EXHIBIT 10.117
SECOND AMENDED AND RESTATED
TRIPLE-A ONE SECURITY AGREEMENT
SECOND AMENDED AND RESTATED TRIPLE-A ONE SECURITY AGREEMENT (the
"Triple-A One Security Agreement" or this "Agreement"), dated as of November 30,
2001, among ONYX ACCEPTANCE FINANCIAL CORPORATION, a Delaware corporation
("Xxxxx"), ONYX ACCEPTANCE CORPORATION, as servicer (the "Servicer"), TRIPLE-A
ONE FUNDING CORPORATION, a Delaware corporation ("Triple-A One"), and CAPITAL
MARKETS ASSURANCE CORPORATION, a New York stock insurance company as collateral
agent on behalf of and for the benefit of the holders of the Obligations (in
such capacity, the "Collateral Agent").
W I T N E S S E T H :
WHEREAS, Triple-A One issues CP Notes or borrows from the Banks under the
Liquidity Agreement and with the proceeds thereof makes Triple-A One Loans to
Xxxxx for the purpose of purchasing Contracts;
WHEREAS, the parties hereto (other than the Servicer) have entered into
the Amended and Restated Triple-A One Security Agreement dated as of September
4, 1998 (as amended to the date hereof, the "Amended and Restated Triple-A One
Security Agreement"); and
WHEREAS, the parties hereto wish to further amend and restate the Amended
and Restated Triple-A One Security Agreement as hereinafter provided.
NOW, THEREFORE, in consideration of the premises and to induce Triple-A
One to make its Triple-A One Loans to Xxxxx under the Triple-A One Credit
Agreement, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms.
(a) As used in this Triple-A One Security Agreement or any
certificate or other document made or delivered pursuant hereto, the capitalized
terms used herein and therein shall, unless otherwise defined herein, have the
meanings assigned to them in the Second Amended and Restated Definitions List
dated as of the date hereof that refers to this Triple-A One Security Agreement,
which is incorporated herein by reference (the "Definitions List").
(b) As used herein and in any certificate or other document made
or delivered pursuant hereto, accounting terms not defined in the Definitions
List and accounting terms partly defined in the Definitions List to the extent
not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Triple-A One Security Agreement shall refer to
this Triple-A One Security
Agreement as a whole and not to any particular provision of this Triple-A One
Security Agreement, and paragraph references are to this Triple-A One Security
Agreement unless otherwise specified.
(d) Capitalized terms used herein shall be equally applicable to
both the singular and plural forms of such terms.
(e) The following terms that are defined in the UCC are used
herein as so defined: Accounts, Chattel Paper, Deposit Accounts, Documents,
Equipment, Supporting Obligations, General Intangibles, Instruments, Inventory,
Proceeds and Tangible Chattel Paper.
SECTION 2. Grant of Security Interest. As collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations, Xxxxx hereby
assigns, pledges, grants, conveys, transfers, delivers and sets over to the
Collateral Agent for its benefit and for the ratable benefit of the holders of
the Obligations a security interest in all Xxxxx'x right, title and interest in,
to and under the following, whether now owned or hereafter acquired, in each
case (other than clause (i)) only as related to the Purchased Contracts
(collectively, the "Collateral"). For further clarification, all Collateral as
heretofore described in this Section 2 (other than clause (i)) shall relate to
and be in respect of Purchased Contracts as defined herein, subject to any and
all provisos, as applicable, expressly included in the definition thereof.
(a) all Chattel Paper, including, without limitation, the
Purchased Contracts and other contracts and Supporting Obligations related to
the Purchased Contracts (as the same may be amended, modified, supplemented,
restated or replaced from time to time) and amounts paid or payable with respect
thereto;
(b) all Files (including all Dealer Assignments) and Contract
Lists, and all right, title and interest of Xxxxx in and to the documents,
agreements and instruments included in the Files, including, without limitation,
rights of recourse of Xxxxx against Vehicle Dealers;
(c) all Insurance Policies and all rights of Xxxxx in all
Insurance Policies;
(d) all security interests, Liens, guaranties, mortgages and other
encumbrances in favor of or assigned or transferred to Xxxxx in and to Purchased
Contracts and Vehicles, and all accessions thereto and replacements thereof, and
in any other property in which a security interest is assigned or transferred to
Xxxxx;
(e) all of Xxxxx'x Equipment, Inventory, General Intangibles,
Documents, Instruments, Accounts, general ledger sheets, files, records, books
of account, invoices, bills, certificates or documents of ownership, bills of
sale, business papers, correspondence, tapes, cards, computer tapes and all
other data and data storage systems (whether in the possession of Xxxxx or any
other Person) relating to any of the foregoing;
(f) all Deposit Accounts, moneys, deposits, funds, accounts and
instruments relating to the foregoing;
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(g) each Lock-Box, the funds on deposit in the Clearing Account
pursuant to Section 5(d) hereof, the Collection Account (including, without
limitation, all funds at any time on deposit therein and all Permitted
Investments in which such funds may at any time be invested);
(h) the Sale Agreement and all other Operative Documents to which
Xxxxx is a party, including, without limitation, all rights of Xxxxx to amounts
due or to become due under or in connection with, and to enforce, such
agreements;
(i) any Hedge Agreement and any guarantees or other credit
enhancement associated therewith; and
(j) to the extent not otherwise included, all Proceeds and
products of any and all of the foregoing.
SECTION 3. Bank Accounts; Possession of Contracts and Files.
(a) Subject to the Collection Account Agreement and the Lock-Box
Agreements, the Collateral Agent shall have sole dominion and control over the
Bank Accounts, and no other Person shall have any right of withdrawal therefrom.
(b) The Collateral Agent shall have the right to hold the
Purchased Contracts. The Collateral Agent, may in its sole discretion, designate
the Servicer or any other Person, as custodian and bailee of the Collateral
Agent for the benefit of the holders of the Obligations, to hold the Purchased
Contracts. The Collateral Agent hereby designates the Servicer as custodian. By
the execution hereof, the Servicer acknowledges and agrees that it is holding
the Purchased Contracts and related Files solely on behalf and for the benefit
of the Collateral Agent. If at any time the Servicer shall not be acting as
custodian for the Purchased Contracts, to the extent required to service the
Purchased Contracts in accordance with the Sale Agreement, the Purchased
Contracts and Files may be released to the Servicer, to be held by the Servicer
as custodian and bailee of the Collateral Agent during the Servicer's possession
thereof and the Servicer shall promptly return all such Purchased Contracts and
Files to such other Person as the Collateral Agent shall direct when possession
thereof by the Servicer is no longer required for servicing such Purchased
Contracts in accordance with the Sale Agreement. In addition, the Servicer shall
return the Purchased Contracts to the Collateral Agent or any such other Person
as the Collateral Agent shall direct at any time upon receipt of a request from
the Collateral Agent to such effect.
SECTION 4. Daily Procedures and Distributions of Collections Prior to the
Commitment Termination Date. On each Business Day prior to the Commitment
Termination Date:
(a) Deposits.
(i) the Servicer and Xxxxx shall transfer or cause to be
transferred to the Clearing Account (A) all Collections received on the
previous Business Day in the Lock-Boxes and (B) all Collections received
by the Servicer or Xxxxx in any other manner on the previous Business
Day;
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(ii) the Servicer shall transfer or cause to be transferred
to the Collection Account all Collections received in the Clearing
Account within one Business Day after such Collections are received in
the Clearing Account;
(iii) if a payment of the principal of the Triple-A One
Loans is required on such Business Day pursuant to Section 2.4 of the
Triple-A One Credit Agreement, Xxxxx shall deposit the amount required
into the Collection Account;
(iv) the Servicer shall transfer from the Collection
Account to a sub-account of the Collection Account (the "Accrued Costs
and Interest Sub-Account") on such Business Day an amount equal to the
sum of the Accrued Facilities Costs Amount and the Accrued Interest
Amount for such day; and
(v) Xxxxx shall deposit all amounts received in respect of
any Hedge Agreement into the Collection Account except, so long as no
Wind-Down Event or Unmatured Wind-Down Event shall have occurred and be
continuing, for amounts received prior to the Hedge Effective Date.
Until the transfers set forth in Section 4(a)(i), (ii), (iii) and (v) are made,
Xxxxx and the Servicer shall hold in trust for the benefit of the Collateral
Agent for the benefit of the holders of the Obligations all such amounts and
Collections and shall not commingle such amounts and Collections with other
funds of the Servicer or Xxxxx other than funds of the Servicer or Xxxxx in the
Lock-Boxes and the Clearing Account.
(b) Distributions. The Servicer shall make distributions from
amounts on deposit in the Collection Account for the following purposes in the
following order of priority, in each case to the extent such amounts are due and
payable on such Business Day and to the Person entitled thereto:
(i) an amount necessary to cure any Borrowing Base
Deficiency shall be transferred to the Triple-A One Account and applied
to reduce the principal of the Triple-A One Note;
(ii) on each Determination Date if Onyx Acceptance
Corporation or an Affiliate thereof is not the Servicer, to the Servicer
an amount equal to the Servicing Fee (up to an amount calculated on the
basis of a Servicing Fee Percentage equal to 1%);
(iii) on each Determination Date to the counterparty of
each Hedge Agreement (and pro rata on the basis of amounts owed if there
exists a deficiency in distributions) on or after the Hedge Effective
Date, the scheduled net fixed rate payment payable by Xxxxx under each
such Hedge Agreement;
(iv) an amount equal to interest on the Triple-A One Loans
(from the Accrued Costs and Interest Sub-Account) and on the Seller Note,
pro rata according to the respective amounts of interest due on the
Triple-A One Loans and Seller Note;
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(v) to the Surety Provider, Program Manager and Triple-A
One, on each Determination Date, from the Accrued Costs and Interest
Sub-Account, an amount equal to the Facilities Costs;
(vi) an amount equal to the principal of and unpaid
interest on the Triple-A One Loans prepaid or required to be prepaid on
such Business Day pursuant to subsection 2.4(a) or (b) of the Triple-A
One Credit Agreement;
(vii) to the extent not paid by Xxxxx, (A) to the
Collateral Agent, all amounts payable by Xxxxx under Section 8(b) of this
Agreement and (B) to Triple-A One, the Program Manager, the Surety
Provider and the Collateral Agent, all amounts payable by Xxxxx under
Section 10.5 of the Triple-A One Credit Agreement and Section 23(b)(iv)
of this Agreement;
(viii) to the Servicer, on each Determination Date, either
(A) an amount equal to the Servicing Fee (if Onyx Acceptance Corporation
or an Affiliate thereof is the Servicer) or (B) an amount equal to the
portion of the Servicing Fee not paid pursuant to clause (ii) above (if
Onyx Acceptance Corporation or an Affiliate thereof is not the Servicer);
(ix) to the Surety Provider, an amount equal to interest on
all unreimbursed drawings under the Surety Bonds;
(x) to the Surety Provider, an amount equal to all
unreimbursed drawings under the Surety Bonds and all other amounts owing
to the Surety Provider under the Insurance Agreement, Fee Letter
Agreement and the other Operative Documents (including but not limited to
all unreimbursed Surety Provider Defense Costs);
(xi) an amount equal to the sum of the Xxxxx Expenses and
all other Obligations;
(xii) to the Seller, for the purchase of Contracts pursuant
to the Sale Agreement;
(xiii) to the Seller, subject to Article V of the Sale
Agreement, on each Determination Date, an amount equal to interest and
principal due on the Subordinated Note; and
(xiv) to Xxxxx, on each Determination Date, an amount equal
to all remaining amounts in the Collection Account for other duly
authorized corporate purposes of Xxxxx.
provided, however, that, on any Business Day, no distribution shall be made
pursuant to (xi) or (xii) above if the conditions set forth in Section 3.2 of
the Sale Agreement have not been satisfied.
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(c) Disbursement Sub-Account. Amounts on deposit in the
Disbursement Sub-Account shall be released in such amounts and at such times as
are set forth in Section 4.3 of the Triple-A One Credit Agreement.
(d) Permitted Investments. Amounts on deposit in the Collection
Account, including all sub-accounts, may be invested in Permitted Investments,
provided that such Permitted Investments shall be selected so that the maturity
dates thereof correspond to the dates on which such amounts are required to be
distributed in accordance with the provisions of Section 4(b). Income and gain
from such investments shall be taxable to Xxxxx and shall be retained in the
Collection Account.
SECTION 5. Daily Procedures and Distributions of Collections on each
Liquidation Day. On each Liquidation Day:
(a) Deposits.
(i) the Servicer and Xxxxx shall transfer or cause to be
transferred to the Clearing Account (A) all Collections received on the
previous Business Day in the Lock-Boxes and (B) all Collections received
by the Servicer or Xxxxx in any other manner on the previous Business
Day;
(ii) the Servicer shall transfer or cause to be transferred
to the Collection Account all Collections received in the Clearing
Account within one Business Day after such Collections are received in
the Clearing Account; and
(iii) Xxxxx shall deposit all amounts received by Xxxxx in
respect of any Hedge Agreement into the Collection Account except, so
long as no Wind-Down Event or Unmatured Wind-Down Event shall have
occurred and be continuing, for amounts received prior to the Hedge
Effective Date.
Until such transfers are made, Xxxxx and the Servicer shall hold in trust for
the benefit of the Collateral Agent for the benefit of the holders of the
Obligations all such amounts and Collections and shall not commingle such
amounts and Collections with other funds of the Servicer or Xxxxx other than
funds in the Lock-Boxes and the Clearing Account.
(b) Distributions. The Servicer shall make distributions from
amounts on deposit in the Collection Account for the following purposes in the
following order of priority, in each case to the extent such amounts are due and
payable on such day and to the Person entitled thereto:
first, on each Determination Date to the Servicer if Onyx
Acceptance Corporation or an Affiliate thereof is not the
Servicer, an amount equal to the Servicing Fee (up to an amount
calculated on the basis of a Servicing Fee Percentage equaling
1%);
second, on each Determination Date to the counterparty of
each Hedge Agreement (and pro rata on the basis of amounts owed if
there exists a deficiency in distributions), the scheduled net
fixed rate payment payable by Xxxxx under each such Hedge
Agreement;
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third, an amount equal to interest on the Triple-A One
Loans and the Seller Note, pro rata according to the respective
amounts of interest due on the Triple-A One Loans and Seller Note;
fourth, on each Determination Date to the Surety Provider,
Program Manager and Triple-A One, an amount equal to Facilities
Costs;
fifth, an amount equal to the principal of and unpaid
interest on the Triple-A One Loans required to be prepaid pursuant
to subsection 2.4(c) of the Triple-A One Credit Agreement;
sixth, to the extent not paid by Xxxxx, (A) to the
Collateral Agent, all amounts payable by Xxxxx under Section 8(b)
of this Agreement and (B) to Triple-A One, the Program Manager,
the Surety Provider and the Collateral Agent, all amounts payable
by Xxxxx under Section 10.5 of the Triple-A One Credit Agreement
and Section 23(b)(iv) of this Agreement;
seventh, to the Surety Provider, an amount equal to
interest on all unreimbursed drawings under the Surety Bonds;
eighth, to the Surety Provider an amount equal to all
unreimbursed drawings under the Surety Bonds and all other amounts
owing to the Surety Provider under the Insurance Agreement, Fee
Letter Agreement and the other Operative Documents (including but
not limited to all unreimbursed Surety Provider Defense Costs);
ninth, an amount equal to the principal of the Seller Note;
tenth, an amount equal to the sum of all Xxxxx Expenses and
all other Obligations;
eleventh, to the Seller, subject to Article V of the Sale
Agreement, on each Determination Date, an amount equal to the
principal of and interest due on the Subordinated Note;
twelfth, to the Servicer, on each Determination Date,
either (A) an amount equal to the Servicing Fee (if Onyx
Acceptance Corporation or an Affiliate thereof is the Servicer) or
(B) an amount equal to the portion of the Servicing Fee not
otherwise paid pursuant to clause first above (if Onyx Acceptance
Corporation or an Affiliate thereof is not the Servicer); and
thirteenth, on each Determination Date, all remaining
amounts to Xxxxx, or to such Persons and in such amounts as a
court of competent jurisdiction may direct.
(c) Permitted Investments. Amounts on deposit in the Collection
Account, including all sub-accounts, may be invested in Permitted Investments,
provided that such
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Permitted Investments shall be selected so that the maturity dates thereof
correspond to the dates on which such amounts are required to be distributed in
accordance with the provisions of Section 5(b). Income and gain from such
investments shall be taxable to Xxxxx and shall be retained in the Collection
Account.
(d) Clearing Account. The Clearing Account is a general clearing
account held by and in the name of Xxxxx into which Collections as well as
collections on other assets are deposited. The parties hereto agree and
acknowledge that (i) any Collections transferred to the Clearing Account prior
to the transfer of such Collections to the Collection Account will be subject at
all times to the security interest of the Collateral Agent created hereunder and
(ii) that the balance in the Clearing Account may not at any time fall below the
amount deposited representing Collections which have not been transferred to the
Collection Account. Xxxxx hereby represents, warrants, covenants and agrees that
it shall not move the Clearing Account set forth in Exhibit E to the Sale
Agreement without (a) providing for a successor Clearing Account, (b) notifying
the Collateral Agent 10 days prior to such change and (c) causing such new
Clearing Account to operate in the manner described herein.
(e) Optional Deposits by Surety Provider. The Surety Provider
shall at any time, and from time to time, have the option (but shall not be
required, except in accordance with the terms of the Note Bond) to deliver
amounts to the Collateral Agent for deposit into the Collection Account to
provide funds in respect of the payment of fees or expenses of any provider of
services to Xxxxx or to any other Person or in respect of any amounts payable
pursuant to Section 4(b) or 5(b) hereof. Any payment under this Section 5(e)
shall be reimbursable pursuant to Section 4(b)(ix) and (x) or clause seventh and
eighth of Section 5(b), as the case may be.
SECTION 6. Rights of Collateral Agent; Limitations on Collateral Agent's
Obligations.
(a) Collateral Agent Not Liable under Contracts. Neither the
Collateral Agent nor any holder of the Obligations shall have any obligation or
liability under any Contract by reason of or arising out of this Triple-A One
Security Agreement or the receipt by the Collateral Agent of any payment
relating to such Contract, nor shall the Collateral Agent be obligated in any
manner to perform any such obligations under or pursuant to any Contract, to
make any payment, to make any inquiry as to the nature or the sufficiency of any
payment received by it or as to the sufficiency of any performance by any party
under any Contract, 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 it or to which it may be entitled at any time or times.
(b) Notice to Obligors. Following a Wind-Down Event or a Servicer
Termination Event, upon the request of the Collateral Agent, Xxxxx shall notify
the Obligors that the Contracts have been assigned to the Collateral Agent and
that payments in respect thereof shall be made directly to the Collateral Agent.
The Collateral Agent may in its own name or in the name of others communicate
with the Obligors to verify with them to its satisfaction the existence, amount
and terms of any Purchased Contracts.
(c) Analysis of Contracts. The Collateral Agent shall have the
right to make test verifications of the Purchased Contracts in any manner and
through any medium that it considers
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advisable, and Xxxxx shall furnish all such assistance and information as the
Collateral Agent may require in connection therewith. In addition, at any time
and from time to time, upon the Collateral Agent's request and at the expense of
Xxxxx, Xxxxx shall cause independent public accountants or others satisfactory
to the Collateral Agent to furnish to the Collateral Agent reports showing
reconciliations, aging and test verifications of, and trial balances for, the
Purchased Contracts.
(d) Proceeds. Subject to the provisions of Section 4(a) and 5(a),
any Proceeds, when collected by Xxxxx or the Servicer, shall be forthwith
deposited by Xxxxx or the Servicer (as the case may be) in the exact form
received, duly endorsed to the Collateral Agent if required, in the Collection
Account, subject to withdrawal by the Collateral Agent only, and, until so
turned over, shall be held by Xxxxx or the Servicer (as the case may be) in
trust for the Collateral Agent. Such Proceeds shall continue to be collateral
security for all of the Obligations and shall not constitute payment thereof
until applied as hereinafter provided. The Servicer shall apply all or any part
of the funds on deposit in the Collection Account in accordance with Sections 4
and 5 hereof. Xxxxx shall deliver or cause to be delivered to the Collateral
Agent or such other Person as then may be acting as custodian for the Purchased
Contracts in accordance with Section 3(b) hereof all Files relating to the
Purchased Contracts, including original and other documents evidencing, and
relating to, the transactions which created the Purchased Contracts, including,
without limitation, all original orders, invoices, receipts and similar
documents.
(e) Document Delivery. In connection with the security interest
granted herein, on or prior to each date on which a Triple-A One Loan is
disbursed from the Disbursement Sub-Account, Xxxxx shall xxxx "81" as the
company code on the computer tape with reference to the Purchased Contract and
File, which xxxx shall designate that such Contract is owned by Xxxxx and
pledged to Triple-A One pursuant to this Program.
SECTION 7. Representations and Warranties. Xxxxx hereby represents and
warrants that:
(a) Title; No Other Liens. Except for the Lien granted to the
Collateral Agent pursuant to this Triple-A One Security Agreement and the other
Liens permitted pursuant to any of the other Operative Documents, Xxxxx owns
each item of the Collateral free and clear of any and all Liens or claims of
others. No security agreement, financing statement or other public notice with
respect to all or any part of the Collateral is on file or of record in any
public office, except such as may have been filed in favor of the Collateral
Agent pursuant to this Triple-A One Security Agreement or as may be permitted
pursuant to the Triple-A One Credit Agreement.
(b) Perfected First Priority Liens. The Liens granted pursuant to
this Triple-A One Security Agreement constitute perfected first priority Liens
on the Collateral in favor of the Collateral Agent and are enforceable as such
against all creditors of and purchasers from Xxxxx.
(c) Chief Executive Office; Incorporation. Xxxxx'x chief executive
office and chief place of business is located at 00000 Xxxxx Xxxxxx Xxxxx, Xxxxx
000, Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000 and its state of incorporation is
Delaware.
(d) Locations. All Collateral is located at the addresses listed
on Schedule 7(d) hereto.
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(e) Other Representations. The representations and warranties set
forth in Schedule 7(e) hereto are true and correct.
SECTION 8. Covenants. Xxxxx covenants and agrees with the Collateral
Agent that until the Obligations are paid in full and the Triple-A One
Commitment is terminated:
(a) Further Documentation; Pledge of Instruments. At any time and
from time to time, upon the written request of the Collateral Agent, and at the
sole expense of Xxxxx, Xxxxx will promptly and duly execute and deliver such
further instruments and documents and take such further action as the Collateral
Agent may request for the purpose of obtaining or preserving the full benefits
of this Triple-A One Security Agreement and of the rights and powers herein
granted, including, without limitation, the filing of any financing or
continuation statements under the UCC with respect to the Liens created hereby,
including all steps necessary to maintain perfection of the security interest of
Xxxxx in each Vehicle. Xxxxx also hereby authorizes the Collateral Agent to file
any such financing or continuation statement without the signature of Xxxxx to
the extent permitted by applicable law. If any amount payable under or in
connection with any of the Collateral shall be or become evidenced by any
additional promissory note, other Instrument or Chattel Paper, such note,
Instrument or Chattel Paper shall be immediately delivered to the Collateral
Agent or such other person as the Collateral Agent in its sole discretion may
designate, duly endorsed in a manner satisfactory to the Collateral Agent, to be
held as Collateral pursuant to this Triple-A One Security Agreement.
(b) Indemnification. Xxxxx will pay, and save the Collateral Agent
harmless from, any and all liabilities, costs and expenses (including, without
limitation, legal fees and expenses) (i) with respect to, or resulting from, any
delay in paying, any and all excise, sales, transfer or other taxes (excluding
income and franchise taxes) which may be payable or determined to be payable
with respect to any of the Collateral, (ii) with respect to, or resulting from,
any delay in complying with any Requirement of Law applicable to any of the
Collateral or (iii) in connection with any of the transactions contemplated by
this Triple-A One Security Agreement. In any suit, proceeding or action brought
by the Collateral Agent in respect of any Purchased Contract for any sum owing
thereunder, or to enforce any provisions of any Purchased Contract, Xxxxx will
save, indemnify and keep the Collateral Agent harmless from and against all
expense, loss or damage suffered by reason of any defense, setoff, counterclaim,
recoupment or reduction or liability whatsoever of the account debtor or obligor
thereunder, arising out of a breach by Xxxxx of any obligation thereunder or
arising out of any other agreement, indebtedness or liability at any time owing
to or in favor of such account debtor or obligor or its successors from Xxxxx.
Notwithstanding the foregoing, the parties hereto hereby agree that under no
circumstances shall Xxxxx be liable for, or required to pay any amount pursuant
to this paragraph (b), resulting from gross negligence or willful misconduct on
the part of the Collateral Agent.
(c) Maintenance of Records. Xxxxx will keep and maintain, or cause
to be maintained by the Servicer, at its own cost and expense satisfactory and
complete records of the Collateral, including, without limitation, a record of
all payments received and all credits granted with respect to the Purchased
Contracts. Xxxxx will xxxx its books and records pertaining to the Collateral to
evidence this Triple-A One Security Agreement and the security interests granted
hereby. At any time upon the request of the Collateral Agent, Xxxxx shall,
during normal
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business hours, turn over any books and records to the Collateral Agent or to
its representatives that the Collateral Agent shall so request.
(d) Right of Inspection. The Collateral Agent shall, upon
reasonable prior notice and during normal business hours, have access to all the
books, correspondence and records of Xxxxx and the Servicer and to all Purchased
Contracts and Files held by Xxxxx or the Servicer or the Servicer's Agent, and
the Collateral Agent or its representatives may examine the same, take extracts
therefrom and make photocopies thereof, and Xxxxx and the Servicer agree to
render to the Collateral Agent, at Xxxxx'x or the Servicer's (as the case may
be) cost and expense, such clerical and other assistance as may be reasonably
requested with regard thereto.
(e) Compliance with Laws, etc. Xxxxx will comply with all
Requirements of Law applicable to the Collateral or any part thereof or to the
operation of Xxxxx'x business; provided, however, that Xxxxx may contest any
Requirement of Law in any reasonable manner which shall not, in the sole opinion
of the Collateral Agent, adversely affect the Collateral Agent's rights or the
priority of its Liens on the Collateral.
(f) Compliance with Terms of Contracts, etc. Xxxxx will perform
and comply with all its obligations under the Purchased Contracts and all its
other Contractual Obligations relating to the Collateral.
(g) Payment of Obligations. Xxxxx will pay promptly when due all
taxes, assessments and governmental charges or levies imposed upon the
Collateral or in respect of its income or profits therefrom, as well as all
claims of any kind (including, without limitation, claims for labor, materials
and supplies) against or with respect to the Collateral, except that no such
charge need be paid if (i) the validity thereof is being contested in good faith
by appropriate proceedings, (ii) such proceedings do not involve any danger of
the sale, forfeiture or loss of any of the Collateral or any interest therein
and (iii) such charge is adequately reserved against on Xxxxx'x books in
accordance with GAAP.
(h) Limitation on Liens on Collateral. Xxxxx will not create,
incur or permit to exist, will defend the Collateral against, and will take such
other action as is necessary to remove, any Lien or claim on or to the
Collateral, other than the Liens created hereby and other than as permitted
pursuant to the Triple-A One Credit Agreement, and will defend the right, title
and interest of the Collateral Agent in and to any of the Collateral against the
claims and demands of all Persons whomsoever.
(i) Limitations on Dispositions of Collateral. Xxxxx will not
sell, transfer, lease or otherwise dispose of any of the Collateral, or attempt,
offer or contract to do so, except as permitted by the Operative Documents.
(j) Limitations on Modifications, Waivers, Extensions of Contracts
and the Interest Rate Hedge Mechanisms. Xxxxx will not, and will not permit any
other Person to, (i) amend, modify, terminate or waive any provision of any
Purchased Contract in any manner which could have an adverse effect on the value
of such Purchased Contract as Collateral except in accordance with clause (k) of
this Section 8, (ii) fail to exercise promptly and diligently each and every
right which it may have under each Purchased Contract, (iii) fail to deliver to
the
11
Collateral Agent, upon the request of the Collateral Agent, a copy of each
demand, notice or document received by it relating in any way to any Purchased
Contract, (iv) fail to deliver to the Collateral Agent a copy of each demand,
notice or document sent to each Obligor, (v) act otherwise than in accordance
with the Credit and Collection Policy or (vi) amend, modify, terminate or waive
any provision of any Interest Rate Hedge Mechanism without the prior written
consent of the Surety Provider and the Collateral Agent.
(k) Limitations on Discounts, Compromises, Extensions of
Contracts. Other than pursuant to the Credit and Collection Policy, Xxxxx will
not, and will not permit any other Person to, grant any extension of the time of
payment of any of the Purchased Contracts, compromise, compound or settle the
same for less than the full amount thereof, release, wholly or partially, any
Person liable for the payment thereof, or allow any credit or discount
whatsoever thereon.
(l) Maintenance of Equipment. Xxxxx will maintain each item of
Equipment in good operating condition, ordinary wear and tear and immaterial
impairments of value and damage by the elements excepted, and will provide all
maintenance, service and repairs necessary for such purpose.
(m) Further Identification of Collateral. Xxxxx will furnish to
the Collateral Agent from time to time statements and schedules further
identifying and describing the Collateral and such other reports in connection
with the Collateral as the Collateral Agent may reasonably request, all in
reasonable detail.
(n) Notices. Xxxxx will advise the Collateral Agent promptly, in
detail, at its address set forth in the Triple-A One Credit Agreement, (i) of
any Lien (other than Liens created or permitted hereby) on, or claim asserted
against, any of the Collateral and (ii) of the occurrence of any other event
which could have a material adverse effect on the Collateral or on the Liens
created hereunder. Subject to Section 8(j) hereof, Xxxxx will promptly notify
the Collateral Agent, the Program Manager and the Surety Provider of any
proposed amendment to any Interest Rate Hedge Mechanism prior to its execution.
A copy of any notice delivered to or required to be sent by Finco under this
paragraph shall be sent by Finco to the holder of the Subordinated Note.
(o) Changes in Locations, Name, etc. Xxxxx will not, without
providing 30 days prior written notice to the Collateral Agent, the Surety
Provider, Triple-A One and the Program Manager (and, in the case of clause (iv),
without the prior written consent of the Collateral Agent), and without filing
any UCC financing statements necessary or desirable (in the opinion of Triple-A
One or the Program Manager) to maintain the perfection and priority of the
Collateral Agent's security interest in the Collateral, as provided for herein
(i) change the state of incorporation from that specified in Section 7(c) or
remove its books and records from such location, (ii) permit any Equipment that
it may acquire to be kept at a location other than that specified in Section
7(d), (iii) change its name, identity or corporate structure to such an extent
that any financing statement filed by the Collateral Agent in connection with
this Triple-A One Security Agreement would become misleading or (iv) change the
location where the Purchased Contracts and the Files are maintained.
SECTION 9. Collateral Agent's Appointment as Attorney-in-Fact.
12
(a) Powers. Xxxxx hereby irrevocably constitutes and appoints the
Collateral 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 place and stead of Xxxxx and in the name of Xxxxx or
in its own name, from time to time in the Collateral Agent's discretion, for the
purpose of carrying out the terms of this Triple-A One Security Agreement, to
take any and all lawful and appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of this Triple-A One Security Agreement, and, without limiting the
generality of the foregoing, Xxxxx hereby gives the Collateral Agent the power
and right, on behalf of Xxxxx, without notice to or assent by Xxxxx, to do the
following:
(i) upon the occurrence and during the continuance of any
Wind-Down Event, in the name of Xxxxx or its own name, or otherwise, to
take possession of and endorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under any
Account, Instrument, General Intangible or Contract and to file any claim
or to take any other action or proceeding in any court of law or equity
or otherwise deemed appropriate by the Collateral Agent for the purpose
of collecting any and all such moneys due under any Account, Instrument,
General Intangible or Contract whenever payable;
(ii) to pay or discharge taxes and Liens levied or placed
on or threatened against the Collateral; and
(iii) upon the occurrence and during the continuance of any
Wind-Down Event, (A) to direct any party liable for any payment under any
of the Collateral to make payment of any and all moneys due or to become
due thereunder directly to the Collateral Agent or as the Collateral
Agent shall direct and to notify the Lock-Box Banks to follow the
instructions of the Collateral Agent; (B) to ask or demand for, collect,
receive payment of and receipt for, any and all moneys, claims and other
amounts due or 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, verifications, notices and other documents in
connection with any of the Collateral; (D) to commence and prosecute any
suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral or any proceeds thereof
and to enforce any other right in respect of any Collateral; (E) to
defend any suit, action or proceeding brought against Xxxxx with respect
to any Collateral; (F) to settle, compromise or adjust any suit, action
or proceeding described in clause (E) above and, in connection therewith,
to give such discharges or releases as the Collateral Agent may deem
appropriate; (G) generally, to sell, transfer, pledge and make any
agreement with respect to or otherwise deal with any of the Collateral
pursuant to Section 11 hereof as fully and completely as though the
Collateral Agent were the absolute owner thereof for all purposes, and to
do, at the Collateral Agent's option and Xxxxx'x expense, at any time, or
from time to time, all lawful acts and things which the Collateral Agent
deems necessary to protect, preserve or realize upon the Collateral and
the Collateral Agent's Liens thereon and to effect the intent of this
Triple-A One Security Agreement, all as fully and effectively as Xxxxx
might do; (H) implement the Alternate Servicing Plan; and (I) compel the
transfer of
13
Xxxxx'x interest in all rights (by license, sublicense or otherwise) of
any computer software necessary to collect the Contracts.
Xxxxx hereby ratifies all that said attorneys shall lawfully do or cause to be
done by virtue hereof.
(b) Other Powers. Xxxxx also authorizes the Collateral Agent, at
any time and from time to time, to execute, in connection with the sale provided
for in Section 11 hereof, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral.
(c) No Duty on Collateral Agent's Part. The powers conferred on
the Collateral Agent hereunder are solely to protect the Collateral Agent's
interests in the Collateral and shall not impose any duty upon it to exercise
any such powers. The Collateral Agent shall be accountable only for amounts that
it actually receives as a result of the exercise of such powers, and neither it
nor any of its officers, directors, employees or agents shall be responsible to
Xxxxx for any act or failure to act hereunder, except for its own gross
negligence or willful misconduct.
SECTION 10. Performance by Collateral Agent of Xxxxx'x Obligations. If
Xxxxx fails to perform or comply with any of its agreements contained herein and
the Collateral Agent, as provided for by the terms of this Triple-A One Security
Agreement, shall itself perform or comply, or otherwise cause performance or
compliance, with such agreement, the expenses of the Collateral Agent incurred
in connection with such performance or compliance, together with interest
thereon until paid in full at a rate per annum equal to the Default Rate, shall
be payable by Xxxxx to the Collateral Agent on demand to the extent that funds
are available under Section 4(b) or 5(b) (as the case may be) and shall
constitute Obligations secured hereby.
SECTION 11. Remedies. If a Wind-Down Event shall occur and be continuing,
the Collateral Agent may exercise in addition to all other rights and remedies
granted to it in this Triple-A One Security Agreement and in any other
instrument or agreement securing, evidencing or relating to the Obligations, all
rights and remedies of a secured party under the UCC. Without limiting the
generality of the foregoing, the Collateral Agent, without demand of performance
or other demand, presentment, protest, advertisement or notice of any kind
(except the notice specified below of time and place of public or private sale)
to or upon Xxxxx or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, lease, assign, give an option or
options to purchase, or otherwise dispose of and deliver said Collateral or any
part thereof (or contract to do any of the foregoing), in one or more parcels at
public or private sale or sales, at any exchange, broker's board or office of
the Collateral Agent or elsewhere upon such terms and conditions as it may deem
advisable and at such prices as it may deem best, for cash or on credit or for
future delivery without assumption of any credit risk. The Collateral Agent
shall have the right upon any such public sale or sales, and, to the extent
permitted by law, upon any such private sale or sales, to purchase the whole or
any part of said Collateral so sold, free of any right or equity of redemption
in Xxxxx, which right or equity is hereby waived or released. Xxxxx further
agrees, at the Collateral Agent's request, to assemble the Collateral and the
Files and make them available to the Collateral Agent at places which the
Collateral Agent shall select, whether at Xxxxx'x premises or elsewhere. The
Collateral Agent shall apply the net proceeds of any such collection,
14
recovery, receipt, appropriation, realization or sale, after deducting all costs
and expenses of every kind incurred therein or incidental to the care or
safekeeping of any of the Collateral or in any way relating to the Collateral or
the rights of the Collateral Agent hereunder, including, without limitation,
attorneys' fees and disbursements, to the payment in whole or in part of the
Obligations, in such order (consistent with Section 5(b)) as the Collateral
Agent may elect, and only after such application and after the payment by the
Collateral Agent of any other amount required by any provision of law,
including, without limitation, Section 9-615(a)(3) of the UCC, need the
Collateral Agent account for the surplus, if any, to Xxxxx. To the extent
permitted by applicable law, Xxxxx waives all claims, damages, and demands
against the Collateral Agent arising out of the repossession, retention or sale
of the Collateral. If any notice of a proposed sale or disposition of Collateral
shall be required by law, such notice shall be deemed reasonably and properly
given if given (effective upon dispatch) in any manner provided in the Triple-A
One Credit Agreement at least 10 days before such sale or disposition. Xxxxx
shall remain liable for any deficiency if the proceeds of any sale or other
disposition of the Collateral are insufficient to pay the Obligations and the
fees and disbursements of any attorneys employed by the Collateral Agent to
collect such deficiency.
Upon the occurrence of a Wind-Down Event, Xxxxx shall take such action or
shall cause such action to be taken pursuant to any and all Interest Rate Hedge
Mechanisms and/or enter into any Hedge Agreement at the sole expense of Xxxxx
promptly upon the request of the Program Manager.
SECTION 12. Limitation on Collateral Agent's Duties in Respect of
Collateral. The Collateral Agent's sole duty with respect to the custody,
safekeeping and physical preservation of the Collateral in its possession, under
the UCC or otherwise, shall be to deal with it in the same manner as the
Collateral Agent deals with similar property for its own account. Neither the
Collateral Agent nor any of its directors, officers, employees or agents shall
be liable for failure to demand, collect or realize upon all or any part of the
Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any Collateral upon the request of Xxxxx or otherwise.
SECTION 13. Powers Coupled with an Interest. All powers of attorney,
authorizations and agencies herein contained with respect to the Collateral are
irrevocable and are powers coupled with an interest.
SECTION 14. Severability. Any provision of this Triple-A One Security
Agreement which is 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 hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 15. Assignment to Banks and Surety Provider. Xxxxx does hereby
acknowledge the pledge by Triple-A One of the Liquidity Pledged Collateral as
security under the Note Pledge Agreement.
SECTION 16. Triple-A One Surety Bond. Triple-A One hereby assigns to the
Collateral Agent the right of Triple-A One to make drawings under the Surety
Bond naming Triple-A One
15
as beneficiary. The Collateral Agent hereby agrees to make, on a timely basis,
all drawings (including, without limitation, drawings in respect of any Avoided
Payment, as such term is defined in such Surety Bond) permitted to be made by
delivery of a Notice for Payment under such Surety Bond.
SECTION 17. Section and Paragraph Headings; Notices.
(a) The section and paragraph headings used in this Triple-A One
Security Agreement are for convenience of reference only and are not to affect
the construction hereof or be taken into consideration in the interpretation
hereof.
(b) Notices to any of the signatories hereto shall be given as
provided in the Triple-A One Credit Agreement.
SECTION 18. No Waiver; Cumulative Remedies. The Collateral Agent shall
not by any act (except pursuant to the execution of a written instrument
pursuant to Section 19 hereof), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Unmatured Wind-Down Event or Wind-Down Event or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Collateral Agent, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. A
waiver by the Collateral Agent of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the
Collateral Agent would otherwise have on any future occasion. The rights and
remedies provided herein and in the other Operative Documents are cumulative,
may be exercised singly or concurrently and are not exclusive of any rights or
remedies provided by law.
SECTION 19. Waivers and Amendments; Successors and Assigns. None of the
terms or provisions of this Triple-A One Security Agreement may be waived,
amended, supplemented or otherwise modified except by a written instrument
executed by the parties hereto and with prior written notice thereof to S&P and
Xxxxx'x. This Triple-A One Security Agreement shall be binding upon the
successors and assigns of the parties hereto and shall inure to the benefit of
each of the parties hereto and their successors and assigns.
SECTION 20. Integration. This Triple-A One Security Agreement represents
the agreement of Xxxxx, the Servicer, Triple-A One and the Collateral Agent with
respect to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Collateral Agent, Xxxxx, Triple-A One and
the Servicer relative to the subject matter hereof not expressly set forth or
referred to herein or in the other Operative Documents.
SECTION 21. Counterparts. This Triple-A One Security Agreement may be
executed by one or more of the parties to this Triple-A One Security Agreement
on any number of separate counterparts, and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
SECTION 22. GOVERNING LAW. THIS TRIPLE-A ONE SECURITY AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO
16
UNDER THIS TRIPLE-A ONE SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES WHICH MAY REQUIRE THE APPLICATION OF THE
LAWS OF ANY OTHER JURISDICTION.
SECTION 23. Termination and Release.
(a) This Triple-A One Security Agreement and the security
interests created or granted hereby shall remain in full force and effect until
the date after the Commitment Termination Date on which all of the Obligations
are indefeasably paid in full in cash and the Surety Bonds are returned for
cancellation, at which time, following the receipt by the Collateral Agent of
written notice from the Program Manager that such Obligations have been so paid
and from the Surety Provider that such Surety Bonds have been returned, the
security interest created or granted hereby shall terminate and the Collateral
Agent shall, at the sole expense of Xxxxx, execute and deliver such documents
and instruments (including without limitation UCC termination statements)
necessary to evidence the termination of such security interest, as Xxxxx may
reasonably request.
(b) (i) Xxxxx Request for Release. Xxxxx intends from time to time
to sell Purchased Contracts and other related Collateral (x) to entities which
will then privately or publicly sell securities backed by such Purchased
Contracts and Collateral or (y) in whole loan bulk sales to Onyx Acceptance
Corporation or, with the prior written consent of the Surety Provider,
unaffiliated third parties, in each case, for a cash purchase price of not less
than the aggregate Outstanding Balance of such Purchased Contracts plus accrued
and unpaid interest thereon and other unpaid Finance Charges with respect
thereto. Notwithstanding anything to the contrary in Sections 6.4, 6.5, and 6.16
of the Triple-A One Credit Agreement, Xxxxx shall be permitted to sell Purchased
Contracts pursuant to the foregoing provisions only upon satisfaction of the
following conditions precedent:
(A) sales pursuant to clause (y) shall occur no more
frequently than once each month;
(B) each of the Seller and Xxxxx shall be in
compliance with all of its covenants in the Operative Documents,
no Wind-Down Event or Unmatured Wind Down Event shall be
continuing and no adverse selection procedures shall have been
used by Xxxxx or the Servicer in selecting Purchased Contracts for
such sales; and
(C) The Program Manager shall have received copies
of all documents executed in connection with such sale.
The proceeds of all sales by Xxxxx pursuant to clauses (x) and (y)
above shall be applied first, to prepay the Triple-A One Note in
an amount such that no Borrowing Base Deficiency exists after
giving effect to such sale and such prepayment (the "Prepayment
Amount"), second, to pay all amounts owing to the Surety Provider,
Triple-A One, the Collateral Agent and the Program Manager,
17
and third, to prepay the Subordinated Note. Upon not less than 5
Business Days' prior written notice to the Collateral Agent, Xxxxx
may request that specified Purchased Contracts and other related
Collateral be released in connection with such sales and the
prepayment of the Triple-A One Note as provided in Section 2.4(b)
of the Triple-A One Credit Agreement. In connection with such
request, Xxxxx shall execute and deliver to the Collateral Agent a
Lien Release Request Certificate in the form attached hereto as
Exhibit A. In selecting the Purchased Contracts enumerated in its
Lien Release Request Certificate delivered to the Collateral Agent
pursuant hereto, Xxxxx shall employ selection procedures which are
not adverse to the interests of Triple-A One, the Collateral Agent
or the Surety Provider. Xxxxx shall deliver to the Program Manager
(i) monthly servicer reports for all Contracts serviced but not
owned by Onyx aggregated by portfolio and owner and (ii) copies of
all material amendments, waivers or modifications to any documents
executed in connection with the sale of Purchased Contracts by
Xxxxx.
(ii) Collateral Agent Release. Upon receipt of an amount in
immediately available funds equal to the sum of the Prepayment
Amount, all interest accrued and to accrue thereon and unpaid and
all other costs and Obligations of Xxxxx and the Seller associated
with such prepayment and unpaid under any Operative Document
(including, without limitation, amounts payable pursuant to
Section 2.4(b) of the Triple-A One Credit Agreement), to be paid
by Xxxxx from the Collection Account pursuant to Section 4(b)
hereof, the Collateral Agent shall, at the sole expense of Xxxxx,
execute and deliver a Collateral Agent Lien Release Certificate in
the form attached hereto as Exhibit B which shall evidence the
release of its security interest in the Purchased Contracts
specified by Xxxxx in accordance with clause (i) of this Section
23(b).
(iii) Documents and Filings. In connection with any such
release pursuant to this Section 23, Xxxxx and the Collateral
Agent, shall at the sole expense of Xxxxx, execute and deliver any
documents and instruments necessary to evidence the release of the
Collateral Agent's security interest in such Purchased Contracts
and other Collateral, including without limitation, forms UCC-2
prepared for filing in all appropriate jurisdictions.
(iv) Legal Fees. Xxxxx agrees to pay on demand to the
Surety Provider, Collateral Agent, Program Manager and Triple-A
One, all reasonable legal fees and disbursements incurred by such
entity in connection with the negotiation, preparation, execution,
review and delivery of any documents related to any sale by Xxxxx
pursuant to Section 23(b)(i)(y) of this Agreement.
18
IN WITNESS WHEREOF, the parties hereto have caused this Triple-A One
Security Agreement to be duly executed and delivered as of the date first above
written.
ONYX ACCEPTANCE FINANCIAL CORPORATION
By:
------------------------------------------
Name:
Title:
TRIPLE-A ONE FUNDING CORPORATION
By: MBIA Insurance Corporation, its
attorney-in-fact
By:
------------------------------------------
Name:
Title:
CAPITAL MARKETS ASSURANCE CORPORATION,
as Collateral Agent
By:
------------------------------------------
Name:
Title:
ONYX ACCEPTANCE CORPORATION,
as Servicer
By:
------------------------------------------
Name:
Title:
19
SCHEDULE 7(d)
LOCATIONS OF COLLATERAL
The Collateral is located at:
1. Onyx Acceptance Corporation
00000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
2. Xxxxxx DataBank
00000 Xxxxx Xxxxxxx
Xxxx Xxxxxx, Xxxxxxxxxx
SCHEDULE 7(e)
REQUIRED REPRESENTATIONS REGARDING THE COLLATERAL
The following representations and warranties (to the extent applicable)
(i) are made by Xxxxx as of the date hereof and as of each Purchase Date, (ii)
shall survive the execution and delivery of this Triple-A One Security Agreement
and the purchase of the Collateral (or any part thereof) on each Purchase Date
and (iii) may not be amended, waived or otherwise modified without the prior
written consent of S&P:
A. The following representations and warranties are made with respect to all of
the Collateral:
General
This Triple-A One Security Agreement creates a valid and continuing security
interest (as defined in the applicable UCC) in the Collateral in favor of the
Collateral Agent for the benefit of the holders of the Obligations, which
security interest is prior to all other Liens, and is enforceable as such as
against creditors of and purchasers from Xxxxx.
Creation
Xxxxx owns and has good and marketable title to the Collateral free and clear of
any Lien, claim or encumbrance of any Person, except for any Lien created by
this Agreement or the Subordinated Security Agreement.
Perfection by Filing
Xxxxx has caused the filing of all appropriate financing statements in the
proper filing office in the appropriate jurisdictions under applicable law in
order to perfect the security interest in the Collateral granted to the
Collateral Agent for the benefit of the holders of the Obligations hereunder (to
the extent such security interest may be perfected by filing under the
applicable UCC).
Priority
Other than the security interest granted to the Collateral Agent for the benefit
of the holders of the Obligations pursuant to this Agreement or granted to Onyx
pursuant to the Subordinated Security Agreement, Xxxxx has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed any of the
Collateral. Xxxxx has not authorized the filing of and is not aware of any
financing statements against Xxxxx that include a description of collateral
covering the Collateral other than any financing statement relating to the
security interest granted to the Collateral Agent for the benefit of the holders
of the Obligations hereunder or that has been terminated. Xxxxx is not aware of
any judgment or tax lien filings against Xxxxx.
B. The following additional representations and warranties are made with respect
to the Purchased Contracts which constitute Tangible Chattel Paper under the
applicable UCC (as used in this Section B, the "Subject Collateral"):
General
1. Xxxxx has taken or caused to be taken all steps necessary to perfect its
security interest against the Obligor in the property securing the Subject
Collateral.
2. The Subject Collateral constitutes "tangible chattel paper" within the
meaning of the applicable UCC.
Perfection by Possession
1. The fully executed original of each Purchased Contract that constitutes or
evidences the Subject Collateral has been delivered to the Servicer, as
custodian for the Collateral Agent (the "Custodian").
2. Pursuant to Section 3(b) of this Agreement, the Collateral Agent has received
a written acknowledgment from the Custodian that the Custodian or its agent is
holding the Purchased Contracts that constitute or evidence the Subject
Collateral solely on behalf and for the benefit of the Collateral Agent.
3. None of the Purchased Contracts that constitute or evidence the Subject
Collateral has any marks or notations indicating that it has been pledged,
assigned or otherwise conveyed to any Person other than the Collateral Agent for
the benefit of the holders of the Obligations and Onyx pursuant to the
Subordinated Security Agreement.
EXHIBIT A
LIEN RELEASE REQUEST CERTIFICATE
from Xxxxx to the Collateral Agent and Seller
pursuant to Section 23 of Triple-A One Security Agreement
and Section 19 of Subordinated Security Agreement
[ date ]
Capital Markets Assurance Corporation,
as Collateral Agent
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Insured Portfolio Management,
Structured Finance
Onyx Acceptance Corporation
00000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Re: Onyx Acceptance Financial Corporation/Commercial Paper Program - Request
for Release of Lien
Ladies and Gentlemen:
Onyx Acceptance Financial Corporation ("Xxxxx") refers to (i) the
Second Amended and Restated Triple A-One Security Agreement dated as of November
30, 2001 as amended, supplemented or otherwise modified (the "Triple-A One
Security Agreement"), and (ii) the Second Amended and Restated Subordinated
Security Agreement dated as of November 30, 2001 (as amended, supplemented or
otherwise modified, the "Subordinated Security Agreement"). Terms not otherwise
defined herein are used herein as defined in the Second Amended and Restated
Definitions List dated November 30, 2001.
Xxxxx submits this Lien Release Request Certificate pursuant to
Section 23 of the Triple-A One Security Agreement and Section 19 of the
Subordinated Security Agreement and requests that the Capital Markets Assurance
Corporation, in its capacity as Collateral Agent under the Triple-A One Security
Agreement and Onyx Acceptance Corporation in its capacity as Seller under the
Subordinated Security Agreement ("Onyx") release (and Onyx cause its assignee to
release) all of their liens on and security interests in the assets described on
Schedule 1 attached hereto (and all proceeds thereof, all books, records and
computer records pertaining thereto and all other assets that constitute
Collateral which are specifically related to the assets described in Schedule
1).
ONYX ACCEPTANCE FINANCIAL CORPORATION
By:
-----------------------------------
Name:
Title:
A-2
EXHIBIT B
COLLATERAL AGENT LIEN RELEASE CERTIFICATE
pursuant to Section 23 of Triple-A One Security Agreement
[Date]
Onyx Acceptance Financial Corporation
00000 Xxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Re: Partial Collateral Release
Ladies and Gentlemen:
We hereby refer to the Lien Release Request Certificate submitted
by Onyx Acceptance Financial Corporation ("Xxxxx") dated
__________________________, a copy of which is attached hereto (the "Request
Certificate"). Pursuant to the Request Certificate, Capital Markets Assurance
Corporation, acting in its capacity as the Collateral Agent under the Triple-A
One Security Agreement and as Bank Collateral Agent under the Note Pledge
Agreement, hereby releases its liens on and security interests in the assets
identified in Schedule 1 attached to the Request Certificate (and all proceeds
thereof, all books, records and computer records pertaining thereto and all
other assets that constitute Collateral which are specifically related to the
assets described in that Schedule 1).
This Lien Release Certificate may be executed in any number of
counterparts.
CAPITAL MARKETS ASSURANCE CORPORATION,
as Collateral Agent and Bank Collateral Agent
By
------------------------------------------
Name:
----------------------------------------
Title
---------------------------------------
