EXHIBIT 4(n)
DEED OF CHARGE,
Dated 7th September, 2001
between
CREDIT ACCEPTANCE CORPORATION,
as the Chargor,
and
COMERICA BANK,
as the Collateral Agent
A & L Goodbody,
Solicitors,
International Financial Services Xxxxxx,
Xxxxx Xxxx Xxxx,
Xxxxxx 0.
THIS DEED OF CHARGE is made on 7th September, 2001
BETWEEN:
(1) CREDIT ACCEPTANCE CORPORATION, a Michigan corporation (the "Chargor");
and
(2) COMERICA BANK, a bank organised and existing under the laws of
Michigan, as agent for the benefit of the Lenders, the Noteholders and
the Future Debt Holders (in such capacity, the "Collateral Agent").
WHEREAS:
(A) The Chargor, Comerica Bank and the other financial institutions
signatory thereto, each as "Banks" thereunder (and, in the case of
Comerica Bank, in its separate additional capacity as "Issuing Bank"
thereunder) (together with any Successor Lenders party thereto from
time to time, collectively the "Lenders"), entered into that certain
Amended and Restated Credit Agreement dated as of June 11, 2001 (said
credit agreement, as amended, restated or otherwise modified from time
to time, the "Existing Credit Agreement" and together with any
Successor Credit Agreement, the "Credit Agreement").
(B) The Chargor entered into the separate note purchase agreements with the
1994 Noteholders dated as of October 1, 1994 (collectively, as amended
restated or otherwise modified from time to time, the "1994 Note
Agreements"), pursuant to which the Second Amended and Restated Senior
Notes due November 1, 2001 (collectively, as amended, restated or
otherwise modified from time to time, the "1994 Senior Notes") are
outstanding.
(C) The Chargor entered into the separate note purchase agreements with the
1996 Noteholders dated as of August 1, 1996 (collectively, as amended,
restated or otherwise modified from time to time, the "1996 Note
Agreements"), pursuant to which the Second Amended and Restated Senior
Notes due July 1, 2001 (collectively, as amended, restated or otherwise
modified from time to time, the "1996 Senior Notes") are outstanding.
(D) The Chargor entered into the separate note purchase agreements with the
1997 Noteholders dated as of March 25, 1997 (collectively, as amended,
restated or otherwise modified from time to time, the "1997 Note
Agreements") pursuant to which the Second Amended and Restated Senior
Notes due October 1, 2001 (collectively, as amended, restated or
otherwise modified from time to time, the "1997 Senior Notes") are
outstanding.
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(E) Pursuant to section 7.20 of the Existing Credit Agreement and section
6.23 of the 1994 Note Agreements, the 1996 Note Agreements and the 1997
Note Agreements, the Lenders and the Noteholders, respectively have
required that the Chargor grant (or cause to be granted) certain liens
and security interests to the Collateral Agent, as contractual
representative for the benefit of the Lenders, the Noteholders, and the
Future Debt Holders, all to secure the obligations of the Chargor under
the Credit Documents, the obligations of the Chargor under the
Noteholder Documents and the obligations of the Chargor under the
Future Debt Documents.
(F) The Lenders and the Noteholders have consented to the transactions
contemplated hereby and by the Security Documents, and the Lenders and
the Noteholders have agreed that the Chargor's obligations under the
Credit Agreement, the Note Agreements and the Future Debt Documents
shall be equally and ratably secured pursuant to this Deed and the
other Security Documents.
(G) The Chargor has directly and indirectly benefited and will directly and
indirectly benefit from the transactions evidenced by and contemplated
in the Credit Agreement, the Note Agreements and the Future Debt
Documents and has consented to the execution and delivery of that
certain Intercreditor Agreement among the Collateral Agent, the Lenders
(including Comerica Bank), the Noteholders and the Future Debt Holders,
dated as of 15 December 1998 as amended by First Amendment dated as of
March 30, 2001 (as further amended from time to time according to the
terms thereof, the "Intercreditor Agreement").
(H) The Lenders, the Noteholders and the Collateral Agent have entered into
the Intercreditor Agreement to define the rights, duties, authority and
responsibilities of the Collateral Agent, acting on behalf of such
parties regarding the Charged Property (as defined below), and the
relationship among the parties regarding their equal and ratable
interests in the Charged Property.
NOW THIS DEED WITNESSETH AND IT IS HEREBY AGREED as follows:
1. DEFINED TERMS; INTERPRETATION
(1) In this Deed, unless the context otherwise requires, the
following expressions shall have the following meanings:
"Charged Property" means all the assets, property and rights
charged to the Collateral Agent by the Chargor pursuant to
Section 3 of this Deed;
"Chargor" is defined in the preamble;
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"Collateral Agent" is defined in the preamble;
"Deed" means this Deed of Charge, as amended, modified or
supplemented from time to time;
"Initial Shares" is defined in Section 3(1);
"Issuer" means Credit Acceptance Corporation Ireland Limited,
a company organised and existing under the laws of Ireland;
"Lien" means any mortgage, charge, pledge, hypothecation,
assignment by way of security, deposit agreement, encumbrance,
lien (statutory or otherwise), title retention, finance lease,
factoring or discounting of debts or other security interest
on or over present or future assets of the Person concerned
securing any obligation of any Person or any other type of
preferential or trust arrangement having a similar effect,
including any such security interest which arises or is
imposed by operation of law;
"Non-Charged Shares" means all those shares of the Issuer
owned or at any time and from time to time acquired by the
Chargor which are not Shares charged pursuant hereto;
"Percentage Limitation" means the lesser of (i) all of the
shares of the Issuer owned or at any time and from time to
time acquired by the Chargor or any of its Subsidiaries and
(ii) sixty-five percent (65%) of the aggregate share capital
of the Issuer at any time or from time to time issued and
outstanding (determined in accordance with Section 956 of the
Internal Revenue Code of the United States of America, as
amended from time to time);
"Receiver" means any one or more receivers and managers,
administrators, liquidators or other insolvency officers
appointed in any jurisdiction or (if the Collateral Agent so
specifies in the relevant appointment) any such officers
appointed by the Collateral Agent pursuant to this Deed in
respect of the Chargor or over all or any of the Charged
Property;
"Rights" is defined in Section 14(2);
"Shares" is defined in Section 3(2); and
"Transfer Form" means a stock transfer form or other
appropriate instrument of
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transfer executed by the Chargor as transferor and left
undated and with details of the transferee left blank but with
details of the transferor and the number and class of shares
or securities completed.
(2) In this Deed:
(a) the parties hereto intend that this document shall take effect
as a deed;
(b) references to the "Chargor", the "Collateral Agent", the
"Issuer" and any other person referred to in this Deed shall
be construed so as to include their respective successors and
permitted transferees and assigns in accordance with their
respective interests;
(c) capitalised terms used but not defined in this Deed (including
the preamble hereto) have the same meanings as in the
Intercreditor Agreement;
(d) this Deed is a Financing Agreement and shall be interpreted
and construed in accordance with the terms and provisions of
the Intercreditor Agreement;
(e) reference to any document includes that document as amended,
novated or supplemented from time to time; and
(f) words and phrases the definition of which is contained or
referred to in section 2 of the Companies Acts, 1963-1999 (and
which are not otherwise defined in this Deed) shall be
construed as having the meaning thereby attributed to them.
2. COVENANT TO PAY
The Chargor covenants with the Collateral Agent that it will pay the
Benefited Obligations as and when the same fall due for payment.
3. CHARGING SECTION
As a continuing security for the payment and discharge of all Benefited
Obligations, the Chargor hereby charges and assigns, as legal and
beneficial owner, in favour of the Collateral Agent (to the intent that
the security hereby created shall be a continuing security in favour of
the Collateral Agent in its capacity as such) the following property
and rights, both present and future, from time to time owned by the
Chargor or in which the Chargor is from time to time interested:
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(1) by way of first fixed charge, all the shares described in
Schedule I hereto (the "Initial Shares"), all of the
certificates and/or instruments representing such shares and
all cash, distributions, dividends, rights, allotments,
accretions, benefits and other property at any time and from
time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such shares
(whether by way of conversion, redemption, bonus, preference,
option or otherwise);
(2) by way of first fixed charge, all additional shares of the
Issuer at any time and from time to time acquired by the
Chargor (collectively with the Initial Shares, the "Shares")
in any manner (provided that the aggregate percentage of the
share capital of the Issuer encumbered by any and all charges
granted in favour of the Collateral Agent by the Chargor or
any of its Subsidiaries pursuant hereto shall not at any time
exceed the Percentage Limitation), all of the certificates
and/or instruments representing such additional shares, and
all cash, distributions, dividends, rights, allotments,
accretions, benefits and other property at any time and from
time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such shares
(whether by way of conversion, redemption, bonus, preference,
option or otherwise);
(3) by way of first fixed charge, all other property hereafter
delivered to the Collateral Agent in substitution for or in
addition to any of the foregoing, all certificates and
instruments representing or evidencing such property, and all
cash, distributions, dividends, rights, allotments,
accretions, benefits and other property at any time and from
time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all thereof (whether by
way of conversion, redemption, bonus, preference, option or
otherwise); and
(4) by way of first fixed charge, all products and proceeds of all
of the foregoing.
The Collateral Agent shall hold the benefit of the covenants, charges
and other undertakings given by the Chargor pursuant to this Deed upon
trust for the Lenders, the Noteholders and the Future Debt Holders and
the Collateral Agent, provided that the sole obligations of the
Collateral Agent and of any Agent-Related Persons to the Lenders, the
Noteholders and the Future Debt Holders shall be those set out in the
Intercreditor Agreement (including, without limitation, section 8
thereof) and neither the Collateral Agent nor any Agent-Related Persons
shall be deemed to be a fiduciary hereunder.
4. DELIVERY
The Chargor agrees to deliver to the Collateral Agent, forthwith upon
execution of this
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Deed (in connection with the Initial Shares) and from time to time (in
connection with any other Shares), all share certificates and documents
of title relating to the Shares together with Transfer Form(s) relating
to all such Shares and covenants with the Collateral Agent to deliver
to it all other share certificates, documents of title and Transfer
Forms relating to the Charged Property which may at any time come into
the possession or control of the Chargor; and prior to the delivery
thereof to the Collateral Agent, the Chargor will hold all such
certificates, documents of title and Transfer Forms on trust for the
Collateral Agent.
5. REPRESENTATIONS AND WARRANTIES
The Chargor represents and warrants to the Collateral Agent on the date
of this Deed and shall be deemed to have represented and warranted on
each date when any Benefited Obligations is outstanding, in each case
in the terms set out below:
(1) the Chargor is (or at the time of any future delivery, charge,
assignment or transfer will be) the legal and beneficial owner
of the Charged Property, free and clear of all Liens, other
than the security created hereunder;
(2) the charges and assignments constituted by this Deed create a
valid first ranking charge over and, as the case may be,
assignment of the Charged Property in favour of the Collateral
Agent;
(3) all the Shares are (and all Shares which in the future become
subject to charge hereunder will be) duly authorised, validly
issued, fully paid, non-assessable and not subject to any Lien
or restriction on transfer imposed under the constitutional
documents of the Issuer or otherwise;
(4) the information contained in Schedule I hereto in connection
with the Initial Shares is true and accurate in all respects;
and
(5) the Chargor is not unable to pay its debts as they fall due
and is not otherwise insolvent.
6. NEGATIVE PLEDGE AND DISPOSAL RESTRICTIONS
During the continuance of the security constituted by this Deed, and
without prejudice to the provisions of the Intercreditor Agreement and
the other Financing Agreements, the Chargor will not (without the prior
consent in writing of the Collateral Agent):
(1) create or agree or attempt to create or permit to subsist (in
favour of any person
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other than the Collateral Agent) any Lien over the whole or
any part of the Charged Property or of the Non-Charged Shares
or agree (whether on a contingent basis or otherwise) to do
so; or
(2) (whether by a single transaction or a number of related or
unrelated transactions and whether at the same time or over a
period of time) sell, transfer, lease out, lend or otherwise
dispose of or cease to exercise direct control over all or any
part of the Charged Property or of the Non-Charged Shares or
any interest therein or the right to receive or to be paid the
proceeds arising on the disposal of the same, or agree or
attempt to do so; or
(3) dispose of the equity of redemption in respect of all or any
part of the Charged Property or of the Non-Charged Shares; or
(4) except with the written consent of the Collateral Agent,
permit the Issuer to issue to any of the Chargor's other
Subsidiaries any shares in addition to or in substitution for
the Shares or the Non-Charged Shares unless, concurrently with
each issuance thereof, any and all such shares are charged in
favour of the Collateral Agent pursuant to a deed of charge
substantially in the form of this Deed; provided that the
aggregate percentage of the share capital of the Issuer
required to be encumbered by any and all charges granted in
favour of the Collateral Agent by the Chargor or any of its
Subsidiaries pursuant hereto shall not exceed the Percentage
Limitation.
7. OTHER UNDERTAKINGS
(1) The Chargor will furnish the Collateral Agent with such
information concerning the Charged Property and the
Non-Charged Shares as the Collateral Agent may from time to
time reasonably request, and will permit the Collateral Agent
from time to time during business hours and on reasonable
notice (or at any time without notice during the existence of
an Event of Default), to inspect, audit and make copies of and
extracts from all records and all other papers in the
possession of the Chargor which pertain to the Charged
Property and/or the Non-Charged Shares.
(2) The Chargor will not do or cause or permit to be done anything
(including, without limitation, by way of any exercise of its
rights under Section 8) which may in any way depreciate,
jeopardise or otherwise prejudice the value to the Collateral
Agent of the Charged Property or the security constituted by
this Deed; provided that, so long as no Event of Default (both
before and after giving effect thereto) has occurred and is
continuing, the Chargor may receive, retain and
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dispose of any and all lawful dividends and cash distributions
payable in respect of the Charged Property; and further
provided that this undertaking will only relate to matters
affecting the Charged Property and no breach of this
undertaking shall arise as a result of any general
deterioration in the financial condition of the Issuer arising
as a consequence of any action or omission of the Chargor or
the Issuer in relation to the business or assets of the
Issuer.
(3) The Chargor hereby declares and agrees that:
(a) this Deed shall be held by the Collateral Agent as a
continuing security and shall not be satisfied by any
intermediate payment or satisfaction of any part of the
Benefited Obligations and shall remain in full force and
effect until all Benefited Obligations have been
unconditionally and irrevocably paid and discharged in full to
the satisfaction of the Collateral Agent;
(b) the Collateral Agent shall not be bound to enforce any
guarantee or security or proceed to take any other steps
against any other Person before enforcing this Deed; and
(c) this Deed shall be in addition to, and not in substitution
for, any other rights which the Collateral Agent or any
Lender, Noteholder or Future Debt Holder may now or hereafter
have under or by virtue of any guarantee or security or
agreement or any Lien or by operation of law or under any
collateral or other security now or hereafter held by the
Collateral Agent or any Lender, Noteholder or Future Debt
Holder or to which the Collateral Agent or any Lender,
Noteholder or Future Debt Holder may be entitled.
(d) Any settlement or discharge under this Deed between the
Collateral Agent and the Chargor shall be conditional upon no
security or payment to the Collateral Agent or any Lender,
Noteholder or Future Debt Holder by the Chargor or any other
Person being avoided or set-aside or ordered to be refunded or
reduced by virtue of any provision or enactment relating to
bankruptcy, insolvency, administration or liquidation for the
time being in force, and if such condition is not satisfied
(but without limiting the other rights of the Collateral Agent
or any Lender, Noteholder or Future Debt Holder hereunder or
under applicable law) such settlement or discharge shall be of
no effect and the security created by this Deed shall remain
and/or shall be reinstated in full force and effect as if such
settlement or discharge had not occurred and the Collateral
Agent shall, on behalf of the
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Lenders, the Noteholders and the Future Debt
Holders, be entitled to recover from the Chargor on
demand the value of the security or payment so
avoided, set-aside, refunded or reduced.
8. VOTING RIGHTS AND DIVIDENDS
(1) So long as no Event of Default (both before and after giving
effect thereto) has occurred and is continuing, the Chargor
shall, subject to clause (2) of Section 7, be entitled to
exercise any and all voting or consensual rights and powers
attaching to the Charged Property.
(2) So long as no Event of Default (both before and after giving
effect thereto) has occurred and is continuing, the Chargor
shall, subject to clause (2) of Section 7, be entitled to
receive and retain any and all lawful dividends and cash
distributions payable in respect of the Charged Property.
(3) Upon the occurrence of an Event of Default, and for so long as
the same shall be continuing, all rights, powers and
entitlements which the Chargor is entitled to exercise
pursuant to clause (1) or (2) of this Section 8 will
immediately be suspended until such Event of Default shall no
longer exist, and all such rights, powers and entitlements
will thereupon become vested in the Collateral Agent so that
the Collateral Agent has the sole and exclusive authority to
exercise such rights and powers and to receive such dividends
and distributions. All money and other property paid over to
or received by the Collateral Agent pursuant to this Section 8
will be retained by it as additional Charged Property and
applied in accordance with the provisions of this Deed and the
Intercreditor Agreement.
9. COMPLETION OF TRANSFER FORMS
(1) At any time on or following the occurrence of an Event of
Default so long as such Event of Default is continuing, the
Collateral Agent may complete the Transfer Forms delivered to
it hereunder in favour of itself as transferee or in favour of
such other nominee as it may select.
(2) At any time when any Charged Property is registered in or
transferred into the name of the Collateral Agent or its
nominee, neither the Collateral Agent nor such nominee will be
under any duty to ensure that any dividends or distributions
relating to the Charged Property are duly paid or received or
to exercise, defend or take any action with respect to any
voting, consensual or other rights or powers attaching to the
Charged Property including rights which are by way of bonus,
preference, option, warrant or otherwise.
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10. FURTHER ASSURANCES; POWER OF ATTORNEY
(1) The Chargor hereby undertakes with the Collateral Agent to
take such further acts, enter into such other instruments or
documents and otherwise perform such action as may be
necessary or as the Collateral Agent may otherwise reasonably
request to more fully give effect to the security granted
hereunder and any other provision of this Deed.
(2) The Chargor hereby irrevocably and by way of security appoints
the Collateral Agent and each Receiver appointed hereunder and
each of their delegates severally as its attorney (with full
power of substitution and delegation) in its name and on its
behalf and as its act and deed to, after the occurrrence and
during the continuance of any Event of Default, execute, seal
and deliver and otherwise perfect and complete and do any
deed, agreement, instrument, Transfer Form or other act or
thing which the Chargor ought to execute and do under the
terms of this Deed or which may otherwise be required or
deemed proper by the Collateral Agent for the purposes of this
Deed and to do all acts and things which the Collateral Agent
may in its absolute discretion, consider to be necessary or
expedient for enabling or assisting the Collateral Agent to
exercise any of its powers, rights or discretions hereunder or
conferred by law or to do anything that the Chargor is obliged
to do under this Deed and the Chargor hereby covenants to
ratify and confirm all acts and things done by such attorney.
11. ENFORCEMENT
(1) The restrictions on the consolidation of mortgages imposed by
section 17 of the Conveyancing and Law of Property Act, 1881
will not apply to this Deed or any security granted pursuant
to this Deed.
(2) Section 20 of the Conveyancing and Law of Property Act, 1881
will not apply to this Deed, which shall immediately become
enforceable and the power of sale and other powers conferred
by section 19 of such Act (as varied or extended by this Deed)
will be immediately exercisable at any time after an Event of
Default has occurred.
(3) The powers conferred on mortgagees or receivers by the
Conveyancing and Law of Property Act, 1881 will apply to this
Deed except insofar as they are expressly or impliedly
excluded and if there is any ambiguity or conflict between the
powers contained in such Acts and those contained in this
Deed, those contained in this Deed will prevail.
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(4) At any time after the security constituted by this Deed has
become enforceable or if so requested by the Chargor, the
Collateral Agent may by writing under hand signed by any
officer or manager of the Collateral Agent appoint any person
(or persons) to be a Receiver of all or any part of the
Charged Property.
(5) Any powers conferred upon mortgagees or chargees by the
Conveyancing and Law of Property Act, 1881 as hereby varied or
extended and all or any rights conferred by this Deed on a
Receiver (whether expressly or impliedly) may be exercised by
the Collateral Agent without further notice to the Chargor at
any time after the security constituted by this Deed has
become enforceable and the Collateral Agent may exercise such
rights and powers irrespective of whether it has taken
possession of or has appointed a Receiver in respect of the
Charged Property.
(6) For the purpose of or pending the discharge of any of the
Benefited Obligations, the Collateral Agent may, subject to
the terms and conditions of the Intercreditor Agreement,
convert any moneys received, recovered or realised in any
currency under this Deed (including the proceeds of any
previous conversion under this paragraph) from their existing
currency of denomination into any other currency at such rate
or rates of exchange and at such time as the Collateral Agent
thinks fit and shall effect such conversion in such a manner
as to minimise the number of currencies to be converted to the
extent reasonably practicable.
12. RECEIVER
(1) Any Receiver appointed hereunder will be the agent of the
Chargor and the Chargor will be solely responsible for his
acts and defaults and for his remuneration and will be liable
on any contracts entered into by him.
(2) Any Receiver appointed under this Deed will have power, in
addition to the powers conferred by the Conveyancing and Law
of Property Act, 1881 (which are incorporated into this Deed),
and notwithstanding the liquidation of the Chargor, to take
possession, collect and get in all or any part of the Charged
Property and for that purpose to take any proceedings in the
name of the Chargor or otherwise, generally to manage the
Charged Property, to make any arrangement or enter into or
cancel any contracts relating to the Charged Property, to
insure or increase insurance in respect of the Charged
Property, to exercise all voting or other rights attaching to
the Charged Property in such manner as he may think fit, to
redeem any prior liens, to appoint and discharge employees and
professionals appointed in relation to the protection of the
Charged Property on such terms as he may think
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fit, to prosecute, enforce and discontinue all proceedings in
the name of the Chargor in relation to the Charged Property,
and to do all such other acts and things (including, without
limitation, execution of all documents) as may be considered
by the Receiver to be conducive to any of the matters or
powers set out above and to use the name of the Chargor for
such purposes.
(3) The Collateral Agent may by written notice from time to time
remove any Receiver and appoint a new Receiver in his place
and may from time to time fix the remuneration of any such
Receiver.
(4) Sections 24(6) and (8) of the Conveyancing and Law of Property
Act, 1881 will not apply to a Receiver appointed under this
Deed.
(5) Any money recovered by the Collateral Agent or any Receiver
pursuant to this Deed may be kept by them in a separate
suspense account for so long and in such manner as they may
think fit prior to application in accordance with the terms of
this Deed.
(6) All monies received by the Collateral Agent or any Receiver
appointed hereunder shall be applied by it or him in the
following order:
(a) in payment of the costs, charges and expenses
incurred, and payments made, by the Collateral Agent
and/or any Receiver in connection with this Deed
(including the payment of any preferential debts);
(b) in payment of remuneration to the Receiver at such
rates as may be agreed between him and the Collateral
Agent at or any time after his appointment;
(c) in or towards satisfaction of the Benefited
Obligations (in such order (subject to the terms of
the Intercreditor Agreement) as the Collateral Agent
shall require); and
(d) the surplus (if any) shall be paid to the Chargor or
other person entitled to it.
13. PROTECTION OF THIRD PARTIES
No purchaser from, or other person dealing with, the Collateral Agent
and/or any Receiver will be obliged or concerned to enquire whether the
right of the Collateral Agent or any Receiver to exercise any of the
powers conferred by this Deed has arisen or become exercisable or
whether any of the Benefited Obligations remains outstanding and
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the receipt of the Collateral Agent or any Receiver shall be an
absolute and complete discharge to any such purchaser and will relieve
such purchaser of any obligation to see to the application of any
monies paid to or by the direction of the Collateral Agent or any
Receiver.
14. THE COLLATERAL AGENT'S REMEDIES
(1) The rights, powers and remedies provided in this Deed are
cumulative and are not, nor are they to be construed as,
exclusive of any rights, powers or remedies provided by law or
otherwise.
(2) No failure on the part of the Collateral Agent or any
Agent-Related Persons to exercise, or delay on its part in
exercising, any of its rights, powers and remedies provided by
this Deed or by law (collectively the "Rights") shall operate
as a waiver thereof, nor shall any single or partial exercise
of any of the Rights preclude any further or other exercise of
that one of the Rights concerned or the exercise of any other
of the Rights.
(3) The Chargor hereby agrees to indemnify the Collateral Agent
and any Agent-Related Persons against all losses, actions,
claims, costs, charges, expenses and liabilities incurred by
the Collateral Agent and any Agent-Related Persons (including
any substitute delegate attorney) in relation to this Deed or
the Benefited Obligations (including, without limitation, the
costs, charges and expenses incurred in the carrying into
effect of this Deed or in the exercise of any of the rights,
remedies and powers conferred on the Collateral Agent hereby
or in the perfection or enforcement of the security
constituted hereby or pursuant hereto) or occasioned by any
breach by the Chargor of any of its covenants or obligations
to the Collateral Agent and any Agent-Related Persons under
this Deed. The Chargor shall so indemnify the Collateral Agent
on demand.
15. THE COLLATERAL AGENT'S DISCRETION
(1) Subject to the terms and conditions of the Intercreditor
Agreement, any liberty or power which may be exercised or any
determination which may be made hereunder by the Collateral
Agent may be exercised or made in the reasonable discretion of
the Collateral Agent.
(2) A certificate by an officer of the Collateral Agent (i) as to
the amount for the time being due to the Collateral Agent or
any Lender, Noteholder or Future Debt Holder under any
Financing Agreement and (ii) as to any sums payable to the
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Collateral Agent or any Lender, Noteholder or Future Debt
Holder hereunder, shall (save in the case of manifest error)
be conclusive and binding upon the Chargor for all purposes.
16. AMENDMENTS
No amendment or waiver of any provision of this Deed and no consent to
any departure by the Chargor therefrom shall in any event be effective
unless the same shall be in writing and signed or approved in writing
by the Collateral Agent in accordance with the provisions of the
Intercreditor Agreement and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose
for which given. In the event of any conflict between this Deed and the
Intercreditor Agreement or any of the other Financing Agreements, the
provisions of the Intercreditor Agreement or the relevant Financing
Agreement shall prevail.
17. NOTICES
All notices and other communications provided to any party hereto in
connection with this Deed shall be in writing and the provisions of
section 11(a) of the Intercreditor Agreement are hereby incorporated
into this Deed with all necessary consequential changes, save that the
reference therein to "four business days after deposit in the United
States mail" shall be deleted and replaced by "seven business days
after deposit in the United States mail".
18. RIGHTS AND REMEDIES CUMULATIVE; WAIVERS
(1) The rights and remedies of the Collateral Agent provided in
this Deed are cumulative and not exclusive of any rights or
remedies provided by law.
(2) A waiver given or consent granted by the Collateral Agent
under this Deed will be effective only if given in writing and
then only in the instance and for the purpose for which it is
given.
19. INVALIDITY OF ANY PROVISION
If any provision of this Deed is or becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions will not be affected or
impaired in any way.
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20. ASSIGNMENT
The Collateral Agent may at any time assign or otherwise transfer all
or any part of its rights under this Deed in accordance with and
subject to the terms of the Intercreditor Agreement. The Chargor may
not at any time assign or otherwise transfer any of its rights or
obligations under this Deed.
21. NOTICE OF SUBSEQUENT CHARGE
If the Collateral Agent receives notice of any subsequent Lien
affecting any part of the Charged Property, it may open a new account
for the Chargor in its books and if it does not do so then it will, as
from the time of receipt of such notice, automatically be treated as if
all payments made to it by the Chargor have been credited to a new
account of the Chargor and not as having been applied in reduction of
the Benefited Obligations.
22. INTENTIONALLY BLANK
23. NO WAIVER
The obligations of the Chargor contained in this Deed will not be
affected by any act, omission or circumstance which (save for this
provision) may operate so as to release or otherwise exonerate the
Chargor from its obligations hereunder or otherwise affect any such
obligation, including:
(1) any time, indulgence or waiver granted to or composition made
with any obligor in respect of the Benefited Obligations or
any other person;
(2) the taking, variation, compromise, renewal or release of or
failure to enforce any rights, remedies or securities against
or granted by any obligor in respect of the Benefited
Obligations or any other person;
(3) any legal limitation, disability, incapacity or other
circumstance relating to any obligor in respect of the
Benefited Obligations or any other person or any variation of
the terms of this Deed or any other document (including the
other Financing Agreements); or
(4) any other act, omission or circumstance which might otherwise
adversely affect any of the obligations of the Chargor
hereunder.
No failure or delay by the Collateral Agent or any Agent-Related
Persons in exercising any right, power or privilege under this Deed
shall operate as a waiver thereof nor shall any single or partial
exercise of any right, power or privilege preclude any other or further
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exercise thereof or the exercise of any other right, power or
privilege.
24. COUNTERPARTS
This Deed may be executed in any number of counterparts and all of such
counterparts taken together shall constitute one and the same
instrument.
25. GOVERNING LAW AND SUBMISSION TO JURISDICTION
(1) LAW: This Deed and all matters and disputes relating hereto
shall be governed and construed in accordance with Irish law.
(2) JURISDICTION: The Chargor irrevocably agrees for the benefit
of the Collateral Agent that the courts of Ireland shall have
exclusive jurisdiction to hear and determine any suit, action
or proceeding, and to settle any disputes, which may arise out
of or in connection with this Deed and, for such purposes,
irrevocably submits to the exclusive jurisdiction of such
courts. The submission to the courts of Ireland referred to in
the preceding sentence of this clause (2) shall not limit the
right of the Chargor to take proceedings in connection with
any agreement relating to the Benefited Obligations to which
it is a party and which is not governed by Irish law in any
other court of competent jurisdiction.
(3) FORUM: The Chargor irrevocably waives any objection which it
might now or hereafter have to the courts referred to in
clause (2) being nominated as the forum to hear and determine
any suit, action or proceeding, and to settle any disputes,
which may arise out of or in connection with this Deed and
agrees not to claim that any such court is not a convenient or
appropriate forum.
(4) NON-EXCLUSIVE: The submission to the jurisdiction of the
courts referred to in clause (2) shall not (and shall not be
construed so as to) limit the right of the Collateral Agent to
take proceedings against the Chargor in any other court of
competent jurisdiction nor shall the taking of proceedings in
any one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction, whether concurrently or
not.
(5) PROCESS AGENT: The Chargor agrees that the process by which
any suit, action or proceeding is begun may be served on it by
being delivered in connection with any suit, action or
proceeding in Ireland, to it at c/o Credit Acceptance
Corporation Ireland Limited, 00 Xxxx Xxxxxx, Xxxxxx 0 or, if
different, the principal place of business of Credit
Acceptance Corporation Ireland Limited in Ireland for the time
being.
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(6) WAIVER OF IMMUNITY: To the extent that the Chargor may be
entitled in any jurisdiction to claim for itself or its
assets, immunity from suit, execution, attachment or other
legal process whatsoever, it hereby irrevocably agrees not to
claim and hereby irrevocably waives such immunity to the
fullest extent permitted by the laws of such jurisdiction.
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IN WITNESS whereof the parties hereto have caused this Deed to be duly
executed, sealed where appropriate, and delivered as at the day and year first
before written.
THE CHARGOR )
)
SIGNED AND SEALED )
as a DEED )
for and on behalf of )
CREDIT ACCEPTANCE )
CORPORATION ) /s/ Xxxxxxx X. Xxxx
THE COLLATERAL AGENT )
)
SIGNED as a DEED )
for and on behalf of )
COMERICA BANK, as Collateral )
Agent for and on behalf of )
the Lenders, the Noteholders and )
the Future Debt Holders ) /s/ Xxxxx Xxxxxxx
ACKNOWLEDGED this 7 day of September 2001
for and on behalf of )
CREDIT ACCEPTANCE )
CORPORATION IRELAND )
LIMITED ) /s/ Xxxx Xxxxx
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SCHEDULE I
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Charged Shares as % Total Shares
No. of of Total Shares of Issuer
Issuer Charged Shares Issued and Outstanding Outstanding
------ -------------- ---------------------- -----------
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Credit Acceptance Corporation 65 65% 100 shares of IR(pound Sterling)1.00
Ireland Limited
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