EXHIBIT 10.132
EXECUTION COPY
ONYX ACCEPTANCE RECEIVABLES CORPORATION
SALE AND SERVICING AGREEMENT
dated as of January 9, 2003
ONYX ACCEPTANCE CORPORATION
TABLE OF CONTENTS
Page No.
ARTICLE I DEFINITIONS............................................................................... 1
Section 1.1 Definitions.................................................................... 1
ARTICLE II PURCHASES AND SALES...................................................................... 1
Section 2.1 Agreements to Purchase and to Sell............................................. 1
Section 2.2 Purchase Price................................................................. 2
Section 2.3 Payment of Purchase Price...................................................... 2
Section 2.4 Delivery....................................................................... 3
ARTICLE III CONDITIONS TO PURCHASE.................................................................. 3
Section 3.1 Conditions to Effectiveness.................................................... 3
Section 3.2 Conditions Precedent to Payment of Purchase.................................... 3
ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS................................................ 4
Section 4.1 Representations and Warranties of the Seller and the Servicer.................. 4
Section 4.2 Representations and Warranties of the Seller Concerning Contracts.............. 8
Section 4.3 Covenants of Seller............................................................ 11
Section 4.4. Covenants of Servicer......................................................... 17
Section 4.5 Repurchase of Ineligible Contracts............................................. 19
Section 4.6 Financial Covenants of Seller.................................................. 20
Section 4.7 Representations and Warranties of Recco........................................ 21
Section 4.8 Collecting Title Documents Not Delivered on the Purchase Date.................. 21
ARTICLE V SELLER NOTE AND SUBORDINATED NOTE......................................................... 21
Section 5.1 Seller Note.................................................................... 21
Section 5.2 Restrictions on Transfer of Seller Note........................................ 22
Section 5.3 Subordinated Note.............................................................. 22
Section 5.4 Restrictions on Transfer of Subordinated Note.................................. 24
ARTICLE VI TERMINATION OF COMMITMENT................................................................ 24
Section 6.1 Termination.................................................................... 24
Section 6.2 Remedies....................................................................... 24
ARTICLE VII INDEMNIFICATION, ADDITIONAL COSTS, INSPECTION AND CERTAIN LITIGATION MATTERS............ 25
Section 7.1 Indemnities.................................................................... 25
Section 7.2 Rights of Inspection........................................................... 27
Section 7.3 Certain Litigation Matters..................................................... 27
ARTICLE VIII THE SERVICER........................................................................... 28
Section 8.1 Appointment of Servicer........................................................ 28
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Section 8.2 Collections.................................................................... 29
Section 8.3 Maintenance of Records; Quarterly and Annual Reports........................... 29
Section 8.4 Servicing Fee.................................................................. 30
Section 8.5 Resignation; Sub-Contracting................................................... 30
Section 8.6 Termination.................................................................... 31
Section 8.7 Daily Report................................................................... 31
Section 8.8 Monthly Report................................................................. 32
Section 8.9 Servicer Termination Events.................................................... 32
Section 8.10 Servicer Termination.......................................................... 32
Section 8.11 Appointment of Successor Servicer............................................. 34
ARTICLE IX MISCELLANEOUS............................................................................ 34
Section 9.1 Notices, Etc................................................................... 34
Section 9.2 Successors and Assigns......................................................... 35
Section 9.3 Confirmation of Intent; Security Interest...................................... 36
Section 9.4 Payments....................................................................... 36
Section 9.5 Rights to Enable Successor Servicing........................................... 36
Section 9.6 Costs; Expenses and Taxes...................................................... 36
Section 9.7 Severability Clause............................................................ 37
Section 9.8 Amendments; Governing Law; Jury Trial Waiver................................... 37
Section 9.9 No Recourse.................................................................... 37
Section 9.10 Further Assurances............................................................ 37
Section 9.11 Termination................................................................... 37
Section 9.12 Assignment to Collateral Agent................................................ 38
Section 9.13 Counterparts.................................................................. 38
Section 9.14 Headings...................................................................... 38
Section 9.15 No Bankruptcy Petition Against Recco.......................................... 38
EXHIBIT A Seller Note
EXHIBIT B Subordinated Note
EXHIBIT C Officer's Certificate
EXHIBIT D List of Lock-Box Banks and Numbers of Lock-Boxes
EXHIBIT E Clearing Account Bank and Account Number
EXHIBIT F Form of Servicer's Certificate
EXHIBIT G Form of Daily Report
EXHIBIT H Form of Monthly Report
EXHIBIT I Credit and Collection Policy
SCHEDULE 4.1(h)-1 Principal Place of Business, Etc. of Seller
SCHEDULE 4.1(h)-2 Principal Place of Business, Etc. of Servicer
SCHEDULE 4.1(k)-1 Trade Names of Seller
SCHEDULE 4.1(k)-2 Trade Names of Servicer
SCHEDULE 4.1(r)-1 Subsidiaries of Seller
SCHEDULE 4.1(r)-2 Subsidiaries of Servicer
SCHEDULE 9.5 Licenses, Patents, Computer Hardware and Software, Etc.
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SALE AND SERVICING AGREEMENT
SALE AND SERVICING AGREEMENT (the "Sale Agreement" or this
"Agreement"), dated as of January 9, 2003, between ONYX ACCEPTANCE CORPORATION,
a Delaware corporation, as seller (in such capacity, the "Seller") and as
servicer (in such capacity, the "Servicer"), and ONYX ACCEPTANCE RECEIVABLES
CORPORATION, a Delaware corporation (together with its successors and assigns,
"Recco"), as the purchaser.
W I T N E S S E T H:
WHEREAS, the Seller in the ordinary course of its business originates
and purchases contracts secured by automobiles, vans and light trucks; and
WHEREAS, the Seller wishes to sell certain of such contracts from time
to time to Recco and Recco desires to purchase such contracts; and
WHEREAS, from time to time in accordance with the consummation of the
transactions contemplated herein, Recco desires to finance the purchases of such
contracts by advances made by Eiffel Funding, LLC (the "Conduit Lender") or CDC
Financial Products Inc. (the "Committed Lender", together with the Conduit
Lender, the "Lenders"), which advances will be secured by the contracts
purchased by Recco; and
WHEREAS, the parties hereto wish to enter into this Sale Agreement as
hereinafter provided.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
(a) As used in this Agreement, capitalized terms used herein
shall, unless otherwise defined herein, have the meanings assigned to them in
the Definitions List dated as of the date hereof that refers to this Agreement,
which is incorporated herein by reference (the "Definitions List").
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(c) Capitalized terms used herein shall be equally applicable
to both the singular and plural forms of such terms.
ARTICLE II
PURCHASES AND SALES
Section 2.1 Agreements to Purchase and to Sell.
(a) On each Purchase Date occurring prior to the Commitment
Termination Date, the Seller does hereby agree to sell, transfer, assign, set
over and otherwise convey, without
recourse (except as expressly provided herein), to Recco and Recco does hereby
agree to purchase, without recourse (except as expressly provided herein) all
right, title and interest of the Seller in and to (i) all Contracts originated,
purchased or owned by the Seller that have Outstanding Balances as of the close
of business on the Business Day immediately preceding such Purchase Date and all
payment and enforcement rights (but not any obligations) to, in and under such
Contracts, (ii) all rights in and to any Insurance Policies with respect to such
Contracts, (iii) any and all security interests in the Vehicles, (iv) all monies
due and to become due, and all amounts received, with respect to the foregoing,
(v) any and all Files related to such Contracts, including the Dealer Assignment
related to each Contract (vi) all Recoveries related to such Contracts and (vii)
all proceeds of the foregoing (including, without limitation, "proceeds" as
defined in Section 9-102 of the UCC as in effect in the State of New York);
provided that the Seller shall not be obligated to sell any Contract to Recco
which (i) the Seller sells to a Subsidiary of the Seller pursuant (a) the
Triple-A One Funding Corporation warehouse facility, dated November 30, 2001 or
(b) any other warehouse or similar facility entered into with the prior written
consent of the Program Manager and the Surety Provider or (ii) is purchased or
originated by the Seller for the sole purpose of selling such Contract to an
affiliated or unaffiliated third party. Recco shall not be obligated to make any
purchase hereunder on or after the Commitment Termination Date.
(b) It is the express and specific intent of the parties that
the transfer of the Purchased Contracts from the Seller to Recco, as provided in
this Agreement, is and shall be construed for all purposes as a true, complete
and absolute sale of the Purchased Contracts.
(c) The Seller acknowledges that the Purchased Contracts are
subject to the security interest of the Collateral Agent for the benefit of the
holders of the Obligations pursuant to the Security Agreement.
(d) In connection with the Seller's sale of Contracts set
forth herein the Seller hereby transfers to Recco all its right, title and
interest in and to each Lock-Box.
(e) In selecting the Contracts to be sold pursuant to clause
(a) the Seller shall employ selection procedures which are not adverse to the
interests of Recco, the Lenders, the Surety Provider or the Collateral Agent.
Section 2.2 Purchase Price.
(a) The amount payable to the Seller by Recco on each Purchase
Date occurring prior to the Commitment Termination Date in connection with any
sale hereunder shall be equal to the aggregate Outstanding Balances of the
Contracts set forth on the Contract List for such Purchase Date (the "Purchase
Price"), as set forth in the Daily Report dated such Purchase Date.
(b) The outstanding balance of Finance Charges shall not be
included in the calculation of the Purchase Price of any Contracts purchased on
any Purchase Date.
Section 2.3 Payment of Purchase Price.
(a) Prior to 9 A.M. (New York City time) on each Purchase
Date, inc luding the Closing Date, the Servicer will determine the Purchase
Price to be paid on such Purchase Date. The Purchase Price shall be paid on the
related Purchase Date in the manner provided below:
(i) in cash, in an amount equal to the lesser of
(A) Available Funds on such Purchase Date and (B) the Purchase Price;
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(ii) to the extent that the Purchase Price
exceeds the amount of the cash payment in (i) above, such excess shall be paid,
on each Purchase Date, by adjusting the principal amount of the Subordinated
Note to equal the Subordinated Interest on such Purchase Date; and
(iii) to the extent that the Purchase Price
exceeds the amount of the cash payment in (i) above and the adjustment to the
principal amount of the Subordinated Note in accordance with (ii) above, such
excess shall be paid, on each Purchase Date, by adjusting the principal amount
of the Seller Note to equal the Seller Interest on such Purchase Date.
(b) Unless otherwise specified herein, all payments of the
cash component of the Purchase Price shall be made not later than 4:00 P.M. (New
York City time) on the applicable Purchase Date in lawful money of the United
States of America in same day funds by depositing such amounts in the bank
account designated in writing by the Seller to Recco, with a copy to the Program
Manager.
Section 2.4 Delivery. The Seller hereby agrees that all chattel paper
and instruments (as each such term is defined in the UCC), if any, representing
or evidencing any of the Purchased Contracts shall be promptly transferred to
Recco pursuant to duly executed transfer instruments in form and substance
satisfactory to Recco, the Surety Provider and the Program Manager. All such
chattel paper and instruments shall be delivered into the possession of the
Servicer (acting in its capacity as custodian as described in Section 8.3(a)
hereof) or its agent or to such Person as the Controlling Party may approve, on
or prior to the Purchase Date.
ARTICLE III
CONDITIONS TO PURCHASE
Section 3.1 Conditions to Effectiveness. On or prior to the date
hereof, the following conditions shall have been satisfied:
(a) the conditions set forth in subsection 4.1 of the Credit
Agreement shall have been satisfied; and
(b) a Responsible Officer of the Servicer shall have executed
and delivered an officer's certificate to Recco, with copies to the Collateral
Agent, the Surety Provider and the Program Manager, listing the servicing
officers of the Servicer.
Section 3.2 Conditions Precedent to Payment of Purchase Price. As a
condition precedent to the obligation of Recco to make payment of the Purchase
Price on any Payment Date, the following conditions shall have been satisfied on
or prior to such Payment Date:
(a) no Unmatured Wind-Down Event or Wind-Down Event shall have
occurred and be continuing on such Payment Date or would result from such
payment or from the application of the proceeds therefrom. By accepting payment
for the Purchased Contracts the Seller shall be deemed to certify that this
condition has been satisfied;
(b) Recco shall have received all other approvals, legal
opinions, documents, instruments or items of information as it may reasonably
request and all of the foregoing shall be satisfactory in form and substance to
Recco, and all corporate and other proceedings (if any) required to be taken
shall be satisfactory in form and substance to Recco;
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(c) an authorized officer of the Seller shall have executed
and delivered an officer's certificate to Recco, with copies to the Collateral
Agent, the Surety Provider and the Program Manager, substantially in the form of
Exhibit C; and
(d) the conditions set forth in subsections 4.1, 4.2 and 4.3
of the Credit Agreement shall have been satisfied.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 4.1 Representations and Warranties of the Seller and the
Servicer. The Seller represents and warrants as to itself, to Recco, and the
Program Manager, as of the date of this Agreement and as of any future Purchase
Date, and the Servicer represents and warrants as to itself (except as to
clauses (m), (o), (q), (s), (u) and (v) and, to the extent relating to the
Seller, clauses (g), (h), (k) and (r) of this Section 4.1, as to which the
Servicer makes no representation or warranty) to Recco and the Program Manager,
as of the date of this Agreement and as of each Payment Date, as follows:
(a) Corporate Existence. It is a corporation duly
incorporated, validly existing and in good standing under the laws of the state
of Delaware, with full corporate power and authority to conduct its business and
to own its properties and other assets and is duly qualified to do business and
is in good standing in every jurisdiction in which the nature of its business
requires it to be so qualified.
(b) Corporate Power; Authorization; Non-Contravention. The
execution, delivery and performance by it of this Agreement, the other Operative
Documents to which it is a party and all other agreements, instruments and
documents to be delivered by it hereunder and thereunder, and the transactions
contemplated hereby and thereby, are within its corporate powers, have been duly
authorized by all necessary corporate action, do not contravene (i) any
Requirement of Law applicable to it or (ii) any Contractual Obligation of it,
and do not result in or require the creation of any Lien or any other claim upon
or with respect to any of its properties (other than those contemplated
hereunder); and no transaction contemplated hereby requires compliance with any
bulk sales act or similar law. This Agreement and all the other Operative
Documents to which it is a party have been duly executed and delivered on its
behalf.
(c) No Consents. No authorization or approval or other action
by, and no notice to or filing with, any Governmental Authority or regulatory
body is required for the due execution, delivery and performance by it of this
Agreement, the other Operative Documents to which it is a party or any other
agreement, document or instrument to be delivered by it hereunder and
thereunder, or for the perfection of, or the exercise by, Recco or any other
beneficiary or assignee hereof or thereof of its rights or remedies under this
Agreement or any such Operative Document or other agreement, document or
instrument, except for the filing of the UCC financing statements referred to in
clause (o) of this Section 4.1, all of which, on or prior to the date hereof,
shall have been duly made and shall be in full force and effect.
(d) Enforceable Obligation. Each of this Agreement and the
other Operative Documents to which it is a party is and will be its legal, valid
and binding obligation, enforceable against it in accordance with its terms
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforceability
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of creditors' rights generally and by general equitable principles (whether
considered in proceedings in equity or at law).
(e) Financial Condition. Its audited consolidated balance
sheet as at December 31, 2001 and the related statements of income and retained
earnings and of cash flows for the fiscal year then ended, certified by
PricewaterhouseCoopers LLP, and its unaudited consolidated and consolidating
balance sheets as at September 30, 2002 and the related statements of income and
retained earnings and of cash flows for the nine-month period then ended, copies
of all of which have been furnished to Recco, the Collateral Agent, the Surety
Provider and the Program Manager, fairly present the financial condition of it
and its consolidated Subsidiaries as at such date and the results of the
operations of it and its consolidated Subsidiaries for the period ending on such
date, all in accordance with GAAP, and since September 30, 2002 there has been
no Material Adverse Effect.
(f) Material Litigation. Except as otherwise disclosed in
writing to Recco, the Collateral Agent, the Surety Provider and the Program
Manager prior to the date hereof, there is no pending or threatened action, suit
or proceeding against or affecting it or any of its Subsidiaries or Affiliates
or any of their respective officers or directors, in such capacity, or the
property of it or of any of its Subsidiaries or Affiliates, in any court, or
before any arbitrator of any kind, or before or by any governmental body (i)
with respect to this Agreement or the other Operative Documents or any of the
transactions contemplated hereby or thereby, or (ii) which could have a Material
Adverse Effect.
(g) Accuracy of Information. (i) Each exhibit, financial
statement, document, book, record, report and other item of written information
furnished by it to the Collateral Agent, the Surety Provider, the Program
Manager or Recco in connection with the Operative Documents is accurate as of
its date and as of the date so furnished and (ii) all financial projections
contained therein are based on reasonable and stated assumptions, and no such
item referred to in (i) or (ii) above contains any material misstatement of fact
or omits to state a material fact.
(h) Principal Place of Business. Its principal place of
business and chief executive office is located at the address referred to in
Section 9.1 and the locations of the offices where it keeps all the records
relating to the Contracts, including without limitation, the Files are listed on
Schedule 4.1(h)-1 (as to the Seller) and on Schedule 4.1(h)-2 (as to the
Servicer) hereto.
(i) Lock-Box. The names and addresses of all the Lock-Box
Banks, together with the account numbers of each Lock-Box, are specified in
Exhibit D hereto. Each Obligor has been directed to remit all funds in respect
of the Purchased Contracts only into the Lock-Boxes.
(j) Clearing Account. The name and address of the Clearing
Account Bank, together with the account number thereof, are specified in Exhibit
E. All funds in respect of the Purchased Contracts at any time on deposit in the
Clearing Account are held by the Clearing Account Bank subject to the security
interest of the Collateral Agent, for the benefit of the holders of the
Obligations.
(k) Names. Except as set forth on Schedule 4.1(k)-1 (as to the
Seller) and Schedule 4.1(k)-2 (as to the Servicer), it has no tradenames,
fictitious names, assumed names or "doing business as" names.
(l) ERISA.
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(i) No Plan is or has been a Multiemployer Plan.
Except for the Seller, neither Recco nor any ERISA Affiliate of Recco has
maintained any Plan which is subject to Title IV of ERISA. No Reportable Event
has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan of the Seller,
and each such Plan has complied in all material respects with the applicable
provisions of ERISA and the Code; provided, that any non-compliance by the Plan
with the applicable provisions of ERISA or the Code that is reasonably likely
to, in the Controlling Party's sole discretion, subject Recco to any tax,
penalty or other liability, shall be deemed material non-compliance. The present
value of all accrued benefits under each such Plan (based on those assumptions
used to fund the Plans) did not, as of the last annual valuation date prior to
the date on which this representation is made or deemed made, exceed the value
of the assets of such Plan allocable to such accrued benefits.
(ii) If required to be filed, Schedule B
(Actuarial Information) to each most recent annual report (Form 5500 Series) has
been filed for each applicable Plan with the IRS and copies of such Schedule
have been furnished to the Program Manager and Recco. Each such Schedule is
complete and accurate in all material respects and fairly presents the funding
status of such applicable Plan.
(iii) Each Plan which is intended to be qualified
under Section 401(a) of the Code is so qualified, and each trust related to any
such Plan has been determined to be exempt from federal income tax under Section
501(a) of the Code, and neither Recco nor any ERISA Affiliate has materially
breached any of the responsibilities, obligations or duties imposed on it by
ERISA, the Code or regulations promulgated thereunder with respect to any Plan;
provided, that any breach of any of the responsibilities, obligations or duties
imposed on Recco or an ERISA Affiliate by ERISA, the Code or regulations
promulgated thereunder with respect to any Plan, which breach is reasonably
likely to, in the Controlling Party's sole discretion, subject Recco to any tax,
penalty or other liability, shall be deemed a material breach.
(iv) Neither Recco nor any ERISA Affiliate
maintains or contributes to any "employee welfare benefit plan" within the
meaning of Section 3(1) of ERISA which provides benefits to employees after
termination of employment other than as required by Section 601 of ERISA,
Section 4980B of the Code, or any substantially similar state or local law.
(v) No Plan has incurred any accumulated funding
deficiency (as defined in Section 302 of ERISA and 412(a) of the Code), whether
or not waived.
(vi) Neither Recco nor any ERISA Affiliate nor
any fiduciary of any Plan (i) has engaged in a nonexempt prohibited transaction
described in Sections 406 of ERISA or 4975 of the Code or (ii) has taken or
failed to take any action which would constitute or result in an ERISA
Termination Event.
(vii) Neither Recco nor any ERISA Affiliate has
incurred, and no condition exists or event or transaction has occurred with
respect to any Plan that could result in, any withdrawal liability under Section
4201 of ERISA that remains unpaid or liability to the PBGC which remains
outstanding other than the payment of premiums, and there are no such premium
payments which have become due which are unpaid.
(viii) Neither Recco nor any ERISA Affiliate has
(i) failed to make a required contribution or payment to a Plan, (ii) made a
complete or partial withdrawal from a
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Multiple Employer Plan or a Multiemployer Plan or (iii) failed to make a
required installment or any other required payment under Section 412 of the Code
on or before the due date for such installment or other payment.
(ix) Neither Recco nor any ERISA Affiliate is
required to provide security to a Plan under Section 401(a)(29) of the Code due
to a Plan amendment that results in an increase in current liabilities for the
plan year.
(m) Treatment of Transaction. It has not prepared any
financial statement which accounts for the transactions contemplated hereby in
any manner other than the sale of the Purchased Contracts by it, and it has not
in any other respect accounted for or treated the transactions in the Purchased
Contracts by it contemplated hereby (including but not limited to accounting and
tax reporting purposes) in any manner other than as a sale of, or absolute
assignment of, its full right, title and ownership interest in, the Purchased
Contracts, to Recco.
(n) Requirements of Law. Neither it nor any Subsidiary is in
violation of any Requirement of Law that could materially adversely affect its
operations or the conduct of its businesses or which is inconsistent with the
transactions contemplated by this Agreement.
(o) UCC Filings to Evidence Sale and Ownership Transfer. All
filings and recordings (including pursuant to the UCC in effect in the state in
which Onyx is incorporated) required to perfect a first priority ownership
interest in the Purchased Contracts in favor of Recco, have been accomplished
and are in full force and effect.
(p) Taxes. It has filed or caused to be filed all Federal,
state and other tax returns which are required to be filed and has paid all
taxes shown to be due and payable on said returns or on any Federal, state and
other tax assessments made against it or any of its property and all other
taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority having taxing power (other than any amount the validity
of which is currently being contested in good faith by appropriate proceedings
and with respect to which reserves in conformity with GAAP have been provided on
its books); no tax Lien has been filed, and no claim is being asserted, with
respect to any such tax, fee or other charge.
(q) Investment Company Act; Other Regulations. It is not an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. It is not
subject to regulation under any Federal or state statute or regulation which
limits its ability to incur Debt.
(r) Subsidiaries. Schedule 4.1(r)-1 (as to the Seller) and
Schedule 4.1(r)-2 (as to the Servicer) lists all of its Subsidiaries.
(s) Use of Proceeds. No proceeds of any purchase will be
used by the Seller in violation of Regulation T, U, or X of the Board of
Governors of the Federal Reserve System or to acquire any security in a
transaction subject to Section 13 or 14 of the Securities Exchange Act of 1934,
as amended.
(t) No Material Adverse Change. Since the date hereof, there
has been no material adverse change in the collectibility of the aggregate
Contracts outstanding.
(u) Nature of Transfers. The transfers of Contracts by the
Seller to Recco pursuant to this Agreement, and all other transactions between
the Seller and Recco, have been
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and will be made in good faith and without intent to hinder, delay or defraud
creditors of the Seller.
(v) Solvency. On each Purchase Date, the Seller is Solvent and
no sale of Contracts hereunder shall cause the Seller to become not Solvent.
(w) No Change in Business. No change has been made in the
character of its business (except to the extent required by law, of which change
the Surety Provider, the Collateral Agent and the Program Manager have received
written notice), if such change is reasonably likely to impair the
collectibility of the Purchased Contracts as a whole.
(x) No Change in Credit and Collection Policy. No change has
been made in the Credit and Collection Policy without the consent of the
Controlling Party, including without limitation, the amount and timing of
finance charges, fees and write-offs (except to the extent required by law, of
which change the Surety Provider, the Collateral Agent and the Program Manager
shall have received written notice).
Section 4.2 Representations and Warranties of the Seller Concerning
Contracts. On each Purchase Date the Seller represents and warrants to Recco and
the Program Manager as follows:
(a) Eligible Contract. Each Contract to be sold by it on such
day is an Eligible Contract.
(b) Liens. Each Contract to be sold by it on such day is owned
by it free and clear of any Lien or claim of any kind or any offset and, upon
transfer to Recco pursuant to this Agreement, Recco will acquire a valid
ownership interest in each Purchased Contract free and clear of any Lien or
claim of any kind or any offset and no effective financing statement or other
instrument similar in effect covering any such Purchased Contract shall at any
time be on file in any recording office except those relating to this Agreement
and the transactions contemplated hereby.
(c) Compliance with Laws. Each Contract to be sold by it on
such day and the sale and financing of the related Vehicle complied at the time
it was originated or made and each Contract to be sold by it on such day
complies with all Federal, state and local laws and regulations applicable
thereto, including, without limitation, all usury and consumer credit laws.
(d) Enforceable Obligations; Nature of Contracts. Each
Contract to be sold by it on such day is in full force and effect and represents
a legal, valid and binding obligation of the Obligor enforceable against the
Obligor in accordance with its terms (except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforceability of creditors' rights generally and by general
equitable principles whether considered in proceedings in equity or at law) and
constitutes "chattel paper" under the UCC in effect in all applicable
jurisdictions including the state in which the Seller is incorporated.
(e) Valid Sale. The sale pursuant to this Agreement by the
Seller and the purchase by Recco of the Purchased Contracts on such Purchase
Date constitutes and will constitute a valid sale of such Purchased Contracts
and the other Collateral and the proceeds thereof, which sale is and will be
enforceable against the Seller and all existing and future creditors of the
Seller and all subsequent purchasers from the Seller or Recco of any of the
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Purchased Contracts. Upon the filing of the financing statements described in
Section 4.1(o) with the Secretary of State of the State of Delaware evidencing
the sale of the Purchased Contracts to Recco and, in the case of Purchased
Contracts hereafter created and the proceeds thereof, upon the sale, transfer
and assignment thereof to Recco, Recco shall have a first priority perfected
ownership interest in the Purchased Contracts and the other Collateral free and
clear of any Lien.
(f) Contract Information. The Contract Information delivered
by the Seller to Recco (if the Seller is the Servicer) or by the Seller to the
Servicer (if the Seller is not the Servicer) with respect to each Purchased
Contract to be sold by it on such Purchase Date is true and correct.
(g) Inspections. Each Vehicle subject to a Contract to be sold
by it on such Purchase Date that is not originated by a Vehicle Dealer has been
inspected by CSI Escrow Document Services, Inc., the Servicer or any other
inspection company reasonably acceptable to the Program Manager ("Inspector"),
and the Inspector has issued a written inspection report (the "Vehicle Condition
Report") describing the Vehicle and the equipment in the Vehicle, confirming the
vehicle identification number and certifying that the Vehicle is in good repair.
(h) Repossessed Vehicles. The Contracts to be sold by it on
such Purchase Date will not result in the Outstanding Balance of Purchased
Contracts secured by Vehicles previously repossessed by or on behalf of the
Seller (each, a "Repossessed Vehicle") exceeding 1% of the aggregate Outstanding
Balance of all Purchased Contracts.
(i) Documentation. All documents used by the Seller in
connection with the purchase or origination of Contracts (including, without
limitation, any security agreement, loan contract or promissory note), and all
certificates of title and entries in the Paperless Title System for Vehicles
securing Contracts use the following words to identify the lender, secured party
or obligee: (i) "Onyx Acceptance Corporation" or some abbreviation thereof which
unmistakably identifies the Seller as secured party or (ii) "ABNI, Inc."
(j) Nature of Receivable. Each Contract to be sold by it on
such day is an obligation representing all or part of the sales price of
merchandise, insurance or services.
(k) Contract Files. It has delivered to the Servicer (as
custodian for the Collateral Agent (on behalf of the holders of the
Obligations)) or its agent the Files relating to each Contract to be sold to
Recco on such Purchase Date, and such Files are complete in all material
respects; provided, however, that as to any Purchased Contract, if (a) as
evidenced by an opinion of counsel delivered to and in form and substance
satisfactory to the Controlling Party, (x) an optical image or other
representation of the Files are enforceable in the relevant jurisdictions to the
same extent as the original of such document and (y) such optical image or other
representation does not impair the ability of an owner or pledgee of such
Contract to transfer its interest in such Contract, and (b) the retention of
such documents in such format will not result in a reduction of the then current
rating of the transaction and the Lenders, without regard to the Surety Bonds,
such optical image or other representation may be held by the Servicer (as
custodian for the Collateral Agent on behalf of the holders of the Obligations)
or its agent in lieu of the Files.
9
(l) Software. Each of Recco (and its successors and assigns)
and the Servicer has valid and enforceable rights to access and use any software
and computer programs necessary for the servicing and administration of the
Purchased Contracts.
(m) Selection. The Purchased Contracts were selected at random
from the Seller's Contracts, not in a manner adverse to the interest of Recco or
the Collateral Agent and are representative of the types of Contracts held by
the Seller with respect to the creditworthiness of Obligors and collection
experience.
(n) Transfer. Each Purchased Contract prohibits sale or
transfer of the Vehicle without the consent of the Seller.
(o) Lawful Assignment. No Purchased Contract was originated
in, or shall be subject to the laws of any jurisdiction under which the sale,
transfer and assignment of such Purchased Contract hereunder or under the
Operative Documents or the pledge thereof under the Security Agreement is
unlawful, void or voidable.
(p) One Original. There is only one original executed copy of
each Purchased Contract.
(q) Weighted Average Remaining Term. The Contracts to be sold
by it on such day will not result in the Purchased Contracts owned by Recco
(after giving effect to such Purchase) having a weighted average remaining term
exceeding 67 months.
(r) Title Documents. (A) If the related Purchased Contract was
originated in a state in which notation of a security interest on the Title
Document (or in the electronic title records) is required or permitted to
perfect the security interest in the related Vehicle, the Title Document or the
electronic title records for such Vehicle shows, or, if a new or replacement
Title Document is being applied for with respect to such Vehicle, the Title
Document (or electronic title record) will be received within 180 days of the
related Purchase Date and will show, Onyx named as the original secured party
under the related Purchased Contract as the holder of a first priority security
interest in such Vehicle, and (B) if the related Purchased Contract was
originated in a state in which the filing of a financing statement under the UCC
is required to perfect a security interest in motor vehicles, such filings or
recordings have been duly made and show Onyx named as the original secured party
under the related Purchased Contract, and in either case, upon the filing of UCC
financing statements as required by the Operative Documents, the Collateral
Agent on behalf of the holders of the Obligations will have the same rights as
such secured party has or would have (if such secured party were still the owner
of such Purchased Contract) against all parties claiming an interest in such
Vehicle. With respect to each Purchased Contract for which the Title Document
has not yet been returned from the Registrar of Titles (or is not yet evidenced
in the electronic title records), Onyx has written evidence that such Title
Documents showing Onyx as first lienholder have been applied for.
(s) Delinquent Taxes. Regarding each Contract to be sold by it
on such day, there is no lien against the related Vehicle for delinquent taxes.
(t) Default, Breach, Violation or Event Permitting
Acceleration. Regarding each Contract to be sold by it on such day, (i) there is
no default, breach, violation or event permitting acceleration existing under
such Contract (except payment delinquencies on a Contract that is not a
Delinquent Contact), (ii) there does not exist any continuing condition that
with notice or
10
lapse of time would constitute a default, breach, violation or event permitting
acceleration existing under such Contract, and (iii) the Seller has not waived
any such default, breach, violation or event permitting acceleration (except as
required by law and except for payment delinquencies on a Contract that is not a
Delinquent Contract).
(u) Blanket Policy. Regarding each Contract to be sold by it
on such day, each related Vehicle will be covered by the Blanket Policy.
(v) Comprehensive and Collision Insurance Policy and Other
Insurance Policies. (A) Each Contract to be sold by it on such day will require
that the related Obligor obtain and maintain in effect for the related Vehicle a
comprehensive and collision insurance policy (with standard deductibles) (i) in
an amount at least equal to the lesser of (x) its maximum insurable value or (y)
the principal amount due from the related Obligor under such Contract, (ii)
naming the Seller as a loss payee and (iii) insuring against loss and damage due
to fire, theft, transportation, collision and other risks generally covered by
comprehensive and collision coverage and (B) the Servicer or its agent shall
have insurance policies providing coverage upon repossession of the related
Vehicle in an amount equal to the lesser of the actual cash value of such
Vehicle, the cost of repair or replacement for such Vehicle and the unpaid
balance of the related Contract.
(w) Original Principal Balance. At the date of origination of
the Purchased Contract, the original principal balance of such Purchased
Contract was not greater than the purchase price to the related Obligor
(including taxes, warranties, licenses and related charges) of the related
Vehicle.
Section 4.3 Covenants of Seller. The Seller covenants and agrees with
Recco that so long as this Agreement shall remain in effect:
(a) Corporate Existence.
(i) It will preserve and maintain its corporate
existence, rights, franchises and privileges in the jurisdiction of its
incorporation, and qualify and remain qualified and in good standing as
a foreign corporation in each jurisdiction where the failure to
maintain such existence, rights, franchises, privileges and
qualifications could affect (x) the rights or interests of Recco or the
holders of the Obligations hereunder, (y) the collectibility of any
Contract or (z) its ability to perform its obligations hereunder.
(ii) It shall at all times remain in good
standing in all respects in all jurisdictions in which it currently
does business. In the event that the Seller fails to remain in good
standing in any such jurisdiction, it shall promptly furnish to the
Surety Provider and the Program Manager (x) a certificate of an
appropriate officer of the Seller setting forth the circumstances
surrounding such failure to remain in good standing and any action
taken or proposed to be taken by the Seller with respect thereto, (y)
such other information with respect to such failure to remain in good
standing as the Surety Provider or the Program Manager may reasonably
request, and (z) an opinion of counsel in form and substance
satisfactory to the Surety Provider and the Program Manager to the
effect that it is in good standing in such jurisdiction promptly
following the cure of such failure to remain in good standing.
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(b) Master Record of the Contracts. It will, at its own cost
and expense, retain a master record of the Contracts sold by it and copies of
all documents and records relating to each such Purchased Contract and, at its
own cost and expense, ▇▇▇▇ such master record to the effect that the Purchased
Contracts listed thereon have been sold to Recco.
(c) Recovery Procedure. It will maintain its Recovery
Procedure in good operational order and permit representatives of Recco, the
Servicer, the Surety Provider and the Program Manager access to its management
employees, upon reasonable prior notice and during normal business hours, to
fully discuss such Recovery Procedure. If it obtains a third party to maintain
such Recovery Procedure, then it shall arrange to permit representatives of
Recco, the Servicer, the Surety Provider and the Program Manager, upon
reasonable prior notice and during normal business hours, access to such system
to make such inspections and examinations as it deems necessary.
(d) Conduct of Business. It will comply with all applicable
laws, rules, regulations, and orders with respect to it, its business and
properties and all Contracts it originates or purchases, the failure to comply
with which could have a Material Adverse Effect.
(e) Defense of the Purchased Contracts. It will not create,
permit or suffer to exist, and will take such other actions as are necessary to
remove, any Lien, claim or right in, to or on any Purchased Contract, and will
defend the right, title and interest of Recco in and to the Purchased Contracts
against the claims and demands of all Persons whomsoever, other than (i) the
Liens created hereby and by the transactions contemplated hereby or (ii) Liens
for taxes which are being contested in good faith by appropriate proceedings,
provided that adequate reserves with respect thereto are maintained on the books
of Recco in conformity with GAAP.
(f) Notice. It will advise Recco (with a copy to the Surety
Provider and Program Manager) in detail, of (i) any Lien asserted or claim made
against any Purchased Contract, (ii) the occurrence of any breach by it of any
of its representations, warranties and covenants contained herein, (iii) the
occurrence of any Wind-Down Event or Unmatured Wind-Down Event, (iv) any
litigation, investigation or proceeding which may exist at any time between it
and any Governmental Authority or other Person or default or event of default
under any of its Contractual Obligations, which in either case could have a
material adverse effect on the value of the Purchased Contracts or its ability
to satisfy its obligations hereunder and (v) any Material Adverse Effect, in
each case, immediately upon ascertaining or obtaining knowledge of any of the
foregoing. Each notice pursuant to this subsection shall be accompanied by a
statement of a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action it proposes to take with respect
thereto.
(g) Maintain Interest.
(i) It shall, with respect to any and all
Purchased Contracts and security interests in Vehicles sold hereunder, at its
expense, perform all acts and execute all documents requested by Recco, the
Servicer, the Collateral Agent, the Surety Provider or the Program Manager, as
the case may be, at any time to evidence, perfect, maintain and enforce the
ownership interest and security interest, respectively, of Recco and the
Collateral Agent therein and the first priority of such ownership interest and
security interest, respectively. It will, at the request of a duly authorized
officer of Recco, the Servicer, the Collateral Agent, the Surety Provider or the
Program Manager, prepare and deliver financing statements evidencing the
12
ownership interest of Recco in all of the foregoing, which financing statements
must be satisfactory in form and substance to the Program Manager and the Surety
Provider, and the Seller authorizes Recco to file one or more financing
statements. It also hereby irrevocably appoints Recco its attorney-in-fact to
file one or more financing statements on behalf of the Seller.
(ii) It will not, without providing 30 days'
notice to Recco, the Collateral Agent, the Surety Provider and the Program
Manager, and without filing such new financing statements or such amendments to
any previously filed financing statements as Recco, the Servicer, the Collateral
Agent, the Surety Provider or the Program Manager may require, (A) change,
without limiting the provisions of Section 4.3(q), its state of incorporation or
(B) change its name, identity or corporate structure in any manner which might
make any financing statement or continuation statement filed by it pursuant to
the transactions contemplated hereby seriously misleading within the meaning of
9-506 (or any successor provision) of any applicable enactment of the UCC.
(iii) It will not change its principal place of
business or its chief executive office or the location of the office where the
Files relating to the Contracts are kept to a location outside the United
States.
(h) Annual Certificate. It will deliver to Recco, the
=Collateral Agent, the Surety Provider and the Program Manager concurrently with
the delivery of its annual financial statements delivered pursuant to subsection
(l) of this Section 4.3, a certificate of a Responsible Officer dated as of a
date during the 90-day period following the end of the immediately preceding
fiscal year, either (i) stating that such action has been taken with respect to
the recording, registering, filing, re-recording, re-registering and re-filing
of financing statements, continuation statements or other instructions or
documents as is necessary to preserve and protect the interests of Recco and the
Collateral Agent in and to the Purchased Contracts and related Vehicles and
reciting the details of such action or referring to opinions of counsel in which
such details are given and stating what action is required to be taken in the
subsequent 13-month period to preserve and protect such interest or (ii) stating
that no such action is necessary to preserve and protect such interest.
(i) Character of Business; Normal Policies and Procedures;
Credit and Collection Policy. It will (i) at all times comply with its Credit
and Collection Policy, including, but not limited to, its customary practices
with respect to granting rebates and discounts, (ii) not change the character of
its business (except to the extent required by law, of which change the Surety
Provider, the Collateral Agent and the Program Manager shall receive written
notice), if such change is reasonably likely to impair the collectibility of the
Purchased Contracts as a whole, (iii) not materially change its normal policies
and procedures with respect to the servicing of the Purchased Contracts
(including, without limitation, the amount and timing of finance charges, fees
and write-offs) and (iv) not change its Credit and Collection Policy (including,
without limitation, the amount and timing of finance charges, fees and
write-offs), except (with respect to this clause (iv)) with the prior written
consent of the Controlling Party or as required by any Requirement of Law (in
which case it shall give the Collateral Agent, the Surety Provider and the
Program Manager immediate written notice of such Requirement of Law).
(j) Collections. If it receives Collections, it agrees to hold
such Collections in trust for the benefit of Recco and the Collateral Agent and
any such Collections received in the
13
Lock-Boxes shall be transferred to the Clearing Account on the next Business Day
and any Collections received in any other manner shall be transferred to the
Clearing Account on the next Business Day after receipt. Collections shall be
transferred from the Clearing Account to the Collection Account on the next
Business Day after deposit into the Clearing Account.
(k) Obligations Under the Contracts and Dealer Assignments. It
will duly fulfill all obligations on its part to be fulfilled under or in
connection with each Contract and related Dealer Assignment (if any) and will do
nothing to impair the rights of Recco and the holders of the Obligations in the
Purchased Contracts. It agrees that, for the benefit of Recco and the Collateral
Agent, it will continue to make and pursue claims on the Contracts sold by it
hereunder to the extent that any law, regulation or contractual provision
requires that it directly make and pursue such claims, for the benefit of Recco
and the Collateral Agent; provided that the Seller agrees that it is making and
pursuing such claims for the benefit of Recco and the Collateral Agent, and that
any funds received by the Seller based on such claims will be transferred to the
Clearing Account within one Business Day of being received and will thereafter
be transferred to the Collection Account on the next Business Day after deposit
into the Clearing Account.
(l) Financial Statements. It will furnish to Recco (with a
copy to the Program Manager and the Surety Provider):
(i) as soon as available, but in any event
within 90 days after the end of each fiscal year, a copy of its consolidated
balance sheets as at the end of such year and the related statements of income
and retained earnings and of cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, audited by
PricewaterhouseCoopers LLP or other Independent certified public accountants of
nationally recognized standing;
(ii) as soon as available, but in any event not
later than 90 days after the end of each fiscal year, a copy of its unaudited
consolidating balance sheets as at the end of such year and the related
consolidating statements of income and retained earnings and of cash flows for
such year, setting forth in each case in comparative form the figures for the
previous year, certified by a Responsible Officer as being fairly stated in all
respects;
(iii) as soon as available, but in any event not
later than 45 days (or 90 days with respect to the fourth quarter) after the end
of each quarterly period of each of its fiscal years, a copy of its unaudited
consolidated and consolidating balance sheets, as at the end of such quarter and
the related unaudited statements of income and retained earnings and of
consolidated cash flows for such period and the portion of the fiscal year
through the end of such period, setting forth in each case in comparative form
the projected budget amounts for such period and the figures for the previous
year, certified by a Responsible Officer as being fairly stated in all respects
when considered in relation to its financial statements (subject to normal
year-end audit adjustments); and
(iv) as soon as available, but in any event not
later than 30 days after the end of each month (except at the end of those
months in which quarterly reports are due pursuant to paragraph (iii) of this
Section 4.3(l)) of each of its fiscal years, a copy of its unaudited
consolidated balance sheets, as at the end of such period and the related
unaudited statements of income and retained earnings and of cash flows for such
period and the portion of
14
the fiscal year through the end of such period, setting forth in each case in
comparative form the projected budget amounts for such period and the figures
for the previous year, certified by a Responsible Officer as being fairly stated
in all respects when considered in relation to its financial statements (subject
to normal year-end audit adjustments).
All such financial statements shall be complete and correct in all
respects and to be prepared in detail and in accordance with GAAP applied
consistently throughout the periods reflected therein and with prior periods;
provided, however, that the unaudited financial statements referred to in clause
(iii) and (iv) above need not contain footnotes required under GAAP.
(m) Certificates; Other Information. It will furnish to Recco,
with a copy to the Program Manager and the Surety Provider:
(i) concurrently with the delivery of the
financial statements referred to in clause (i) of paragraph (l) a certificate of
its independent certified public accountants reporting on such financial
statements stating that in making its normal examination for purposes of its
annual audit no knowledge was obtained of any Wind-Down Event or Unmatured
Wind-Down Event, except as specified in such certificate;
(ii) concurrently with the delivery of the
financial statements referred to in clauses (i) and (ii) of paragraph (l) a
certificate of a Responsible Officer stating that during such period it has
observed or performed all of its covenants and other agreements, and satisfied
every condition, contained in this Agreement and the other Operative Documents
to be observed, performed or satisfied by it, and that such Officer has obtained
no knowledge of any Unmatured Wind-Down Event or Wind-Down Event except as
specified in such certificate; such certificate shall set forth the details of
each Unmatured Wind-Down Event and Wind-Down Event and the action which it has
taken and proposes to take with respect thereto;
(iii) no later than December 15th of each year,
projections by it of its operating budget and cash flow budget on a monthly
basis for the next fiscal year, certified by a Responsible Officer as being
prepared in good faith on the basis of the assumptions stated therein, which
assumptions were reasonable in light of conditions existing at the time of
delivery thereof and represented, at the time of delivery, as its best estimate
of its future financial performance;
(iv) within five Business Days after the same are
sent, made or filed, copies of all financial statements and reports which it may
send to, make to, or file with, the Securities and Exchange Commission or any
state securities commission and any financial statements and reports which it
may send to, make to, or file with, any other Governmental Authority; provided
that if such financial statements or reports are filed electronically with the
SEC, then such financial statements or reports shall be deemed furnished to
Recco, the Program Manager and the Surety Provider upon receipt of notice of
such filing by Recco, the Program Manager or the Surety Provider (as
applicable).
(v) promptly, notification of each Purchased
Contract which becomes an Ineligible Contract; and
15
(vi) promptly, such additional financial and
other information as Recco, the Program Manager, the Surety Provider or the
Collateral Agent may from time to time reasonably request.
(n) Delivery of Other Reports. It will furnish, or instruct
the Servicer to furnish any other reports required to be delivered pursuant to
this Agreement and the other Operative Documents.
(o) Annual Certificate. Concurrently with the delivery of its
financial statements with respect to each fiscal year required to be delivered
pursuant to clauses (i) and (ii) of paragraph (l), it will furnish to Recco, the
Program Manager and the Surety Provider, a certificate of a Responsible Officer
to the effect that the facts upon which counsel to the Seller relied in giving
its legal opinion on the Effective Date, to the effect that the Seller and Recco
would not be substantively consolidated for purposes of the Bankruptcy Code,
have not changed.
(p) Insurance.
(i) It will maintain, or cause to be maintained
on its behalf, with financially sound and reputable insurance companies,
insurance on all its property in at least such amounts and against at least such
risks as are usually insured against in the same general area by companies
engaged in the same or a similar business and furnish to Recco (with a copy to
the Program Manager and the Surety Provider), at least annually, and otherwise
upon written request, full information as to the insurance carried. All such
insurance policies relating to any Collateral shall name Recco and the
Collateral Agent as additional insureds and loss payees, as applicable, and
shall provide that Recco and the Collateral Agent receive at least 30 days'
prior written notice of the cancellation thereof.
(ii) It will require each Obligor to obtain
physical damage insurance covering the Vehicle as of the execution of the
related Purchased Contract. It will maintain in full force and effect the
Blanket Policy, and shall at all times comply with all of the provisions of such
insurance policy applicable to it so long as such insurance policy is in effect.
It shall at all times comply with all of the provisions applicable to the Seller
of the insurance policies referenced in Section 4.2(w) hereof. It will
immediately deposit to the Collection Account all amounts received by it in
respect of or as proceeds of any Insurance Policy to the extent relating to
Purchased Contracts or related Vehicles.
(q) Merger or Consolidation. It shall not be a party to any
merger, consolidation, or other corporate transaction pursuant to which the
surviving entity or corporate successor is (i) not Onyx or (ii) not consented to
in writing by the Program Manager and the Surety Provider.
(r) Local Counsel Opinions. In the event that, at any time,
the Outstanding Balance of all Purchased Contracts originated in a single state
(other than the State of California) equals or exceeds 10% of the aggregate
Outstanding Balance of all Purchased Contracts, then the Seller shall, within 30
days following the occurrence of such event, deliver to the Program Manager, the
Surety Provider, S&P and ▇▇▇▇▇'▇ an opinion of counsel with respect to the
requirements under the applicable laws of such state for the assignment of a
security interest in a Vehicle to the Collateral Agent for the benefit of the
holders of the Obligations. Such opinion of counsel shall be rendered by a firm
the attorneys of which are admitted to the practice of law in such state, and
such opinion shall be in form and substance acceptable to the Program Manager
and the Surety Provider.
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(s) Contracts Not to be Evidenced by Instruments. The Seller
will take no action to cause any Purchased Contract to be evidenced by an
instrument except in connection with the enforcement or collection of such
Purchased Contract.
Section 4.4 Covenants of Servicer. The Servicer covenants and agrees
with Recco, the Program Manager and the Surety Provider that so long as this
Agreement shall remain in effect:
(a) Corporate Existence. It will preserve and maintain its
existence as a corporation in good standing under the laws of the state of
Delaware and in every jurisdiction where the failure to maintain such existence
or good standing could adversely affect the rights and interests of Recco, the
Collateral Agent or the holders of the Obligations hereunder, or its ability to
perform its obligations hereunder.
(b) Preservation of Electronic Ledger. It will, at its own
cost and expense, (i) retain the electronic ledger used by it as a master record
of the Purchased Contracts and copies of all documents relating to each
Purchased Contract as custodian for Recco, the Collateral Agent, the holders of
the Obligations, and to the extent permitted by the Operative Documents, other
Persons with interests in the Purchased Contracts, (ii) ▇▇▇▇ such electronic
ledger to the effect that the Purchased Contracts have been transferred and
assigned to Recco and are subject to a security interest in favor of the
Collateral Agent for the benefit of the holders of the Obligations, (iii)
arrange for and maintain for the term of this Agreement an appropriate off-site
location for the storage of duplicate or back-up tapes containing the master
record of the Purchased Contracts and deliver or cause to be delivered on at
least a weekly basis to such site, such duplicate or back-up tapes, (iv) provide
or arrange for irrevocable access by the Collateral Agent, the Surety Provider,
the Program Manager and Recco (upon reasonable notice) to the off-site storage
facility maintained by the Servicer pursuant to subsection 4.4(b)(iii) hereof
and (v) deliver duplicate or back-up tapes containing the master record of the
Purchased Contracts to the Program Manager upon request by the Program Manager.
(c) Notices, etc. It will advise Recco, the Program Manager
and the Surety Provider promptly, in reasonable detail, of (i) any Lien asserted
or claim made against any of the Purchased Contracts of which it obtains
knowledge, (ii) the occurrence of any breach by it of any of its
representations, warranties and covenants contained herein, (iii) the occurrence
of any Servicer Termination Event, Wind-Down Event or Unmatured Wind-Down Event,
(iv) any litigation, investigation or proceeding which may exist at any time
between it and any Governmental Authority or other Person or default or event of
default under any of its Contractual Obligations, which in any case could have a
material adverse effect on the value of the Purchased Contracts or its ability
to satisfy its obligations hereunder and (v) the occurrence of any other event,
which could have a Material Adverse Effect, in each case immediately upon
ascertaining or obtaining knowledge of any of the foregoing. Each notice
pursuant to this subsection shall be accompanied by a statement of a Responsible
Officer setting forth details of the occurrence referred to therein and stating
what action it proposes to take with respect thereto.
(d) Right of Inspection. It will permit each of Recco, the
Collateral Agent, the Surety Provider and the Program Manager, and their
representatives, at all times to have full and free access, upon reasonable
prior notice and during normal business hours, to all of its books,
correspondence and records insofar as they relate to the Contracts, the related
Vehicles or the related Files, and Recco, the Collateral Agent, the Surety
Provider and the Program Manager,
17
and their representatives may examine the same, take extracts therefrom and make
photocopies thereof, and it agrees to render to Recco, the Collateral Agent, the
Surety Provider and the Program Manager, or their representatives, at its sole
cost and expense such clerical and other assistance as may be reasonably
requested with regard thereto.
(e) Delivery of Notices, Etc. It will deliver or cause to be
delivered to Recco, the Lenders, the Program Manager, the Surety Provider or the
Collateral Agent, as the case may be, such notices, documents, reports,
certificates and other documents (i) required to be delivered by it pursuant to
the Operative Documents and (ii) as may be reasonably requested by the Program
Manager or the Surety Provider from time to time.
(f) Merger or Consolidation. It shall not be a party to any
merger, consolidation, or other corporate transaction pursuant to which the
surviving entity or corporate successor is (i) not Onyx, or (ii) not consented
to in writing by the Surety Provider and the Program Manager.
(g) Extension or Amendment of Contracts. It shall not amend,
modify or waive any term or condition of any Purchased Contract if such
extension, modification or waiver shall adversely affect the cash flow of such
Purchased Contract, unless (i) the Controlling Party shall have previously
approved such extension, modification or waiver or (ii) such extension,
modification or waiver shall be in compliance with the Credit and Collection
Policy; provided that it shall not amend, modify or waive the Annual Percentage
Rate or the principal balance of any Purchased Contract such that the Annual
Percentage Rate or the principal balance of any Purchased Contract shall be
effectively reduced, unless the Controlling Party shall have previously approved
such extension, modification or waiver.
(h) Recovery Procedure. It will maintain its Recovery
Procedure in good operational order and permit representatives of Recco, the
Surety Provider and Program Manager access, upon reasonable prior notice and
during normal business hours, to its management employees to fully discuss such
Recovery Procedure. If it obtains a third party to maintain such Recovery
Procedure, then it shall arrange to permit representatives of Recco, the Surety
Provider and the Program Manager access, upon reasonable prior notice and during
normal business hours, to such system to make such inspections and examinations
as it deems necessary.
(i) Conduct of Business. It will comply with all applicable
laws, rules, regulations, and orders with respect to it, its business and
properties and all Contracts it services, the failure to comply with which could
have a Material Adverse Effect.
(j) Defense of the Purchased Contracts. It will not create,
permit or suffer to exist, and will take such other actions as are necessary to
remove, any Lien, claim or right in, to or on any Purchased Contract, and will
defend the right, title and interest of Recco and the Collateral Agent in and to
the Purchased Contracts against the claims and demands of all Persons
whomsoever, other than Liens permitted by Section 4.3(e).
(k) Insurance. It will use reasonable efforts to insure that
each Obligor under a Purchased Contract maintains physical damage insurance
covering the related Vehicle. It will immediately deposit to the Collection
Account all amounts received by it in respect of or as proceeds of any Insurance
Policy to the extent relating to the Purchased Contracts or related Vehicles.
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(l) Normal Policies and Procedures; Credit and Collection
Policy. It will (i) at all times comply with its Credit and Collection Policy,
including, but not limited to, its customary practices with respect to granting
rebates and discounts and (ii) not materially change its normal policies and
procedures with respect to the servicing thereof or change its Credit and
Collection Policy (including, without limitation, the amount and timing of
finance charges, fees and write-offs), except with the prior written consent of
the Controlling Party or as required by any Requirement of Law (in which case it
shall give the Surety Provider and the Program Manager immediate written notice
of such Requirement of Law).
(m) Collections. If it receives Collections, it agrees to hold
such Collections in trust for the benefit of Recco and the Collateral Agent and
any such Collections received in the Lock-Boxes shall be transferred to the
Clearing Account on the next Business Day and any Collections received in any
other manner shall be transferred to the Clearing Account on the next Business
Day after receipt. Collections shall be transferred from the Clearing Account to
the Collection Account on the next Business Day after deposit into the Clearing
Account.
(n) Obligations Under the Contracts and Dealer Assignments. It
will duly fulfill all obligations on its part to be fulfilled under or in
connection with each Purchased Contract and related Dealer Assignment (if any)
and will do nothing to impair the rights of Recco or the Collateral Agent in the
Purchased Contracts.
(o) Contracts Not to be Evidenced by Instruments. The Servicer
will take no action to cause any Purchased Contract to be evidenced by an
instrument except in connection with the enforcement or collection of such
Purchased Contract.
(p) Delivery of Servicer's Extension Report. It will, on each
Determination Date, furnish to the Controlling Party a report (t he "Servicer's
Extension Report") setting forth (i) the number of extensions granted by the
Servicer during the prior calendar month, and (ii) the Outstanding Balance of
all Purchased Contracts on which an extension has been granted by the Servicer
during the prior calendar month pursuant to Section 4.4(h) of this Agreement.
Section 4.5 Repurchase of Ineligible Contracts. On each Business Day,
the Seller and the Servicer will notify Recco of the aggregate Outstanding
Balances of Purchased Contracts, if any, that are determined to be Ineligible
Contracts as of the preceding Business Day which notice shall specify such
Purchased Contracts. The Surety Provider and the Program Manager may also notify
the Seller and the Servicer on any Business Day of Purchased Contracts which the
Surety Provider or the Program Manager shall have determined to be Ineligible
Contracts. The Seller shall repurchase such Ineligible Contracts on the next
Determination Date, or if a Borrowing Base Deficiency shall have occurred as a
result of a Purchase Contract being an Ineligible Contract, on the next Business
Day to occur following the notification of ineligibility given or received by it
with respect thereto (such next Determination Date or Business Day, a
"Repurchase Date") by depositing in the Collection Account the Purchase Price
originally paid by Recco with respect to such Ineligible Contract, plus an
amount equal to the amount of Finance Charges that accrued on such Ineligible
Contract from and including the Purchase Date related to such Ineligible
Contract to, but excluding, the Repurchase Date, less an amount equal to the
amount of Collections representing principal received by Recco and deposited to
the Collection Account with respect to such Ineligible Contract to, but
excluding the Repurchase Date. On such Repurchase Date upon the payment in full
in cash of the Repurchase Price by the Seller, Recco shall automatically and
without further action (other than the authorization and
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filing of applicable UCC financing statements in connection with the
reconveyance of such Ineligible Contract) be deemed to transfer, assign,
set-over and otherwise convey to the Seller, without recourse, representation or
warranty, all the right, title and interest of Recco in and to such Ineligible
Contracts, all monies due or to become due with respect thereto, and all
proceeds thereof.
Section 4.6 Financial Covenants of Seller. The Seller covenants and
agrees with Recco that so long as this Agreement shall remain in effect:
(a) Adjusted Tangible Net Worth to Total Assets. The
percentage equivalent of the ratio of Adjusted Tangible Net Worth to Total
Assets shall be at least 15% as of the end of each fiscal quarter.
(b) Adjusted EBITDA Coverage Ratio. The Adjusted EBITDA
Coverage Ratio shall be greater than 1.5:1 as of the end of each fiscal quarter.
(c) Ratio of Securitization Assets to Adjusted Tangible Net
Worth. The ratio of Securitization Assets to Adjusted Tangible Net Worth shall
not be greater than 3:1 as of the end of each fiscal quarter.
As used in this Section 4.6, the following terms shall have the
following meanings:
"Adjusted EBITDA Coverage": The sum of: (1) pre-tax
income, (2) interest expense, (3) amortization of excess servicing asset and (4)
other amortization and depreciation, less any gain on sale recognized according
to FASB 140 (or any successor FASB ruling), divided by interest expense, each of
the above listed items as they appear in the consolidated financial statements
of Onyx prepared in accordance with GAAP.
"Adjusted Tangible Net Worth": The sum of (i) Net
=Worth and (ii) Eligible Subordinated Debt; provided, however, that for purposes
of this calculation, Eligible Subordinated Debt shall not exceed 20% of Adjusted
Tangible Net Worth.
"Eligible Subordinated Debt": The total subordinated
debt and non-common equity (i.e. preferred stock) of Onyx and its Subsidiaries
on a consolidated basis having original maturities of 3 years or more.
"Net Worth": The amount equal to Total Assets minus
Total Liabilities of Onyx and its Subsidiaries on a consolidated basis
calculated in accordance with GAAP minus any intangible assets including inter
alia, good will, franchises and intellectual property.
"Securitization Assets": The sum of: (1) trust
receivables and (2) excess servicing (retained interest in securitized assets
net of amortization), each of the above listed items as they appear in the
consolidated financial statements of Onyx and its Subsidiaries prepared in
accordance with GAAP.
"Total Assets": All assets which in accordance with
GAAP would be included in determining total assets as shown on the assets side
of the consolidated balance sheet of Onyx and its Subsidiaries.
"Total Liabilities": All liabilities which in
accordance with GAAP would be included in determining total liabilities as shown
on the liability side of the consolidated balance sheet of Onyx and its
Subsidiaries.
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Section 4.7 Representations and Warranties of Recco. Recco represents
and warrants to the Seller and the Program Manager that, as of the date hereof
and as of each Purchase Date:
(a) Corporate Existence. Recco is a corporation duly
incorporated, validly existing and in good standing under the laws of the state
of Delaware, with full corporate power and authority to conduct its business and
to own its properties and other assets, and is duly qualified to do business,
and is in good standing in every jurisdiction in which the nature of its
business requires it to be so qualified.
(b) Corporate Power; Authorization; Non-Contravention. The
execution, delivery and performance by Recco of this Agreement and all other
agreements, instruments and documents to be delivered by it hereunder, and the
transactions contemplated hereby and thereby, are within Recco's corporate
powers, have been duly authorized by all necessary corporate action, do not
contravene (i) Recco's charter or by-laws, (ii) any Requirement of Law
applicable to Recco or (iii) any Contractual Obligation, and do not result in or
require the creation of any Lien upon or with respect to any of its properties
(other than as contemplated hereunder and under the terms and conditions of the
Operative Documents). This Agreement has been duly executed and delivered on
behalf of Recco.
(c) Enforceable Obligation. This Agreement is the legal, valid
and binding obligation of Recco enforceable against Recco in accordance with its
terms except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforceability of creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law).
Section 4.8 Collecting Title Documents Not Delivered on the Purchase
Date. In the case of any Purchased Contract in respect of which, in place of a
Title Document (or a notation in the electronic title records), the Servicer
received on the related Purchase Date written evidence from the Vehicle Dealer
selling the related Vehicle that, or otherwise in respect of which, the Title
Document or a notation in the electronic title records for such Vehicle showing
Onyx as first lienholder has been applied for from the Registrar of Titles, the
Servicer shall use its best efforts to collect (or to obtain evidence in the
electronic title records of) such Title Document from the Registrar of Titles as
promptly as possible. If such Title Document (or a notation in the electronic
title records) showing Onyx as first lienholder is not received by the Servicer
(or verified by the Servicer in the electronic title records) within 180 days
after the related Purchase Date with respect to each Purchased Contract, then
the representation and warranty in Section 4.2(s) as to any such Purchased
Contracts shall be deemed to have been incorrect in a manner that materially and
adversely affects the Collateral Agent, and the Seller shall be obligated to
repurchase such Purchased Contract in accordance with Section 4.5.
ARTICLE V
SELLER NOTE AND SUBORDINATED NOTE
Section 5.1 Seller Note.
(a) On the Closing Date, Recco issued to the Seller the seller
note substantially in the form of Exhibit A (the "Seller Note"). The principal
amount of the Seller Note shall be calculated pursuant to the Daily Report and,
on any day, shall be equal to the Seller Interest on such day. The Seller Note
shall (x) be dated the Closing Date, and (y) be stated to mature on the
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Scheduled Maturity Date. Interest on the principal amount of the Seller Note
shall accrue and be payable on each Determination Date, as provided in the
Security Agreement, at a rate per annum equal to the Seller Note Interest Rate.
Accrued but unpaid interest on Seller Note shall not be capitalized. The
principal amount of the Seller Note shall not be increased after the Commitment
Termination Date.
(b) Seller agrees and confirms that the Seller Note represents
solely an obligation of Recco to make certain payments from funds available
under the Security Agreement and only to the extent, in the manner and at the
times set forth in the Security Agreement, and that the Seller Note does not
represent an interest in, and is not secured by, the Purchased Contracts, the
proceeds thereof or any other Collateral.
(c) Recco may at any time and from time to time prepay the
Seller Note, in whole or in part, without premium or penalty, provided that a
Wind-Down Event would not occur as a result of such prepayment.
Section 5.2 Restrictions on Transfer of Seller Note. Neither the Seller
Note nor any right of the Seller to receive any payment thereunder, shall be
assigned, transferred, exchanged, pledged, hypothecated, participated or
otherwise conveyed except with the prior written consent of the Controlling
Party, which consent shall not be unreasonably withheld or delayed.
Section 5.3 Subordinated Note.
(a) On the Closing Date, Recco issued to the Seller the
subordinated note substantially in the form of Exhibit B (the "Subordinated
Note"). The principal amount of the Subordinated Note shall be calculated
pursuant to the Daily Report and, on any day, shall be equal to the Subordinated
Interest on such day; provided, however, that the principal amount of the
Subordinated Note shall be fixed on and not be recalculated after the Commitment
Termination Date.
(b) Interest on the principal amount of the Subordinated Note
shall accrue at a rate set forth in the Subordinated Note. Principal and
interest payments on the Subordinated Note may be made only to the extent
permitted by the Security Agreement. Principal amounts outstanding on the
Subordinated Note shall increase concurrently with the payment of the Purchase
Price pursuant to the terms of Section 2.3(a)(ii) hereof. Principal payments on
the Subordinated Note shall become payable only upon the release of Collateral
by the Collateral Agent pursuant to, and in accordance with, Section 23(b) of
the Security Agreement. Except to the extent permitted by the Security
Agreement, the Seller agrees not to ask, demand, ▇▇▇ for or take or receive from
Recco in cash or other property, by set-off or in any other manner, (including,
without limitation, from or by way of the Collateral), payment of all or any
part of the Subordinated Note.
(c) The Seller agrees upon any distribution of all or any of
the assets of Recco to creditors of Recco upon the dissolution, winding up,
total or partial liquidation, arrangement, reorganization, adjustment,
protection, relief, or composition of Recco or its debts, any payment or
distribution of any kind (including, without limitation, cash, property,
securities and any payment or distribution which may be payable or deliverable
by reason of the payment of any other Debt of Recco being subordinated to the
payment of the Subordinated Note) in respect of the Subordinated Note that
otherwise would be payable or deliverable upon or with respect to the
Subordinated Note, directly or indirectly, by set-off or in any other manner,
including, without
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limitation, from or by way of the Collateral, shall be paid or delivered
directly to the Collateral Agent for application (in the case of cash) to or as
Collateral (in the case of non-cash property or securities) for the payment or
prepayment in full of, the Obligations until the Obligations shall have been
indefeasibly paid in full in cash. The Collateral Agent is irrevocably
authorized and empowered (in its own name or in the name of the Seller or
otherwise), but shall have no obligation, to demand, ▇▇▇ for, collect and
receive every payment or distribution referred to in the preceding sentence and
give acquittance therefor and to file claims and proofs of claim and take such
other action (including, without limitation, voting the Subordinated Note and
enforcing any security interest or other lien securing payment of the
Subordinated Note) as the Collateral Agent may deem necessary or advisable for
the exercise or enforcement of any of the rights or interest of the holders of
the Obligations. The Seller shall duly and promptly take such action as the
Collateral Agent may request to (i) collect the Subordinated Note for the
account of the holders of the Obligations and to file appropriate claims or
proofs of claim in respect of the Subordinated Note, (ii) execute and deliver to
the Collateral Agent such powers of attorney, assignments or other instruments
as the Collateral Agent may request in order to enable the Collateral Agent to
enforce any and all claims with respect to, and any security interests and other
liens securing payment of, the Subordinated Note, and (iii) collect and receive
any and all payments or distributions which may be payable or deliverable upon
or with respect to the Subordinated Note.
(d) All payments or distributions upon or with respect to the
Subordinated Note that are received by the Seller contrary to the provisions of
the Operative Documents shall be received in trust for the benefit of the
holders of the Obligations, shall be segregated from other funds and property
held by the Seller and shall be forthwith paid over to the Collateral Agent in
the same form as so received (with any necessary endorsement) to be applied (in
the case of cash) to, or held as Collateral (in the case of non-cash property or
securities) for the payment or prepayment in full of, the Obligations until such
Obligations shall have been indefeasibly paid in full in cash. The Seller agrees
that no payment or distribution to the holders of the Obligations pursuant to
the provisions of the Subordinated Note shall entitle the Seller to exercise any
rights of subrogation in respect thereof against Recco until the Obligations and
all principal and interest under the Seller Note shall have been indefeasibly
paid in full in cash. The Seller and Recco hereby waive promptness, diligence,
notice of acceptance and any other notice with respect to any of the Obligations
and any requirement that the Collateral Agent protect, secure, perfect or insure
any security interest or lien on any property subject thereto or exhaust any
right or take any action against Recco or any other Person or any Collateral.
(e) The Subordinated Note is secured by the Collateral
pursuant to the Subordinated Security Agreement, subject to the prior lien of
the Collateral Agent under the Security Agreement. No payments may be received,
directly or indirectly, by the Seller (and if received, the Seller agrees to
return such payments to Recco) on the Subordinated Note unless Recco has paid
all amounts required pursuant to the Security Agreement to be paid prior to any
payments in respect of the Subordinated Note.
(f) The Seller agrees and confirms that the Collateral Agent
shall not have any duty whatsoever to the Seller as holder of the Subordinated
Note and that the Collateral Agent shall not be liable to the Seller for any
action taken or omitted to be taken with respect to the Subordinated Note or the
Collateral under the Security Agreement.
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(g) Prior to the indefeasible payment in full in cash of the
other Obligations, the Seller will not seek to collect any amounts owing under
the Subordinated Note or exercise or enforce any of its rights under the
Subordinated Security Agreement.
(h) The Seller and Recco further agree that at no time
hereafter will any part of the indebtedness represented by the Subordinated Note
be represented by any negotiable instruments or other writings except the
Subordinated Note.
(i) The Seller and Recco waive notice of and consent to the
creation of the Loans and any of the other Obligations, any extensions granted
or other action taken by the Lenders, the Surety Provider, the Program Manager
or the Collateral Agent with respect thereto, the taking or releasing of
Collateral or any obligors or guarantors for the payment thereof, and the
releasing of the Seller or any other subordinated creditors. No failure or delay
by the Lenders, the Surety Provider, the Program Manager or the Collateral Agent
to exercise any right granted herein, or in any other agreement or by law shall
constitute a waiver of such right or of any other right.
(j) The terms of the Subordinated Note and the subordination
effected hereby, and the rights of the Lenders, the Surety Provider, the Program
Manager and the Collateral Agent and the obligations of the Seller and Recco
arising hereunder, shall not be affected, modified or impaired in any manner or
to any extent by (a) any amendment or modification of or supplement to any
provision of the Operative Documents or any instrument or document executed or
delivered pursuant thereto or in connection with the transactions contemplated
thereby; (b) the validity or enforceability of any of such documents; (c) any
exercise or non-exercise of any right, power or remedy under or in respect of
the other Obligations or any instruments or documents related thereto or arising
at law; or (d) any waiver, consent, release, indulgence, extension, renewal,
modification, delay or other action, inaction or omission in respect of the
other Obligations or any of the instruments or documents related thereto.
Section 5.4 Restrictions on Transfer of Subordinated Note. Neither the
Subordinated Note nor any right of the Seller to receive any payment thereunder,
shall be assigned, transferred, exchanged, pledged, hypothecated, participated
or otherwise conveyed; provided, however, that the Seller may pledge or
otherwise transfer the Subordinated Note with the prior written consent of the
Controlling Party; provided, further, that any such transferee or pledgee of the
Subordinated Note shall (i) be bound by all of the terms applicable to the
Subordinated Note set forth in the Operative Documents and (ii) execute an
agreement containing a provision substantially in the form of Section 9.15
hereof.
ARTICLE VI
TERMINATION OF COMMITMENT
Section 6.1 Termination.
(a) Subject to the payment of any and all fees required to be
paid pursuant to the Fee Letters and the Insurance Agreement, the Seller may
terminate the commitment of the Lenders to make loans at any time by giving ten
Business Days prior written notice to Recco and the Program Manager.
(b) The commitment of the Lenders to make loans shall
terminate on the Commitment Termination Date.
Section 6.2 Remedies.
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(a) On the Commitment Termination Date, all purchases by, and
sales to, Recco of Contracts hereunder shall immediately cease.
(b) On and after the Commitment Termination Date, Recco shall
have, in addition to all other rights under this Agreement, all rights and
remedies provided under any applicable law.
(c) On and after the Commitment Termination Date, Recco shall
continue to maintain its interest in all Purchased Contracts created prior to
such date and all amounts received as payments on or with respect to the
Purchased Contracts will continue to be paid to Recco as provided herein.
ARTICLE VII
INDEMNIFICATION, ADDITIONAL COSTS, INSPECTION AND CERTAIN
LITIGATION MATTERS
Section 7.1 Indemnities.
(a) Without limiting any other rights that Recco may have
hereunder or under applicable law, the Seller hereby agrees to indemnify Recco,
its directors, employees, officers, successors and assigns (collectively, the
"Indemnified Parties") from and against any and all damages, losses, claims,
liabilities and related costs and expenses, including all attorneys' fees and
disbursements (all of the foregoing being collectively referred to as the
"Indemnified Amounts"), awarded against or incurred by any of them arising out
of or as a result of this Agreement, the Operative Documents or Recco's
ownership of any Purchased Contracts, excluding, however, recourse (except as
otherwise specifically provided in this Agreement) for uncollectible Purchased
Contracts. Without limiting the generality of the foregoing, the Seller shall
indemnify the Indemnified Parties for all Indemnified Amounts relating to or
resulting from:
(i) the transfer of an interest in any Contract
other than an Eligible Contract;
(ii) reliance on any representation or warranty
made by the Seller (or any of its Responsible Officers) or the Servicer (or any
of its Responsible Officers), if the Seller or any Affiliate of the Seller is
acting as the Servicer, under or in connection with the Operative Documents, and
any information or report delivered by the Seller or the Servicer pursuant
hereto, which shall have been false or incorrect in any material respect when
made or deemed made;
(iii) the failure by the Seller or the Servicer
(if the Servicer is the Seller or any Affiliate of the Seller) to comply with
any applicable law, rule or regulation with respect to any Purchased Contract or
the nonconformity of any Purchased Contract with any such applicable law, rule
or regulation;
(iv) the failure to vest and maintain vested in
Recco or to transfer to Recco, legal and equitable title to and ownership of,
the Contracts that are, or are intended to be, Purchased Contracts, together
with all proceeds thereof, including, without limitation, all Collections and
other items that constitute proceeds, free and clear of any Lien whether
existing at the time of the Purchase of such Contract or at any time
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thereafter, or the failure to perfect, or to maintain the Lien on any Vehicle
subject to a Purchased Contract;
(v) the failure to file, in a timely manner,
financing statements or other similar instruments or documents required under
the UCC in effect in the state in which the Seller is organized or the Seller's
principal place of business or chief executive office is located or the location
of the Collateral as required under such law or other applicable laws with
respect to any Contracts sold to Recco, whether at the time of any Purchase or
at any subsequent time;
(vi) any defense, setoff, counterclaim,
recoupment or reduction of liability whatsoever under any Purchased Contract,
arising out of a breach by the Seller of any obligation under such Purchased
Contract or arising out of any other agreement, indebtedness or liability at any
time owing to or in favor of any other Person from the Seller (it being
understood that all such obligations of the Seller shall be and remain
enforceable against and only against the Seller and shall not be enforceable
against Recco);
(vii) any failure of the Seller or the Servicer
(if the Servicer is the Seller or any Affiliate of the Seller) to perform its
duties or obligations in accordance with the provisions of this Agreement;
(viii) any products liability claim or personal
injury or property damage suit or other similar or related claim or action of
whatever sort arising out of or in connection with merchandise or services which
are the subject of any Purchased Contract or any Vehicle;
(ix) the failure by the Seller or the Servicer
(if the Servicer is the Seller or any Affiliate of the Seller) to pay when due
any taxes payable by it, including without limitation, franchise taxes and
sales, excise, transfer or personal property taxes payable in connection with
the Contracts or the sale thereof;
(x) the failure by the Seller or the Servicer
(if the Servicer is the Seller or an Affiliate of the Seller) to be duly
qualified to do business, to be in good standing or to have filed appropriate
fictitious or assumed name registration documents in any jurisdiction;
(xi) the commingling of Collections at any time
with other funds; and
(xii) the failure of any Lock-Box Bank or the
Clearing Account Bank to remit any amounts held in its Lock-Box or in the
Clearing Account as the case may be whether by reason of the exercise of setoff
rights or otherwise.
Notwithstanding the foregoing, Recco hereby agrees that under no
circumstances shall the Seller be liable for, or required to pay any Indemnified
Amount, other than as set forth in Section 4.5, resulting from, (i) the credit
risk of an Obligor, or for which payment therefor would otherwise constitute
recourse to the Seller for an uncollectible Contract or Contracts (except to the
extent made uncollectible by acts or omissions of the Seller or, if the Servicer
is the Seller or an Affiliate thereof, the Servicer) or (ii) gross negligence or
willful misconduct on the part of the Indemnified Party to which such
Indemnified Amount would otherwise be due.
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(b) Any Indemnified Amount due hereunder shall be payable 15
days after demand.
Section 7.2 Rights of Inspection. Recco, its representatives and
assigns, the Program Manager and the Surety Provider shall at all times have
full and free access, upon reasonable prior notice during normal business hours
(a) to the Seller's officers and independent accountants in order to discuss the
affairs, finances and accounts of the Seller insofar as they relate to the
Purchased Contracts, the related Files and/or the related Vehicles and the
transactions contemplated hereby and (b) to all the books, correspondence and
records of the Seller insofar as they relate to the Purchased Contracts, the
related Files and/or the related Vehicles and the transactions contemplated
hereby, and Recco and its representatives and assigns, the Program Manager and
the Surety Provider may examine the same, take extracts therefrom and make
photocopies thereof, and the Seller agrees to render to Recco, its
representatives and assigns, the Program Manager and the Surety Provider, at the
Seller's sole cost and expense, such clerical and other assistance as may be
requested with regard thereto. All such reasonable expenses of the Program
Manager and the Surety Provider shall be for the account of the Seller and shall
be provided for or reimbursed within 15 days after presentment of an invoice
requesting same.
Section 7.3 Certain Litigation Matters.
(a) Recco and Onyx shall provide prompt written notice to the
Surety Provider, the Collateral Agent and the Program Manager of any action,
proceeding or investigation of which a Responsible Officer of Recco or Onyx (as
applicable) has actual knowledge that could materially adversely affect the
rights or obligations of the Surety Provider, the Collateral Agent or the
Program Manager under the Operative Documents or any other document delivered
with respect thereto.
(b) Recco and Onyx shall, upon written notice from (i) the
Controlling Party or, (ii) with prior written consent of or at the request of,
the Controlling Party, allow the Surety Provider, the Collateral Agent or the
Program Manager to institute, assume or control the defense of any action,
proceeding or investigation that could materially adversely affect the rights or
obligations of the Surety Provider, the Collateral Agent or the Program Manager
under the Operative Documents or any other document delivered with respect
thereto, if Onyx or Recco (as the case may be) shall not be actively defending
such action, proceeding or investigation.
(c) Neither Recco nor Onyx shall, without the Controlling
Party's prior written consent or unless directed by the Controlling Party, agree
to any settlement of any action, proceeding or investigation that could
materially adversely affect the rights or obligations of the Surety Provider,
the Collateral Agent or the Program Manager under the Operative Documents or any
other document delivered with respect thereto.
(d) For purposes of this Section 7.3 and the definition of
"Surety Provider Defense Costs" set forth in the Definitions List, and without
limiting the meaning of the term "materially," any of the following actions or
proceedings shall be deemed to materially adversely affect the rights or the
obligations of the Surety Provider, the Collateral Agent or the Program Manager:
(i) any action or proceeding brought as a putative class action or lawsuit where
the plaintiff is proceeding in a representative capacity, whether brought under
federal or state procedural rules; or (ii) any actions or proceedings where the
aggregate amount of damages sought against Onyx or Recco in such actions or
proceedings shall be equal to or in excess of
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$1,000,000 and in which the underlying causes of action are related to Onyx's
contract origination procedures, in each case, to the extent such action or
proceeding is related to the Purchased Contracts.
(e) Notwithstanding anything to the contrary herein, the terms
of this Section 7.3 and the definition of "Surety Provider Defense Costs" set
forth in the Definitions List shall not apply to any action or proceeding
involving any of the Seller, the Servicer or Recco or any Affiliate of any of
them, on the one hand, and any of the Surety Provider, the Lenders or CDC, or
any Affiliate of any of them, on the other hand, as adverse parties, in any
action or proceeding.
ARTICLE VIII
THE SERVICER
Section 8.1 Appointment of Servicer. Recco hereby appoints the Seller
to act as servicer of the Purchased Contracts in the name of and on behalf of
Recco, its successors and assigns, in accordance with the provisions hereof and
the Seller hereby accepts such appointment. The Servicer shall use reasonable
care (and, in any event, no less care than it exercises with respect to all
Contracts it services for itself and others) in performing its duties as
servicer hereunder using at least that degree of skill and attention that a
prudent Person similarly situated and charged with similar functions would
utilize and, without limiting the foregoing, shall service the Purchased
Contracts in accordance with the Credit and Collection Policy, and all
applicable laws, rules and regulations. The Servicer or its agent shall hold the
Files.
The duties of the Servicer will include, without limitation,
collection and posting of all payments, responding to inquiries of Obligors
regarding the Purchased Contracts, investigating delinquencies, remitting
payments to the Program Manager and the other Persons entitled thereto in a
timely manner, furnishing monthly, quarterly and annual statements with respect
to collections and payments in accordance with the provisions of this Agreement,
and maintaining the perfected first priority security interest of the Collateral
Agent in the Collateral as contemplated in this Agreement and the Security
Agreement. Subject to applicable laws, rules and regulations, the Servicer shall
accelerate the maturity of all or any scheduled payments under any Purchased
Contract under which a default under the terms thereof has occurred and is
continuing (after the lapse of any applicable grace period) no later than the
date such Contract becomes a Defaulted Contract. If required by law, the
Servicer shall collect all payments with respect to amounts due for taxes,
assessments and insurance premiums relating to such Contracts and remit such
amounts to the appropriate Governmental Authority or insurer on or prior to the
date such payments are due. In any case in which any Vehicle related to a
Purchased Contract has suffered damage, the Servicer will expend funds in
connection with any repair or toward the repossession of such Vehicle if it
reasonably determines that such repair and/or repossession will increase the
Recoveries by an amount greater than the amount expended.
The Servicer will be required to pay all expenses incurred by
it in connection with its activities under this Agreement, including fees and
disbursements of independent accountants, taxes imposed on the Servicer,
expenses incurred in connection with payments and reports pursuant to this
Agreement, and all other fees and expenses not expressly stated under this
Agreement to be for the account of the Seller. The Servicer will be required to
pay all reasonable fees and expenses owing to any bank or trust company in
connection with the maintenance of the Bank Accounts and the fees and reasonable
expenses of the Program
28
Manager and the Collateral Agent. The Servicer shall be required to pay such
fees and expenses for its own account and shall not be entitled to any payment
or reimbursement therefor other than as expressly provided for in the Operative
Documents.
Section 8.2 Collections.
(a) On each Business Day, all Collections received in any
Lock-Box shall be transferred to the Clearing Account on next Business Day.
Except as provided in Section 8.2(c), all Collections received by the Servicer
in any other manner shall be transferred to the Clearing Account on the next
Business Day following receipt and until so transferred, the Servicer shall hold
such cash and other items in trust for the benefit of Recco. All Collections in
the Clearing Account shall be transferred to the Collection Account on the next
Business Day after such Collections are transferred into the Clearing Account.
(b) The Servicer will, at the Servicer's cost and expense and
as agent in the name of and on behalf of Recco, but subject at any time to the
right of Recco to direct and control, endeavor to collect, as and when the same
becomes due, all amounts owing on each Purchased Contract. In the event of
default by an Obligor under any Purchased Contract, the Servicer shall have the
power and authority, on behalf of Recco, to take such action in respect of such
Purchased Contract and the Vehicle related thereto as the Servicer, in the
absence of contrary instructions from Recco, may deem advisable, including the
power to sell such Vehicle; provided however that in no event shall the Servicer
sell any Purchased Contract without the prior written consent of the Controlling
Party. In the enforcement or collection of any Purchased Contract, the Servicer
shall be entitled to ▇▇▇ thereon in its own name or as agent for Recco, in
either case, for the account of Recco.
(c) In the event the Servicer repossesses the Vehicle subject
to any Purchased Contract, the Servicer agrees to use its reasonable efforts to
resell such Vehicle for the account of Recco and the Collateral Agent and shall
remit by deposit in the Collection Account the gross sale proceeds thereof, net
of any costs incurred by any Person with respect to any such repossession and
resale which costs shall not exceed the gross sale proceeds. Recco shall have no
obligation to take any action or commence any proceedings to realize upon any
Purchased Contract or to enforce any of its rights or remedies with respect
thereto. Any moneys collected by the Servicer pursuant to this subsection shall
be segregated by the Servicer, held in trust by the Servicer for Recco and shall
be remitted to the Collection Account on the Business Day of receipt thereof by
the Servicer.
Section 8.3 Maintenance of Records; Quarterly and Annual Reports.
(a) The books of account and other records pertaining to the
Purchased Contracts are the property of Recco and subject to the Lien of the
Collateral Agent. Recco agrees that the Servicer shall hold such records as
custodian for the Collateral Agent (on behalf of the holders of the Obligations)
and Onyx. The Servicer shall maintain all books of account and other records
pertaining to the Purchased Contracts in such form as will enable Recco or the
Program Manager or their designees to determine at any time the status of the
Purchased Contracts. The Servicer will permit Recco, the Surety Provider or the
Program Manager and any Person designated by Recco, the Surety Provider or the
Program Manager, upon reasonable prior notice and during regular business hours,
to inspect, audit, check and make abstracts from all books, accounts, records,
or other papers pertaining to such Purchased Contracts. From time to time, at
the
29
request of Recco, the Surety Provider or the Program Manager, the Servicer, at
its own expense, will deliver to Recco, the Surety Provider and the Program
Manager and any Person designated by Recco, the Surety Provider or the Program
Manager any records and invoices pertaining to the Purchased Contracts and
evidence thereof as Recco, the Surety Provider or the Program Manager or such
designee may deem necessary to enable it to enforce its rights thereunder. In
addition, at the request of the Controlling Party after delivery of a Servicer
Termination Notice or earlier termination or resignation of the Servicer, the
Servicer will deliver all such records and invoices pertaining thereto
(including bills of lading) and other evidence thereof to any Person selected by
the Controlling Party. Whether or not any such item is the property of Recco,
each Contract, computer record, invoice, ledger card, account record or other
evidence of, or record relating to, the Purchased Contracts maintained at the
office of the Servicer or the office of Seller, if requested by the Controlling
Party, will be marked as the Controlling Party may direct to indicate the
ownership thereof by Recco and/or the Lien of the Collateral Agent thereon. The
Servicer will segregate from all other Contracts then owned or being serviced by
the Servicer all documents relating to the Purchased Contracts and will hold in
trust (if such document is not owned by Recco) and safely keep such documents in
separate filing cabinets or other suitable containers marked to show Recco's and
the Collateral Agent's interest with such legend as shall be specified by the
Controlling Party and maintained in such place or places as shall be designated
by the Controlling Party.
(b) The Servicer will deliver to Recco, the Surety Provider
and the Program Manager and any Person designated by the Controlling Party,
within 45 days after the end of each fiscal quarter of the Servicer, a
certificate of a Responsible Officer of the Servicer stating that (a) a review
of the activities of the Servicer during the preceding fiscal quarter and of its
performance under this Agreement was made under the supervision of the officer
signing such certificate and (b) based on such review, the Servicer has fully
performed all its obligations under this Agreement throughout such period
(including its obligations to prepare and deliver each Daily Report and Monthly
Report) in compliance with the terms of this Agreement, or, if there has been a
default in the performance of any such obligation, specifying each such default
known to such officer and the nature and status thereof.
(c) The Servicer, at its expense, will cause a firm of
Independent public accountants satisfactory to the Program Manager and the
Surety Provider to furnish a report (the "Annual Report") to Recco and the
Program Manager and any Person designated by the Program Manager, on or before
March 31st of each year, beginning March 31, 2003, stating that such firm has
examined certain documents and records relating to the servicing of the
Contracts during the preceding fiscal year and that such examination, which has
been conducted substantially in accordance with audit guides or audit programs
generally recognized to be applicable to audits of receivables similar to the
Contracts, has disclosed no items of noncompliance with the provisions of this
Agreement throughout such period which, in the opinion of such firm, are
material, except for such items of non-compliance as shall be set forth in such
report.
Section 8.4 Servicing Fee. On each Determination Date, to the extent
provided for in the Security Agreement and subject to Section 8.11(c) in the
case of any Successor Servicer, as full compensation for its servicing
activities hereunder, the Servicer shall be entitled to receive the Servicing
Fee.
Section 8.5 Resignation; Sub-Contracting.
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(a) The obligation of the Servicer to service the Purchased
Contracts is personal to the Servicer and the parties recognize that another
Person may not be qualified to perform such obligations. Accordingly, the
Servicer's obligation to service the Purchased Contracts hereunder shall be
specifically enforceable and shall be absolute and unconditional in all
circumstances, including, without limitation, after the occurrence and during
the continuation of any Servicer Termination Event hereunder; provided, however,
that a Successor Servicer may be appointed pursuant to Section 8.11 hereof.
(b) The Servicer shall not resign from the obligations and
duties hereby imposed on it as Servicer except upon determination that (i) the
performance of its duties hereunder is no longer permissible under any
applicable law and (ii) there is no reasonable action which the Servicer could
take to make the performance of its duties hereunder permissible under any such
applicable law. Any determination permitting the resignation of the Servicer
shall be evidenced as to clause (i) above by an opinion of counsel to such
effect delivered to Recco, the Surety Provider and the Program Manager. Except
to the extent inconsistent with any such applicable law, no such resignation
shall become effective until a Successor Servicer shall have assumed the
responsibilities and obligations of the Servicer in accordance with Section 8.11
hereof.
(c) If the performance of its duties hereunder is no longer
permissible under applicable law or the cost of such performance is such that
its continuation as Servicer is not warranted as a financial matter, the
Servicer may, with the prior written consent of the Controlling Party and to the
extent permitted by applicable law, subcontract with any other Person to
service, administer or collect the Purchased Contracts, provided that the Person
with whom the Servicer so subcontracts shall not become the Servicer hereunder
and the Servicer shall remain liable for the performance of the duties and
obligations of the Servicer pursuant to the terms hereof.
Section 8.6 Termination. The Servicer's obligations under this
Agreement shall terminate upon the termination of both the Credit Agreement and
the Insurance Agreement; provided, however, that the Servicer shall continue to
be obligated to do all things necessary to apply Collections on the Purchased
Contracts that it receives after such termination in the manner provided in this
Agreement and to perform its obligations hereunder with respect thereto. Upon
termination of this Agreement all authority and power granted to the Servicer
under this Agreement shall pass to and be vested in Recco. The Servicer shall
transfer (i) its electronic records relating to the Purchased Contracts to Recco
in such electronic form as Recco may reasonably request, (ii) all other records,
correspondence and documents to Recco in the manner and at such times as Recco
may reasonably request, (iii) at Recco's expense, upon the request of Recco,
notify all Obligors that the Servicer is no longer the Servicer, (iv) at Recco's
expense, take all such further action as Recco shall reasonably request to
effect the termination of the rights of the Servicer to conduct servicing
hereunder, including, without limitation, the transfer to Recco of all authority
of the Servicer to (A) service Purchased Contracts as provided hereunder, and
(B) receive Collections which shall on the date of such termination be held by
the Servicer for deposit or which shall thereafter be received with respect to
any Purchased Contract.
Section 8.7 Daily Report. No later than 3:00 PM (New York City time) on
each Purchase Date, the Servicer shall deliver a report, substantially in the
form of Exhibit G (the "Daily Report"), to Recco, the Surety Provider and the
Program Manager, together with a Certificate of the Servicer, substantially in
the form of Exhibit F (the "Servicer's Certificate").
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Section 8.8 Monthly Report. No later than 3:00 P.M. (New York City
time) on each Determination Date, the Servicer shall deliver a report,
substantially in the form of Exhibit H (the "Monthly Report") to Recco, the
Surety Provider and the Program Manager, together with a Servicer's Certificate,
covering the Determination Period immediately preceding such Determination Date.
Section 8.9 Servicer Termination Events. If any of the following events
(each a "Servicer Termination Event") shall have occurred and be continuing:
(a) the Servicer shall fail to make any payment, transfer or
deposit required to be made hereunder or under any other Operative Document
within two Business Days of the date on which such payment, transfer or deposit
is due to be made;
(b) the Servicer shall fail to give any notice within three
Business Days after the same is required to be given hereunder;
(c) the Servicer shall fail to submit (i) a Monthly Report
within three Business Days of the day on which such report shall have been
required to be submitted, (ii) a Daily Report within one Business Day of the day
on which such report is required to be submitted or (iii) an Annual Report
within 10 days of the day on which such Annual Report shall have been required
to be submitted;
(d) the Servicer shall fail to observe or perform any other
covenant or agreement applicable to it contained herein or in any other
Operative Document and such failure shall remain unremedied for a period of 10
days; or, if the Seller or one of its affiliates is the Servicer, the Seller
shall breach any of the financial covenants contained in Section 4.6;
(e) the Servicer shall enter a transaction in breach of the
covenant at Section 4.4(f) hereof;
(f) any representation, warranty, certification or statement
made by the Servicer in this Agreement, in any other Operative Document or in
any certificate, financial statement or other document delivered hereunder or
thereunder shall prove to have been incorrect in any material respect when made;
(g) a Bankruptcy Event shall have occurred with respect to the
Servicer or;
(h) the Wind-Down Date shall have occurred;
then, the Program Manager shall, at the request of the Controlling Party,
terminate the Servicer by giving notice thereof in writing to the Servicer and
Seller which notice shall state the effective date of such termination (a
"Servicer Termination Notice"); provided that, in the case of a Servicer
Termination Event described in (g) above, the Servicer shall be terminated
automatically without the necessity to deliver a Servicer Termination Notice.
Upon termination of the Servicer, the Program Manager shall, at the request of
the Controlling Party, implement a Complete Servicing Transfer.
Section 8.10 Servicer Termination.
(a) After the termination of the Servicer, (i) prior to the
appointment of a Successor Servicer pursuant to Section 8.11, the Controlling
Party or any Person designated by the Controlling Party may administer the
administrative, servicing and collection functions of the Servicer, in any
manner the Controlling Party directs, (ii) the Controlling Party or any Person
32
designated by the Controlling Party shall, at any time thereafter, be entitled
to notify the Obligors on any Purchased Contracts to make payment of amounts due
thereunder directly to Recco or the Program Manager or as the Controlling Party
may direct and (iii) the Servicer shall, at its own expense, (A) if so requested
by the Controlling Party, endorse each instrument that is payable to the
Servicer, if any, evidencing any Purchased Contract to the Controlling Party or
any Person designated by the Controlling Party in such manner as the Controlling
Party shall direct and (B) perform any and all acts and execute any and all
documents as may be reasonably requested by Controlling Party in order to effect
the purposes of this Agreement. If the Controlling Party does not elect to
terminate the Servicer and replace the Servicer with a Successor Servicer, the
Controlling Party shall have the right to appoint a firm of public accountants
or any other Person the Controlling Party may choose, to monitor the servicing
of the Purchased Contracts by the Servicer and to furnish to Recco, at the
expense of the Servicer, such letters, certificates or reports thereon as the
Controlling Party shall reasonably request. The Servicer shall cooperate with
such firm in the subsequent monitoring of its servicing of the Purchased
Contracts pursuant to this Agreement and any fees and expenses in connection
therewith shall be paid by the Servicer.
(b) After termination of the Servicer:
(i) On the date that a Successor Servicer shall
have been appointed pursuant to Section 8.11, all authority and power of the
then Servicer under this Agreement shall pass to and be vested in such Successor
Servicer, and, without limitation, the Controlling Party or any Person
designated by the Controlling Party (at the direction of the Controlling Party)
is hereby authorized and empowered to execute and deliver on behalf of the
Servicer, as attorney-in-fact or otherwise, all documents and other instruments
upon the failure of the Servicer to execute or deliver such documents or
instruments, and (upon the failure of the Servicer to cooperate) to do and
accomplish all other acts or things necessary or appropriate to effect the
purposes of such transfer of servicing rights.
(ii) The Servicer agrees to cooperate with the
Controlling Party or any Person Designated by the Controlling Party and the
Successor Servicer in effecting the termination of the responsibilities and
rights of the Servicer to conduct servicing hereunder, including, without
limitation, the transfer to such Successor Servicer of all authority of the
Servicer to service the Purchased Contracts provided for under this Agreement,
including, without limitation, all authority to utilize necessary software and
programs and to receive Collections which shall on the date of transfer be held
by the Servicer for deposit, or which shall thereafter be received with respect
to the Purchased Contracts.
(iii) The Servicer shall promptly transfer
duplicate, back-up, or original tapes, and all other electronic media
constituting all of its electronic records relating to the Purchased Contracts
and records relating to the Commercial Paper Notes to the Successor Servicer in
such electronic form as the Successor Servicer may reasonably request and shall
promptly transfer to the Successor Servicer all other records, correspondence
and documents necessary for the continued servicing of the Purchased Contracts
in the manner and at such times as the Successor Servicer shall reasonably
request.
(iv) At any time following the appointment of a
Successor Servicer, such Successor Servicer shall be authorized to take any and
all steps in the name of the previous Servicer and on behalf of the previous
Servicer necessary or desirable, in the determination of
33
such Successor Servicer, to collect all amounts due under any and all Purchased
Contracts, including, without limitation endorsing the name of the previous
Servicer on checks and other instruments representing Collections, and enforcing
the Purchased Contracts.
Section 8.11 Appointment of Successor Servicer.
(a) On and after the termination of the Servicer, the Servicer
shall continue to perform all servicing functions under this Agreement until the
later of (i) the appointment of a Successor Servicer or (ii) the date specified
in the Servicer Termination Notice or otherwise specified by the Controlling
Party in writing or, if no such date is specified in the Servicer Termination
Notice (if any), until a date mutually agreed upon by the Servicer and the
Controlling Party. The Program Manager shall appoint a successor servicer at the
direction of the Controlling Party (the "Successor Servicer") and such Successor
Servicer shall accept its appointment by a written assumption in a form
acceptable to the Controlling Party.
(b) Upon its appointment, the Successor Servicer shall be the
successor in all respects to the Servicer with respect to servicing functions
under this Agreement and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Servicer by the terms and
provisions hereof, and all references in this Agreement to the Servicer shall be
deemed to refer to the Successor Servicer. Any Successor Servicer, by its
acceptance of its appointment, will automatically agree to be bound by the terms
and provisions of the Liquidity Agreement, if any are applicable. Any Successor
Servicer shall make all representations and warranties that the Servicer makes
hereunder.
(c) In connection with such appointment and assumption, the
Controlling Party may, subject to the provisions of the Security Agreement, make
arrangements for the payment of the Servicing Fee to the Successor Servicer.
(d) Notwithstanding anything to the contrary in this
Agreement, no termination of the Servicer shall be effective until a Successor
Servicer shall be appointed and have accepted such appointment.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Notices, Etc. Except where telephonic instructions or
notices are authorized herein to be given, all notices, demands, instructions
and other communications required or permitted to be given to or made upon any
party hereto shall be in writing and shall be personally delivered or sent by
overnight courier service or by registered, certified or express mail, postage
prepaid, return receipt requested, or by facsimile copy, or telegram (with
messenger delivery specified in the case of a telegram) and shall be deemed to
be delivered for purposes of this Agreement on (a) the second Business Day
following the day on which such notice was placed in the custody of the United
States Postal Service, (b) the next Business Day following the day on which such
notice was placed in the custody of any overnight courier service, including
express mail service or (c) the same Business Day on which such notice is sent
by telegram, messenger or facsimile. Unless otherwise specified in a notice sent
or delivered in accordance with the foregoing provisions of this subsection,
notices, demands, instructions and other communications in writing shall be
given to or made upon the respective parties hereto at their respective
addresses (or to their respective facsimile numbers) indicated below, and, in
the
34
case of telephonic instructions or notices, by calling the telephone number or
numbers indicated for such party below:
If to the Seller: Onyx Acceptance Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Executive Vice President and
Chief Financial Officer
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Servicer: Onyx Acceptance Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Executive Vice President
and Chief Financial Officer
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Recco: Onyx Acceptance Receivables Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the
Program Manager: CDC Financial Products Inc.
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the
Surety Provider: XL Capital Assurance Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Surveillance
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
A copy of any notice delivered to or required to be sent by
the Seller or Servicer hereunder shall be sent by the Seller or the Servicer to
the holder of the Subordinated Note.
Section 9.2 Successors and Assigns. This Agreement shall be binding
upon the parties hereto and their respective successors and assigns and shall
inure to the benefit of the parties
35
hereto, the holders of the Obligations (each of which shall be a third party
beneficiary hereto) and their respective successors and assigns; provided that
the Seller shall not assign any of its rights or obligations hereunder without
the prior written consent of the Surety Provider and the Program Manager. Except
as expressly permitted hereunder or in the Operative Documents, Recco shall not
assign any of its rights or obligations hereunder without the prior written
consent of the Controlling Party.
Section 9.3 Confirmation of Intent; Security Interest. The Seller and
Recco intend that the sales, transfers and assignments herein contemplated
constitute sales and/or contributions, transfers and assignments outright, and
not for security, of the Purchased Contracts and the Other Conveyed Property,
conveying good title thereto free and clear of any Liens, from Seller to Recco,
and that the Purchased Contracts and the Other Conveyed Property shall not be a
part of Seller's estate in the event of the bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, or other similar proceeding
under any federal or state bankruptcy law with respect to the Seller. In the
event that such conveyance is determined to be made as security for a loan made
by Recco or the holders of the Lender Note to the Seller, the Seller hereby
grants to Recco a first priority security interest in all of the Seller's right,
title and interest in and to the Purchased Contracts and the Other Conveyed
Property conveyed pursuant to Section 2.1(a) hereof, and hereby agree that this
Sale Agreement shall constitute a security agreement under the UCC and
applicable law.
Section 9.4 Payments. All payments made hereunder, except as provided
for in Section 2.3(b) hereof, shall be made by 2:00 P.M. (New York City time) on
the day provided for herein. Amounts not paid when due under this Agreement
shall bear interest until paid in full at a rate equal at all times to the
lesser of (a) the Default Rate and (b) the maximum rate permitted by applicable
law, payable on demand. Whenever any payment to be made under this Agreement
shall be stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day.
Section 9.5 Rights to Enable Successor Servicing. The Servicer hereby
represents and warrants to Recco and the Collateral Agent that each of Recco and
the Collateral Agent will have full and free access to, and use of, all rights
and properties necessary or appropriate for the servicing and collecting
functions with respect to Purchased Contracts including, without limitation, all
software rights, and hereby covenants that to the extent Recco or the Collateral
Agent deem it necessary or appropriate, it will immediately transfer, assign and
set over to Recco, the Collateral Agent or such party as the Collateral Agent
shall designate such rights and properties and any other rights or assets upon
the occurrence of a Wind-Down Event to enable and ease successor servicing
hereunder.
Section 9.6 Costs; Expenses and Taxes. In addition to the rights of
indemnification granted pursuant to Section 7.1 hereof, the Seller agrees to pay
on demand to Recco, the Collateral Agent, the Surety Provider and the Program
Manager (a) all costs and expenses in connection with the development,
preparation, execution, delivery and administration (including periodic auditing
by Recco, the Collateral Agent, the Surety Provider, the Program Manager or its
agents or representatives) of this Agreement, including, without limitation, the
reasonable fees and expenses of counsel for any Indemnified Party with respect
hereto and with respect to advising any such Indemnified Party as to their
respective rights and remedies under this
36
Agreement, and (b) all costs and expenses, if any (including reasonable counsel
fees and expenses), in connection with the enforcement of this Agreement.
Section 9.7 Severability Clause. Any provisions of this Agreement which
are 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 provisions in any other jurisdiction.
Section 9.8 Amendments; Governing Law; JURY TRIAL WAIVER. This
Agreement and the rights (including those of the Program Manager, the Surety
Provider and the Collateral Agent) and obligations of the parties hereunder (a)
may not be changed orally but only by an instrument in writing signed by the
parties hereto, the Surety Provider and the Program Manager and (b) shall be
construed in accordance with and governed by 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. No amendment shall be effective without
prior written notice thereof to S&P and ▇▇▇▇▇'▇. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
(ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR BY ANY OF THE OTHER OPERATIVE DOCUMENTS) IN WHICH THEY
SHALL BE ADVERSE PARTIES.
Section 9.9 No Recourse. Except as otherwise expressly provided in
Section 4.5 and 7.1 of this Agreement, it is understood and agreed that the
Seller shall not be liable for the payment of the principal of the Loans, or any
Commercial Paper or for the payment of any business taxes or for any losses
suffered by Recco in respect of ownership of the Purchased Contracts. The
preceding sentence shall not relieve the Seller from any liability hereunder
with respect to its representations, warranties, covenants and other payment and
performance obligations herein described. The Seller is not making any
representations or warranties regarding the collectibility of the Purchased
Contracts or the future performance of the Obligors under the Purchased
Contracts.
Section 9.10 Further Assurances. The Seller agrees to do such further
acts and things and to execute and deliver to Recco such assignments,
agreements, powers and instruments as may be necessary or desirable in order for
Recco to carry into effect the purposes of this Agreement and the other
Operative Documents or to better assure and confirm unto Recco its rights,
powers and remedies hereunder and under the other Operative Documents,
including, without limitation, to record, notify, obtain consents and file and
to re-record, re-notify, re-obtain consents and re-file all such documents and
instruments, at such time or times, in such manner and at such places, all as
may be necessary to preserve and protect the position of the Seller or Recco, as
the case may be, hereunder and under the other Operative Documents. This
covenant shall survive the termination of this Agreement.
Section 9.11 Termination. This Agreement shall terminate on the later
of (a) the date after the Commitment Termination Date of the payment in full of
all amounts due hereunder and the performance of all obligations hereunder and
(b) the date on which the Credit Agreement and the Insurance Agreement are
terminated; provided, however, that all representations, warranties, remedies
and indemnities of the Seller herein, and the agreements of the Seller and the
Servicer made pursuant to Section 9.15 hereof shall survive the termination of
this Agreement.
37
Section 9.12 Assignment to Collateral Agent. Recco hereby assigns to
the Collateral Agent, for the benefit of the holders of the Obligations, all of
its rights hereunder, including, without limitation, the rights of Recco under
Section 6.2. The Seller consents to such assignment and agrees that the
Collateral Agent shall be entitled to enforce this Agreement directly against
the Seller. In addition, Recco agrees to act as agent on behalf of the
Collateral Agent and shall not consent or agree to any waiver, amendment or
other modification of this Agreement or any of the other Operative Documents to
which it is a party without the Controlling Party's prior written consent, and
shall take and refrain from taking any action, and shall exercise and refrain
from exercising any of its rights under the Operative Documents as requested by
the Controlling Party from time to time, including, without limitation, the
right to deliver a Servicer Termination Notice.
Section 9.13 Counterparts. This Agreement may be executed in any number
of counterparts, and by the different parties hereto on the same or separate
counterparts, each of which shall be deemed to be an original instrument.
Section 9.14 Headings. Section headings used in this Agreement are for
convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
Section 9.15 No Bankruptcy Petition Against Recco. The Seller and the
Servicer each covenants and agrees that it will not institute against, or join
any other Person in instituting against, Recco any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any Federal or state bankruptcy or similar law.
38
IN WITNESS WHEREOF, the Seller and Recco have caused this Sale and
Servicing Agreement to be duly executed by their duly authorized officers, all
on the day and year first above written.
ONYX ACCEPTANCE CORPORATION, as Seller
and Servicer
By: ______________________________
Name:
Title:
ONYX ACCEPTANCE RECEIVABLES
CORPORATION
By: ______________________________
Name:
Title:
Acknowledged and Agreed:
CDC FINANCIAL PRODUCTS INC., as Program Manager
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
JPMORGAN CHASE BANK, as Collateral Agent
By: ______________________________
Name:
Title:
39
EXHIBIT A
SELLER NOTE
New York, New York
January 9, 2003
ONYX ACCEPTANCE RECEIVABLES CORPORATION, a Delaware corporation
("Recco"), hereby promises to pay to the order of ONYX ACCEPTANCE CORPORATION, a
California corporation (the "Seller"), the principal amount of this Seller Note,
determined as described below, together with interest thereon equal to the
Seller Note Interest Rate in lawful money of the United States of America.
Capitalized terms used herein but not defined herein shall have the meanings
assigned to such terms in the Definitions List, dated as of the date hereof,
entered into in connection with the Sale and Servicing Agreement, dated as of
January 9, 2003, between the Seller and Recco (such agreement, as it may from
time to time be amended, supplemented or otherwise modified in accordance with
its terms, the "Sale Agreement").
The principal amount of this Seller Note at any time shall be
determined in accordance with the provisions of Section 5.1 of the Sale
Agreement. All principal and accrued interest on this Seller Note shall be due
and payable on the Scheduled Maturity Date; provided, however, that, no payments
may be made, directly or indirectly, on this Seller Note (and if made, the
Seller agrees to return such payments to Recco) until Recco has paid all amounts
required pursuant to the Security Agreement to be paid prior to any payments in
respect of this Seller Note. This Seller Note represents solely an obligation of
Recco to make certain payments from funds available under the Security Agreement
and only to the extent, in the manner and at the times set forth in the Security
Agreement. This Seller Note does not represent a security interest in the
Collateral.
Payments of principal of and interest on this Seller Note shall be made
by wire transfer of immediately available funds to such account of the Seller as
the Seller may designate in writing.
This Seller Note is the Seller Note referred to in the Sale Agreement.
Recco hereby waives diligence, presentment, demand, protest and notice
of any kind whatsoever. The nonexercise by the holder of any of its rights
hereunder in any particular instance shall not constitute a waiver thereof in
that or any subsequent instance.
All amounts evidenced by this Seller Note and all payments and
prepayments of the principal hereof and the respective dates and maturity dates
thereof shall be endorsed by the holder hereof on Schedule 1 attached hereto and
made a part hereof or on a continuation thereof which shall be attached hereto
and made a part hereof, or otherwise recorded by such holder in its internal
records; provided, however, that the failure of the holder hereof to make such a
notation or any error in such a notation shall not affect the obligations of
Recco under this Seller Note.
It is the intention of Recco and the Seller to conform strictly to
applicable usury laws. Accordingly, if the transactions contemplated hereby
would be usurious under applicable law (including the laws of the State of New
York and the laws of the United States of America), then, in that event,
notwithstanding anything to the contrary in any agreement entered into in
connection with this Seller Note, it is agreed as follows: (i) the aggregate of
all consideration that constitutes interest under applicable law that is taken,
reserved, contracted for, charged or received under this Seller Note or any
other agreement or document executed in connection with this Seller Note shall
under no circumstances exceed the maximum amount of interest allowed by
applicable law, and any excess shall be credited to other amounts due under this
Seller Note by the holder hereof (or if this Seller Note shall have been paid in
full, refunded to Recco); and (ii) in the event that the maturity of this Seller
Note is accelerated for any reason or in the event of any required or permitted
prepayment, then such consideration that constitutes interest may never include
more than the maximum amount allowed by applicable law, and excess interest, if
any, provided for in this Seller Note or otherwise shall be canceled
automatically as of the date of such acceleration or prepayment and, if
theretofore prepaid, shall be credited to other amounts due under this Seller
Note (or if this Seller Note shall have been paid in full, refunded to Recco).
In the event that applicable law provides for a ceiling on the rate of interest
chargeable hereunder, that ceiling shall be the indicated rate ceiling.
The Seller agrees that it shall have no right to cause, by way of
acceleration or otherwise, any payment of principal hereunder to become due or
payable prior to the times provided in the Security Agreement.
Each holder of this Seller Note agrees to be bound by all of the
provisions of the Operative Documents, including, without limitation, the
covenant that prior to the date which is one year and one day after the payment
in full of all Loans made, by the Lenders and all other obligations under the
Operative Documents, it will not institute, or join any other Person in
instituting, against Recco any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceedings under any
federal or state bankruptcy law or similar law.
This Seller Note may not be assigned, transferred, exchanged, pledged,
hypothecated, participated or otherwise conveyed, except with the prior written
consent of the Program Manager and the Surety Provider.
A-2
THIS SELLER NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE.
ONYX ACCEPTANCE RECEIVABLES
CORPORATION
By:________________________________________
Name:
Title:
A-3
Schedule 1 to
Seller Note
Principal Payments and Maturity Notation Made
Date Amount Pre-payments Date By
------------ ------------ ------------ ------------ -------------
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
A-4
EXHIBIT B
SUBORDINATED NOTE
THIS SUBORDINATED NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED OR SOLD
EXCEPT FOR ANY OFFER OR SALE PURSUANT TO, AND IN COMPLIANCE WITH, THE SECURITIES
ACT AND THE RULES AND REGULATIONS THEREUNDER.
THIS SUBORDINATED NOTE IS THE SUBORDINATED NOTE REFERRED TO IN THE SALE
AND SERVICING AGREEMENT, AND IS SUBORDINATE AND JUNIOR IN RIGHT OF PAYMENT TO
ALL OF THE OBLIGATIONS TO THE EXTENT AND IN THE MANNER PROVIDED IN ARTICLE V OF
THE SALE AND SERVICING AGREEMENT; AND THE HOLDER BY ACCEPTANCE HEREOF AGREES TO
BE BOUND BY ALL THE PROVISIONS OF ARTICLE V OF THE SALE AND SERVICING AGREEMENT.
New York, New York
January 9, 2003
ONYX ACCEPTANCE RECEIVABLES CORPORATION, a Delaware corporation
("Recco"), hereby promises to pay to the order of ONYX ACCEPTANCE CORPORATION, a
California corporation (the "Seller"), the principal amount of this Subordinated
Note, determined as described below, together with interest thereon at a rate
per annum of LIBOR + 6% in lawful money of the United States of America.
Capitalized terms used herein but not defined herein shall have the meanings
assigned to such terms in the Definitions List attached to the Sale and
Servicing Agreement dated as of January 9, 2003, between Recco and the Seller
(such agreement, as it may from time to time be amended, supplemented or
otherwise modified in accordance with its terms, the "Sale Agreement").
The principal amount of this Subordinated Note at any time shall be
determined in accordance with the provisions of Section 5.3 of the Sale
Agreement. All principal of and interest on this Subordinated Note shall be due
and payable at the times provided in the Sale Agreement, it being understood and
agreed that, except as provided in Section 5.3 of the Sale Agreement, no
payments may be made, directly or indirectly, on this Subordinated Note until
all the Obligations have been indefeasibly paid in full in cash. This
Subordinated Note is secured by the Collateral pursuant to the Subordinated
Security Agreement subject to the prior lien of the Collateral Agent under the
Security Agreement. No payments may be received, directly or indirectly, by the
Seller (and if received, the Seller agrees to return such payments to Recco) on
this Subordinated Note unless Recco has paid all amounts required pursuant to
the Security Agreement to be paid prior to any payment in respect of this
Subordinated Note.
Payments of principal on this Subordinated Note shall be made by wire
transfer of immediately available funds to such account of the Seller as the
Seller may designate in writing.
This Subordinated Note is the Subordinated Note referred to in the Sale
Agreement, and is subordinate and junior in right of payment to all the
Obligations to the extent and in the manner provided in Section 5.3 of the Sale
Agreement and the holder by acceptance hereof agrees to be bound by all the
provisions of Section 5.3 of the Sale Agreement.
Recco hereby waives diligence, presentment, demand, protest and notice
of any kind whatsoever. The nonexercise by the holder of any of its rights
hereunder in any particular instance shall not constitute a waiver thereof in
that or any subsequent instance.
All amounts evidenced by this Subordinated Note and all payments and
prepayments of the principal hereof and the respective dates and maturity dates
thereof shall be endorsed by the holder hereof on Schedule 1 attached hereto and
made a part hereof or on a continuation thereof which shall be attached hereto
and made a part hereof, or otherwise recorded by such holder in its internal
records; provided, however, that the failure of the holder hereof to make such a
notation or any error in such a notation shall not affect the obligations of
Recco under this Subordinated Note.
It is the intention of Recco and the Seller to conform strictly to
applicable usury laws. Accordingly, if the transactions contemplated hereby
would be usurious under applicable law (including the laws of the State of New
York and the laws of the United States of America), then, in that event,
notwithstanding anything to the contrary in any agreement entered into in
connection with this Subordinated Note, it is agreed as follows: (i) the
aggregate of all consideration that constitutes interest, if any, under
applicable law that is taken, reserved, contracted for, charged or received
under this Subordinated Note or any other agreement or document executed in
connection with this Subordinated Note shall under no circumstances exceed the
maximum amount of interest allowed by applicable law, and any excess shall be
credited to other amounts due under this Subordinated Note by the holder hereof
(or if this Subordinated Note shall have been paid in full, refunded to Recco);
and (ii) in the event that maturity of this Subordinated Note is accelerated for
any reason, or in the event of any required or permitted prepayment, then such
consideration that constitutes interest may never include more than the maximum
amount allowed by applicable law, and excess interest, if any, provided for in
this Subordinated Note or otherwise shall be cancelled automatically as of the
date of such acceleration or prepayment and, if theretofore prepaid, shall be
credited to other amounts due under this Subordinated Note (or if this
Subordinated Note shall have been paid in full, refunded to Recco). In the event
that applicable law provides for a ceiling on the rate of interest, if any,
chargeable hereunder, that ceiling shall be the indicated rate ceiling.
The Seller agrees that it shall have no right to cause, by way of
acceleration or otherwise, any payment of principal hereunder to become due or
payable, prior to the times provided in the Security Agreement.
Each holder of this Note agrees to be bound by all of the provisions of
the Operative Documents, including, without limitation, the covenant that prior
to the date which is one year and one day after the payment in full of all Loans
made, by the Lenders and all other Obligations under the Operative Documents, it
will not institute against, or join any other Person in instituting against,
Recco any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceeding under the law of the United States or
any state of the United States.
B-2
This Subordinated Note shall not be assigned, transferred, exchanged,
pledged, hypothecated, participated or otherwise conveyed, except with the prior
written consent of the Program Manager and the Surety Provider.
B-3
THIS SUBORDINATED NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
ONYX ACCEPTANCE RECEIVABLES
CORPORATION
By:_________________________________
Name:
Title:
B-4
Schedule 1 to
Subordinated Note
Principal Payments and Maturity Notation Made
Date Amount Pre-payments Date By
------------ ------------ ------------ ------------ -------------
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
____________ ____________ ____________ ____________ _____________
B-5
EXHIBIT C
ONYX ACCEPTANCE CORPORATION
OFFICER'S CERTIFICATE
The undersigned certifies that he is the [President] [Chief Financial
Officer] [an Executive Vice President] of Onyx Acceptance Corporation, a
Delaware corporation (the "Seller"), and that as such he is duly authorized to
execute and deliver this certificate on behalf of the Seller in connection with
the Sale and Servicing Agreement dated as of January 9, 2003 (the "Sale
Agreement"), between the Seller and Onyx Acceptance Receivables Corporation, a
Delaware corporation ("Recco") (all capitalized terms used herein without
definition having the respective meanings specified in the Definitions List
attached to the Sale Agreement), and further certifies that:
1. No event with respect to the Seller has
occurred and is continuing which would constitute a Wind-Down
Event or Unmatured Wind-Down Event;
2. Each of the agreements and conditions of the
Seller to be performed on or before the date hereof pursuant
to the Sale Agreement have been performed in all material
respects;
3. The Seller has possession of each Contract
set forth on the Contract List delivered to the Lenders, the
Surety Provider and the Program Manager on the date hereof
(the "Specified Contracts");
4. On the date hereof, the Seller shall apply
the cash proceeds of the Purchase Price paid to it on the date
hereof by Recco to purchase the Specified Contracts;
5. The Seller has delivered the Specified
Contracts to Recco on or prior to the date hereof; and
6. Each of the representations and warranties
made in the Operative Documents by the Seller and the Servicer
are true and correct on and as of the date hereof, both before
and after giving effect to the purchase to be made on the date
hereof.
IN WITNESS WHEREOF, I have affixed hereunto my
signature this day of_____, _____.
ONYX ACCEPTANCE RECEIVABLES
CORPORATION
By:_________________________________
Name:
Title:
EXHIBIT D
LIST OF LOCK-BOX BANKS AND NUMBERS OF LOCK-BOXES
LOCK-BOX BANK:
▇▇▇▇▇ Fargo Bank
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Lock-Box Account
Acct. # 4159359066
EXHIBIT E
CLEARING ACCOUNT BANK AND ACCOUNT NUMBER
The Clearing Account, No. 4159359173, is maintained at ▇▇▇▇▇ Fargo
Bank, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
EXHIBIT F
[Form of Servicer's Certificate]
This Servicer's Certificate is delivered pursuant to the Sale and
Servicing Agreement (the "Sale Agreement") dated as of January 9, 2003 between
Onyx Acceptance Corporation and Onyx Acceptance Receivables Corporation.
Capitalized terms not defined herein have the meanings ascribed to such terms in
the Definitions List attached to the Sale Agreement.
The undersigned hereby certifies that he is a Responsible Officer of
Onyx Acceptance Corporation holding the office set forth beneath his signature
below, and that he is duly authorized to execute this Servicer's Certificate on
behalf of the Servicer and further certifies that the information set forth in
the report to which this Certificate is attached is true and correct in all
material respects, that there is currently no Servicer Termination Event,
Unmatured Wind-Down Event or Wind-Down Event and that all calculations and
applications of cash were performed in accordance with the Operative Documents.
IN WITNESS WHEREOF, I have affixed hereunto my signature this ________
day of______, ____.
ONYX ACCEPTANCE CORPORATION
By:
Name:
Title:
EXHIBIT G
FORM OF DAILY REPORT
EXHIBIT H
FORM OF MONTHLY REPORT
EXHIBIT I
CREDIT AND COLLECTION POLICY
SCHEDULE 4.1(h)-1
PRINCIPAL PLACE OF BUSINESS, ETC. OF SELLER
Onyx Acceptance Corporation's (the "Seller") principal place of
business, chief executive office and the location of the offices where it keeps
all of the records relating to the Contracts including, without limitation, the
Files, is:
27051 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ DataBank
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
SCHEDULE 4.1(h)-2
PRINCIPAL PLACE OF BUSINESS, ETC. OF SERVICER
Onyx Acceptance Corporation's (the "Servicer") principal place of
business, chief executive office and the location of the offices where it keeps
all of the records relating to the Contracts including, without limitation, the
Files, is:
27051 ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ DataBank
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
SCHEDULE 4.1(k)-1
TRADE NAMES OF SELLER
Onyx Acceptance Corporation (the "Seller") has no trade names,
fictitious names, assumed names or "doing business as" names other than the
following:
"Doing Business As" Name Business for which Name is Used
1. Automotive Banking Network Marketing/Advertising
2. AutoBank Services Used car sales
3. Mesa Auto Used car sales
4. Auto Fund Name reserved but not used
5. Automotive Funding Services Name reserved but not used
6. OAC Systems Name reserved but not used
7. Dove Financial Corporation Name reserved but not used
8. ePartner Network Internet marketing
SCHEDULE 4.1(k)-2
TRADE NAMES OF SERVICER
Onyx Acceptance Corporation (the "Servicer") has no trade names,
fictitious names, assumed names or "doing business as" names other than the
following:
"Doing Business As" Name Business for which Name is Used
1. Automotive Banking Network Marketing/Advertising
2. AutoBank Services Used car sales
3. Mesa Auto Used car sales
4. Auto Fund Name reserved but not used
5. Automotive Funding Services Name reserved but not used
6. OAC Systems Name reserved but not used
7. Dove Financial Corporation Name reserved but not used
8. ePartner Network Internet marketing
SCHEDULE 4.1(r)-1
SUBSIDIARIES OF SELLER
The subsidiaries of the Onyx Acceptance Corporation (the "Seller") are
as follows:
(i) Onyx Acceptance Financial Corporation
(ii) Onyx Acceptance Funding Corporation
(iii) ABNI, Inc.
(iv) C.U. Acceptance Corporation
(v) Onyx Acceptance Receivables Corporation
SCHEDULE 4.1(r)-2
SUBSIDIARIES OF SERVICER
The subsidiaries of Onyx Acceptance Corporation (the "Servicer") are as
follows:
(i) Onyx Acceptance Financial Corporation
(ii) Onyx Acceptance Funding Corporation
(iii) ABNI, Inc.
(iv) C.U. Acceptance Corporation
(v) Onyx Acceptance Receivables Corporation