EXHIBIT 4(l)
Dated 7 September 2001
CAC UK FUNDING LTD.
as Company
in favour of
COMERICA BANK
as Security Trustee
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DEBENTURE
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[XXXXX XXXXX & XXXXX LOGO]
Xxxxxxxxxxxx Xxxxx
0 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx, XX0X 0XX
Telephone: 000 0000 0000
Fax: 000 0000 0000
Reference: 98497274
PART 1 INTERPRETATION.............................................................................1
1. DEFINITIONS AND INTERPRETATION.............................................................1
PART 2 THE SECURED LIABILITIES....................................................................8
2. PAYMENT OF THE SECURED LIABILITIES.........................................................8
PART 3 SECURITY INTERESTS.........................................................................9
3. ASSIGNMENTS, FIXED AND FLOATING CHARGES....................................................9
4. PERFECTION OF SECURITY AND FURTHER ASSURANCES.............................................10
5. RELEASE OF SECURITY.......................................................................11
6. CRYSTALLISATION OF FLOATING CHARGE........................................................12
7. RESTRICTIONS ON DEALING WITH THE SECURED ASSETS...........................................13
PART 4 REPRESENTATIONS, WARRANTIES AND COVENANTS.................................................15
8. REPRESENTATIONS, WARRANTIES AND GENERAL COVENANTS.........................................15
9. SPECIFIC COVENANTS........................................................................17
PART 5 ENFORCEMENT...............................................................................21
10. POWER TO REMEDY...........................................................................21
11. ENFORCEMENT...............................................................................22
12. APPOINTMENT OF RECEIVER...................................................................23
13. PROTECTION OF THIRD PARTIES...............................................................26
14. APPLICATION OF PROCEEDS...................................................................26
15. POWER OF ATTORNEY.........................................................................27
PART 6 SECURITY TRUSTEE'S ADDITIONAL RIGHTS......................................................29
16. GENERAL SECURITY PROVISIONS...............................................................29
17. RETENTION OF SECURITY.....................................................................31
18. CUSTODY...................................................................................31
19. DELEGATION................................................................................32
20. PRIOR CHARGES.............................................................................32
21. SET-OFF...................................................................................32
22. CURRENCY INDEMNITY........................................................................33
PART 7 MISCELLANEOUS.............................................................................34
23. COSTS.....................................................................................34
24. INDEMNITY.................................................................................35
25. TRANSFERS.................................................................................35
26. PROPERTY OF SECURITY TRUSTEE..............................................................36
27. SECURITY TRUSTEE'S CERTIFICATE OR DETERMINATION...........................................36
28. NOTICES...................................................................................36
29. PARTIAL INVALIDITY........................................................................37
30. REMEDIES AND WAIVERS......................................................................37
31. AMENDMENTS AND WAIVERS....................................................................37
32. COUNTERPARTS..............................................................................37
33. THIRD PARTY RIGHTS........................................................................37
34. SECURITY TRUSTEE NOT COLLATERAL AGENT.....................................................37
PART 8 GOVERNING LAW AND ENFORCEMENT.............................................................39
35. GOVERNING LAW.............................................................................39
36. ENFORCEMENT...............................................................................39
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THIS DEBENTURE is dated 7 September 2001 and made by way of deed by:
(1) CAC UK FUNDING LTD., registered in England and Wales no. 04184229 and
having its registered office at Xxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxx,
XX00 0XX (the "COMPANY") in favour of
(2) COMERICA BANK, a Michigan banking corporation, as agent and security
trustee for the benefit of the Banks under the Credit Agreement
(referred to below), (the "SECURITY TRUSTEE").
IT IS AGREED as follows:
PART 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Debenture, unless the context otherwise requires:
"ADVANCES TO DEALERS" shall mean any and all advances by the Company to
Dealers under the Dealer Agreements whether in respect of Instalment
Contracts or Leases, as outstanding from time to time.
"BANKS" has the meaning specified in the Credit Agreement.
"XXXX OF SALE" means a xxxx of sale taken or to be taken by the Company
from a Customer by way of security in a Vehicle for liabilities under a
CAC Loan Agreement.
"CAC LOAN AGREEMENTS" means the "Loan Agreements" as defined in the
Dealer Trading Agreements each of which may be entered into between the
Company and a Customer and pursuant to which financing may be advanced
by way of loan from the Company to the Customer, to assist the
Customer's acquisition of a Vehicle, and may be secured by way of Xxxx
of Sale.
"CAC UK" means Credit Acceptance Corporation UK Limited, a company
organised under the laws of England and Wales.
"COMPANY" has the meaning given to it in the preamble.
"CONDITIONAL SALE AGREEMENT" means an agreement between the Company as
seller and a Customer as buyer, a specimen of which has previously been
supplied to the Security Trustee in connection with its execution of
this Debenture, under which the Company sells to the Customer a Vehicle
which the Company has purchased from the Dealer on terms that the price
is payable by the Customer in instalments and where
risk in the Vehicle passes to the Customer upon delivery but title to
the Vehicle remains with the Company until all instalments together
with any costs, fees, expenses and default interest have been paid in
full to the Company.
"CREDIT AGREEMENT" means the Amended and Restated Credit Agreement
dated as of June 11, 2001 (amended and restating the prior Credit
Agreement) between, inter alia, Credit Acceptance Corporation, a
Michigan corporation, other parties and Comerica Bank as administrative
agent (as amended, restated or otherwise modified from time to time).
"CUSTOMERS" means the person or persons who enters into a Conditional
Sale Agreement with the Company after being introduced to the Company
by a Dealer.
"DEALER" shall mean a person engaged in the business of the retail sale
or lease of motor vehicles, whether new or used, selling new motor
vehicles, but having a used vehicle department, including any such
person which constitutes an affiliate of the Company.
"DEALER TRADING AGREEMENT" means an agreement entered into between a
Dealer in the United Kingdom and the Company, a specimen of which has
previously been supplied to the Security Trustee in connection with its
execution of this Debenture, pursuant to which the Dealer agrees that
from time to time it will introduce Customers to the Company who seek
finance to acquire a Vehicle from the Dealer and that it will sell such
Vehicles to the Company for a charge or commission (the acquisition of
such Vehicles by Customers being subsequently financed by the Company
by way of a Conditional Sale Agreement or, subject to Clause 8.8, a CAC
Loan Agreement).
"DEBTS" means all present and future book and other debts and other
monies due, owing or payable to the Company including, but not limited
to, such monies due under the UK Contracts or any Intercompany Loans
and the benefit of any claims, insurance policies (including the
proceeds of the same), guarantees and any other rights relating to any
of the above, including any security or remedies for any of the same,
now or at any time enjoyed or held by the Company.
"DEFAULT RATE" means the rate specified in Clause 2.9 of the Credit
Agreement.
"DISCHARGE DATE" has the meaning given to it in Clause 5.1.
"DISPUTE" has the meaning given to it in Clause 36.1.
"DISSOLUTION" of a person includes the dissolution, bankruptcy,
insolvency, winding-up, liquidation, administration, examination,
amalgamation, reconstruction, reorganisation, arrangement, adjustment,
administrative or other receivership or dissolution of that person, its
official management or all of its assets or revenues or the seeking of
protection or relief of debtors and any equivalent or analogous
proceeding by whatever name known and in whatever jurisdiction.
"DOCUMENTS" means this Debenture and each of the Loan Documents.
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"ENFORCEMENT EVENT" means any of the following events:
(a) a breach by the Company of any provision of this Debenture
(including Clause 2.1) or any other Document;
(b) the occurrence of an Event of Default in connection with, or
relating to, any obligor in respect of any of the Secured
Liabilities; or
(c) the taking of any action by any person to enforce any Security
Interest over any of the Company's assets other than the
Security.
"EVENT OF DEFAULT" means each of those events of default specified in
Clause 9.1 of the Credit Agreement.
"GROUP" means the Company and its Subsidiaries and the Company's
holding company (as defined in Section 736 of the Companies Act 1985)
and its Subsidiaries (including, for the avoidance of doubt, CAC UK).
"INSTRUMENTS" means any contract, agreement, indenture, mortgage,
document or writing (whether by formal agreement, letter or otherwise)
under which any obligation is evidenced, assumed, or undertaken or any
security interest (or right or interest in any security interest) is
granted or perfected or purported to be granted or perfected.
"INSURANCE PROCEEDS" means all monies which may from time to time be
payable to or received by the Company (whether as an insured party or
as loss payee) pursuant to any Insurance and the proceeds of all claims
made by the Company under any such Insurance.
"INSURANCES" means all policies and contracts of insurance which have
been or are from time to time taken out by or on behalf of the Company
or (to the extent of its interest) in which the Company has an interest
(including as loss payee or additional insured) and including, for the
avoidance of doubt, all renewals of and replacements for such policies
and contracts of insurance.
"INTELLECTUAL PROPERTY" means all patents, designs, copyrights, design
rights, trade and service marks, utility models, trade and business
names, moral rights, know-how formulae, inventions, confidential
information, trade secrets, computer records and computer software
programs and systems (including applications, improvements,
prolongations, extensions and rights to apply for, and the benefit of
any licences or consents relating to, any of the above) and rights of a
like nature whether registered or unregistered and all fees, royalties
or other rights derived from or incidental to the same arising or
subsisting in any part of the world now or at any time belonging to the
Company.
"INTERCOMPANY LOANS" means all loans which the Company may, at any time
and from time to time, make to other members of the Group in accordance
with the Credit Agreement.
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"INTERCREDITOR AGREEMENT" means the Intercreditor Agreement dated as of
December 15, 1998 as amended by the First Amendment thereto, dated as
of March 30, 2001 (as further amended, amended and restated,
supplemented or otherwise modified from time to time) among the
Security Trustee, the Banks and certain Noteholders (as defined
therein).
"LOAN DOCUMENTS" has the meaning given to it in the Credit Agreement.
"LPA" means the Law of Property Xxx 0000.
"PARTY" means a party to this Debenture and includes its successors in
title, permitted assigns and permitted transferees.
"PERMITTED SECURITIZATION" shall mean a "Permitted Securitization" as
such term is defined in the applicable Loan Documents.
"PERMITTED SECURITY INTERESTS" means "Permitted Liens" as such term is
defined in the Credit Agreement.
"RECEIVER" means any receiver, receiver and manager or administrative
receiver appointed by the Security Trustee over all or any of the
Secured Assets pursuant to this Debenture whether alone or jointly with
any other or additional person and includes any substitute for any of
them appointed from time to time.
"SECURED ASSETS" means all of the undertaking and assets, rights and
property of the Company which are the subject of any security created
or purported to be created by this Debenture and includes any part of
or any interest in any of them save that any assets sold or disposed of
pursuant to Clause 5.3 shall not, once such assets have been released
from the security granted by this Debenture, constitute Secured Assets.
"SECURED LIABILITIES" means all monies, obligations and liabilities
whatsoever whether for principal, interest or otherwise in whatever
currency which may now or at any time in the future be due, owing or
incurred pursuant to or in connection with the Credit Agreement by any
or all of CAC UK, CAC of Canada Limited, a corporation organised under
the laws of Canada and Credit Acceptance Corporation Ireland Limited, a
corporation organised under the laws of the Republic of Ireland,
together with any other Foreign Subsidiary (as defined in the Credit
Agreement) which becomes a Permitted Borrower under the Credit
Agreement whether present or future, actual or contingent, and whether
alone, severally or jointly as principal, guarantor, surety or
otherwise and in whatever name and whether on any current or other
account or in any other manner whatsoever Provided that there shall be
excluded from this definition any money, obligation or liability which
would, but for this proviso, cause the covenant set out in Clause 2.1
or the security which would otherwise be constituted by this Debenture
to constitute unlawful financial assistance prohibited by Section 151
of the Companies Xxx 0000.
"SECURITY" means the security from time to time constituted by or
pursuant to this Debenture.
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"SECURITY DOCUMENTS" means this Debenture and any other document
guaranteeing or creating security for or supporting the obligations of
the Company or any other person to the Security Trustee or any of the
Banks.
"SECURITY INTEREST" means any mortgage, charge, pledge, lien,
assignment, hypothecation, security interest, title retention,
preferential right, trust arrangement or any other type of security or
preferential arrangement howsoever arising.
"SECURITY TRUSTEE" has the meaning given to it in the preamble.
"SPECIAL ACCOUNTS" means, upon or after the occurrence of an
Enforcement Event, such separate and denominated account or accounts
with the Security Trustee or such other bank or banks as the Security
Trustee may thereafter specify from time to time in writing as the
account or accounts into which the Debts are to be paid.
"TANGIBLE MOVABLE PROPERTY" means all plant, equipment and machinery
now or at any time vested in or held by or on behalf of the Company and
all related spare parts, fuels, equipment and tools.
"UK CONTRACTS" means the Conditional Sale Agreements, CAC Loan
Agreements, Bills of Sale and Dealer Trading Agreements.
"VEHICLE" means a motor car as defined by section 185 of the Road
Traffic Act 1988 or a light commercial vehicle (which in any case has
not been adapted from its original manufacturer's specification) and
all accessories and replacements fitted to the said Vehicle whether by
the Company, any other member of the Group or the Dealer or another.
1.2 INTERPRETATION
(a) Any reference in this Debenture to any Xxxx of Sale, CAC Loan
Agreement, Conditional Sale Agreement or Dealer Trading
Agreement shall be deemed to include a reference to any other
similar document taken or entered into by another member of
the Group, the rights, title, benefit and interest to and
under which have since been assigned, transferred or novated
to the Company by such other member of the Group and any
reference to an Advance or to a Customer shall include a
reference to an advance originally made by another member of
the Group under any such UK Contract or to a customer of such
other member of the Group under such UK Contract,
respectively.
(b) Any reference in this Debenture to:
(i) "APPLICABLE LAW" includes any law (including common
or customary law), statute, constitution, decree,
judgment, treaty, regulation, directive, bye-law,
order, rule, convention, procedure, consent, request,
determination or any other legislative measure or
requirement (whether or not having the force of law)
of, and any interpretation of the same by, any
governmental, intergovernmental, supranational,
national,
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federal, state, regional, local, statutory,
regulatory, self regulatory or other body or court;
(ii) the "ASSETS" of any person includes the whole or any
part of its business, undertakings, property,
intellectual property, shares, securities, debts,
accounts, revenues (including any right to receive
revenues), goodwill, shareholdings and uncalled
capital including premium whether now or at any time
acquired and any other assets whatsoever;
(iii) a "BUSINESS DAY" is a reference to a day (other than
a Saturday or Sunday) on which banks are generally
open for business in London and the United States of
America;
(iv) a "DISPOSAL" includes any sale, lease, transfer,
conveyance, assignment, licence, sub-licence or other
disposal and "DISPOSE" and "DISPOSED" shall be
construed accordingly;
(v) a "GUARANTEE" includes any guarantee, bond,
indemnity, letter of credit, third party security or
other legally binding assurance against financial
loss granted by one person in respect of any
indebtedness of another person or any agreement to
assume any indebtedness of any other person or to
supply funds or to invest in any manner whatsoever in
such other person by reason of or otherwise in
relation to any indebtedness of such other person;
(vi) "INDEBTEDNESS" includes any obligation (whether
incurred as principal or as surety) for the payment
or repayment of money, whether present or future,
actual or contingent;
(vii) "MATERIAL ADVERSE EFFECT" means, in the opinion of
the Security Trustee acting reasonably, a material
adverse effect on:
(A) the business, operations, assets or
financial condition of the Company;
(B) the ability of the Company to perform any
material obligation under any Document to
which it is a party; or
(C) the validity or enforceability of any
material provision of this Debenture or any
of the other Documents or the rights or
remedies of the Security Trustee hereunder
or thereunder;
(viii) a "PERSON" includes any person, firm, company,
corporation, government, state or agency of a state
or any association, trust or partnership (whether or
not having separate legal personality) or two or more
of the above;
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(ix) a "SUBSIDIARY" of any person means any other person
which is a "subsidiary undertaking" of the
first-mentioned person within the meaning of Section
258 of the Companies Xxx 0000 as in force at the date
of this Debenture;
(x) "TAX" means any tax, levy, impost, duty or other
charge or withholding of a similar nature (including
any penalty or interest payable in connection with
any failure to pay or any delay in paying any of the
same);
(xi) a "DOCUMENT" or any other agreement or Instrument is
a reference to that Document or other agreement or
Instrument as amended or novated from time to time;
(xii) "VAT" means value added tax and any other tax of a
similar nature;
(xiii) a provision of law is a reference to that provision
as the same may have been, or may from time to time
be, amended or re-enacted; and
(xiv) any person shall be construed so as to include it and
any subsequent successors and assigns in accordance
with their respective interests.
(c) Section, Clause and Schedule headings are for ease of
reference only.
(d) "(POUND)", "STERLING" and "POUNDS STERLING" denote the lawful
currency of the United Kingdom and "$" and "DOLLARS" denote
the lawful currency of the United States of America.
(e) Unless otherwise specified, a reference to any Section, Clause
or Schedule is a reference to such Section, Clause or Schedule
of this Debenture.
1.3 CREDIT AGREEMENT
All terms defined in the Credit Agreement which are used in this
Debenture shall bear the same meaning as in the Credit Agreement unless
the context requires otherwise. In the event of any conflict between
the meaning of any term defined in the Credit Agreement and in this
Debenture the definition in this Debenture shall prevail.
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PART 2
THE SECURED LIABILITIES
2. PAYMENT OF THE SECURED LIABILITIES
2.1 COVENANT TO PAY
The Company covenants with the Security Trustee and the Banks that it
shall pay and discharge the Secured Liabilities when due in accordance
with the Credit Agreement to the Security Trustee or the Banks;
provided, however, that recourse to the Company in connection with the
foregoing covenants shall be limited to the Security and the other
rights and remedies in connection with the Secured Assets granted to
the Security Trustee and the Banks pursuant to this Debenture.
2.2 INTEREST
If the Company fails to pay any amount due under Clause 2.1 on the due
date for payment of the same, the Company shall pay interest on such
amount (after as well as before any judgment) from the due date until
the date of payment (notwithstanding the Dissolution of the Company),
calculated on a daily basis at the rate or rates applicable under the
agreements or arrangements under which such amount is payable or, if no
such rate or rates are specified, at the Default Rate, upon such days
and upon such terms as the Security Trustee may from time to time
determine.
2.3 NO WITHHOLDING
All sums payable by the Company under this Debenture shall be paid
without any set-off, counterclaim, withholding or deduction whatsoever
unless required by law, in which event the Company will:
(a) simultaneously with making the relevant payment under this
Debenture pay to the Security Trustee such additional amount
as will result in the receipt by the Security Trustee of the
full amount which would otherwise have been received; and
(b) promptly supply the Security Trustee with evidence
satisfactory to the Security Trustee that the Company has
accounted to the relevant authority for the sum withheld or
deducted.
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PART 3
SECURITY INTERESTS
3. ASSIGNMENTS, FIXED AND FLOATING CHARGES
3.1 FIXED CHARGES
The Company with full title guarantee and as a continuing security for
the payment and discharge of the Secured Liabilities charges by way of
fixed charge in favour of the Security Trustee:
(a) the Tangible Movable Property;
(b) the Intellectual Property;
(c) all present and future goodwill and uncalled capital of the
Company;
(d) the Debts;
(e) all monies now or at any time standing to the credit of any
bank account (including any Special Account) opened or
maintained by the Company with any person; and
(f) all Vehicles to which the Company holds the title and the
purchase of which are being financed by the Company pursuant
to any of the UK Contracts.
3.2 ASSIGNMENT IN EQUITY
The Company with full title guarantee and as a continuing security for
the payment and discharge of the Secured Liabilities assigns in equity
to the Security Trustee all of the Company's right, title and interest
in and to all present and future rights and claims of the Company under
or in respect of the UK Contracts including, but not limited to, all of
the Company's right, title and interest in and to all present and
future rights and claims of the Company under any Conditional Sale
Agreements and any Dealer Trading Agreements.
3.3 FLOATING CHARGE
The Company with full title guarantee and as a continuing security for
the payment and discharge of the Secured Liabilities charges in favour
of the Security Trustee by way of floating charge the whole of the
undertaking and all the assets, rights and income of the Company both
present and future not otherwise effectively mortgaged, charged or
assigned (whether at law or in equity) pursuant to Clauses 3.1 and 3.2.
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3.4 RANKING OF CHARGES
The charges created by Clause 3.1 shall constitute first fixed charges.
The charge created by Clause 3.3 shall be a first floating charge
unless and until it is converted into a fixed charge pursuant to Clause
6 or by operation of law.
3.5 FAILURE OF ASSIGNMENT
If for any reason the assignment of any of the Secured Assets referred
to in Clause 3.2 is found to be ineffective and/or if any sums payable
in respect of such Secured Assets are received by the Company, the
Company shall hold the benefit of such Secured Assets and any such sums
received by it on trust for the Security Trustee and shall account to
the Security Trustee for or otherwise apply all such sums as the
Security Trustee may direct and shall otherwise at its own cost take
such action and execute such documents as the Security Trustee may
reasonably require.
3.6 PERFORMANCE OF OBLIGATIONS
The Company shall remain at all times liable to perform all of the
obligations assumed by it under or in respect of the UK Contracts and
the Documents to the same extent as if the Security had not been
created and neither the Security Trustee nor any Receiver shall be
under any obligation or liability to the Company or to any other person
under or in respect of any UK Contract or Document.
4. PERFECTION OF SECURITY AND FURTHER ASSURANCES
4.1 FURTHER ASSURANCES
The Company shall at the request of the Security Trustee and at its own
expense promptly execute (in such form as the Security Trustee may
reasonably require) such Instruments and otherwise do such acts and
things as the Security Trustee may require to improve, preserve,
perfect or protect the security created (or intended to be created) by
this Debenture or the priority of the same or, upon or after the
occurrence of an Enforcement Event, to facilitate the realisation of or
otherwise to enforce the same or to exercise any of the Security
Trustee's or any Receiver's rights in relation to the same. In
particular, but without limitation, the Company will:
(a) execute a legal assignment over all or any of the Debts
charged by this Debenture; and
(b) upon the occurrence of an Enforcement Event execute a valid
fixed charge over.
(i) any asset subject to the floating charge created
pursuant to Clause 3.3;
(ii) all bank accounts which the Company maintains at such
time and from time to time thereafter (and procure
that the Company's banker(s) execute an
acknowledgment of such fixed charge in a form
satisfactory to the Security Trustee at such time);
and
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(iii) any asset subsequently acquired by the Company which
would, if such asset had been owned by the Company at
the date of this Debenture, have been charged
pursuant to Clause 3.1; and
(c) notify the Security Trustee promptly if it wishes to undertake
any of the following activities (prior to undertaking such
activities) and execute an amendment to this Debenture and/or
such other additional security document as the Security
Trustee reasonably requires if the Company wishes to:
(i) materially amend or modify the UK Contracts; or
(ii) without prejudice to Clause 8.8, finance a Customer's
purchase of any Vehicle in the United Kingdom by way
of CAC Loan Agreement and/or Xxxx of Sale or accept
any assignment, transfer or novation of the right,
title, interest or benefit, to or under, any CAC Loan
Agreement or Xxxx of Sale from any other member of
the Group.
4.2 COVENANTS FOR TITLE
The obligations of the Company under this Clause 4 shall be in addition
to and not in substitution for the covenants for title deemed to be
included in this Debenture by virtue of Part 1 of the Law of Property
(Miscellaneous Provisions) Xxx 0000.
5. RELEASE OF SECURITY
5.1 NO DISCHARGE OF SECURITY
This Debenture and the Security shall be continuing security for the
Secured Liabilities and shall not be considered as satisfied or
discharged by any intermediate payment or settlement of all or any part
of the Secured Liabilities or any other matter or thing whatsoever and
shall be binding until the date (the "DISCHARGE DATE") on which:
(a) all of the Secured Liabilities have been unconditionally and
irrevocably paid or discharged in full to the satisfaction of
the Security Trustee;
(b) the Security Trustee is satisfied that each of the Banks and
it have ceased to have any commitment, liability or obligation
(whether actual or contingent) to make any credit or provide
any other accommodation to the Company under any Document or
otherwise or to any other person in respect of whose
liabilities the Company has undertaken a liability to the
Security Trustee or the Banks under or pursuant to any
Document.
(c) the Security Trustee is satisfied that the Company has ceased
to have any liability (whether actual or contingent) to the
Security Trustee and the Banks under or pursuant to any
Document in respect of any matter or thing whatsoever.
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5.2 RELEASE OF SECURITY
Following the Discharge Date and at the request and cost of the
Company, the Security Trustee shall, as soon as reasonably practicable
after receipt of such request, release and discharge without recourse,
representation or warranty whatsoever the Security and re-assign
without recourse, representation or warranty whatsoever property and
assets charged or assigned to the Security Trustee by or pursuant to
this Debenture to the Company (or as it shall direct), subject to the
provisions of the Credit Agreement and Clause 17 and to the rights and
claims of any person having prior rights over the same. Any release or
discharge of the Security or of any of the Secured Liabilities shall
not release or discharge the Company from any liability to the Security
Trustee or the Banks for the Secured Liabilities or any other monies
which exists independently of this Debenture.
5.3 RELEASE FOR PERMITTED SECURITIZATIONS AND TRANSFERS OF VEHICLES
Notwithstanding the provisions of Clauses 5.1 and 5.2, the Security
Trustee acknowledges and consents to:
(a) a disposition (as such term is defined in the Credit
Agreement) of Advances to Dealers, without the need for
further notice to the Security Trustee; provided, however,
that any such disposition of any Advance to Dealer shall be
made in connection with a Permitted Securitization involving
such Advance to Dealer and/or otherwise in accordance with,
and pursuant to, the terms and conditions of the Credit
Agreement; and provided, further, however, that the Company
shall not dispose of, or otherwise remit, the proceeds of any
such Permitted Securitization to any person other than CAC UK.
Without prejudice to the foregoing, the Security Trustee
shall, upon the written request and at the cost of the
Company, execute and deliver to the Company an instrument or
instruments in form reasonably acceptable to the Company
acknowledging the release and discharge of those Secured
Assets which are permitted to be sold or disposed of by the
Company or any other grantor pursuant to a Permitted
Securitization or otherwise pursuant to the Credit Agreement;
and
(b) the release of the fixed charge granted pursuant hereto in
respect of any Vehicle upon the transfer of title in such
Vehicle to a customer of the Company in accordance with the
terms and conditions of any UK Contract.
6. CRYSTALLISATION OF FLOATING CHARGE
6.1 CRYSTALLISATION BY NOTICE
The Security Trustee may at any time by notice in writing to the
Company convert the floating charge referred to in Clause 3.3 into a
fixed charge with immediate effect as regards any Secured Asset
specified in the notice which the Security Trustee shall consider to be
in danger of seizure, distress, diligence or other legal process or
otherwise for any reason whatsoever in jeopardy.
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6.2 AUTOMATIC CRYSTALLISATION
Notwithstanding Clause 6.1 and without prejudice to any rule of law
having a similar effect, the floating charge shall automatically be
converted into a fixed charge with immediate effect as regards all
assets subject to the floating charge created by Clause 3.3 on:
(a) any Secured Asset becoming subject to a Security Interest
other than a Permitted Security Interest or being disposed of
contrary to the provisions of Clause 7.1 or otherwise being in
jeopardy; or
(b) any person levying or notifying the Company that it intends to
levy any distress, execution, sequestration or other process
against any Secured Asset; or
(c) the Company ceasing to carry on business or to be a going
concern; or
(d) the occurrence of an Enforcement Event; or
(e) any of the Secured Liabilities becoming due and outstanding
prior to their stated maturity; or
(f) the presentation of a petition for the compulsory winding up
of or the making of an administration order in relation to the
Company or the convening of a meeting for the passing of a
resolution for the voluntary winding up of the Company.
7. RESTRICTIONS ON DEALING WITH THE SECURED ASSETS
7.1 RESTRICTIONS ON DEALING
The Company represents, warrants and undertakes to the Security Trustee
that save with the prior written consent of the Security Trustee:
(a) it has and will at all times during the subsistence of the
Security have legal title to and is and at all times during
the subsistence of the Security will be entitled to the entire
beneficial interest in the Secured Assets free from Security
Interests (save for Permitted Security Interests) and will not
create or attempt to create or permit to arise or subsist any
Security Interest on any of the Secured Assets;
(b) save as permitted by the Credit Agreement or this Debenture it
has not sold or agreed to sell or otherwise disposed of or
agreed to dispose of and will not at any time during the
subsistence of the Security sell, assign, part with, transfer,
lease, licence or otherwise dispose of the benefit of all or
any of the Company's right, title and interest in and to the
Secured Assets or any part of them and will not agree to or
grant any option in respect of any of the above, with the
exception of:
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(i) sales of its stock in trade at not less than market
value in the ordinary course of its business;
(ii) the use of cash for the acquisition of goods or
services in the ordinary course of its business; and
(iii) the sale or disposal of all or any of its undertaking
and assets for the time being subject to the floating
charge created pursuant to Clause 3.3 in the ordinary
course of its business until such time as such
floating charge is converted into a fixed charge
pursuant to Clause 6 or by operation of law; and
(c) (i) upon or after the occurrence of an Enforcement Event and
upon receipt of a notice from the Security Trustee requiring
the establishment of a Special Account (or Special Accounts),
it will promptly pay into a Special Account all monies which
it may receive in respect of the Debts immediately on receipt
and it will not be entitled to withdraw or transfer from the
Special Accounts any monies standing to the credit of such
Special Accounts or direct any payment to be made from such
Special Accounts to any person, and (ii) until such payment
into a Special Account of the nature referred to in sub-clause
(c)(i) will hold all monies which it may receive in respect of
the Debts on trust for the Security Trustee, it will not
release, set-off, compound or deal with the Debts otherwise
than by getting in and realising the same in the ordinary and
proper course of its business (and for this purpose the
realisation of Debts by means of block discounting, factoring
or the like shall not be regarded as dealing in the ordinary
and proper course of its business).
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PART 4
REPRESENTATIONS, WARRANTIES AND COVENANTS
8. REPRESENTATIONS, WARRANTIES AND GENERAL COVENANTS
The Company makes the representations, warranties and covenants set out
in this Clause to the Security Trustee.
8.1 DUE INCORPORATION
It is a limited liability company, duly incorporated and validly
existing under the laws of England and Wales, capable of being sued in
its own right and will not be entitled to claim immunity (whether on
the basis of sovereignty or otherwise) from judicial proceedings
including attachment (both before and after judgment), execution or
otherwise.
8.2 CAPACITY
It has and will at all times have the necessary power and existence to
enter into and perform its obligations under this Debenture.
8.3 ENFORCEABILITY
This Debenture constitutes, and will continue during the subsistence of
the Security to constitute, its legal, valid, binding and enforceable
obligations and is, and will continue during the subsistence of the
Security to be, a first ranking Security Interest over the Secured
Assets effective in accordance with its terms.
8.4 AUTHORISATIONS
All actions, conditions and things required to be taken, fulfilled and
done (including the obtaining of any necessary consents or the like) in
order:
(a) to enable the Company lawfully to enter into and perform and
comply with its obligations under or pursuant to this
Debenture and to ensure that those obligations are valid,
legally binding and enforceable;
(b) to enable the Company to create the Security and to ensure
that (subject to all necessary registrations being made) the
Security is valid, legally binding and enforceable and has and
will have the ranking which it is expressed to have;
(c) to make this Debenture admissible in evidence in the courts of
England and each other jurisdiction in which any Secured Asset
is located;
(d) to enable the Company to own its assets and property and to
carry on its business as it is currently being conducted; and
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(e) to ensure that no other party to any agreement or arrangement
entered into by the Company becomes entitled to terminate such
agreement as a consequence of the Company entering into this
Debenture,
have been taken, fulfilled and done (and in the case of consents and
the like will remain in full force and effect during the subsistence of
the Security).
8.5 COMPLIANCE WITH LAWS
Its entry into and its performance of and compliance with its
obligations under or pursuant to this Debenture and the creation of the
Security does not and will not violate or exceed any borrowing or other
powers or restrictions granted or imposed under or pursuant to:
(a) any applicable law to which it is subject;
(b) any agreement or other Instrument binding on it or any of its
assets; or
(c) its Memorandum and Articles of Association.
8.6 INSOLVENCY PROCEEDINGS
It has not taken any corporate action nor have any other steps been
taken or legal proceedings been started or, to the best of its
knowledge and belief, threatened against it for its Dissolution.
8.7 INSURANCE POLICIES
It has obtained and maintained all such insurance policies as would be
maintained by prudent companies carrying on business of the type
carried on by the Company at all relevant times and has complied in all
material respects with the terms and conditions of such policies.
8.8 FINANCE OF ACQUISITION OF VEHICLES
In connection with the conduct of business in relation to Vehicles or
any other asset (including the financing of the acquisition thereof)
the Company shall conduct such business substantially through
Conditional Sale Agreements entered into pursuant to a Dealer Trading
Agreement. Without prejudice to the foregoing, notwithstanding the
ability of the Company to utilise CAC Loan Agreements and Bills of Sale
to finance the acquisition by Customers of Vehicles pursuant to the
Dealer Trading Agreements, the Company has financed, and will continue
to finance, substantially all acquisitions of Vehicles by way of
Conditional Sale Agreements and not through any CAC Loan Agreement or
Xxxx of Sale and, without prejudice to the generality of the foregoing,
the Company has not accepted, and will not accept, any assignment of
the right, title, interest and benefit, to or under any CAC Loan
Agreements or Bills of Sale from any other member of the Group. The
Company shall promptly supply the Security Trustee with copies of any
documents other than Conditional Sale Agreements
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utilised by it in connection with the conduct of business in relation
to Vehicles or any other assets.
9. SPECIFIC COVENANTS
9.1 SPECIFIC COVENANTS
Save with the prior written consent of the Security Trustee, the
Company shall at all times during the subsistence of the Security:
(a) ACCESS
(i) upon prior written notice from the Security Trustee,
permit the Security Trustee and/or its
representatives or agents free access at all
reasonable times to inspect and take copies and
extracts from the books, accounts and records of the
Company and such other documents as the Security
Trustee may reasonably require and furnish the
Security Trustee with all information and facilities
which it may require and pay all reasonable expenses
incurred by the Security Trustee in connection with
the above; and
(ii) grant the Security Trustee and/or its legal or other
advisers on request all reasonable facilities to
enable it or them to carry out at the Company's
expense such investigation of title to any Secured
Assets and enquiries into matters in connection with
the same as would be carried out by a prudent person;
(b) INSURANCES
maintain, with financially sound and reputable insurers,
insurance with respect to its material property and business
against such casualties and contingencies, of such types
(including insurance with respect to losses arising out of
such property loss or damage, public liability, business
interruption, larceny, workers' compensation, embezzlement or
other criminal misappropriation) and in such amounts as is
customary in the case of companies of established reputations
engaged in the same or similar business and similarly situated
(and including such lender loss payee clauses and/or
endorsements as the Security Trustee or the Banks may request
following the delivery of the Collateral Documents (as defined
in the Credit Agreement) pursuant to Section 7.20 of the
Credit Agreement), provided that such insurance is
commercially available, it being understood that the Company
and its Subsidiaries may self-insure against hazards and risks
with respect to which, and in such amounts as, the Company in
good faith determines to be prudent and consistent with sound
financial and business practice.
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(c) INTELLECTUAL PROPERTY
(i) use its best endeavours to detect any infringement of
the Intellectual Property and if it shall become
aware of any such infringement to give the Security
Trustee immediately all information in its possession
with regard to the same and at the request of the
Security Trustee but at its own cost to take such
steps as the Security Trustee may from time to time
direct, including commencing and diligently
prosecuting or permitting the Security Trustee in the
name but at the expense of the Company to commence
and prosecute all proceedings necessary to prevent
such infringement or to recover damages in respect of
the same;
(ii) lodge all notices, complete all filings and
registrations and do all other acts as may be
necessary to ensure that the Intellectual Property to
which the Company is or may become entitled is valid
and subsisting and remains vested in the Company and
to take all such actions and proceedings as are
necessary to protect such Intellectual Property and
if any or all such Intellectual Property shall at any
time become void to lodge all notices and do all
other acts as may be necessary to restore such
Intellectual Property to the Company and in
particular to pay all such fees as may be necessary
for all of the above at least 14 days before the same
shall become due; and
(iii) do all such things as are necessary to maintain and
keep in force such of its Intellectual Property as is
material to its business;
(d) COMPLIANCE WITH LAWS
comply in all material respects with the provisions of all
applicable laws and every notice, order, direction, licence or
permission given or made under such applicable laws;
(e) RECORDS
keep its books of account and prepare all financial statements
in accordance with accounting principles generally accepted in
England consistently applied and procure that there is
furnished to the Security Trustee:
(i) such information, financial or otherwise, as the
Security Trustee may from time to time reasonably
request regarding the affairs of the Company or all
or any part of the Secured Assets; and
(ii) details of any litigation, arbitration or
administrative proceedings in progress pending or, to
the knowledge of the Company, threatened against it
which might have a material adverse effect on the
Company's ability to perform its obligations under
this Debenture as soon as the Company becomes aware
of such details;
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(f) CONTRACTS AND DOCUMENTS
diligently pursue any remedies available to it for any breach
of, or in respect of any claim in relation to, any UK Contract
or Document;
(g) INTERCOMPANY LOANS
keep a full written record evidencing all Intercompany Loans
and provide copies of such record to the Security Trustee free
of charge within 10 Business Days of receiving a written
request from the Security Trustee for a copy of such record;
(h) VAT
(i) not, without the prior written consent of the
Security Trustee, exercise any option, election or
discretion to charge VAT or transfer the right to
recover any VAT or levy VAT or to treat supplies made
by it as taxable supplies for the purposes of VAT;
and
(ii) if the Security Trustee so requires, exercise any
option, election or discretion which may now or from
time to time be available to it to charge VAT or to
treat supplies made by it as taxable supplies for the
purposes of VAT; and
(i) GENERAL
conduct and carry on its business in a proper and efficient
manner, keep or cause to be kept proper books of account
relating to such business, not make any material alteration in
the nature of such business which would constitute a change
from that carried on at the date of this Debenture and not
take any step or omit to take any step the taking or omission
of which might have a material adverse effect on the value of
the Company's goodwill.
9.2 EVIDENCE OF COMPLIANCE
The Company shall at all times during the subsistence of the Security
and if the Security Trustee so requires, give to the Security Trustee
evidence sufficient to satisfy it that the provisions of this Clause 9
have been complied with.
9.3 LIMITATION ON POWERS
None of the covenants in Clause 9 shall be construed as limiting any
powers exercisable by any Receiver under this Debenture.
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9.4 NECESSITATED AMENDMENTS OR SUPPLEMENTS TO THIS DEBENTURE
Should the Company seek the written consent of the Security Trustee to
undertake any activity which is expressly prohibited under Clause 9.1
and which the Company has therein covenanted that it will not
undertake, the Company hereby agrees that it will at its expense
execute and deliver such additional security document or such amendment
to this Debenture as the Security Trustee requires and will reimburse
the Security Trustee for all reasonable costs and expenses (including,
but not limited to, legal fees) of the Security Trustee in connection
with the negotiating, drafting, execution, delivery and registration of
such additional security document or such amendment (as applicable).
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PART 5
ENFORCEMENT
10. POWER TO REMEDY
10.1 ENTRY, POSSESSION AND POWER TO REMEDY
The Company shall upon 5 days prior notice (except if an Enforcement
Event has occurred and is continuing, when no prior notice shall be
required) permit the Security Trustee and/or its representatives,
agents or contractors free access at reasonable times to enter or take
possession of all or any part of the Secured Assets to:
(a) view the state and condition of the same;
(b) comply with or object to any direction or notice or other
matter served on the Company; or
(c) carry out any repairs or take any other action (including the
payment of money) which the Security Trustee shall consider
necessary or desirable in connection with such Secured Assets
to remedy any failure to comply with any covenant contained in
Clause 9,
and in any such case without becoming liable to account as mortgagee in
possession;
provided, however, that the Security Trustee acknowledges that, in
exercising the rights and privileges conferred in this Clause 10.1, it
or agents, representatives or contactors may, from time to time, obtain
knowledge of information, practices, books, correspondence and records
of a confidential nature and in which the Company has a proprietary
interest. The Security Trustee agrees that all such information,
practices, books, correspondence and records are to be regarded as
confidential information and agrees that it shall retain in strict
confidence and shall use its reasonable efforts to ensure that its
agents and representatives retain in strict confidence, and will not
disclose without the prior written consent of the Company, any such
information, practices, books, correspondence and records furnished to
them except that the Security Trustee may disclose such information (i)
to its officers, directors, employees, agents, legal advisers,
accountants, auditors, affiliates, advisors or representatives
(provided that such persons are informed of the confidential nature of
such information), (ii) to the extent such information has become
available to the public other than as a result of a disclosure by or
through the Security Trustee or its officers, directors, employees,
agents, legal advisers, accountants, auditors, affiliates, advisors or
representatives, (iii) to the extent such information was available to
the Security Trustee on a non-confidential basis prior to its
disclosure to the Security Trustee hereunder, (iv) to the extent the
Security Trustee is (A) required in connection with any legal or
regulatory proceeding or (B) requested by any bank or other regulatory
authority to disclose such information; (v) to any prospective assignee
of any note or other instrument evidencing any of the Secured
Liabilities; provided, however, that the Security Trustee shall notify
such assignee of the confidentiality
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provisions of this Section 10.1 and such assignee shall agree to be
bound thereby; or (vi) to any Bank, subject to the confidentiality
provisions contained in this Debenture and the Credit Agreement and any
other Loan Documents to which it is a party, upon the request of such
party following the occurrence and during the continuance of any Event
(but with no obligation on the part of any such Bank to return such
information to the Security Trustee or the Company if any such
Enforcement Event is subsequently cured or waived).
10.2 INSURANCES
If the Company shall fail to comply with any of its obligations as to
insurance, the Security Trustee may, but shall not be required to, take
out, renew or maintain such insurance either in its own name, in its
name and that of the Company jointly or in the name of the Company with
the Security Trustee's interest noted on the policy, in such sum as the
Security Trustee may think expedient.
10.3 INDEMNITY
The Company shall on demand indemnify the Security Trustee and the
Banks on a full indemnity basis in respect of any and all costs,
damages and expenses incurred by the Security Trustee or the Banks
pursuant to Clauses 10.1 and 10.2, together with interest at the
Default Rate from the date of payment by the Security Trustee or the
Banks until repayment, whether before or after judgment and
notwithstanding any release or discharge of all or any part of the
Security, indemnify the Security Trustee and the Banks on a full
indemnity basis in respect of any and all actions, proceedings,
demands, claims, losses, liabilities, costs and expenses arising as a
result of any breach of Clause 9 or otherwise relating to all or any
part of the Secured Assets save to any costs, charges or expenses
incurred as a result of the Security Trustee's own negligence or wilful
default.
11. ENFORCEMENT
11.1 ENFORCEMENT
On or at any time after the occurrence of an Enforcement Event:
(a) the Security Trustee shall cease to be under any further
commitment to the Company and may at any time (notwithstanding
any conflicting agreement or arrangement) declare the Secured
Liabilities (or such of them as the Security Trustee may
specify) to be immediately due and payable or payable
immediately on demand; and
(b) the Security shall become immediately enforceable and the
power of sale and other powers conferred by Section 101 of the
LPA as varied or extended by this Debenture and all the
powers, authorities and discretions conferred by this
Debenture expressly or by implication on any Receiver or
otherwise conferred by statute or common law on mortgagees or
receivers shall become immediately exercisable by the Security
Trustee, whether or not it shall have
-22-
appointed a Receiver, without the restrictions contained in
the LPA as to the giving of notice or otherwise.
11.2 POWER OF SALE
The Secured Liabilities shall be deemed for the purposes of all powers
implied by statute to have become due and payable within the meaning of
Section 101 of the LPA immediately on the execution of this Debenture
and Section 103 of the LPA (restricting the power of sale) and Section
109 of the LPA (restricting the power to appoint a receiver) shall not
apply to this Debenture or any Security and upon the occurrence of an
Enforcement Event, the Security created by this Debenture shall become
immediately enforceable and the powers conferred by the LPA and this
Debenture shall become immediately exercisable without the restrictions
contained in the LPA.
11.3 CONSOLIDATION
The restriction on the consolidation of mortgages imposed by Section
93(1) of the LPA shall not apply to this Debenture or to any Security.
12. APPOINTMENT OF RECEIVER
12.1 APPOINTMENT OF RECEIVER
Without prejudice to any statutory or other powers of appointment of
the Security Trustee under the LPA as extended by this Debenture or
otherwise, at any time after the security constituted by this Debenture
has become enforceable or if the Company so requests in writing at any
time the Security Trustee may without further notice to the Company
appoint by writing under hand of a duly authorised officer or under
seal any one or more persons qualified to act as a receiver, receiver
and manager or administrative receiver (as the case may require) under
the Insolvency Xxx 0000 either solely, jointly, severally or jointly
and severally to be a Receiver of all or any part of the Secured Assets
and either at the time of appointment or any time after such
appointment may fix his or their remuneration and except as otherwise
required by statute may remove any such Receiver and appoint another or
others in his or their place.
12.2 POWERS OF RECEIVER
Every Receiver shall have in relation to the Secured Assets (and every
reference in this Clause to "Secured Assets" shall be read as a
reference to that part of the Secured Assets in respect of which such
Receiver was appointed) the powers granted by the LPA to any receiver
appointed under it or to any mortgagor or mortgagee in possession and
the powers granted by the Insolvency Xxx 0000 to any administrative
receiver, all as varied and extended by this Debenture and in addition,
but without prejudice to the generality of the above, shall have power
to do the following:
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(a) enter upon, take possession of, collect and get in the Secured
Assets or any part of them and collect and get in all rents
and other income whether accrued before or after the date of
his appointment and for those purposes make such demands and
take such actions or proceedings as may seem expedient;
(b) comply with and perform all or any of the acts, matters,
omissions or things covenanted to be done or omitted by the
Company under this Debenture;
(c) carry on, manage, develop, reconstruct, amalgamate or
diversify the business of the Company to the extent contained
in the Secured Assets or any part of it in such manner as he
shall in his discretion think fit (including, without
prejudice to the generality of the above, to purchase supplies
and materials);
(d) sell by public auction or private contract, let, grant,
surrender or accept surrenders of leases or tenancies of,
grant rights, licences, options or easements in relation to,
otherwise deal with or dispose of and exercise all or any
rights, powers and discretions incidental to the ownership of,
all or any part of the Secured Assets in the name of and on
behalf of the Company or otherwise or concur in doing any of
the above in such manner and generally on such terms and
conditions and for such consideration (whether in cash,
debentures, shares, stocks, securities or other valuable
consideration and whether payable by a lump sum or by
instalments) as he may think fit and carry out any such sale
by conveying by deed or transferring in the name and on behalf
of the Company or otherwise and taking such steps so that
plant, machinery and other fixtures and fittings may be
severed and sold separately from the premises containing them
and apportion any rent and the performance of any obligations;
(e) repair, decorate, furnish, maintain, alter, improve, renew or
add to the Secured Assets or any part of them as he shall
think fit and effect, maintain, renew or increase indemnity
insurance and other insurances and obtain bonds;
(f) appoint or dismiss managers, agents, officers, employees,
servants, builders or workmen and employ professional advisers
and others at such salaries or for such remuneration as he may
think fit;
(g) perform, repudiate, rescind, vary or enter into any
arrangement or compromise any contracts or agreements which he
may consider expedient;
(h) settle, arrange, compromise and submit to arbitration any
accounts, claims, questions or disputes whatsoever which may
arise in connection with the business of the Company or all or
any of the Secured Assets or in any way relating to the
Security and bring, prosecute, defend, enforce, compromise,
submit to and discontinue any actions, suits, arbitrations or
proceedings whatsoever whether civil or criminal;
-24-
(i) enter into, complete, disclaim, abandon, disregard, determine
or rectify all or any of the outstanding contracts or
arrangements of the Company and allow time for payment of any
unsecured or secured debts;
(j) exercise or permit the Company or any nominee of the Company
to exercise any powers or rights incidental to the ownership
of the Secured Assets or any part of them in such manner as he
may think fit;
(k) form a Subsidiary or Subsidiaries of the Company and transfer,
lease or licence to any such Subsidiary or any other person
all or any part of the Secured Assets on such terms and
conditions as he may think fit;
(l) purchase, lease, hire or otherwise acquire any assets or
rights of any description which he shall in his absolute
discretion consider necessary or desirable for the carrying
on, improvement or realisation of all or any part of the
Secured Assets or the business of the Company or otherwise for
the benefit of all or any part of the Secured Assets;
(m) exercise any powers and discretions conferred on a landlord or
a tenant by any applicable law in relation to all or any part
of the Secured Assets;
(n) in the exercise of any of the powers, authorities and
discretions conferred on him by this Debenture or for any
other purpose to raise and borrow money either unsecured or
secured and either in priority to, pari passu with or
subsequent to the Security and generally on such terms and
conditions as he may think fit;
(o) give valid receipts for all monies and execute all discharges,
assurances and things which may be proper or desirable for
realising the Secured Assets or any part of them and redeem,
discharge or compromise any security whether or not having
priority to the Security or any part of it;
(p) execute and do all such other acts, things and deeds as he may
consider necessary or desirable for the realisation or
preservation of the Secured Assets or any part of them or
incidental or conducive to any of the matters, powers,
discretions or authorities conferred on or vested in him under
or by virtue of this Debenture or otherwise and exercise in
relation to the Secured Assets or any part of them, and at the
cost of the Company, all such powers, discretions, authorities
and things as he would be capable of exercising if he were the
absolute beneficial owner of the same; and
(q) use the name of the Company or his own name to exercise all or
any of the powers conferred by this Debenture.
12.3 AGENT OF THE COMPANY
Any Receiver appointed under this Debenture whether acting solely or
jointly shall be deemed to be the agent of the Company and to be in the
same position as a receiver
-25-
appointed under the LPA and the Company shall be solely responsible for
his acts, omissions, defaults, losses and misconduct and for his
remuneration and the Security Trustee shall not be in any way liable or
responsible either to the Company or to any other person whatsoever for
any Receiver.
12.4 JOINT APPOINTMENT
If at any time two or more persons have been appointed as Receivers of
the same part of the Secured Assets, each one of such Receivers shall
be entitled to exercise individually all of the powers and discretions
conferred on Receivers under this Debenture to the exclusion of the
other or others of them in relation to any of the Secured Assets in
respect of which he has been appointed unless the Security Trustee
shall state otherwise in the document appointing him.
13. PROTECTION OF THIRD PARTIES
No purchaser, mortgagee or other person dealing with a Receiver or the
Security Trustee shall be concerned to enquire whether the Secured
Liabilities have become payable, whether any power which he or it is
purporting to exercise has become exercisable, whether any money is due
under this Debenture, as to the application of any money paid, raised
or borrowed or as to the propriety or regularity of any sale by or
other dealing with such Receiver or the Security Trustee. All the
protection to purchasers contained in Sections 104 and 107 of the LPA
and Section 42(3) of the Insolvency Xxx 0000 shall apply to any person
purchasing from or dealing with a Receiver or the Security Trustee as
if the Secured Liabilities had become due and the statutory powers of
sale and of appointing a Receiver in relation to the Secured Assets had
arisen on the date of this Debenture.
14. APPLICATION OF PROCEEDS
14.1 ORDER OF PRIORITY
Any monies received by the Security Trustee or any Receiver pursuant to
this Debenture or under the powers conferred by this Debenture shall,
after the occurrence of an Enforcement Event and payment of any claims
having priority to the Security, be applied in the following order, but
without prejudice to the right of the Security Trustee or the Banks to
recover any shortfall from the Company:
(a) where applicable, in payment of all costs, charges and
expenses of and incidental to the appointment of the Receiver
and the exercise of all or any of his powers;
(b) where applicable, in payment of the Receiver's remuneration at
such rate as may be agreed with the Security Trustee;
(c) in or towards payment of the Secured Liabilities in such order
as the Security Trustee in its absolute discretion thinks fit;
and
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(d) in payment of the surplus (if any) to the person or persons
entitled to it.
14.2 SPECIAL ACCOUNTS
During the subsistence of the Security (and upon or after the
occurrence of an Enforcement Event) the Security Trustee may, in its
discretion, apply any part of the monies standing to the credit of the
Special Accounts in accordance with this Clause.
14.3 INSURANCE PROCEEDS
After occurrence of an Enforcement Event, all monies received by the
Company by virtue of any insurance on the Secured Assets, whether or
not effected pursuant to this Debenture and whether the event by virtue
of which such monies became payable occurred before, on or after the
date of this Debenture, shall be deemed part of the Secured Assets and
(subject to any rights of third parties arising under any statute for
the time being relating to the application of insurance monies and
under any lease under which any Property is demised or let to or by the
Company), shall, save with the prior written consent of the Security
Trustee, be paid to the Security Trustee. Any monies so paid to the
Security Trustee or otherwise received by the Security Trustee by
virtue of any such insurance shall be applied in accordance with the
provisions of the Credit Agreement. Any monies received by the Company
by virtue of any such insurance shall be held on trust for the Security
Trustee until such monies are paid to the Security Trustee in
accordance with this Clause. The Company waives any right it may have
to require that any such monies be applied in or towards making good
the loss or damage in respect of which they became payable.
14.4 SUSPENSE ACCOUNT
The Security Trustee or any Receiver may credit any monies to a
suspense account for so long and in such manner as the Security Trustee
or any Receiver may from time to time determine and the Receiver may
retain the same for such period as the Receiver and the Security
Trustee consider expedient.
15. POWER OF ATTORNEY
15.1 APPOINTMENT
The Company irrevocably and by way of security appoints the Security
Trustee and any Receiver and every delegate referred to in Clause 19
and each of them jointly and also severally to be its attorney (with
full powers of substitution and delegation) and in its name or
otherwise and on its behalf and as its act and deed to, after the
occurrence and during the continuance of an Enforcement Event, execute
(using the corporate seal, if appropriate), deliver and perfect all
Instruments and do such other acts and things which may be required or
which the attorney may consider desirable:
(a) to carry out any obligation imposed on the Company by this
Debenture;
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(b) to carry into effect any sale, lease or other dealing
whatsoever by the Security Trustee or any Receiver;
(c) to convey or transfer any legal estate or other interest in
land or any other property whatsoever;
(d) to get in all or any of the Secured Assets; and
(e) generally to enable the Security Trustee and any Receiver to
exercise the respective powers, authorities and discretions
conferred on them by this Debenture or by law,
and the Company covenants with the Security Trustee to ratify and
confirm all acts and things done by such attorney in the exercise or
purported exercise of its powers and all monies spent by such attorney
shall be deemed to be expenses incurred by the Security Trustee under
this Debenture.
15.2 IRREVOCABLE POWER
The Company acknowledges that the power of attorney granted by Clause
15.1 is as regards each of the Security Trustee and each Receiver
granted irrevocably and for value as part of the Security to secure a
proprietary interest in and the performance of obligations owed to the
respective donees within the meaning of Section 4 of the Powers of
Xxxxxxxx Xxx 0000.
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PART 6
SECURITY TRUSTEE'S ADDITIONAL RIGHTS
16. GENERAL SECURITY PROVISIONS
16.1 ADDITIONAL SECURITY
This Debenture, the Security and the rights, powers and remedies given
to the Security Trustee under this Debenture shall be in addition to
and independent of and shall not prejudice, affect or merge in any
other Security Interest, any guarantee or other Instrument (whether
given by the Company or any other person) or any other right, power or
remedy vested in the Security Trustee or which the Security Trustee may
at any time hold in respect of or in connection with any or all of the
Secured Liabilities and shall not be affected by any release,
reassignment or discharge of such Security Interest, guarantee or
Instrument or right, power or remedy. All the rights, powers and
remedies so vested may be exercised from time to time as often as the
Security Trustee may deem expedient.
16.2 WAIVER OF DEFENCES
Without prejudice to the other provisions of this Clause 16, the
obligations of the Company and the rights, powers and remedies of the
Security Trustee under this Debenture and the Security or by applicable
law will not be affected by any act, omission, matter or thing which,
but for this provision, would reduce, release, prejudice or otherwise
affect all or any of such obligations, remedies, rights, powers or
Security including:
(a) any time or waiver or any other indulgence or concession
granted to, or composition with, any other person;
(b) the taking, variation, compromise, exchange, realisation,
renewal or release of, or refusal or neglect to perfect,
register, renew, take up, fully take up or enforce, any rights
against, or security over the assets of, any other person or
any non-presentation or non-observance of any formality or
other requirement in respect of any Instrument or any failure
to realise, or fully realise the full value of, any security;
(c) any incapacity, lack of power, authority or legal personality
or Dissolution or change in the members, status, constitution,
ownership or control of any other person;
(d) any variation (however fundamental), replacement or amendment
of, or waiver or release granted under or in connection with,
any Document or any other document or security;
(e) any unenforceability, illegality or invalidity of any
obligation of any person under any Document or any other
document or security; or
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(f) any postponement, discharge, reduction, non-provability or
other similar circumstance affecting any obligation of any
person under any Document resulting from any Dissolution or
from any applicable law.
16.3 NEW ACCOUNT
At any time following:
(a) the Security Trustee's receipt of notice (either actual or
constructive) of any subsequent Security Interest affecting
the Secured Assets which is not permitted under the terms of
the Credit Agreement;
(b) the Dissolution of the Company, or
(c) any assignment or transfer of all or any of the Secured Assets
in breach of Clause 7.1,
the Security Trustee may open a new account or accounts in the name of
the Company (whether or not it permits any existing account to
continue). If the Security Trustee does not open such a new account, it
shall nevertheless be treated as if it had done so at the time when the
notice was received or was deemed to have been received or, as the case
may be, the Dissolution commenced from that time, all payments made by
the Company to the Security Trustee or received by the Security Trustee
for the account of the Company shall be credited or treated as having
been credited to the new account and shall not operate to reduce the
amount secured by this Debenture at the time when the Security Trustee
received or was deemed to have received such notice or, as the case may
be, the Dissolution commenced.
16.4 NON-COMPETITION
(a) Until the Discharge Date, the Company shall not by virtue of
any payment made, security realised or monies received for or
on account of the liability of any third party:
(i) be subrogated to any rights of, or security or monies
held, received or receivable by, the Security Trustee
or the Banks or be entitled to any right of
contribution or indemnity in respect of the same;
(ii) claim, rank, prove or vote as a creditor of any such
third party or its estate in competition with the
Security Trustee or the Banks; or
(iii) receive, claim or have the benefit of any payment,
distribution or security from or on account of any
such third party or exercise any right of set-off as
against such third party.
(b) The Company will hold on trust for, and immediately pay or
transfer or assign to, the Security Trustee any payment or the
benefit of any security received by it in breach of this
Clause 16.4. If the Company exercises any right of set-off
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contrary to the above, it will immediately pay an amount equal
to the amount set-off to the Security Trustee.
16.5 ENTRY INTO POSSESSION
If the Security Trustee or any Receiver shall enter into possession of
all or any part of the Secured Assets, the Security Trustee or such
Receiver may at any time go out of such possession. Neither the
Security Trustee nor any Receiver shall in any circumstances be liable
to account to the Company for anything except its or his actual
receipts or be liable to the Company for any loss or damage arising
from any realisation of all or any part of the Secured Assets or from
any act, default or omission in relation to all or any part of the
Secured Assets.
17. RETENTION OF SECURITY
17.1 AVOIDANCE OF PAYMENTS
No assurance, security or payment which may be avoided or adjusted
under any applicable law relating to bankruptcy or insolvency or under
Part VI of the Insolvency Xxx 0000 or similar legislation binding on
the Company in a jurisdiction other than England and Wales and no
release, settlement, discharge or arrangement given or made by the
Security Trustee on the faith of any such assurance, security or
payment shall prejudice or affect the right of the Security Trustee or
the Banks to recover from the Company and from the Security the Secured
Liabilities (including any monies which it may have been compelled by
due process of law to refund under the provisions of the Insolvency Xxx
0000 and any costs payable by it pursuant to or otherwise incurred by
it in connection with such process).
17.2 REINSTATEMENT
If any payment by the Company or any discharge given by the Security
Trustee or any Bank (whether in respect of the obligations of the
Company or any Security Interest for those obligations or otherwise) is
avoided or reduced as a result of Dissolution:
(a) the liability of the Company shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and
(b) the Security Trustee and/or the Banks, as the case may be,
shall be entitled to recover the value or amount of that
Security Interest or payment from the Company, as if the
payment, discharge, avoidance or reduction had not occurred.
18. CUSTODY
The Security Trustee shall be entitled to provide for the safe custody
by third parties of all certificates and documents of title relating to
the Secured Assets and shall not be responsible for any loss or damage
occurring to or in respect of the same unless such
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loss or damage arises as a result of the Security Trustee's negligence
or wilful misconduct.
19. DELEGATION
The Security Trustee may at any time and from time to time delegate by
power of attorney or in any other manner to any persons or persons all
or any of the powers, authorities and discretions which are for the
time being exercisable by the Security Trustee under this Debenture in
relation to all or any part of the Secured Assets. Any such delegation
may be made upon such terms (including power to sub-delegate) and
subject to such conditions as the Security Trustee may think fit. The
Security Trustee shall not be in any way liable or responsible to the
Company for any loss or damage arising from any act, default, omission
or misconduct on the part of any such delegate or sub-delegate. Such
delegation shall not preclude the subsequent exercise of such powers,
authorities and discretions by the Security Trustee itself nor preclude
the Security Trustee from making a subsequent delegation of the same to
another person or from revoking any such delegation.
20. PRIOR CHARGES
In the event of there being a prior Security Interest to the Security
and proceedings or steps being taken to exercise or enforce any powers
or remedies conferred by such prior Security Interest against all or
any of the Secured Assets, the Security Trustee or any Receiver
appointed under this Debenture in respect of such Secured Assets may
(but without prejudice to any rights the Receiver may have under
Section 43 of the Insolvency Xxx 0000 to apply to a court for
authorisation to dispose of property secured by a prior Security
Interest) redeem such prior Security Interest or procure its transfer
to itself or such Receiver, as the case may be, and may settle and pass
the accounts of any prior mortgagee, chargee or encumbrancer. Any
account so settled and passed shall be conclusive and binding on the
Company and all the principal, money, interest, costs, charges and
expenses of and incidental to such redemption or transfer shall be paid
to the Security Trustee on demand together with interest at the Default
Rate on the same from the earlier of the date of demand and the date of
payment by the Security Trustee until the date of payment by the
Company, whether before or after judgment. All the powers, authorities
and discretions conferred by a prior Security Interest upon any prior
mortgagee, chargee or encumbrancer or any receiver under such prior
Security Interest shall be exercisable by the Security Trustee or a
Receiver in a like manner as if the same were expressly included in
this Debenture and the Security Trustee or such Receiver shall be
entitled to exercise all the powers, authorities and discretions of a
receiver, receiver and manager or administrative receiver appointed
under such prior Security Interest.
21. SET-OFF
Without prejudice to any rights the Security Trustee may have at law,
in equity or otherwise, following an Enforcement Event, the Security
Trustee or the Banks may, without notice to the Company, combine or
consolidate all or any sums standing to the credit of the Company's
accounts with the Security Trustee or the Banks with the
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Secured Liabilities and/or set-off or transfer any such sums in or
towards the satisfaction of any of the Secured Liabilities and may do
so notwithstanding that the balances on such accounts and such Secured
Liabilities may not be expressed in the same currency or any specified
maturity of such deposits and for the purpose of exercising any rights
under this Clause or applicable law the Security Trustee or the Banks
is authorised to effect any necessary conversions at the Security
Trustee or the Banks' own rate of exchange then prevailing. Neither the
Security Trustee nor the Banks shall be obliged to exercise any right
given to it by this Clause.
22. CURRENCY INDEMNITY
If any sum due from the Company under this Debenture or any order or
judgment given or made in relation to this Debenture has to be
converted from the currency (the "FIRST CURRENCY") in which the same is
payable into another currency (the "SECOND CURRENCY") for the purpose
of (a) making or filing a claim or proof against the Company, (b)
obtaining an order or judgment in any court or other tribunal, (c)
enforcing any order or judgment given or made, or (d) applying the same
in satisfaction of any of the Secured Liabilities, the Company shall,
as a separate and independent obligation, indemnify and hold harmless
the Security Trustee or the Banks from and against any loss suffered as
a result of any discrepancy between (i) the rate of exchange used for
such purpose to convert the sum in question from the first currency
into the second currency and (ii) the rate or rates of exchange at
which the Security Trustee or the Banks may in the ordinary course of
business purchase the first currency with the second currency upon
receipt of a sum paid to it in satisfaction, in whole or in part, of
any such order, judgment, claim or proof or for application in
satisfaction of the Secured Liabilities.
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PART 7
MISCELLANEOUS
23. COSTS
23.1 COSTS AND EXPENSES
The Company shall on demand and on a full indemnity basis pay to the
Security Trustee the amount of all reasonable costs and expenses
(including reasonable legal and out-of-pocket expenses and any VAT on
such costs and expenses) which the Security Trustee incurs in
connection with:
(a) the preparation, negotiation, execution and delivery of this
Debenture;
(b) any stamping or registration of this Debenture;
(c) any actual or proposed amendment of or waiver or consent under
or in connection with this Debenture;
(d) any discharge or release of this Debenture;
(e) the preservation or exercise (or attempted preservation or
exercise) of any rights, remedies or powers under or in
connection with, and the enforcement (or attempted
enforcement) of, this Debenture and the perfection or
enforcement of any other security for or guarantee in respect
of the Secured Liabilities;
(f) the taking or holding of the Security or any proceedings in
relation to the same or to all or any of the Secured Assets;
and
(g) any advice obtained in relation to any other matter or
question arising out of or in connection with this Debenture,
together with interest at the Default Rate on the same from the earlier
of the date of demand and the date of payment by the Security Trustee
until the date of payment by the Company, whether before or after
judgment.
23.2 TAXES
The Company shall pay all stamp, registration and other taxes to which
this Debenture or any judgment or order given in connection with this
Debenture may at any time be subject and shall on demand indemnify the
Security Trustee against any liabilities, costs, claims and expenses
resulting from any failure to pay or delay in paying the same.
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24. INDEMNITY
24.1 GENERAL INDEMNITY
The Company shall on demand and on a full indemnity basis indemnify and
keep indemnified the Security Trustee and the Banks and every Receiver,
attorney, manager, agent or other person appointed by the Security
Trustee or the Banks under this Debenture and their respective
employees in respect of all liabilities and reasonable expenses
incurred or suffered by any of them in or directly or indirectly as a
result of the exercise or purported exercise of any of the powers,
authorities or discretions vested in them under this Debenture and
against all actions, proceedings, losses, costs, claims and demands
suffered or incurred by any of them in respect of any matter or thing
done or omitted relating to the Secured Assets together with interest
at the Default Rate on the same from the earlier of the date of demand
and the date of payment by such person until the date of payment by the
Company, whether before or after judgment. The Security Trustee and any
such Receiver may retain and pay all sums in respect of the same out of
any monies received by it or him pursuant to this Debenture.
24.2 INDEMNITY FOR BREACH
The Company shall on demand and on a full indemnity basis indemnify and
keep indemnified the Security Trustee and the Banks in respect of all
actions, proceedings, demands, reasonable costs and reasonable expenses
occasioned by any breach of any of its covenants or other obligations
under this Debenture together with interest at the Default Rate on the
same from the earlier of the date of demand and the date of payment by
the Security Trustee or the Banks until the date of payment by the
Company, whether before or after judgment.
25. TRANSFERS
25.1 SECURITY TRUSTEE
This Debenture is freely assignable or transferable by the Security
Trustee.
25.2 COMPANY
The Company may not assign or transfer any of its obligations under
this Debenture or enter into any transaction which would result in any
of those obligations passing to another person.
25.3 DISCLOSURE
The Security Trustee may, with the consent of the Company (such consent
not be unreasonably withheld or delayed), disclose to any person
related to it and/or any person to whom it is proposing to transfer or
assign or has transferred or assigned this Debenture any information
about the Company and any person connected or associated with it.
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26. PROPERTY OF SECURITY TRUSTEE
This Debenture is and will remain the property of the Security Trustee.
27. SECURITY TRUSTEE'S CERTIFICATE OR DETERMINATION
A certificate or determination of the Security Trustee as to any matter
provided for in this Debenture shall, in the absence of manifest error,
be conclusive and binding on the Company.
28. NOTICES
28.1 COMMUNICATIONS IN WRITING
Any communication to be made under or in connection with this Debenture
shall be made in writing and, unless otherwise stated, may be made by
fax or letter.
28.2 ADDRESSES
The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in
connection with this Debenture is that identified with its name below
or any substitute address, fax number or department or officer as the
relevant Party may notify to the other Party by not less than 15
Business Days' notice.
28.3 DELIVERY
Any communication or document made or delivered by one Party to another
under or in connection with this Debenture will only be effective:
(a) if by way of fax, when received in legible form; or
(b) if by way of letter, when it has been left at the relevant
address or 10 Business Days after being deposited in the post
postage prepaid in an envelope addressed to it at that address
and, if a particular department or officer is specified as part of its
address details provided under Clause 28.2, if addressed to that
department or officer.
28.4 ENGLISH LANGUAGE
(a) Any notice given under or in connection with this Debenture
must be in English.
(b) All other documents provided under or in connection with this
Debenture must be:
(i) in English; or
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(ii) if not in English, and if so required by the Security
Trustee, accompanied by a certified English
translation and, in this case, the English
translation will prevail unless the document is a
constitutional, statutory or other official document.
29. PARTIAL INVALIDITY
If, at any time, any provision of this Debenture is or becomes illegal,
invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction will in any way
be affected or impaired.
30. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of the
Security Trustee, any right or remedy under this Debenture shall
operate as a waiver, nor shall any single or partial exercise of any
right or remedy prevent any further or other exercise or the exercise
of any other right or remedy. The rights and remedies provided in this
Debenture are cumulative and not exclusive of any rights or remedies
provided by law.
31. AMENDMENTS AND WAIVERS
Any term of this Debenture may be amended or waived only with the
written consent of the Security Trustee and the Company and any such
amendment or waiver will be binding on all Parties.
32. COUNTERPARTS
This Debenture may be executed in any number of counterparts and this
has the same effect as if the signatures on the counterparts were on a
single copy of this Debenture.
33. THIRD PARTY RIGHTS
Except as set forth in Clause 34(b), a person who is not a Party has no
rights under the Contracts (Rights of Third Parties) Xxx 0000 to
enforce or to enjoy the benefit of any term of this Debenture save that
any right pursuant to this Debenture expressed to be for the benefit of
the Banks, individually, in addition to the Security Trustee may be
exercised by such Banks notwithstanding that they are not signatories
to this Debenture.
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34. SECURITY TRUSTEE NOT COLLATERAL AGENT
(a) NOT COLLATERAL AGENT
This Debenture has been granted in favour of the Security Trustee, in
its capacity as Security Trustee for the Banks under the Credit
Agreement, and not in its capacity as collateral agent for the Banks
and other creditors under the Intercreditor Agreement.
(b) SECURITY TRUSTEE
The Security Trustee shall hold the benefit of all covenants, charges
and other undertakings given by the Company pursuant to this Debenture
upon trust for itself and each of the Banks.
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PART 8
GOVERNING LAW AND ENFORCEMENT
35. GOVERNING LAW
This Debenture is governed by English law.
36. ENFORCEMENT
36.1 JURISDICTION OF ENGLISH COURTS
(a) The courts of England have exclusive jurisdiction to settle
any dispute arising out of or in connection with this
Debenture (including a dispute regarding the existence,
validity or termination of this Debenture) (a "DISPUTE").
(b) The Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the contrary.
(c) This Clause 36.1 is for the benefit of the Security Trustee
and the Banks only. As a result, neither the Security Trustee
nor the Banks shall be prevented from taking proceedings
relating to a Dispute in any other courts with jurisdiction.
To the extent allowed by law, the Security Trustee or the
Banks may take concurrent proceedings in any number of
jurisdictions.
THIS DEBENTURE has been executed as a deed on the date stated at the beginning
of this Debenture and is delivered on the date stated at the beginning of this
Debenture.
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Signed as a deed by CAC UK FUNDING /s/ Xxxx Xxxxx
LTD. acting by ______________ and --------------
________________________ Director
/s/ Xxxxxxx X. Xxxx
-------------------
Director
Address: Xxxxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxxxxx
Xxxx Xxxxxx
XX00 0XX
Xxxxxx Xxxxxxx
Fax: x00 0000 000 000
Attention: Xxxx Xxxxx
With a copy to: Credit Acceptance Corporation
00000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxxxxxxx
XX 00000
XXX
Fax: 001 248 827 8542
Attention: Xxxxxxx X. Xxxx
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THE BANKS
Signed for and on behalf of COMERICA
BANK as Security Trustee )
By: /s/ Xxxxx Xxxxxxx )
-----------------
Vice President )
Name: Comerica Bank
Address: Xxx Xxxxxxx Xxxxxx, XX0000,
000 Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000,
XXX
Fax: 000 000 0000
Attention: Xxxxx Xxxxxxx
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