	 	 
	
                   

                	
                  By:

                	/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	 
	 	 	 	 
	
                   

                	
                  By:

                	/s/
      Steven P. Johnson	 
	 	Name:	Steven
      P. Johnson	 
	 	Title:	President