EXHIBIT 44(i)
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Agreement") dated September 7th, 2001, is
entered into by and between CAC of Canada Limited, a corporation incorporated
under the laws of Canada (the "Debtor"), and Comerica Bank, a Michigan banking
corporation ("Comerica"), as agent for the benefit of the "Lenders" (in such
capacity, the "Agent"). The addresses for the Debtor and Agent are set forth on
the signature pages.
R E C I T A L S:
A. The Debtor and certain of its Affiliates, Comerica (individually,
and in the capacities referred to below) and the other financial institutions
signatory thereto, each as "Banks" thereunder (and, in the case of Comerica, in
its capacity as Agent for the Lenders and in its separate additional capacities
as "Issuing Bank" thereunder) (together with any successors and permitted
assigns party thereto from time to time, collectively the "Lenders"), entered
into that certain Amended and Restated Credit Agreement dated as of June 11,
2001 (said credit agreement, as further amended, restated or otherwise modified
from time to time, the "Credit Agreement"), under which Debtor is a Permitted
Borrower.
B. The Debtor has, among other things, guaranteed payment and
performance of the obligations of the Permitted Borrowers (other than itself as
a Permitted Borrower) under the Credit Agreement and the Loan Documents pursuant
to the Foreign Guaranty.
C. Pursuant to the Credit Agreement, the Lenders have required that the
Debtor grant (or cause to be granted) certain liens and security interests to
Comerica, as agent for the benefit of the Lenders, all to secure, among other
things, the obligations of the Debtor under the Loan Documents (the
"Obligations").
D. The Lenders have consented to the transactions contemplated hereby,
and by the Loan Documents, and the Lenders have agreed that the Debtor's
obligations under the Loan Documents shall be equally and ratably secured
pursuant to this Agreement.
E. The Debtor has directly and indirectly benefitted and will directly
and indirectly benefit from the transactions evidenced by and contemplated in
the Credit Agreement and the other Loan Documents.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the adequacy, receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. As used in this Agreement (including the
recitals), capitalized terms not otherwise defined herein have the meanings
provided for such terms in the Credit Agreement. References to "Sections,"
"subsections," "Exhibits" and "Schedules" shall be to Sections, subsections,
Exhibits and Schedules, respectively, of this Agreement unless otherwise
specifically provided. All references to statutes and regulations shall include
any amendments of the same and any successor statutes and regulations.
References to particular sections of the PPSA (as hereinafter defined) should be
read to refer also to parallel sections of the personal property security
legislation as enacted in each Province or other jurisdiction where any portion
of the Collateral is or may be located.
The following terms have the meanings indicated below, all such
definitions to be equally applicable to the singular and plural forms of the
terms defined:
"Account" means any "account," as such term is defined in Subsection
1(1) of the PPSA, now owned or hereafter acquired by the Debtor, and, in any
event, shall include, without limitation, each of the following, whether now
owned or hereafter acquired by the Debtor: (a) all rights of the Debtor to
payment for goods sold or leased or services rendered, whether or not earned by
performance, (b) all accounts receivable of the Debtor, (c) all rights of the
Debtor to receive any payment of money or other form of consideration, (d) all
security pledged, assigned or granted to or held by the Debtor to secure any of
the foregoing, (e) all guaranties of, or indemnifications with respect to, any
of the foregoing, and (f) all rights of the Debtor as an unpaid seller of goods
or services, including, but not limited to, all rights of stoppage in transit,
replevin, reclamation and resale.
"Advances to Dealers" shall mean any and all advances by the Debtor to
Dealers under the Dealer Agreements whether in respect of Installment Contracts
or Leases, as outstanding from time to time.
"Chattel Paper" means any "chattel paper," as such term is defined in
Subsection 1(1) of the PPSA, now owned or hereafter acquired by the Debtor.
"Collateral" has the meaning specified in Section 2.1 of this
Agreement.
"Computer Records" has the meaning specified in Section 2.1(n) of this
Agreement.
"Dealer(s)" shall mean a Person engaged in the business of the retail
sale or lease of motor vehicles, whether new or used, including any such Person
which constitutes an Affiliate of Debtor.
"Dealer Agreement(s)" shall mean the sales and/or servicing agreements
between the Debtor or its Affiliates and a participating Dealer which sets forth
the terms and conditions under which the Debtor or its Affiliates may (i)
accept, as nominee for such Dealer, the assignment of Installment
Contracts or Leases for purposes of administration, servicing and collection and
under which the Debtor or its Affiliates may make Advances to Dealers or (ii)
accept outright assignments of Installments Contracts or Leases from Dealers or
funds Installments Contracts or Leases originated by the Dealer in the name of
the Debtor or its Affiliates, in each case as such agreements may be in effect
from time to time.
"Document of Title" means any "document of title", as such term is
defined in Subsection 1(1) of the PPSA, now owned or hereafter acquired by the
Debtor, including, without limitation, all documents of title and all receipts
covering, evidencing or representing goods now owned or hereafter acquired by
the Debtor.
"Election" is defined in Section 6.4 of this Agreement.
"Equipment" means any "equipment," as such term is defined in
Subsection 1(1) of the PPSA, now owned or hereafter acquired by the Debtor and,
in any event, shall include, without limitation, all machinery, equipment,
furniture, trade fixtures, tractors, trailers, rolling stock, vessels, aircraft
and vehicles now owned or hereafter acquired by the Debtor and any and all
additions, substitutions and replacements of any of the foregoing, wherever
located, together with all attachments, components, parts, equipment and
accessories installed thereon or affixed thereto.
"Goods" means any "goods" as that term is defined in Subsection 1(1) of
the PPSA, now owned or hereafter acquired by the Debtor.
"Installment Contract(s)" shall mean retail installment and/or
conditional sale contracts for the sale of new or used motor vehicles assigned
outright by Dealers to the Debtor or written by Dealers in the name of the
Debtor or an Affiliate of the Debtor (and funded by the Debtor or such
Affiliate) or assigned by Dealers to the Debtor or an Affiliate of the Debtor,
as nominee for the Dealer, for administration, servicing, and collection, in
each case pursuant to an applicable Dealer Agreement; provided, however, that to
the extent the Debtor or any Affiliate transfers or encumbers its interest in
any Installment Contracts (or any Advances to Dealers related thereto) pursuant
to a Permitted Securitization, such Installment Contracts shall, from and after
the date of such transfer or encumbrance, cease to be considered Installment
Contracts under this Agreement (reducing the aggregate amount of Advances to
Dealers by the outstanding amount of such advances, if any, attributable to such
Installment Contracts) unless and until such Installment Contracts are
reassigned to the Debtor or an Affiliate of the Debtor or such encumbrances are
discharged.
"Instrument" means any "instrument," as such term is defined in
Subsection 1(1) of the PPSA, now owned or hereafter acquired by the Debtor, and,
in any event, shall include all promissory notes, drafts, bills of exchange and
trade acceptances of the Debtor, whether now owned or hereafter acquired.
"Intangibles" means any "intangibles," as such term is defined in
Subsection 1(1) of the PPSA, now owned or hereafter acquired by the Debtor and,
in any event, shall include, without limitation, each of the following, whether
now owned or hereafter acquired by the Debtor: (a) all of
the Debtor's service marks, trade names, trade secrets, registrations, goodwill,
franchises, licenses, permits, proprietary information, customer lists, designs
and inventions; (b) all of the Debtor's books, records, data, plans, manuals,
computer software, computer tapes, computer disks, computer programs, source
codes, object codes and all rights of the Debtor to retrieve data and other
information from third parties; (c) all of the Debtor's contract rights,
partnership interests, membership interests, joint venture interests,
securities, deposit accounts, investment accounts and certificates of deposit;
(d) all rights of the Debtor to payment under letters of credit and similar
agreements; (e) all tax refunds and tax refund claims of the Debtor; (f) all
choses in action and causes of action of the Debtor (whether arising in
contract, tort or otherwise and whether or not currently in litigation) and all
judgments in favor of the Debtor; (g) all rights and claims of the Debtor under
warranties and indemnities; and (h) all rights of the Debtor under any
insurance, surety or similar contract or arrangement.
"Inventory" means any "inventory," as such term is defined in
Subsection 1(1) of the PPSA, now owned or hereafter acquired by the Debtor, and,
in any event, shall include, without limitation, each of the following, whether
now owned or hereafter acquired by the Debtor: (a) all Goods and other personal
property of the Debtor that are held for sale or lease or to be furnished under
any contract of service; (b) all raw materials, work-in-process, finished goods,
supplies and materials of the Debtor; (c) all wrapping, packaging, advertising
and shipping materials of the Debtor; (d) all Goods that have been returned to,
repossessed by or stopped in transit by the Debtor; and (e) all Documents of
Title evidencing any of the foregoing.
"Lease(s)" shall mean the retail agreements for the lease of motor
vehicles assigned outright by Dealers to the Debtor or written by a Dealer in
the name of the Debtor (and funded by the Debtor or an Affiliate) or assigned by
Dealers to the Debtor or an Affiliate, as nominee for the Dealer, for
administration, servicing and collection, in each case pursuant to an applicable
Dealer Agreement; provided, however, that to the extent the Debtor transfers or
encumbers its interest in any Leases pursuant to a Permitted Securitization,
such Leases shall, from and after the date of such transfer or encumbrance,
cease to be considered Leases under this Agreement (reducing the aggregate
amount of Advances to Dealers by the outstanding amount of Advances to Dealers
attributable to such Leases) unless and until such Leases are reassigned to the
Debtor or an Affiliate or such encumbrances have been discharged.
"Lenders" has the meaning specified in the recitals hereto.
"Money" means any "money", as such term is defined in Subsection 1(1)
of the PPSA, now owned or hereafter acquired by the Debtor.
"Permitted Liens" has the meaning specified in Section 3.1 of this
Agreement.
"PPSA" means the Personal Property Security Act as in effect in the
Province of Ontario; provided, that if, by applicable law, the perfection or
effect of perfection or non-perfection of the security interest created
hereunder in any Collateral is governed by the personal property security
legislation as in effect on or after the date hereof in any other jurisdiction,
"PPSA" means the
personal property security legislation as in effect in such other jurisdiction
for purposes of the provisions hereof relating to such perfection or the effect
of perfection or non-perfection.
"Proceeds" means any "proceeds," as such term is defined in Subsection
1(1) of the PPSA and, in any event, shall include, but not be limited to, (a)
any and all proceeds of any insurance, indemnity, warranty or guaranty payable
to the Debtor from time to time with respect to any of the Collateral, (b) any
and all payments (in any form whatsoever) made or due and payable to the Debtor
from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Collateral by any
governmental authority (or any Person acting, or purporting to act, for or on
behalf of any governmental authority), and (c) any and all other amounts from
time to time paid or payable under or in connection with any of the Collateral.
"Records" has the meaning specified in Section 4.9 of this Agreement.
"Securities" means any "securities" as such term is defined in
Subsection 1(1) of the PPSA, now owned or hereafter acquired by the Debtor.
"Software" has the meaning specified in Section 2.1(n) of this
Agreement.
ARTICLE II
SECURITY INTEREST
SECTION 2.1. SECURITY INTEREST. As collateral security for the prompt
payment and performance in full when due of the Obligations (whether at stated
maturity, by acceleration or otherwise), the Debtor hereby pledges and assigns
(as collateral) to the Agent, and grants to the Agent a continuing lien on and
security interest in, all of the Debtor's right, title and interest in and to
the following, whether now owned or hereafter arising or acquired and wherever
located (collectively, the "Collateral"):
(a) all Accounts;
(b) all Chattel Paper;
(c) all Documents of Title;
(d) all Equipment;
(e) all Goods;
(f) all Installment Contracts;
(g) all Instruments;
(h) all Intangibles;
(i) all Inventory;
(j) all Leases;
(k) all Money;
(l) all Securities;
(m) all Advances to Dealers, Dealer Agreements (and any amounts
advanced to or liens granted by Dealers thereunder), and the
Installment Contracts or Leases securing the repayment of such
Advances to Dealers (and other indebtedness of Dealers to the
Debtor) and related financial property (the security interest
granted hereby in such Dealer Agreements, Advances to Dealers,
Installment Contracts and Leases, and the Accounts, Chattel
Paper, Documents of Title, Instruments, Intangibles, Monies
and Proceeds therefrom relating to such Dealer Agreements,
Advances to Dealers, Installment Contracts and Leases being
subject to the rights of Dealers under Dealer Agreements);
(n) all computer records ("Computer Records") and software
("Software"), whether relating to the foregoing Collateral or
otherwise, but in the case of such Software, subject to the
rights of any non-affiliated licensee of software; and
(o) the Proceeds, in cash or otherwise, of any of the property
described in the foregoing clauses (a) through (n) and all
liens, security, rights, remedies and claims of the Debtor
with respect thereto;
provided, however, that "Collateral" shall not include rights under or with
respect to any Intangible, license, permit or authorization to the extent any
such Intangible, license, permit or authorization, by its terms or by law,
prohibits the assignment of, or the granting of a security interest in, the
rights of a grantor thereunder or which would be invalid or enforceable upon any
such assignment or grant; and provided further that "Collateral" shall not
include any (i) Advances to Dealers, Installment Contracts, Leases, rights or
interests under Dealer Agreements and related financial property transferred by
the Debtor prior to the date hereof pursuant to a Permitted Securitization,
except to the extent any such property is re-transferred to the Debtor according
to the terms of such Permitted Securitization.
SECTION 2.2. DEBTOR REMAINS LIABLE. Notwithstanding anything to the
contrary contained herein, (a) the Debtor shall remain liable under the
contracts, agreements, documents and instruments included in the Collateral
(including without limitation Dealer Agreements, Advances to Dealers,
Installment Contracts and Leases) to the extent set forth therein to perform all
of its duties and obligations thereunder to the same extent as if this Agreement
had not been executed and pay when due any taxes, including without limitation,
any sales taxes payable in connection with the Dealer Agreements, Advances to
Dealers, Installment Contracts or Leases and their creation and
satisfaction, (b) the exercise by the Agent or any of the Lenders of any of
their respective rights or remedies hereunder shall not release the Debtor from
any of its duties or obligations under the contracts, agreements, documents and
instruments included in the Collateral, and (c) subject to the rights of Dealers
under Dealer Agreements to the extent of collections on Installment Contracts or
Leases for the account of such Dealers received by the Agent or any Lender,
neither the Agent nor any of the Lenders shall have any indebtedness, liability
or obligation (by assumption or otherwise) under any of the contracts,
agreements, documents and instruments included in the Collateral (including
without limitation any Dealer Agreement, Installment Contract or Lease) by
reason of this Agreement, and none of such parties shall be obligated to perform
any of the obligations or duties of the Debtor thereunder (including without
limitation any obligation to make future advances to or on behalf of any Dealer
or other obligor) or to take any action to collect or enforce any claim for
payment assigned hereunder.
SECTION 2.3. MARKING COMPUTER FILES. In connection with the security
interest and lien established hereby, the Debtor hereby agrees, at its sole
expense, to indicate clearly and unambiguously in its computer files with
respect to the Dealer Agreements, Advances to Dealers, Installment Contracts and
Leases encumbered hereby, that the Debtor's rights to payment under such Dealer
Agreements, Advances to Dealers, Installment Contracts and Leases have been
pledged to the Agent pursuant to this Agreement for the benefit of the Lenders.
SECTION 2.4. AFFIXING LEGENDS. The Debtor shall, within thirty (30)
days from the date hereof with respect to each Dealer Agreement which
constitutes Collateral on the date hereof and, with respect to each Dealer
Agreement which subsequently becomes Collateral hereunder, within five (5) days
of the Debtor entering into any such agreement, clearly xxxx each such Dealer
Agreement encumbered hereby with the following legend: "THIS AGREEMENT HAS BEEN
PLEDGED TO COMERICA BANK, AS AGENT FOR THE BENEFIT OF CERTAIN LENDERS". Such
legend shall be in bold, in type face at least as large as 12 point and shall be
entirely in capital letters.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into this Agreement and to
make advances and extend other credit accommodations under the Credit Agreement,
the Debtor represents and warrants to the Agent and to each Lender that as of
the date hereof:
SECTION 3.1. TITLE. The Debtor is, and with respect to Collateral
acquired after the date hereof the Debtor will be, the legal and beneficial
owner of the Collateral free and clear of any Lien or other encumbrance, except
for (a) Liens which are permitted under Section 8.6 of the Credit Agreement
(hereinafter, "Permitted Liens").
SECTION 3.2. FINANCING STATEMENTS. No financing statement, security
agreement or other Lien instrument covering all or any part of the Collateral is
on file in any public office with respect to any outstanding obligation of the
Debtor except (i) as may have been filed in favor of the Agent
pursuant to this Agreement and (ii) financing statements filed to perfect
Permitted Liens. As of the date hereof, and to the best of the Debtor's
knowledge, except as otherwise disclosed on Schedule D hereto, the Debtor does
not do business and has not done business within the past five (5) years under a
trade name or any name other than its legal name set forth at the beginning of
this Agreement.
SECTION 3.3. PRINCIPAL PLACE OF BUSINESS. The principal place of
business and chief executive office of the Debtor, and the office where the
Debtor keeps its books and records, is located at the address of the Debtor
shown on Schedule A hereto.
SECTION 3.4. LOCATION OF COLLATERAL. All Inventory (except Inventory in
transit) and Equipment (other than vehicles) of the Debtor in the possession of
the Debtor are located at the places specified on Schedule A hereto. If any such
location is leased by the Debtor as of the date hereof, the name and address of
the landlord leasing such location is identified on Schedule A hereto. None of
the Inventory or Equipment of the Debtor (other than trailers, rolling stock,
vessels, aircraft and vehicles) is evidenced by a Document of Title (including,
without limitation, a negotiable document of title).
SECTION 3.5. PERFECTION. Upon the filing of PPSA financing statements
in the jurisdictions listed on Schedule B attached hereto, the security interest
in favor of the Agent created herein will constitute a valid and perfected Lien
upon and security interest in the Collateral which may be created and perfected
under the PPSA by filing financing statements subject to no junior, equal or
prior Liens except for those (if any) which constitute Permitted Liens.
SECTION 3.6. PRIMARY COMPUTER SYSTEMS AND SOFTWARE; COMPUTER RECORDS
AND INTELLECTUAL PROPERTY. The only material service and computer systems and
related Software utilized by the Debtor to service Dealer Agreements, Advances
to Dealers, Installment Contracts and Leases (whether or not encumbered hereby)
are (a) the "Application and Contract System" which is used from the time a
Dealer faxes an application to the Debtor until the relevant Installment
Contract or Lease is received and funded, (b) the "Loan Servicing System" which
contains all payment information and is the primary source for management
information reporting, and (c) the "Collection System" which is used by the
Debtor's collections personnel to track and service all active customer
accounts. Such computer systems and software are defined (and described in
greater detail) on Schedule C, attached hereto.
ARTICLE IV
COVENANTS
The Debtor covenants and agrees with the Agent that until the
Obligations are paid and performed in full and all commitments to lend or
provide other credit accommodations under the Credit Agreement have been
terminated:
SECTION 4.1. ENCUMBRANCES. The Debtor shall not create, permit or
suffer to exist, and shall defend the Collateral against, any Lien or other
encumbrance (other than the Liens created by
this Agreement and the Permitted Liens) or any restriction upon the pledge or
other transfer thereof (other than as provided in the Loan Documents), and
shall, subject to the Permitted Liens, defend the Debtor's title to and other
rights in the Collateral and the Agent's pledge and collateral assignment of and
security interest in the Collateral against the claims and demands of all
Persons. Except to the extent permitted by the Loan Documents or in connection
with any release of Collateral under Section 7.13 hereof (but only to the extent
of any Collateral so released), the Debtor shall do nothing to impair the rights
of the Agent in the Collateral.
SECTION 4.2. COLLECTION OF ACCOUNTS AND CONTRACTS; NO COMMINGLING. The
Debtor shall, in accordance with its usual business practices, endeavor to
collect or cause to be collected from each account debtor under its Accounts, as
and when due, any and all amounts owing under such Accounts and from any Dealer
or from any obligor under an Installment Contract or Lease, as the case may be,
any Advances to Dealers or other amounts owing under a Dealer Agreement,
Installment Contract or Lease, as applicable. The Debtor shall take the steps
required under the documents relating to Permitted Securitizations to segregate
any Collateral transferred, encumbered or otherwise affected by a Permitted
Securitization from the Collateral encumbered under this Agreement and all
proceeds or other sums received in respect thereof (provided that Dealer
Agreements which cover Advances to Dealers which have been transferred pursuant
to a Permitted Securitization, but which also cover Advances to Dealers
encumbered hereby, may contain the legend affixed in connection with the
applicable Permitted Securitization, so long as such Dealer Agreements also
contain the legend required under Section 2.4 hereof).
SECTION 4.3. DISPOSITION OF COLLATERAL. To the extent prohibited by the
terms of the Loan Documents, the Debtor shall not enter into or consummate any
transfer or other disposition of assets without the prior written consent of the
Lenders, according to the terms of the Credit Agreement.
SECTION 4.4. FURTHER ASSURANCES. At any time and from time to time,
upon the request of the Agent acting reasonably, and at the sole expense of the
Debtor, the Debtor shall promptly execute and deliver all such further
agreements, documents and instruments and take such further action as the Agent
may reasonably deem necessary or appropriate to preserve and perfect its
security interest in and pledge and collateral assignment of the Collateral and
carry out the provisions and purposes of this Agreement or to enable the Agent
to exercise and enforce its rights and remedies hereunder with respect to any of
the Collateral; provided, however, that nothing contained in this Section 4.4
shall require the Debtor to affix legends to the Dealer Agreements, Installment
Contracts or Leases (or folders containing the same) prior to the times set
forth hereunder in Sections 2.4 and 6.4, respectively. Except as otherwise
expressly permitted by the terms of the Credit Agreement relating to disposition
of assets, including without limitation any Permitted Securitization and except
for Permitted Liens, the Debtor agrees to maintain and preserve the Agent's
security interest in and pledge and collateral assignment of the Collateral
hereunder. Without limiting the generality of the foregoing, the Debtor shall
(a) execute and deliver to the Agent such financing statements and/or financing
change statements as the Agent may from time to time require; and (b) execute
and deliver to the Agent, or cause to be so executed and delivered, such other
agreements, acknowledgments, documents and instruments, including without
limitation stock powers, as the Agent may reasonably require to perfect and
maintain the validity, effectiveness and priority of the Liens intended to be
created by the Loan Documents. The Debtor authorizes the Agent to file one or
more financing or financing change statements, and amendments thereto, relating
to all or any part of the Collateral without the signature of the Debtor unless
otherwise prohibited by law.
SECTION 4.5. INSURANCE. The Debtor shall maintain insurance of the
types and in amounts, and under the terms and conditions, specified in the Loan
Documents and shall cause the Agent to be named as "lender loss payee"
thereunder to the full extent required to perfect and/or protect the Lien
established hereby. Recoveries under any such policy of insurance shall be paid
as provided in the Loan Documents.
SECTION 4.6. BAILEES. If any of the Collateral is at any time in the
possession or control of any warehouseman, bailee or any of the Debtor's agents
or processors, the Debtor shall, at the request of the Agent (as directed by the
Majority Banks), notify such warehouseman, bailee, agent or processor of the
security interest created hereunder and shall instruct such Person to hold such
Collateral for the Agent's account subject to the Agent's instructions, and
shall obtain such acknowledgments and/or undertakings from such Persons as
reasonably requested by the Agent (as directed by the Majority Banks).
SECTION 4.7. FURNISHING OF INFORMATION AND INSPECTION RIGHTS.
(a) Within 30 days following the execution and delivery of
this Agreement, the Debtor agrees to deliver to the Agent one or more computer
files or microfiche lists containing true and complete (and updated to the most
recent month end) lists of all Dealer Agreements and Advances to Dealers, and
all Installment Contracts or Leases, as applicable, securing all such Advances
to Dealers or owned outright by the Debtor, identified by account number, dealer
number (if not owned outright by the Debtor) , and pool number and the
outstanding balance as of the date of such file or list. Such file or list shall
be delivered to the Agent as confidential and proprietary.
(b) Thereafter:
(i) so long as no Event of Default has occurred and
is continuing, upon the written request of the Agent (as
directed by the Majority Banks), the Debtor shall be
obligated, but not more frequently than monthly; and
(ii) upon the occurrence and during the continuance
of an Event of Default, the Debtor shall be obligated, on a
monthly basis whether or not the Agent shall so request, and
more frequently upon the written request of the Agent (as
directed by the Majority Banks);
to furnish to the Agent, a computer file, microfiche list or other list
identifying each of the Dealer Agreements, Advances to Dealers, Installment
Contracts and Leases encumbered hereby by pool number, account number and dealer
number (if not owned outright by the Debtor) and by the outstanding balance
thereof and identifying the obligor on the relevant Installment Contract or
Lease, and the Debtor shall also furnish to the Agent from time to time such
other information with respect to Dealer Agreements, the Advances to Dealers,
Installment Contracts and Leases encumbered
hereby as the Agent may reasonably request. Without impairing the rights of any
Lender to obtain information from the Debtor under any of the other Loan
Documents, as applicable, the Agent shall furnish copies of the foregoing to any
Lender upon its request following the occurrence and during the continuance of
any Default or Event of Default, and the Debtor hereby authorizes and approves
such release. The Debtor will, at any time and from time to time during regular
business hours, upon 5 days prior notice (except if any Event of Default has
occurred and is continuing, when no prior notice shall be required), permit the
Agent, or its agents or representatives, to examine and make copies of and
abstracts from all Records, to visit the offices and properties of the Debtor
for the purpose of examining such Records, and to discuss matters relating to
the Advances to Dealers, Installment Contracts, Leases or the Debtor's
performance hereunder and under the other Loan Documents with any of the
officers, directors, employees or independent public accountants of the Debtor
having knowledge of such matters; provided, however, that the Agent acknowledges
that, in exercising the rights and privileges conferred in this Section 4.7, it
or its agents and representatives may, from time to time, obtain knowledge of
information, practices, books, correspondence and records of a confidential
nature and in which the Debtor has a proprietary interest. The Agent 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 Debtor, any such information, practices, books,
correspondence and records furnished to them except that the Agent may disclose
such information (i) to its officers, directors, employees, agents, counsel,
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 Agent or its officers, directors,
employees, agents, counsel, accountants, auditors, affiliates, advisors or
representatives, (iii) to the extent such information was available to the Agent
on a nonconfidential basis prior to its disclosure to the Agent hereunder, (iv)
to the extent the Agent 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 Obligations; provided, that the Agent shall notify
such assignee of the confidentiality provisions of this Section 4.7 and such
assignee shall agree pursuant to the required form of assignment agreement
attached as Exhibit G to the Credit Agreement to be bound thereby, or (vi) to
any Lender, subject to the confidentiality provisions contained in this
Agreement and any other Loan Document to which it is a party, upon the request
of such party following the occurrence and during the continuance of such
Default or Event of Default (but with no obligation on the part of any such
Lender hereunder to return such information to the Agent or the Debtor if any
such Default or Event of Default is subsequently cured or waived).
Notwithstanding anything to the contrary in this Agreement, the Agent may reply
to a request from any Person for a list of Advances to Dealers, Dealer
Agreements, Installment Contracts, Leases or other information related to any
Collateral referred to in any financing statement filed or acknowledgment
obtained to perfect the security interest and liens established hereby, to the
extent necessary to maintain the perfection or priority of such security
interests or liens, or otherwise required under applicable law. The Agent agrees
(at the Debtor's sole cost and expense) to take such measures as shall be
reasonably requested by the Debtor to protect and maintain the security and
confidentiality of such information. The Agent shall exercise good faith and
make diligent efforts to
provide the Debtor with written notice at least five (5) Business Days prior to
any disclosure pursuant to this Subsection 4.7(b).
(c) Furthermore, the Debtor shall permit the Agent and its
representatives to examine, inspect and audit the Collateral and to examine,
inspect and audit the Debtor's books and Records as otherwise provided under the
Loan Documents.
SECTION 4.8. CORPORATE CHANGES. The Debtor shall not change its name,
identity or corporate structure in any manner that might make any financing
statement filed in connection with this Agreement misleading to any third party
or which might otherwise result in the security interest granted hereunder
becoming unperfected unless the Debtor shall have given the Agent thirty (30)
days prior written notice thereof and shall have taken all action deemed
necessary or desirable by the Agent to protect its Liens and the perfection and
priority thereof. The Debtor shall not change its principal place of business,
chief executive office or the place where it keeps its books and records unless
it shall have given the Agent thirty (30) days prior written notice thereof and
shall have taken all action deemed necessary or desirable by the Agent to cause
its security interest in the Collateral to be perfected with the priority
required by this Agreement.
SECTION 4.9. BOOKS AND RECORDS; INFORMATION. The Debtor shall keep
accurate and complete books and records (the "Records") of the Collateral and
the Debtor's business and financial condition in accordance with the Loan
Documents. Subject to Section 4.7, the Debtor shall from time to time at the
request of the Agent deliver to the Agent such information regarding the
Collateral and the Debtor as the Agent may reasonably request, including,
without limitation, lists and descriptions of the Collateral and evidence of the
identity and existence of the Collateral. The Debtor shall xxxx its books and
records to reflect the security interest of the Agent under this Agreement;
provided, however, that with respect to its computer files, the Debtor's
compliance with Section 2.3 hereof shall be deemed to satisfy its obligations
under this sentence.
SECTION 4.10. ADMINISTRATIVE AND OPERATING PROCEDURES. The Debtor will
maintain and implement administrative and operating procedures (including
without limitation an ability to recreate records relating to the Dealer
Agreements, Advances to Dealers, Installment Contracts and Leases encumbered
hereby in the event of the destruction of the originals thereof), and keep and
maintain, or obtain, as and when required, all documents, books, records and
other information reasonably necessary or advisable for the collection of all
amounts due under the Dealer Agreements, Advances to Dealers, Installment
Contracts and Leases encumbered hereby (including without limitation records
adequate to permit adjustments to amounts due under each of such Dealer
Agreements, Advances to Dealers, Installment Contracts and Leases). The Debtor
will give the Agent notice of any material change in the administrative and
operating procedures of the Debtor referred to in the previous sentence.
Notwithstanding the foregoing, the Debtor shall not be required to make or
retain duplicate copies of Installment Contracts or Leases.
SECTION 4.11. EQUIPMENT, GOODS AND INVENTORY.
(a) The Debtor shall keep the Equipment (other than vehicles), Goods
and Inventory (other than Inventory in transit) which is in the Debtor's
possession at any of the locations specified on Schedule A hereto or, upon
thirty (30) days prior written notice to the Agent, at such other places within
Canada where all action required to perfect the Agent's security interest in the
Equipment, Goods and Inventory with the priority required by this Agreement
shall have been taken.
(b) The Debtor shall maintain the Equipment, Goods and Inventory in
accordance with the terms of the Loan Documents.
SECTION 4.12. NOTIFICATION. The Debtor shall promptly notify the Agent
in writing of any Lien, encumbrance or claim (other than a Permitted Lien) that
has attached to or been made or asserted against any of the Collateral upon
becoming aware of the existence of such Lien, encumbrance or claim.
SECTION 4.13. COLLECTION OF ACCOUNTS. So long as no Event of Default
has occurred and is continuing and except as otherwise provided in this Section
4.13 and in Section 5.1, the Debtor shall have the right to collect and receive
payments on the Accounts, Dealer Agreements, Advances to Dealers, Installment
Contracts, Leases and other financial assets, and to use and expend the same in
its operations, in each case in compliance with the terms of each of the Loan
Documents. In connection with such collections, the Debtor may take (and, at the
Agent's direction following the occurrence and during the continuance of an
Event of Default, shall take) such actions as the Debtor or the Agent (but only
following the occurrence and during the continuance of an Event of Default) may
deem necessary or advisable to enforce collection of the Accounts, Dealer
Agreements, Advances to Dealers, Installment Contracts and other financial
assets.
ARTICLE V
RIGHTS OF THE AGENT
SECTION 5.1. POWER OF ATTORNEY. The Debtor hereby irrevocably
constitutes and appoints the Agent and any officer or agent thereof, with full
power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the name of the Debtor or in its own name, to
take, after the occurrence and during the continuance of an Event of Default,
any and all actions, and to execute any and all documents and instruments which
the Agent at any time and from time to time deems necessary or desirable, to
accomplish the purposes of this Agreement and, without limiting the generality
of the foregoing, the Debtor hereby gives the Agent the power and right on
behalf of the Debtor and in its own name to do any of the following after the
occurrence and during the continuance of an Event of Default, without notice to
or the consent of the Debtor:
(i) to demand, xxx for, collect or receive, in the name of the
Debtor or in its own name, any money or property at any time payable or
receivable on account of or in exchange for any of the Collateral and,
in connection therewith, endorse checks, notes, drafts,
acceptances, money orders, documents of title or any other instruments
for the payment of money under the Collateral or any policy of
insurance;
(ii) to pay or discharge taxes, Liens or other encumbrances
levied or placed on or threatened against the Collateral;
(iii) (A) to direct account debtors, Dealers, any obligors
under Installment Contracts or Leases, as applicable, and any other
parties liable for any payment under any of the Collateral to make
payment of any and all monies due and to become due thereunder directly
to the Agent or as the Agent shall direct; (B) to receive payment of
and receipt for any and all monies, claims and other amounts due and to
become due at any time in respect of or arising out of any Collateral;
(C) to sign and endorse any invoices, freight or express bills, bills
of lading, storage or warehouse receipts, drafts against debtors,
assignments, proxies, stock powers, verifications and notices in
connection with accounts and other documents relating to the
Collateral; (D) to commence and prosecute any suit, action or
proceeding at law or in equity in any court of competent jurisdiction
to collect the Collateral or any part thereof and to enforce any other
right in respect of any Collateral; (E) to defend any suit, action or
proceeding brought against the Debtor with respect to any Collateral;
(F) to settle, compromise or adjust any suit, action or proceeding
described above and, in connection therewith, to give such discharges
or releases as the Agent may deem appropriate; (G) to exchange any of
the Collateral for other property upon any merger, consolidation,
reorganization, recapitalization or other readjustment of the issuer
thereof and, in connection therewith, deposit any of the Collateral
with any committee, depositary, transfer agent, registrar or other
designated agency upon such terms as the Agent may determine; (H) to
add or release any guarantor, indorser, surety or other party to any of
the Collateral; (I) to renew, extend or otherwise change the terms and
conditions of any of the Collateral; (J) to make, settle, compromise or
adjust any claim under or pertaining to any of the Collateral
(including claims under any policy of insurance); and (K) to sell,
transfer, pledge, convey, make any agreement with respect to, or
otherwise deal with, any of the Collateral as fully and completely as
though the Agent were the absolute owner thereof for all purposes, and
to do, at the Agent's option and the Debtor's sole expense, at any
time, or from time to time, all acts and things which the Agent deems
necessary to protect, preserve, maintain, or realize upon the
Collateral and the Agent's security interest therein.
This power of attorney is a power coupled with an interest and shall be
irrevocable. The Agent shall be under no duty to exercise or withhold the
exercise of any of the rights, powers, privileges and options expressly or
implicitly granted to the Agent in this Agreement, and shall not be liable for
any failure to do so or any delay in doing so. This power of attorney is
conferred on the Agent solely to protect, preserve, maintain and realize upon
its security interest in the Collateral. The Agent shall not be responsible,
except in the event of gross negligence or willful misconduct by the Agent, for
any decline in the value of the Collateral and shall not be required to take any
steps to preserve rights against prior parties or to protect, preserve or
maintain any Lien given to secure the Collateral.
SECTION 5.2. SETOFF. In addition to and not in limitation of any rights
of any Lender under applicable law, the Agent and each Lender shall, upon
acceleration of any Obligations owing to such party under the Loan Documents, or
when and to the extent any such Obligations shall otherwise be due and payable,
and without notice or demand of any kind, have the right to appropriate and
apply to the payment of the Obligations owing to it (whether or not then due)
any and all balances, credits, deposits, accounts or moneys of the Debtor then
or thereafter on deposit with such Lender; provided, however, that any such
amount so applied by any Lender on any of the Obligations owing to it shall be
subject to the provisions of Sections 10.2, 10.3 and 10.4 of the Credit
Agreement.
SECTION 5.3. ASSIGNMENT BY THE AGENT. The Agent may at any time assign
or otherwise transfer all or any portion of its rights and obligations as Agent
under this Agreement and the other Loan Documents (including, without
limitation, the Obligations) to any other Person, to the extent permitted by,
and upon the conditions contained in, the Credit Agreement and the other Loan
Documents, as applicable, and such Person shall thereupon become vested with all
the benefits and obligations thereof granted to the Agent herein or otherwise.
SECTION 5.4. PERFORMANCE BY THE AGENT. If the Debtor shall fail to
perform any covenant or agreement contained in this Agreement, the Agent may
perform or attempt to perform such covenant or agreement on behalf of the
Debtor, in which case the Agent shall exercise good faith and make diligent
efforts to give the Debtor prompt prior written notice of such performance or
attempted performance. In such event, the Debtor shall, at the request of the
Agent, promptly pay any reasonable amount expended by the Agent in connection
with such performance or attempted performance to the Agent, together with
interest thereon at the interest rate set forth in the Credit Agreement, from
and including the date of such expenditure to but excluding the date such
expenditure is paid in full. Notwithstanding the foregoing, it is expressly
agreed that the Agent shall not have any liability or responsibility for the
performance of any obligation of the Debtor under this Agreement, except in the
event of gross negligence or willful misconduct by the Agent.
SECTION 5.5. RESTRICTIONS UNDER DEALER AGREEMENTS. In exercising the
rights and remedies set forth in this Agreement, the Agent shall take no action
with regard to any Dealer which is expressly prohibited by the related Dealer
Agreement.
SECTION 5.6. CERTAIN COSTS AND EXPENSES. The Debtor shall pay or
reimburse the Agent within five (5) Business Days after demand for all
reasonable costs and expenses (including reasonable legal fees and expenses
supported by an itemized billing) incurred by it in connection with the
enforcement, attempted enforcement, or preservation of any rights or remedies
under this Agreement or any other Loan Document during the existence of an Event
of Default or after acceleration of any of the Obligations (including in
connection with any "workout" or restructuring regarding the Obligations, and
including in any insolvency proceeding or appellate proceeding); provided,
however, that the Debtor shall only be required to pay or reimburse the Agent in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or any other Loan Document for the fees
and expenses of one law firm in each jurisdiction governing the establishment,
perfection or priority of any security interest or lien established hereby, or
governing any dispute, claim or other matter arising hereunder, at any given
time, engaged on behalf of the Agent. The agreements in this Section 5.6 shall
survive the payment in full of the Obligations. Notwithstanding the foregoing,
the reimbursement of any fees and expenses incurred by the Lenders shall be
governed by the terms and conditions of the applicable Loan Documents.
SECTION 5.7. INDEMNIFICATION. The Debtor shall indemnify, defend and
hold the Agent and each Lender and each of their respective officers, directors,
employees, counsel, agents and attorneys-in-fact (each, an "Indemnified Person")
harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, charges, expenses and disbursements
(including reasonable legal fees and expenses supported by an itemized billing)
of any kind or nature whatsoever which may at any time (including at any time
following repayment of the Obligations and the termination, resignation or
replacement of the Agent or replacement of any Lender) be imposed on, incurred
by or asserted against any such Indemnified Person in any way relating to or
arising out of this Agreement or any other Loan Document or any document
contemplated by or referred to herein or therein, or the transactions
contemplated hereby, or any action taken or omitted by any such Indemnified
Person under or in connection with any of the foregoing, including with respect
to any investigation, litigation or proceeding (including any proceeding
described in Section 9.1(j) of the Credit Agreement or appellate proceeding)
related to or arising out of this Agreement or the Obligations or the use of the
proceeds thereof, whether or not any Indemnified Person is a party thereto (all
the foregoing, collectively, the "Indemnified Liabilities); provided, that the
Debtor shall have no obligation under this Section 5.7 to any Indemnified Person
(a) with respect to Indemnified Liabilities to the extent resulting from the
gross negligence or willful misconduct of such Indemnified Person or (b) if, in
the case of an action solely among the Agent and/or the Lenders (or any of
them), neither the Debtor nor any of its Affiliates or employees or agents is
(or has been) finally determined, in a court of competent jurisdiction, to have
engaged in any wrongful conduct or in any breach of this Agreement or any of the
Loan Documents or (c) if, in the case of an action solely as between or among
the Agent and/or the Lenders (or any of them) on the one hand and the Debtor, on
the other hand, (i) the Debtor has obtained a final, non-appealable judgment
from a court of competent jurisdiction that neither it nor any of its
Affiliates, employees or agents has engaged in any wrongful conduct or in any
breach of this Agreement or any of the other Loan Documents or (ii) the Debtor
by non-appealable judgment is the prevailing party. The agreements in this
Section 5.7 shall survive payment of all other Obligations.
ARTICLE VI
DEFAULT
SECTION 6.1. RIGHTS AND REMEDIES. If an Event of Default shall have
occurred and be continuing, the Agent shall have the following rights and
remedies, subject to the direction and/or consent of the Majority Banks as
required under the Credit Agreement:
(i) In addition to all other rights and remedies granted to
the Agent in this Agreement, the Credit Agreement or in any other Loan
Document or by applicable law, the Agent shall have all of the rights
and remedies of a secured party under the PPSA (whether or
not the PPSA applies to the affected Collateral) and the Agent may
also, without notice except as specified below or in the Credit
Agreement, sell the Collateral or any part thereof in one or more
parcels at public or private sale, at any exchange, broker's board or
at any of the Agent's offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as the Agent may, in its
reasonable discretion, deem commercially reasonable or otherwise as may
be permitted by law. Without limiting the generality of the foregoing,
the Agent may (A) without demand or notice to the Debtor (except as
required under the Loan Documents or applicable law), collect, receive
or take possession of the Collateral or any part thereof, and for that
purpose the Agent (and/or its agents, servicers or other independent
contractors) may enter upon any premises on which the Collateral is
located and remove the Collateral therefrom or render it inoperable,
and/or (B) sell, lease or otherwise dispose of the Collateral, or any
part thereof, in one or more parcels at public or private sale or
sales, at the Agent's offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as the Agent may, in its
reasonable discretion, deem commercially reasonable or otherwise as may
be permitted by law. The Agent and, subject to the terms of the Credit
Agreement, each of the Lenders shall have the right at any public sale
or sales, and, to the extent permitted by applicable law, at any
private sale or sales, to bid (which bid may be, in whole or in part,
in the form of cancellation of indebtedness) and become a purchaser of
the Collateral or any part thereof free of any right of redemption on
the part of the Debtor, which right of redemption is hereby expressly
waived and released by the Debtor to the extent permitted by applicable
law. Upon the request of the Agent, the Debtor shall assemble the
Collateral and make it available to the Agent at any place designated
by the Agent that is reasonably convenient to the Debtor and the Agent.
The Debtor agrees that, subject to notice requirements of applicable
law, the Agent shall not be obligated to give more than fifteen (15)
days prior written notice of the time and place of any public sale or
of the time after which any private sale may take place and that such
notice shall constitute reasonable notice of such matters. The Agent
shall not be obligated to make any sale of Collateral if, in the
exercise of its reasonable discretion, it shall determine not to do so,
regardless of the fact that notice of sale of Collateral may have been
given. The Agent may, without notice or publication (except as required
by applicable law), adjourn any public or private sale or cause the
same to be adjourned from time to time by announcement at the time and
place fixed for sale, and such sale may, without further notice, be
made at the time and place to which the same was so adjourned. The
Debtor shall be liable for all reasonable expenses of retaking,
holding, preparing for sale or the like, and all reasonable legal fees
and expenses and other costs and expenses incurred by the Agent in
connection with the collection of the Obligations and the enforcement
of the Agent's rights under this Agreement and the other Loan
Documents. The Debtor shall, to the extent permitted by applicable law,
remain liable for any deficiency if the Proceeds of any such sale or
other disposition of the Collateral (conducted in conformity with this
clause (i) and applicable law) applied to the Obligations are
insufficient to pay the Obligations in full. The Agent shall apply the
proceeds from the sale of the Collateral hereunder against the
Obligations in such order and manner as is provided in the Credit
Agreement.
(ii) The Agent may, subject to applicable law, cause any or
all of the Collateral held by it to be transferred into the name of the
Agent or the name or names of the Agent's nominee or nominees.
(iii) The Agent may exercise any and all rights and remedies
of the Debtor under or in respect of the Collateral, including, without
limitation, any and all rights of the Debtor to demand or otherwise
require payment of any amount under, or performance of any provision of
any of the Collateral and any and all voting rights and corporate
powers in respect of the Collateral.
(iv) On any sale of the Collateral, the Agent is hereby
authorized to comply with any limitation or restriction with which
compliance is necessary (based on a reasoned opinion of the Agent's
counsel) in order to avoid any violation of applicable law or in order
to obtain any required approval of the purchaser or purchasers by any
applicable governmental authority.
(v) For purposes of enabling the Agent to exercise its rights
and remedies under this Section 6.1 and enabling the Agent and its
successors and assigns to enjoy the full benefits of the Collateral,
the Debtor hereby grants to the Agent an irrevocable, nonexclusive
license (exercisable without payment of royalty or other compensation
to the Debtor) to use, assign, license or sublicense any of the
Computer Records or Software (including in such license reasonable
access to all media in which any of the licensed items may be recorded
or stored and all computer programs used for the completion or printout
thereof), exercisable upon the occurrence and during the continuance of
an Event of Default (and thereafter if the Agent succeeds to any of the
Collateral pursuant to an enforcement proceeding or voluntary
arrangement the Debtor), except as may be prohibited by any licensing
agreement relating to such Computer Records or Software. This license
shall also inure to the benefit of all successors, assigns, transferees
of and purchasers from the Agent.
SECTION 6.2. PRIVATE SALES. The Debtor agrees to do or cause to be
done, to the extent that the Debtor may do so under applicable law, all such
other reasonable acts and things as may be necessary to make any private sales
or resales of any portion or all of the Collateral according to the terms hereof
valid and binding and in compliance with any and all applicable laws,
regulations, orders, writs, injunctions, decrees or awards of any and all
courts, arbitrators or governmental instrumentalities, domestic or foreign,
having jurisdiction over any such sale or sales, all at the Debtor's sole
expense.
SECTION 6.3. ESTABLISHMENT OF SPECIAL ACCOUNT; AND LOCK BOX. Upon the
occurrence and during the continuance of any Event of Default, there shall be
established by the Debtor with the Agent, for the benefit of the Lenders in the
name of the Agent, a segregated non-interest bearing cash collateral account
("Special Account") bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Agent and the Lenders;
provided, however, that the Special Account may be an interest-bearing account
with a commercial bank (including Comerica or any other Lender which is a
commercial bank) if determined by the Agent, in its reasonable
discretion, to be practicable, invested by the Agent in its sole discretion, but
without any liability for losses or the failure to achieve any particular rate
of return. Subject to the terms hereof and to the rights of Dealers under
applicable Dealer Agreement and to the rights of the applicable creditor in
respect of Permitted Securitizations, the Agent shall possess all right, title
and interest in and to all funds deposited from time to time in such account.
Furthermore, upon the occurrence and during the continuance of any Event of
Default, the Debtor agrees, upon the written election of the Agent, to establish
and maintain at the Debtor's sole expense a Canada Post lock box (the "Lock
Box"), to which the Agent shall have exclusive access and control. The Debtor
expressly authorizes the Agent, from time to time, to remove the contents from
the Lock Box, for disposition in accordance with this Agreement. Upon the
occurrence and during the continuance of an Event of Default, the Debtor shall,
upon the Agent's request, notify all account debtors, all Dealers under Dealer
Agreements encumbered hereby, and all obligors under Installment Contracts or
Leases encumbered hereby that all payments made to the Debtor (a) other than by
electronic funds transfer, shall be remitted, for the credit of the Debtor, to
the Lock Box, and the Debtor shall include a like statement on all invoices, and
(b) by electronic funds transfer, shall be remitted to the Special Account, and
the Debtor shall include a like statement on all invoices. The Debtor shall
execute all documents and authorizations as reasonably required by the Agent to
establish and maintain the Lock Box and the Special Account. It is acknowledged
by the parties hereto that any lockbox presently maintained or subsequently
established by the Debtor with the Agent may be used, subject to the terms
hereof, to satisfy the requirements set forth in the first sentence of this
Section 6.3.
6.4. LEGENDING INSTALLMENT CONTRACTS AND LEASES ON DEFAULT. Upon the
occurrence and during the continuance of any Event of Default, the Majority
Banks may elect (the "Election"), by directing the Agent to notify the Debtor of
such election, to affix to each Installment Contract and Lease encumbered by
this Agreement or securing Advances to Dealers or otherwise related to a Dealer
Agreement encumbered hereby (or, at the Debtor's option, to the file folders
containing such Installment Contracts or Leases) the following legend: "THIS
AGREEMENT HAS BEEN PLEDGED TO COMERICA BANK, AS AGENT FOR THE BENEFIT OF CERTAIN
LENDERS". The Election, once made by the Majority Banks, as aforesaid, shall
remain in effect, the Debtor shall remain obligated to comply with such
Election, notwithstanding any subsequent waiver or cure of the applicable Event
of Default giving rise to such election, unless the Election is withdrawn by the
Majority Banks.
6.5 DEFAULT UNDER LOAN DOCUMENTS. It shall constitute an Event of
Default under each of the Loan Documents if (a) any representation or warranty
made or deemed made by the Debtor herein or in any instrument submitted pursuant
hereto proves untrue in any material adverse respect when made or deemed made,
or (b) the Debtor shall breach any covenant or other provision hereof, and such
breach shall continue for a period of three (3) consecutive days, in the case of
any failure to pay any money due hereunder, and thirty (30) consecutive days, in
the case of any other breach hereunder or (c) this Agreement shall at any time
for any reason (other than in accordance with its terms or the terms of each of
the Loan Documents or with the consent of the requisite Lenders) cease to be
valid and binding and enforceable against the Debtor, or (d) the validity,
binding effect or enforceability hereof shall be contested by any Person, or (e)
the Debtor shall deny, prior to payment of the Obligations in full or the
termination of this Agreement according to its terms, that it has any
further liability hereunder, or (f) this Agreement (other than in accordance
with its terms or the terms of each of the Loan Documents) shall be terminated,
invalidated, revoked or set aside or in any way cease to give or provide to the
Agent and the Lenders the benefits purported to be created hereby.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. NO WAIVER; CUMULATIVE REMEDIES. No failure on the part of
the Agent to exercise and no delay in exercising, and no course of dealing with
respect to, any right, power or privilege under this Agreement shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege under this Agreement preclude any other or further exercise thereof
or the exercise of any other right, power, or privilege. The rights and remedies
provided for in this Agreement are cumulative and not exclusive of any rights
and remedies provided by law.
SECTION 7.2. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the Debtor and the Agent and their respective
heirs, successors and assigns, except that the Debtor may not assign any of its
rights or obligations under this Agreement without the prior written consent of
the Agent.
SECTION 7.3. AMENDMENT; ENTIRE AGREEMENT. THIS AGREEMENT (AND THE LOAN
DOCUMENTS REFERRED TO HEREIN) EMBODIES THE FINAL, ENTIRE AGREEMENT AMONG THE
PARTIES HERETO AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE
SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE
PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES HERETO.
The provisions of this Agreement may be amended or waived only by an instrument
in writing signed by the parties hereto.
SECTION 7.4. NOTICES. All notices, requests, consents, approvals,
waivers and other communications hereunder shall be in writing (including, by
facsimile transmission) and mailed, faxed or delivered to the address or
facsimile number specified for notices on signature pages hereto; or, as
directed to the Debtor or the Agent, to such other address or number as shall be
designated by such party in a written notice to the other. All such notices,
requests and communications shall, when sent by overnight delivery, or faxed, be
effective when delivered for overnight (next business day) delivery, or
transmitted in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the U.S. mail or
Canada Post, as the case may be, or if otherwise delivered, upon delivery;
except that notices to the Agent shall not be effective until actually received
by the Agent.
SECTION 7.5. GOVERNING LAW; SUBMISSION TO JURISDICTION; SERVICE OF
PROCESS. (a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE PROVINCE OF ONTARIO.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER SECURITY DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE
PROVINCE OF ONTARIO OR OF THE FEDERAL COURTS OF CANADA, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, THE DEBTOR AND THE AGENT CONSENT, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE
DEBTOR AND THE AGENT IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY SECURITY DOCUMENT.
SECTION 7.6. HEADINGS. The headings, captions, and arrangements used in
this Agreement are for convenience only and shall not affect the interpretation
of this Agreement.
SECTION 7.7. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in this Agreement or in any certificate
delivered pursuant hereto shall survive the execution and delivery of this
Agreement, and no investigation by the Agent shall affect the representations
and warranties or the right of the Agent and the Lenders to rely upon them.
SECTION 7.8. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 7.9. WAIVER OF BOND. In the event the Agent seeks to take
possession of any or all of the Collateral by judicial process, the Debtor
hereby irrevocably waives any bonds and any surety or security relating thereto
that may be required by applicable law as an incident to such possession, and
waives any demand for possession prior to the commencement of any such suit or
action.
SECTION 7.10. SEVERABILITY. Any provision of this Agreement which is
determined by a court of competent jurisdiction to be prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 7.11. CONSTRUCTION. The Debtor and the Agent acknowledge that
each of them has had the benefit of legal counsel of its own choice and has been
afforded an opportunity to review this Agreement with its legal counsel and that
this Agreement shall be construed as if jointly drafted by the Debtor and the
Agent.
SECTION 7.12. TERMINATION. If all of the Obligations (other than
contingent liabilities pursuant to any indemnity, including without limitation
Sections 5.6 and 5.7 hereof, for claims which have not been asserted, or which
have not yet accrued) shall have been paid and performed in full and all
commitments to extend credit or other credit accommodations under the Credit
Agreement have been terminated, the Agent shall, upon the written request of the
Debtor, execute and deliver to the Debtor a proper instrument or instruments
acknowledging the release and termination of the security interests created by
this Agreement (including, without limitation, PPSA discharges), and shall duly
assign and deliver to the Debtor (without recourse and without any
representation or warranty) such of the Collateral as may be in the possession
of the Agent and has not previously been sold or otherwise applied pursuant to
this Agreement.
SECTION 7.13 RELEASE OF COLLATERAL. The Agent shall, upon the written
request of the Debtor, execute and deliver to the Debtor a proper instrument or
instruments acknowledging the release of the security interest and liens
established hereby (a) on any Collateral (i) which is permitted to be sold or
disposed of the Debtor or any other grantor in connection with a Permitted
Securitization, or (ii) the sale or other disposition of which is not otherwise
prohibited under the terms of any of the other Loan Documents (or in the event
any Loan Document prohibits such sale or disposition, the applicable Lenders
under such Loan Document shall have consented to such sale or disposition in
accordance with the terms thereof) and, at the time of such proposed release,
both before and after giving effect thereto, no Default or Event of Default has
occurred and is continuing, or (b) if such release has been approved by the
requisite Lenders in accordance with the Credit Agreement.
SECTION 7.14. WAIVER OF JURY TRIAL. THE DEBTOR AND THE AGENT EACH WAIVE
THEIR RIGHT TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY EITHER SUCH PARTY AGAINST THE OTHER, WHETHER
WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE DEBTOR AND THE
AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A
COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, EACH SUCH PARTY
FURTHER AGREES THAT ITS RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS
SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE
OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE
OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT.
SECTION 7.15. CONSISTENT APPLICATION. The rights and duties created by
this Agreement shall, in all cases, be interpreted consistently with, and shall
be in addition to (and not in lieu of), the rights and duties created by the
Loan Documents. In the event that any provision of this Agreement
shall be inconsistent with any provision of any other Loan Documents, such
provision of this Agreement shall govern.
* * * *
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first written above.
DEBTOR:
CAC OF CANADA LIMITED
By:/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Co-President
Address for Notices:
00000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Fax No.: 248/000-0000
Telephone No.: 248/000-0000
Attention: Chief Financial Officer
AGENT:
COMERICA BANK as Agent
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title:
Address for Notices:
Metropolitan Loans D
One Detroit Center, 6th Floor
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Fax No.: 313/000-0000
Telephone No.: 313/000-0000
Attention: Xxxxx Xxxxxxx
SCHEDULE A
TO
SECURITY AGREEMENT
Principal Place of Business, Locations of Equipment and Inventory
(including leased locations) in the Possession of the Debtor
Registered Xxxxxx
00xx Xxxxx
0 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Books and Records
00000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Asset Locations
Alberta
British Columbia
Ontario
New Brunswick
Nova Scotia
Michigan
Leased Locations
Nil
SCHEDULE B
TO
SECURITY AGREEMENT
Jurisdictions for Filing
PPSA Financing Statements
Alberta
British Columbia
Ontario
New Brunswick
Nova Scotia
Jurisdictions for Filing
UCC Financing Statements
Michigan
SCHEDULE C
TO
SECURITY AGREEMENT
Primary Computer Systems and Software
Application and Contract System is software which utilizes the HP Unix
operating system and is resident on Credit Acceptance Corporation's HP9000-K410
server. It was designed by in-house personnel and TUSC, a consulting firm hired
to assist with the project.
The Loan Servicing System is software which utilizes the HP Unix
operating system and is resident on Credit Acceptance Corporation's HP9000-K420
server. It was designed by in-house personnel and TUSC.
The Collection System is software which utilizes the HP Unix operating
system and is resident on Credit Acceptance Corporation's HP9000-T520 server. It
was developed and is owned by Ontario Systems Corporation and licensed to Credit
Acceptance Corporation under an agreement dated November 15, 1989.
Further information regarding these systems is contained on the
attached excerpt from Credit Acceptance Corporation's Form 10-K for the year
ended December 31, 2000.
SCHEDULE D
TO
SECURITY AGREEMENT
Trade and Other Names
CAC of Canada Limited
Nil
