EXHIBIT 10.115
ONYX ACCEPTANCE FINANCIAL CORPORATION
--------------------------
SECOND
AMENDED AND RESTATED
TRIPLE-A ONE CREDIT AGREEMENT
dated as of November 30, 2001
----------------------------
TRIPLE-A ONE FUNDING CORPORATION
CAPMAC FINANCIAL SERVICES, INC.
CAPITAL MARKETS ASSURANCE CORPORATION
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS......................................................................2
1.1 Defined Terms....................................................................2
SECTION 2. AMOUNT AND TERMS OF TRIPLE-A ONE COMMITMENT......................................2
2.1 Triple-A One Commitment.........................................................2
2.2. Triple-A One Note...............................................................3
2.3. Availability of Borrowings......................................................3
2.4. Mandatory and Optional Prepayments..............................................3
2.5. Interest........................................................................4
2.6. Proceeds........................................................................4
2.7. Collection Account..............................................................4
2.8. Reduction of Triple-A One Commitment............................................5
2.9. Taxes...........................................................................5
SECTION 3. REPRESENTATIONS AND WARRANTIES...................................................6
3.1. Representations and Warranties of Xxxxx.........................................6
SECTION 4. CONDITIONS PRECEDENT.............................................................10
4.1. Conditions to Effectiveness....................................................10
4.2. Conditions to Each Triple-A One Loan...........................................12
4.3. Conditions to Release of Proceeds of Triple-A One Loans from Disbursement
Sub-Account..................................................................13
SECTION 5. AFFIRMATIVE COVENANTS...........................................................15
5.1. Financial Statements...........................................................15
5.2. Certificates; Other Information................................................15
5.3. Payment of Obligations.........................................................16
5.4. Conduct of Business and Maintenance of Existence...............................16
5.5. Maintenance of Property; Insurance.............................................16
5.6. Inspection of Property; Files, Books and Records; Discussions..................16
5.7. Notices........................................................................16
5.8. Delivery of Other Reports......................................................17
5.9. Annual Certificate.............................................................17
5.10. Further Assurances............................................................17
5.11. Independent Director..........................................................17
5.12. Instructions to Obligors......................................................18
5.13. Cooperation in Making Calculations............................................18
5.14 Interest Rate Hedge Mechanisms................................................18
i
5.15. Contract Files......................................................................18
5.16. Separate Existence..................................................................19
SECTION 6. NEGATIVE COVENANTS..............................................................20
6.1. Limitation on Debt.............................................................20
6.2. Limitation on Liens............................................................20
6.3. Limitation on Fundamental Changes..............................................20
6.4. Limitation on Sale of Assets...................................................20
6.5. Purchased Contracts............................................................20
6.6. Limitation on Dividends........................................................21
6.7. Limitation on Capital Expenditures.............................................21
6.8. Limitation on Investments, Loans and Advances..................................21
6.9. Transactions with Affiliates...................................................21
6.10. Sale and Leaseback............................................................21
6.11. Corporate Documents...........................................................22
6.12. Capital Stock.................................................................22
6.13. Fiscal Year...................................................................22
6.14. Limitation on Negative Pledge Clauses.........................................22
6.15. Activities of Xxxxx...........................................................22
6.16. Agreements....................................................................22
6.17. Bank Accounts.................................................................23
6.18. Successor Servicer............................................................23
6.19. Servicing of Contracts........................................................23
6.20. Prohibitions Regarding Subordinated Note......................................23
6.21. Lock-Box Banks................................................................23
6.22. Contract Files................................................................23
SECTION 7. WIND-DOWN EVENTS; REMEDIES......................................................23
SECTION 8. INVESTMENT MANAGEMENT...........................................................24
8.1. Directions to Triple-A One.....................................................24
8.2 Permitted Investments...........................................................24
8.3 Conditions......................................................................24
SECTION 9. THE PROGRAM MANAGER.............................................................25
SECTION 10. MISCELLANEOUS..................................................................26
10.1 Amendments and Waivers.........................................................26
10.2 Notices........................................................................26
10.3. No Waiver; Cumulative Remedies................................................27
10.4. Survival of Representations and Warranties....................................28
10.5. Payment of Expenses and Taxes.................................................28
10.6. Successors and Assigns; Participations.......................................29
ii
10.7. Termination...................................................................31
10.8 Counterparts...................................................................31
10.9. Severability..................................................................31
10.10. Integration..................................................................31
10.11. Governing Law................................................................31
10.12. Submission To Jurisdiction; Waivers..........................................31
10.13. Acknowledgments..............................................................32
10.14. Waiver Of Jury Trial.........................................................32
10.15. No Bankruptcy Petition Against Triple-A One..................................32
10.16. Triple-A One's Credit Decision...............................................33
10.17 Confidentiality...............................................................33
EXHIBITS
EXHIBIT A - DEFINITIONS LIST
EXHIBIT B - FORM OF TRIPLE-A ONE NOTE
EXHIBIT C - NOTICE OF BORROWING
EXHIBIT D - TRIPLE-A ONE SECURITY AGREEMENT
EXHIBIT E - FORM OF OFFICER'S CERTIFICATE OF XXXXX
EXHIBIT F - FORM OF LOCK-BOX AGREEMENT
EXHIBIT G - [RESERVED]
EXHIBIT H - FORM OF INTEREST RATE HEDGE ASSIGNMENT
ACKNOWLEDGMENT
iii
SECOND
AMENDED AND RESTATED
TRIPLE-A ONE CREDIT AGREEMENT
SECOND AMENDED AND RESTATED TRIPLE-A ONE CREDIT AGREEMENT, dated as of
November 30, 2001 (the "Triple-A One Credit Agreement" or this "Agreement"),
among ONYX ACCEPTANCE FINANCIAL CORPORATION, a Delaware corporation ("Xxxxx"),
TRIPLE-A ONE FUNDING CORPORATION, a Delaware corporation ("Triple-A One") and
CAPMAC FINANCIAL SERVICES, INC., a Delaware corporation ("CapMAC Financial
Services"), as Program Manager (in such capacity, the "Program Manager") and
CAPITAL MARKETS ASSURANCE CORPORATION, a New York stock insurance company
("CapMAC") as Collateral Agent (in such capacity, the "Collateral Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Sale Agreement, Xxxxx purchases certain
Contracts from time to time from Onyx Acceptance Corporation, a Delaware
corporation (the "Seller") and the Seller acts as Servicer of the Purchased
Contracts;
WHEREAS, Xxxxx from time to time requests that Triple-A One make
Triple-A One Loans to Xxxxx, the proceeds of which are used to purchase
Contracts from the Seller in accordance with the terms of the Sale Agreement;
WHEREAS, as collateral security for its obligations under this Triple-A
One Credit Agreement, Xxxxx has collaterally assigned the Purchased Contracts,
its rights under the Sale Agreement, all of its right, title, interest in and to
the Lock-Boxes and the Collection Account to the Collateral Agent for the
benefit of the holders of the Obligations pursuant to the Triple-A One Security
Agreement;
WHEREAS, Triple-A One funds such loans by (a) the issuance of Commercial
Paper or (b) if Triple-A One is unable for any reason to issue Commercial Paper,
by borrowing under the Liquidity Agreement;
WHEREAS, MBIA Insurance Corporation (the "Surety Provider"), Xxxxx, the
Seller and Triple-A One have entered into the Insurance Agreement pursuant to
which, among other things, the Surety Provider has issued a surety bond to
Triple-A One to guarantee repayment of the Triple-A One Loans;
WHEREAS, subject to the terms and conditions set forth herein, Triple-A
One is willing to make the Triple-A One Loans to Xxxxx;
WHEREAS, the parties hereto have entered into the Amended and Restated
Triple-A One Credit Agreement dated as of September 4, 1998 (as amended to the
date hereof, the "Amended and Restated Credit Agreement"); and
WHEREAS, the parties hereto wish to further amend and restate the
Amended and Restated Credit 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:
SECTION 1. DEFINITIONS
1.1. Defined Terms. (a) As used in this Triple-A One Credit
Agreement, the Triple-A One Note, the Triple-A One Security Agreement or
any certificate or other document made or delivered pursuant hereto or
thereto, the capitalized terms used herein and therein shall, unless
otherwise defined herein or therein, have the meanings assigned to them
in the Second Amended and Restated Definitions List dated as of the date
hereof that refers to this Triple-A One Credit Agreement, which is
incorporated herein by reference and attached as Exhibit A hereto (the
"Definitions List").
(a) As used herein, in the Triple-A One Note and in the Triple-A
One Security Agreement, or any certificate or other document made or
delivered pursuant hereto and thereto, accounting terms not defined in
the Definitions List and accounting terms partly defined in the
Definitions List to the extent not defined, shall have the respective
meanings given to them under GAAP.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Triple-A One Credit Agreement shall
refer to this Triple-A One Credit Agreement as a whole and not to any
particular provision of this Triple-A One Credit Agreement, and Section,
subsection, Schedule and Exhibit references are to this Triple-A One
Credit Agreement unless otherwise specified.
(c) Capitalized terms used herein, in the Triple-A One Note and
in the Triple-A One Security Agreement shall be equally applicable to
both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF TRIPLE-A ONE COMMITMENT
2.1. Triple-A One Commitment. Subject to the terms and conditions
hereof, Triple-A One agrees to make revolving credit loans ("Triple-A
One Loans") to Xxxxx from time to time during the Commitment Period in
an aggregate amount not to exceed the Triple-A One Commitment; provided,
however, that in no event shall Triple-A One make any Triple-A One Loan,
if, after giving effect to such Triple-A One Loan, either (a) the
Outstanding Principal Amount would exceed the Maximum Program Amount or
the Aggregate Liquidity Commitment (as defined in the Liquidity
Agreement) or (b) a Borrowing Base Deficiency would exist; provided,
further, that the amount of any Triple-A One Loan made on any Triple-A
One Borrowing Date shall not exceed the sum of (i) the net proceeds from
the sale of Transaction Commercial Paper on such Triple-A One Borrowing
Date plus (ii) the proceeds of Loans on such Triple-A One Borrowing
Date. The proceeds of such Triple-A One Loans shall be disbursed to the
Disbursement Sub-
2
Account pursuant to Section 4.2 and released from the Disbursement
Sub-Account pursuant to Section 4.3. During the Commitment Period, Xxxxx
may use the Triple-A One Commitment by borrowing, prepaying the Triple-A
One Loans in whole or in part, and reborrowing, all in accordance with
the terms and conditions hereof.
2.2. Triple-A One Note. The Triple-A One Loans shall be
evidenced by a promissory note of Xxxxx, substantially in the form of
Exhibit B hereto (the "Triple-A One Note"), payable to the order of
Triple-A One. The Program Manager shall record the date and amount of
each Triple-A One Loan made and the date and amount of each payment of
principal thereof, and any such recordation shall constitute prima facie
evidence of the accuracy of the information so recorded. The Triple-A
One Note shall (a) be dated the date of issuance thereof, or, with
respect to any amendment thereof, the date of such amendment, (b) be
stated to mature on the Scheduled Maturity Date and (c) provide for the
payment of interest in accordance with subsection 2.5.
2.3. Availability of Borrowings. Xxxxx may request
Triple-A One Loans on any Business Day during the Commitment Period by
giving Triple-A One prior irrevocable notice of each borrowing in the
form of Exhibit C hereto ("Notice of Borrowing") by 10:00 A.M. (New York
City time) on the Business Day prior to a Triple-A One Borrowing Date
which shall specify the (a) Triple-A One Borrowing Date for such
borrowing and (b) the amount of the Triple-A One Loan requested;
provided, however, that any Triple-A One Loan funded with Eurodollar
Loans shall require three Working Days prior notice. The proceeds of
such Triple-A One Loans will be made available to Xxxxx by Triple-A One
by crediting a sub-account (the "Disbursement Sub-Account") of the
Collection Account with immediately available funds by 10:00 A.M. (New
York time) on the Triple-A One Borrowing Date.
2.4. Mandatory and Optional Prepayments.
(a) Prior to the Commitment Termination Date, Xxxxx shall, on
each Business Day (each a "Triple-A One Payment Date") on which the
Program Manager notifies Xxxxx that amounts are owing hereunder, repay
the principal of the Triple-A One Loans in the amount stated by the
Program Manager to be due and payable on such Triple-A One Payment Date.
The Program Manager shall give Xxxxx notice of the amount payable by
10:00 A.M. (New York City time) on the Business Day immediately
preceding each Triple-A One Payment Date. Xxxxx shall make the payment
required by such notice by 10:00 A.M. (New York City time) on the
applicable Triple-A One Payment Date by depositing such amount in the
Collection Account in immediately available funds. The amount payable by
Xxxxx as determined by the Program Manager shall be an amount equal to
the sum of (i) the Principal Portion of the Transaction Commercial Paper
maturing on the applicable Triple-A One Payment Date that will not be
funded from the net proceeds of either the sale of Commercial Paper on
such date or a borrowing under the Liquidity Agreement (assuming that
such proceeds are allocated to the Principal Portion of the Commercial
Paper before the interest relating to such Commercial Paper), (ii) the
principal amount due and payable on such date under the Liquidity
Agreement and not funded from the net proceeds from the sale of
Commercial Paper on such date or a
3
borrowing under the Liquidity Agreement, and (iii) the amount necessary
to cure any Borrowing Base Deficiency existing on such date or that
would exist at the close of business on such date (after giving effect
to the amount of any payment made on such day in respect of subclauses
(i) or (ii) of this subsection 2.4(a)). On and after the Commitment
Termination Date, principal on the Triple-A One Loans shall be paid as
provided in the Triple-A One Security Agreement.
(b) Xxxxx may at any time and from time to time prepay the
Triple-A One Loans, in whole or in part, without premium or penalty,
upon at least three Business Days' irrevocable notice to the Program
Manager, specifying the date and amount of prepayment; provided that,
upon notice given by Triple-A One, Xxxxx shall indemnify Triple-A One
and hold Triple-A One harmless from any funding loss (in an amount equal
to the amount of interest Triple-A One would have received but for such
prepayment less the interest earned on investing such funds) and expense
which Triple-A One may sustain or incur as a consequence of such
prepayment. If any such notice is given, the amount specified in such
notice shall be due and payable on the date specified therein.
(c) On each Liquidation Day Xxxxx shall prepay all amounts
outstanding under the Triple-A One Note and this Triple-A One Credit
Agreement to the extent of amounts on deposit in the Collection Account
available on each such day and in the order set forth in subsection 5(b)
of the Triple-A One Security Agreement.
2.5. Interest. Xxxxx shall pay to Triple-A One, pursuant to the
terms and conditions of the Triple-A One Security Agreement, as interest
on the Triple-A One Loans outstanding, the following amounts on the
following dates (each a "Triple-A One Interest Payment Date"):
(i) on each day that Commercial Paper matures, an
amount equal to the imputed interest on such
maturing Commercial Paper;
(ii) on each Determination Date, interest due and
accrued on Loans which were outstanding at any time
during the prior Determination Period and not
prepaid pursuant to subsection 2.7 of the Liquidity
Agreement; and
(iii) on each day that any interest is required to be
paid in respect of the prepayment, pursuant to
subsection 2.7 of the Liquidity Agreement, of any
Loan, an amount equal to such interest.
2.6. Proceeds. The proceeds of the Triple-A One Loans
shall be used by Xxxxx solely to purchase Contracts from the Seller
pursuant to the Sale Agreement.
2.7. Collection Account. Xxxxx has established, on or
prior to the date hereof, a bank account (No. 4154359090) at Xxxxx Fargo
Bank in the name of the Collateral Agent for the benefit of the holders
of the Obligations (the "Collection
4
Account"). Xxxxx shall cause the Servicer to deposit all Collections to
the Clearing Account on the next Business Day after Collections are
received in the Lock-Boxes and on the next Business Day after
Collections are received in any other manner, and to transfer all
Collections on deposit in the Clearing Account to the Collection Account
on the next Business Day after such Collections are received by the
Servicer in the Clearing Account. Xxxxx shall make transfers and
withdrawals from the Collection Account solely as permitted by the terms
and conditions of the Triple-A One Security Agreement.
2.8. Reduction of Triple-A One Commitment. Xxxxx shall
have the right from time to time, upon not less than five Business Days'
notice to Triple-A One and the Program Manager, to reduce the Triple-A
One Commitment to an amount not less than the sum of (a) the Face Amount
of the Outstanding Commercial Paper and (b) the aggregate principal
amount of the Loans outstanding; provided, however, that in no event
shall the Triple-A One Commitment be reduced to less than $50,000,000.
Each such reduction shall be in an amount equal to $5,000,000 or any
multiple thereof and shall reduce permanently the Triple-A One
Commitment then in effect.
2.9. Taxes. Except to the extent required by applicable
law, all payments made by Xxxxx under this Triple-A One Credit Agreement
and the Triple-A One Note shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority having taxing
authority, excluding income taxes and franchise taxes (imposed in lieu
of income taxes) imposed on Triple-A One, as a result of any present or
former connection between the jurisdiction of the government or taxing
authority imposing such tax or any political subdivision or taxing
authority thereof or therein and Triple-A One (excluding a connection
arising solely from Triple-A One having executed, delivered or performed
its obligations or received a payment under, or enforced, this Triple-A
One Credit Agreement or the Triple-A One Note) (all such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions and
withholdings being hereinafter called "Taxes"). If any Taxes are
required to be withheld from any amounts payable hereunder or under the
Triple-A One Note, the amounts so payable to Triple-A One shall be
increased to the extent necessary to yield to Triple-A One (after
payment of all Taxes) interest or any such other amounts payable
hereunder or under the Triple-A One Note at the rates or in the amounts
specified in this Triple-A One Credit Agreement and the Triple-A One
Note. Whenever any Taxes are payable by Xxxxx, as promptly as possible
thereafter Xxxxx shall send to Triple-A One, a certified copy of an
original official receipt received by Xxxxx showing payment thereof. If
Xxxxx fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to Triple-A One the required receipts or
other required documentary evidence, Xxxxx shall indemnify Triple-A One
for any incremental Taxes, interest or penalties that Triple-A One is
legally required to pay as a result of any such failure. Triple-A One
agrees that it will use reasonable efforts (consistent with Triple-A
One's internal policy and legal and regulatory restrictions and so long
as such efforts would not be disadvantageous to it, as determined in its
good faith discretion) to designate a different lending office if the
making of such designation would reduce or obviate the need for Xxxxx to
withhold
5
Taxes. The agreements in this subsection shall survive the termination
of this Triple-A One Credit Agreement and the payment of the Triple-A
One Note.
SECTION 3. REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of Xxxxx. To induce
Triple-A One to enter into this Triple-A One Credit Agreement and to
make the Triple-A One Loans, Xxxxx hereby represents and warrants to
Triple-A One that:
(a) Financial Condition. The balance sheet of Xxxxx as at
September 30, 2001 and the related statements of income and of cash
flows for the nine month period then ended, certified by a Responsible
Officer, are complete and correct and present fairly the financial
condition of Xxxxx as at such date, and the results of its operations
and its consolidated cash flows for the period then ended. All such
financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP (except for year-end
adjustments) applied consistently throughout the period involved (except
as approved by such Responsible Officer and as disclosed therein).
Except for Debt created under this Agreement and the other Operative
Documents, Xxxxx does not have, and at the date of the balance sheet
referred to above, did not have any Debt, contingent liability or
liability for taxes, or any long-term lease or unusual forward or
long-term commitment, including, without limitation, any interest rate
or foreign currency swap or exchange transaction; provided, however,
that Xxxxx may have Debt or contingent liability pursuant to the
obligations of Xxxxx under a securitization transaction insured or
approved by the Surety Provider.
(b) Corporate Existence; Compliance with Law. Xxxxx (i) is duly
organized, validly existing and in good standing under the laws of the
State of Delaware, (ii) has the corporate power and authority, and the
legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently
engaged, (iii) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership, lease
or operation of property or the conduct of its business requires such
qualification and (iv) is in compliance with all Requirements of Law.
(c) Corporate Power; Authorization; Enforceable Obligations.
Xxxxx has the corporate power and authority, and the legal right, to
make, deliver and perform this Triple-A One Credit Agreement and the
other Operative Documents to which it is a party and to borrow hereunder
and has taken all necessary corporate action to authorize the borrowings
on the terms and conditions of this Triple-A One Credit Agreement and
the other Operative Documents to which it is a party and to authorize
the execution, delivery and performance of this Triple-A One Credit
Agreement and the other Operative Documents to which it is a party. All
consents or authorization of, filing with or other act by or in respect
of, any Governmental Authority or any other Person required to be
obtained, made or given by it in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of this Triple-A One Credit Agreement or the other
Operative Documents to which it is a party have been so obtained,
6
made or received. This Triple-A One Credit Agreement and each other
Operative Document to which it is a party has been duly executed and
delivered on behalf of Xxxxx. This Triple-A One Credit Agreement and
each other Operative Document to which it is a party constitutes a
legal, valid and binding obligation of Xxxxx enforceable against Xxxxx
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
(d) No Legal Bar. The execution, delivery and performance of this
Triple-A One Credit Agreement and the other Operative Documents, the
borrowings hereunder and the use of the proceeds thereof will not
violate any Requirement of Law or Contractual Obligation of Xxxxx and
will not result in, or require, the creation or imposition of any Lien
on any of its properties or revenues pursuant to any such Requirement of
Law or Contractual Obligation.
(e) No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is
pending or, to the best knowledge of Xxxxx after due inquiry, threatened
by or against Xxxxx or against any of its properties or revenues (i)
with respect to this Triple-A One Credit Agreement or the other
Operative Documents or any of the transactions contemplated hereby or
thereby, or (ii) which could have a material adverse effect on the
business, properties, assets, operations or condition, financial or
otherwise, of Xxxxx, or the ability of Xxxxx to perform its obligations
hereunder or under the other Operative Documents.
(f) No Default; No Wind-Down Event. Xxxxx is not in default under
or with respect to any of its Contractual Obligations in any respect
which could have a material adverse effect on the business, operations,
properties, assets, or condition, financial or otherwise, of Xxxxx, or
on the ability of Xxxxx to perform its obligations hereunder or under
the other Operative Documents. No Wind-Down Event or Unmatured Wind-Down
Event has occurred and is continuing.
(g) No Burdensome Restrictions. Xxxxx is not a party to or
subject to any Contractual Obligation (other than the Operative
Documents) which could have a material adverse effect on the business,
properties, assets, operations or condition, financial or otherwise, of
Xxxxx, or on the ability of Xxxxx to carry out its obligations hereunder
or under the other Operative Documents.
(h) Taxes. Xxxxx has filed or caused to be filed all Federal,
state and other tax returns which are required to be filed by it 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; no
tax Lien has been filed against it (except for tax Liens described in
subsection 6.2(a) hereof), and no claim is being asserted by any
Governmental Authority, with respect to any such tax, fee or other
charge.
7
(i) ERISA.
(i) No Plan is or has been a Multiemployer Plan. Except
for the Seller, neither Xxxxx nor any ERISA Affiliate of Xxxxx 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 MBIA's sole
discretion, subject Xxxxx 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 Xxxxx. 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 Xxxxx 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
Xxxxx or an ERISA Affiliate by ERISA, the Code or regulations
promulgated thereunder with respect to any Plan, which breach is
reasonably likely to, in MBIA's sole discretion, subject Xxxxx to any
tax, penalty or other liability, shall be deemed a material breach.
(iv) Neither Xxxxx 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 Xxxxx 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.
8
(vii) Neither Xxxxx 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 Xxxxx 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 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 Xxxxx 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.
(j) Investment Company Act; Other Regulations. Xxxxx 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. Xxxxx is not subject to regulation under any Federal or State
statute or regulation which limits its ability to incur Debt.
(k) Subsidiaries. Xxxxx has no Subsidiaries. Xxxxx is a wholly
owned subsidiary of the Seller.
(l) Purpose of Loans. The proceeds of the Triple-A One Loans
shall be used by Xxxxx solely as contemplated in Section 2.6.
(m) No Deduction. Xxxxx is not required to make any deduction or
withholding from payments to be made by it to Triple-A One under this
Triple-A One Credit Agreement or the other Operative Documents, and the
execution and performance of this Triple-A One Credit Agreement and any
of the other Operative Documents does not make Xxxxx liable for any
registration tax, stamp duty or similar tax or duty imposed by any
authority of or within its jurisdiction of incorporation, which tax or
duty has not been, or will not be, paid when due.
(n) No Priority Claims. Xxxxx has no liability in respect of any
Debt (other than under the Operative Documents), or in respect of any
guarantee by Xxxxx of the obligations of another.
(o) Title; Liens. Except for the Lien granted to the Collateral
Agent for the benefit of the holders of the Obligations pursuant to the
Triple-A One Security Agreement and the other Liens permitted pursuant
to the Operative Documents and the Lien granted to the Seller pursuant
to the Subordinated Security Agreement, Xxxxx owns each item of the
Collateral free and clear of any and all Liens or claims of others. No
security agreement, financing statement or other public notice with
respect to all or any part of the Collateral is on file or of record in
any public office, except such as may have
9
been filed in favor of the Collateral Agent pursuant to the Triple-A One
Security Agreement and in favor of the Seller pursuant to the
Subordinated Security Agreement and Liens with respect to taxes
described in subsection 6.2(a) hereof.
(p) Ownership of Contracts. Each Purchase by Xxxxx of Contracts
constitutes a valid sale, transfer and assignment of the Contracts to
Xxxxx enforceable against creditors of, and purchasers from, the Seller,
and creates in favor of Xxxxx a perfected ownership interest in and
valid, legal and equitable title to such Contracts, which ownership
interest is not subject to any Lien.
(q) No Petition. There is no intent to file a voluntary petition
under the Federal or any state bankruptcy laws with respect to Xxxxx.
(r) Separate Corporate Existence. Xxxxx is a special purpose
corporation whose primary activities are restricted in its certificate
of incorporation to purchasing Contracts from the Seller, entering into
agreements for the servicing thereof, borrowing funds secured thereby
and conducting such other activities as necessary or appropriate to
carry out its primary activities. Xxxxx'x certificate of incorporation
provides for at least two Independent Directors as set forth at Section
5.11 hereof, and requires, inter alia, the unanimous vote of its Board
of Directors to take corporate action to institute, file or consent to
insolvency or bankruptcy proceedings.
SECTION 4. CONDITIONS PRECEDENT
4.1. Conditions to Effectiveness. The effectiveness of
this Triple-A One Credit Agreement is subject to the satisfaction, on or
prior to the date hereof, of the following conditions precedent:
(a) Operative Documents. The Program Manager and Triple-A One
shall have received (i) this Triple-A One Credit Agreement executed and
delivered by a duly authorized officer of Xxxxx, (ii) the Triple-A One
Security Agreement (substantially in the form of Exhibit D hereto),
executed and delivered by a duly authorized officer of Xxxxx, (iii)
copies of all the other amended and restated Operative Documents,
executed by all parties thereto and in form and substance satisfactory
to the Program Manager, (iv) a copy of the Credit and Collection Policy,
and (v) such other documents or instruments as may be reasonably
requested by the Program Manager or Triple-A One.
(b) Corporate Proceedings. The Program Manager and Triple-A One
shall have received a copy of the resolutions, in form and substance
satisfactory to the Program Manager and Triple-A One, of the Board of
Directors of each of the Seller, the Servicer and Xxxxx authorizing the
execution, delivery and performance of the Operative Documents to which
it is a party certified by the Secretary or an Assistant Secretary of
each such corporation, as of the date hereof, which certificate shall
state that the resolutions thereby certified have not been amended,
modified, revoked or rescinded and which certificate shall be in form
and substance satisfactory to the Program Manager and Triple-A One.
10
(c) Corporate Documents; Incumbency. The Program Manager and
Triple-A One shall have received (i) copies of the certificate of
incorporation and by-laws of each of the Seller and Xxxxx certified as
of the date hereof as complete and correct copies thereof by its
Secretary or Assistant Secretary, (ii) a certificate of the Secretary or
an Assistant Secretary of each of the Seller and Xxxxx, certifying the
names, titles and true signatures of the officers of the Seller, the
Servicer and Xxxxx authorized to sign the Operative Documents to which
it is a party and (iii) good standing certificates of a recent date with
respect to each of the Seller and Xxxxx from the appropriate
Governmental Authority in its jurisdiction of organization.
(d) No Violation. The consummation of the transactions
contemplated hereby and by the other Operative Documents shall not
contravene, violate or conflict with, nor involve the Seller, the
Servicer or Xxxxx in any violation of, any Requirement of Law except to
the extent that any such contravention, violation, conflict or
involvement would not adversely affect the transactions contemplated
hereby and by the other Operative Documents.
(e) Fees. The Program Manager, the Surety Provider and the
Collateral Agent shall have received in immediately available funds any
fees and expenses then due and payable to any of them, all as set forth
in the Fee Letter Agreement.
(f) Legal Opinions. The Program Manager and Triple-A One shall
have received (i) the executed legal opinion of counsel to the Seller,
the Servicer and Xxxxx with respect to the enforceability of their
obligations under the Operative Documents and the Triple-A One Note, and
other corporate and legal matters, (ii) the executed legal opinions of
counsel to the Seller and Xxxxx to the effect that (A) the Seller and
Xxxxx would not be substantively consolidated for purposes of the
Bankruptcy Code and (B) that each purchase by Xxxxx of Contracts
constitutes a true sale of Contracts, (iii) the executed legal opinion
of counsel to Xxxxx to the effect that the security interest granted by
Xxxxx to the Collateral Agent for the benefit of the holders of the
Obligations pursuant to the Triple-A One Security Agreement continues to
be a valid first priority security interest and (iv) such other legal
opinions as the Program Manager or the Surety Provider may reasonably
require.
(g) UCC Searches and Filings. The Program Manager and Triple-A
One shall have received lien searches and other evidence as to the
absence of any Lien on or security interest in the Contracts and other
Collateral in form and substance satisfactory to the Program Manager and
Triple-A One. Any termination statements or releases requested by the
Program Manager or Triple-A One to be filed with respect to any of the
Collateral shall have been filed. Any UCC financing statements or
amendments requested by the Program Manager or Triple-A One to be filed
with respect to the perfection of the first priority ownership interest
in the Purchased Contracts in favor of Xxxxx or with respect to the
perfection of the first priority security interest in the Purchased
Contracts in favor of the Collateral Agent for the benefit of the
holders of the Obligations, shall have been filed.
11
(h) Diligence. The operation of the Seller's billing, collection
and information systems with respect to the Contracts shall be
satisfactory to the Collateral Agent.
(i) Recovery Procedure and Alternate Servicing Plan. The Program
Manager and Triple-A One shall be satisfied with the recovery procedure
and Alternate Servicing Plan implemented for the Seller's and Servicer's
MIS system (the "Recovery Procedure"), a copy of each of which has been
provided to the Program Manager.
(j) Internal Controls. The Program Manager and Triple-A One shall
be satisfied that the Servicer has implemented all necessary internal
and other systems and procedures to monitor collections on account of
the Contracts, to gather all information and furnish all reports
required under the Operative Documents and to monitor compliance with
the Operative Documents.
(k) Consents. The Program Manager and Triple-A One shall have
received copies of all consents, licenses and approvals, if any,
required in connection with the execution, delivery and performance by
it and the validity and enforceability against it of the Operative
Documents to which it is a party and such consents, licenses and
approvals shall be in full force and effect.
(l) [RESERVED]
(m) Commercial Paper Ratings. The Commercial Paper Notes shall be
rated A-1 by S&P and P-1 by Xxxxx'x.
(n) [RESERVED]
(o) [RESERVED]
(p) Rating Agency Notice. Each of Xxxxx'x and S&P shall have
received prior written notice of the amendment and restatement of the
Operative Documents.
(q) Additional Documents. The Program Manager and Triple-A One
shall have received each additional document, instrument, legal opinion
or item of information reasonably requested by the Program Manager and
Triple-A One in respect of any aspect or consequence of the transactions
contemplated hereby or by any other Operative Document.
(r) Additional Matters. All corporate and other proceedings,
documents, instruments and legal matters specified in Section 4.1 hereof
shall be reasonably satisfactory in form and substance to the Program
Manager and Triple-A One.
4.2. Conditions to Each Triple-A One Loan. The agreement
of Triple-A One to make any Triple-A One Loan requested to be made by it
on any date is subject to the satisfaction of the following conditions
precedent:
12
(a) Representations and Warranties. Each of the representations
and warranties made by Xxxxx, the Servicer or the Seller in or pursuant
to any of the Operative Documents shall be true and correct on and as of
such date as if made on and as of such date.
(b) Notice of Borrowing. Xxxxx shall have delivered a Notice of
Borrowing to Triple-A One.
(c) Compliance with Section 2.1. After giving effect to the
Triple-A One Loan to be made on such day, the requirements of Section
2.1 shall not have been violated.
The proceeds of all Triple-A One Loans shall be deposited in the
Disbursement Sub-Account. Each borrowing by Xxxxx hereunder shall constitute a
representation and warranty by Xxxxx as of the date of such Triple-A One Loan
that the conditions contained in this subsection 4.2 have been satisfied.
4.3. Conditions to Release of Proceeds of Triple-A One
Loans from Disbursement Sub-Account. The agreement of Triple-A One to
release the proceeds of Triple-A One Loans from the Disbursement
Sub-Account is subject to the satisfaction of the following conditions
precedent:
(a) Representations and Warranties. Each of the representations
and warranties made by Xxxxx or the Seller in or pursuant to any of the
Operative Documents shall be true and correct on and as of such date as
if made on and as of such date.
(b) Contract List. The Program Manager, Triple-A One and the
Collateral Agent shall have received the Contract List relating to each
Contract to be purchased with the proceeds of such Triple-A One Loan.
(c) Officer's Certificates. The Program Manager and Triple-A One
shall have received an Officer's Certificate from Xxxxx, dated the date
the proceeds of such Triple-A One Loan are requested to be disbursed
from the Disbursement Sub-Account, executed by the president, the chief
financial officer, the chief executive officer or any executive vice
president, in the form of Exhibit E hereto. Xxxxx shall have received
from the Seller an Officer's Certificate, dated the date the proceeds of
such Triple-A One Loan are requested to be disbursed from the
Distribution Sub-Account, in the form of Exhibit C to the Sale
Agreement, and shall have delivered such Certificate to the Program
Manager and Triple-A One.
(d) Additional Documents. The Program Manager, the Collateral
Agent and Triple-A One shall have received each additional document,
instrument, legal opinion or item of information reasonably requested by
Triple-A One, the Collateral Agent or the Program Manager in respect of
any aspect or consequence of the transactions contemplated hereby or by
any other Operative Document.
13
(e) Additional Matters. All corporate and other proceedings,
documents, instruments and legal matters specified in Section 4 hereof,
or required after the date hereof, shall be satisfactory in form and
substance to Triple-A One, the Program Manager and the Collateral Agent.
(f) Borrowing Base. No Borrowing Base Deficiency shall exist on
the day of the release of funds from the Disbursement Sub-Account as
reported on the Daily Report.
(g) Contract Files. A File relating to each Contract to be
purchased with the proceeds of such Triple-A One Loan shall have been
delivered by the Seller to the Servicer to be held by the Servicer or
its agent for the benefit of the Collateral Agent (for the benefit of
the holders of the Obligations) in secure, segregated fireproof
facilities; provided, however, that so long as MBIA is the Surety
Provider with respect to this Program and all other warehouse financing
facilities and other financings secured by Contracts entered into by
Xxxxx and any other special purpose subsidiary of Onyx, the Files may be
stored in the same facilities on an unsegregated basis with all other
files of Xxxxx and such other special purpose subsidiaries; provided
further, however, that the computer files maintained by the Servicer
shall contain information allowing the Files to be readily identifiable
(by notation, segregation or otherwise) from files of Onyx, Onyx
Acceptance Receivables Corporation and any other Affiliate or subsidiary
thereof.
(h) Lien Certificate; Other Actions. The Program Manager and the
Surety Provider shall have received a certificate of a Responsible
Officer of each of the Seller and Xxxxx to the effect that the Purchased
Contracts are not subject to any Lien, except Liens created by the
Operative Documents. Any filings and other actions described in the last
sentence of Section 4.1(g) with respect to the Contracts to be purchased
with the proceeds of such Triple-A One Loan in order to perfect the
ownership interest of Xxxxx, and the first priority perfected security
interest of the Collateral Agent for the benefit of the holders of the
Obligations therein shall have been duly made or effected, and the
Program Manager and the Surety Provider shall have received evidence
thereof.
(i) Interest Rate Xxxxxx. The Program Manager and the Surety
Provider shall have received evidence, in form and substance
satisfactory to each, that Xxxxx has entered into Interest Rate Hedge
Mechanisms to the extent required by, and satisfying the requirements
of, Section 5.14 (together with, with respect to any Interest Rate Hedge
Mechanism entered into after the date hereof, an Interest Rate Hedge
Assignment Acknowledgment duly executed by the counterparty thereto and
concurrently delivered to the Program Manager and the Surety Provider).
(j) Termination Date. The Termination Date shall not have
occurred and the other requirements of Section 2.1 (determined as if
such Triple-A One Loan were deemed to have been made on the date of such
release) have been satisfied.
Each release of the proceeds of Triple-A One Loans to Xxxxx hereunder
shall constitute a representation and warranty by Xxxxx as of the date of such
Triple-A One Loan that the conditions contained in this subsection 4.3 have been
satisfied.
14
SECTION 5. AFFIRMATIVE COVENANTS
Xxxxx hereby agrees that, so long as this Triple-A One Credit Agreement
remains in effect, Xxxxx shall:
5.1. Financial Statements. Furnish to Triple-A One and the
Program Manager:
(a) as soon as available, but in any event within 90 days after
the end of each fiscal year of Xxxxx, a copy of the balance sheet as at
the end of such year and the related statements of income 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; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first eleven monthly periods of each fiscal
year of Xxxxx, the unaudited balance sheet of Xxxxx as at the end of
such monthly period and the related unaudited statements of income and
of cash flows of Xxxxx 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 figures for the previous year, certified by a
Responsible Officer as being fairly stated in all respects (subject to
normal year-end audit adjustments);
all such financial statements to be complete and correct in all respects
and to be prepared in detail and in accordance with GAAP (except for year-end
adjustments) applied consistently throughout the periods reflected therein and
with prior periods (except as approved by such accountants or officer, as the
case may be, and disclosed therein).
5.2. Certificates; Other Information. Furnish to Triple-A
One and the Program Manager:
(a) concurrently with the delivery of the financial statements
referred to in subsection 5.1(a), a certificate of the 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;
(b) concurrently with the delivery of the financial statements
referred to in subsections 5.1(a) and 5.1(b), a certificate of a
Responsible Officer stating that Xxxxx during such period has observed
or performed all of its covenants and other agreements, and satisfied
every condition, contained in this Triple-A One Credit 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;
15
(c) within five Business Days after the same are sent, copies of
all financial statements, reports and other communications that Xxxxx
may make to, or file or have with, the SEC or any state securities
commission; and
(d) promptly, such additional financial and other information as
Triple-A One or the Program Manager may from time to time reasonably
request.
5.3. Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the
case may be, all its obligations of whatever nature.
5.4. Conduct of Business and Maintenance of Existence.
Continue to engage in business of the same type as now conducted by it
and preserve, renew and keep in full force and effect its corporate
existence and take all action to maintain all rights, privileges and
franchises necessary in the normal conduct of its business; and comply
in all material respects with all Contractual Obligations and
Requirements of Law.
5.5. Maintenance of Property; Insurance. Keep all property
useful and necessary in its business in good working order and
condition; maintain, or cause to be maintained on its behalf, the
Blanket Policy or other form of insurance acceptable to the Program
Manager and, 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
Triple-A One (with a copy to the Program Manager), at least annually,
and otherwise upon written request, full information as to the insurance
carried.
5.6. Inspection of Property; Files, Books and Records;
Discussions. Keep proper books of records and account in which full,
true and correct entries in conformity with GAAP and all Requirements of
Law shall be made of all dealings and transactions in relation to its
business and activities; and permit representatives of Triple-A One, the
Collateral Agent, the Surety Provider and the Program Manager to visit
and inspect any of its properties and examine and make abstracts from
any of its books and records and the Files at any time and as often as
may be desired on prior notice during normal business hours and to
discuss the business, operations, properties and financial and other
condition of Xxxxx with officers and employees of Xxxxx and with its
independent certified public accountants.
5.7. Notices. Promptly give notice to Triple-A One and the
Program Manager of:
(a) the occurrence of any Wind-Down Event or Unmatured Wind-Down
Event;
16
(b) any (i) default or event of default by Xxxxx under any
Contractual Obligation of Xxxxx or (ii) litigation, investigation or
proceeding which may exist at any time affecting Xxxxx; and
(c) a material adverse change in the business, properties,
assets, operations or condition (financial or otherwise) of Xxxxx.
Each notice pursuant to this Section 5.7 shall be accompanied by a
statement of a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action Xxxxx proposes to take with respect
thereto.
5.8. Delivery of Other Reports. Furnish, or instruct the
Servicer to deliver any reports required to be delivered by Xxxxx or the
Servicer pursuant to any Operative Document to which Xxxxx or the
Servicer is a party or which Xxxxx or the Servicer has signed.
5.9. Annual Certificate. Concurrently with the delivery,
on account of each fiscal year, of the financial statements of Xxxxx
required to be delivered pursuant to subsection 5.1(a) hereof, furnish
to Triple-A One, a certificate of a Responsible Officer of Xxxxx to the
effect that the facts upon which counsel to Xxxxx relied in giving its
legal opinion that the Seller and Xxxxx would not be substantively
consolidated for purposes of the Bankruptcy Code, have not changed so as
to render such opinion no longer valid.
5.10. Further Assurances. Do such further acts and things
and execute and deliver to Triple-A One or the Program Manager such
assignments, agreements, powers and instruments as are required by
Triple-A One or the Program Manager to carry into effect the purposes of
this Triple-A One Credit Agreement and the other Operative Documents or
to better assure and confirm unto Triple-A One or the Program Manager
its rights, powers and remedies hereunder and under the other Operative
Documents, including, without limitation, to obtain such consents and
give such notices, and to file and record all such documents and
instruments, and renew each such consent, notice, filing and
recordation, at such time or times, in such manner and at such places,
as may be necessary to preserve and protect the position of Triple-A
One, the Collateral Agent, the Surety Provider and the Program Manager
hereunder and under the other Operative Documents. This covenant shall
survive the termination of this Triple-A One Credit Agreement.
5.11. Independent Director. Maintain at all times (except
as noted hereafter in the event of death, incapacity, resignation or
removal) at least two Independent Directors. An "Independent Director"
shall be an individual who, except in his or her capacity as an
Independent Director of Xxxxx, is not at such time, and has not been
during the two years immediately before such individual's appointment as
an Independent Director, (i) a partner, director, officer, holder of any
equity interest, significant customer, supplier, independent contractor,
creditor or employee of Xxxxx or its Affiliates; (ii) affiliated with
Xxxxx or its Affiliates or with a significant customer, supplier,
creditor or independent contractor of Xxxxx or its Affiliates; or (iii)
a spouse,
17
parent, sibling, or child of any person described by (i) or (ii) above;
provided, however, that an individual shall not be deemed to be
ineligible to be an Independent Director solely because such individual
serves or has served in the capacity of an "independent director,"
"independent trustee" or in a similar capacity for any "special purpose
entity" formed by Onyx or any of its Affiliates. In the event of the
death, incapacity, resignation or removal of any Independent Director or
in the event that any director acting as an Independent Director shall
cease to satisfy the eligibility conditions for an Independent Director,
the board of directors of Xxxxx shall promptly appoint a replacement
Independent Director. The board of directors of Xxxxx shall not vote on
any matter requiring the vote of the Independent Directors under the
certificate of incorporation of Xxxxx unless at least two Independent
Directors are then serving on the board of directors of Xxxxx.
5.12. Instructions to Obligors. Instruct (or cause to be
instructed) all Obligors to cause all Collections to be deposited
directly into the Lock-Box.
5.13. Cooperation in Making Calculations. Cooperate with
Triple-A One and the Program Manager at all times in the calculation of
all formulas used in any Operative Document, including without
limitation, deliver (or cause the Servicer to deliver) in written or
electronic form, any and all data and other information necessary or
required in the calculation of the Borrowing Base, Net Yield and Xxxxx
Expenses and all calculations necessary or required to perform such
calculation. Xxxxx hereby agrees to provide (or cause the Servicer to
provide) all such information on or before each date, without prior
request by Triple-A One or the Program Manager, such information or data
is required to make any such calculation and to provide (or cause the
Servicer to provide) such information and data in such form as may be
immediately used by Triple-A One and the Program Manager without further
interpretation or purchase or license of any software. Xxxxx does hereby
further agree that if it fails to provide (or cause the Servicer to
provide) any such information or data as required in this subsection
5.13, Triple-A One or the Program Manager may use any estimate of any
amount or calculation that it, in its sole discretion, determines.
5.14. Interest Rate Hedge Mechanisms. Maintain or cause to
be maintained at all times Interest Rate Hedge Mechanisms to cover
amounts outstanding under this Agreement from time to time, satisfactory
to Xxxxx'x, S&P, the Collateral Agent, the Surety Provider and the
Program Manager. Upon the execution of each Interest Rate Hedge
Mechanism, Xxxxx shall deliver executed copies of such Interest Rate
Hedge Mechanism to the Collateral Agent, the Surety Provider and the
Program Manager.
5.15. Contract Files. Cause the Servicer (as Custodian for
the Collateral Agent on behalf of the holders of the Obligations) or its
agent to maintain continuous custody of the Files in secure, segregated
fireproof facilities in accordance with the customary standards for such
custody as certified by the Servicer to the Program Manager and the
Collateral Agent; provided, however, that so long as MBIA is the Surety
Provider with respect to this Program and all other warehouse financing
facilities and other financings secured by Contracts entered into by
Xxxxx and any other special purpose
18
subsidiary of Onyx, the Files may be stored in the same facilities on an
unsegregated basis with all other files of Xxxxx and such other special
purpose subsidiaries; provided further however, that the computer files
maintained by the Servicer shall contain information allowing the Files
to be readily identifiable (by notation, segregation or otherwise) from
files relating to Onyx, Onyx Acceptance Receivables Corporation and any
Affiliate or subsidiary thereof.
5.16. Separate Existence. At all times:
(a) maintain its own deposit account or accounts, separate from
those of any Affiliate, with commercial banking institutions and, except
as otherwise provided in the Operative Documents, ensure that its funds
will not be diverted to any other Person or for other than its own
corporate uses, nor will such funds be commingled with the funds of any
Affiliate (other than funds deposited to the Clearing Account or the
Lock-Box, which funds may be commingled for a period not exceeding two
(2) Business Days);
(b) to the extent that it shares the same officers or other
employees as any of its Affiliates, the salaries of and the expenses
related to providing benefits to such officers and other employees shall
be fairly allocated among such entities, and each such entity shall bear
its fair share of the salary and benefit costs associated with all such
common officers and employees;
(c) to the extent that it jointly contracts with any of its
Affiliates to do business with vendors or service providers or to share
overhead expenses, the costs incurred in so doing shall be allocated
fairly among such entities, and each such entity shall bear its fair
share of such costs. To the extent that it contracts or does business
with vendors or service providers where the goods and services provided
are partially for the benefit of any other Person, the costs incurred in
so doing shall be fairly allocated to or among such entities for whose
benefit the goods or services are provided, and each such entity shall
bear its fair share of such costs;
(d) enter into all material transactions with its Affiliates,
whether currently existing or hereafter entered into, only on an arm's
length basis, it being understood and agreed that the transactions
contemplated in the Operative Documents meet the requirements of this
paragraph (d);
(e) maintain office space that is physically segregated from the
office space of any of its Affiliates and, to the extent that it and any
of its Affiliates have offices in the same location, there shall be a
fair and appropriate allocation of overhead costs among them, and each
such entity shall bear its fair share of such expenses;
(f) conduct its affairs strictly in accordance with its
certificate of incorporation and observe all necessary, appropriate and
customary corporate formalities, including, but not limited to, separate
stationery, holding all regular and special stockholders' and directors'
meetings appropriate to authorize all corporate action, keeping separate
and accurate minutes of its meetings, passing all resolutions or
consents
19
necessary to authorize actions taken or to be taken, and maintaining
accurate and separate books, records, financial records and accounts,
including, but not limited to, payroll and intercompany transaction
accounts;
(g) hold itself out as a separate entity, pay its own liabilities
out of its own funds, and not assume or guarantee any of the liabilities
of any of its Affiliates; and
(h) take, or refrain from taking, as the case may be, all other
actions that are necessary to be taken or not to be taken in order to
comply with this Section 5.16.
SECTION 6. NEGATIVE COVENANTS
Xxxxx hereby agrees that, so long as this Triple-A One Credit Agreement
remains in effect, Xxxxx shall not directly or indirectly (without the prior
written consent of the Program Manager):
6.1. Limitation on Debt. Create, incur, assume or suffer
to exist any Debt, except indebtedness in respect of the Triple-A One
Loans, the Triple-A One Note, and other obligations of Xxxxx under the
Operative Documents, including, without limitation, the Seller Note and
the Subordinated Note.
6.2. Limitation on Liens. Create, incur, assume or suffer
to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired, except:
(a) Liens for taxes not yet due;
(b) Liens in favor of the Collateral Agent as provided in the
Operative Documents; and
(c) Liens in favor of the Seller securing the Subordinated Note.
6.3. Limitation on Fundamental Changes. Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or convey, sell,
lease, assign, transfer or otherwise dispose of, all or substantially
all of its property, business or assets, or make any material change in
its present method of conducting business.
6.4. Limitation on Sale of Assets. Convey, sell, lease,
assign, transfer or otherwise dispose of any of its property, business
or assets (including, without limitation, Contracts and leasehold
interests), whether now owned or hereafter acquired, except as expressly
permitted by the Operative Documents.
6.5. Purchased Contracts.
(a) Sell, assign or otherwise encumber any Purchased Contract,
except as expressly permitted by the Operative Documents; or
20
(b) Cancel, terminate, amend, modify or waive any term or
condition of any Purchased Contract (including the granting of rebates
or adjustments with respect thereto), except in accordance with the
Credit and Collection Policy.
6.6. Limitation on Dividends. Declare or pay any dividend
on, or make any payment on account of, or set apart assets for a sinking
or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any shares of any class of Capital
Stock of Xxxxx or any warrants or options to purchase any such Capital
Stock, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether
in cash or property or in obligations of Xxxxx except (i) dividends
payable solely in common stock of Xxxxx, and (ii) payments pursuant to
any agreement or other arrangement approved in writing by the Program
Manager to share taxes of any affiliated, consolidated, unitary,
combined or similar group including the Seller and Xxxxx and (iii) cash
dividends to the extent permitted by the Triple-A One Security
Agreement, provided that after giving effect thereto no Wind-Down Event
or Unmatured Wind-Down event shall have occurred and be continuing;
provided, however, that Xxxxx may dividend residual interest
certificates from its securitization transactions to Onyx Acceptance
Corporation.
6.7. Limitation on Capital Expenditures. Make or commit to
make (by way of the acquisition of securities of a Person or otherwise)
any expenditure in respect of the purchase or other acquisition of fixed
or capital assets.
6.8. Limitation on Investments, Loans and Advances. Make
any advance, loan, extension of credit or capital contribution to, or
purchase any stock, bonds, notes, debentures or other securities of or
any assets constituting a business unit of, or make any other investment
in, any Person, except:
(a) purchases of Contracts pursuant to the Sale Agreement; and
(b) investments in Permitted Investments of funds, if any, on
deposit in the Collection Account.
6.9. Transactions with Affiliates. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any
Affiliate, except for (i) Purchases, (ii) transactions expressly
permitted by the Operative Documents and (iii) any agreement or other
arrangement satisfactory to the Program Manager to share taxes of any
affiliated, consolidated, unitary, combined or similar group including
the Seller and Xxxxx.
6.10. Sale and Leaseback. Enter into any arrangement with
any Person providing for the leasing by Xxxxx of real or personal
property which has been or is to be sold or transferred by Finco to such
Person or to any other Person to whom funds have been or are to be
advanced by such Person on the security of such property or rental
obligations of Xxxxx.
21
6.11. Corporate Documents. Amend its certificate of
incorporation or by-laws.
6.12. Capital Stock. Except as permitted by Section 6.6,
issue any shares of Capital Stock in addition to the shares issued and
paid for as of the Closing Date or permit during the term of this
Triple-A One Credit Agreement any transfers of any shares of its capital
stock.
6.13. Fiscal Year. Permit the fiscal year of Xxxxx to end
on a day other than December 31st.
6.14. Limitation on Negative Pledge Clauses. Enter into
any agreement with any Person other than Triple-A One or the Program
Manager pursuant to the Operative Documents which prohibits or limits
the ability of Xxxxx to create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired.
6.15. Activities of Xxxxx. Engage in any business or
activity of any kind or enter into any transaction or indenture,
mortgage, instrument, agreement, contract, lease or other undertaking
which is not directly related to the transactions contemplated and
authorized hereby or by the other Operative Documents other than an
agreement or other arrangement approved in writing by the Program
Manager to share taxes of any affiliated, consolidated, unitary,
combined or similar group including the Seller and Xxxxx.
6.16. Agreements.
(a) Except for the Operative Documents and as expressly permitted
by the Operative Documents, become a party to, or permit any of its
properties to be bound by, any indenture, mortgage, instrument,
contract, agreement, lease or other undertaking, or issue any power of
attorney except to the Collateral Agent or, pursuant to the Sale
Agreement, to the Servicer, or cancel, terminate, amend, supplement,
modify or waive any of the provisions of the Sale Agreement or any other
Operative Document or request, consent or agree to or suffer to exist or
permit any such cancellation, termination, amendment, supplement,
modification or waiver.
(b) Permit the Seller or the Servicer to assign any of their
respective rights or obligations under the Sale Agreement, except as
expressly permitted by the Sale Agreement.
(c) On any Determination Date, permit the sum of (i) the Face
Amount of Outstanding Commercial Paper, (ii) the outstanding principal
amount of Loans and (iii) accrued and unpaid Facilities Costs to exceed
the Maximum Program Amount.
(d) Permit the Servicer to change the forms of the Monthly
Report, the Daily Report, the Annual Report or any other document
required to be delivered by it pursuant to the Sale Agreement.
22
(e) On any day, permit a Borrowing Base Deficiency to exist.
6.17. Bank Accounts. Move the Bank Accounts from the
institution at which they are maintained on the date hereof.
6.18. Successor Servicer. Permit any change of Servicer,
except in accordance with the Sale Agreement.
6.19. Servicing of Contracts.
(a) Permit any change in the method by which Collections are
made, unless instructed to in writing by the Program Manager, in which
case Xxxxx shall cause the Servicer to implement any and all such
changes as soon as practicable.
(b) Permit the Servicer to amend, modify or otherwise change or
agree to any amendment, modification or other change in the Credit and
Collection Policy.
6.20. Prohibitions Regarding Subordinated Note. Make any
payment or prepayment of, or purchase, redeem or otherwise acquire, or
amend any provisions pertaining to the subordination or the terms of
payment of, the Subordinated Note except as permitted by the terms of
the Operative Documents.
6.21. Lock-Box Banks. Add or terminate any bank as a
Lock-Box Bank from those delivering a Lock-Box Agreement in the form of
Exhibit F hereto (a "Lock-Box Agreement"), or make any change in its
instructions to Obligors regarding payments to be made to any Lock-Box
Bank, unless the Collateral Agent shall have received notice of and
approved such addition of any Lock-Box Bank, a Lock-Box Agreement in the
form of Exhibit F hereto executed by Xxxxx, the Collateral Agent and
such Lock-Box Bank shall have been delivered to the Collateral Agent; or
deposit or otherwise credit, or cause or permit to be so deposited or
credited, Collections to any lock-box account except the Lock-Box, the
Clearing Account and the Collection Account.
6.22. Contract Files. Transfer the Files to any Person
other than the Servicer or its agent or permit the Files to be
maintained at any location other than as set forth in the Sale
Agreement, in fireproof facilities owned, leased or utilized by the
Servicer as certified to the Collateral Agent and the Surety Provider.
SECTION 7. WIND-DOWN EVENTS; REMEDIES
If a Wind-Down Event shall have occurred, the Triple-A One Commitment
shall terminate as of the Wind-Down Date. Upon the occurrence of a Wind-Down
Event, and upon the written instructions of the Program Manager, Xxxxx shall
take such action or shall cause such action to be taken pursuant to any and all
Interest Rate Hedge Mechanisms and/or enter into any Hedge Agreement at the sole
expense of Xxxxx promptly upon the request of the Program Manager. In addition,
the Program Manager shall be entitled to exercise any additional rights it
23
may have pursuant to the Operative Documents, including, without limitation, the
right to implement a Complete Servicing Transfer under the Sale Agreement, and
the right to redirect the payments of Obligors directly to the Program Manager
or such other Person that the Program Manager may designate..
SECTION 8. INVESTMENT MANAGEMENT
8.1. Directions to Triple-A One. Subject to subsection 8.3
hereof, the Program Manager agrees that it will follow the directions of
Xxxxx, including all standing directions furnished to it by Xxxxx, in
the instances specified below and Triple-A One agrees that it will
comply with such directions of Xxxxx communicated to the Program
Manager.
(a) Xxxxx shall notify the Program Manager of the Type, Interest
Period (in the case of Eurodollar Loans), Maturity Date, amount and
purpose of the Loans, to enable the Program Manager to give the Bank
Agent the notice required pursuant to the Liquidity Agreement. Such
notice shall be received by the Program Manager no later than 12:00 noon
(New York City time) on the Borrowing Date, in the case of Base Rate
Loans, and 12:00 noon (New York City time) three Working Days prior to
the Borrowing Date in the case of Eurodollar Loans.
(b) Xxxxx shall notify the Program Manager of the amount, date of
issue and maturity of Commercial Paper to be sold to enable the Program
Manager to deliver any instructions required to be given pursuant to the
Issuing and Paying Agreement. Such information shall be delivered to the
Program Manager by 12:00 noon (New York City time) on the Business Day
immediately preceding the date of issue of such Commercial Paper.
In the event the Program Manager does not receive timely notice from
Xxxxx, the parties hereto agree that the Program Manager shall instruct Triple-A
One to issue Commercial Paper or borrow under the Liquidity Agreement and
Triple-A One shall comply therewith on such terms as the Program Manager
determines in its sole discretion.
8.2. Permitted Investments Xxxxx shall notify the Program
Manager of the type and maturity of Permitted Investments into which the
funds in the Collection Account shall be invested. Such notice shall be
received by the Program Manager no later than 10:00 A.M. (New York City
time) on each Business Day.
8.3. Conditions. Neither the Program Manager nor Triple-A
One shall be obligated to comply with the directions of Xxxxx (including
all standing directions furnished to it by Xxxxx) given pursuant to
subsection 8.1(b) hereof in any of the following instances:
(a) the maturity date of the Commercial Paper directed to be sold
would occur after the Scheduled Maturity Date; or
24
(b) such directions could result in Triple-A One issuing
commercial paper in violation of the Issuing and Paying Agreement; or
(c) such directions do not provide the best execution (including,
without limitation, the discount applicable to, or the maturity of, the
Commercial Paper directed to be sold) of the Commercial Paper to be
sold, as determined by the Program Manager in its sole discretion; or
(d) market conditions exist (as determined by the Program Manager
in its sole discretion) that prevent the execution of Xxxxx'x request to
issue Commercial Paper.
SECTION 9. THE PROGRAM MANAGER
(a) The Program Manager agrees (i) that it will not reduce the
Liquidity Commitments pursuant to subsection 2.6 of the Liquidity
Agreement below the Triple-A One Commitments then in effect and, (ii) in
the event that the Triple-A One Commitment is reduced pursuant to
Section 2.8 of this Triple-A One Credit Agreement, to reduce the
Liquidity Commitments by an equivalent amount, pursuant to subsection
2.6 of the Liquidity Agreement.
(b) The Program Manager agrees that it shall cause Triple-A One
to use its best efforts to sell Commercial Paper so long as either (A)
each of the Banks has a short-term debt rating equal to A-1 and P-1 or
(B) if any Bank has a lower short-term debt rating, the sale of
Commercial Paper will not cause Triple-A One's short-term rating by
Xxxxx'x or S&P to fall below A-1 and P-1. Except as set forth in clause
(B), the parties hereto agree that if any Bank's short-term debt rating
falls below A-1 and P-1, neither the Program Manager, Triple-A One, nor
any of their Affiliates shall have any obligation to issue or cause to
be issued Commercial Paper. The Program Manager agrees that it will use
commercially reasonable efforts to replace a downgraded Bank.
(c) Neither the Program Manager nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates shall be
liable for any action lawfully taken or omitted to be taken by it in
connection with this Triple-A One Credit Agreement or any other
Operative Document (except for its or such Person's own gross negligence
or willful misconduct).
(d) The Program Manager shall be entitled to rely, and shall be
fully protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to
the Seller, the Servicer or Xxxxx) independent accountants and other
experts selected by the Program Manager.
(e) The Program Manager agrees to notify Xxxxx'x and S&P of (i)
each amendment entered into with respect to any Operative Document, (ii)
any payment
25
default by Triple-A One under the Liquidity Agreement or by the Surety
Provider under a Surety Bond and (iii) the termination of the Triple-A
One Commitment.
SECTION 10. MISCELLANEOUS
10.1. Amendments and Waivers. None of this Triple-A One
Credit Agreement, the Triple-A One Note, any other Operative Document to
which Triple-A One, the Collateral Agent, the Program Manager or Xxxxx
is a party, nor any terms hereof or thereof may be amended, supplemented
or modified except in accordance with the provisions of this subsection.
Triple-A One, the Program Manager, the Surety Provider, the Collateral
Agent and Xxxxx may, from time to time, enter into written amendments,
supplements or modifications hereto and to the Triple-A One Note and the
other Operative Documents to which they are parties for the purpose of
adding any provisions to this Triple-A One Credit Agreement or the
Triple-A One Note or such other Operative Documents or changing in any
manner the rights of Triple-A One, the Program Manager, the Surety
Provider, the Collateral Agent or Xxxxx hereunder or thereunder and, in
addition, waiving, on such terms and conditions as Triple-A One, the
Program Manager, the Surety Provider, or the Collateral Agent may
specify in such instrument, any of the requirements of this Triple-A One
Credit Agreement or the Triple-A One Note or such other Operative
Documents or any Unmatured Wind-Down Event or Wind-Down Event and its
consequences. The foregoing notwithstanding, no waiver of paragraph (o)
of the definition of Wind-Down Event shall in any case be effective for
more than 15 days. Any such waiver and any such amendment, supplement or
modification shall be binding upon Triple-A One, the Program Manager,
the Surety Provider, the Collateral Agent and all future holders of the
Triple-A One Note, and each of S&P and Xxxxx'x shall receive notice
thereof. In the case of any waiver, Triple-A One, the Program Manager,
the Surety Provider, the Collateral Agent and Xxxxx shall be restored to
their former position and rights hereunder and under the Triple-A One
Note and any other Operative Documents to which they are parties, and
any Unmatured Wind-Down Event or Wind-Down Event waived shall be deemed
to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Unmatured Wind-Down Event or Wind-Down Event, or
impair any right consequent thereon.
10.2. Notices. 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 Triple-A One Credit 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
26
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 case of telephonic instructions or notices,
by calling the telephone number or numbers indicated for such party
below:
If to Xxxxx: Onyx Acceptance Financial Corporation
00000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Tel. No.: (000) 000-0000
Telecopier No.: (000) 000-0000
If to the Seller: Onyx Acceptance Corporation
00000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Executive Vice President
and Chief Financial Officer
Tel. No.: (000) 000-0000
Telecopier No.: (000) 000-0000
If to the Program Manager: CapMAC Financial Services, Inc.
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Insured Portfolio Management,
Structured Finance
Tel. No.: (000) 000-0000
Telecopier No.: (000) 000-0000
If to Triple-A One: Triple-A One Funding Corporation
c/o MBIA Insurance Corporation,
as Administrative Agent
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx, 00000
Attention: Insured Portfolio Management,
Structured Finance
Tel. No.: (000) 000-0000
Telecopier No.: (000) 000-0000
A copy of any notice delivered to or required to be sent by Xxxxx
hereunder shall be sent by Xxxxx to the holder of the Subordinated Note.
10.3. No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of Triple-A One or the
Collateral Agent any right, remedy, power or privilege hereunder or
under any of the other Operative Documents shall operate
27
as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges provided
herein and in the other Operative Documents are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by
law.
10.4. Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Triple-A One
Credit Agreement and the Triple-A One Note.
10.5. Payment of Expenses and Taxes. Xxxxx agrees, on
demand, to (a) pay or reimburse Triple-A One, the Program Manager, the
Surety Provider and the Collateral Agent for all its reasonable
out-of-pocket costs and expenses incurred in connection with the
preparation, execution, delivery and administration of, and any
amendment, supplement or modification to, this Triple-A One Credit
Agreement, the Triple-A One Note and the other Operative Documents and
any other documents prepared in connection herewith or therewith, and
the consummation of the transactions contemplated hereby and thereby,
including, without limitation, any and all collateral audit fees, the
reasonable fees and disbursements of counsel to Triple-A One, the
Program Manager, the Surety Provider and the Collateral Agent, (b) pay
or reimburse Triple-A One, the Program Manager, the Surety Provider and
the Collateral Agent for all their costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Triple-A One Credit Agreement, the Triple-A One Note, the other
Operative Documents and any such other documents, including, without
limitation, reasonable fees and disbursements of counsel to Triple-A
One, the Program Manager, the Surety Provider and the Collateral Agent
and (c) pay, indemnify, and hold Triple-A One, the Program Manager, the
Surety Provider and the Collateral Agent harmless from, any and all
recording and filing fees and any and all liabilities with respect to,
or resulting from any delay in paying, any registration tax, stamp, duty
and other similar taxes or duties, if any, which may be payable or
determined to be payable in connection with the execution and delivery
of, or consummation of any of the transactions contemplated by, or any
amendment, supplement or modification of, or any waiver or consent under
or in respect of, this Triple-A One Credit Agreement, the Triple-A One
Note, the other Operative Documents and any such other documents, and
(d) pay, indemnify, and hold Triple-A One, the Program Manager, the
Surety Provider and the Collateral Agent harmless from and against any
and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Triple-A One Credit
Agreement, the Triple-A One Note and the other Operative Documents, (all
the foregoing, collectively, the "indemnified liabilities"), provided
that Xxxxx has no obligation hereunder to the Program Manager, the
Collateral Agent, the Surety Provider or Triple-A One with respect to
indemnified liabilities arising from the gross negligence or willful
misconduct of the Program Manager, the Collateral Agent, the Surety
Provider or Triple-A One. Notwithstanding the foregoing, if Triple-A One
enters into agreements with one or more other borrowers ("Other
Borrowers"),
28
Triple-A One shall allocate such indemnified liabilities which are
attributable to Xxxxx and to the Other Borrowers to Xxxxx and to each
Other Borrower; provided, however, that if such indemnified liabilities
are attributable to Xxxxx and not attributable to any Other Borrower,
Xxxxx shall be solely liable for such indemnified liabilities or if such
indemnified liabilities are attributable to Other Borrowers and not
attributable to Xxxxx, such Other Borrowers shall be solely liable for
such indemnified liabilities. The agreements in this subsection shall
survive repayment of the Triple-A One Note and all other amounts payable
hereunder.
10.6. Successors and Assigns; Participations.
(a) This Triple-A One Credit Agreement shall be binding upon and
inure to the benefit of Xxxxx, Triple-A One, the Program Manager, the
Surety Provider (as a third party beneficiary) and the Collateral Agent
and all future holders of the Triple-A One Note and their respective
successors and assigns, except that Xxxxx may not assign or transfer any
of its rights or obligations under this Triple-A One Credit Agreement
and Triple-A One may not assign or transfer any of its rights or
obligations under this Triple-A One Credit Agreement without the prior
consent of Xxxxx, which consent shall not unreasonably be withheld.
(b) Triple-A One may, in accordance with applicable law, at any
time sell to one or more banks or other entities ("Participants")
participating interests in any Triple-A One Loan owing to it, the
Triple-A One Note, the Triple-A One Commitment or any other interest of
Triple-A One hereunder and under the other Operative Documents. In the
event of any such sale by Triple-A One of participating interests to a
Participant, Triple-A One's obligations under this Triple-A One Credit
Agreement to the other parties hereto shall remain unchanged, Triple-A
One shall remain solely responsible for the performance thereof,
Triple-A One shall remain the holder of the Triple-A One Note for all
purposes under this Triple-A One Credit Agreement and the other
Operative Documents, and Xxxxx shall continue to deal solely and
directly with Triple-A One in connection with Triple-A One's rights and
obligations under this Triple-A One Credit Agreement and the other
Operative Documents. Xxxxx agrees that if amounts outstanding under this
Triple-A One Credit Agreement and the Triple-A One Note are due and
unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of the Wind-Down Date, each Participant shall be
deemed to have the right of setoff in respect of its participating
interest in amounts owing under this Triple-A One Credit Agreement and
the Triple-A One Note to the same extent as if the amount of its
participating interest were owing directly to it under this Triple-A One
Credit Agreement or the Triple-A One Note. Xxxxx also agrees that each
Participant shall be entitled to the benefits of subsection 2.9 and 10.5
with respect to its participation in the Triple-A One Commitment and the
Triple-A One Loans outstanding from time to time; provided, that no
Participant shall be entitled to receive any greater amount pursuant to
such subsections than Triple-A One would have been entitled to receive
in respect of the amount of the participation transferred by Triple-A
One to such Participant had no such transfer occurred.
29
(c) Subject to the terms and conditions of Section 10.17, Finco
authorizes Triple-A One to disclose to any Participant and any
prospective Participant any and all financial information in its
possession concerning the Seller, Xxxxx and their Affiliates which has
been delivered to it by or on behalf of such Person pursuant to this
Triple-A One Credit Agreement or which has been delivered to it by or on
behalf of such Person in connection with its credit evaluation of the
Seller, Xxxxx and their Affiliates prior to becoming a party to this
Triple-A One Credit Agreement. Each Participant shall agree in writing
that it shall be bound by the provisions applicable to the Program
Manager set forth in Section 10.17.
(d) If, pursuant to this subsection 10.6, any interest in this
Triple-A One Credit Agreement or the Triple-A One Note is transferred or
assigned to any Participant or assignee which is organized under the
laws of any jurisdiction other than the United States or any state
thereof or the District of Columbia, Triple-A One shall cause such
Participant or assignee, as a condition to the effectiveness of such
transfer, (i) to represent to Triple-A One and Xxxxx that under
applicable law and treaties then in effect no taxes will be required to
be withheld by Xxxxx or Triple-A One with respect to any payments to be
made to such Participant or assignee in respect of the Triple-A One
Loans, (ii) to furnish to Xxxxx and Triple-A One two copies of either
IRS Form W-8ECI (or any successor form) or IRS Form W-8BEN (or any
successor form) (wherein such Participant or assignee claims entitlement
to complete exemption from United States federal withholding tax on all
interest payments hereunder) and IRS Form W-9 (or any successor form)
(wherein such Participant or assignee claims an exemption from United
States backup withholding tax) and (iii) to agree (for the benefit of
Triple-A One and Xxxxx) timely to provide Triple-A One and Xxxxx two
copies of a new IRS Form W-8ECI (or any successor form) or IRS Form
W-8BEN (or any successor form) and a new IRS Form W-9 upon the
expiration or obsolescence of any previously delivered form and
comparable statements in accordance with and if permitted under
applicable United States laws and regulations then in effect duly
executed and completed by such Participant or assignee, and to comply
from time to time with all applicable United States laws and regulations
with regard to such withholding tax exemption, unless, in any such case,
an event (including, without limitation, any change in treaty, law or
regulation) has occurred after the date hereof and prior to the date on
which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Participant or
assignee from duly completing and delivering any such form with respect
to it, and such Participant or assignee so advises Xxxxx and Triple-A
One. Each such Participant or assignee so organized shall certify (i) in
the case of an IRS Form W-8ECI or Form W-8BEN, that it is entitled to
receive payments under this Agreement and the Triple-A One Note without
deduction or withholding of any United States federal income taxes and
(ii) in the case of an IRS Form W-9, that it is entitled to an exemption
from United States backup withholding tax.
(e) Triple-A One shall not grant to any Participant the right to
consent to any amendment or waiver entered into in accordance with
subsection 10.1 except for any such amendment or waiver which would
increase the Triple-A One Commitment, or reduce
30
the amount or extend the due date of any principal of or interest on the
Triple-A One Note.
10.7. Termination. This Triple-A One Credit Agreement
shall terminate following the Commitment Termination Date upon payment
in full of all outstanding obligations, including, without limitation,
principal, interest and other amounts due hereunder and under the
Operative Documents which are payable on such date.
10.8. Counterparts. This Triple-A One Credit Agreement may
be executed by one or more of the parties to this Triple-A One Credit
Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the
same instrument.
10.9. Severability. Any provision of this Triple-A One
Credit Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10. Integration. This Triple-A One Credit Agreement
represents the agreement of Xxxxx, Triple-A One, the Program Manager and
the Collateral Agent with respect to the subject matter hereof, and
there are no promises, undertakings, representations or warranties by
Triple-A One, the Program Manager or the Collateral Agent relative to
the subject matter hereof not expressly set forth or referred to herein
or in the other Operative Documents.
10.11. GOVERNING LAW. THIS TRIPLE-A ONE CREDIT AGREEMENT
AND THE TRIPLE-A ONE NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS TRIPLE-A ONE CREDIT AGREEMENT AND THE TRIPLE-A ONE NOTE SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAW 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.
10.12. SUBMISSION TO JURISDICTION; WAIVERS. EACH PARTY
HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS TRIPLE-A ONE CREDIT AGREEMENT AND THE OTHER
OPERATIVE DOCUMENTS TO WHICH IT IS A PARTY, OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE
GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE COURTS
OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
31
DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE
TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT
SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND
AGREES NOT TO PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO ITS ADDRESS SET FORTH IN SUBSECTION 10.2 OR AT SUCH OTHER
ADDRESS OF WHICH ALL OF THE OTHER PARTIES HERETO SHALL HAVE BEEN
NOTIFIED PURSUANT THERETO;
(d) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY
RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING
REFERRED TO IN THIS SUBSECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES.
10.13. Acknowledgments. Xxxxx hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Triple-A One Credit Agreement, the Triple-A One
Note and the other Operative Documents;
(b) neither Triple-A One, the Surety Provider, the Program
Manager nor the Collateral Agent has any fiduciary relationship to
Xxxxx, and the relationship between Triple-A One and Xxxxx is solely
that of debtor and creditor;
(c) no joint venture exists between Xxxxx and Triple-A One; and
(d) the Triple-A One Note will be pledged to the Bank Collateral
Agent pursuant to the Note Pledge Agreement.
10.14. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS TRIPLE-A ONE CREDIT AGREEMENT OR THE
TRIPLE-A ONE NOTE OR ANY OTHER OPERATIVE DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
10.15. No Bankruptcy Petition Against Triple-A One. Each
of the parties hereto covenants and agrees that it will not institute
against, or join with or knowingly
32
cooperate or encourage any other Person in instituting against, Triple-A
One any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any federal or state
bankruptcy or similar law. Each of the parties hereto covenants and
agrees that it will not institute against, or join with or knowingly
cooperate or encourage any other Person in instituting against, Xxxxx
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any federal or state bankruptcy
or similar law. This Section 10.15 shall survive the termination of this
Agreement and the Program.
10.16. Triple-A One's Credit Decision. Triple-A One
acknowledges that it has, independently and without reliance upon the
Program Manager, the Surety Provider or any of their Affiliates and
based on the financial statements referred to in Section 3.1(a) hereof
and Section 4.1(e) of the Sale Agreement and such other documents and
information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Triple-A One Credit Agreement and,
subject to the conditions set forth in this Triple-A One Credit
Agreement, to make Triple-A One Loans hereunder. Triple-A One also
acknowledges that it will, independently and without reliance upon the
Program Manager, the Surety Provider or any of their Affiliates and
based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not
taking action under this Triple-A One Credit Agreement.
10.17 Confidentiality.
(a) Xxxxx shall maintain, and shall cause each officer, employee
and agent of itself and its Affiliates to maintain, the confidentiality
of the Operative Documents and all other confidential proprietary
information with respect to Triple-A One, the Program Manager and the
Surety Provider and each of their respective businesses obtained by them
in connection with the structuring, negotiation and execution of the
transactions contemplated herein and in the other Operative Documents,
except for information that has become publicly available or information
disclosed (x) to legal counsel, accountants and other professional
advisors to Xxxxx and its Affiliates, (y) as required by law,
regulation, subpoena or other legal process or (z) in connection with
any legal or regulatory proceeding to which Xxxxx or any of its
Affiliates is subject. Xxxxx hereby consents to the disclosure of any
non-public information with respect to it received by Triple-A One, the
Program Manager and the Surety Provider (or any of their respective
Affiliates) to (i) any of Triple-A One, the Program Manager and the
Surety Provider (or any of their respective Affiliates), (ii) any
nationally recognized rating agency providing a rating or proposing to
provide a rating to Triple-A One's Commercial Paper, (iii) any provider
of Triple-A One's program-wide liquidity or credit support facilities,
(iv) any potential Bank or (v) any participant or potential participant
(which Person, in the case of clauses (iii) - (v), agrees in writing to
be bound by the confidentiality provisions of this Section 10.17).
(b) Notwithstanding the foregoing, each of the Surety Provider,
Triple-A One and the Program Manager shall maintain, and shall cause
each officer, employee and
33
agent of itself and its Affiliates to maintain, the confidentiality of
the Operative Documents and all other confidential proprietary
information with respect to Xxxxx and its Affiliates and each of their
respective businesses obtained by them in connection with the
structuring, negotiation and execution of the transactions contemplated
herein and in the other Operative Documents, except for information that
has become publicly available or information disclosed (i) to legal
counsel, accountants, reinsurers and other professional advisors to the
Surety Provider, Triple-A One and the Program Manager and their
Affiliates, (ii) as required by law, regulation, subpoena or other legal
process, or at the express direction of any other agency of any state or
any other jurisdiction in which it conducts business or (iii) at the
request of any regulatory authority, in connection with an examination
by any regulatory authority or in connection with any legal or
regulatory proceeding to which the Surety Provider, Triple-A One and the
Program Manager or any of their Affiliates is subject.
(c) The foregoing confidentiality provisions shall survive the
termination of this Agreement and the Program.
(d) Each of the parties hereto agrees and acknowledges the
termination as of the date hereof of the Confidentiality Agreement,
dated as of September 4, 1994, among Triple-A One, CapMAC, CapMAC
Financial Services, Inc., the Bank Agent, the Seller and Xxxxx, as the
same may have been amended, supplemented or otherwise modified from time
to time.
34
IN WITNESS WHEREOF, the parties hereto have caused this Triple-A One
Credit Agreement to be duly executed and delivered in New York, New York by
their proper and duly authorized officers as of the day and year first above
written.
ONYX ACCEPTANCE FINANCIAL
CORPORATION
By:_________________________________
Name:
Title:
TRIPLE-A ONE FUNDING CORPORATION
By: MBIA Insurance Corporation,
its attorney in fact
By:_________________________________
Name:
Title:
CAPMAC FINANCIAL SERVICES, INC.,
as Program Manager
By:_________________________________
Name:
Title:
CAPITAL MARKETS ASSURANCE
CORPORATION,
as Collateral Agent
By:_________________________________
Name:
Title:
35
AGREED TO AND ACKNOWLEDGED:
ONYX ACCEPTANCE CORPORATION,
as Seller and holder of the Subordinated Note
By: __________________________________
Name:
Title:
36
EXHIBIT A
[DEFINITIONS LIST]
See TAB 1
EXHIBIT B
[FORM OF TRIPLE-A ONE NOTE]
$[ ] New York, New York
FOR VALUE RECEIVED, the undersigned, Onyx Acceptance Financial
Corporation, a Delaware corporation ("Xxxxx"), promises to pay to the order of
Triple-A One Funding Corporation ("Triple A One"), on the date specified in
Section 2.2 of the Triple-A One Credit Agreement hereinafter referred to, at the
office of Triple-A One at c/o MBIA Insurance Corporation, as administrative
agent, 000 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000, in lawful money of the United
States of America and in immediately available funds, the principal amount of [
] $[ ], or, if less, the aggregate unpaid principal amount of all Triple-A One
Loans made by Triple-A One to Xxxxx pursuant to the Triple-A One Credit
Agreement, and to pay interest at such office, in like money, from the date
hereof on the unpaid principal amount of such Triple-A One Loans from time to
time outstanding at the rates and on the dates specified in Section 2.5 of the
Triple-A One Credit Agreement.
Triple-A One is authorized to record, on the schedule annexed
hereto and made a part hereof or on other appropriate records of Triple-A One,
the date and amount of each Triple-A One Loan made by Triple-A One, each
continuation thereof, the interest rate from time to time on each Triple-A One
Loan and the date and amount of each payment or prepayment of principal thereof.
Any such recordation shall constitute prima facie evidence of the accuracy of
the information so recorded, provided that the failure of Triple-A One to make
any such recordation (or any error in such recordation) shall not affect the
obligations of Xxxxx hereunder or under the Triple-A One Credit Agreement in
respect of the Triple-A One Loans.
This Triple-A One Note is the Triple-A One Note referred to in
the Triple-A One Credit Agreement dated as of September 4, 1998, (as amended,
supplemented or otherwise modified and in effect from time to time, the
"Triple-A One Credit Agreement") among Xxxxx, Triple-A One, CapMAC Financial
Services, Inc., as Program Manager and CapMAC, as Collateral Agent, and is
entitled to the benefits thereof. Capitalized terms used herein without
definition have the meanings assigned to them in the Triple-A One Credit
Agreement.
This Triple-A One Note is subject to optional and mandatory
prepayment as provided in the Triple-A One Credit Agreement.
Upon the occurrence of the Wind-Down Date, Triple-A One shall
have all of the remedies specified in the Triple-A One Credit Agreement. Xxxxx
hereby waives presentment, demand, protest and all notices of any kind.
THIS TRIPLE-A ONE NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
ONYX ACCEPTANCE FINANCIAL
CORPORATION
By ____________________________________
Name:
Title:
B-2
Schedule 1 to
TRIPLE-A ONE NOTE
Principal Interest on Prepayment
of Triple-A Triple-A of Triple-A
Date One Loans One Loans One Loans Notation By
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
DATED:
B-3
EXHIBIT C
NOTICE OF BORROWING
Onyx Acceptance Financial Corporation hereby requests that Triple-A One
Funding Corporation make a Triple-A One Loan to it on [insert Triple-A One
Borrowing Date] in the amount of [amount of Triple-A One Loan requested] by
crediting the Collection Account by 3:00 p.m. (New York City time) on [insert
Triple-A One Borrowing Date] (capitalized terms used herein have the meaning
assigned to them in the Second Amended and Restated Triple-A One Credit
Agreement dated as of November 30, 2001, as amended, modified or supplemented
from time to time). Onyx Acceptance Financial Corporation hereby certifies as of
the date hereof that the representations and warranties made in Section 3 of the
Triple-A One Credit Agreement are true and correct on and as of the Triple-A One
Borrowing Date for such Triple-A One Loan, both before and after giving effect
to such Triple-A One Loan.
_____________________________________
BY: [RESPONSIBLE OFFICER OF XXXXX]
TITLE:
Dated: ____________________
EXHIBIT D
[TRIPLE-A ONE SECURITY AGREEMENT]
See TAB 4
EXHIBIT E
[FORM OF FINCO OFFICER'S CERTIFICATE]
The undersigned [President] [Chief Financial Officer] [Chief Executive
Officer] [Executive Vice President] of Onyx Acceptance Financial Corporation
("Xxxxx") hereby certifies that as such he is authorized to execute and deliver
this certificate on behalf of Xxxxx in connection with the Second Amended and
Restated Triple-A One Credit Agreement dated as of November 30, 2001 (as
amended, supplemented or otherwise modified, the "Triple-A One Credit
Agreement") among Xxxxx, CapMAC Financial Services, Inc. and Capital Markets
Assurance Corporation (all capitalized terms used herein without definition
having the respective meanings specified in the Definitions List attached to the
Triple-A One Credit Agreement), and further certify as follows:
Xxxxx shall apply the proceeds of the Triple-A One Loan which are being
disbursed to Xxxxx on the date hereof (the "Loan Proceeds") solely for the
purpose of purchasing from the Seller, pursuant to the Sale Agreement, those
Contracts set forth on the Contracts List delivered to the Program Manager and
Triple-A One on the date hereof and such Loan Proceeds shall be applied [on the
date hereof].
IN WITNESS WHEREOF, I have affixed hereunto my signature this _____ day
of ____________ .
By:____________________________________
Name:
Title:
EXHIBIT F
[Form of Lock-Box Agreement]
EXHIBIT G
[RESERVED]
EXHIBIT H
[FORM OF INTEREST RATE HEDGE ASSIGNMENT ACKNOWLEDGMENT]
[Date]
[Name of Hedge Counterparty]
[Address of Hedge Counterparty]
Attention:_________________
Re: ISDA Master Agreement and Schedule, dated as of ___________,
____ (as amended, the "Hedge Agreement"), between [Name of
Hedge Counterparty] (the "Counterparty") and Onyx Acceptance
Financial Corporation ("Company")
Ladies and Gentlemen:
Company hereby notifies you that Company has assigned to Capital
Markets Assurance Corporation, as Collateral Agent (the "Collateral Agent"),
under the Financing Agreement identified below, all of its right, title and
interest in and to any interest rate hedge (each, a "Hedge") entered into
pursuant to the Hedge Agreement, including, without limitation, (i) all rights
of Company to receive moneys due and to become due under or pursuant to the
Xxxxxx, (ii) claims of Company for damages arising out of or for breach of or
default under the Xxxxxx, (iii) the right of Company to terminate the Xxxxxx or
the Hedge Agreement, and to compel performance and otherwise exercise all
remedies thereunder, and (iv) all proceeds of any and all of the foregoing (the
assignment of all right, title and interest of Company in and to the Xxxxxx and
the Hedge Agreement being referred to as the "Assigned Rights").
As used herein, "Financing Agreement" shall mean that certain
Second Amended and Restated Triple-A One Credit Agreement, dated as of November
30, 2001, by and among Onyx Acceptance Financial Corporation, Triple-A One
Funding Corporation, ("Triple-A One"), Capital Markets Assurance Corporation, as
Collateral Agent and CapMAC Financial Services, Inc., as Program Manager, as the
same may from time to time be amended, supplemented or otherwise modified and in
effect. Capitalized terms used but not defined herein shall have the meanings
set forth in the Financing Agreement.
The Counterparty hereby agrees that, until the Counterparty
receives written notice from the Collateral Agent to the contrary, the
Counterparty shall make all payments under the Hedge Agreement and the Xxxxxx to
the Company. Upon the Counterparty's receipt of written notice from the
Collateral Agent, (i) the Counterparty will cease to make any such payments to
the Company, and shall make all such payments only to the Collateral Agent or as
the Collateral Agent may from time to time direct, and (ii) the Collateral Agent
shall be entitled
to exercise any and all rights and remedies of Company under the Hedge Agreement
and the Xxxxxx to receive such payments in accordance with the terms hereof.
All payments to be made under the Hedge Agreement and the Xxxxxx
by the Counterparty shall be made by the Counterparty irrespective of, and
without deduction for, any counterclaim, defense, recoupment or set-off (other
than netting for payments owing by Company thereunder in accordance with the
terms of the Hedge Agreement and the Xxxxxx) and shall be final, and the
Counterparty will not seek to recover from the Collateral Agent or any Person
for any reason any such payment once made.
Notwithstanding the foregoing, (a) Company shall remain liable
under the Hedge Agreement and each Hedge to perform all of its duties and
obligations thereunder to the same extent as if this Acknowledgment had not been
executed, (b) the exercise by the Collateral Agent of any of the rights
hereunder shall not release Company from any of its duties or obligations under
the Hedge Agreement or any Hedge, and (c) neither the Collateral Agent nor
Triple-A One shall have any obligation or liability under the Hedge Agreement or
any Hedge by reason of this Acknowledgment, nor shall any of them be obligated
to perform any of the obligations or duties of Company thereunder or to take any
action to collect or enforce any claim for payment thereunder.
Company shall not, without the prior written consent of the
Collateral Agent and the Surety Provider (i) sell, assign (by operation of law
or otherwise) or otherwise dispose of, or grant any option with respect to, any
of the Assigned Rights, or create or permit to exist any lien, security
interest, option or other charge or encumbrance upon or with respect to any of
the Assigned Rights, except for the assignment acknowledged hereby; (ii) cancel
or terminate the Hedge Agreement or any Hedge or consent to or accept any
cancellation or termination thereof; (iii) amend or otherwise modify the Hedge
Agreement or any Hedge or give any consent, waiver or approval thereunder; (iv)
waive any default under or breach of the Hedge Agreement or any Hedge; or (v)
take any other action in connection with the Hedge Agreement or any Hedge which
would impair the value of the interest or rights of Company thereunder or which
would impair the interests or rights of the Collateral Agent for the benefit of
the holders of the Obligations.
No amendment or waiver of any provision hereof, and no consent to
any departure by Company herefrom shall in any event be effective unless the
same shall be in writing and signed by the Collateral Agent, Company, the Surety
Provider and the Counterparty, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
This letter agreement may be executed in counterparts, each of
which when executed by the parties hereto shall be deemed an original and all of
which together shall be deemed the same instrument.
This letter agreement shall be binding upon Company and the
Counterparty and their respective successors and assigns, and shall inure,
together with the rights and remedies of
H-2
the Collateral Agent hereunder, to the benefit of the Collateral Agent and
Triple-A One, and their respective successors, transferees and assigns. This
letter agreement shall be governed by and construed in accordance with the law
(including Section 5-1401 of the General Obligations Laws of New York but
otherwise without regard to conflicts of law provisions) of the State of New
York.
H-3
Very truly yours,
ONYX ACCEPTANCE FINANCIAL
CORPORATION
By: ________________________________
Name:
Title:
Agreed:
[NAME OF HEDGE COUNTERPARTY]
By: ____________________________
Name:
Title:
H-4
