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EXHIBIT 4 (g)(3)
EXECUTION COPY
DEED OF CHARGE,
dated 17 December, 1998,
between
CREDIT ACCEPTANCE CORPORATION,
as the Chargor,
and
COMERICA BANK,
as the Collateral Agent
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
Bucklersbury House
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
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THIS DEED OF CHARGE is made on 17 December, 1998
BETWEEN:
(1) CREDIT ACCEPTANCE CORPORATION, a Michigan corporation (the "Chargor");
and
(2) COMERICA BANK, a bank organised and existing under the laws of
Michigan, as agent for the benefit of the Lenders, the Noteholders and
the Future Debt Holders (in such capacity, the "Collateral Agent").
WHEREAS:
(A) The Chargor, Comerica Bank and the other financial institutions
signatory thereto, each as "Banks" thereunder (and, in the case of
Comerica Bank, in its separate additional capacity as "Issuing Bank"
thereunder) (together with any Successor Lenders party thereto from
time to time, collectively the "Lenders"), entered into that certain
Second Amended and Restated Credit Agreement dated as of December 4,
1996, as amended by First Amendment and Consent dated as of June 4,
1997, Second Amendment dated as of December 12, 1997, Third Amendment
dated as of May 11, 1998 and Fourth Amendment dated as of July 30, 1998
by and among the Chargor, the financial institutions from time to time
parties thereto and Comerica Bank, as Agent (said credit agreement, as
further amended, restated or otherwise modified from time to time, the
"Existing Credit Agreement" and together with any Successor Credit
Agreement, the "Credit Agreement").
(B) The Chargor entered into the separate note purchase agreements with the
1994 Noteholders dated as of October 1, 1994 (collectively, as amended
by First Amendment to Note Purchase Agreement dated as of November 15,
1995, Second Amendment to Note Purchase Agreement dated as of August
29, 1996, Third Amendment to Note Purchase Agreement dated as of
December 12, 1997 and Fourth Amendment to Note Purchase Agreement dated
as of July 1, 1998, and as further amended, restated or otherwise
modified from time to time, the "1994 Note Agreements"), pursuant to
which the First Amended and Restated 9.12% Senior Notes due November 1,
2001 (collectively, as amended, restated or otherwise modified from
time to time, the "1994 Senior Notes") are outstanding.
(C) The Chargor entered into the separate note purchase agreements with the
1996 Noteholders dated as of August 1, 1996 (collectively, as amended
by First Amendment to Note Purchase Agreement dated as of December 12,
1997 and Second Amendment to Note Purchase Agreement dated as of July
1, 1998 and as further amended, restated or otherwise modified from
time to time, the "1996 Note Agreements"), pursuant to which the First
Amended and Restated 8.24% Senior Notes due July 1, 2001 (collectively,
as amended, restated or otherwise modified from time to time, the "1996
Senior Notes") are outstanding.
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(D) The Chargor entered into the separate note purchase agreements with the
1997 Noteholders dated as of March 25, 1997 (collectively, as amended
by the First Amendment to Note Purchase Agreement dated as of December
12, 1997 and the Second Amendment to Note Purchase Agreement dated as
of July 1, 1998, and as further amended, restated or otherwise modified
from time to time, the "1997 Note Agreements") pursuant to which the
First Amended and Restated 8.02% Senior Notes due October 1, 2001
(collectively, as amended, restated or otherwise modified from time to
time, the "1997 Senior Notes") are outstanding.
(E) Pursuant to Section 7.23 of the Existing Credit Agreement, the Lenders
have required that the Chargor grant (or cause to be granted) certain
liens and security interests to the Collateral Agent, as contractual
representative for the benefit of the Lenders, the Noteholders, and the
Future Debt Holders, all to secure the obligations of the Chargor under
the Credit Documents, the obligations of the Chargor under the
Noteholder Documents and the obligations of the Chargor under the
Future Debt Documents.
(F) The Lenders and the Noteholders have consented to the transactions
contemplated hereby and by the Security Documents, and the Lenders and
the Noteholders have agreed that the Chargor's obligations under the
Credit Agreement, the Note Agreements and the Future Debt Documents
shall be equally and ratably secured pursuant to this Deed and the
other Security Documents.
(G) The Chargor has directly and indirectly benefited and will directly and
indirectly benefit from the transactions evidenced by and contemplated
in the Credit Agreement, the Note Agreements and the Future Debt
Documents and has consented to the execution and delivery of that
certain Intercreditor Agreement among the Collateral Agent, the Lenders
(including Comerica Bank), the Noteholders and the Future Debt Holders,
dated as of 15 December 1998 (as amended from time to time according to
the terms thereof, the "Intercreditor Agreement").
(H) The Lenders, the Noteholders and the Collateral Agent have entered into
the Intercreditor Agreement to define the rights, duties, authority and
responsibilities of the Collateral Agent, acting on behalf of such
parties regarding the Charged Property (as defined below), and the
relationship among the parties regarding their equal and ratable
interests in the Charged Property.
NOW THIS DEED WITNESSETH AND IT IS HEREBY AGREED as follows:
1. DEFINED TERMS; INTERPRETATION
(a) In this Deed, unless the context otherwise requires, the
following expressions shall have the following meanings:
"Charged Property" means all the assets, property and rights charged to
the Collateral Agent by the Chargor pursuant to Section 3 of this Deed;
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"Chargor" is defined in the preamble;
"Collateral Agent" is defined in the preamble;
"Deed" means this Deed of Charge, as amended, modified or supplemented
from time to time;
"Initial Shares" is defined in Section 3.1(a);
"Issuer" means Credit Acceptance Corporation UK Limited, a company
organised and existing under the laws of England;
"Lien" means any mortgage, charge, pledge, hypothecation, assignment by
way of security, deposit agreement, encumbrance, lien (statutory or otherwise),
title retention, finance lease, factoring or discounting of debts or other
security interest on or over present or future assets of the Person concerned
securing any obligation of any Person or any other type of preferential or trust
arrangement having a similar effect, including any such security interest which
arises or is imposed by operation of law;
"Non-Charged Shares" means all those shares of the Issuer owned or at
any time and from time to time acquired by the Chargor which are not Shares
charged pursuant hereto;
"Percentage Limitation" means the lesser of (i) all of the shares of
the Issuer owned or at any time and from time to time acquired by the Chargor or
any of its Subsidiaries and (ii) sixty-five percent (65%) of the aggregate share
capital of the Issuer at any time or from time to time issued and outstanding
(determined in accordance with Section 956 of the Internal Revenue Code of the
United States of America, as amended from time to time);
"Receiver" means any one or more administrative receivers, receivers
and managers, administrators, liquidators or other insolvency officers appointed
in any jurisdiction or (if the Collateral Agent so specifies in the relevant
appointment) any such officers appointed by the Collateral Agent pursuant to
this Deed in respect of the Chargor or over all or any of the Charged Property;
"Rights" is defined in Section 14(b);
"Shares" is defined in Section 3(b);
"Transfer Form" means a stock transfer form or other appropriate
instrument of transfer executed by the Chargor as transferor and left undated
and with details of the transferee left blank but with details of the transferor
and the number and class of shares or securities completed.
(b) In this Deed:
(i) the parties hereto intend that this document shall
take effect as a deed;
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(ii) references to the "Chargor", the "Collateral
Agent", the "Issuer" and any other person referred to in this
Deed shall be construed so as to include their respective
successors and permitted transferees and assigns in accordance
with their respective interests;
(iii) capitalised terms used but not defined in this
Deed (including the preamble hereto) have the same meanings as
in the Intercreditor Agreement; and
(iv) this Deed is a Financing Agreement and shall be
interpreted and construed in accordance with the terms and
provisions of the Intercreditor Agreement.
2. COVENANT TO PAY
The Chargor covenants with the Collateral Agent that it will pay the
Benefited Obligations as and when the same fall due for payment.
3. CHARGING SECTION
As a continuing security for the payment and discharge of all Benefited
Obligations, the Chargor hereby charges and assigns, with full title guarantee,
in favour of the Collateral Agent (to the intent that the security hereby
created shall be a continuing security in favour of the Collateral Agent in its
capacity as such) the following property and rights, both present and future,
from time to time owned by the Chargor or in which the Chargor is from time to
time interested:
(a) by way of first fixed charge, all the shares described in
Schedule I hereto (the "Initial Shares"), all of the certificates
and/or instruments representing such shares and all cash,
distributions, dividends, rights, allotments, accretions, benefits and
other property at any time and from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all of
such shares (whether by way of conversion, redemption, bonus,
preference, option or otherwise);
(b) by way of first fixed charge, all additional shares of the
Issuer at any time and from time to time acquired by the Chargor
(collectively with the Initial Shares, the "Shares") in any manner
(provided that the aggregate percentage of the share capital of the
Issuer encumbered by any and all charges granted in favour of the
Collateral Agent by the Chargor or any of its Subsidiaries pursuant
hereto shall not at any time exceed the Percentage Limitation), all of
the certificates and/or instruments representing such additional
shares, and all cash, distributions, dividends, rights, allotments,
accretions, benefits and other property at any time and from time to
time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such shares (whether by way of conversion,
redemption, bonus, preference, option or otherwise);
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(c) by way of first fixed charge, all other property hereafter
delivered to the Collateral Agent in substitution for or in addition to
any of the foregoing, all certificates and instruments representing or
evidencing such property, and all cash, distributions, dividends,
rights, allotments, accretions, benefits and other property at any time
and from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all thereof (whether by way of
conversion, redemption, bonus, preference, option or otherwise); and
(d) by way of first fixed charge, all products and proceeds of
all of the foregoing.
The Collateral Agent shall hold the benefit of the covenants, charges
and other undertakings given by the Chargor pursuant to this Deed upon trust for
the Lenders, the Noteholders and the Future Debt Holders and the Collateral
Agent, provided that the sole obligations of the Collateral Agent and of any
Agent-Related Persons to the Lenders, the Noteholders and the Future Debt
Holders shall be those set out in the Intercreditor Agreement (including,
without limitation, Section 8 thereof) and neither the Collateral Agent nor any
Agent-Related Persons shall be deemed to be a fiduciary hereunder.
4. DELIVERY
The Chargor agrees to deliver to the Collateral Agent, forthwith upon
execution of this Deed (in connection with the Initial Shares) and from time to
time (in connection with any other Shares), all share certificates and documents
of title relating to the Shares together with Transfer Form(s) relating to all
such Shares and covenants with the Collateral Agent to deliver to it all other
share certificates, documents of title and Transfer Forms relating to the
Charged Property which may at any time come into the possession or control of
the Chargor; and prior to the delivery thereof to the Collateral Agent, the
Chargor will hold all such certificates, documents of title and Transfer Forms
on trust for the Collateral Agent.
5. REPRESENTATIONS AND WARRANTIES
The Chargor represents and warrants to the Collateral Agent on the date
of this Deed and shall be deemed to have represented and warranted on each date
when any Benefited Obligations is outstanding, in each case in the terms set out
below:
(a) the Chargor is (or at the time of any future delivery,
charge, assignment or transfer will be) the owner of the Charged
Property with full title guarantee thereto, free and clear of all
Liens, other than the security created hereunder;
(b) the charges and assignments constituted by this Deed
create a valid first ranking charge over and, as the case may be,
assignment of the Charged Property in favour of the Collateral Agent;
(c) all the Shares are (and all Shares which in the future
become subject to charge hereunder will be) duly authorised, validly
issued, fully paid, non-assessable and
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not subject to any Lien or restriction on transfer imposed under the
constitutional documents of the Issuer or otherwise;
(d) the information contained in Schedule I hereto in
connection with the Initial Shares is true and accurate in all
respects; and
(e) the Chargor is not unable to pay its debts as they fall
due and is not otherwise insolvent.
6. NEGATIVE PLEDGE AND DISPOSAL RESTRICTIONS
During the continuance of the security constituted by this Deed, and
without prejudice to the provisions of the Intercreditor Agreement and the other
Financing Agreements, the Chargor will not (without the prior consent in writing
of the Collateral Agent):
(a) create or agree or attempt to create or permit to subsist
(in favour of any person other than the Collateral Agent) any Lien over
the whole or any part of the Charged Property or of the Non-Charged
Shares or agree (whether on a contingent basis or otherwise) to do so;
or
(b) (whether by a single transaction or a number of related or
unrelated transactions and whether at the same time or over a period of
time) sell, transfer, lease out, lend or otherwise dispose of or cease
to exercise direct control over all or any part of the Charged Property
or of the Non-Charged Shares or any interest therein or the right to
receive or to be paid the proceeds arising on the disposal of the same,
or agree or attempt to do so; or
(c) dispose of the equity of redemption in respect of all or
any part of the Charged Property or of the Non-Charged Shares; or
(d) except with the written consent of the Collateral Agent,
permit the Issuer to issue to any of the Chargor's other Subsidiaries
any shares in addition to or in substitution for the Shares or the
Non-Charged Shares unless, concurrently with each issuance thereof, any
and all such shares are charged in favour of the Collateral Agent
pursuant to a deed of charge substantially in the form of this Deed;
provided that the aggregate percentage of the share capital of the
Issuer required to be encumbered by any and all charges granted in
favour of the Collateral Agent by the Chargor or any of its
Subsidiaries pursuant hereto shall not exceed the Percentage
Limitation.
7. OTHER UNDERTAKINGS
(a) The Chargor will furnish the Collateral Agent with such
information concerning the Charged Property and the Non-Charged Shares
as the Collateral Agent may from time to time reasonably request, and
will permit the Collateral Agent from time to time during business
hours and on reasonable notice (or at any time without notice during
the existence of an Event of Default), to inspect, audit and make
copies of and
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extracts from all records and all other papers in the possession of the
Chargor which pertain to the Charged Property and/or the Non-Charged
Shares.
(b) The Chargor will not do or cause or permit to be done
anything (including, without limitation, by way of any exercise of its
rights under Section 8) which may in any way depreciate, jeopardise or
otherwise prejudice the value to the Collateral Agent of the Charged
Property or the security constituted by this Deed; provided that, so
long as no Event of Default (both before and after giving effect
thereto) has occurred and is continuing, the Chargor may receive,
retain and dispose of any and all lawful dividends and cash
distributions payable in respect of the Charged Property; and further
provided that this undertaking will only relate to matters affecting
the Charged Property and no breach of this undertaking shall arise as a
result of any general deterioration in the financial condition of the
Issuer arising as a consequence of any action or omission of the
Chargor or the Issuer in relation to the business or assets of the
Issuer.
(c) The Chargor hereby declares and agrees that:
(i) this Deed shall be held by the Collateral Agent
as a continuing security and shall not be satisfied by any
intermediate payment or satisfaction of any part of the
Benefited Obligations and shall remain in full force and
effect until all Benefited Obligations have been
unconditionally and irrevocably paid and discharged in full to
the satisfaction of the Collateral Agent;
(ii) the Collateral Agent shall not be bound to
enforce any guarantee or security or proceed to take any other
steps against any other Person before enforcing this Deed; and
(iii) this Deed shall be in addition to, and not in
substitution for, any other rights which the Collateral Agent
or any Lender, Noteholder or Future Debt Holder may now or
hereafter have under or by virtue of any guarantee or security
or agreement or any Lien or by operation of law or under any
collateral or other security now or hereafter held by the
Collateral Agent or any Lender, Noteholder or Future Debt
Holder or to which the Collateral Agent or any Lender,
Noteholder or Future Debt Holder may be entitled.
(d) Any settlement or discharge under this Deed between the
Collateral Agent and the Chargor shall be conditional upon no security
or payment to the Collateral Agent or any Lender, Noteholder or Future
Debt Holder by the Chargor or any other Person being avoided or
set-aside or ordered to be refunded or reduced by virtue of any
provision or enactment relating to bankruptcy, insolvency,
administration or liquidation for the time being in force, and if such
condition is not satisfied (but without limiting the other rights of
the Collateral Agent or any Lender, Noteholder or Future Debt Holder
hereunder or under applicable law) such settlement or discharge shall
be of no effect and the security created by this Deed shall remain
and/or shall be reinstated in full force and effect as if such
settlement or discharge had not occurred and the Collateral Agent
shall, on behalf of the Lenders, the Noteholders and the Future Debt
Holders, be entitled to recover from
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the Chargor on demand the value of the security or payment so avoided,
set-aside, refunded or reduced.
8. VOTING RIGHTS AND DIVIDENDS
(a) So long as no Event of Default (both before and after
giving effect thereto) has occurred and is continuing, the Chargor
shall, subject to clause (b) of Section 7, be entitled to exercise any
and all voting or consensual rights and powers attaching to the Charged
Property.
(b) So long as no Event of Default (both before and after
giving effect thereto) has occurred and is continuing, the Chargor
shall, subject to clause (b) of Section 7, be entitled to receive and
retain any and all lawful dividends and cash distributions payable in
respect of the Charged Property.
(c) Upon the occurrence of an Event of Default, and for so
long as the same shall be continuing, all rights, powers and
entitlements which the Chargor is entitled to exercise pursuant to
clause (a) or (b) will immediately be suspended until such Event of
Default shall no longer exist, and all such rights, powers and
entitlements will thereupon become vested in the Collateral Agent so
that the Collateral Agent has the sole and exclusive authority to
exercise such rights and powers and to receive such dividends and
distributions. All money and other property paid over to or received by
the Collateral Agent pursuant to this Section 8 will be retained by it
as additional Charged Property and applied in accordance with the
provisions of this Deed and the Intercreditor Agreement.
9. COMPLETION OF TRANSFER FORMS
(a) At any time on or following the occurrence of an Event of
Default so long as such Event of Default is continuing, the Collateral
Agent may complete the Transfer Forms delivered to it hereunder in
favour of itself as transferee or in favour of such other nominee as it
may select.
(b) At any time when any Charged Property is registered in or
transferred into the name of the Collateral Agent or its nominee,
neither the Collateral Agent nor such nominee will be under any duty to
ensure that any dividends or distributions relating to the Charged
Property are duly paid or received or to exercise, defend or take any
action with respect to any voting, consensual or other rights or powers
attaching to the Charged Property including rights which are by way of
bonus, preference, option, warrant or otherwise.
10. FURTHER ASSURANCES; POWER OF ATTORNEY
(a) The Chargor hereby undertakes with the Collateral Agent to
take such further acts, enter into such other instruments or documents
and otherwise perform such action as may be necessary or as the
Collateral Agent may otherwise reasonably request
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to more fully give effect to the security granted hereunder and any
other provision of this Deed.
(b) The Chargor hereby irrevocably and by way of security
appoints the Collateral Agent and each Receiver appointed hereunder and
each of their delegates severally as its attorney (with full power of
substitution and delegation) in its name and on its behalf and as its
act and deed to execute, seal and deliver and otherwise perfect and
complete and do any deed, agreement, instrument, Transfer Form or other
act or thing which the Chargor ought to execute and do under the terms
of this Deed or which may otherwise be required or deemed proper by the
Collateral Agent for the purposes of this Deed and the Chargor hereby
covenants to ratify and confirm all acts and things done by such
attorney. The power of attorney hereby granted is as regards the
Collateral Agent and its delegates (and as the Chargor hereby
acknowledges) granted irrevocably and for value as part of the security
constituted by this Deed to secure proprietary interests in and the
performance of obligations owed to the respective donees within the
meaning of the Power of ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, and shall be exercisable
upon the occurrence and during the continuance of any Event of Default.
11. ENFORCEMENT
(a) The restrictions on the consolidation of mortgages imposed
by Section 93 of the Law of Property Act 1925 will not apply to this
Deed or any security granted pursuant to this Deed.
(b) Section 103 of the Law of Property Act 1925 will not apply
to this Deed, which shall immediately become enforceable and the power
of sale and other powers conferred by Section 101 of such Act (as
varied or extended by this Deed) will be immediately exercisable at any
time after an Event of Default has occurred.
(c) The powers conferred on mortgagees or receivers by the Law
of Property ▇▇▇ ▇▇▇▇ and under the Insolvency Act 1986 (as the case may
be) will apply to this Deed except insofar as they are expressly or
impliedly excluded and if there is any ambiguity or conflict between
the powers contained in such Acts and those contained in this Deed,
those contained in this Deed will prevail.
(d) At any time after the security constituted by this Deed
has become enforceable or if so requested by the Chargor, the
Collateral Agent may by writing under hand signed by any officer or
manager of the Collateral Agent appoint any person (or persons) to be a
Receiver of all or any part of the Charged Property.
(e) Any powers conferred upon mortgagees or chargees by the
Law of Property ▇▇▇ ▇▇▇▇ as hereby varied or extended and all or any
rights conferred by this Deed on a Receiver (whether expressly or
impliedly) may be exercised by the Collateral Agent without further
notice to the Chargor at any time after the security constituted by
this Deed has become enforceable and the Collateral Agent may exercise
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such rights and powers irrespective of whether it has taken possession
of or has appointed a Receiver in respect of the Charged Property.
(f) For the purpose of or pending the discharge of any of the
Benefited Obligations, the Collateral Agent may, subject to the terms
and conditions of the Intercreditor Agreement, convert any moneys
received, recovered or realised in any currency under this Deed
(including the proceeds of any previous conversion under this
paragraph) from their existing currency of denomination into any other
currency at such rate or rates of exchange and at such time as the
Collateral Agent thinks fit and shall effect such conversion in such a
manner as to minimise the number of currencies to be converted to the
extent reasonably practicable.
12. RECEIVER
(a) Any Receiver appointed hereunder will be the agent of the
Chargor and the Chargor will be solely responsible for his acts and
defaults and for his remuneration and will be liable on any contracts
entered into by him.
(b) Any Receiver appointed under this Deed will have power, in
addition to the powers conferred by the Law of Property ▇▇▇ ▇▇▇▇ and
Schedule 1 of the Insolvency ▇▇▇ ▇▇▇▇ (which are incorporated into this
Deed), and notwithstanding the liquidation of the Chargor, to take
possession, collect and get in all or any part of the Charged Property
and for that purpose to take any proceedings in the name of the Chargor
or otherwise, generally to manage the Charged Property, to make any
arrangement or enter into or cancel any contracts relating to the
Charged Property, to insure or increase insurance in respect of the
Charged Property, to exercise all voting or other rights attaching to
the Charged Property in such manner as he may think fit, to redeem any
prior liens, to appoint and discharge employees and professionals
appointed in relation to the protection of the Charged Property on such
terms as he may think fit, to prosecute, enforce and discontinue all
proceedings in the name of the Chargor in relation to the Charged
Property, and to do all such other acts and things (including, without
limitation, execution of all documents) as may be considered by the
Receiver to be conducive to any of the matters or powers set out above
and to use the name of the Chargor for such purposes.
(c) The Collateral Agent may by written notice from time to
time remove any Receiver and appoint a new Receiver in his place and
may from time to time fix the remuneration of any such Receiver.
(d) Sections 109(6) and (8) of the Law of Property ▇▇▇ ▇▇▇▇
will not apply to a Receiver appointed under this Deed.
(e) Any money recovered by the Collateral Agent or any
Receiver pursuant to this Deed may be kept by them in a separate
suspense account for so long and in such manner as they may think fit
prior to application in accordance with the terms of this Deed.
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(f) All monies received by the Collateral Agent or any
Receiver appointed hereunder shall be applied by it or him in the
following order:
(i) in payment of the costs, charges and expenses
incurred, and payments made, by the Collateral Agent and/or
any Receiver in connection with this Deed (including the
payment of any preferential debts);
(ii) in payment of remuneration to the Receiver at
such rates as may be agreed between him and the Collateral
Agent at or any time after his appointment;
(iii) in or towards satisfaction of the Benefited
Obligations (in such order (subject to the terms of the
Intercreditor Agreement) as the Collateral Agent shall
require); and
(iv) the surplus (if any) shall be paid to the
Chargor or other person entitled to it.
13. PROTECTION OF THIRD PARTIES
No purchaser from, or other person dealing with, the Collateral Agent
and/or any Receiver will be obliged or concerned to enquire whether the right of
the Collateral Agent or any Receiver to exercise any of the powers conferred by
this Deed has arisen or become exercisable or whether any of the Benefited
Obligations remains outstanding and the receipt of the Collateral Agent or any
Receiver shall be an absolute and complete discharge to any such purchaser and
will relieve such purchaser of any obligation to see to the application of any
monies paid to or by the direction of the Collateral Agent or any Receiver.
14. THE COLLATERAL AGENT'S REMEDIES
(a) The rights, powers and remedies provided in this Deed are
cumulative and are not, nor are they to be construed as, exclusive of
any rights, powers or remedies provided by law or otherwise.
(b) No failure on the part of the Collateral Agent or any
Agent-Related Persons to exercise, or delay on its part in exercising,
any of its rights, powers and remedies provided by this Deed or by law
(collectively the "Rights") shall operate as a waiver thereof, nor
shall any single or partial exercise of any of the Rights preclude any
further or other exercise of that one of the Rights concerned or the
exercise of any other of the Rights.
(c) The Chargor hereby agrees to indemnify the Collateral
Agent and any Agent-Related Persons against all losses, actions,
claims, costs, charges, expenses and liabilities incurred by the
Collateral Agent and any Agent-Related Persons (including any
substitute delegate attorney) in relation to this Deed or the Benefited
Obligations (including, without limitation, the costs, charges and
expenses incurred in the carrying
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into effect of this Deed or in the exercise of any of the rights,
remedies and powers conferred on the Collateral Agent hereby or in the
perfection or enforcement of the security constituted hereby or
pursuant hereto) or occasioned by any breach by the Chargor of any of
its covenants or obligations to the Collateral Agent and any Agent-
Related Persons under this Deed. The Chargor shall so indemnify the
Collateral Agent on demand.
15. THE COLLATERAL AGENT'S DISCRETION
(a) Subject to the terms and conditions of the Intercreditor
Agreement, any liberty or power which may be exercised or any
determination which may be made hereunder by the Collateral Agent may
be exercised or made in the reasonable discretion of the Collateral
Agent.
(b) A certificate by an officer of the Collateral Agent (i) as
to the amount for the time being due to the Collateral Agent or any
Lender, Noteholder or Future Debt Holder under any Financing Agreement
and (ii) as to any sums payable to the Collateral Agent or any Lender,
Noteholder or Future Debt Holder hereunder, shall (save in the case of
manifest error) be conclusive and binding upon the Chargor for all
purposes.
16. AMENDMENTS
No amendment or waiver of any provision of this Deed and no consent to
any departure by the Chargor therefrom shall in any event be effective unless
the same shall be in writing and signed or approved in writing by the Collateral
Agent in accordance with the provisions of the Intercreditor Agreement and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given. In the event of any conflict between this
Deed and the Intercreditor Agreement or any of the other Financing Agreements,
the provisions of the Intercreditor Agreement or the relevant Financing
Agreement shall prevail.
17. NOTICES
All notices and other communications provided to any party hereto in
connection with this Deed shall be in writing and the provisions of Section
11(a) of the Intercreditor Agreement are hereby incorporated into this Deed with
all necessary consequential changes.
18. RIGHTS AND REMEDIES CUMULATIVE; WAIVERS
(a) The rights and remedies of the Collateral Agent provided
in this Deed are cumulative and not exclusive of any rights or remedies
provided by law.
(b) A waiver given or consent granted by the Collateral Agent
under this Deed will be effective only if given in writing and then
only in the instance and for the purpose for which it is given.
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19. INVALIDITY OF ANY PROVISION
If any provision of this Deed is or becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions will not be affected or impaired in
any way.
20. ASSIGNMENT
The Collateral Agent may at any time assign or otherwise transfer all
or any part of its rights under this Deed in accordance with and subject to the
terms of the Intercreditor Agreement. The Chargor may not at any time assign or
otherwise transfer any of its rights or obligations under this Deed.
21. NOTICE OF SUBSEQUENT CHARGE
If the Collateral Agent receives notice of any subsequent Lien
affecting any part of the Charged Property, it may open a new account for the
Chargor in its books and if it does not do so then it will, as from the time of
receipt of such notice, automatically be treated as if all payments made to it
by the Chargor have been credited to a new account of the Chargor and not as
having been applied in reduction of the Benefited Obligations.
22. PERPETUITY PERIOD
For purposes of the Perpetuity and Accumulations ▇▇▇ ▇▇▇▇ the duration
period of any trust established pursuant to this Deed shall be eighty (80) years
from the date of this Deed.
23. NO WAIVER
The obligations of the Chargor contained in this Deed will not be
affected by any act, omission or circumstance which (save for this provision)
may operate so as to release or otherwise exonerate the Chargor from its
obligations hereunder or otherwise affect any such obligation, including:
(a) any time, indulgence or waiver granted to or composition
made with any obligor in respect of the Benefited Obligations or any
other person;
(b) the taking, variation, compromise, renewal or release of
or failure to enforce any rights, remedies or securities against or
granted by any obligor in respect of the Benefited Obligations or any
other person;
(c) any legal limitation, disability, incapacity or other
circumstance relating to any obligor in respect of the Benefited
Obligations or any other person or any variation of the terms of this
Deed or any other document (including the other Financing Agreements);
or
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(d) any other act, omission or circumstance which might
otherwise adversely affect any of the obligations of the Chargor
hereunder.
No failure or delay by the Collateral Agent or any Agent-Related
Persons in exercising any right, power or privilege under this Deed shall
operate as a waiver thereof nor shall any single or partial exercise of any
right, power or privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
24. COUNTERPARTS
This Deed may be executed in any number of counterparts and all of such
counterparts taken together shall constitute one and the same instrument.
25. GOVERNING LAW AND SUBMISSION TO JURISDICTION
(a) LAW: This Deed and all matters and disputes relating
hereto shall be governed and construed in accordance with English law.
(b) JURISDICTION: The Chargor irrevocably agrees for the
benefit of the Collateral Agent that the courts of England shall have
exclusive jurisdiction to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in
connection with this Deed and, for such purposes, irrevocably submits
to the exclusive jurisdiction of such courts. The submission to the
courts of England referred to in the preceding sentence of this clause
(b) shall not limit the right of the Chargor to take proceedings in
connection with any agreement relating to the Benefited Obligations to
which it is a party and which is not governed by English law in any
other court of competent jurisdiction.
(c) FORUM: The Chargor irrevocably waives any objection which
it might now or hereafter have to the courts referred to in clause (b)
being nominated as the forum to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in
connection with this Deed and agrees not to claim that any such court
is not a convenient or appropriate forum.
(d) NON-EXCLUSIVE: The submission to the jurisdiction of the
courts referred to in clause (b) shall not (and shall not be construed
so as to) limit the right of the Collateral Agent to take proceedings
against the Chargor in any other court of competent jurisdiction nor
shall the taking of proceedings in any one or more jurisdictions
preclude the taking of proceedings in any other jurisdiction, whether
concurrently or not.
(e) PROCESS AGENT: The Chargor agrees that the process by
which any suit, action or proceeding is begun may be served on it by
being delivered in connection with any suit, action or proceeding in
England, to it at c/o Credit Acceptance Corporation UK Limited, Burfree
House, Teville Road, Worthing, West Sussex BN11 1UG, England, or, if
different, the principal place of business of Credit Acceptance
Corporation UK Limited in England for the time being.
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(f) WAIVER OF IMMUNITY: To the extent that the Chargor may be
entitled in any jurisdiction to claim for itself or its assets,
immunity from suit, execution, attachment or other legal process
whatsoever, it hereby irrevocably agrees not to claim and hereby
irrevocably waives such immunity to the fullest extent permitted by the
laws of such jurisdiction.
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IN WITNESS whereof the parties hereto have caused this Deed to be duly
executed, sealed where appropriate, and delivered as at the day and year first
before written.
THE CHARGOR )
)
SIGNED AND SEALED )
as a DEED ) /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
for and on behalf of )
CREDIT ACCEPTANCE )
CORPORATION )
THE COLLATERAL AGENT )
)
SIGNED as a DEED )
for and on behalf of )
COMERICA BANK, as Collateral ) /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Agent for and on behalf of )
the Lenders, the Noteholders and )
the Future Debt Holders )
ACKNOWLEDGED this 17th day of December 1998
for and on behalf of )
CREDIT ACCEPTANCE ) /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
CORPORATION UK LIMITED )
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SCHEDULE I
Charged Shares as % Total Shares
Share No. of of Total Shares of Issues
Issuer Certificate No. Charged Shares Issued and Outstanding Outstanding
------ --------------- -------------- ---------------------- -----------
Credit Acceptance 4 130 Shares 65% 200 Shares
Corporation UK Limited
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