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EXHIBIT 10.105
AMENDED AND RESTATED
PLEDGE AND SECURITY AGREEMENT
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT (this "Agreement") dated
as of June 12, 1998 by and among Onyx Acceptance Corporation, a Delaware
corporation having its principal place of business at 0000 Xxxxxx Xxxxxx Xxxxx,
0xx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000 (the "Company"), State Street Bank and Trust
Company ("State Street"), BankBoston ("BankBoston") and The Travelers Insurance
Company ("Travelers"), collectively with State Street and BankBoston, the
"Secured Parties", and each individually a "Secured Party"). State Street, in
its capacity as agent for the Secured Parties hereunder, is sometimes
hereinafter referred to as the "Agent", which term shall also be deemed to
include any successor(s) as Agent under the Loan Agreement (as hereinafter
defined) and any other party acting as agent for the Secured Parties hereunder.
This Amended and Restated Pledge and Security Agreement amends and restates the
Pledge and Security Agreement by and among the Company, State Street and
BankBoston dated as of January 31, 1996, as further amended by the First
Amendment Agreement dated as of November 12, 1996 by and among the Company,
State Street and BankBoston, as further amended by the Amendment and
Confirmation of Pledge and Security Agreement dated as of January 17, 1997 by
and among the Company, State Street, and BankBoston, as further amended by
Second Amendment and Confirmation of Pledge and Security Agreement dated as of
September 30, 1997 by and among the Company, State Street, and BankBoston, as
further amended by the Fifth Amendment to Loan Agreement, Including Third
Amendment and Confirmation of Pledge and Security Agreement dated as of February
4, 1998 by and among the Company, State Street and BankBoston and as further
amended from time to time through the date of this Agreement.
W I T N E S S E T H :
WHEREAS, the Company and the Secured Parties have entered into an Amended
and Restated Residual Interest in Securitized Assets Revolving Credit and Term
Loan Agreement dated as of the date hereof (as amended, modified and/or
supplemented from time to time, the "Loan Agreement") pursuant to which the
Secured Parties have agreed, subject to the terms and conditions set forth
therein, to make revolving credit loans and term loans to the Company
(collectively, the "Loans"), such Loans to be evidenced by the Company's
Revolving Credit and Term Notes payable to the order of the respective Secured
Parties (collectively, as amended, modified and/or supplemented from time to
time, the "Notes");
WHEREAS, Onyx Acceptance Financial Corporation, a Delaware corporation
("Xxxxx"), is a wholly owned subsidiary of the
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Company, and Xxxxx will derive significant benefits from the Loans inasmuch as,
inter alia, certain of the Loans will be used by Onyx to make advances for the
account of and loans to Xxxxx; and
WHEREAS, the obligations of the Secured Parties to enter into the Loan
Agreement and continue to make the Loans are subject to the condition, among
others, that the Company shall execute and deliver this Agreement and grant the
security interests hereinafter described;
NOW, THEREFORE, in consideration of the willingness of the Secured Parties
to enter into the Loan Agreement and to agree, subject to the terms and
conditions set forth therein, to make the Loans to the Company pursuant thereto,
and for other good and valuable consideration, receipt and sufficiency of which
is hereby acknowledged, it is hereby agreed as follows:
Section 1. Certain Definitions. Capitalized terms used but not defined in
this Agreement shall have the meanings given to them in the Loan Agreement. In
addition to the descriptions contained in Section 2 hereof, the items of
Collateral referred to therein shall have all of the meanings ascribed to them
in the Uniform Commercial Code (the "UCC") as in effect from time to time in The
Commonwealth of Massachusetts.
Section 2. Security Interest. As security for the Secured Obligations
described in Section 3 hereof, the Company hereby grants, mortgages,
hypothecates, pledges, collaterally assigns, sets over and delivers to the Agent
for the benefit of each of the Secured Parties and creates a continuing security
interest in and lien on, all of the Company's right, title and interest in and
to all assets and properties of the Company of every kind and nature, now owned
or hereafter acquired by the Company, or in which the Company now or hereafter
has any rights, together with any and all additions and accessions thereto and
proceeds and products thereof (hereinafter referred to collectively as the
"Collateral") including without limitation the following:
(A) All Tangible and Intangible Personal Property. (a) All inventory,
goods, merchandise, raw materials, supplies, goods or work in process, finished
goods and other tangible personal property held by the Company for processing,
sale or lease or furnished or to be furnished by the Company under contracts of
service or to be used or consumed in the Company's business; (b) all accounts,
accounts receivable and notes, drafts, acceptances, letters of credit, bills of
exchange and other instruments representing or evidencing a right to payment for
goods sold or leased or for services rendered whether or not earned by
performance, as well as all right, title and interest of the Company in the
goods which have given rise thereto, including the right of stoppage in transit;
(c) all contract rights including
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on-line service agreement contract rights and all rights to payment under any
contract not yet earned by performance and not evidenced by an instrument or
chattel paper; (d) all general intangibles of the Company, including without
limitation, going concern value, goodwill and all present and future
intellectual property rights of the Company, including without limitation, all
trademark, trade name and "dba" rights, all service marks and service names, all
copyright rights, all patent rights, all trade secrets, all know-how, and all
causes of action arising under all such intellectual property rights; (e) all of
the Company's chattel paper of every kind and description, provided that, the
Secured Parties' lien on specific chattel paper shall be deemed to be
automatically released in connection with the sale of such chattel paper as part
of the Company's warehouse financings or securitizations, in each instance to
the extent such sales are permitted by the terms of the Loan Agreement; (f) all
other rights of the Company to the payment of money of every kind and nature,
howsoever evidenced, including without limitation, amounts due from affiliates,
all tax refunds and/or abatements of every kind and nature, insurance proceeds,
proceeds from factoring agreements, interest rate hedge, swap or other interest
rate protection agreements, tort claims, causes of action of every kind and
description and all rights to deposits or advance payments and repayments; (g)
all books, customer lists, contract lists, advertiser lists, subscriber lists,
files, records (including without limitation computer programs, disks, tapes and
related electronic data processing media), general ledger sheets, books of
account, invoices, bills, certificates or documents of ownership, bills of sale,
business papers, correspondence, cards, data and data storage systems, and
writings of the Company or in which the Company has an interest in any way
relating to the Collateral and all rights of the Company to retrieval from third
parties of all such books and records including electronically processed and
recorded information pertaining to any Collateral; (h) all of the Company's
documents, documents of title, policies and certificates of insurance,
securities and instruments (whether negotiable or non-negotiable); (i) all cash,
funds and investments in any collateral account or accounts maintained from time
to time by the Company with the Secured Parties and all deposits and/or deposit
accounts maintained by the Company, and all money, deposits, funds and
instruments relating to the foregoing; (j) all liens, rights, remedies,
privileges, guaranties, indemnities, warranties, claims, security interests,
mortgages, securities and other encumbrances in favor of or assigned to the
Company for any of the foregoing; (k) all of the Company's equipment, machinery,
fixtures, furniture, office supplies and vehicles, (l) all of the Company's
rights under all present and future authorizations, permits, licenses and
franchises, to the fullest extent permitted by applicable law and (m) all
Investment Property (as defined in the UCC) and (n) all other personal property,
assets and things of value of every kind and nature, tangible or intangible,
absolute or contingent, legal
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or equitable including, with respect to all Collateral described in clauses (a)
through (n), any such Collateral hereafter acquired; and
(B) All Rights to Payments Under Securitization Transactions. Without
limiting any provision of clause (A) above, (i) all of the Company's rights to
payment of money (whether such rights are classified under the applicable UCC as
general intangibles, accounts, certificated securities (including the Pledged
Certificates defined below), uncertificated securities or otherwise) arising out
of, related to or created in connection with Onyx Acceptance Grantor Trust
1995-1 (OAGT-1995-1), Onyx Acceptance Grantor Trust 1996-1 (OAGT-1996-1), Onyx
Acceptance Grantor Trust 1996-2 (OAGT-1996-2), Onyx Acceptance Grantor Trust
1996-3 (OAGT-1996-3), Onyx Acceptance Grantor Trust 1996-4 (OAGT-1996-4), Onyx
Acceptance Grantor Trust 1997-1 (OAGT-1997-1), Onyx Acceptance Grantor Trust
1997-2 (OAGT-1997-2), Onyx Acceptance Grantor Trust 1997-3 (OAGT-1997-3), Onyx
Acceptance Grantor Trust 1998-1 (OAGT-1998-1) and any future securitization
transaction to which the Company in any capacity and which, in accordance with
the provisions of subsection 4.12 of the Loan Agreement, becomes an Eligible
Securitization Transaction, including, without limitation, Onyx Acceptance Owner
Trust - 1998-A, as well as all servicing fees (including Normal Servicing Fees),
all Future Servicing Cash Flows, Residual Interest in Securitized Assets and
other amounts of every kind and description payable to the Company from any
source whatsoever in connection with any securitization transaction, now
existing or hereafter entered into by the Company, including, but not limited
to, amounts due the Company from Spread Accounts or yield supplement accounts
and/or pursuant to any pooling and servicing agreement, reinsurance agreement,
agreement with any credit enhancer, agreement with any provider of interest rate
xxxxxx, swaps or other interest rate protection agreements of every kind and
description and (ii) all of the Company's rights (but none of its obligations or
liabilities), including without limitation, the right to receive payments under
any Eligible Securitization Transaction Document, whether evidenced by a Pledged
Certificate or otherwise, and any and all other agreements, documents or
instruments of the Company or to which the Company is a party or in which the
Company has an interest, now existing or hereafter arising in connection with
any securitization transaction; and
(C) Pledged Stock/Pledged Collateral. The shares of capital stock of Xxxxx
and all dividends and distributions of every kind or nature attributable thereto
as well as other proceeds, income and profits thereof (the "Pledged Stock"), the
limited beneficial certificates (as more particularly described below, the
"Pledged Certificates") together with any dividends or other amounts of any kind
or nature from time to time made or paid to the Company relating to the Pledged
Stock, the Pledged Certificates or otherwise and all promissory notes (including
all promissory notes and other instruments evidencing an obligation
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for payment of money payable to the Company), or additional securities or
collateral executed or acquired hereafter (such Pledged Stock, dividends and
other amounts, Pledged Certificates, promissory notes, additional securities or
collateral hereinafter collectively referred to as the "Pledged Collateral")
issued to the Company; and
(D) Proceeds and Products. All proceeds, including without limitation
insurance proceeds, and products of the items of Collateral described or
referenced in the foregoing clauses (A), (B) and (C).
The Company acknowledges and agrees that, in applying the law of any
jurisdiction that has heretofore enacted or hereafter enacts all or
substantially all of the uniform revisions of Article 8 of the Uniform
Commercial Code, with new provisions added to Article 9 as contemplated by such
revision, all as approved in 1994 by the American Law Institute and the National
Conference of Commissioners on Uniform State Laws, the foregoing definitions of
Collateral and Pledged Collateral shall be deemed to include "Investment
Property", as applicable, as defined in such new provisions of Article 9, it
being the intent of the Company, the Agent and each of the Secured Parties that
such property be included in the foregoing definition of Collateral, whether
prior to or after the effectiveness of such revision in any such jurisdiction.
As used herein, the term "Pledged Certificates" means, collectively, the
limited beneficial certificates issued by and pursuant to the terms of the
Spread Account Trust Agreements executed in connection with XXXX 0000-0, XXXX
0000-0, XXXX 0000-0, XXXX 0000-0, XXXX 0000-0, XXXX 0000-0, XXXX 0000-0, XXXX
1997-3 and OAGT 1998-1, each of which limited beneficial certificate evidences a
ninety-nine percent (99%) beneficial interest in all amounts from time to time
distributed by the Spread Account Trust issuing such certificate.
Notwithstanding the foregoing provisions of this Section 2, the Collateral
shall not include any and all assets that constitute Excluded Assets. As used
herein, the term "Excluded Assets" means (i) all chattel paper of every kind and
description held by the Company for resale to Xxxxx pursuant to the Sale and
Servicing Agreement between the Company and Xxxxx dated as of September 8, 1994,
as amended from time to time, (ii) any assets subject to an equipment or other
personal property lease which precludes the Company from granting a lien, (iii)
any collateral under any security agreement pertaining to any interest rate
hedge, swap or other interest rate protection agreements, to the extent such
agreements preclude the Company from granting a lien; (iv) any Future Servicing
Cash Flows, Residual Interest in Securitized Assets or other amounts payable in
connection with
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any Rejected Transaction, regardless of whether such right to payment of money
is classified under the applicable UCC as general intangibles, accounts,
certificated securities, uncertificated securities or otherwise, so long such
right to payment is evidenced by a limited beneficial certificate; (v) any right
of payment under any insurance and reimbursement agreement in favor of Capital
Markets Assurance Corporation executed by the Company, (vi) two separate
promissory notes each dated September 12, 1994, payable to the Company from
Xxxxx with principal amounts as determined in accordance with Section 5.1 of a
certain Sale and Servicing Agreement dated as of September 8, 1994 between the
Company and XXXXX; (vii) a promissory note dated December 20, 1994 payable to
the Company from Xxxx X. Xxxx, in the original principal amount of $175,000;
(viii) a promissory note dated December 20, 1994, payable to the Company from G.
Xxxxx XxxXxxxx, in the original principal amount of $175,000; (ix) all of the
Company's right, title and interest, as the same may exist from time to time, in
and to (a) Account No. 0000000-000 maintained by First Interstate Bank of
California, 000 Xxxxxxxx Xxxxxxxxx., X00-0, Xxx Xxxxxxx, Xxxxxxxxxx 00000 and
entitled "Spread Account Trust 1994-1 under Spread Account Trust Agreement
between Onyx Acceptance Financial Corporation, as Depositor, and Bankers Trust
(Delaware) as Trustee, subject to security interest of Capital Markets Assurance
Corporation"; (b) Account No. 14726 maintained by Bankers Trust Company, 0
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and entitled "Spread Account Trust
1995-1 under Spread Account Trust Agreement between Onyx Acceptance Financial
Corporation, as Depositor, and Bankers Trust (Delaware) as Trustee, subject to
security interest of Capital Markets Assurance Corporation"; and (c) Account No.
19350 maintained by Bankers Trust Company, 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 and entitled "Spread Account Trust 1996-1 under Spread Account Trust
Agreement between Onyx Acceptance Financial Corporation, as Depositor, and
Bankers Trust (Delaware) as Trustee, subject to security interest of Capital
Markets Assurance Corporation" and (x) the Company's Triple-A One warehouse
facility. The term "Excluded Assets" shall also include (i) Account No. 20343
maintained by Bankers Trust Company, 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
and entitled "1996-2 Spread Account Trust pursuant to the 1996-2 Spread Account
Trust Agreement dated as of May 15, 1996 between Onyx Acceptance Financial
Corporation, as Depositor, and Bankers Trust (Delaware) as Trustee, subject to
security interest of Capital Markets Assurance Corporation"; (ii) Account No.
22551 maintained by Bankers Trust Company, 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 and entitled "1997-1 Spread Account Trust pursuant to the 1997-1 Spread
Account Trust Agreement dated as of March 25, 1997 between Onyx Acceptance
Financial Corporation, as Depositor, and Bankers Trust (Delaware) as Trustee,
subject to security interest of Capital Markets Assurance Corporation"; (iii)
Account No. 23340 maintained by Bankers Trust Company, 0 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 and entitled "Spread Account Trust 1997-2
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under Spread Account Trust Agreement between Onyx Acceptance Financial
Corporation, as depositor, and Bankers Trust (Delaware) as Trustee, subject to
security interest of Capital Markets Assurance Corporation"; (iv) Account No.
23881 maintained by Bankers Trust Company, 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 and entitled "Spread Account Trust 1997-3 under Spread Account Trust
Agreement between Onyx Acceptance Financial Corporation, as Depositor, and
Bankers Trust (Delaware) as Trustee, subject to security interest of Capital
Markets Assurance Corporation"; and (v) Account No. [___] maintained by Bankers
Trust Company, 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and entitled "Spread
Account Trust 1998-1 under Spread Account Trust Agreement between Onyx
Acceptance Financial Corporation as Depositor, and Bankers Trust (Delaware) as
Trustee, subject to security interest of Capital Markets Assurance Corporation".
Section 3. Secured Obligations. The security interest hereby granted shall
secure the due and punctual payment and performance of the following
indebtedness, liabilities and obligations of the Company (herein called the
"Secured Obligations"): (a) principal of and premium, if any, and interest on
the Notes (including, without limitation, the payment of interest and other
amounts that would accrue and become due but for the filing of a petition in
bankruptcy or the operation of the automatic stay under Section 362(a) of Title
11 of the United States Code, as amended, or similar laws, as now or hereafter
in effect); and (b) any and all other obligations of any kind or nature
whatsoever of the Company to the Agent and/or the Secured Parties under the Loan
Agreement, the Notes, the Security Documents, the other Loan Documents or under
any agreement or instrument relating thereto, all as amended from time to time
and whether executed on or after the date hereof.
Section 4. Special Warranties and Covenants of Company. The Company hereby
represents, warrants and covenants to the Agent and the Secured Parties that:
(a) The Company is and will remain the legal and equitable owner of
the Collateral. Except for the security interest created hereunder and security
interests expressly permitted under the Loan Agreement, the Collateral is and
will remain free from any lien, security interest or encumbrance, and the
Company will defend the Collateral against all claims and demands of all Persons
at any time claiming the same or any interest therein. All items of Collateral
have been validly pledged, collaterally assigned and granted to the Agent for
the benefit of the Secured Parties, subject to no liens except as expressly
permitted under the Loan Agreement and, except for such liens expressly
permitted thereunder, the Agent has a first priority perfected lien on the
Collateral within the meaning of the applicable Uniform Commercial Code. The
Company has the full corporate and legal right, power and authority to pledge,
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collaterally assign and grant a security interest in the Collateral to the Agent
for the benefit of the Lenders hereunder.
(b) The address shown at the beginning of this Agreement is the
principal place of business and chief executive office of the Company, and the
address at which its books and records are kept. Except for such principal place
of business, and the locations listed on Schedule I attached hereto, the Company
has no additional places of business or other locations at which Collateral is
stored. The Company will not change its principal or any other place of
business, or the location of any Collateral, or make any change in the Company's
name or conduct the Company's business operations under any fictitious business
or trade name, without, in any such case, at least thirty (30) days' prior
written notice to the Agent.
(c) The Company will not sell, offer to sell, lease or otherwise
transfer or dispose of any of the Collateral or any interest therein except as
may be permitted by the Loan Agreement.
(d) The Company will keep the Collateral insured as provided in the
Loan Agreement. The Company will comply with all of its material obligations
under each of the Eligible Securitization Transaction Documents. The Company
will not use or otherwise deal with the Collateral in violation of the Loan
Agreement, the Eligible Securitization Transaction Documents, any insurance
policy covering the Collateral or applicable law. The Company will pay promptly
when due all taxes, assessments and governmental charges on the Collateral or
for its use or operation, except for taxes and assessments permitted to be
contested as provided in the Loan Agreement. The Agent and/or the Secured
Parties may at its/their option upon the failure of the Company so to do in
compliance with the terms of this Agreement and the Loan Agreement, discharge
any taxes, liens, security interests or other encumbrances to which any
Collateral is at any time subject (including in respect of FICA and withholding
taxes) and the Company agrees to reimburse the Agent and/or the Secured Parties
(as the case may be) on demand for any payments made or expenses reasonably
incurred by the Agent and/or the Secured Parties pursuant to the foregoing
authorization, and any unreimbursed amounts shall constitute Secured Obligations
for all purposes hereof.
(e) The Company will promptly execute and deliver to the Agent for the
benefit of the Secured Parties such financing statements, certificates, and
other documents or instruments as the Agent and/or the Secured Parties may deem
reasonably necessary or advisable to enable the Agent and/or the Secured Parties
to perfect or from time to time renew the security interest granted hereby, and
to comply with all applicable laws and regulations, including, without
limitation, such financing
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statements, certificates and other documents as the Agent and/or the Secured
Parties may deem reasonably necessary or advisable to perfect a security
interest in any additional Collateral hereafter acquired by the Company or in
any replacements or proceeds thereof. The Company hereby irrevocably authorizes
and appoints the Agent, on behalf of the Agent and/or the Secured Parties, to
the fullest extent permitted by applicable law, to execute such financing
statements, certificates and other documents in its stead, with full power of
substitution, as the Company's attorney-in-fact. The Company further agrees that
a carbon, photographic or other reproduction of a security agreement or
financing statement is sufficient as a financing statement under this Agreement.
(f) The Company will give the Agent on behalf of the Secured Parties
prior notice of each office of the Company at which records of the Company
pertaining to all items of Collateral are kept. Except as such notice is given
and unless otherwise permitted by the Loan Agreement, the Company's records
concerning all Collateral are and will be kept at the address shown at the
beginning of this Agreement as the principal place of business of the Company.
(g) The Company shall accord the Agent and the Secured Parties and
their representatives with such access as any Secured Party may from time to
time require, upon reasonable notice and at reasonable times, to all properties
owned or leased by the Company. The Agent and each Secured Party and its
representatives shall have the right, and the Company will permit the Agent and
any Secured Party and such representatives (at such times as they may reasonably
request) to examine, inspect, copy and make extracts from any and all of the
Collateral, subject to the confidentiality provisions of the Loan Agreement.
(h) If any Collateral (other than Pledged Certificates) is in the
possession of any third party, including but not limited to trustees or paying
agents on any Eligible Securitization Transactions and/or the Company's agents
or Affiliates, the Company shall notify such third parties of the security
interest of the Agent and the Secured Parties therein and instruct them to hold
the same for the account of the Agent and the Secured Parties and (subject to
the Agent's instructions) deliver such Collateral to the Blocked Account, and
will deliver such other notices and instructions to, and obtain waivers
(including but not limited to waivers of setoff and recoupment), acknowledgments
and financing statements from such third parties as the Agent and/or the Secured
Parties deem necessary.
(i) The Eligible Securitization Transaction Documents (x) are valid,
legally binding contracts, enforceable in accordance with their terms , and no
default on the part of the Company or any other party thereto has occurred and
is
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continuing, and (y) have not been amended or otherwise modified except as
disclosed in writing to the Secured Parties prior to the date hereof. The
Company has no knowledge of any condition, event, defect or circumstance which
would impair the Company's rights under the Eligible Securitization Transaction
Documents or the Company's right to receive payments in respect of the
Collateral, or any other event or condition which could reasonably be expected
to have a Material Adverse Effect. Notwithstanding the grant of the security
interest hereunder, the Company shall remain liable under each contract or
agreement included in the Collateral (including but not limited to the Eligible
Securitization Transaction Documents) to be observed or performed by the Company
thereunder. Neither the Agent nor the Secured Parties shall have any obligation
or liability under any such contract or agreement by reason of or arising out of
this Agreement or the receipt by the Agent or the Secured Parties of any payment
relating to any of the Collateral, nor shall the Agent or the Secured Parties be
obligated in any manner to perform any of the obligations of the Company under
or pursuant to any such contract or agreement, to make inquiry as to the nature
or sufficiency of any payment received by the Agent or the Secured Parties in
respect of the Collateral or as to the sufficiency of any performance by any
party under any such contract or agreement, to present or file any claim, to
take any action to enforce any performance or to collect the payment of any
amounts which may have been assigned to the Agent or the Secured Parties or to
which the Agent or the Secured Parties may be entitled at any time or times. The
Agent's (on behalf of the Secured Parties) sole duty with respect to the
custody, safe keeping and physical preservation of the Collateral in its
possession, under Section 9-207 of the UCC or otherwise, shall be to deal with
such Collateral in the same manner as the Agent deals with similar property for
its own account.
(j) The Pledged Stock has been duly and validly issued and is fully
paid and non-assessable. The Pledged Stock listed in Schedule II attached hereto
constitutes and shall at all times continue to constitute one hundred percent
(100%) of the presently issued and outstanding capital stock of Xxxxx. There are
outstanding or issued no options, warrants or other rights of any nature (or any
options to acquired any such rights) to acquire shares of the capital stock of
Xxxxx.
(k) If any additional shares of capital stock of any class of Xxxxx or
if any promissory notes of Xxxxx or other securities of Xxxxx are issued to or
otherwise acquired by the Company after the date hereof, the same shall
constitute Pledged Collateral and shall be deposited and pledged with the Agent,
for the benefit of the Secured Parties, simultaneously with such acquisition.
The Company will not consent to or approve the issuance of any additional shares
of capital stock of any class of Xxxxx.
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(l) The Pledged Certificates have been duly and validly issued by the
respective Spread Account Trusts, and have been sold by Xxxxx to Onyx in
accordance with the respective 1995-1, 1996-1, 1996-2, 1996-3, 1996-4, 1997-1,
1997-2, 1997-3 and 1998-1 purchase agreements between Onyx and Xxxxx, and all
applicable laws, including without limitation the General Corporation Law of the
State of Delaware, and all applicable federal and state fraudulent transfer and
fraudulent conveyance laws. The Company is the holder of record of each of the
Pledged Certificates on the books and records of the respective Spread Account
Trusts. Each Pledged Certificate evidences a beneficial right to receive
ninety-nine percent (99%) of all amounts from time to time released from (or not
required to be deposited into) the Spread Account maintained in the Spread
Account Trust issuing such Pledged Certificate. Each of the Pledged Certificates
is described on Schedule II attached hereto. There are outstanding or issued no
options, warrants or other rights of any nature (or any options to acquire any
such rights) to acquire the Pledged Certificates.
Section 5. Delivery of Pledged Collateral. Pursuant to the terms hereof, the
Company has endorsed, assigned and delivered to the Agent (f2 benefit of
the Secured Parties) all negotiable and non-negotiable instruments (including,
without limitation, the Pledge Collateral and any other certificated securities)
and chattel paper, if any, included in the Collateral pledged by it hereunder,
together with instruments of transfer or assignment duly executed in blank. All
negotiable or non-negotiable instruments (including, without limitation, the
Pledged Collateral and any other certificated securities) or chattel paper
constituting Collateral and hereafter acquired by the Company shall be promptly
delivered to the Agent (for the benefit of the Secured Parties) pursuant hereto,
shall be in suitable form for transfer by delivery, or shall be accompanied by
duly executed instruments of transfer or assignments in blank, and accompanied
in each case by any required transfer tax stamps, all in form and substance
satisfactory to the Agent. To the extent that any securities are uncertificated,
appropriate book-entry transfers reflecting the pledge of such securities
created hereby have been or, in the case of uncertificated securities hereafter
acquired by the Company, will at the time of such acquisition be, duly made for
the account of the Agent or one or more nominees of the Secured Parties, with
the issuer of such securities or other appropriate book-entry facility or
financial intermediary with the Agent having at all times the right to obtain
definitive certificates (in the Agent's name or in the name of one or more of
its nominees) where the issuer customarily or otherwise issues certificates, all
to be held as Collateral hereunder. The Company hereby acknowledges that the
Agent and/or the Secured Parties may, in its/their discretion, appoint one or
more financial institutions to act as the agent for the Agent or the
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Secured Parties in holding (in one or more custodial account(s)) instruments or
other financial assets in which the Agent and the Secured Parties are granted a
security interest hereunder.
Section 6. Special Provisions Concerning Future Servicing Cash Flows,
Receivables and Residual Interest in Securitized Assets;
Distributions in Respect of Pledged Collateral.
(a) The Company will execute and cause to be executed by all necessary
parties all such agreements or instruments as may be deemed necessary by the
Agent or the trustee or paying agent under each Spread Account Trust established
in connection with each Eligible Securitization Transaction so as to ensure that
such trustee or paying agent is irrevocably directed to make payments due the
Company as registered holder of the Pledged Certificates or otherwise (except
Normal Servicing Fees) directly to the Blocked Account (account number - ABA #:
000000000 For: Account # 42525 Ref: Onyx Acceptance Facility, Attention: Loan
Operations, Xxxxxx Xxxxxx M-11) maintained for the Company with the Agent, or
any successor account designated as the Blocked Account in the Loan Agreement).
The Company hereby irrevocably appoints the Agent as the true and lawful
attorney-in-fact of the Company with full power of substitution, in the name of
the Agent for the benefit of the Secured Parties or in the name of the Company
or otherwise, for the sole benefit of the Secured Parties but at the sole
expense of the Company, after the occurrence of an Event of Default and without
notice to or demand upon the Company: (i) to demand, collect, receive payment
of, receipt for, settle, compromise or adjust, and give discharges and releases
in respect of amounts payable to the Company constituting Collateral (including
without limitation the Pledged Collateral) (the "Receivables") or any of them;
(ii) to commence and prosecute any suits, actions or proceedings at law or in
equity in any court of competent jurisdiction to collect the Receivables or any
of them and to enforce any other rights in respect thereof or in respect of the
goods which have given rise thereto; (iii) to defend any suit, action or
proceeding brought against the Company with respect to any Receivables; (iv) to
settle, compromise or adjust any suit, action or proceeding described in clause
(ii) or (iii) above, and, in connection therewith, to give such discharges or
releases as the Agent may reasonably deem appropriate; (v) to endorse checks,
notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or
other instruments or documents evidencing or securing the Receivables or any of
them; and (vi) generally to sell, assign, transfer, pledge, make any agreement
in respect of or otherwise deal with any Receivables or the goods which have
given rise thereto as fully and completely as though the Agent and the Secured
Parties were the Company for such purposes. The powers conferred on the Agent
and the Secured Parties by this Agreement are solely to protect any interest of
the Agent and the Secured Parties and shall not impose any duty upon the Agent
or the Secured Parties to exercise any such power,
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and if the Agent or the Secured Parties shall exercise any such power, they
shall be accountable only for amounts they actually receive as a result thereof
and shall not be responsible to the Company except for willful misconduct or
gross negligence. Neither the Agent nor the Secured Parties shall be under any
obligation to take steps necessary to preserve the rights in any Collateral
against third parties but may do so at its/their option. The Agent may at its
option at any time after an Event of Default shall have occurred transfer to
itself or to its nominee the Pledged Stock, and receive the income thereon and
on the Pledged Certificates and hold the same as Collateral hereunder.
(b) The Company represents and warrants that all Collateral consisting
of Future Servicing Cash Flows, Residual Interest in Securitized Assets and all
other rights to payment evidenced by the Pledged Certificates are and will at
all times hereafter remain free of and not be subject to any security interests,
liens or encumbrances of any nature (other than security interests, liens or
encumbrances in favor of (i) CapMAC or any Affiliate of CapMAC to the extent
listed on Schedule 3.28 to the Loan Agreement, (ii) the Spread Account Trustees
and (iii) the Secured Parties).
(c) All powers of attorney set forth in this Agreement are coupled
with an interest and shall be irrevocable until the Secured Obligations have
been indefeasibly paid in full. To the extent permitted by law, the Company
hereby ratifies all that said attorneys shall lawfully do or cause to be done by
virtue thereof.
(d) In case, upon the dissolution, winding up, liquidation or
reorganization of Xxxxx whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors or any other
marshaling of the assets and liabilities of Xxxxx or any voluntary proceedings
for the liquidation of the assets of Xxxxx or otherwise, any sum shall be paid
or any property shall be distributed upon or with respect to any of the Pledged
Collateral, such sum shall be paid over to the Agent to be applied in payment of
the Secured Obligations in accordance with the Loan Agreement. In case any stock
dividend shall be declared on any of the Pledged Collateral, or any share of
stock or fraction thereof shall be issued pursuant to any stock split involving
any of the Pledged Collateral, or any distribution of capital (including,
without limitation, payments in respect of Residual Interest in Securitized
Assets or any other payment arising from or relating to any Eligible
Securitization Transaction) shall be made on any of the Pledged Collateral, or
any property shall be distributed upon or with respect to the Pledged Collateral
pursuant to recapitalization or reclassification of the capital of Xxxxx, the
shares or other property so distributed shall be delivered to the Agent to be
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applied in payment of (in the case of cash or Cash Equivalents) or held as
additional collateral for (in the case of other property) the Secured
Obligations in accordance with the Loan Agreement.
(e) Right to Transfer into Name of Agent, etc. In case there shall
exist an Event of Default, but subject to the provisions of the UCC or other
applicable law, the Agent may cause all or any of the Pledged Collateral to be
transferred into its name or into the name of its nominee or nominees. So long
as no Event of Default shall exist, the Company shall be entitled to exercise as
the Company shall deem fit, but in a manner not inconsistent with the terms
hereof or of the Secured Obligations (including but not limited to the Loan
Agreement and the other Loan Documents), the voting power with respect to the
Pledged Collateral.
(f) Right of Agent to Exercise Voting Power, etc. In case there shall
exist an Event of Default, which shall not have been remedied or cured in
accordance with the Loan Agreement, the Agent shall be entitled to exercise the
voting power with respect to the Pledged Collateral, and to exercise any and all
rights of payment, conversion, exchange, subscription or any other rights,
privileges or options pertaining to the Pledged Collateral as if it were the
absolute owner thereof, including without limitation, the right to exchange, at
its discretion, any and all of the Pledged Collateral upon the merger,
consolidation, reorganization, recapitalization or other readjustment of Xxxxx
or, upon the exercise of any such right, privilege or option pertaining to the
Pledged Collateral, and in connection therewith, to deposit and deliver any and
all of the Pledged Collateral with any committee, depositary, transfer agent,
registrar or other designated agency upon such terms and conditions as the Agent
may determine, all without liability except to account for property actually
received, but the Agent shall have no duty to exercise any of the aforesaid
rights, privileges or options and shall not be responsible for any failure to do
so or delay in so doing.
(g) Deletion of Eligible Securitization Transactions from Borrowing
Base - No Impairment of Collateral. The Company and the Secured Parties agree
that, from time to time in accordance with the terms of the Loan Agreement, the
Company may request that an Eligible Securitization Transaction be deleted from
the Borrowing Base, and further agree that any such deletion shall not under any
circumstances affect or impair the status of such Eligible Securitization
Transaction and any proceeds thereof as Collateral, as defined in this
Agreement. Without limiting the foregoing, except to the extent the Secured
Parties expressly release their security interest in and lien on any Eligible
Securitization Transaction in accordance with the applicable provisions of the
Loan Agreement, and agree in writing that such
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Eligible Securitization Transaction is being removed from the Loan Agreement for
both Borrowing Base and collateral purposes, all Eligible Securitization
Transactions will at all times be Collateral for the Loans and the other
obligations of the Company to the Secured Parties under the Loan Documents.
Section 7. Fixtures, etc. It is the intention of the parties hereto that
none of the Collateral shall become fixtures and the Company will take all such
reasonable actions as may be necessary to prevent any of the Collateral from
becoming fixtures. Without limiting the generality of the foregoing, the Company
will, if requested by the Agent, use its best efforts to obtain waivers of lien,
in form satisfactory to the Agent, from each lessor of real property on which
any of the Collateral is or is to be located unless such Collateral is also
located in the Company's Irvine, California headquarters.
Section 8. Events of Default. The Company shall be in default under this
Agreement upon the happening of any of the following events or conditions
(herein called "Events of Default"):
(a) Default shall be made in the due and punctual payment of principal
of or premium, if any, or interest on any of the Secured Obligations as and when
the same shall become due and payable (whether at maturity or at a date fixed
for any prepayment or installment or by demand, declaration or acceleration or
otherwise) and such default shall continue beyond the expiration of the
applicable period of grace, if any ("Payment Default"); or
(b) Any other Event of Default (as defined or provided in the Loan
Agreement or in any other Loan Document) shall occur; or
(c) There shall be a material breach of any representation, warranty,
covenant, term or provision contained herein, or any representation or warranty
made in this Agreement or in any certificate, document or instrument executed or
delivered from time to time in connection herewith or with any other Loan
Document proves to be untrue or misleading in any material respect when made.
Section 9. Rights and Remedies of Secured Parties; Consent to Appointment
of Receiver.
(a) In the event that any Event of Default shall have occurred, such
default not having previously been remedied or cured in accordance with the Loan
Agreement, the Agent may, and at the direction of the Majority Lenders the Agent
shall, declare all of the Secured Obligations to be immediately due and payable
and shall thereafter have the following rights and remedies: (a) all rights and
remedies provided by law, including, without
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limitation, those provided by the UCC; (b) all rights and remedies provided in
this Agreement; and (c) all rights and remedies provided in the Loan Agreement,
the Notes, the Security Documents or in any other Loan Document or agreement,
document or instrument pertaining to the Secured Obligations.
(b) Without limiting the generality of the foregoing Section 9(a) and
without derogating from any right, remedy or other provision contained in the
Loan Agreement or any other security document, at any time from and after the
occurrence of a payment default (as defined in Section 8(a)), the Secured
Parties shall have the right to apply for and have a receiver appointed by a
court of competent jurisdiction in any action taken by the Secured Parties to
enforce their rights and remedies hereunder in order to manage, protect and
preserve the collateral and continue the operation of the business of the
Company, or to sell or dispose of the collateral, and to collect all revenues
and profits thereof and apply the same to the payment of all expenses and other
charges of such receivership, including the compensation of the receiver, said
expenses to constitute part of the Secured Obligations, and to the payment of
the Secured Obligations as aforesaid. To the extent not prohibited by applicable
law, the Company hereby irrevocably consents to and waives any right to object
to or otherwise contest the appointment of receiver as provided above. The
Company (i) grants such waiver and consent knowingly after having discussed the
implications thereof with counsel, (ii) acknowledges that (a) the uncontested
right to have a receiver appointed for the foregoing purposes is considered
essential by the Secured Parties in connection with the enforcement of its
rights and remedies hereunder and under the loan documents, and (b) the
availability of such appointment as a remedy under the foregoing circumstances
was a material factor in inducing Secured Parties to make the loans to the
Company; and (iii) to the extent not prohibited by applicable law, agrees to
enter into any and all stipulations in any legal actions, or agreements or other
instruments in connection with the foregoing and to cooperate fully with the
Secured Parties in connection with the assumption and exercise of control by the
receiver over all or any portion of the collateral.
Section 10. Right of Secured Parties to Dispose of Collateral, etc.;
Restrictions on Transfer; etc.
(a) Without limiting the scope of Section 9 hereof, upon the
occurrence of any Event of Default, such default not having previously been
remedied or cured in accordance with the Loan Agreement, but subject to the
provisions of the UCC or other applicable law, the Agent may, and at the
direction of the Majority Lenders the Agent shall, take possession of the
Collateral and, in addition thereto, enter upon any premises on which the
Collateral or any part thereof may be situated and
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remove the same therefrom. The Agent may require the Company to make the
Collateral (to the extent the same is moveable) available to the Agent at a
place to be designated by the Agent which is reasonably convenient to both
parties. Unless the Collateral is perishable or threatens to decline speedily in
value or is of a type customarily sold on a recognized market, the Agent will
give the Company at least ten (10) days' prior written notice at the address of
the Company set forth in the Loan Agreement (or at such other address or
addresses as the Company shall specify in writing to the Agent) of the time and
place of any public sale thereof or of the time after which any private sale or
any other intended disposition thereof is to be made. Any such notice shall be
deemed to meet any requirement hereunder or under any applicable law (including
the UCC) that reasonable notification be given of the time and place of such
sale or other disposition. After deducting all reasonable costs and expenses of
collection, safekeeping, storage, custody, sale or other disposition and
delivery (including reasonable legal costs and attorneys' fees) and all other
charges against the Collateral, the residue of the proceeds of any such sale or
disposition shall be applied to the payment of the Secured Obligations in such
order of priority as the Secured Parties shall determine and any surplus shall
be returned to the Company or to any person or party lawfully entitled thereto.
In the event the proceeds of any sale, lease or other disposition of the
Collateral hereunder are insufficient to pay all of the Secured Obligations in
full, the Company will be liable for the deficiency, together with interest
thereon, at the maximum rate provided in the Loan Agreement, and for the costs
and expenses of collection of such deficiency, including, without limitation,
reasonable attorneys' fees, expenses and disbursements.
(b) Upon the occurrence of an Event of Default, such Event of Default
not having previously been remedied or cured in accordance with the Loan
Agreement, and without limiting in any manner the rights and remedies granted to
the Secured Party elsewhere in this Agreement, the Agent shall have the right at
any time or times thereafter to sell, resell, assign and deliver all or any of
the Pledged Collateral in one or more parcels at any exchange or broker's board
or at public or private sale. Unless the Pledged Collateral is perishable or
threatens to decline speedily in value or is of a type customarily sold on a
recognized market, the Secured Party will give the Company at least ten (10)
days' prior written notice (delivered in the manner specified in the Loan
Agreement) of the time and place of any public sale thereof or of the time after
which any private sale or any other intended disposition thereof is to be made.
Any such notice shall be deemed to meet any requirement hereunder or under any
applicable law (including the Uniform Commercial Code) that reasonable
notification be given of the time and place of such sale or other disposition.
Such notice may be given without any demand of performance or other demand, all
such
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demands being hereby expressly waived by the Company. All such sales shall
be at such commercially reasonable price or prices as the Secured Party shall
deem best and either for cash or on credit or for future delivery (without
assuming any responsibility for credit risk). At any such sale or sales the
Secured Party may purchase any or all of the Pledged Collateral to be sold
thereat upon such terms as the Secured Party may deem best. Upon any such sale
or sales the Pledged Collateral so purchased shall be held by the purchaser
absolutely free from any claims or rights of the Company of whatsoever kind or
nature, including any equity of redemption and any similar rights, all such
equity of redemption and any similar rights being hereby expressly waived and
released by the Company. In the event any consent, approval or authorization of
any governmental agency or other third party will be necessary to effectuate any
such sale or sales, the Company shall execute, and hereby agrees to cause Xxxxx
to execute, all such applications or other instruments as may be required. The
proceeds of any such sale or sales, together with any other additional
collateral security at the time received and held hereunder, shall be received
and applied: first, to the payment of all costs and expenses of such sale,
including reasonable attorneys' fees; second, to the payment of the Secured
Obligations in such order of priority as the Secured Parties shall determine,
and any surplus thereafter remaining shall be paid to the Company or to whomever
may be legally entitled thereto.
The Company recognizes that the Secured Parties may be unable to effect a
public sale of all or a part of the Pledged Collateral by reason of certain
prohibitions contained in the Securities Act of 1933, as amended, but may be
compelled to resort to one or more private sales to a restricted group of
purchasers, each of whom will be obligated to agree, among other things, to
acquire such Pledged Collateral for its own account, for investment and not with
a view to the distribution or resale thereof. The Company acknowledges that
private sales so made may be at prices and upon other terms less favorable to
the seller than if such Pledged Collateral were sold at public sale, and that
the Secured Parties have no obligation to delay sale of any such Pledged
Collateral for the period of time necessary to permit such Pledged Collateral to
be registered for public sale under the Securities Act of 1933, as amended.
Without limiting the foregoing, the Company acknowledges and understands that
compliance with the Securities Act of 1933, as amended, or similar or successor
federal securities laws or applicable state securities and blue sky laws might
strictly limit the course of conduct of the Secured Parties in attempting to
dispose of all or any of the Pledged Collateral. Accordingly, the Company
acknowledges and understands that the Secured Parties may solicit offers to buy
the Pledged Collateral, or any part thereof, for cash, from a limited number of
investors deemed by the Secured Parties, in their sole judgment, to be
responsible parties who
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might be interested in purchasing such Pledged Collateral. The Company
understands and agrees that any such sale under such circumstances may not yield
a price equal to the price which might otherwise be obtained, and agrees that a
sale under such circumstances shall be deemed fair and reasonable under the
circumstances, and waives, to the fullest extent permitted by applicable law,
any right to contest or challenge such sale or the results thereof. The Company
agrees that any such private sales shall not be deemed to have been made in a
commercially unreasonable manner solely because they shall have been made under
the foregoing circumstances.
(c) To the extent that any restrictions imposed by the charter or
by-laws of Xxxxx or any agreement to which Xxxxx is a party or any other
document or instrument would in any way affect or impair the pledge of the
Pledged Collateral hereunder or the exercise by the Secured Parties of any right
granted hereunder, including, without limitation, the right of the Secured
Parties to dispose of the Pledged Collateral upon the occurrence of any Event of
Default, the Company hereby waives such restrictions, and represents and
warrants that it has caused Xxxxx to take all necessary action to waive such
restrictions, and the Company hereby agrees that it will take any further action
which the Secured Parties may reasonably request in order that the Secured
Parties may obtain and enjoy the full rights and benefits granted to the Secured
Parties by this Agreement free of any such restrictions. The Agent is hereby
appointed the attorney-in-fact, with full power of substitution, of the Company
for the purpose of carrying out the provisions of this Pledge and Security
Agreement and taking any action including, without limitation, executing,
delivering and filing applications, certificates, instruments and other
documents and papers with governmental authorities and other third parties, and
executing any and all instruments including, without limitation, conveyances,
assignments and transfers which are required to be taken or executed by the
Company under this Pledge and Security Agreement, in the name of the Agent or on
behalf of and in the name of the Company. This appointment is coupled with an
interest, is irrevocable and durable and shall survive any subsequent
dissolution of the Company.
(d) All of the rights and remedies of the Agent and the Secured
Parties hereunder are cumulative, not exclusive, and enforceable successively,
alternatively or concurrently, at such time or times as the Agent and/or the
Secured Parties deem expedient.
Section 11. Right of Secured Parties to Use and Operate Collateral, etc.
Upon the occurrence and during the continuance of any Event of Default, such
default not having previously been remedied or cured in accordance with the Loan
Agreement, but subject to the provisions of the UCC or other applicable law, the
Agent shall
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have the right and power (but not the obligation) to take possession of all or
any part of the Collateral, and to exclude the Company and all persons claiming
under the Company wholly or partly therefrom, and thereafter to hold, store,
and/or use, operate, manage and control the same. In any such case the Agent
shall have all of the Company's right to manage and control the Collateral and
to carry on the business and to exercise all rights and powers of the Company in
respect thereto as the Agent shall deem best, including the right to enter into
any and all such agreements with respect to the operation of the Collateral or
any part thereof as the Agent may see fit; and the Agent shall be entitled to
collect and receive all rents, issues, profits, fees, revenues and other income
of the same and every part thereof. Such rents, issues, profits, fees, revenues
and other income shall be applied to pay the expenses of holding and operating
the Collateral and of conducting the business thereof, and of all maintenance,
repairs, replacements, alterations, additions and improvements, and to make all
payments which the Secured Parties may be required or may elect to make, if any,
for taxes, assessments, insurance and other charges upon the Collateral or any
part thereof, and all other payments which the Agent may be required or
authorized to make under any provision of this Agreement (including reasonable
legal costs and attorneys' fees). The remainder of such rents, issues, profits,
fees, revenues and other income shall be applied to the payment of the Secured
Obligations in such order of priority as the Secured Parties shall determine
and, unless otherwise provided by law or by a court of competent jurisdiction,
any surplus shall be returned to the Company or to any person or party lawfully
entitled thereto. Without limiting the generality of the foregoing (and without
derogating from any provision contained in the Loan Agreement or any other
Security Document), upon the occurrence of an Event of Default, the Agent shall
have the right to apply for and have a receiver appointed by a court of
competent jurisdiction in any action taken by the Agent and/or the Secured
Parties to enforce its/their rights and remedies hereunder in order to manage,
protect and preserve the Collateral and continue the operation of the business
of the Company, or to sell or dispose of the Collateral, and to collect all
revenues and profits thereof and apply the same to the payment of all expenses
and other charges of such receivership, including the compensation of the
receiver, said expenses to constitute part of the Secured Obligations, and to
the payment of the Secured Obligations as aforesaid.
Section 12. Waivers, etc. The Company hereby waives presentment,
demand, notice, protest and, except as is otherwise provided herein, all other
demands and notices in connection with this Agreement or the enforcement of the
Agent's and/or the Secured Parties' rights hereunder or in connection with any
Secured Obligations or any Collateral; consents to and waives notice of the
granting of renewals, extensions of time for payment or other
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indulgences to the Company or to any account debtor in respect of any
Receivable, or substitution, release or surrender of any Collateral, the
addition or release of persons primarily or secondarily liable on any Secured
Obligation or on any Receivable or other Collateral, the acceptance of partial
payments on any Secured Obligation or on any Receivable or other Collateral
and/or the settlement or compromise thereof. The Company also hereby waives any
rights and/or defenses the Company may have under any anti-deficiency laws or
other laws limiting, qualifying or discharging the Secured Obligations and/or
the remedies of the Agent and/or the Secured Parties against the Company. No
delay or omission on the part of the Agent and/or the Secured Parties in
exercising any right hereunder shall operate as a waiver of such right or of any
other right hereunder. Any waiver of any such right on any one occasion shall
not be construed as a bar to or waiver of any such right on any such future
occasion. The Company further waives any right it may have under the
constitution of The Commonwealth of Massachusetts, the States of California and
Delaware and under the constitution of any other state in which any of the
Collateral may be located, or under the Constitution of the United States of
America, to notice (other than any requirement of notice provided herein) or to
a judicial hearing prior to the exercise of any right or remedy provided by this
Agreement to the Agent and/or the Secured Parties and waives its rights, if any,
to set aside or invalidate any sale duly consummated in accordance with the
foregoing provisions hereof on the grounds (if such be the case) that the sale
was consummated without a prior judicial hearing. The Company's waivers under
this section have been made voluntarily, intelligently and knowingly and after
the Company has been apprised and counseled by its attorneys as to the nature
thereof and its possible alternative rights. Neither the Agent nor the Secured
Parties shall be required to marshal any present or future collateral security
(including but not limited to the Collateral) for, or other assurances of
payment of, the Secured Obligations or any of them or to resort to such
collateral security or other assurances of payment in any particular order, and
all of the Agent's and the Secured Parties rights hereunder and in respect of
such collateral security and other assurances of payment shall be cumulative and
in addition to all other rights, however existing or arising. To the extent that
it lawfully may, the Company hereby agrees that it will not invoke any law
relating to the marshaling of collateral which might cause delay in or impede
the enforcement of the rights of the Agent and/or the Secured Parties under this
Agreement or under any other instrument creating or evidencing any of the
Secured Obligations or under which any of the Secured Obligations is outstanding
or by which any of the Obligations is secured or payment thereof is otherwise
assured, and, to the extent that it lawfully may, the Company hereby irrevocably
waives the benefits of all such laws.
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Section 13. Termination; Assignment, etc. Subject to Section 14, this
Agreement and the security interest in the Collateral created hereby shall
terminate when all of the Secured Obligations have been indefeasibly paid in
full (provided that the Secured Parties are no longer obligated to make Loans
under the Loan Agreement). No waiver by the Agent and/or the Secured Parties or
by any other holder of Secured Obligations of any default shall be effective
unless in writing nor operate as a waiver of any other default or of the same
default on a future occasion. In the event of a sale or assignment by any
Secured Party of all or any of the Secured Obligations held by it, the Secured
Party may assign or transfer its rights and interests under this Agreement in
whole or in part to the purchaser or purchasers of such Secured Obligations,
whereupon such purchaser or purchasers shall become vested with all of the
powers and rights of the Secured Party hereunder, and the Secured Party shall
thereafter be forever released and fully discharged from any liability or
responsibility hereunder arising from and after the effective time of such
assignment or transfer with respect to the rights and interests so assigned.
Section 14. Reinstatement. Notwithstanding the provisions of Section 13,
this Agreement shall continue to be effective or be reinstated, as the case may
be, if at any time any amount received by any Secured Party in respect of the
Collateral is rescinded or must otherwise be restored or returned by the Secured
Party upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Company or any Affiliate of the Company or otherwise or
upon the appointment of any intervenor or conservator of, or trustee or similar
official for, the Company or any Affiliate of the Company or any substantial
part of its or their properties, or otherwise, all as though such payments had
not been made.
Section 15. Governmental and Other Third Party Approvals, etc. Upon the
occurrence of an Event of Default and the exercise by the Agent and/or the
Secured Parties of (or decision by the Agent and/or the Secured Parties to
exercise) any power, right, privilege or remedy pursuant to this Agreement which
requires any consent, approval, registration, qualification or authorization of
any governmental or regulatory authority or instrumentality, or any other third
party (including but not limited to rating agencies and third parties to the
Eligible Securitization Transaction Documents) the Company will execute and
deliver, or will cause the execution and delivery of, all applications,
certificates, instruments and other documents and papers that may be required
for such governmental, regulatory or other third party consent, approval,
registration, qualification or authorization. In the event the Company fails to
take any such action, the Company hereby irrevocably authorizes and appoints the
Agent to execute and deliver such documents in its stead,
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with full power of substitution, as the Company's attorney-in-fact.
Section 16. Notices. Except as otherwise provided herein, notice to the
Company or to the Agent or the Secured Parties shall be deemed to have been
sufficiently given or served for all purposes hereof if given to the parties and
in the manner specified in the Loan Agreement.
Section 17. Agency. The terms "Secured Party" or "Secured Parties" as used
herein shall be deemed to include any and all lenders now or hereafter party to
the Loan Agreement as a "Lender", and any other holder of any Secured
Obligation, and shall also be deemed to include the Agent acting on behalf of
all or any one or more of the Secured Parties in accordance with the Agency
provisions of the Loan Agreement. The Company shall not be a third party
beneficiary of such provisions. The Secured Parties acknowledge that the
security interest in the Collateral granted hereby secures the Secured
Obligations owing to the Agent and to each Secured Party. State Street Bank and
Trust Company may resign or be removed as Agent hereunder, and may be replaced
as Agent hereunder, in the same manner as is prescribed for resignation, removal
and replacement of the Agent in the Loan Agreement, and any successor Agent
shall succeed to all of the Agent's rights hereunder with respect to the
Collateral. The term "Agent" as used herein shall be deemed to include any such
other party acting as agent for the Secured Parties hereunder.
The Agent shall not be liable to any Secured Party for any error of
judgment or mistake of fact or for any acts of omission or commission, unless
the same are caused by the Agent's willful misconduct or gross negligence. The
Agent may act in reliance upon all instruments, documents or signatures believed
by it to be genuine and may assume that any person purporting to act or give
notices, writings, advice or instructions in connection with this Agreement is
duly authorized by the appropriate party so to do. The Agent will be reimbursed
or properly indemnified by each Secured Party in the event the Agent is
requested by the Secured Parties to take or omit to take any action with respect
to the Collateral (any such reimbursement or indemnification to be on the same
basis as set forth in the Loan Agreement). The Agent shall have the right to
retain counsel to advise it as to any action or decision with respect to the
Collateral and shall be reimbursed by the Secured Parties for the cost of the
same (to the extent the Agent is not reimbursed by the Company) prior to
distributing any of the Collateral or any proceeds thereof and the cost of such
reimbursement of the Agent shall constitute part of the Secured Obligations.
The provisions of this Section 17 shall apply to all other Security
Documents in which State Street Bank and Trust Company is serving as Agent for
the Secured Parties, and in which no specific agency
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provision is included, in the same manner as this Section 17 applies to this
Security Agreement.
Section 18. Miscellaneous. This Agreement shall inure to the benefit of and
be binding upon the Agent, the Secured Parties and the Company and their
respective successors and assigns (provided that the Company may not assign its
rights and obligations hereunder without the prior consent of the Secured
Parties), and the term "Lender" shall be deemed to include any other holder or
holders of any of the Secured Obligations. In case any provision of this
Agreement shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby. References in this Agreement to the "Secured Parties" are
references to the Secured Parties severally, jointly and jointly and severally.
The section headings in this Agreement are for convenience of reference only and
shall not be considered in construing this Agreement. This Agreement may be
executed in any number of counterparts and by the different parties hereto on
separate counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
Section 19. Governing Law; Jurisdiction; Waiver of Jury Trial. This
Agreement shall be governed by the internal laws of The Commonwealth of
Massachusetts (without reference to conflicts of law principles). The Company,
to the extent that it may lawfully do so, hereby consents to service of process,
and to be sued, in The Commonwealth of Massachusetts and consents to the
jurisdiction of the courts of The Commonwealth of Massachusetts and the United
States District Court for the District of Massachusetts, as well as to the
jurisdiction of all courts to which an appeal may be taken from such courts, for
the purpose of any suit, action or other proceeding arising out of this
Agreement or any of its obligations hereunder or with respect to the
transactions contemplated hereby, and expressly waives any and all objections it
may have as to venue in any such courts. The Company further agrees that a
summons and complaint commencing an action or proceeding in any of such courts
shall be properly served and shall confer personal jurisdiction if served
personally or by certified mail to it at its address set forth above or as
otherwise provided under the laws of The Commonwealth of Massachusetts. The
Company irrevocably waives all right to a trial by jury in any suit, action or
other proceeding instituted by or against the Company in respect of its
obligations hereunder or the transactions contemplated hereby.
Section 20. Indemnification. The Company shall indemnify, defend and hold
the Secured Parties and the Agent harmless of and from any claim brought or
threatened against the Secured Parties and/or the Agent by the Company, any
guarantor or endorser of the Secured Obligations, or any other Person (as well
as from
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reasonable attorneys' fees and expenses in connection therewith) in accordance
with the Loan Agreement.
Section 21. Specific Performance. The Company stipulates that the remedies
of the Agent and the Secured Parties at law, in the event of any demand
(following notice to the extent expressly provided herein), or Event of Default
by the Company in the performance of or compliance with any of the terms and
provisions of this Agreement on its part to be observed or performed, are not
and will not be adequate, and that such terms may be specifically enforced by a
decree for the specific performance of any agreement or provision contained
herein or by an injunction against a violation of any of the terms of provisions
hereof or otherwise.
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IN WITNESS WHEREOF, the parties have executed this Agreement as a sealed
instrument as of the date first above written.
ONYX ACCEPTANCE CORPORATION
By:_______________________________
(Title)
STATE STREET BANK AND TRUST COMPANY,
for Itself and as Agent
By:_______________________________
(Title)
BANKBOSTON
By:_______________________________________
(Title)
THE TRAVELERS INSURANCE COMPANY
By:_______________________________________
(Title)
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Schedule I to Pledge
and Security Agreement
Places of Business and Locations of Collateral
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Schedule II to Pledge
and Security Agreement
Pledged Stock
OWNER AND ADDRESS ISSUER/DESCRIPTION NO. OF SHARES CERTIFICATE NO
----------------- ------------------ ------------- --------------
Onyx Acceptance Corporation Xxxxx/Common 1,000 -
0000 Xxxxxx Xxxxxx Xxxxx
0xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Pledged Notes
MAKER PAYEE DATE PRINCIPAL AMOUNT
----- ----- ---- ----------------
Pledged Certificates
OWNER AND ADDRESS DESCRIPTION CERTIFICATE NO
Onyx Acceptance Corporation
0000 Xxxxxx Xxxxxx Xxxxx
0xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
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