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EXHIBIT 10.1
SECURITY AGREEMENT
This SECURITY AGREEMENT (hereinafter called this "Agreement") is made
_____________________, 199__, by and between U.S. AUTOMOBILE ACCEPTANCE SNP-IV,
INC., a Texas corporation, located at ▇▇▇▇ ▇.▇. ▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter called "Debtor") and
__________________________ as Trustee on behalf of those persons listed on
Schedule A (which persons and the Trustee are hereinafter collectively called
"Trustee").
In consideration of the covenants and conditions stated in this
Agreement the parties agree as follows:
1. INDEBTEDNESS SECURED.
This Agreement and the Security Interest secure the payment of
certain Callable Asset-Backed Promissory Notes issued and executed by Debtor,
pursuant to the Indenture of Trust (the "Indenture") dated ___________________,
1998, by and between Debtor and _____________________________ and made payable
to the holders of such Callable Asset- Backed Promissory Notes in the aggregate
principal sum of up to $40,000,000 (hereinafter collectively called the
"Note"), together with all other indebtedness of every kind or nature owing by
Debtor to Trustee, whether now existing or hereafter incurred, direct or
indirect, absolute or contingent, and whether the indebtedness is from time to
time reduced and thereafter increased or entirely extinguished and thereafter
reincurred, and including any costs and expenses incurred by Trustee pursuant
to this Agreement, the Note or any other note or evidence of indebtedness (all
of such is herein sometimes referred to as the "Indebtedness").
2. SECURITY INTEREST.
For value received, Debtor hereby grants to Trustee a security
interest (the "Security Interest') in and to all of the following: (i) any and
all retail motor vehicle installment sale contracts (the "Contracts") acquired
with the funds constituting the Indebtedness or with funds received from the
repayment of said Contracts or the Replacement Contracts (the "Replacement
Contracts"), which Contracts or Replacement Contracts are originated in
connection with the financing of new and used automobiles and light-duty trucks
(the "Vehicles"), including all rights to receive payments thereunder and
security interests in and instruments of title to the Vehicles, whether now
owned or hereafter acquired; (ii) all funds in the Debtor bank accounts styled
Master Collections Accounts, Master Operating Account and Note Redemption
Account; (iii) all proceeds of an offering pursuant to the Registration
Statement of Debtor filed with the Securities and Exchange Commission (the
"Registration Statement"); and (iv) all products thereof and all cash and
noncash proceeds of any of the foregoing, in any form, including, without
limitation, proceeds of insurance policies from the loss thereof, all titles to
the Vehicles and all assignment of liens, all Contracts, Vehicle Titles,
assignments, dealer recourse agreements, other documents and instruments in the
possession of the Debtor, and any documents or instruments in the possession,
custody and control of any Contract Servicer or any independent Custodian (all
of the foregoing hereinafter called the "Collateral"); provided, however, that
the security interest granted hereunder is subject to the conditions and
limitations set forth in the Registration Statement.
3. REPRESENTATION AND WARRANTIES OF DEBTOR.
Debtor represents and warrants and, so long as any portion of
the Indebtedness remains unpaid, shall be deemed continuously to represent and
warrant that:
3.1. Debtor is the owner of the Collateral free and clear
of all security interests or other encumbrances and claims of any kind or
nature in favor of any third persons, and Trustee has a first priority,
perfected security interest in all of the Collateral;
3.2. Debtor is authorized to enter into this Agreement and
into the transactions contemplated hereby and evidenced by the Note;
3.3. The Collateral is used or bought for use solely in
business operations, and all of the relevant Collateral will remain personal
property regardless of the manner in which any of it may be affixed to real
property.
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3.4 Upon an Event of Default on the Notes or in this
Security Agreement, as described in section 6 hereof, Debtor shall cause any
Contract Servicer or independent Custodian to deliver to the Trustee all
Collateral in the possession of such Contract Servicer or independent
Custodian.
4. COVENANTS OF DEBTOR.
Debtor covenants that so long as any Indebtedness remains unpaid,
Debtor:
4.1. Will defend the Collateral against the claims and
demands of all other parties, except purchasers of inventory in the ordinary
course of business;
4.2. Will keep the Collateral free and clear from all
security interests, liens and other encumbrances and claims of any kind or
nature in favor of any third persons, except the Security Interest; and Debtor
will not pledge the Collateral as security for any debts or obligations other
than the Notes;
4.3. Will maintain in accordance with reasonable
accounting practices, consistently applied, accurate and complete records
concerning the Collateral; and will, upon request made from time to time,
permit the Trustee or its agents to inspect the Collateral and the Debtor's
records concerning the Collateral;
4.4. Upon an uncured Event of Default and upon request by
the Trustee will deliver to the Trustee or its agents, any instruments,
documents of title and chattel paper representing or relating to the Collateral
or any part thereof, and all schedules, invoices, shipping, or delivery
receipts, together with the endorsements or assignments;
4.5. Will notify the Trustee in writing at least fifteen
(15) days in advance of any change in the Debtor's address specified on the
first page of this Agreement, of any change in the location or of any
additional locations at which the Collateral is kept of any change in the
address at which records concerning the Collateral are kept and of any change
in the location of the Debtor's residence, chief executive office or principal
place of business;
4.6. Will execute and deliver to the Trustee such
financing statements and other documents and take such other action, to
perfect, protect or continue the perfection of the Security Interest and effect
the purposes of this Agreement;
4.7. Will pay or cause to be paid when due all taxes,
assessments and other charges of every kind and nature which may be levied or
assessed upon or against the transaction contemplated hereby or the Collateral;
4.8. Will not make any distributions to shareholders or
payments to affiliates except as set forth in the Registration Statement;
4.9. Will use the Collateral only for the purposes set
forth in the Registration Statement and will not commingle the Collateral
constituting cash with funds of any person or entity other than Debtor;
4.10. Upon an uncured Event of Default and upon request by
the Trustee, will deliver any Collateral in the form of funds in Debtor's
Master Collections Accounts, Master Operating Account, and Note Redemption
Account to the Trustee and will surrender control of said accounts to the
Trustee;
5. VERIFICATION OF COLLATERAL.
Upon an Event of Default, Trustee shall have the right to verify the
existence of the Collateral in any manner and through any medium which Trustee
may consider appropriate, and Debtor shall furnish such assistance and
information and perform such acts as Trustee may require in connection
therewith.
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6. DEFAULT.
6.1. Events of Default. Subject to the following
limitations, an Event of Default occurs if
a. the Debtor fails to make a payment of
interest on any Note when the same becomes
due and payable, and such failure to pay
continues for a period of more than five
days;
b. the Debtor fails to make a payment of the
principal of any Note when the same becomes
due and payable, and such failure to pay
continues for a period of more than five
days;
c. the Debtor fails to comply with any of its
other agreements in the Notes, this Agreement
or the Indenture of Trust and the Default
continues for the period and after the notice
specified below;
d. the Debtor pursuant to or within the meaning
of any Bankruptcy Law:
(1) commences a voluntary case,
(2) consents to the entry of an order
for relief against it in any
involuntary case,
(3) consents to the appointment of a
Receiver of it or for any
substantial part of its property,
(4) makes a general assignment for the
benefit of its creditors, or
(5) fails generally to pay its debts as
they become due; or
e. a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law
that:
(1) is for relief against the Debtor in
an involuntary case,
(2) appoints a Receiver of the Debtor or
for any substantial part of its
property, or
(3) orders the liquidation of the
Debtor, and the order or decree
remains unstayed and in effect for
90 days.
The term "Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, or any
similar federal or state law for the relief of debtors. The term "Receiver"
means any receiver, trustee, assignee, liquidator, or similar official under
any Bankruptcy Law.
A Default under section 6.1.c is not an Event of Default until the
Trustee or the Noteholders holding at least twenty-five percent in principal
amount of the Notes notifies the Debtor of the default and the Debtor does not
cure the default within 90 days after receipt of the notice. The notice must
specify the default, demand that it be remedied, and state that the notice is a
"Notice of Default."
6.2. Rights and Remedies Upon Default. If an Event of
Default occurs, the Trustee, by written notice to the Debtor, shall declare the
principal of and accrued interest on all the Notes to be due and payable
immediately. After a declaration such principal and interest shall be due and
payable immediately. If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy by proceeding at law or in equity to
collect the payment of principal and interest on the Notes or to enforce the
performance of any provision of the Notes or this Agreement.
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Notwithstanding anything to the contrary in this Agreement, the
Trustee is required to proceed against and liquidate all Collateral before
looking to any other assets of the Debtor.
6.3. Notice. Debtor agrees that any notice by Trustee of
any sale, lease or other disposition of the Collateral or any other intended
action hereunder, whether required by the Uniform Commercial Code or otherwise,
shall constitute reasonable notice to Debtor if the notice is mailed by regular
or certified mail, postage prepaid, at least ten (10) days before the date of
any public sale, lease or other disposition of the Collateral, or the time
after which any private sale, lease or other disposition of the Collateral is
to take place, to Debtor's address as specified in this Agreement or to any
other address which Debtor has notified Trustee in writing as the address to
which notices shall be given to Debtor.
6.4. Costs. Debtor shall pay all costs and expenses
incurred by Trustee in enforcing this Agreement, realizing upon any Collateral
and collecting any Indebtedness. Costs and expenses will include but not be
limited to all reasonable attorneys' and paralegals' fees and expenses.
6.5. Deficiency. In the event that the proceeds of the
Collateral are insufficient to satisfy the entire unpaid Indebtedness, Debtor
will be responsible for the deficiency and shall pay the same upon demand.
Trustee will account to Debtor for any proceeds of the Collateral in excess of
the Indebtedness and the costs and expenses referred to in Section 6.4.
7. MISCELLANEOUS.
7.1. Perfection of Security Interest. Debtor shall take
any and all steps necessary to perfect the security interest granted to Trustee
hereby. If Debtor fails to take any such step, Trustee may, at Debtor's
expense, file at any time, any financing statement or statements relating to
the Collateral (with or without Debtor's signature thereon), and to take any
other action deemed necessary or appropriate by Trustee to perfect and to
continue perfection of the Security Interest. A photocopy of this Agreement is
sufficient as a financing statement and may be filed as such if Trustee so
elects.
7.2. Continuing Agreement. This Agreement is a continuing
agreement with respect to the subject matter hereof and shall remain in full
force and effect until all of the Indebtedness now or hereafter contracted for
or created or existing and any extensions or renewals of the Indebtedness
together with all interest thereon has been paid in full.
7.3. Right to Proceeds. In the event of a continuing
Event of Default, the Trustee may demand, collect, and ▇▇▇ for all proceeds of
the Collateral (either in Debtor's or Trustee's name at the latter's option)
with the right to enforce, compromise, settle, or satisfy any claim. Debtor
hereby irrevocably appoints Trustee as Debtor's attorney-in-fact to endorse, by
writing or stamp, Debtor's name on all checks, commercial paper, and other
instruments pertaining to the proceeds. Such appointment is binding and
coupled with an interest. Debtor also authorizes Trustee to collect and apply
against the Indebtedness any refund of insurance premiums or any insurance
proceeds payable on account of the loss of or damage to any of the Collateral
and hereby irrevocably appoints Trustee as Debtor's attorney-in-fact to
endorse, by writing or stamp, any check or draft representing such proceeds or
refund.
7.4. Non-Waiver. No delay or omission by Trustee in
exercising any right or remedy hereunder or with respect to any Indebtedness
shall operate as a waiver of that or any other right or remedy, and no single
or partial exercise of any right or remedy shall preclude Trustee from any
other or future exercise of the right or remedy or the exercise of any other
right or remedy. Trustee may agree to a cure of any default by Debtor in any
reasonable manner without waiving any other prior or subsequent default by
Debtor.
7.5. Third Parties. Trustee shall have no obligation to
take, and Debtor shall have the sole responsibility for taking, any steps to
preserve rights against all prior parties to any document of title, general
intangible, instrument or chattel paper in Trustee's possession as Collateral
or proceeds of the Collateral.
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7.6. Assignments. Debtor's rights and obligations under
this Agreement are not assignable in whole or in part by operation of law or
otherwise. Trustee may not assign its rights and obligations under this
Agreement, in whole or in part, without consent of Debtor.
7.7. Definitions; Multiple Parties; Section Headings. The
term "person" when referred to herein shall mean an individual, partnership,
corporation or any other legal entity. If more than one Debtor executes this
Agreement, the term "Debtor" includes each of the Debtors as well as all of
them, and their obligations under this Agreement shall be joint and several.
Whenever the context so requires, the neuter gender includes the feminine and
masculine and the singular number includes the plural. Unless otherwise
defined herein or the context requires otherwise, terms used herein shall have
the same meaning as defined in the Uniform Commercial Code as enacted by the
State of Oklahoma. Section headings are used herein for convenience only and
do not alter or limit the meaning of the language contained in each section.
7.8. Amendment; Waiver. This Agreement may not be
modified or amended nor shall any provision of it be waived except by a written
instrument signed by Debtor and by Trustee.
7.9. Choice of Law; Waiver of Jury Trial. This Agreement
has been delivered in the State of Oklahoma and shall be interpreted, and the
rights and liabilities of the parties hereto determined, in accordance with the
internal laws (as opposed to the conflicts of law provisions) of the State of
Oklahoma. Debtor agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in any other jurisdiction by suit on
the judgment or in any other manner provided by law. Nothing in this paragraph
shall affect or impair Trustee's right to serve legal process in any manner
permitted by law, or Trustee's right to bring any action or proceeding against
Debtor, or the property of Debtor, in the courts of any other jurisdiction.
7.10. Expenses. Debtor shall pay all costs and expenses
relating to this Agreement and the Indebtedness, including but not limited to,
filing and recording fees, documentary stamps including, without limitation,
and Trustee's attorney's fees and expenses.
7.11. Notice. Except as otherwise provided herein, any
notice required hereunder shall be in writing and shall be deemed to have been
validly served, given or delivered upon deposit in the United States certified
or registered mails, with proper postage prepaid, addressed to the party to be
notified as follows:
a. If to Debtor at: U.S. Automobile Acceptance SNP-IV, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
b. If to Trustee at:
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Attention: Corporate Trust Department
or to such other address as each party may designate for itself by like notice.
7.12. Severability. If any provision of this Agreement is
prohibited by, or is unlawful or unenforceable under, any applicable law of any
jurisdiction, such provision shall, as to such jurisdiction, be ineffective to
the extent of such prohibition without invalidating the remaining provisions
hereof, provided, however, that any such prohibition in any jurisdiction shall
not invalidate such provision in any other jurisdiction.
7.13. Reliance by Trustee. All covenants, agreements,
representations and warranties made herein by Debtor shall, notwithstanding any
investigation by Trustee, be deemed to be material to and to have been relied
upon by Trustee.
7.14. Entire Agreement. This Agreement, the Note and the
other instruments, agreements and documents contemplated hereby contain the
entire security agreement between Trustee and Debtor with respect to the subject
matter hereof and supersedes and cancels any prior understanding and agreement
between Trustee and Debtor with respect thereto.
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7.15. Binding Effect Subject to the assigned provisions of
this section of the agreement, this Agreement shall be binding upon the heirs,
personal representatives, successors and assigns of Debtor and shall inure to
the benefit of the successors and assigns of Trustee.
7.16. Time. Time is of the essence in this Agreement.
7.17. Attorney's Fees. The parties hereby agree that in
the event any of the terms and conditions contained in this Agreement, including
the indemnification provisions contained herein, must be enforced by reason of
any past, existing or future delinquency of payment, of failure of observance or
of performance by any of the parties hereto, in each such instance, the
defaulting party shall be liable for reasonable collection and/or legal fees,
trial and appellate levels, any expenses and legal fees incurred, including time
spent in supervision of paralegal work and paralegal time, and any other
expenses and costs incurred in connection with the enforcement of any available
remedy.
7.18. Capacity. The Trustee as Trustee is entering into
this Agreement solely in its capacity as Trustee under the Indenture and shall
be entitled to the privileges, immunities and protections afforded it thereunder
in any actions taken by it as Trustee hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
DEBTOR:
U.S. AUTOMOBILE ACCEPTANCE SNP-IV, INC.
By:
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Its:
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TRUSTEE: ON BEHALF OF SECURED PARTIES
By:
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Its:
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SCHEDULE A
COLLECTIVE LIST OF PERSONS
CONSTITUTING THE SECURED PARTY
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