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EXHIBIT 10.107
EXECUTION COPY
ONYX ACCEPTANCE FINANCIAL CORPORATION
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AMENDED AND RESTATED
TRIPLE-A ONE CREDIT AGREEMENT
dated as of September 4, 1998
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TRIPLE-A ONE FUNDING CORPORATION
CAPMAC FINANCIAL SERVICES, INC.
CAPITAL MARKETS ASSURANCE CORPORATION
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TABLE OF CONTENTS
Page
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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; Fees........................................................4
2.6. Proceeds..............................................................5
2.7. Collection Account....................................................5
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.....................................................9
4.1. Conditions to Effectiveness...........................................9
4.2. Conditions to Each Triple-A One Loan.................................11
4.3. Conditions to Release of Proceeds of Triple-A One Loans from
Disbursement Sub-Account...........................................12
SECTION 5. AFFIRMATIVE COVENANTS..................................................13
5.1. Financial Statements.................................................13
5.2. Certificates; Other Information......................................13
5.3. Payment of Obligations...............................................14
5.4. Conduct of Business and Maintenance of Existence.....................14
5.5. Maintenance of Property; Insurance...................................14
5.6. Inspection of Property; Files, Books and Records; Discussions........14
5.7. Notices..............................................................14
5.8. Delivery of Other Reports............................................15
5.9. Annual Certificate...................................................15
5.10. Further Assurances..................................................15
5.11. Independent Director and Officer....................................15
5.12. Instructions to Obligors............................................16
5.13. Cooperation in Making Calculations..................................16
5.14 Interest Rate Hedge Mechanisms......................................16
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SECTION 6. NEGATIVE COVENANTS.....................................................16
6.1. Limitation on Debt...................................................17
6.2. Limitation on Liens..................................................17
6.3. Limitation on Fundamental Changes....................................17
6.4. Limitation on Sale of Assets.........................................17
6.5. Purchased Contracts..................................................17
6.6. Limitation on Dividends..............................................17
6.7. Limitation on Capital Expenditures...................................18
6.8. Limitation on Investments, Loans and Advances........................18
6.9. Transactions with Affiliates.........................................18
6.10. Sale and Leaseback..................................................18
6.11. Corporate Documents.................................................18
6.12. Capital Stock.......................................................18
6.13. Fiscal Year.........................................................18
6.14. Limitation on Negative Pledge Clauses...............................18
6.15. Activities of Xxxxx.................................................19
6.16. Agreements..........................................................19
6.17. Bank Accounts.......................................................19
6.18. Successor Servicer..................................................19
6.19. Servicing of Contracts..............................................19
6.20. Prohibitions Regarding Subordinated Note............................20
6.21. Lock-Box Banks......................................................20
6.22. Contract Files.....................................................20
SECTION 7. WIND-DOWN EVENTS; REMEDIES.............................................20
SECTION 8. INVESTMENT MANAGEMENT..................................................21
8.1. Directions to Triple-A One...........................................21
8.2. Permitted Investments................................................21
8.3. Conditions...........................................................21
SECTION 9. THE PROGRAM MANAGER....................................................22
SECTION 10. MISCELLANEOUS.........................................................23
10.1. Amendments and Waivers..............................................23
10.2. Notices.............................................................23
10.3. No Waiver; Cumulative Remedies......................................24
10.4. Survival of Representations and Warranties..........................25
10.5. Payment of Expenses and Taxes.......................................25
10.6. Successors and Assigns; Participations.............................26
10.7. Termination.........................................................27
10.8. Counterparts........................................................27
10.9. Severability........................................................27
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10.11. GOVERNING LAW......................................................28
10.12. SUBMISSION TO JURISDICTION; WAIVERS................................28
10.13. Acknowledgments....................................................29
10.14. WAIVER OF JURY TRIAL...............................................29
10.15. No Bankruptcy Petition Against Triple-A One........................29
10.16. Triple-A One's Credit Decision.....................................29
EXHIBITS
EXHIBIT A - DEFINITIONS LIST
EXHIBIT B - 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 - FORM OF INTEREST RATE SWAP SURETY BOND
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AMENDED AND RESTATED
TRIPLE-A ONE CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of September 4, 1998 (the "Triple-A One
Credit 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 Triple-A One 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, Capital Markets Assurance 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; and
WHEREAS, the parties hereto have entered into the Triple-A One Credit
Agreement dated as of September 8, 1994 (as amended to the date hereof, the
"Original Credit Agreement");
WHEREAS, the parties hereto wish to amend and restate the Original
Credit Agreement as hereinafter provided.
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NOW, THEREFORE, 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 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-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.
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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. 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 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.
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(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 Collections 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; Fees. (a) 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 plus all Facilities Fees, Facilities
Costs and Xxxxx Expenses payable on such date
pursuant to the Fee Letter Agreement;
(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;
(iii) on each Determination Date, all Facilities Fees
payable on such date pursuant to the Fee Letter
Agreement accrued during the prior Determination
Period; and
(iv) 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.
(b) Xxxxx agrees to pay the Servicing Fee to the Servicer on
each Determination Date, as provided for in the Triple-A One Security
Agreement.
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 and to pay other amounts expressly permitted under
the terms and conditions of the Operative Documents.
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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 Triple-A One (the
"Collection Account"). Xxxxx shall cause the Servicer to deposit all
Collections to the Clearing Account on the same day as 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, 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. All payments made by Finco 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 to 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 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. The agreements in this
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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 Amended and Restricted 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 June
30, 1998 and the related statements of income and of cash flows for the
six 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 applied consistently throughout
the period involved (except as approved by such Responsible Officer and
as disclosed therein). 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.
(b) Corporate Existence; Compliance with Law. Xxxxx (i) is
duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization, (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, made
or received. This Triple-A One Credit Agreement and each other
Operative Document to
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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 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.
(i) ERISA. Neither Xxxxx nor any ERISA Affiliate of Xxxxx has
participated in any Multiemployer Plan. Except for the Seller, neither
Xxxxx nor any ERISA Affiliate
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of Xxxxx has maintained any Single Employer Plan. 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 with the applicable
provisions of ERISA and the Code. 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.
(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 to purchase Contracts from the Seller
pursuant to the Sale Agreement and to pay other amounts expressly
permitted under the terms and conditions of the Operative Documents.
(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 unsecured Debt, or in respect of any guarantee by Xxxxx of the
obligations of another, under which the lender, creditor or lessor or
the Person in whose favor such guarantee is given has any right, by
operation of law or otherwise, to have any claim in respect of such
obligation or guarantee first satisfied out of the general assets of
Xxxxx in priority to the claims of its general creditors.
(o) Title; Liens. Except for the Lien granted to the
Collateral Agent 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 been filed in favor of the Collateral Agent pursuant to the
Triple-A One Security Agreement and Liens with respect to taxes
described in subsection 6.2(a) hereof.
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(p) Ownership of Contracts. Each Purchase by Xxxxx of
Contracts constitutes a valid sale of the Contracts to Xxxxx 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 bankruptcy laws with respect to Xxxxx.
(r) Separate Corporate Existence. Xxxxx is a special purpose
corporation whose primary activities are restricted in its articles 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
Amended and Restated 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 Amended and Restated Triple-A One Credit
Agreement executed and delivered by a duly authorized officer of Xxxxx,
(ii) the Third Amended and Restated Triple-A One Note executed and
delivered by a duly authorized officer of Xxxxx, (iii) the Amended and
Restated Triple-A One Security Agreement (substantially in the form of
Exhibit D hereto), executed and delivered by a duly authorized officer
of Xxxxx, (iv) 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, 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 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 shall be in form and substance
satisfactory to the Program Manager and Triple-A One.
(c) Corporate Documents; Incumbency. (i) The Program Manager
and Triple-A One shall have received 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
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thereof by its Secretary or Assistant Secretary and (ii) a certificate
of the Secretary or an Assistant Secretary of each of the Seller and
Xxxxx, certifying the names and true signatures of the officers of the
Seller and Xxxxx authorized to sign the Operative Documents to which it
is a party.
(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 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 due and payable to it, all as set forth in the Fee Letter
Agreement. The Bank Agent and each Bank shall have received in
immediately available funds any fees due and payable to it, all as set
forth at Section 2.5 of the Liquidity Agreement and in the Liquidity
Fee Letter Agreement dated April 30, 1998 between the Seller and the
Bank Agent.
(f) Legal Opinions. The Program Manager and Triple-A One shall
have received (i) the executed legal opinion of counsel to the Seller
and Xxxxx with respect to the enforceability of their obligations under
the Operative Documents and the Triple-A One Note and (ii) 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
Triple-A One pursuant to the Triple-A One Security Agreement continues
to be a valid first priority security interest.
(g) UCC Searches. 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 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 the Contracts shall have been filed.
(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 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 Seller 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.
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(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) Surety Provider Credit Risk. S&P and Xxxxx'x shall each
have informed the Surety Provider that the transactions contemplated by
this Triple-A One Credit Agreement and the other Operative Documents
(without regard to the Surety Bonds) is an investment-grade risk.
(m) Commercial Paper Ratings. The Commercial Paper Notes shall
be rated A-1 by S&P and P-1 by Xxxxx'x.
(n) Insurance. The Program Manager shall have received
evidence that the Blanket Policy or other form of insurance acceptable
to the Program Manager is in full force and effect.
(o) Note Bond. The Surety Provider and Triple-A One shall have
executed an endorsement to the Note Bond to reflect an insured
obligation of $325,000,000.
(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) Sub-Lease Agreement. The Program Manager and Triple-A One
shall have received an amendment to the Sublease and Administrative
Services Agreement executed by Onyx and Xxxxx providing for the lease
of storage space by Onyx to Xxxxx for the location of the Files to be
maintained by Xxxxx on behalf of the Collateral Agent.
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 (including, without limitation, the initial Triple-A One
Loan) 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) Xxxxx shall have delivered a Notice of Borrowing.
(c) 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
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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.
(a) 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:
(b) 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.
(c) 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.
(d) 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 Distribution 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.
(e) 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.
(f) Additional Matters. All corporate and other proceedings,
documents, instruments and legal matters specified in subsection 4.1
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.
(g) 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.
(h) 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 Xxxxx to be held by Xxxxx for the benefit of
Triple-A One in segregated fireproof facilities.
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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.
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 (except for Xxxxx'x first fiscal
year for which there are no comparative figures for the previous fiscal
year), reported on 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 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
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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;
(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 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 or desirable 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
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:
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(a) the occurrence of any Wind-Down Event or Unmatured
Wind-Down Event;
(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 subsection 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 United States Bankruptcy Code of 1978,
as amended, 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 or desirable to preserve and protect the
position of Triple-A One 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 and Officer. Maintain at all times
at least two Independent Directors. An "Independent Director" shall be
an individual who is not at such time, and shall not have been at any
time during the preceding five years (i) a director, officer, employee
or affiliate of Onyx Acceptance Corporation or any of its Subsidiaries
or Affiliates, or of any major creditor thereof, or (ii) the beneficial
owner at the time of such individual's appointment as an Independent
Director or at any time
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thereafter while serving as an Independent Director, of more than 1,000
shares in the aggregate of all classes of common stock of Onyx
Acceptance Corporation, or if greater, such number of shares the value
of which constitutes more than 10% of such individual's net worth. The
term "major creditor" shall mean a financial institution to which Onyx
Acceptance Corporation has outstanding indebtedness for borrowed money
in a sum sufficiently large as would reasonably be expected to
influence the judgment of the proposed Independent Director adversely
to the interests of Xxxxx when its interests are adverse to those of
Onyx Acceptance Corporation.
5.12. Instructions to Obligors. Instruct all Obligors to cause
all Collections to be deposited directly into a 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 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 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 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 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 Interest Rate Hedge Mechanisms in notional amount(s)
required by Xxxxx'x and S&P to cover amounts outstanding under the
warehouse facility from time to time, satisfactory to Xxxxx'x and S&P
and to the Collateral Agent 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
and the Program Manager.
5.15. Contract Files. Maintain continuous custody of the Files
(other than those held by the Custodian pursuant to the Custodian
Agreement for so long as the Custodian Agreement is in effect) on
behalf of the Collateral Agent in secure and fireproof facilities in
accordance with the customary standards for such custody as certified
to the Program Manager and the Collateral Agent.
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:
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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, 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
(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 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
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Security Agreement, provided that after giving effect thereto no
Wind-Down Event or Unmatured Wind-Down event shall have occurred and be
continuing.
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.
6.11. Corporate Documents. Amend its Certificate of
Incorporation or By-Laws.
6.12. Capital Stock. 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 except with the prior written consent of Triple-A
One and the Program Manager.
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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 Triple-A One 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 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, the Investor Report or any
other document required to be delivered by it pursuant to the Sale
Agreement without the prior written consent of the Program Manager.
(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 Closing Date without
the prior written consent of the Program Manager.
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 does hereby agree to implement any and all such changes as
soon as practicable.
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(b) Amend, modify or otherwise change or agree to any
amendment, modification or other change in the Credit and Collection
Policy without the prior written consent of the Program Manager to each
such proposed amendment, modification or change.
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 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-Boxes,
the Clearing Account and the Collection Account.
6.22. Contract Files. Transfer the Files to any Person or
permit the Files to be maintained at any location other than (i) 0000
Xxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx, or at the offices of the
Custodian so long as the Custodian Agreement is in effect prior to
January 1, 1999, or (ii) 00000 Xxxxx Xxxxxx Xxxxx, Xxxxxxxx Xxxxx,
Xxxxxxxxxx, in each case in fireproof facilities owned or leased by
Xxxxx as certified to the Program Manager and the Collateral Agent,
without the consent of the Program Manager and Collateral Agent.
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 may
have pursuant to the Operative Documents, including, without limitation, the
right to implement a Complete Servicing Transfer under the Sale Agreement, the
right to intercept the payments of Obligors directly to the Program Manager, and
the right to enforce the Collateral Agent's rights in and to the On-Line Service
Agreement, as described in Section 2(j) of the Triple-A One Security Agreement,
and the rights provided under the FDI Service Agreement and the Supplemental
Service Agreement.
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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
(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
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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, S&P or Duff & Xxxxxx Credit Rating Co. 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 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.
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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 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 Collateral Agent
or Xxxxx hereunder or thereunder and, in addition, waiving, on such
terms and conditions as Triple-A One, the Program Manager 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 Collateral Agent and all future
holders of the Triple-A One Note, provided that such waiver, amendment,
supplement or modification shall not be effective without prior written
notice thereof to S&P and Xxxxx'x. In the case of any waiver, Triple-A
One, the Program Manager, 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 U.S. Postal Service, (b) the next Business Day following
the day on which such notice was placed in the custody of any overnight
courier service, including express mail service or (c) the same
Business Day on which such notice is sent by telegram, messenger or
facsimile. Unless otherwise specified in a notice sent or delivered in
accordance with the foregoing provisions of this subsection, notices,
demands, instructions and other communications in writing shall be
given to or made upon the respective parties hereto at their respective
addresses (or to their respective facsimile
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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
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Tel. No.: (000) 000-0000
Telecopier No.: (000) 000-0000
If to the Seller: Onyx Acceptance Corporation
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Executive Vice President
Tel. No.: (000) 000-0000
Telecopier No.: (000) 000-0000
If to the Program Manager: CapMAC Financial Services, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Underwriting
Officer
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 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: Chief Underwriting Officer
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 shall
operate 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 herein
provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.
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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 and the
Collateral Agent for all its out-of-pocket costs and expenses incurred
in connection with the preparation and execution 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 and the Collateral Agent, (b) pay or reimburse Triple-A
One, the Program Manager and the Collateral Agent for all its 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 and the Collateral Agent
and (c) pay, indemnify, and hold Triple-A One, the Program Manager 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 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 or Triple-A One with respect to indemnified
liabilities arising from the gross negligence or willful misconduct of
the Program Manager, the Collateral Agent or Triple-A One.
Notwithstanding the foregoing, if Triple-A One enters into agreements
similar to the Triple-A One Credit Agreement, the Triple-A One Note or
any of the other Operative Documents with one or more other Persons
("Other Borrowers"), 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
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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
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.
(c) Subject to the terms and conditions of the Confidentiality
Agreement, 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
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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
the Confidentiality Agreement.
(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, 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
either U.S. Internal Revenue Service Form 4224 (or any successor form)
or U.S. Internal Revenue Service Form 1001 (or any successor form)
(wherein such Participant or assignee claims entitlement to complete
exemption from U.S. federal withholding tax on all interest payments
hereunder) and (iii) to agree (for the benefit of Triple-A One and
Xxxxx) timely to provide Triple-A One and Xxxxx a new Form 4224 (or any
successor form) or Form 1001 (or any successor form) upon the
expiration or obsolescence of any previously delivered form and
comparable statements in accordance with and if permitted under
applicable U.S. laws and regulations and amendments then in effect duly
executed and completed by such Participant or assignee, and to comply
from time to time with all applicable U.S. laws and regulations with
regard to such withholding tax exemption.
(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 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 principal, interest and other amounts due
hereunder 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.
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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.
10.12. SUBMISSION TO JURISDICTION; WAIVERS. XXXXX 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 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.
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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. XXXXX 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. Xxxxx
covenants and agrees that it will not institute against, or join 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.
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.
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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:
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EXHIBIT A
[DEFINITIONS LIST]
See TAB 1
1
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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 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 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.
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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
By:_________________________________
Name:
Title:
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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:
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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 Amended and Restated Triple-A One Credit Agreement dated
as of September 4, 1998, 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: ____________________
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EXHIBIT D
[TRIPLE-A ONE SECURITY AGREEMENT]
See TAB 4
1
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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 Amended and Restated
Triple-A One Credit Agreement dated as of September 4, 1998 (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:
42
EXHIBIT F
[Form of Lock-Box Agreement]
[Name and address of Bank]
Gentlemen:
We refer to lock-box/bank account No. [ ] maintained with you (the
"Lock-Box Account") by us (sometimes referred to as "Xxxxx"). We have entered
into a Credit Agreement (the "Triple-A one Credit Agreement") with Triple-A One
Funding Corporation ("Triple-A One") and CapMAC Financial Services, Inc., as
program manager, and Capital Markets Assurance Corporation, as collateral agent
(the "Collateral Agent"), dated as of , 1994, and the Triple-A One Security
Agreement, dated as of , 1994 with Triple-A One and the Collateral Agent
pursuant to which we have granted a security interest in the Lock-Box Account to
the Collateral Agent. The Triple-A One Credit Agreement requires the execution
and delivery of this agreement by you.
By signing this agreement, you agree that on and after delivery to you
of a letter in the form of Attachment A hereto (the "Letter"), the Lock-Box
Account shall, on the terms provided herein, be maintained by you for the
benefit of, and the amounts from time to time therein held by you for the
Collateral Agent. Until the time of delivery of the Letter, the Lock-Box Account
is to be processed in accordance with the standard procedures currently in
effect. All service charges and fees with respect to the Lock-Box Account shall
be payable by Xxxxx as currently arranged or, after delivery of the Letter to
you, by debit to the Lock-Box Account as described below.
Upon delivery to you of the Letter, all further instructions thereafter
regarding the Lock-Box Account shall be under the sole dominion and control of
the Collateral Agent.
Instructions from the Collateral Agent may include, but shall not be
limited to:
(a) Notice of the establishment of a Clearing Account into which
all monies collected in the Lock-Box Account shall thereafter
be transferred. Such transfers will be in accordance with your
availability of funds procedures applicable to Xxxxx and will
encompass all collected deposits less any deductions for
returned items. Transfers between the Lock-Box Account and the
Clearing Account may be carried out using either Fed wire
transfers or ACH (Automated Clearing House) entries.
(b) The right to specify when payments are to be made by you out
of or in connection with the Lock-Box Account.
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(c) A requirement that duplicate monthly bank statements for the
Lock-Box Account and the Clearing Account be mailed directly
to an address specified by the Collateral Agent.
By signing this agreement, you agree that after delivery to you of the
Letter you shall not make any charges or debits to the Lock-Box Account, or
exercise any right of setoff or banker's lien with respect thereto except as
provided herein. Xxxxx and the Collateral Agent agree that you may at any time
debit the Lock-Box Account for any items deposited in the Lock-Box Account which
may be returned or otherwise not collected, and, after delivery to you of the
Letter, for your standard and customary fees in connection with the maintenance
of the Lock-Box Account. The Collateral Agent hereby indemnifies you from any
loss arising from items returned or otherwise not collected the funds of which
were transferred in accordance with instructions from the Collateral Agent.
Any notice provided for in this agreement may be personally delivered,
sent by telex, telecopy or U.S. mail, certified return receipt requested, to the
address, telex or telecopy number set forth under the signature to this
agreement of the party to be notified (or to such other address, telex or
telecopy number as shall be designated in writing by such party to all other
parties to this agreement). All notices shall be effective upon receipt. Notice
from the Collateral Agent will be signed by an authorized signatory thereof as
confirmed in the incumbency certificate sent to you together with the Letter.
You may terminate this agreement only upon thirty days' prior written
notice to that effect to the Collateral Agent. After such termination, incoming
mail addressed to the Lock-Box Account shall be forwarded in accordance with the
Collateral Agent's instructions. This agreement may also be terminated upon
written notice to you by the Collateral Agent. Except as otherwise provided in
this paragraph, this agreement may not be terminated or amended without the
prior written consent of the Collateral Agent.
This agreement shall inure to the benefit of and shall be binding upon
the respective successors and assigns of the parties hereto, but it may not be
assigned in whole or in part by any party without the prior written consent of
the other parties.
Very truly yours,
ONYX ACCEPTANCE FINANCIAL CORPORATION
By:______________________________________
Name:
Title:
Address: 0000 Xxxxxx Xxxxxx Xx.
Xxxxxx, XX 00000
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AGREED TO:
CAPITAL MARKETS ASSURANCE CORPORATION,
as Collateral Agent
By:_______________________________
Name:
Title:
Address: 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
[Name of Bank]
By:_______________________________
Name:
Title:
Address:
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ATTACHMENT A
to Form of Lock-Box Agreement
Form of Notice to Lock-Box Bank
(Date)
[Name and Address of Bank]
Gentlemen:
Pursuant to that certain letter agreement among us and
Onyx Acceptance Financial Corporation ("Xxxxx"), dated , _____ (the
"Agreement") , we hereby notify you that Xxxxx has transferred exclusive
ownership and control of Xxxxx'x lock-box (bank) account No. [__________]
maintained with you (the "Lock-Box Account") to Capital Markets Assurance
Corporation (the "Collateral Agent").
Attached hereto is an incumbency certificate establishing that the
person signing below on behalf of the Collateral Agent is duly authorized and
indicating the names of the other officers of the Collateral Agent who are
authorized to give you instructions pursuant to the Agreement.
By signing the Agreement, Xxxxx has agreed that, pursuant to the terms
of the Agreement, the Collateral Agent is, from and after this date, irrevocably
entitled to exercise any and all rights in respect of or in connection with the
Lock-Box Account, including, without limitation, the right to specify when
payments are to be made out of or in connection with the Lock-Box Account.
Very truly yours,
CAPITAL MARKETS ASSURANCE CORPORATION,
as Collateral Agent
By:______________________________________
Name:
Title:
Address: 000 Xxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
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EXHIBIT G
[FORM OF INTEREST RATE SWAP SURETY BOND]
CAPITAL MARKETS ASSURANCE CORPORATION
SURETY BOND
[DATE]
SURETY BOND XX.XX
RE: MASTER AGREEMENT, SCHEDULE AND CONFIRMATION AMONG AND
BETWEEN ONYX ACCEPTANCE FINANCIAL CORPORATION ("ONYX
FINANCIAL") AND BANK BOSTON, N.A. (THE "BENEFICIARY"), AND
ANY TRANSACTIONS THEREUNDER (THE "INSURED AGREEMENT").
INSURED OBLIGATION: OBLIGATION OF ONYX FINANCIAL TO PAY THE GUARANTEED PAYMENT
UNDER THE INSURED AGREEMENT.
BENEFICIARY: BANKBOSTON, N.A.
CAPITAL MARKETS ASSURANCE CORPORATION ("CapMAC"), for adequate
consideration received and subject to the terms of this surety bond (the "Surety
Bond"), hereby unconditionally and irrevocably guarantees to the Beneficiary the
Insured Obligation. CapMAC agrees to pay to the Beneficiary each Guaranteed
Payment, provided, however that in no event shall the aggregate amount paid by
CapMAC under this Surety Bond (other than with respect to Avoided Payments)
exceed $5,000,000 (the "Surety Bond Amount").
Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to them in the Insured Agreement. The following
terms shall have the meanings set forth below:
"Business Day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in
either the City of New York, New York or Boston Massachusetts
are authorized to close.
"Guaranteed Payment" shall mean, with respect to each
Transaction under the Insured Agreement and each Scheduled
Payment Date thereunder, the amount payable by Onyx Financial
to the Beneficiary on such Scheduled Payment Date less any
amounts so paid by or for the account of Onyx Financial.
"Insolvency Proceeding" means the commencement, after
the date hereof, of any bankruptcy, insolvency, readjustment
of debt, reorganization, marshaling of assets
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and liabilities or similar proceedings by or against any
Person, or the commencement, after the date hereof, of any
proceedings by or against Onyx Financial for the winding up or
liquidation of its affairs, or the consent after the date
hereof to the appointment of a trustee, conservator, receiver
or liquidator in any bankruptcy, insolvency, readjustment of
debt, marshaling of assets, reorganization and liabilities or
similar proceedings of or relating to Onyx Financial.
"Term" means, with respect to this Surety Bond, the
period from, and including, the date of issuance hereof, to
the later of:
(i) payment by CapMAC of the full Insured Obligations; and
(ii) the date that is one year and one day following the final
Scheduled Payment Date, provided that, if an Insolvency
Proceeding is existing by or against Onyx Financial during
such one year and one day period, then this Surety Bond and
CapMAC's obligations hereunder shall terminate on the date of
the conclusion or dismissal of such Insolvency Proceeding
without continuing jurisdiction by the court in such
Insolvency Proceeding, provided further, that, this Surety
Bond shall not terminate prior to the date on which CapMAC has
made all payments required to be made under the terms of this
Surety Bond in respect of such Avoided Payments.
In the event of any payment made under this Surety Bond CapMAC shall be
subrogated to all rights of the Beneficiary with respect to the Insured
Agreement.
CapMAC will pay to the Beneficiary, irrevocably and unconditionally and
without the assertion of any defenses to payment, including fraud in inducement
or fact, the amount demanded in immediately available funds at 1:00 p.m. New
York City time on the Business Day next succeeding presentation to CapMAC (as
hereinafter provided) of a notice for payment in the form of Exhibit A hereto
("Notice for Payment"), appropriately completed and executed by the Beneficiary.
Presentation of any Notice for Payment under this Surety Bond shall be
made by 10:00 a.m. New York City time on any Business Day by (a) delivery of the
original Notice for Payment to CapMAC at its address set forth below, or (b)
facsimile transmission of the original Notice for Payment to CapMAC at its
facsimile number set forth below. If presentation is made by facsimile
transmission, the Beneficiary shall (i) promptly, but in any event within one
hour of transmission, confirm transmission by telephone to CapMAC at its
telephone number set forth below, and (ii) as soon as reasonably practicable,
deliver the original Notice for Payment to CapMAC at its address set forth
below.
If the payment of any amount paid by Onyx Financial to the Beneficiary
under the Insured Agreement is voided (a "Preference Event") under any
applicable bankruptcy, insolvency, receivership or similar law in an Insolvency
Proceeding, and, as a result of such a
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Preference Event, the Beneficiary is required to return such voided payment, or
any portion of such voided payment (an "Avoided Payment"), CapMAC will pay, an
amount equal to such Avoided Payment, irrevocably, absolutely and
unconditionally and without the assertion of any defenses to payment, including
fraud in inducement or fact or any other circumstances that would have the
effect of discharging a surety in law or in equity, upon receipt by CapMAC from
the Beneficiary of (x) a certified copy of a final order of a court exercising
jurisdiction in such Insolvency Proceeding to the effect that the Beneficiary is
required to return any such payment or portion thereof during the Term of this
Surety Bond because such payment was voided under applicable law, with respect
to which order the appeal period has expired without an appeal having been filed
(the "Final Order"), (y) an assignment, in form reasonably satisfactory to
CapMAC, irrevocably assigning to CapMAC all rights and claims of such
Beneficiary relating to or arising under such Avoided Payment and (z) a Notice
for Payment in the form of Exhibit A hereto appropriately completed and executed
by the Beneficiary. Such payment shall be disbursed to the receiver,
conservator, debtor-in-possession or trustee in bankruptcy named in the Order
and not to the Beneficiary directly.
CapMAC shall make payments due in respect of Avoided Payments prior to
1:00 p.m. New York City time on the second Business Day following CapMAC's
receipt of the documents required under clauses (x) through (z) of the preceding
paragraph. Any such documents received by CapMAC after 3:00 p.m. New York City
time on any Business Day or on any day that is not a Business Day shall be
deemed to have been received by CapMAC prior to 3:00 p.m. on the next succeeding
Business Day. All payments made by CapMAC hereunder in respect of Avoided
Payments will be made with CapMAC's own funds.
This Surety Bond is neither transferable nor assignable without the
prior written consent of CapMAC but it shall inure to the benefit of the
successors of the Beneficiary, if any.
All notices, presentations, transmissions, deliveries and
communications made by the Beneficiary to CapMAC with respect to this Surety
Bond shall specifically refer to the number of this Surety Bond and shall be
made to CapMAC at:
Capital Markets Assurance Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, X.X. 00000
Attention: Managing Director,
Consumer Structured Finance
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other address, telephone number or facsimile number as CapMAC may
designate to the Beneficiary in writing from time to time. Each such notice,
presentation, delivery and communication shall be effective only upon actual
receipt by CapMAC.
The obligations of CapMAC under this Surety Bond are irrevocable,
primary, absolute and unconditional (except as expressly provided herein) and
neither the failure of the Beneficiary
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or Onyx Financial or any other person to perform any covenant or obligation in
favor of CapMAC (or otherwise), nor the nonpayment of any premium to CapMAC, nor
the failure or omission to make a demand permitted hereunder, nor the
commencement of any bankruptcy, debtor or other insolvency proceeding by or
against the Beneficiary or Onyx Financial or any other person shall in any way
affect or limit CapMAC's obligations under this Surety Bond. If an action or
proceeding to enforce this Surety Bond is brought, the Beneficiary shall be
entitled to recover from CapMAC costs and expenses reasonably incurred,
including without limitation reasonable fees and expenses of counsel.
There shall be no acceleration payment due under this Surety Bond
unless such acceleration is at the sole option of CapMAC.
CapMAC hereby waives and agrees not to assert any and all rights to
require the Beneficiary to make demand on or to proceed against any person,
party or security prior to demanding payment under this Surety Bond.
No defenses, set-offs and counterclaims of any kind available to CapMAC
so as to deny payment of any amount due in respect of this Surety Bond will be
valid and CapMAC hereby waives and agrees not to assert any and all such
defenses, set-offs and counterclaims, including, without limitation, any such
rights acquired by subrogation, assignment or otherwise.
Upon the termination of this Surety Bond, the Beneficiary shall
forthwith deliver the original of this Surety Bond to CapMAC for cancellation.
This Surety Bond is not covered by the property/casualty insurance fund
specified in Article Seventy-six of the New York State insurance law.
This Surety Bond sets forth in full the undertaking of CapMAC, and
shall not be modified, altered or affected by any other agreement or instrument,
including any modification or amendment thereto, or by the merger, consolidation
or dissolution of Onyx Financial and may not be canceled or revoked by CapMAC
prior to the time it is terminated in accordance with the express terms hereof.
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THIS SURETY BOND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, CapMAC has caused this Surety Bond to be executed
on the date first written above.
CAPITAL MARKETS ASSURANCE CORPORATION
By:__________________________
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