EXHIBIT 10.148
EXECUTION
ONYX ACCEPTANCE RECEIVABLES CORPORATION
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of January 29, 2004
EIFFEL FUNDING, LLC
VARIABLE FUNDING CAPITAL CORPORATION
as Conduit Lenders
CDC FINANCIAL PRODUCTS INC.
WACHOVIA BANK, NATIONAL ASSOCIATION
VARIOUS FINANCIAL INSTITUTIONS
as Committed Lenders
WACHOVIA CAPITAL MARKETS, LLC
as Group Agent
CDC FINANCIAL PRODUCTS INC.
as Group Agent and Administrative Agent
TABLE OF CONTENTS
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SECTION 1.
DEFINITIONS
1.1. Defined Terms............................................................................................... 2
SECTION 2.
AMOUNT AND TERMS OF COMMITMENT
2.1. Commitment.................................................................................................. 3
2.2. Lender Notes................................................................................................ 3
2.3. Availability of Borrowings.................................................................................. 4
2.4. Extension of the Committed Lenders' Commitments............................................................. 4
2.5. Mandatory and Optional Prepayments.......................................................................... 5
2.6. Interest.................................................................................................... 5
2.7. Proceeds.................................................................................................... 7
2.8. Collection Account.......................................................................................... 7
2.9. Reduction of Commitment..................................................................................... 7
2.10. Taxes...................................................................................................... 8
2.11. Certification.............................................................................................. 9
2.12. Failure to Provide Certification........................................................................... 9
2.13. Tax Benefit................................................................................................ 10
2.14. Conduit Financing.......................................................................................... 10
2.15. Fees....................................................................................................... 10
2.16. Hedge Agreement Reserve.................................................................................... 10
2.17. Increased Costs; Capital Adequacy; Illegality.............................................................. 11
2.18. Breakage Costs............................................................................................. 12
2.19. Additional Lending Groups.................................................................................. 13
SECTION 3.
REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of Recco..................................................................... 13
SECTION 4.
CONDITIONS PRECEDENT
4.1. Conditions to Effectiveness................................................................................. 17
4.2. Conditions to Each Loan..................................................................................... 20
SECTION 5.
AFFIRMATIVE COVENANTS
5.1. Financial Statements........................................................................................ 21
5.2. Certificates; Other Information............................................................................. 21
5.3. Payment of Obligations...................................................................................... 22
5.4. Conduct of Business and Maintenance of Existence............................................................ 22
5.5. Maintenance of Property; Insurance.......................................................................... 22
5.6. Inspection of Property; Files, Books and Records; Discussions............................................... 22
5.7. Notices..................................................................................................... 22
5.8. Delivery of Other Reports................................................................................... 23
5.9. Annual Certificate.......................................................................................... 23
5.10. Further Assurances......................................................................................... 23
5.11. Independent Director....................................................................................... 23
5.12. Instructions to Obligors................................................................................... 24
5.13. Cooperation in Making Calculations......................................................................... 24
5.14. Interest Rate Hedge Mechanisms............................................................................. 24
5.15. Contract Files............................................................................................. 24
5.16. Separate Existence......................................................................................... 24
SECTION 6.
NEGATIVE COVENANTS
6.1. Limitation on Debt.......................................................................................... 26
6.2. Limitation on Liens......................................................................................... 26
6.3. Limitation on Fundamental Changes........................................................................... 26
6.4. Limitation on Sale of Assets................................................................................ 26
6.5. Purchased Contracts......................................................................................... 26
6.6. Limitation on Dividends..................................................................................... 26
6.7. Limitation on Capital Expenditures.......................................................................... 27
6.8. Limitation on Investments, Loans and Advances............................................................... 27
6.9. Transactions with Affiliates................................................................................ 27
6.10. Sale and Leaseback......................................................................................... 27
6.11. Corporate Documents........................................................................................ 27
6.12. Capital Stock.............................................................................................. 27
6.13. Fiscal Year................................................................................................ 27
6.14. Limitation on Negative Pledge Clauses...................................................................... 27
6.15. Activities of Recco........................................................................................ 27
6.16. Agreements................................................................................................. 28
6.17. Bank Accounts.............................................................................................. 28
6.18. Successor Servicer......................................................................................... 28
6.19. Servicing of Contracts..................................................................................... 28
6.20. Prohibitions Regarding Subordinated Note................................................................... 28
6.21. Lock-Box Banks............................................................................................. 29
6.22. Contract Files............................................................................................. 29
6.23. Material Adverse Effect.................................................................................... 29
SECTION 7.
WIND-DOWN EVENTS; REMEDIES
7.1. Wind Down Events............................................................................................ 29
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SECTION 8.
INVESTMENT MANAGEMENT
8.1. Permitted Investments....................................................................................... 29
SECTION 9.
THE ADMINISTRATIVE AGENT, THE GROUP AGENTS AND THE SURETY PROVIDER
9.1. Authorization and Action.................................................................................... 29
9.2. Delegation of Duties........................................................................................ 30
9.3. Exculpatory Provisions...................................................................................... 30
9.4. Reliance.................................................................................................... 30
9.5. Notice of Wind-Down Events.................................................................................. 31
9.6. Non-Reliance on Lenders..................................................................................... 31
9.7. Administrative Agent and Group Agents in their Individual Capacities........................................ 32
9.8. Resignation by the Administrative Agent..................................................................... 32
9.9. Resignation by a Group Agent................................................................................ 33
SECTION 10.
MISCELLANEOUS
10.1. Amendments and Waivers..................................................................................... 33
10.2. Notices.................................................................................................... 34
10.3. No Waiver; Cumulative Remedies............................................................................. 35
10.4. Survival of Representations and Warranties................................................................. 36
10.5. Payment of Expenses and Taxes.............................................................................. 36
10.6. Assignments and Participations............................................................................. 37
10.7. Termination................................................................................................ 39
10.8. Counterparts............................................................................................... 40
10.9. Severability............................................................................................... 40
10.10. Integration............................................................................................... 40
10.11. GOVERNING LAW............................................................................................. 40
10.12. SUBMISSION TO JURISDICTION; WAIVERS....................................................................... 40
10.13. Acknowledgments........................................................................................... 41
10.14. WAIVER OF JURY TRIAL...................................................................................... 41
10.15. No Bankruptcy Petition; No Recourse....................................................................... 41
10.16. The Lenders' Credit Decision.............................................................................. 42
10.17. Confidentiality........................................................................................... 42
10.18. Binding Effect............................................................................................ 43
10.19. Third-Party Beneficiary................................................................................... 44
LENDER ANNEXES
ANNEX A VFCC LENDERS ANNEX
ANNEX B EIFFEL LENDERS ANNEX
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EXHIBITS
EXHIBIT A - DEFINITIONS LIST
EXHIBIT B - [Reserved]
EXHIBIT C - [Reserved]
EXHIBIT D - NOTICE OF BORROWING
EXHIBIT E - SECURITY AGREEMENT
EXHIBIT F - FORM OF LOCK-BOX AGREEMENT
EXHIBIT G FORM OF INTEREST RATE HEDGE ASSIGNMENT ACKNOWLEDGEMENT
EXHIBIT H - FORM OF ASSIGNMENT AND ACCEPTANCE
EXHIBIT I - HEDGE SPREADSHEET
EXHIBIT J - ISDA MASTER AGREEMENT AND SCHEDULE
EXHIBIT K FORM OF JOINDER AGREEMENT
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AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of January 29, 2004 (the "Credit
Agreement" or this "Agreement"), among
(i) ONYX ACCEPTANCE RECEIVABLES CORPORATION, a Delaware
corporation ("Recco"),
(ii) CDC FINANCIAL PRODUCTS INC., a Delaware corporation ("CDC
FP") as Administrative Agent (in such capacity the "Administrative
Agent"),
(iii) EIFFEL FUNDING, LLC ("Eiffel"), a Delaware limited
liability company VARIABLE FUNDING CAPITAL CORPORATION, a Delaware
corporation ("VFCC"), and other Persons which are or may become parties
hereto as conduit lenders (each a "Conduit Lender" and collectively the
"Conduit Lenders"),
(iv) CDC FP, WACHOVIA BANK, NATIONAL ASSOCIATION a national
banking association ("Wachovia"), and the various financial
institutions and Persons which are or may become parties hereto as
committed lenders (each in such capacity, a "Committed Lender",
collectively the "Committed Lenders" and, together with the Conduit
Lenders, the "Lenders" and each a "Lender"),
(v) CDC FP, as group agent for the Eiffel Lenders (in such
capacity the "Eiffel Group Agent") and WACHOVIA CAPITAL MARKETS, LLC, a
Delaware limited liability company, as group agent for the VFCC Lenders
(the "VFCC Group Agent"), and other Persons which are or may become
group agents for respective Lending Groups (in such capacity, each a
"Group Agent" and collectively the "Group Agents"),
amends and restates the Credit Agreement, dated as of January 9, 2003,
among Recco, Eiffel and CDC FP (the "Original Credit Agreement").
W I T N E S S E T H:
WHEREAS, pursuant to the Sale Agreement, Recco 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, Recco from time to time requests that Lenders make Loans to
Recco, 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 the Original
Credit Agreement, Recco 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
JPMorgan Chase Bank (the "Collateral Agent") for the benefit of the holders of
the Obligations pursuant to the Security Agreement, as amended;
WHEREAS, XL Capital Assurance Inc. (the "Surety Provider"), Recco, the
Seller and the Lenders have entered into the Insurance Agreement, as amended,
pursuant to which, among other things, the Surety Provider has issued a surety
bond to the Lenders to guarantee repayment of the Loans;
WHEREAS, subject to the terms and conditions set forth herein, each of
the Lenders is willing to make the Loans to Recco
WHEREAS, Recco, Eiffel and CDC FP desire to amend and restate the
Original Credit Agreement in certain respects, including, among other things,
naming CDC FP as Administrative Agent;
WHEREAS, VFCC wishes to become a party to the Credit Agreement as a
Conduit Lender, Wachovia Bank wishes to become a party to the Credit Agreement
as a Committed Lender and Wachovia Securities wishes to become a party to the
Credit Agreement as a Group Agent;
NOW, THEREFORE, Recco, Eiffel, CDC FP, VFCC, Wachovia Bank and Wachovia
Securities have agreed to amend and restate the Original Credit Agreement in its
entirety as follows:
SECTION 1. DEFINITIONS
1.1. Defined Terms. (a) As used in this Agreement, the Lender Notes,
the 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 Definitions List dated as of the date hereof that refers to this
Agreement, which is incorporated herein by reference and attached as Exhibit A
hereto (the "Definitions List").
(b) As used herein, in the Lender Notes and in the 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.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) Capitalized terms used herein, in the Lender Notes and in the
Security Agreement shall be equally applicable to both the singular and plural
forms of such terms.
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SECTION 2. AMOUNT AND TERMS OF COMMITMENT
2.1. Commitment. Subject to the terms and conditions hereof, Recco may
request revolving credit loans (each, a "Loan") from the Lenders from time to
time during the Commitment Period in an aggregate amount not to exceed the Total
Commitment. Upon receipt of each Notice of Borrowing:
(a) each Conduit Lender may, in its sole discretion, make its Share of
such Loans to Recco; and
(b) in the event that a Conduit Lender declines to make its Share of
such Loans to Recco as part of any requested Notice of Borrowing, such Conduit
Lender's related Committed Lender agrees to make such Loans to Recco following
receipt by the applicable Group Agent of a Notice of Borrowing;
provided, however, that in no event shall any Lender make any Loan, if, after
giving effect to such Loan, any of (a) the Outstanding Principal Amount would
exceed the Maximum Program Amount, (b) a Borrowing Base Deficiency would exist,
or (c) with respect to such Lender, its Group Outstanding Principal Amount
(after giving effect to such Loan) exceeds its Group Commitment. The proceeds of
such Loans shall be made available to Recco in accordance with Section 2.3.
During the Commitment Period, Recco may borrow, prepay the Loans in whole or in
part, and reborrow, all in accordance with the terms and conditions hereof.
2.2. Lender Notes. Each Loan made by a Lender shall be evidenced by a
single promissory note of Recco, substantially in the form set forth in the
Lenders Annex with respect to such Lender (each as amended, modified, extended
or replaced from time to time, a "Lender Note"), payable as set forth on such
Lenders Annex. Each Group Agent shall record the date and amount of its
respective Lending Group's Loans 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 in the absence of
manifest error. The Administrative Agent on behalf of all the Lenders and each
Group Agent shall, on behalf of each respective Lending Group, maintain a
register (the "Register") for the recordation of (i) the names and addresses of
the Lenders and any assignees of any Lender and (ii) the Commitment of, and the
principal amount and interest of the Loans owing to, each Lender or assignee
from time to time. The entries in the Register shall be conclusive, in the
absence of manifest error, and Recco, each Lender and assignee, and the
Administrative Agent and each Group Agent shall treat each Person whose name is
recorded in the Register as the owner of the Loans for all purposes of this
Agreement. Notwithstanding anything to the contrary, any assignment of any Loan
or Commitment shall be effective only upon appropriate entries with respect
thereto being made in the Register in the absence of manifest error. Each Lender
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 Section 2.6.
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2.3. Availability of Borrowings.
(a) Recco may request Loans on any Business Day during the Commitment
Period by delivering to the Administrative Agent prior irrevocable notice (with
a copy delivered to the Surety Provider and to each Group Agent) of each
borrowing in the form of Exhibit D hereto ("Notice of Borrowing") by 11:00 A.M.
(New York City time) on the Business Day prior to a Borrowing Date which shall
specify the (a) Borrowing Date for such borrowing, and (b) the amount of the
Loan requested. The Administrative Agent shall promptly determine and notify
each Group Agent of each Lender's Share of such Loan requested. Each Lender
shall make Loans during the Commitment Period as follows:
(i) upon each Group Agent's receipt of each Notice of
Borrowing, the Group Agent shall promptly determine whether the Conduit
Lenders or the Committed Lenders of its Lending Group will participate
in the funding of the requested borrowing;
(ii) upon such determination as described in clause (i) above,
each Group Agent shall promptly notify the Administrative Agent, who in
turn shall promptly notify Recco and the Surety Provider of the results
of such determination.
(b) Each Loan shall be in an amount at least equal to $500,000 (except
the initial Loan to be funded by the VFCC Lenders, which shall be in a minimum
amount of $5,000,000) or integral multiples of $100,000 in excess thereof. Any
Notice of Borrowing shall be irrevocable. Recco shall indemnify the Lenders and
hold the Lenders harmless from any related Breakage Costs that the Lenders may
sustain or incur as a consequence of Recco's failure to complete a Loan after
submission of a Notice of Borrowing (other than due to a default by a Lender).
(c) Each applicable Lender shall use its best efforts to place the
proceeds of such Loans on wire transmission to the Recco Account by 2:00 P.M.
(New York time) on the Borrowing Date.
2.4. Extension of the Committed Lenders' Commitments. (a) Each
Committed Lender's Commitment shall terminate on the Commitment Termination
Date. Notwithstanding the foregoing and provided no Wind-Down Event has
occurred, not more than 90 days prior to the Scheduled Termination Date in
effect from time to time, Recco may request that the Lenders and the Surety
Provider consent to extend the Scheduled Termination Date for an additional
364-day period.
(b) The Committed Lenders, the Conduit Lenders and the Surety Provider
shall each make a determination in their sole discretion as to whether or not
they will agree to extend the Scheduled Termination Date. The Administrative
Agent and the Surety Provider shall advise Recco in writing whether the
foregoing request has been granted within thirty (30) days after such request
has been made and whether such consent is subject to satisfaction of any
conditions precedent. If any such request is not granted within thirty (30) days
after such request has been made by Recco (the "Consent Period"), the Scheduled
Termination Date shall remain unchanged. The Scheduled Termination Date shall be
extended only upon the consent of one or more Committed Lenders (the "Consenting
Lenders") and the Surety Provider. If so extended, the Scheduled Termination
Date, as to the Consenting Lenders, shall be extended as provided in
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the Consenting Lenders' and Surety Provider's confirmatory written notice (which
notice shall be delivered to Recco within thirty (30) days after such request
was made) upon satisfaction of any conditions precedent specified therein. The
Scheduled Termination Date as to any Committed Lender or Conduit Lender that is
not a Consenting Lender shall remain unchanged.
(c) No extension pursuant to this Section 2.4 shall be effective with
respect to a Lender that (i) by a notice (a "Withdrawal Notice") delivered to
the Administrative Agent during the Consent Period, declines to consent to such
extension or (ii) has failed to respond to the Administrative Agent within the
Consent Period (each such Lender giving a Withdrawal Notice or failing to
respond in a timely manner being called a "Withdrawing Lender").
2.5. Mandatory and Optional Prepayments.
(a) Prior to the Commitment Termination Date, Recco shall, on each
Business Day (each, a "Mandatory Payment Date") on which a Borrowing Base
Deficiency exists on such Business Day (whether or not the Administrative Agent
or any Group Agent notifies Recco of such Borrowing Base Deficiency), repay the
principal of all Loans in the amount necessary to cure such Borrowing Base
Deficiency. Any such repayment shall be applied to reduce the Group Outstanding
Principal Amounts pro rata. Recco shall give the Administrative Agent and the
Group Agents notice of the amount payable by 10:00 A.M. (New York City time) on
such Mandatory Payment Date. Recco shall make such payment by 2:00 P.M. (New
York City time) on the applicable Mandatory Payment Date by depositing such
amount (and any other amounts owed to the Lenders under Section 4 of the
Security Agreement) in the Collection Account in immediately available funds.
Upon notice given by a Group Agent, Recco shall indemnify the Lenders and hold
the Lenders harmless from any related Breakage Costs which such Lenders may
sustain or incur as a consequence of such mandatory repayment. On and after the
Commitment Termination Date, principal on the Loans shall be paid as provided in
Section 5 of the Security Agreement.
(b) Recco may at any time and from time to time prepay the Loans, in
whole or in part, ratably among the Lenders, without premium or penalty, upon at
least two (2) Business Days' irrevocable notice to the Administrative Agent, the
Group Agents and to the Surety Provider, specifying the date and amount of
prepayment; provided that, upon notice given by the Administrative Agent and the
Group Agents, Recco shall indemnify the Lenders and hold the Lenders harmless
from any related Breakage Costs which such Lenders 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, Recco shall prepay all amounts outstanding
under the Lender Notes and this Agreement ratably among the Lenders to the
extent of amounts on deposit in the Collection Account available on each such
day and in the order set forth in Section 5(b) of the Security Agreement.
2.6. Interest. (a) Recco hereby promises to pay interest on the unpaid
principal amount of each Loan for the period commencing on the date such Loan is
made until such Loan is paid in full (or, in the case of a CP Loan, refinanced
with an Alternative Rate Loan), as follows:
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(i) during each Interest Period applicable to a CP Loan, at a
rate per annum equal to the sum of (A) the related Conduit Lender's CP
Rate applicable to such Interest Period, plus (B) the Applicable
Margin;
(ii) during each Interest Period applicable to an Alternative
Rate Loan, at a rate per annum equal to the related Alternative Rate
plus the Applicable Margin applicable to such Interest Period; and
(iii) notwithstanding the provisions of the preceding clauses
(i) and (ii), in the event that a Wind-Down Event has occurred and is
continuing, at a rate per annum equal to the Default Rate. After the
date the principal amount of any Loan is due and payable (whether on
the Scheduled Termination Date, upon acceleration or otherwise) or
after any other monetary Obligation of Recco arising under this
Agreement shall become due and payable, Recco shall pay (to the extent
permitted by law, if in respect of any unpaid amounts representing
interest) interest (after as well as before judgment) on such amounts
at a rate per annum equal to the Default Rate.
No provision of this Agreement or the Lender Notes shall require the payment or
permit the collection of interest in excess of the maximum permitted by
applicable law.
(b) Interest accrued on each Loan shall be payable by 2:00 PM (New York
City time) on each Scheduled Interest Payment Date and on the date of any
prepayment of such Loan.
(c) Each Group Agent shall from time to time advise the Administrative
Agent, Recco, the Surety Provider and the Servicer whether each of its
respective Lending Group's Loans is a CP Loan or an Alternative Rate Loan and of
the interest rate applicable to each Interest Period thereof. Each Conduit
Lender shall use its reasonable efforts to fund all or substantially all of the
Loans as CP Loans (it being understood that if Eiffel is not able to issue
sufficient Commercial Paper Notes to fund all of its assets at such time and no
Wind-Down Event has occurred and is continuing, Eiffel shall, at least, fund the
Loans pro rata with its other non-defaulted assets with Commercial Paper Notes);
provided that any Group Agent may determine, at any time and in its sole
discretion, that the CP Rate is unavailable or otherwise not desirable with
respect to Loans made by Conduit Lenders of its Lending Group, in which case the
related Loans from such Conduit Lenders will be Alternative Rate Loans (unless
the Default Rate is in effect).
(d) If prior to the first day of any Interest Period with respect to
any LIBOR Rate Loans:
(i) the Committed Lender, which holds such LIBOR Rate Loan,
shall have determined (which determination shall be conclusive and
binding upon Recco) that, by reason of circumstances affecting its
relevant market, adequate and reasonable means do not exist for
ascertaining the LIBOR Rate for such Interest Period, or
(ii) the LIBOR Rate determined or to be determined for such
Interest Period will not adequately and fairly reflect the cost to such
Committed Lender (as conclusively certified by such Committed Lender)
of making or maintaining their affected Loans during such Interest
Period,
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the Group Agent for such Committed Lender shall give facsimile or telephonic
notice thereof to Recco as soon as practicable thereafter. If such notice is
given (A) any LIBOR Rate Loans by such Committed Lender requested to be made on
the first day of such Interest Period shall be made as Base Rate Loans, and (B)
any outstanding LIBOR Rate Loans held by such Committed Lender shall be
converted on the last day of the then current Interest Period to Base Rate
Loans. Until such notice has been withdrawn by the Group Agent for such
Committed Lender, no further LIBOR Rate Loans shall be made or continued as such
by such Committed Lender.
2.7. Proceeds. The proceeds of the Loans shall be used by Recco solely
to purchase Contracts from the Seller pursuant to the Sale Agreement and to
deposit amounts to the Hedge Account Reserve Account on each Hedge Trade Date to
the extent necessary to cause the amount on deposit therein to equal the Hedge
Agreement Reserve Account Required Amount.
2.8. Collection Account. Recco has established, on or prior to the date
hereof, a bank account (No. 4047105606) at Xxxxx Fargo Bank in the name of the
Collateral Agent for the benefit of the holders of the Obligations (the
"Collection Account"). Recco shall, and shall cause the Servicer to, deposit all
Collections to the Clearing Account on the next Business Day after Collections
are received in the Lock-Boxes and on the next Business Day after Collections
are received in any other manner, and to transfer all Collections on deposit in
the Clearing Account to the Collection Account on the next Business Day after
such Collections are received by the Servicer in the Clearing Account. Recco
shall make transfers and withdrawals from the Collection Account solely as
permitted by the terms and conditions of the Security Agreement.
2.9. Reduction of Commitment.
(a) Recco shall have the right from time to time, upon not less than
five Business Days' notice to the Lenders, the Surety Provider, the
Administrative Agent and the Group Agents, to reduce the Total Commitment to an
amount not less than the aggregate principal amount of the Loans outstanding;
provided, however, that such reduction shall be applied to reduce each Group's
Commitment pro rata, and provided further, that in no event shall the Total
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 Total Commitment then in effect. On the date any such reduction
is effective, Recco shall pay to each Group Agent for the benefit of the
Committed Lenders in its Lending Group any accrued and unpaid commitment fee as
of such date on the amount of its Commitment so reduced and to the Surety
Provider any accrued and unpaid XLCA Premium (as defined in the Premium Letter)
as of such date on the amount of its Commitment so reduced. No reduction shall
be permitted under this Section 2.9 if after giving effect to such reduction,
the Total Commitment is less than the Outstanding Principal Amount and no such
reduction shall reduce any Group Commitment to an amount that is less than the
Group Outstanding Principal Amount for the related Lending Group.
(b) Notwithstanding any other provision herein, the Total Commitment
shall be adjusted on any Scheduled Termination Date by the difference between
(i) the Group Commitment of any Withdrawing Lender and (ii) the amount of the
Group Commitment of any Additional Lending Group that becomes party hereto at
such time.
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2.10. Taxes. Except to the extent required by applicable law, all
payments made by Recco under this Agreement and the Lender Notes shall be made
free and clear of, and without deduction or withholding for or on account of,
any present or future 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 (i)
income taxes, franchise or similar taxes (including branch profits taxes or
alternative minimum tax) imposed or levied on the Lenders, as a result of any
connection between the jurisdiction of the government or taxing authority
imposing such tax or any political subdivision or taxing authority thereof or
therein and the Lenders (excluding a connection arising solely from the Lenders
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or the Lender Notes), (ii) in the case of any
Foreign Lender, any taxes that are in effect and that would apply to a payment
hereunder or under any other document made or delivered pursuant hereto made to
such Foreign Lender as of the date such Foreign Lender becomes a party to this
Agreement, or in the case of any other Lender which changes its lending office
with respect to the Lender Notes to an office outside the U.S., any taxes that
are in effect and would apply to a payment to such Lender as of the date of the
change of the lending office and (iii) in the case of a Foreign Lender, any
taxes resulting from the addition of a "limitation of benefits" provision to an
applicable tax treaty which did not have a limitation of benefits provision at
the time such Foreign Lender became a party to this Agreement (all such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions and
withholdings being hereinafter called "Taxes"). Notwithstanding the foregoing,
the term "Taxes" shall include, with respect to a Foreign Lender that becomes a
party to this Agreement as a result of an assignment or a lender that changes
its lending office to an office outside the U.S., taxes (or a portion thereof)
that would have constituted Taxes in the hands of the assigning (or
transferring) bank (or lending office) under the preceding sentence as of the
date of such assignment or change in the lending office. If any Taxes are
required to be withheld from any amounts payable hereunder or under the Lender
Notes, the amounts so payable to the Lenders shall be increased to the extent
necessary to yield to the Lenders (after payment of all Taxes) interest or any
such other amounts payable hereunder or under the Lender Notes at the rates or
in the amounts specified in this Agreement and the Lender Notes. Whenever any
Taxes are payable by Recco, Recco will make reasonable efforts to obtain
certified copies of tax receipts evidencing the payment of any Taxes deducted or
withheld from each taxing authority imposing such Taxes. If Recco fails to pay
any Taxes when due to the appropriate taxing authority, Recco shall indemnify
each Lender for any incremental Taxes, interest or penalties that such Lender is
legally required to pay as a result of any such failure unless such penalties,
interest and other liabilities are attributable to the gross negligence or
willful misconduct of such Lender. After a Lender receives written notice of the
imposition of the Taxes which are subject to this Section 2.10, such Lender will
act in good faith to promptly notify Recco of its obligations hereunder;
provided, however, that the failure to so act shall not, standing alone, affect
the rights of such Lender under this Section 2.10. The Lenders agree that they
will use reasonable efforts (consistent with each such Lender's internal policy
and legal and regulatory restrictions and so long as such efforts would not be
materially disadvantageous to it, as determined in its good faith discretion) to
designate a different lending office if the making of such designation would
reduce or obviate the need for Recco to withhold Taxes. The agreements in this
subsection shall survive the termination of this Agreement and the payment of
the Lender Notes. Each Lender agrees that it will (i) take all reasonable
actions reasonably requested by Recco in writing that are without material risk
and cost to such Lender
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and consistent with the internal policies of such Lender and applicable legal
and regulatory restrictions (as the case may be) to maintain all exemptions, if
any, available to it from withholding taxes (whether available by treaty or
existing administrative waiver) and (ii) to the extent reasonable and without
material risk and cost to it, otherwise cooperate with Recco to minimize any
amounts payable by Recco under this Section 2.10; provided, however, that in
each case, any cost relating to such action or cooperation requested by Recco
shall be borne by Recco.
2.11. Certification. Each Lender that is not a Foreign Lender shall
deliver to Recco, and if applicable, the assigning Lender, on or before the date
on which it becomes a party to this Agreement, two duly completed and signed
copies of IRS Form W-9. Each Foreign Lender shall deliver to Recco, and if
applicable, the assigning Lender, on or before the date on which it becomes a
party to this Agreement either:
(a) two duly completed and signed copies of either IRS Form W-8BEN
(claiming an exemption from or a reduction in U.S. withholding tax under an
applicable treaty) or its successor form or IRS Form W-8ECI (claiming an
exemption from U.S. withholding tax as effectively connected income) or its
successor form and related applicable forms, as the case may be; or
(b) in the case of a Foreign Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code and that cannot comply with the
requirements of clause (a) hereof, (x) a statement to the effect that such
Lender is eligible for a complete exemption from withholding of U.S. Taxes under
Code Section 871(h) or 881(c), and (y) two duly completed and signed copies of
IRS Form W-8BEN or successor and related applicable form.
Further, each Foreign Lender agrees to deliver to Recco, and if
applicable, the assigning Lender, two further duly completed and signed copies
of the applicable Forms described above, or successor and related applicable
forms, on or before the date that any such form expires or becomes obsolete and
promptly after the occurrence of any event requiring a change from the most
recent form(s) previously delivered by it in accordance with applicable U.S.
laws and regulations and to deliver promptly to Recco, and if applicable, the
assigning Lender, such additional statements and forms as shall be reasonably
requested by Recco from time to time unless, in any such case, any change in law
or regulation has occurred subsequent to the date such Foreign Lender became a
party to this Agreement which renders all such forms inapplicable or which would
prevent such Lender from properly completing and executing any such form with
respect to it and such Lender promptly notifies Recco if it is no longer able to
deliver, or if it is required to withdraw or cancel, any form or statement
previously delivered by it pursuant to this Section 2.11.
2.12. Failure to Provide Certification. Recco shall not be required to
pay any increased amounts or indemnify any Foreign Lender with respect to Taxes
pursuant to Section 2.10 if the obligation to withhold or indemnify with respect
to such Taxes results from, or would not have occurred but for, the failure of
any Foreign Lender to deliver the forms described in Section 2.11 in the manner
and at the times specified in such paragraphs; provided, however, that Recco
shall be required to pay any Taxes resulting from a change in law (or
interpretation thereof) that becomes effective after the date hereof (other
than, in the case of a tax treaty which does not
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have a "limitation of benefits" provision, the addition of a limitation of
benefits provision to such treaty). A Foreign Lender shall not be required to
deliver any form or statement pursuant to Section 2.11 that such Foreign Lender
is not legally able to deliver.
2.13. Tax Benefit. If and to the extent that any Lender is able, in its
sole opinion, to apply or otherwise take advantage of any offsetting tax credit
or other similar tax benefit arising out of or in conjunction with any deduction
or withholding which gives rise to an obligation on Recco to pay any amounts
pursuant to Section 2.10, then such Lender shall, to the extent that in its sole
opinion it can do so without prejudice to the retention of the amount of such
credit or benefit and without any other adverse tax consequences for such
Lender, reimburse to Recco at such time as such tax credit or benefit shall have
actually been received by such Lender such amount as such Lender shall, in its
sole opinion, have determined to be attributable to the relevant deduction or
withholding and as will leave such Lender in no better or worse position than it
would have been in if the payment of such Taxes had not been required.
Nothing in this Section 2.13 shall oblige any Lender to disclose to
Recco or any other Person any information regarding its tax affairs or tax
computations or interfere with the right of any Lender to arrange its tax
affairs in whatever manner it thinks fit and, in particular, no Lender shall be
under any obligation to claim relief from its corporate profits or similar tax
liability in credits or deductions available to it and, if it does claim, the
extent, order and manner in which it does so shall be at its absolute
discretion.
2.14. Conduit Financing. Notwithstanding anything to the contrary
contained in this Agreement, if a Lender is a conduit entity participating in a
conduit financing arrangement (as defined in Section 7701(1) of the Code and the
Treasury regulations issued thereunder) with respect to any payments made by
Recco under this Agreement or under any other document made or delivered
pursuant hereto, Recco shall not be obligated to pay additional amounts to such
Lender pursuant to Section 2.10 to the extent that the amount of Taxes exceeds
the amount that would have been otherwise payable had such lender not been a
conduit entity participating in a conduit financing arrangement.
2.15. Fees. Recco agrees to pay to the Surety Provider, the
Administrative Agent, each Group Agent, and each Lender the Fees in the amounts
and on the dates set forth in the Fee Letters.
2.16. Hedge Agreement Reserve.
(a) On or prior to the Hedge Trade Date with respect to any Hedge
Agreement, Recco shall cause the Collateral Agent to establish with and maintain
in the name of the Collateral Agent a bank account (the "Hedge Agreement Reserve
Account") and shall cause to have deposited therein the amount necessary to
cause the amount on deposit therein to equal the Hedge Agreement Reserve Account
Required Amount from the net proceeds of any Loan made on such Hedge Trade Date.
(b) In the event that there are insufficient funds on deposit in the
Collection Account to enable the Servicer to make the scheduled net fixed rate
payment payable by Recco under each Hedge Agreement pursuant to Section 4(b)(i)
of the Security Agreement or clause third of
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Section 5(b) of the Security Agreement (a "Hedge Payment Shortfall"), then the
Servicer shall, upon written directions from the Controlling Party, withdraw the
Hedge Agreement Reserve Account Withdrawal Amount from the Hedge Agreement
Reserve Account and deposit such Hedge Agreement Reserve Account Withdrawal
Amount into the Collection Account no later than 12:00 noon, New York City time,
on the Business Day prior to the related Determination Date.
(c) In the event that the amount on deposit in the Hedge Agreement
Reserve Account (after giving effect to all deposits thereto and withdrawals
therefrom on such Business Day on a Determination Date) is greater than the
Hedge Agreement Reserve Account Required Amount on any Determination Date, the
Servicer shall distribute, upon written directions from the Controlling Party,
all such amounts to Recco. Upon any such distribution to Recco, neither the
Collateral Agent nor the Seller shall have any further rights in, or claims to,
such amounts.
(d) In the event that on any Determination Date, the amount on deposit
in the Hedge Agreement Reserve Account shall be less than the Hedge Agreement
Reserve Account Required Amount, the amounts remaining after the payment of the
amounts set forth in Section 4(b)(i) through (xiv) of the Security Agreement or
clauses first through twelfth of Section 5(b) of the Security Agreement, as
applicable, up to an amount equal to such shortfall, shall be deposited by the
Servicer, upon written directions from the Controlling Party, to the Hedge
Agreement Reserve Account on such Determination Date.
(e) Following the termination of any Hedge Agreement and payment of all
amounts due thereunder, any amount then allocated to the Hedge Agreement Reserve
Account on account of such Hedge Agreement shall be distributed to Recco.
2.17. Increased Costs; Capital Adequacy; Illegality.
(a) If, after the Closing Date, either (i) the introduction of or any
change (including, without limitation, any change by way of imposition or
increase of reserve requirements) in or in the interpretation of any law or
regulation or (ii) the compliance by any Lender or any Affiliate of a Lender
(each, an "Affected Party") with any guideline or request from any central bank
or other Governmental Authority (whether or not having the force of law), shall
(A) subject an Affected Party to any Tax (except for Taxes on the overall net
income of such Affected Party), duty or other charge with respect to a Loan
hereunder, or on any payment made hereunder, (B) impose, modify or deem
applicable any reserve requirement (including, without limitation, any reserve
requirement imposed by the Board of Governors of the Federal Reserve System, but
excluding any reserve requirement, if any, included in the determination of
Interest), special deposit or similar requirement against assets of, deposits
with or for the amount of, or credit extended by, any Affected Party or (C)
impose any other condition affecting a Loan or a Lender's rights hereunder, the
result of which is to increase the cost to any Affected Party or to reduce the
amount of any sum received or receivable by an Affected Party under this
Agreement, then within ten (10) days after demand by such Affected Party (which
demand shall be accompanied by a statement setting forth the basis for such
demand), Recco shall pay directly to such Affected Party such additional amount
or amounts as will compensate such Affected Party for such additional or
increased cost incurred or such reduction suffered.
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(b) If, after the Closing Date, either (i) the introduction of or any
change in or in the interpretation of any Applicable Law, guideline, rule,
regulation, directive or request or (ii) compliance by any Affected Party with
any Applicable Law, guideline, rule, regulation, directive or request from any
central bank or other Governmental Authority or agency (whether or not having
the force of law), including, without limitation, compliance by an Affected
Party with any request or directive regarding capital adequacy, has or would
have the effect of reducing the rate of return on the capital of any Affected
Party as a consequence of its obligations hereunder or arising in connection
herewith to a level below that which any such Affected Party could have achieved
but for such introduction, change or compliance (taking into consideration the
policies of such Affected Party with respect to capital adequacy) by an amount
deemed by such Affected Party to be material, then from time to time, within ten
(10) days after demand by such Affected Party (which demand shall be accompanied
by a statement setting forth the basis for such demand), Recco shall pay
directly to such Affected Party such additional amount or amounts as will
compensate such Affected Party for such reduction. For avoidance of doubt, any
interpretation of Accounting Research Bulletin No. 51 by the Financial
Accounting Standards Board (or an accounting rule or guideline under the
Generally Accepted Accounting Principles of any country applicable to such
Affected Party) shall constitute an adoption, change, request or directive
subject to this Section 2.17(b).
(c) If as a result of any event or circumstance similar to those
described in clauses (a) or (b) of this Section, any Affected Party is required
to compensate a bank or other financial institution providing liquidity support,
credit enhancement or other similar support to such Affected Party in connection
with this Agreement or the funding or maintenance of a Conduit Lender hereunder,
then within ten (10) days after demand by such Affected Party, Recco shall pay
to such Affected Party such additional amount or amounts as may be necessary to
reimburse such Affected Party for any amounts payable or paid by it.
(d) In determining any amount provided for in this Section 2.17, the
Affected Party may use any reasonable averaging and attribution methods. Any
Affected Party making a claim under this Section shall submit to Recco a written
description as to such additional or increased cost or reduction and the
calculation thereof, which written description shall be conclusive absent
demonstrable error.
(e) If a Lender shall notify its Group Agent that a Eurodollar
Disruption Event as described in clause (a) of the definition of "Eurodollar
Disruption Event" has occurred, such Group Agent shall in turn so notify Recco,
whereupon all Loans in respect of which interest accrues at the Adjusted
Eurodollar Rate shall immediately be converted into Loans in respect of which
interest accrues at the Base Rate for such Lender's Lending Group.
(f) Notwithstanding anything to the contrary contained in this Section
2.17, amounts required to be paid by Recco pursuant to this Section 2.17 shall
not constitute a claim against Recco to the extent Recco does not have
sufficient funds to make payment thereof (it being understood that funds of
Recco available for such purpose shall be limited to amounts distributed to
Recco pursuant to the Security Agreement).
2.18. Breakage Costs. Recco shall pay to each Group Agent for the
account of the Lenders in its respective Lending Group, upon the request of such
Group Agent, such amount or
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amounts as shall compensate the related Lender for any loss, cost or expense
(but excluding lost profits) incurred by such Lender (as determined by the Group
Agent on behalf of the Lenders in its Lending Group, in the Group Agent's sole
discretion) as a result of (a) the failure of Recco to obtain a Loan after
submission of a Notice of Borrowing (other than due to a default by a Lender) or
(b) any prepayment of a Loan made pursuant to Section 2.5(b) or (c) any
mandatory prepayment made pursuant to Section 2.5(a) (the "Breakage Costs").
Notwithstanding anything to the contrary contained in this Section 2.18, amounts
required to be paid by Recco pursuant to this Section 2.18 shall not constitute
a claim against Recco to the extent Recco does not have sufficient funds to make
payment thereof (it being understood that funds of Recco available for such
purpose shall be limited to amounts distributed to Recco pursuant to the
Security Agreement).
2.19. Additional Lending Groups. On the Scheduled Termination Date or
on any Determination Date, Recco shall have the right to replace any Lending
Group related to a Withdrawing Lender or otherwise make party to this Agreement
one or more Lending Groups (each an "Additional Lending Group") and related
Group Agents, each of which shall have entered into a Joinder Agreement or an
Assignment and Acceptance, pursuant to which the Committed Lender of such
Additional Lender Group shall agree to make Loans hereunder. The right of Recco
to add an Additional Lending Group shall be subject to the conditions that (i)
the Group Commitment of the Additional Lending Group shall be in no event less
than $25,000,000, (ii) each of the Lenders of the Additional Lending Group and
the related Group Agent shall be an Eligible Assignee, (iii) in the case of a
Joinder Agreement, (A) the parties to such Joinder Agreement shall have agreed
to reimburse the Administrative Agent for all fees, costs and expenses
(including, without limitation, the reasonable fees and out-of-pocket expenses
of counsel for the Administrative Agent) incurred by the Administrative Agent in
connection with such Joinder Agreement and (B) each Person that becomes a Lender
under a Joinder Agreement shall agree to be bound by the confidentiality
provisions of Section 10.17 hereto, (iv) there shall be no increased costs,
expenses or taxes incurred by the Administrative Agent, Onyx or Recco upon the
execution of such Joinder Agreement and (v) with respect to an Assignment and
Acceptance, the conditions set forth in Section 10.6 shall have been met.
SECTION 3. REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of Recco. To induce the
Administrative Agent, the Group Agent and the Lenders to enter into this
Agreement and to make the Loans, and to induce the Surety Provider to issue the
Surety Bond, Recco hereby represents and warrants to the Lenders that, as of the
Closing Date and each Borrowing Date:
(a) Financial Condition. The balance sheet of Recco provided as of
September 30, 2003 and the related statements of income and of cash flows for
the nine (9) month period then ended, and the additional balance sheets of Recco
and related statements of income and cash flows furnished pursuant to Section
5.1(a), in each case certified by a Responsible Officer, are complete and
correct and present fairly the financial condition of Recco as of such date, and
the results of its operations and its consolidated cash flows for the period
then ended. All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP (except for year-end
adjustments) applied consistently throughout the period involved (except as
approved by such Responsible Officer and as disclosed therein).
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Except for Debt created under this Agreement and the other Operative Documents,
Recco does not have, and at the date of the balance sheet referred to above, did
not have any Debt, contingent liability or liability for taxes, or any long-term
lease or unusual forward or long-term commitment, including, without limitation,
any interest rate or foreign currency swap or exchange transaction; provided,
however, that Recco may have Debt or contingent liability pursuant to the
obligations of Recco under a securitization transaction insured or approved by
the Controlling Party.
(b) Corporate Existence; Compliance with Law. Recco (i) is duly
organized, validly existing and in good standing under the laws of the State of
Delaware, (ii) has the corporate power and authority, and the legal right, to
own and operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, (iii) is duly qualified
as a foreign corporation and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification and (iv) is in compliance with all
Requirements of Law.
(c) Corporate Power; Authorization; Enforceable Obligations. Recco has
the corporate power and authority, and the legal right, to make, deliver and
perform this 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 Agreement and the
other Operative Documents to which it is a party and to authorize the execution,
delivery and performance of this 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
Agreement or the other Operative Documents to which it is a party have been so
obtained, made or received. This Agreement and each other Operative Document to
which it is a party has been duly executed and delivered on behalf of Recco.
This Agreement and each other Operative Document to which it is a party
constitutes a legal, valid and binding obligation of Recco enforceable against
Recco in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the 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
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 Recco and will not result in, or require, the creation
or imposition of any Lien on any of its properties or revenues pursuant to any
such Requirement of Law or Contractual Obligation.
(e) No Material Litigation. No litigation, investigation or proceeding
of or before any arbitrator or Governmental Authority is pending or, to the best
knowledge of Recco after due inquiry, threatened by or against Recco or against
any of its properties or revenues (i) with respect to this Agreement or the
other Operative Documents or any of the transactions contemplated hereby or
thereby, or (ii) which could have a Material Adverse Effect.
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(f) No Default; No Wind-Down Event. Recco is not in default under or
with respect to any of its Contractual Obligations in any respect which could
have a Material Adverse Effect. No Wind-Down Event or Unmatured Wind-Down Event
has occurred and is continuing.
(g) No Burdensome Restrictions. Recco is not a party to or subject to
any Contractual Obligation (other than the Operative Documents) which could have
a Material Adverse Effect.
(h) Taxes. Recco 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 Section 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.
(i) No Plan is or has been a Multiemployer Plan. Except for
the Seller, neither Recco nor any ERISA Affiliate of Recco has
maintained any Plan which is subject to Title IV of ERISA. No
Reportable Event has occurred during the five-year period prior to the
date on which this representation is made or deemed made with respect
to any Plan of the Seller, and each such Plan has complied in all
material respects with the applicable provisions of ERISA and the Code;
provided, that any non-compliance by the Plan with the applicable
provisions of ERISA or the Code that is reasonably likely to, in the
Controlling Party's sole discretion, subject Recco to any tax, penalty
or other liability, shall be deemed material non-compliance. The
present value of all accrued benefits under each such Plan (based on
those assumptions used to fund the Plans) did not, as of the last
annual valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Plan
allocable to such accrued benefits.
(ii) If required to be filed, Schedule B (Actuarial
Information) to each most recent annual report (Form 5500 Series) has
been filed for each applicable Plan with the IRS and copies of such
Schedule have been furnished to the Group Agents and Recco. Each such
Schedule is complete and accurate in all material respects and fairly
presents the funding status of such applicable Plan.
(iii) Each Plan which is intended to be qualified under
Section 401 (a) of the Code is so qualified, and each trust related to
any such Plan has been determined to be exempt from federal income tax
under Section 501 (a) of the Code, and neither Recco nor any ERISA
Affiliate has materially breached any of the responsibilities,
obligations or duties imposed on it by ERISA, the Code or regulations
promulgated thereunder with respect to any Plan; provided, that any
breach of any of the responsibilities, obligations or duties imposed on
Recco or an ERISA Affiliate by ERISA, the Code or regulations
promulgated thereunder with respect to any Plan, which breach is
reasonably likely to, in the Controlling Party's sole discretion,
subject Recco to any tax, penalty or other liability, shall be deemed a
material breach.
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(iv) Neither Recco nor any ERISA Affiliate maintains or
contributes to any "employee welfare benefit plan" within the meaning
of Section 3(1) of ERISA which provides benefits to employees after
termination of employment other than as required by Section 601 of
ERISA, Section 4980B of the Code, or any substantially similar state or
local law.
(v) No Plan has incurred any accumulated funding deficiency
(as defined in Section 302 of ERISA and 412(a) of the Code), whether or
not waived.
(vi) Neither Recco nor any ERISA Affiliate nor any fiduciary
of any Plan (i) has engaged in a nonexempt prohibited transaction
described in Sections 406 of ERISA or 4975 of the Code or (ii) has
taken or failed to take any action which would constitute or result in
an ERISA Termination Event.
(vii) Neither Recco nor any ERISA Affiliate has incurred, and
no condition exists or event or transaction has occurred with respect
to any Plan that could result in, any withdrawal liability under
Section 4201 of ERISA that remains unpaid or liability to the PBGC
which remains outstanding other than the payment of premiums, and there
are no such premium payments which have become due which are unpaid.
(viii) Neither Recco nor any ERISA Affiliate has (i) failed to
make a required contribution or payment to a Plan, (ii) made a complete
or partial withdrawal from a Multiple Employer Plan or a Multiemployer
Plan or (iii) failed to make a required installment or any other
required payment under Section 412 of the Code on or before the due
date for such installment or other payment.
(ix) Neither Recco nor any ERISA Affiliate is required to
provide security to a Plan under Section 401(a)(29) of the Code due to
a Plan amendment that results in an increase in current liabilities for
the plan year.
(j) Investment Company Act; Other Regulations. Recco 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. Recco is
not subject to regulation under any Federal or State statute or regulation which
limits its ability to incur Debt.
(k) Subsidiaries. Recco has no Subsidiaries. Recco is a wholly owned
subsidiary of the Seller.
(l) Purpose of Loans. The proceeds of the Loans shall be used by Recco
solely as described in Section 2.6.
(m) No Deduction. Recco is not required to make any deduction or
withholding from payments to be made by it to the Lenders under this Agreement
or the other Operative Documents, and the execution and performance of this
Agreement and any of the other Operative Documents does not make Recco 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.
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(n) No Priority Claims. Recco has no liability in respect of any Debt
(other than under the Operative Documents), or in respect of any guarantee by
Recco of the obligations of another.
(o) Title; Liens. Except for the Lien granted to the Collateral Agent
for the benefit of the holders of the Obligations pursuant to the 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,
Recco 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 Security Agreement and in favor of the Seller
pursuant to the Subordinated Security Agreement and Liens with respect to taxes
described in Section 6.2(a) hereof.
(p) Ownership of Contracts. Each Purchase by Recco of Contracts
constitutes a valid sale, transfer and assignment of the Contracts to Recco
enforceable against creditors of, and purchasers from, the Seller, and creates
in favor of Recco a perfected ownership interest in and valid, legal and
equitable title to such Contracts, which ownership interest is not subject to
any Lien.
(q) No Petition. There is no intent to file a voluntary petition under
the Federal or any state bankruptcy laws with respect to Recco.
(r) Separate Corporate Existence. Recco is a special purpose
corporation whose primary activities are restricted in its certificate of
incorporation to purchasing Contracts from the Seller, entering into agreements
for the servicing thereof, borrowing funds secured thereby and conducting such
other activities as necessary or appropriate to carry out its primary
activities. Recco's 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.
(s) Solvency. Recco is Solvent.
(t) Material Adverse Effect. There is no fact that has not been
disclosed by Recco to the Surety Provider or the Group Agents in writing that
could result in a Material Adverse Effect and, to the best knowledge of Recco,
there does not exist and there has not occurred any event that would result in a
Material Adverse Effect.
SECTION 4. CONDITIONS PRECEDENT
4.1. Conditions to Effectiveness. The effectiveness of this Agreement
is subject to the satisfaction, on or prior to the date hereof, of the following
conditions precedent:
(a) Operative Documents. The Administrative Agent, the Group Agents,
the Surety Provider and the Lenders shall have received (i) this Agreement
executed and delivered by a duly authorized officer of Recco, (ii) the Security
Agreement (substantially in the form of Exhibit E hereto), executed and
delivered by a duly authorized officer of Recco, (iii) copies of all
modifications, amendments, supplements or restatements to all other Operative
Documents, executed by all parties thereto and in form and substance
satisfactory to the Surety Provider, the
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Administrative Agent and the Group Agents, (iv) each Group Agent shall have
received such other documents, instruments, agreements and legal opinions as
each such Group Agent shall reasonably request, (v) a copy of the Credit and
Collection Policy, and (vi) such other documents or instruments as may be
reasonably requested by the Administrative Agent, the Group Agents, the Surety
Provider or the Lenders.
(b) Corporate Proceedings. The Administrative Agent, the Group Agents,
the Surety Provider and the Lenders shall have received a copy of the
resolutions, in form and substance satisfactory to the Administrative Agent, the
Group Agents, the Surety Provider and the Lenders, of the Board of Directors of
each of the Seller, the Servicer and Recco authorizing the execution, delivery
and performance of the Operative Documents to which it is a party certified by
the Secretary or an Assistant Secretary of each such corporation, as of the date
hereof, which certificate shall state that the resolutions thereby certified
have not been amended, modified, revoked or rescinded and which certificate
shall be in form and substance satisfactory to the Administrative Agent, the
Group Agents, the Surety Provider and the Lenders.
(c) Corporate Documents; Incumbency. The Administrative Agent, the
Group Agents, the Surety Provider and the Lenders shall have received (i) copies
of the certificate of incorporation and by-laws of each of the Seller and Recco
certified as of the date hereof as complete and correct copies thereof by its
Secretary or Assistant Secretary, (ii) a certificate of the Secretary or an
Assistant Secretary of each of the Seller and Recco, certifying the names,
titles and true signatures of the officers of the Seller, the Servicer and Recco
authorized to sign the Operative Documents to which it is a party and (iii) good
standing certificates of a recent date with respect to each of the Seller and
Recco from the appropriate Governmental Authority in its jurisdiction of
organization.
(d) No Violation. The consummation of the transactions contemplated
hereby and by the other Operative Documents shall not contravene, violate or
conflict with, nor involve the Seller, the Servicer or Recco 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 Administrative Agent, the Group Agents, the Surety
Provider and the Collateral Agent shall have received in immediately available
funds any fees and expenses then due and payable to any of them, all as set
forth in the related Fee Letters and the Insurance Agreement.
(f) Legal Opinions. The Administrative Agent, the Group Agents, the
Surety Provider and the Lenders shall have received (i) the executed legal
opinion of counsel to the Seller and the Servicer with respect to the
enforceability of their obligations under the Operative Documents and the Lender
Notes, and other corporate and legal matters, (ii) the executed legal opinions
of counsel to the Seller and Recco to the effect that (A) the Seller and Recco
would not be substantively consolidated for purposes of the Bankruptcy Code and
(B) that each purchase by Recco of Contracts constitutes a true sale of
Contracts, (iii) the executed legal opinion of counsel to Recco to the effect
that the security interest granted by Recco to the Collateral Agent for the
benefit of the holders of the Obligations pursuant to the Security Agreement
continues to be a
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valid first priority security interest and (iv) such other legal opinions as the
Administrative Agent, the Group Agents, the Surety Provider or the Lenders may
reasonably require.
(g) UCC Searches and Filings. The Administrative Agent, the Group Agents,
the Surety Provider and the Lenders shall have received lien searches and other
evidence as to the absence of any Lien on or security interest in the Contracts
and other Collateral in form and substance satisfactory to the Administrative
Agent, the Group Agents, the Surety Provider and the Lenders. Any termination
statements or releases requested by the Administrative Agent, the Group Agents,
the Surety Provider or the Lenders to be filed with respect to any of the
Collateral shall have been filed. Any UCC financing statements or amendments
requested by the Administrative Agent, the Group Agents, the Surety Provider or
the Lenders to be filed with respect to the perfection of the first priority
ownership interest in the Purchased Contracts in favor of Recco or with respect
to the perfection of the first priority security interest in the Purchased
Contracts in favor of the Collateral Agent for the benefit of the holders of the
Obligations, shall have been filed.
(h) Diligence. The operation of the Seller's billing, collection and
information systems with respect to the Contracts shall be satisfactory to the
Surety Provider, the Lenders, the Administrative Agent and each Group Agent.
(i) Recovery Procedure and Alternate Servicing Plan. The Lenders, the
Administrative Agent, the Group Agents and the Surety Provider shall be
satisfied with the recovery procedure and Alternate Servicing Plan implemented
for the Seller's and Servicer's MIS system (the "Recovery Procedure"), a copy of
each of which has been provided to the Administrative Agent, the Group Agents
and the Surety Provider.
(j) Internal Controls. The Lenders, the Administrative Agent, the Group
Agents and the Surety Provider shall be satisfied that the Servicer has
implemented all necessary internal and other systems and procedures to monitor
collections on account of the Contracts, to gather all information and furnish
all reports required under the Operative Documents and to monitor compliance
with the Operative Documents.
(k) Consents. The Administrative Agent, the Group Agents, the Surety
Provider and the Lenders 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) Additional Documents. The Administrative Agent, the Group Agents, the
Surety Provider and the Lenders shall have received each additional document,
instrument, legal opinion or item of information reasonably requested by the
Group Agents, the Surety Provider and the Lenders in respect of any aspect or
consequence of the transactions contemplated hereby or by any other Operative
Document.
(m) Surety Bond. The Collateral Agent shall have received the Surety Bond.
(n) Additional Matters. All corporate and other proceedings, documents,
instruments and legal matters specified in Section 4.1 hereof shall be
reasonably satisfactory in form and
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substance to the Administrative Agent and the Group Agents, the Surety Provider
and the Lenders.
4.2. Conditions to Each Loan. The agreement of any Lender to make any Loan
requested to be made by it on any date is subject to the satisfaction of the
following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by Recco, the Servicer or the Seller in or pursuant to any of
the Operative Documents shall be true and correct on and as of such date as if
made on and as of such date.
(b) Notice of Borrowing. Recco shall have delivered a Notice of Borrowing
to the Administrative Agent and the Group Agents with a copy delivered to the
Surety Provider.
(c) Compliance with Section 2.1. After giving effect to the Loan to be
made on such day, the requirements of Section 2.1 shall not have been violated.
(d) No Wind-Down Event. No Wind-Down Event or Unmatured Wind-Down Event
has occurred and is continuing.
(e) Contract List. The Administrative Agent, the Group Agents, the
Lenders, the Surety Provider and the Collateral Agent shall have received the
Contract List relating to each Contract to be purchased with the proceeds of
such Loan.
(f) Borrowing Base. No Borrowing Base Deficiency shall exist after giving
effect to the Loan to be made on such day.
(g) Contract Files. A File relating to each Contract to be purchased with
the proceeds of such Loan shall have been delivered by the Seller to the
Servicer to be held by the Servicer or its agent for the benefit of the
Collateral Agent (for the benefit of the holders of the Obligations) in secure,
segregated fireproof facilities; provided, however, the Files may be stored in
the same facilities on an unsegregated basis with all other files of Recco and
such other special purpose subsidiaries of Onyx; provided further, however, that
the computer files maintained by the Servicer shall contain information allowing
the Files owned by Recco to be readily identifiable and discernable (by
notation, segregation or otherwise) from files of Onyx, Xxxxx and any other
Affiliate or subsidiary thereof.
(h) Lien Certificate; Other Actions. The Administrative Agent, the Group
Agents and the Surety Provider shall have received a certificate of a
Responsible Officer of each of the Seller and Recco to the effect that the
Purchased Contracts are not subject to any Lien, except Liens created by the
Operative Documents. Any filings and other actions described in the last
sentence of Section 4.1(g) with respect to the Contracts to be purchased with
the proceeds of such Loan in order to perfect the ownership interest of Recco,
and the first priority perfected security interest of the Collateral Agent for
the benefit of the holders of the Obligations therein shall have been duly made
or effected, and the Group Agents and the Surety Provider shall have received
evidence thereof.
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Each borrowing by Recco hereunder shall constitute a representation and
warranty by Recco as of the date of such Loan that the conditions contained in
this Section 4.2 have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
Recco hereby agrees that, so long as this Agreement remains in effect,
Recco shall:
5.1. Financial Statements. Furnish to the Lenders, the Surety Provider,
the Administrative Agent and each Group Agent:
(a) as soon as available, but in any event within 90 days after the end of
each fiscal year of Recco, a copy of the balance sheet as at the end of such
year and the related statements of income and of cash flows for such year,
setting forth in each case in comparative form the figures for the previous
year, audited by Xxxxx Xxxxxxxx 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
Recco, the unaudited balance sheet of Recco as at the end of such monthly period
and the related unaudited statements of income and of cash flows of Recco for
such period and the portion of the fiscal year through the end of such period,
setting forth in each case in comparative form the figures for the previous
year, certified by a Responsible Officer as being fairly stated in all respects
(subject to normal year-end audit adjustments);
all such financial statements to be complete and correct in all respects and to
be prepared in detail and in accordance with GAAP (except for year-end
adjustments) applied consistently throughout the periods reflected therein and
with prior periods (except as approved by such accountants or officer, as the
case may be, and disclosed therein).
5.2. Certificates; Other Information. Furnish to the Lenders, the Surety
Provider, the Administrative Agent and each Group Agent:
(a) concurrently with the delivery of the financial statements referred to
in Section 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 Sections 5.1 (a) and 5.1(b), a certificate of a Responsible Officer stating
that Recco during such period has observed or performed all of its covenants and
other agreements, and satisfied every condition, contained in this Agreement and
the other Operative Documents to be observed, performed or satisfied by it, and
that such Officer has obtained no knowledge of any Unmatured Wind-Down Event or
Wind-Down Event, except as specified in such certificate;
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(c) within five Business Days after the same are sent, copies of all
financial statements, reports and other communications that Recco 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 the
Lenders, the Surety Provider, the Administrative Agent or the Group Agents may
from time to time reasonably request.
5.3. Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature.
5.4. Conduct of Business and Maintenance of Existence. Continue to engage
in business of the same type as now conducted by it and preserve, renew and keep
in full force and effect its corporate existence and take all action to maintain
all rights, privileges and franchises necessary in the normal conduct of its
business; and comply in all material respects with all Contractual Obligations
and Requirements of Law.
5.5. Maintenance of Property; Insurance. Keep all property useful and
necessary in its business in good working order and condition; maintain, or
cause to be maintained on its behalf, the Blanket Policy or other form of
insurance acceptable to the Controlling Party 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 the Lenders (with a copy to the Administrative Agent, the Group
Agents and the Surety Provider), 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 the Lenders, the Collateral Agent, the Surety Provider, the
Administrative Agent and the Group Agents 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 Recco with officers and employees of Recco and
with its independent certified public accountants.
5.7. Notices. Promptly give notice to the Lenders, the Surety Provider,
the Administrative Agent and each Group Agent:
(a) the occurrence of any Wind-Down Event or Unmatured Wind-Down Event;
(b) any (i) default or event of default by Recco under any Contractual
Obligation of Recco or (ii) litigation, investigation or proceeding which may
exist at any time affecting Recco; and
(c) a Material Adverse Effect.
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Each notice pursuant to this Section 5.7 shall be accompanied by a
statement of a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action Recco 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 Recco or the Servicer pursuant
to any Operative Document to which Recco or the Servicer is a party or which
Recco or the Servicer has signed.
5.9. Annual Certificate. Concurrently with the delivery, on account of
each fiscal year, of the financial statements of Recco required to be delivered
pursuant to Section 5.1 (a) hereof, furnish to the Administrative Agent, the
Group Agents and the Surety Provider, (i) a certificate of a Responsible Officer
of Recco to the effect that the facts upon which counsel to Recco relied in
giving its legal opinion that the Seller and Recco would not be substantively
consolidated for purposes of the Bankruptcy Code, have not changed so as to
render such opinion no longer valid and (ii) if requested by the Controlling
Party, a certificate of a Responsible Officer of Recco to the effect that Recco
has complied in all material respects with its covenants in the Operative
Documents.
5.10. Further Assurances. Do such further acts and things and execute and
deliver to the Lenders, the Surety Provider, the Administrative Agent or the
Group Agents such assignments, agreements, powers and instruments as are
required by the Lenders, the Surety Provider, the Administrative Agent or the
Group Agents to carry into effect the purposes of this Agreement and the other
Operative Documents or to better assure and confirm unto the Lenders, the Surety
Provider, the Administrative Agent or the Group Agents their respective rights,
powers and remedies hereunder and under the other Operative Documents,
including, without limitation, to obtain such consents and give such notices,
and to file and record all such documents and instruments, and renew each such
consent, notice, filing and recordation, at such time or times, in such manner
and at such places, as may be necessary to preserve and protect the position of
the Lenders, the Collateral Agent, the Surety Provider and the Group Agents
hereunder and under the other Operative Documents. This covenant shall survive
the termination of this Agreement.
5.11. Independent Director. Maintain at all times (except as noted
hereafter in the event of death, incapacity, resignation or removal) at least
two Independent Directors. An "Independent Director" shall be an individual who,
except in his or her capacity as an Independent Director of Recco, is not at
such time, and has not been during the two years immediately before such
individual's appointment as an Independent Director, (i) a partner, director,
officer, holder of any equity interest, significant customer, supplier,
independent contractor, creditor or employee of Recco or its Affiliates; (ii)
affiliated with Recco or its Affiliates or with a significant customer,
supplier, creditor or independent contractor of Recco or its Affiliates; or
(iii) a spouse, parent, sibling, or child of any person described by (i) or (ii)
above; provided, however, that an individual shall not be deemed to be
ineligible to be an Independent Director solely because such individual serves
or has served in the capacity of an "independent director," "independent
trustee" or in a similar capacity for any "special purpose entity" formed by
Onyx or any of its Affiliates. In the event of the death, incapacity,
resignation or removal of any Independent Director or in the event that any
director acting as an Independent Director shall cease to satisfy the
eligibility conditions for an Independent Director, the board of directors of
Recco shall promptly appoint a replacement Independent Director. The board of
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directors of Recco shall not vote on any matter requiring the vote of the
Independent Directors under the certificate of incorporation of Recco unless at
least two Independent Directors are then serving on the board of directors of
Recco.
5.12. Instructions to Obligors. Instruct (or cause to be instructed) all
Obligors to cause all Collections to be deposited directly into the Lock-Box.
5.13. Cooperation in Making Calculations. Cooperate with the Lenders, the
Surety Provider, the Administrative Agent and the Group Agents at all times in
the calculation of all formulas used in any Operative Document, including
without limitation, deliver (or cause the Servicer to deliver) in written or
electronic form, any and all data and other information necessary or required in
the calculation of the Borrowing Base, Net Yield and Recco Expenses and all
calculations necessary or required to perform such calculation. Recco hereby
agrees to provide (or cause the Servicer to provide) on or before each date,
without prior request by the Lenders the Administrative Agent or the Group
Agents, all such information or data as required to make any such calculation
and to provide (or cause the Servicer to provide) such information and data in
such form as may be immediately used by the Lenders, the Administrative Agent
and the Group Agents without further interpretation or purchase or license of
any software. Recco does hereby further agree that if it fails to provide (or
cause the Servicer to provide) any such information or data as required in this
Section 5.13, the Lenders, the Administrative Agent or the Group Agents may use
any estimate of any amount or calculation that it, in its sole discretion,
determines.
5.14. Interest Rate Hedge Mechanisms. Maintain or cause to be maintained
at all times Interest Rate Hedge Mechanisms to cover amounts outstanding under
this Agreement from time to time, satisfactory to Xxxxx'x, S&P and the
Controlling Party. Upon the execution of each Interest Rate Hedge Mechanism,
Recco shall deliver executed copies of such Interest Rate Hedge Mechanism to the
Collateral Agent, the Surety Provider, the Administrative Agent and the Group
Agents.
5.15. Contract Files. Cause the Servicer (as Custodian for the Collateral
Agent on behalf of the holders of the Obligations) or its agent to maintain
continuous custody of the Files in secure, segregated fireproof facilities in
accordance with the customary standards for such custody as certified by the
Servicer to the Administrative Agent, the Group Agents and the Collateral Agent;
provided, however, that so long as XLCA is the Surety Provider with respect to
this Program and any other warehouse financing facilities and other financings
secured by Contracts entered into by Recco and any other special purpose
subsidiary of Onyx, the Files may be stored in the same facilities on an
unsegregated basis with such other files of Recco and such other special purpose
subsidiaries; provided further however, that the computer files maintained by
the Servicer shall contain information allowing the Files to be readily
identifiable (by notation, segregation or otherwise) from files relating to
Onyx, Recco and any Affiliate or subsidiary thereof.
5.16. Separate Existence. At all times:
(a) maintain its own deposit account or accounts, separate from those of
any Affiliate, with commercial banking institutions and, except as otherwise
provided in the Operative
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Documents, ensure that its funds will not be diverted to any other Person or for
other than its own corporate uses, nor will such funds be commingled with the
funds of any Affiliate (other than funds deposited to the Clearing Account or
the Lock-Box, which funds may be commingled for a period not exceeding two (2)
Business Days in the aggregate);
(b) to the extent that it shares the same officers or other employees as
any of its Affiliates, the salaries of and the expenses related to providing
benefits to such officers and other employees shall be fairly allocated among
such entities, and each such entity shall bear its fair share of the salary and
benefit costs associated with all such common officers and employees;
(c) to the extent that it jointly contracts with any of its Affiliates to
do business with vendors or service providers or to share overhead expenses, the
costs incurred in so doing shall be allocated fairly among such entities, and
each such entity shall bear its fair share of such costs. To the extent that it
contracts or does business with vendors or service providers where the goods and
services provided are partially for the benefit of any other Person, the costs
incurred in so doing shall be fairly allocated to or among such entities for
whose benefit the goods or services are provided, and each such entity shall
bear its fair share of such costs;
(d) enter into all material transactions with its Affiliates, whether
currently existing or hereafter entered into, only on an arm's length basis, it
being understood and agreed that the transactions contemplated in the Operative
Documents meet the requirements of this paragraph (d);
(e) maintain office space that is separate from the office space of any of
its Affiliates (other than Xxxxx) and, to the extent that it and any of its
Affiliates have offices in the same location, there shall be a fair and
appropriate allocation of overhead costs among them, and each such entity shall
bear its fair share of such expenses;
(f) conduct its affairs strictly in accordance with its certificate of
incorporation and observe all necessary, appropriate and customary corporate
formalities, including, but not limited to, separate stationery, holding all
regular and special stockholders' and directors' meetings appropriate to
authorize all corporate action, keeping separate and accurate minutes of its
meetings, passing all resolutions or consents necessary to authorize actions
taken or to be taken, and maintaining accurate and separate books, records,
financial records and accounts, including, but not limited to, payroll and
intercompany transaction accounts;
(g) act solely in its own name, hold itself out as a separate entity, pay
its own liabilities out of its own funds, and not assume or guarantee any of the
liabilities of any of its Affiliates; and
(h) take, or refrain from taking, as the case may be, all other actions
that are necessary to be taken or not to be taken in order to comply with this
Section 5.16.
5.17. Minimum Collateral Requirement. At all times during any
Determination Period, the aggregate outstanding principal balance of all
Purchased Contracts pledged to the Collateral Agent under the Security Agreement
will equal or exceed 6% of the Total Commitment, regardless of the outstanding
balance of the Loans.
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SECTION 6. NEGATIVE COVENANTS
Recco hereby agrees that, so long as this Agreement remains in effect,
Recco shall not directly or indirectly (without the prior written consent of the
Controlling Party):
6.1. Limitation on Debt. Create, incur, assume or suffer to exist any
Debt, except indebtedness in respect of the Loans, the Lender Notes, and other
obligations of Recco 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 (or cause the cancellation,
termination, amendments, modification or waiver of) 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 Recco or any warrants or options to
purchase any such Capital Stock, whether now or hereafter outstanding, or make
any other distribution in respect thereof, either directly or indirectly,
whether in cash or property or in obligations of Recco except (i) dividends
payable solely in common stock of Recco, and (ii) payments pursuant to any
agreement or other arrangement approved in writing by the Controlling Party to
share taxes of any affiliated, consolidated, unitary, combined or similar group
including the Seller and Recco and (iii) cash
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dividends to the extent permitted by the Security Agreement, provided that after
giving effect thereto no Wind-Down Event or Unmatured Wind-Down event shall have
occurred and be continuing; provided, however, that Recco may dividend residual
interest certificates from its securitization transactions to Onyx Acceptance
Corporation.
6.7. Limitation on Capital Expenditures. Make or commit to make (by way of
the acquisition of securities of a Person or otherwise) any expenditure in
respect of the purchase or other acquisition of fixed or capital assets.
6.8. Limitation on Investments, Loans and Advances. Make any advance,
loan, extension of credit or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of or any assets constituting a
business unit of, or make any other investment in, any Person, except:
(a) purchases of Contracts pursuant to the Sale Agreement; and
(b) investments in Permitted Investments of funds, if any, on deposit in
the Collection Account.
6.9. Transactions with Affiliates. Enter into any transaction, including,
without limitation, any purchase, sale, lease or exchange of property or the
rendering of any service, with any Affiliate, except for (i) Purchases, (ii)
transactions expressly permitted by the Operative Documents and (iii) any
agreement or other arrangement satisfactory to each Group Agent to share taxes
of any affiliated, consolidated, unitary, combined or similar group including
the Seller and Recco.
6.10. Sale and Leaseback. Enter into any arrangement with any Person
providing for the leasing by Recco of real or personal property which has been
or is to be sold or transferred by Recco 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 Recco.
6.11. Corporate Documents. Amend its certificate of incorporation or
by-laws.
6.12. Capital Stock. Except as permitted by Section 6.6, issue any shares
of Capital Stock in addition to the shares issued and paid for as of the
Original Borrowing Date or permit during the term of this Agreement any
transfers of any shares of its capital stock.
6.13. Fiscal Year. Permit the fiscal year of Recco 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 the Lenders, the Administrative Agent or the Group Agents
pursuant to the Operative Documents which prohibits or limits the ability of
Recco to create, incur, assume or suffer to exist any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired.
6.15. Activities of Recco. Engage in any business or activity of any kind
or enter into any transaction or indenture, mortgage, instrument, agreement,
contract, lease or other
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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 Controlling Party to share taxes of
any affiliated, consolidated, unitary, combined or similar group including the
Seller and Recco.
6.16. Agreements.
(a) Except for the Operative Documents and as expressly permitted by the
Operative Documents, become a party to, or permit any of its properties to be
bound by, any indenture, mortgage, instrument, contract, agreement, lease or
other undertaking, or issue any power of attorney except to the Collateral Agent
or, pursuant to the Sale Agreement, to the Servicer, or cancel, terminate,
amend, supplement, modify or waive any of the provisions of the Sale Agreement
or any other Operative Document or request, consent or agree to or suffer to
exist or permit any such cancellation, termination, amendment, supplement,
modification or waiver.
(b) Permit the Seller or the Servicer to assign any of their respective
rights or obligations under the Sale Agreement, except as expressly permitted by
the Sale Agreement.
(c) On any Determination Date, permit the sum of (i) the outstanding
principal amount of Loans and (ii) accrued and unpaid Facilities Costs to exceed
the Maximum Program Amount.
(d) Permit the Servicer to change the forms of the Monthly Report, the
Daily Report, the Annual Report or any other document required to be delivered
by it pursuant to the Sale Agreement.
(e) On any day, permit a Borrowing Base Deficiency to exist.
6.17. Bank Accounts. Move the Bank Accounts from the institution at which
they are maintained on the date hereof.
6.18. Successor Servicer. Permit any change of Servicer, except in
accordance with the Sale Agreement.
6.19. Servicing of Contracts.
(a) Permit any change in the method by which Collections are made, unless
instructed to in writing by the Controlling Party, in which case Recco shall
cause the Servicer to implement any and all such changes as soon as practicable.
(b) Permit the Servicer to amend, modify or otherwise change or agree to
any amendment, modification or other change in the Credit and Collection Policy.
6.20. Prohibitions Regarding Subordinated Note. Make any payment or
prepayment of, or purchase, redeem or otherwise acquire, or amend any provisions
pertaining to the subordination or the terms of payment of, the Subordinated
Note except as permitted by the terms of the Operative Documents.
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6.21. Lock-Box Banks. Add or terminate any bank as a Lock-Box Bank from
those delivering a Lock-Box Agreement in the form of Exhibit F hereto (a
"Lock-Box Agreement"), or make any change in its instructions to Obligors
regarding payments to be made to any Lock-Box Bank, unless the Collateral Agent
shall have received notice of and approved such addition of any Lock-Box Bank, a
Lock-Box Agreement in the form of Exhibit F hereto executed by Recco, the
Collateral Agent and such Lock-Box Bank shall have been delivered to the
Collateral Agent; or deposit or otherwise credit, or cause or permit to be so
deposited or credited, Collections to any lock-box account except the Lock-Box,
the Clearing Account and the Collection Account.
6.22. Contract Files. Transfer the Files to any Person other than the
Servicer or its agent or permit the Files to be maintained at any location other
than as set forth in the Sale Agreement, in fireproof facilities owned, leased
or utilized by the Servicer as certified to the Collateral Agent and the Surety
Provider.
6.23. Material Adverse Effect. Take any action that would reasonably be
expected to cause, or fail to take any action that would reasonably be expected
to prevent, the occurrence of a Material Adverse Effect.
SECTION 7. WIND-DOWN EVENTS; REMEDIES
7.1. Wind Down Events. If a Wind-Down Event shall have occurred, the Total
Commitment shall equal zero as of the Wind-Down Date. Upon the occurrence of a
Wind-Down Event, and upon the written instructions of the Controlling Party,
Recco 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 Recco promptly upon the request of the Controlling Party.
In addition, the Controlling Party 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, and the right to redirect the payments of Obligors directly to the
Controlling Party or such other Person that the Controlling Party may designate.
SECTION 8. INVESTMENT MANAGEMENT
8.1. Permitted Investments. Recco shall notify the Administrative Agent
and each Group Agent of the type and maturity of Permitted Investments into
which the funds in the Collection Account and the Hedge Agreement Reserve
Account shall be invested. Such notice shall be received by the Administrative
Agent no later than 10:00 A.M. (New York City time) on each Business Day and
provided to any Lender upon such Lender's request.
SECTION 9. THE ADMINISTRATIVE AGENT, THE GROUP AGENTS AND THE
SURETY PROVIDER
9.1. Authorization and Action.
(a) Notwithstanding any provision to the contrary elsewhere in this
Agreement, none of the Administrative Agent, the Group Agents or the Surety
Provider shall have any duties or responsibilities, except those expressly set
forth in the Operative Documents to which it is a party, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
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responsibilities, duties, obligations or liabilities on the part of the
Administrative Agent, the Group Agents or the Surety Provider shall be read into
any Operative Document or otherwise exist against the Administrative Agent, the
Group Agents or the Surety Provider.
(b) The provisions of this Section 9 are solely for the benefit of the
Administrative Agent, the Group Agents, the Surety Provider and the Lenders, and
Recco shall not have any rights as a third-party beneficiary or otherwise under
any of the provisions of this Section 9, except that this Section 9 shall not
affect any obligations which any of the Administrative Agent, the Group Agents,
the Surety Provider and the Lenders may have to Recco under the other provisions
of this Agreement.
9.2. Delegation of Duties.
The Administrative Agent, the Group Agents and the Surety Provider may
execute any of its duties under the Operative Documents to which it is a party
by or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. Neither the
Administrative Agent, the Group Agents nor the Surety Provider shall be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
9.3. Exculpatory Provisions.
None of the Administrative Agent, the Group Agents or the Surety Provider
or any of their respective directors, officers, agents or employees shall be (i)
liable for any action lawfully taken or omitted to be taken by it or them or any
Person described in Section 9.2 under or in connection with this Agreement
(except for its, their or such Person's own bad faith, gross negligence or
willful misconduct), or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by Recco contained
in this Agreement or in any certificate, report, statement or other document
referred to or provided for in, or received under or in connection with, this
Agreement or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other document furnished in connection
herewith, or for any failure of Recco to perform its respective obligations
hereunder, or for the satisfaction of any condition specified in Section 4,
except receipt of items required to be delivered to the Administrative Agent and
each Group Agent. None of the Administrative Agent, any Group Agent or the
Surety Provider shall be under any obligation to any Lender to ascertain or to
inquire as to the observance or performance of any of the agreements or
covenants contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of Recco. This Section 9.3 is intended solely to
govern the relationship between the Administrative Agent, the Group Agents and
the Surety Provider, on the one hand, and the Lenders, on the other.
9.4. Reliance.
(a) The Administrative Agent, the Group Agents and the Surety Provider
shall in all cases 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
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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, independent
accountants and other experts selected by the Administrative Agent, the Group
Agents or Surety Provider, as appropriate. The Administrative Agent, the Group
Agents and the Surety Provider shall in all cases be fully justified in failing
or refusing to take any action under this Agreement or any other document
furnished in connection herewith unless it shall first receive such advice or
concurrence of such of the Lenders and the Surety Provider, as it shall
determine to be appropriate under the relevant circumstances, or it shall first
be indemnified to its satisfaction against any and all liability, cost and
expense which may be incurred by it by reason of taking or continuing to take
any such action.
(b) Any action taken by the Administrative Agent, the Group Agents or the
Surety Provider in accordance with Section 9.4(a) shall be binding upon all of
the Lenders.
9.5. Notice of Wind-Down Events.
Neither the Administrative Agent, the Group Agents nor the Surety Provider
shall be deemed to have knowledge or notice of the occurrence of any Wind-Down
Event unless it has received notice from a Lender, the Surety Provider, the
Administrative Agent, or the Group Agents referring to this Agreement, stating
that a Wind-Down Event has occurred hereunder and describing such Wind-Down
Event. In the event that the Administrative Agent, any Group Agent or the Surety
Provider receives such a notice, it shall promptly give notice thereof to the
Lenders. The Administrative Agent and the Group Agents shall take such action
(including providing a Notice of Wind-Down) with respect to such Wind-Down Event
as shall be directed by the Surety Provider provided that the Administrative
Agent and each Group Agent is indemnified to its satisfaction by the Seller
against any and all liability, cost and expense which may be incurred by it by
reason of taking any such action.
9.6. Non-Reliance on Lenders.
Each of the Lenders expressly acknowledges that none of the Administrative
Agent, the Group Agents, the Surety Provider nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates has made
any representations or warranties to it and that no act by the Administrative
Agent, the Group Agents or the Surety Provider hereafter taken, including,
without limitation, any review of the affairs of Recco, shall be deemed to
constitute any representation or warranty by the Administrative Agent, the Group
Agents or the Surety Provider. Each of the Lenders also represents and warrants
to the Administrative Agent, each Group Agent, the Surety Provider and the other
Lenders that it has, independently and without reliance upon any such Person (or
any of their Affiliates) and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, prospects, financial and other conditions and
creditworthiness of Recco and made its own decision to enter into this
Agreement. Each of the Lenders also represents that it will, independently and
without reliance upon the Administrative Agent, the Group Agents, the Surety
Provider or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement,
and to make such investigation as it deems necessary to inform itself as to the
business, operations, property,
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prospects, financial and other condition and creditworthiness of Recco. The
Administrative Agent, the Group Agents, the Surety Provider, the Lenders and
their respective Affiliates, shall have no duty or responsibility to provide any
party to this Agreement with any credit or other information concerning the
business, operations, property, prospects, financial and other condition or
creditworthiness of Recco which may come into the possession of such Person or
any of its respective officers, directors, employees, agents, attorneys-in-fact
or affiliates, except that the Administrative Agent, the Group Agents shall
promptly distribute to its Lending Group and to the Surety Provider, copies of
financial and other information expressly provided to it by Recco pursuant to
this Agreement.
9.7. Administrative Agent and Group Agents in their Individual Capacities.
The Administrative Agent and the Group Agents in their individual
capacities and their respective Affiliates may make loans to, accept deposits
from and generally engage in any kind of business with Recco and its Affiliates
as though such Persons were not a Group Agent or the Administrative Agent
hereunder. With respect to Loans held by the Administrative Agent in its
capacity as a Lender, if any, pursuant to this Agreement, the Administrative
Agent shall have the same rights and powers under this Agreement as any Lender
and may exercise the same as though it were not the Administrative Agent, and
the terms "Lender" and "Lenders" shall include the Administrative Agent in its
individual capacities.
9.8. Resignation by the Administrative Agent. (a) The Administrative Agent
may resign from the performance of all its functions and duties hereunder at any
time by giving sixty (60) days' prior written notice to Recco, the Surety
Provider and the Group Agents. Such resignation shall take effect upon the
appointment of a successor Administrative Agent pursuant to Sections 9.8(b) and
(c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Required Lenders shall
appoint a successor Administrative Agent hereunder or thereunder (with notice of
such appointment provided to Fitch, Xxxxx'x and S&P) who shall be a commercial
bank or trust company or similar financial institution and shall be reasonably
acceptable to the Surety Provider, the Required Lenders and, unless a Wind-Down
Event is then in existence, Recco.
(c) If a successor Administrative Agent shall not have been so appointed
within such sixty (60) day period, the Administrative Agent, with the consent of
the Surety Provider, the Required Lenders and, unless a Wind-Down Event is then
in existence, Recco (which consent shall not be unreasonably withheld), shall
then appoint a successor Administrative Agent who shall serve as Administrative
Agent hereunder or thereunder until such time, if any, as the Required Lenders
appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed pursuant to
Section 9.8(b) or (c) above by the seventy-fifth (75th) day after the date such
notice of resignation was given by the Administrative Agent, the Administrative
Agent's resignation shall become effective and the Group Agents shall thereafter
perform all the duties of the Administrative Agent hereunder until such time, if
any, as the Required Lenders appoint a successor Administrative Agent as
provided above.
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9.9. Resignation by a Group Agent. (a) A Group Agent may resign from the
performance of all its functions and duties hereunder at any time by giving
sixty (60) days' prior written notice to Recco, the Surety Provider, the
Administrative Agent and the Lenders in its Lending Group. Such resignation
shall take effect upon the appointment of a successor Group Agent pursuant to
Sections 9.9(b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Lenders of the respective
Lending Group shall appoint a successor Group Agent hereunder or thereunder
(with notice of such appointment provided to Fitch, Xxxxx'x and S&P as
necessary) who shall be a commercial bank or trust company or similar financial
institution and shall be reasonably acceptable to the Surety Provider and,
unless an Wind-Down Event is then in existence, Recco.
(c) If a successor Group Agent shall not have been so appointed within
such sixty (60) day period, the Group Agent, with the consent of the Surety
Provider and, unless a Wind-Down Event is then in existence, Recco (which
consent shall not be unreasonably withheld), shall then appoint a successor
Group Agent who shall serve as Group Agent hereunder or thereunder until such
time, if any, as the Lenders of the respective Lending Group appoint a successor
Group Agent as provided above.
(d) If no successor Group Agent has been appointed pursuant to Section
9.9(b) or (c) above by the seventy-fifth (75th) day after the date such notice
of resignation was given by the Group Agent, the Group Agent's resignation shall
become effective and the Committed Lenders of the respective Lending Group shall
thereafter perform all the duties of the Group Agent hereunder until such time,
if any, as the Lenders of such Lending Group appoint a successor Group Agent as
provided above.
SECTION 10. MISCELLANEOUS
10.1. Amendments and Waivers. None of this Agreement, the Lender Notes,
any other Operative Document, nor any terms hereof or thereof may be amended,
supplemented, waived or modified except without the prior written consent of the
Required Lenders, the Administrative Agent, the Group Agents, the Surety
Provider, the Collateral Agent and Recco and, to the extent such amendment,
modification, supplement, waiver or modification has a Material Adverse Effect
on the rights of the Hedge Counterparty, the Hedge Counterparty, in accordance
with the provisions of this Section 10.1. The Lenders, the Administrative Agent,
the Group Agents, the Surety Provider, the Collateral Agent and Recco may, from
time to time, enter into written amendments, supplements, waivers or
modifications hereto and to the Lender Notes and the other Operative Documents
to which they are parties for the purpose of adding any provisions to this
Agreement or the Lender Notes or such other Operative Documents or changing in
any manner the rights of the Lenders, the Administrative Agent, the Group
Agents, the Surety Provider, the Collateral Agent or Recco hereunder or
thereunder and, in addition, waiving, on such terms and conditions as the
Lenders, the Administrative Agent, the Group Agents, the Surety Provider, or the
Collateral Agent may specify in such instrument, any of the requirements of this
Agreement or the Lender Notes 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 (xv) 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
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shall be binding upon the Lenders, the Administrative Agent, the Group Agents,
the Surety Provider, the Collateral Agent and all future holders of the Lender
Notes, and each of S&P and Xxxxx'x shall receive notice thereof. In the case of
any waiver, the Lenders, the Administrative Agent, the Group Agents, the Surety
Provider, the Collateral Agent and Recco shall be restored to their former
position and rights hereunder and under the Lender Notes 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 Agreement on: (a) the second Business Day
following the day on which such notice was placed in the custody of the United
States Postal Service, (b) the next Business Day following the day on which such
notice was placed in the custody of any overnight courier service, including
express mail service or (c) the same Business Day on which such notice is sent
by telegram, messenger or facsimile. Unless otherwise specified in a notice sent
or delivered in accordance with the foregoing provisions of this Section 10.2,
notices, demands, instructions and other communications in writing shall be
given to or made upon the respective parties hereto at their respective
addresses (or to their respective facsimile numbers) indicated below, and, in
the case of telephonic instructions or notices, by calling the telephone number
or numbers indicated for such party below:
If to Recco: Onyx Acceptance Receivables Corporation
00000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Tel. No.: (000) 000-0000
Telecopier No.: (000) 000-0000
If to the Seller: Onyx Acceptance Corporation
00000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Executive Vice President
and Chief Financial Officer
Tel. No.: (000) 000-0000
Telecopier No.: (000) 000-0000
If to the Administrative Agent CDC Financial Products, Inc.
or to CDC FP: 0 Xxxx 00x Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Tel. No.: (000) 000-0000
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Telecopier No.: (000) 000-0000
If to Eiffel: Eiffel Funding, LLC,
c/o Global Securitization Services, LLC
000 Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Tel. No.: (000) 000-0000
Telecopier No.: (000) 000-0000
If to the VFCC Group Agent: Wachovia Capital Markets, LLC
000 X. Xxxxxxx Xxxxxx, XX0000
Xxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxx
Tel. No.: (000) 000-0000
Telecopier No.: (000) 000-0000
If to VFCC: Variable Funding Capital Corporation
c/o Wachovia Capital Markets, LLC
000 X. Xxxxxxx Xxxxxx, XX0000
Xxxxxxxxx, XX 00000-0000
Attention: Conduit Administration
Tel. No.: (000) 000-0000
Telecopier No.: (000) 000-0000
If to Wachovia Bank: Wachovia Bank, National Association
000 X. Xxxxxxx Xxxxxx, XX0000
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxxx
Tel. No.: (000) 000-0000
Telecopier No.: (000) 000-0000
If to the Surety Provider: XL Capital Assurance Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Surveillance
Tel No.: (000) 000-0000
Telecopier No.: (000) 000-0000
A copy of any notice delivered to or required to be sent by Recco
hereunder shall be sent by Recco 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 the Lenders or the Collateral Agent any right,
remedy, power or privilege hereunder or under any of the other Operative
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege
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hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges provided herein and in the other Operative Documents are cumulative
and not exclusive of any rights, remedies, powers and privileges provided by
law.
10.4. Survival of Representations and Warranties. All representations and
warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the Lender Notes.
10.5. Payment of Expenses and Taxes. Recco agrees, on demand, to (a) pay
or reimburse the Lenders, the Group Agents, the Surety Provider and the
Collateral Agent for all its reasonable out-of-pocket costs and expenses
incurred in connection with the preparation, execution, delivery and
administration of, and any amendment, supplement or modification to, this
Agreement, the Lender Notes 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 the Lenders, the Administrative Agent, the Group Agents, the Surety
Provider and the Collateral Agent, (b) pay or reimburse the Lenders, the
Administrative Agent, the Group Agents, the Surety Provider and the Collateral
Agent for all their costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the Lender
Notes, the other Operative Documents and any such other documents, including,
without limitation, reasonable fees and disbursements of counsel to the Lenders,
the Administrative Agent, the Group Agents, the Surety Provider and the
Collateral Agent and (c) pay, indemnify, and hold the Lenders, the
Administrative Agent, the Group Agents, the Surety Provider and the Collateral
Agent harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, any
registration tax, stamp, duty and other similar taxes or duties, if any, which
may be payable or determined to be payable in connection with the execution and
delivery of, or consummation of any of the transactions contemplated by, or any
amendment, supplement or modification of, or any waiver or consent under or in
respect of, this Agreement, the Lender Notes, the other Operative Documents and
any such other documents, and (d) pay, indemnify, and hold the Lenders, the
Administrative Agent, the Group Agents, the Surety Provider and the Collateral
Agent harmless from and against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (except with respect to taxes,
which shall be governed by Sections 2.10 through 2.14 and 10.5(c) above), with
respect to the execution, delivery, enforcement, performance and administration
of this Agreement, the Lender Notes and the other Operative Documents, (all the
foregoing, collectively, the "indemnified liabilities"), provided that Recco has
no obligation hereunder to the Administrative Agent, the Group Agents, the
Collateral Agent, the Surety Provider or the Lenders with respect to indemnified
liabilities arising from the gross negligence or willful misconduct of the
Administrative Agent, the Group Agents, the Collateral Agent, the Surety
Provider or the Lenders. Notwithstanding the foregoing, if the Lenders enter
into agreements with one or more other borrowers ("Other Borrowers"), the
Lenders shall allocate such indemnified liabilities which are attributable to
Recco and to the Other Borrowers to Recco and to each Other Borrower; provided,
however, that if such indemnified liabilities are attributable to Recco and not
attributable to any Other Borrower, Recco shall be solely liable for
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such indemnified liabilities or if such indemnified liabilities are attributable
to Other Borrowers and not attributable to Recco, such Other Borrowers shall be
solely liable for such indemnified liabilities. The agreements in this
subsection shall survive repayment of the Lender Notes and all other amounts
payable hereunder.
10.6. Assignments and Participations.
(a) Each Lender may upon at least four (4) Business Days' notice to the
Administrative Agent and its related Group Agent, assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement;
provided, however, that (i) each such assignment shall be of a constant, and not
a varying, percentage of all of the assigning Lender's rights and obligations
under this Agreement, (ii) the amount of the Loan of the assigning Lender being
assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event be
less than the lesser of (A) $15,000,000 or an integral multiple of $1,000,000 in
excess of that amount and (B) the full amount of the assigning Lender's
Commitment, (iii) the parties to each such assignment shall execute and deliver
to the Administrative Agent and its related Group Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with a
processing and recordation fee of $3,500 or such lesser amount as shall be
approved by the Administrative Agent, (iv) the parties to each such assignment
shall have agreed to reimburse the Administrative Agent and the related Group
Agent for all fees, costs and expenses (including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent and each Group Agent) incurred by the Administrative Agent and such Group
Agent in connection with such assignment, (v) each Person that becomes a Lender
under an Assignment and Acceptance shall agree to be bound by the
confidentiality provisions of Section 10.17 hereto, (vi) there shall be no
increased costs, expenses or taxes incurred by the Administrative Agent or the
Group Agent (and the parties thereto shall use all reasonable efforts to ensure
that neither Onyx nor Recco incur any increased costs, expenses or taxes) upon
such assignment or participation and (vii) any assignment may be made to any
liquidity or credit support provider of a Conduit Lender at any time without any
notice to any other Person, and provided further that with respect to a
Committed Lender, upon the effective date of such Assignment and Acceptance each
of the Administrative Agent, the related Group Agent and, unless a Wind-Down
Event shall have occurred and be continuing, Onyx and Recco shall have provided
its written consent thereto, which consent shall not be unreasonably withheld.
Upon such execution, delivery and acceptance by the Administrative Agent and the
related Group Agent and the recording by the Administrative Agent and the
related Group Agent, from and after the effective date specified in each
Assignment and Acceptance, which effective date shall be the date of acceptance
thereof by the Administrative Agent and the related Group Agent, unless a later
date is specified therein, (i) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to
and accepted by it pursuant to such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder and (ii) the Lender assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto).
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(b) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the related
Conduit Lender or the performance or observance by the related Conduit Lender of
any of its obligations under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of such financial statements and
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (iv)
such assignee will, independently and without reliance upon the Administrative
Agent or the related Group Agent, such assigning Lender or any other Lender or
the Surety Provider 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 Agreement; (v) such assigning Lender and such
assignee confirm that such assignee is an Eligible Assignee; (vi) such assignee
appoints and authorizes the related Group Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated to
such agent by the terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations which, by the terms of this
Agreement, are required to be performed by it as a Lender.
(c) Each Group Agent shall maintain at its address referred to herein a
copy of each Assignment and Acceptance delivered to and accepted by it (and
shall promptly provide a copy of each to the Administrative Agent) and a
Register for the recordation of the names and addresses of the Lenders and the
Group Commitment and Loan of each Lender from time to time. The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the related Conduit Lender, Recco and the Administrative Agent and
the Group Agents may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by Recco, the Group Agents and by any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(d) Subject to the provisions of Section 10.6(a), upon its receipt of an
Assignment and Acceptance executed by an assigning Lender and an assignee, the
related Group Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit G hereto, accept such Assignment and
Acceptance, and such Group Agent shall then (i) record the information contained
therein in the Register and (ii) give prompt notice thereof to the related
Conduit Lender.
(e) Each Lender may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment and
each Loan owned by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Group Commitment
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hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the related Group Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement; and, provided, further, with respect to a VFCC
Lender, that the VFCC Group Agent shall have confirmed that upon the effective
date of such participation, the provisions of Section 3.03(f) of the VFCC
Administration Agreement shall be satisfied. Notwithstanding anything herein to
the contrary, each participant shall have the rights of a Lender (including any
right to receive payment) under Sections 2.10 and 2.17; provided, however, that
no participant shall be entitled to receive payment under either such Section in
excess of the amount that would have been payable under such Section by Recco to
the Lender granting its participation had such participation not been granted,
and no Lender granting a participation shall be entitled to receive payment
under either such Section in an amount that exceeds the sum of (i) the amount to
which such Lender is entitled under such Section with respect to any portion of
any Loan advanced by such Lender that is not subject to any participation plus
(ii) the aggregate amount to which its participants are entitled under such
Sections with respect to the amounts of their respective participations. With
respect to any participation described in this Section 10.6, the participant's
rights as set forth in the agreement between such participant and the applicable
Lender to agree to or to restrict such Lender's ability to agree to any
modification, waiver or release of any of the terms of this Agreement or to
exercise or refrain from exercising any powers or rights that such Lender may
have under or in respect of this Agreement shall be limited to the right to
consent to any of the matters set forth in Section 10.1 of this Agreement.
(f) Each Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 10.6, disclose to
the assignee or participant or proposed assignee or participant any information
relating to Recco or the related Conduit Lender furnished to such Lender by or
on behalf of Recco or the related Conduit Lender.
(g) Nothing herein shall prohibit any Lender from assigning, pledging or
assigning as collateral any of its rights under this Agreement to any liquidity
or credit support provider or any Federal Reserve Bank in accordance with
Applicable Law, and any such assignment, pledge or collateral assignment may be
made without compliance with Section 10.6(a) or Section 10.6(b).
(h) In the event any Lender causes increased costs, expenses or taxes to
be incurred by Onyx, Recco or the related Group Agent in connection with the
assignment or participation of such Lender's rights and obligations under this
Agreement to an Eligible Assignee or participant then such Lender agrees that it
will make reasonable efforts to assign such increased costs, expenses or taxes
to such Eligible Assignee in accordance with the provisions of this Agreement.
(i) Any Conduit Lender may at any time assign, grant a security interest
in or sell a participation interest in any Loan (or portion thereof) to any
Eligible Assignee. The parties to such assignment shall execute and deliver to
the Administrative Agent and to the related Group Agent, for its acceptance and
recording in its books and records, such agreement or document as may be
satisfactory to such parties and to the related Group Agent.
10.7. Termination. This Agreement shall terminate following the Commitment
Termination Date upon payment in full of all outstanding obligations, including,
without
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limitation, principal, interest and other amounts due hereunder and under the
Operative Documents which are payable on such date.
10.8. Counterparts. This Agreement may be executed by one or more of the
parties to this 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 Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.10. Integration. This Agreement represents the agreement of Recco, the
Group Agents and the Lenders with respect to the subject matter hereof, and
there are no promises, undertakings, representations or warranties by the
Lenders or the Group Agents 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 AGREEMENT AND THE LENDER NOTES AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE LENDER NOTES SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES WHICH MAY
REQUIRE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION(INCLUDING SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAWS).
10.12. SUBMISSION TO JURISDICTION; WAIVERS. EACH PARTY HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS 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;
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(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 SECTION 10.2 OR AT SUCH OTHER ADDRESS OF WHICH ALL OF THE OTHER PARTIES
HERETO SHALL HAVE BEEN NOTIFIED PURSUANT THERETO;
(d) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY
HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN THIS
SUBSECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
10.13. Acknowledgments. Recco hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement, the Lender Notes and the other Operative Documents;
(b) neither the Lenders, the Surety Provider, the Group Agents nor the
Collateral Agent has any fiduciary relationship to Recco, and the relationship
between the Lenders and Recco is solely that of debtor and creditor; and
(c) no joint venture exists between Recco and the Lenders.
10.14. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR THE LENDER NOTES OR ANY OTHER OPERATIVE DOCUMENT AND FOR
ANY COUNTERCLAIM THEREIN.
10.15. No Bankruptcy Petition; No Recourse.
(a) Each of the parties hereto and the Hedge Counterparty and the Surety
Provider (by accepting the benefits of this Agreement) covenants and agrees that
it will not institute against, or join with or knowingly cooperate or encourage
any other Person in instituting against, any Conduit Lender any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or state bankruptcy or similar law. Each of the
parties hereto covenants and agrees that it will not institute against, or join
with or knowingly cooperate or encourage any other Person in instituting
against, Recco any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any federal or state
bankruptcy or similar law. This Section 10.15(a) shall survive the termination
of this Agreement and the Program.
(b) No recourse shall be had for the payment of any amount owing by any
Conduit Lender under this Agreement or any related agreement, or for the payment
by any Conduit Lender of any other obligation or claim of or against any Conduit
Lender arising out of or based on this Agreement or any related agreement
against any stockholder, employee, officer, director, agent or incorporator of
any such Conduit Lender , it being expressly agreed and understood that the
agreements of such Conduit Lender contained in this Agreement and any related
agreement
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are solely the corporate obligations of such Conduit Lender, and that no
personal liability whatsoever shall attach to or be incurred by any
administrator of such Conduit Lender, or any stockholder, employee, officer,
director, agent, administrator or incorporator of such Conduit Lender, and that
any and all personal liability of every such administrator of such Conduit
Lender for breaches by such Conduit Lender of any such obligations or
agreements, which liability may arise either at common law or at equity, by
statute or constitution, or otherwise, is hereby expressly waived as a condition
of and in consideration for the execution of this Agreement; provided, however,
that nothing in this Section 10.15(b) shall relieve any of the foregoing Persons
from any liability which such Person may otherwise have in such capacity for
his/her or its gross negligence or willful misconduct. This Section 10.15(b)
shall survive the termination of this Agreement.
(c) Notwithstanding anything in this Agreement to the contrary, the
Conduit Lenders shall not have any obligation to pay any amount required to be
paid by it hereunder in excess of any amount available to such Conduit Lender
after paying or making provision for the payment of its Commercial Paper Notes.
All payment obligations of the Conduit Lenders hereunder are contingent on the
availability of funds in excess of the amounts necessary to pay its Commercial
Paper Notes; and each of the other parties hereto agrees that it will not have a
claim under Section 101(5) of the Bankruptcy Code if and to the extent that any
such payment obligation owed to it by a Conduit Lender exceeds the amount
available to such Conduit Lender to pay such amount after paying or making
provisions for the payment of its Commercial Paper Notes.
10.16. The Lenders' Credit Decision. The Lenders acknowledge that they
have, independently and without reliance upon the Administrative Agent, the
Group Agents, 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 they have deemed
appropriate, made their own credit analysis and decision to enter into this
Agreement and, subject to the conditions set forth in this Agreement, to make
Loans hereunder. The Lenders also acknowledge that they will, independently and
without reliance upon the Administrative Agent, the Group Agents, the Surety
Provider or any of their Affiliates and based on such documents and information
as they shall deem appropriate at the time, continue to make their own credit
decisions in taking or not taking action under this Agreement.
10.17. Confidentiality.
(a) Recco shall maintain, and shall cause each officer, employee and agent
of itself and its Affiliates to maintain, the confidentiality of the Operative
Documents and all other confidential proprietary information with respect to the
Lenders, the Administrative Agent, the Group Agents and the Surety Provider and
each of their respective businesses obtained by them in connection with the
structuring, negotiation and execution of the transactions contemplated herein
and in the other Operative Documents, except for information that has become
publicly available or information disclosed (x) to legal counsel, accountants
and other professional advisors to Recco and its Affiliates, (y) as required by
law, regulation, subpoena or other legal process or (z) in connection with any
legal or regulatory proceeding to which Recco or any of its Affiliates is
subject. Recco hereby consents to the disclosure of any non-public information
with respect to it received by the Lenders, the Administrative Agent, the Group
Agents and the Surety Provider (or any of their respective Affiliates) to (i)
any of the Lenders, the Administrative
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Agent, the Group Agents and the Surety Provider (or any of their respective
Affiliates), (ii) any nationally recognized rating agency providing a rating or
proposing to provide a rating to a Conduit Lenders' Commercial Paper or of the
Surety Provider, (iii) any provider of a Conduit Lenders' program-wide liquidity
or credit support facilities or (iv) any participant or potential participant
(which Person, in the case of clauses (iii) and (iv), agrees in writing to be
bound by the confidentiality provisions of this Section 10.17).
(b) Notwithstanding the foregoing, each of the Surety Provider, the
Lenders, the Administrative Agent and the Group Agents shall maintain, and shall
cause each officer, employee and agent of itself and its Affiliates to maintain,
the confidentiality of the Operative Documents and all other confidential
proprietary information with respect to Recco and its Affiliates and each of
their respective businesses obtained by them in connection with the structuring,
negotiation and execution of the transactions contemplated herein and in the
other Operative Documents, except for information that has become publicly
available or information disclosed (i) to legal counsel, accountants and other
professional advisors to the Surety Provider, the Lenders, the Administrative
Agent, the Group Agents and their respective Affiliates, (ii) as required by
law, regulation, subpoena or other legal process, or at the express direction of
any other agency of any state or any other jurisdiction in which it conducts
business, (iii) at the request of any regulatory authority, in connection with
an examination by any regulatory authority or in connection with any legal or
regulatory proceeding to which the Surety Provider, the Lenders, the
Administrative Agent and the Group Agents or any of their Affiliates is subject
or (iv) with respect to the Surety Provider, to any reinsurer that the Surety
Provider may use to reinsure all or a portion of its obligations under the
Surety Bond.
(c) Notwithstanding anything herein to the contrary, the Surety Provider
and each party to this Agreement, which includes each of the Administrative
Agent, each Group Agent, each Lender and each liquidity and credit support party
(each a "Transaction Party") may disclose without limitation of any kind, any
information with respect to the "tax treatment" and "tax structure" (in each
case within the meaning of treasury regulation section 1.6011-4) of the
transaction contemplated hereby or by any of the transaction documents, and all
materials of any kind (including opinions or other tax analyses) that are
provided to any Transaction Party relating to such tax treatment or tax
structure; provided, however, that with respect to any document or similar item
that in either case contains information containing the tax treatment or tax
structure of the transactions contemplated hereby or by any of the transaction
documents as well as other information, this sentence shall only apply to such
portions of the document or similar item that relate to the tax treatment or tax
structure of any transactions contemplated hereby or by any of the transaction
documents.
(d) The foregoing confidentiality provisions shall survive the termination
of this Agreement and the Program.
10.18. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of Recco, the Lenders, the Administrative Agent, the Group Agents,
the Surety Provider (as a third-party beneficiary) and the Collateral Agent and
all future holders of the Lender Notes and their respective successors and
permitted assigns, except that Recco may not assign or transfer any of its
rights and obligations under this Agreement without the prior written consent of
the Administrative Agent, the Surety Provider, the Group Agents and the Lenders.
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10.19. Third-Party Beneficiary. The parties to this Agreement hereby agree
that the Surety Provider shall be an intended third-party beneficiary of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated
Credit Agreement to be duly executed by their proper and duly authorized
officers as of the day and year first above written.
ONYX ACCEPTANCE RECEIVABLES
CORPORATION
By: __________________________________________
Name:
Title:
EIFFEL FUNDING, LLC, as Conduit Lender
By: Global Securitization Services, LLC, its
Manager
By: __________________________________________
Name:
Title:
CDC FINANCIAL PRODUCTS INC., as
Administrative Agent, Eiffel Group Agent and
Committed Lender
By: __________________________________________
Name:
Title:
By: __________________________________________
Name:
Title:
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Wire Payments with Respect to Recco to:
Bank: Xxxxx Fargo Bank, National Association
ABA: 000000000
Acct. No.: 4296901275
Beneficiary: Onyx Acceptance Receivables
Corporation
Ref: ATTN: Xxx Xxxx
Wire Payments with Respect to CDC Financial
Products Inc., to:
Account for payments:
For cash:
Citibank NYC/CDCFP
ABA# 000000000
Account #00000000
For Securities: CDC Financial Products Inc.
Citibank (ABA# 000000000)
CUST/092342/CDCFP
Wire Payments with Respect to Eiffel Funding,
LLC., to:
Account for payments:
For cash: Deutsche Bank Trust Company Americas
(f/k/a Bankers Trust Company) C/CDCFP
ABA 000-000-000
A/C # 01419647
For Securities: CDC Financial Products Inc. -
Onyx Facility
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VARIABLE FUNDING CAPITAL
CORPORATION, as Conduit Lender
By: WACHOVIA CAPITAL MARKETS, LLC,
as attorney-in-fact
By: _______________________________________
Name:
Title:
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Committed Lender
By: _______________________________________
Name:
Title:
WACHOVIA CAPITAL MARKETS, LLC, as
VFCC Group Agent
By: _______________________________________
Name:
Title:
AGREED TO AND ACKNOWLEDGED:
ONYX ACCEPTANCE CORPORATION,
as Seller and holder of the
Subordinated Note
By: ______________________________
Name:
Title:
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Wire Payments with Respect to the VFCC Lenders
to:
First Union National Bank
Charlotte, NC
ABA: 000000000
Acct Name: CP Liability Account
Acct: 2000002391825
Ref: Onyx XL-wrapped warehouse
Attn: Conduit Administration or Xxxxx Xxxxx
(000) 000-0000
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EXHIBIT A
[DEFINITIONS LIST]
ONYX ACCEPTANCE CORPORATION
ONYX ACCEPTANCE RECEIVABLES CORPORATION
================================================================================
DEFINITIONS LIST
================================================================================
dated as of January 29, 2004
XL CAPITAL ASSURANCE INC.
EIFFEL FUNDING, LLC
CDC FINANCIAL PRODUCTS INC.
VARIABLE FUNDING CAPITAL CORPORATION
WACHOVIA BANK, NATIONAL ASSOCIATION
WACHOVIA CAPITAL MARKETS, LLC
Unless otherwise defined therein, the capitalized terms used in the
documents listed below shall have the meanings set forth in the Definitions List
below.
1. Sale and Servicing Agreement, dated as of January 9, 2003, as
amended by the Amended and Restated Sale and Servicing Agreement,
dated as of January 29, 2004 (the "Sale Agreement"), between the
Seller and Recco, as the same may be further amended, supplemented
or otherwise modified from time to time.
2. Amended and Restated Credit Agreement, dated as of January 29, 2004
(the "Credit Agreement" or "Agreement"), among Recco, Eiffel and
VFCC as Conduit Lenders, Wachovia and CDC FP as Committed Lenders,
CDC FP, as Administrative Agent and Wachovia Securities, as VFCC
Group Agent, as the same may be further amended, supplemented or
otherwise modified from time to time.
3. Security Agreement, dated as of January 9, 2003, as amended by the
Amended and Restated Security Agreement, dated as of January 29,
2004 (the "Security Agreement"), among Recco, the Servicer and
JPMorgan Chase Bank, as Collateral Agent, as the same may be further
amended, supplemented or otherwise modified from time to time.
4. Insurance and Indemnity Agreement, dated as of January 9, 2003, as
amended by the First Amendment to Insurance and Indemnity Agreement,
dated as of January 29, 2004 (the "Insurance Agreement"), among the
Lenders, XLCA, as Surety Provider, the Seller and Recco, as the same
may be further amended, supplemented or otherwise modified from time
to time.
5. Liquidity Asset Purchase Agreement, dated as of January 9, 2003, as
amended by the Amended and Restated Liquidity Asset Purchase
Agreement, dated as of January 29, 2004 (the "Eiffel Liquidity
Agreement"), between CDC FP and Eiffel, as the same may be further
amended, supplemented or otherwise modified from time to time.
6. Liquidity Asset Purchase Agreement, dated as of January 29, 2004
(the "VFCC Liquidity Agreement"), between VFCC and Wachovia Bank, as
the same may be amended, supplemented or otherwise modified from
time to time.
8. Subordinated Security Agreement, dated as of January 9, 2003, (the
"Subordinated Security Agreement") between Recco and the Seller, as
the same may be further amended, supplemented or otherwise modified
from time to time.
9. Premium Letter, dated January 29, 2004 (the "Premium Letter"), among
XLCA, Onyx and Recco, as the same may be amended, supplemented or
otherwise modified from time to time.
10. Fee Letter Agreement, dated January 29, 2004 (the "Lender Fee
Letter") among Recco, the Eiffel Group Agent and the VFCC Group
Agent, as the same may be amended, supplemented or otherwise
modified from time to time.
DEFINITIONS LIST
Accrued Costs and Interest Sub-Account: As defined in Section 4 of the
Security Agreement.
Accrued Facilities Cost Amount: For any day during a Determination Period,
an amount equal to the Facilities Costs that have accrued from the beginning of
such Determination Period up to and including such day minus the amount on
deposit in the Accrued Costs and Interest Sub-Account representing Facilities
Costs with respect to such Determination Period.
Accrued Interest Amount: On any day of determination, the aggregate amount
of interest accrued and unpaid for such day on the Loans.
Additional Lending Group: As defined as Section 2.19 of the Credit
Agreement.
Adjusted Eligible Contracts Balance: On any day, the aggregate of the
Outstanding Balances of all Purchased Contracts minus the sum of (a) the
Outstanding Balance of all Delinquent Contracts and, without duplication,
Defaulted Contracts on such day, plus (b) without duplication of the amount
described in clause (a) of this definition, (i) the Outstanding Balance of all
Ineligible Contracts on such day, to the extent that such Contracts have not
been repurchased by the Seller pursuant to the terms and conditions of the Sale
Agreement, plus (ii) the aggregate amount by which the Outstanding Balances of
all Purchased Contracts having Obligors with mailing addresses in any one state
exceed 50% of the Outstanding Balance of all Purchased Contracts, plus (iii) the
Outstanding Balance for all Purchased Contracts for which the Purchase Date
occurred more than 9 months prior to such day, plus (iv) the aggregate amount by
which the Outstanding Balances of all Purchased Contracts having original
maturities of greater than sixty (60) months exceeds 50% of the Outstanding
Balances of all Purchased Contracts.
Adjusted Eurodollar Rate: With respect to any Lender, for any Interest
Period, an interest rate per annum equal to a fraction, expressed as a
percentage and rounded upwards (if necessary), to the nearest 1/100 of 1%, (i)
the numerator of which is equal to such Lender's applicable LIBOR Rate for such
Interest Period and (ii) the denominator of which is equal to 100% minus the
Eurodollar Reserve Percentage for such Interest Period.
Administrative Agent: CDC FP, and its permitted successors and assigns in
such capacity.
Advance Rate: For any Purchase Period, 98%; provided, however, that if, on
any Determination Date the Net Yield on such Determination Date does not equal
or exceed the Target Net Yield, then the applicable Advance Rate for the
Purchase Period beginning on such Determination Date shall be reduced by an
amount equal to two (2) times the amount by which the Target Net Yield exceeds
such Net Yield; provided, further, that (i) if the weighted average FICO score
with respect to Obligors of all Purchased Contracts is between 635 and 639,
inclusive, as reported in the most recently delivered Monthly Report, then the
applicable Advance Rate for the Purchase Period beginning on the date such
Monthly Report is delivered shall be further reduced by an amount equal to 1%
until such weighted average FICO score is greater than 639, it being understood
that if the weighted average FICO score with respect to Obligors of all
Purchased Contracts is reported to be between 635 and 639, inclusive, on two or
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more consecutive Monthly Reports, the applicable Advance Rate shall not be
reduced by an amount equal to 1% for any Purchase Period other than the first
Purchase Period; and (ii), if the weighted average FICO score with respect to
Obligors of all Purchased Contracts is less than 635 as reported in the most
recently delivered Monthly Report, then the applicable Advance Rate for the
Purchase Period beginning on the date such Monthly Report is delivered shall be
reduced by an amount equal to 5% until such weighted average FICO score is equal
to or greater than 635, it being understood that if the weighted average FICO
score with respect to Obligors of all Purchased Contracts is reported to be less
than 635, inclusive, on two or more consecutive Monthly Reports, the applicable
Advance Rate shall not be reduced by an amount equal to 5% for any Purchase
Period other than the first Purchase Period.
Affected Party: As defined in Section 2.17(a) of the Credit Agreement.
Affiliate: As to any specified Person, any other Person controlling or
controlled by or under common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" or "controlled" have meanings
correlative to the foregoing.
Aggregate Purchase Price: (i) the sum of the Purchase Prices of all
Purchased Contracts sold on all Purchase Dates minus (ii) the sum of all the
Repurchase Prices of all Purchased Contracts repurchased by the Seller on all
Repurchase Dates.
Alternative Rate: With respect to (i) the VFCC Lenders, as defined in
Annex A to the Credit Agreement, (ii) the Eiffel Lenders, as defined in Annex B
to the Credit Agreement and (iii) any other Lender, as defined on such Lender's
applicable Lenders Annex.
Alternative Rate Loan: Any Loan that is not funded with Commercial Paper
Notes, including, without limitation, any Loan from and after the time, if any,
when any Conduit Lender transfers such Loan, or borrows to finance such Loan,
under its Liquidity Agreement.
Alternate Servicing Plan: The plan, in form and substance satisfactory to
the Controlling Party, pursuant to which the Seller and the Servicer provide for
a successor servicer to perform all of the obligations of the Seller as initial
Servicer.
Annual Percentage Rate: The annual rate of interest applicable to each
Contract, as disclosed therein.
Annual Report: As defined in Section 8.3(c) of the Sale Agreement.
Applicable Law: For any Person, all existing and future applicable laws,
rules, regulations (including proposed, temporary and final income tax
regulations), statutes, treaties, codes, ordinances, permits, certificates,
orders and licenses of and interpretations by any Governmental Authority
(including, without limitation, usury laws, the Federal Truth in Lending Act,
and Regulation Z and Regulation B of the Board of Governors of the Federal
Reserve System), and applicable judgments, decrees, injunctions, writs, orders,
or like action of any
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court, arbitrator or other administrative, judicial, or quasi-judicial tribunal
or agency of competent jurisdiction.
Applicable Margin: 0.35% with respect to the CP Rate and 0.70% per annum
with respect to the Alternative Rate.
Approvals: As defined in Section 2.1(a), 2.4(a) and 2.7(a) of the
Insurance Agreement.
Assignment and Acceptance: An assignment and acceptance entered into by a
Lender and an Eligible Assignee, and accepted by the related Group Agent, in
substantially the form of Exhibit H hereto.
Available Funds: On any day, the aggregate amount of funds available to
Recco on such day from proceeds of Loans plus, without duplication, Deposited
Funds.
Average Cost of Funds: An amount equal to the aggregate cost of funds
(including the interest or discount component of Commercial Paper and including
the Facilities Costs and certain amounts paid under the Fee Letters as set forth
therein) incurred by the Lenders, with respect to the funding of the Loans for
any Determination Period, as determined by each Group Agent for its respective
Group.
Bank Accounts: Collectively, the Lock-Boxes, the Clearing Account and the
Collection Account and all Permitted Investments in such accounts.
Bankruptcy Code: Title 11 of the United States Code (11 U.S.C. Section 101
et seq), as amended and in effect from time to time, or any successor statute.
Bankruptcy Event: With respect to a Person, (a) such Person or any of its
Subsidiaries (if any) shall commence any case, proceeding or other action (i)
under any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking
to have an order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (ii) seeking appointment of a receiver, trustee,
custodian or other similar official for it or for all or any substantial part of
its assets, or such Person or any of its Subsidiaries shall make a general
assignment for the benefit of its creditors; or (b) there shall be commenced
against such Person or any of its Subsidiaries any case, proceeding or other
action of a nature referred to in clause (a) above which (i) results in the
entry of an order for relief or any such adjudication or appointment or (ii)
remains undismissed, undischarged or unbonded for a period of sixty (60) days;
or (c) there shall be commenced against such Person or any of its Subsidiaries
any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order for any
such relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within sixty (60) days from the entry thereof; or (d) such Person
or any of its Subsidiaries shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the acts set
forth in clause (a), (b), or (c) above; or (e) such Person or any of its
Subsidiaries shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due.
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Base Rate: With respect to any Loan, the Base Rate as defined in the
Lenders Annex related to the Lender holding such Loan.
Blanket Policy: An Insurance Policy maintained by the Seller and Recco
providing all risk, physical damage and theft insurance with respect to each
Vehicle, or such other insurance approved by the Controlling Party.
Borrowing Base: On any day, an amount equal to the product of (a) the
Advance Rate on such day and (b) the Adjusted Eligible Contracts Balance on such
day.
Borrowing Base Deficiency: On any day, the excess, if any, of the
Outstanding Principal Amount of Loans on such day over the Borrowing Base.
Borrowing Date: Any Business Day specified in a notice pursuant to Section
2.3 of the Credit Agreement as a date on which Recco requests the Lenders to
make Loans thereunder.
Breakage Costs: As defined in Section 2.18 of the Credit Agreement.
BT: Deutsche Bank Trust Company Americas (formerly known as Bankers Trust
Company), acting solely in its capacity as trustee of the several Recco grantor
trust auto loan securitizations pursuant to Pooling and Servicing Agreements
among Onyx, Recco and Deutsche Bank Trust Company Americas (formerly known as
Bankers Trust Company).
Business Day: A day of the year on which banks are not required or
authorized to close in New York City or Charlotte, North Carolina and on which
the New York Stock Exchange is open.
Capital Stock: Any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants or options to purchase any of the foregoing.
CDC FP: CDC Financial Products Inc., a Delaware corporation, and its
successors.
Change of Control: A change resulting when any Unrelated Person or any
Unrelated Persons, acting together, that would constitute a Group together with
any Affiliates or Related Persons thereof (in each case also constituting
Unrelated Persons) shall at any time either (i) Beneficially Own more than 50%
of the aggregate voting power of all classes of Voting Stock of Onyx or (ii)
succeed in having sufficient of its or their nominees elected to the Board of
Directors of Onyx such that such nominees when added to any existing director
remaining on the Board of Directors of Onyx after such election who is an
Affiliate or Related Person of such Person or Group, shall constitute a majority
of the Board of Directors of Onyx. As used herein, (a) "Beneficially Own" shall
mean "beneficially own" as defined in Rule 13d-3 of the Exchange Act, or any
successor provision thereto; provided, however, that, for purposes of this
definition, a Person shall not be deemed to Beneficially Own securities tendered
pursuant to a tender or exchange offer made by or on behalf of such Person or
any of such Person's Affiliates until such tendered securities are accepted for
purchase or exchange; (b) "Group" shall mean a "group" for purposes of Section
13(d) of the Exchange Act; (c) "Unrelated Person" shall mean at any time
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any Person other than Onyx or any of its Subsidiaries and other than any trust
for any employee benefit plan of Onyx or any of its Subsidiaries; (d) "Related
Person" shall mean any other Person owning (1) 5% or more of the outstanding
common stock of such Person or (2) 5% or more of the Voting Stock of such
Person; and (e) "Voting Stock" of any Person shall mean the capital stock or
other indicia of equity rights of such Person which at the time has the power to
vote for the election of one or more members of the Board of Directors (or other
governing body) of such Person.
Clearing Account: Account No. 4159359173 maintained at Xxxxx Fargo Bank.
Closing Date: January 29 2004
Code: The United States Internal Revenue Code of 1986, as amended.
Collateral: As defined in Section 2 of the Security Agreement.
Collateral Agent: JPMorgan Chase Bank and its successors as Collateral
Agent pursuant to the Security Agreement.
Collateral Agent Lien Release Certificate: The lien release certificate to
be delivered by the Collateral Agent to Recco in accordance with Section 23(b)
of the Security Agreement, in the form attached thereto as Exhibit B.
Collection Account: As defined in Section 2.8 of the Credit Agreement.
Collection Account Agreement: The Collection Account Agreement dated
January 9, 2003 among Recco, Onyx, the Collateral Agent and Xxxxx Fargo Bank and
acknowledged by XLCA, as the same may be amended, supplemented or otherwise
modified from time to time.
Collections: All amounts (including, without limitation, Recoveries) due
and owing on, or otherwise received by the Seller, the Servicer or Recco in
respect of the Purchased Contracts and the Vehicles.
Commercial Paper, CP Notes, Commercial Paper Note or CP Note: The
short-term promissory notes of a Conduit Lender denominated in dollars and
issued in respect of the Program.
Commission: The Securities and Exchange Commission, and its successors.
Commitment Period: The period from and including January 29, 2004 to but
not including the Commitment Termination Date.
Commitment Termination Date: The earliest of (a) the Scheduled Termination
Date, (b) the Wind-Down Date and (c) the date on which the Administrative Agent
and each Group Agent receives written notice from the Seller pursuant to Section
6.1 of the Sale Agreement.
Committed Lender: As defined in the preamble of the Credit Agreement.
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Commonly Controlled Entity: The Seller or the Servicer, as the case may
be, and each entity, whether or not incorporated, which is affiliated with any
of the foregoing pursuant to Section 414(b), (c), (m) or (o) of the Code.
Complete Servicing Transfer: The transfer of the servicing, administration
and collection functions from the Servicer to a Successor Servicer after a
Servicer Termination Notice has been given.
Conduit Lender: As defined in the preamble of the Credit Agreement.
Consenting Lenders: As defined in Section 2.4(b) of the Credit Agreement.
Consent Period: As defined in Section 2.4(b) of the Credit Agreement
Contract: Each retail installment sale contract for a Vehicle that is
purchased by the Seller from a Vehicle Dealer (or subject to the conditions set
forth in Section 4.2(i) of the Sale Agreement, from ABNI, Inc.) or a loan made
by the Seller to an Obligor to finance the purchase of a Vehicle, any amendment,
supplement or modification thereto, and all rights and obligations thereunder.
Contract Information: Any written information with respect to the
Contracts, or any portion thereof, including, without limitation, information
contained in any Daily Report, Monthly Report or Annual Report provided by
either (a) the Servicer, if the Seller or any of its Affiliates is the Servicer,
to Recco, the Administrative Agent, the Group Agents, the Collateral Agent or
the Surety Provider or (b) the Seller, if the Seller or any of its Affiliates is
no longer the Servicer, to the Servicer, Recco, the Administrative Agent, the
Group Agents, the Collateral Agent or the Surety Provider.
Contract List: Each schedule of Contracts delivered by the Seller to
Recco, the Lenders, the Administrative Agent, the Group Agents, the Surety
Provider and the Collateral Agent with respect to each Purchase Date
identifying, in such detail as such parties may require, each Contract being
sold by the Seller to Recco and pledged by Recco to the Collateral Agent
organized by the name of the Obligor and the state in which the Obligor's
billing address is located and setting forth the weighted average Annual
Percentage Rate of such Contracts and for each such Contract: (i) a number
identifying the Contract, (ii) the original amount financed under such Contract,
(iii) the Annual Percentage Rate under such Contract within 0.125%, (iv) the
maturity of the Contract term and (v) the amount of the Obligor's monthly
payment.
Contractual Obligation: As to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound.
Controlling Party: XLCA, so long as no Insurer Default shall have occurred
and be continuing, and in the event an Insurer Default shall have occurred and
be continuing, the Group Agents collectively, provided, however, that the Group
Agents shall also be the Controlling Party after all amounts due to XLCA have
been paid and the Surety Bond has expired in accordance with its terms.
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Counterparty Hedge Termination Amounts: Any termination payments owing by
Recco to the counterparty of any Hedge Agreement where such counterparty is the
Defaulting Party or an Affected Party as defined in such Hedge Agreement.
CP Loan: A Loan made by a Conduit Lender at any time that is funded or
maintained with the proceeds of Commercial Paper Notes.
CP Rate: With respect to (i) VFCC, as defined in Annex A to the Credit
Agreement, (ii) Eiffel, as defined in Annex B to the Credit Agreement and (iii)
any other Conduit Lender, the CP Rate set forth in the Lenders Annex related to
such Conduit Lender.
Credit Agreement: The Credit Agreement, as defined on the first page of
this Definitions List.
Credit and Collection Policy: The Servicer's credit and collection
policies as set forth as Exhibit I to the Sale Agreement, as amended, modified
or supplemented pursuant to amendments, modifications or supplements with
respect to which the Controlling Party provided its prior written consent.
Daily Report: The report delivered by the Servicer on each Purchase Date
pursuant to Section 8.7 of the Sale Agreement, substantially in the form of
Exhibit G thereto.
Dealer Assignment: Any agreement between the Seller and the Vehicle Dealer
pursuant to which a Contract or security interest in the related Vehicle has
been transferred, sold or assigned by such Vehicle Dealer to the Seller.
Dealer or Commercial Paper Dealer: Any dealer or placement agent of the
Commercial Paper Notes.
Debt: Of a Person on any day, the sum on such day of (a) indebtedness for
borrowed money or for the deferred purchase price of property or services, or
evidenced by bonds, notes or other similar instruments, (b) obligations as
lessee under leases which shall have been or should be, in accordance with GAAP,
recorded as capital leases, and (c) obligations under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise) to purchase
or otherwise acquire, or otherwise to assure a creditor against loss in respect
of, indebtedness or obligations of others of the kinds referred to in clause (a)
or (b) above.
Default: Any event which results, or which with the giving of notice or
the lapse of time or both would result, in an Event of Default.
Default Rate: A fluctuating interest rate equal to 2.00% per annum above
the Base Rate in effect from time to time.
Defaulted Contract: Any Contract (a) that has been written off by the
Servicer in accordance with the terms of the Credit and Collection Policy or
which, pursuant to the terms of the Credit and Collection Policy, should have
been written off by the Servicer as of the related date of determination or (b)
for which a Scheduled Payment of principal or interest is 120 or more days past
due.
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Delinquent Contract: Any Contract for which a Scheduled Payment of
principal or interest is thirty (30) or more days past due.
Deposited Funds: At any time, all principal collections on deposit in or
otherwise to the credit of the Collection Account.
Determination Date: With respect to any Determination Period, the fifth
Business Day following the last day of such Determination Period.
Determination Period: The period from the first day of each calendar month
through the last day of that calendar month, inclusive.
Dollars and $: Lawful money of the United States of America.
Effective Date: The date on which the conditions set forth in Section 4.1
of the Credit Agreement have been satisfied.
Eiffel: Eiffel Funding, LLC, a Delaware limited liability company.
Eiffel Commitment: With respect to the Eiffel Lending Group, $150,000,000,
as such amount may be reduced pursuant to Section 2.9 of the Credit Agreement.
Eiffel Group Agent: CDC FP, its successors and assigns, as Group Agent for
the Eiffel Lenders.
Eiffel Lenders: Eiffel and CDC FP, and their successors and assigns.
Eiffel Liquidity Agreement: The Eiffel Liquidity Agreement, as defined on
the first page of this Definitions List.
Eiffel Loan: A Loan held by an Eiffel Lender pursuant to the Credit
Agreement.
Eiffel Note: The Lender Note issued to the Eiffel Lenders substantially in
the form of Exhibit I to the Eiffel Lenders Annex attached.
Eiffel Outstanding Principal Amount: On any day, with respect to the
Eiffel Loans, the outstanding principal amount of such Eiffel Loans, as
reflected on the Eiffel Note.
Eligible Assignee: (a) A Person whose short-term rating is at least A-1
from S&P and Prime-1 from Moody's, or whose obligations under this Agreement are
guaranteed by a Person whose short-term rating is at least A-1 from S&P and
Prime-1 from Moody's, or (b) such other Person satisfactory to Recco, the
related Group Agent and each of the rating agencies rating the Commercial Paper
Notes.
Eligible Contract: On any day, a Contract (a) that arises from the
completed delivery of a Vehicle to an Obligor which Vehicle has been accepted by
the Obligor, (b) that has been originated in the United States by, and that
arises in the ordinary course of the Seller's or the Vehicle Dealer's business
(or, subject to the conditions set forth in Section 4.2(i) of the Sale
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Agreement, from ABNI, Inc.'s business), (c) as to which each representation or
warranty of the Seller (applicable to such Contracts) made in Section 4.2 (other
than Section 4.2(a)) of the Sale Agreement is true and correct and has not been
breached, (d) that is not a Delinquent Contract or Defaulted Contract, (e) the
Obligor of which is a natural person residing in any state of the United States
or the District of Columbia, (f) the Obligor of which is not the United States
government or a state or municipal government subdivision or agency thereof and
is not an Affiliate of the Seller, (g) that is denominated and payable in
Dollars in the United States, (h) that has been fully and properly executed by
the parties thereto and is in full force and effect and represents the legal,
valid and binding obligation of the Obligor enforceable against the Obligor in
accordance with its terms, (except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles whether considered in proceedings in equity or at law), (i)
that is not subject to any dispute, litigation, counterclaim or defense, or any
offset or right of offset at the time of purchase by Recco, (j) that does not
contravene any Requirements of Law applicable thereto, (k) with respect to which
all required consents, approvals and authorizations have been obtained, (1) as
to which a valid and enforceable, first priority, perfected security interest in
the Vehicle securing such Contract has been assigned to Recco and which security
interest is in full force and effect and subject to no prior liens, claims or
encumbrances, (m) that contains customary and enforceable provisions, including
the right, as subject to or limited by applicable law, of the Seller to
accelerate all scheduled payments on a default of the Obligor, such that the
rights and remedies of the holder thereof are adequate for realization against
such collateral, (n) that provides for level monthly payments (provided that the
payment in the first and last month in the life of the Contract may be minimally
different from level payments) that fully amortize the amount financed by the
Contract over an original term not less than 12 months and no greater than 72
months, (o) which is freely assignable and transferable by the Seller, without
notice or consent of any Person, (p) for which there is not more than one
original executed Contract, (q) which, on the date of creation and time of
transfer under the Sale Agreement satisfied all applicable requirements of the
Credit and Collection Policy, (r) as to which Recco, after transfer of such
Contract pursuant to the Sale Agreement, has good and marketable title, free and
clear of any Lien, and (s) as to which the Vehicle is registered in a state of
the United States or the District of Columbia and has satisfied the
documentation requirements with respect to title set forth in clause (e) of the
definition of "File" herein.
Eligible Hedge: Interest Rate Hedge Mechanisms or similar instruments
approved by the Controlling Party which, taken as a whole, must include both a
swap and a cap, or similar instruments approved by the Controlling Party,
structured using the following assumptions and calculated utilizing the
spreadsheet attached hereto as Exhibit I (the "Hedge Spreadsheet"), as the same
may be modified from time to time by the Controlling Party and Recco:
(a) Swap Schedule Sizing: (i) Determined in accordance with the Hedge
Spreadsheet, (ii) sized utilizing an all-in ABS speed of 1.75 and (iii) in an
amount reasonably acceptable to the Controlling Party.
(b) Maximum Swap Fixed Payment Rate: Calculated as (i) the weighted
average Annual Percentage Rate on the Purchased Contracts minus (ii) 7.08%.
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(c) Cap Schedule Sizing: (i) Determined in accordance with the Hedge
Spreadsheet, (ii) sized at the difference between cap size for an ABS speed of
1.75 and the cap size for an ABS speed of 2.25 and (iii) in an amount reasonably
acceptable to the Controlling Party.
(d) Cap Strike Rate: Calculated as (i) the weighted average Annual
Percentage Rate on the Purchased Contracts minus (ii) 6.58%.
(e) Notional Amount: The Interest Rate Hedge Mechanisms together must
provide for a notional amount (i) prior to the Hedge Effective Date, at least
equal to the aggregate Outstanding Balance of the Purchased Contracts then owned
by Recco, (ii) on the Hedge Effective Date, within 1.00% of the aggregate
Outstanding Balance of the Purchased Contracts then owned by Recco and (iii)
following the Hedge Effective Date, on each payment date under the related
Interest Rate Hedge Mechanisms, within 1.00% of the aggregate Outstanding
Balance of the Purchased Contracts then owned by Recco.
(f) Pledge to Collateral Agent: Each Interest Rate Hedge Mechanism must
either name the Collateral Agent as beneficiary thereof or be pledged to the
Collateral Agent as collateral under the Security Agreement and provide that all
payments to be made by the counterparty thereunder following the Hedge Effective
Date will be made to the Collection Account for application pursuant to the
terms of the Security Agreement.
(g) ISDA Master Agreement and Schedule: Each Interest Rate Hedge Mechanism
must be entered into pursuant to an ISDA Master Agreement and Schedule in the
form attached hereto as Exhibit J, which provide that (i) if the Collateral
Agent is not the beneficiary thereof, all of Recco's rights (but none of its
obligations) under the Interest Rate Hedge Mechanism have been assigned to the
Collateral Agent as collateral under the Security Agreement and (ii) the
counterparty shall promptly notify the Collateral Agent and the Controlling
Party of any amendment, waiver, termination or other modification of such ISDA
Master Agreement or Schedule or any confirmation related thereto.
(h) Confirmations: No Confirmation entered into pursuant to an ISDA Master
Agreement and Schedule described in clause (g) may amend or alter the terms of
such ISDA Master Agreement and Schedule without the prior, written consent of
the Controlling Party.
(i) Hedge Effective Date: Each Confirmation to an Interest Rate Hedge
Mechanism must provide for a Hedge Effective Date that is reasonably acceptable
to the Controlling Party.
(j) Counterparty Ratings: The counterparty to each Interest Rate Hedge
Mechanism must be a Person the long-term debt obligations of which are rated in
one of the two highest long-term debt rating categories of each of S&P and
Moody's or is otherwise reasonably acceptable to the Controlling Party.
(k) Assignment Acknowledgement: The counterparty to each Interest Rate
Hedge Mechanism must have executed and delivered an Interest Rate Hedge
Assignment Acknowledgement to the Collateral Agent and to the Controlling Party.
(l) Controlling Party Approval: Each Interest Rate Hedge Mechanism must
otherwise be reasonably acceptable to the Controlling Party.
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Notwithstanding the foregoing, funds on deposit in a prefunding account
established in connection with an XLCA insured structured finance transaction
established by or on behalf of Onyx or an Affiliate of Onyx, to which the
Purchased Contracts will be sold (a "Securitization") will qualify as an
Eligible Hedge with respect to Purchased Contracts having an aggregate
Outstanding Balance less than or equal to the balance of funds on deposit in
such prefunding account so long as such Purchased Contracts satisfy the
eligibility criteria for sale to such Securitization and have been identified
for purchase by such Securitization, but only to the extent such funds on
deposit in such prefunding account are not serving as a hedge arrangement for
any other Onyx facility or program.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA Affiliate: With respect to any Person (a) any corporation which is a
member of the same controlled group of corporations (within the meaning of
Section 414(b) of the Code) as such Person, (b) a partnership or other trade or
business (whether or not incorporated) under common control (within the meaning
of Section 414(c) of the Code) with such Person, (c) a member of the same
affiliated service group (within the meaning of section 414(m) of the Code) as
such Person, any corporation described in clause (a) above or any partnership or
other trade or business described in clause (b) above or (d) any other Person or
entity which would be treated as a single employer with such Person under
Section 4001(b) of ERISA.
ERISA Termination Event: A Reportable Event, the filing of a notice of
intent to terminate under Section 4041(c) of ERISA or any other event or
condition which is reasonably likely to constitute grounds under Section 4042 of
ERISA for the termination of, or for the appointment of a trustee to administer,
any Plan.
Eurodollar Disruption Event: The occurrence of any of the following: (a) a
determination by a Lender that it would be contrary to law or to the directive
of any central bank or other governmental authority (whether or not having the
force of law) to obtain United States dollars in the London interbank market to
make, fund or maintain any Loan, (b) the failure of one or more of the Reference
Banks to furnish timely information for purposes of determining the Adjusted
Eurodollar Rate, (c) a good faith determination by a Lender in its reasonable
discretion that the rate at which deposits of United States dollars are being
offered to such Lender in the London interbank market does not accurately
reflect the cost to such Lender of making, funding or maintaining any Loan or
(d) the inability of a Lender to obtain United States dollars in the London
interbank market to make, fund or maintain any Loan.
Eurodollar Reserve Percentage: Of any Reference Bank for any period, the
percentage applicable during such period (or, if more than one such percentage
shall be so applicable, the daily average of such percentages for those days in
such period during which any such percentage shall be so applicable) under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for such Reference Bank with respect to
liabilities or assets consisting of or including "Eurocurrency Liabilities" (as
presently defined in Regulation D) having a term of one month.
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Event of Default: Any event of default specified in Section 5.1 of the
Insurance Agreement.
Expiration Date: The final date of the Term of the Surety Bond, as
specified in the Surety Bond.
Face Amount: When used with reference to Commercial Paper Notes being sold
at a discount, the face amount of any such Commercial Paper Note and when used
with respect to Commercial Paper Notes issued on an interest-bearing basis, the
principal amount of, plus the amount of all interest stated to accrue thereon to
the stated maturity date of, any such Commercial Paper Note.
Facilities Costs: The "XLCA Premium" under the Premium Letter, the
"Commitment Fee" under each Fee Letter and any other program fees.
Federal Funds Rate: With respect to (i) the VFCC Lenders, as defined in
Annex A of the Credit Agreement, (ii) the Eiffel Lenders, as defined in Annex B
of the Credit Agreement and (iii) any other Lender, as defined in the Lender
Annex for such Lender.
Fee Letters: The Premium Letter, the Lender Fee Letters, or any other fee
letter related to a Lending Group.
Fees: All fees or other amounts payable by Recco to any of the Lenders or
the Surety Provider.
File: With respect to each Contract to be purchased by Recco and each
Purchased Contract:
(a) the original Dealer Assignment, if any;
(b) the fully executed original of the Contract (together with any
agreements modifying the Contract) and the fully executed original of each
guaranty and other credit enhancement (if any) with respect thereto;
(c) documents evidencing or related to any Insurance Policy with respect
to a Vehicle, including proof of insurance as of the related Purchase Date with
respect to such vehicle;
(d) the original credit application of the Obligor, fully executed by
such Obligor, such application to be in a form substantially similar to that
included in the Credit and Collection Policy;
(e) either (i) the original Title Document for the related Vehicle or a
duplicate copy thereof (in cases where an original Title Document is not
provided by the Registrar of Titles) issued or certified by the Registrar of
Titles which issued the original thereof (or, with respect to certain of the
Vehicles, evidence of the electronic Title Document), together with evidence of
perfection of the security interest in the related Vehicle granted by such
Purchased Contract, as determined by the Servicer and the Controlling Party to
be permitted or required to perfect such
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security interest under the laws of the applicable jurisdiction, or (ii) written
evidence that the Title Document for such Vehicle showing Onyx or ABNI, Inc. as
first lienholder has been applied for; provided, that the items set forth in
clause (e)(i) of this definition may be stored separately from the other items
set forth in this definition;
(f) any and all other documents that the Seller keeps on file in
accordance with its procedures relating to the Contract, Obligor or Vehicle; and
(g) where the Vehicle being financed secures a Contract directly
originated by the Seller, a Vehicle Condition Report for such Vehicle.
File Custody Agreement: The File Custody Agreement dated January 9, 2003,
among Recco, Onyx, Onyx Acceptance Receivables Corporation, Xxxxxx DataBank and
the Collateral Agent, as the same may be amended, supplemented or otherwise
modified from time to time.
Finance Charges: Finance charges, late charges, and other fees, charges
and similar items with respect to Contracts.
Xxxxx: Onyx Acceptance Financial Corporation, a Delaware corporation, and
its successors.
Fiscal Agent: The Fiscal Agent, if any, designated pursuant to the terms
of the Surety Bond.
Fitch: Fitch, Inc., or its successor or in interest. References to Fitch
in any of the documents are only operative if Fitch has rated and is continuing
to rate, the Commercial Paper of any Conduit Lender.
Foreign Lender: Any Lender that is not a "United States person" within the
meaning of Section 7701(a)(30) of the Internal Revenue Code.
GAAP: Generally accepted accounting principles in effect from time to time
in the United States of America.
Governmental Authority: Any nation or government, any state or other
political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any body or entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, any court or arbitrator, and any accounting board or authority
(whether or not a part of government) which is responsible for the establishment
or interpretation of national or international accounting principles, in each
case whether foreign or domestic.
Gross Charge-Offs: For any Determination Period, the Outstanding Balance
of all Purchased Contracts that became Defaulted Contracts during such period.
Group Agents: With respect to (i) the Eiffel Lenders, the Eiffel Group
Agent, (ii) the VFCC Lenders, the VFCC Group Agent and (iii) any other Lending
Group, the Person named as Group Agent in the agreement by which such Lending
Group's Lenders became parties to the Credit Agreement.
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Group Commitment: The Eiffel Commitment, the VFCC Commitment and the
commitment of any additional Lending Group under the Credit Agreement.
Group Outstanding Principal Amount: With respect to (i) the Eiffel
Lenders, the Eiffel Outstanding Principal Amount, (ii) the VFCC Lenders, the
VFCC Outstanding Principal Amount and (iii) any other Lenders, the outstanding
principal amount of the Loans held by the Lenders of such Lending Group.
Hedge Agreement: An interest rate swap agreement and an interest rate cap
agreement, including any Interest Rate Hedge Mechanism, in form and substance
satisfactory to the Controlling Party.
Hedge Agreement Reserve Account: The account designated as such,
established by the Issuer and maintained by the Collateral Agent pursuant to
Section 2.16(a).
Hedge Agreement Reserve Account Required Amount: With respect to any
Determination Date on and after the Hedge Trade Date for a Hedge Agreement, an
amount equal to $180,000.00; provided, that the Hedge Agreement Reserve Account
Required Amount on any Determination Date after the termination of each Hedge
Agreement shall be zero.
Hedge Agreement Reserve Account Withdrawal Amount: With respect to each
Determination Date, the lesser of (x) the Hedge Payment Shortfall and (y) and
the amount on deposit in the Hedge Agreement Reserve Account for such
Determination Date.
Hedge Effective Date: The "Effective Date" specified in the related
confirmation with respect to any Interest Rate Hedge Mechanism.
Hedge Payment Shortfall: As defined in Section 2.16(b) of the Credit
Agreement.
Hedge Trade Date: The "Trade Date" specified in the related confirmation
with respect to any Interest Rate Hedge Mechanism.
Indebtedness: With respect to any Person at any time, (a) indebtedness or
liability of such Person for borrowed money whether or not evidenced by bonds,
debentures, notes or other instruments, or for the deferred purchase price of
property or services (including trade obligations); (b) obligations of such
Person as lessee under leases which should have been or should be, in accordance
with GAAP, recorded as capital leases; (c) current liabilities of such Person in
respect of unfunded vested benefits under plans covered by Title IV of ERISA;
(d) obligations issued for or liabilities incurred on the account of such
Person; (e) obligations or liabilities of such Person arising under acceptance
facilities; (f) obligations of such Person under any guarantees, endorsements
(other than for collection or deposit in the ordinary course of business) and
other contingent obligations to purchase, to provide funds for payment, to
supply funds to invest in any Person or otherwise to assure a creditor against
loss; (g) obligations of such Person secured by any Lien on property or assets
of such Person, whether or not the obligations have been assumed by such Person;
or (h) obligations of such Person under any interest rate or currency exchange
agreement.
Indemnified Amounts: As defined in Section 7.1 of the Sale Agreement.
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Indemnified Party: As defined in Section 7.1 of the Sale Agreement.
Independent: When used with respect to any accountant means an accountant,
who may be the accountant who audits the books of Recco or Onyx, who is
independent with respect to Recco or Onyx within the meaning of the Code of
Professional Ethics of the American Institute of Certified Public Accountants.
Whenever it is herein provided that any Independent Person's opinion or
certificate shall be furnished to any party, such opinion or certificate shall
state that the signer has read this definition and that the signer is
Independent within the meaning hereof.
Ineligible Contracts: Any Contract sold by the Seller and purchased by
Recco as an Eligible Contract that, (a) subsequent to the Purchase Date of such
Contract, is determined not to have conformed to the definition of Eligible
Contracts on such Purchase Date or (b) on the 180th day after its purchase by
Recco, the File for which does not contain a Title Document for the related
Vehicle if, on the date of such purchase by Recco, such File contained an
application therefor in lieu of such Title Document.
Insolvency: With respect to any Multiemployer Plan, the condition that
such plan is insolvent within the meaning of Section 4245 of ERISA.
Insolvency Law: Existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, rehabilitation, reorganization,
legislation or relief of debtors.
Insolvent: Pertaining to a condition of Insolvency.
Insurer Default Premium: As defined in the Premium Letter.
Insurance Agreement: The Insurance Agreement, as defined on the first page
of this Definitions List.
Insurance Policies: All insurance policies, including, without limitation,
the Blanket Policy, covering physical damage, theft, mechanical breakdown or
similar event with respect to a Vehicle or loss of such Vehicle or credit life
or credit disability insurance with respect to payments due on a Contract or
otherwise benefiting the holder of the Contracts.
Insurer Default: The existence and continuance of any of the following:
(a) a failure by the Surety Provider to make a payment when or as required under
the Insurance Agreement in accordance with its terms or under the Surety Bond in
accordance with its terms; or (b) (i) the Surety Provider (A) files any petition
or commences any case or proceeding under any provision or chapter of the
Bankruptcy Code or any other Insolvency Law, (B) makes a general assignment for
the benefit of its creditors, or (C) has an order for relief entered against it
under the Bankruptcy Code or any other Insolvency Law which is final and
nonappealable; or (ii) a court of competent jurisdiction, the New York
Department of Insurance or other competent regulatory authority enters a final
and nonappealable order, judgment or decree (A) appointing a custodian, trustee,
agent or receiver for the Surety Provider or for all or any material portion of
its property or (B) authorizing the taking of possession by a custodian,
trustee, agent or receiver of the Surety Provider, or the taking of possession
of all or any material portion of the property of the Surety Provider.
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Insurer Fee: As defined in the Premium Letter.
Intercreditor Agreement: The Intercreditor Agreement dated January 9,
2003, and amended by the First Amendment to Intercreditor Agreement dated
January 29, 2004, between the Collateral Agent and Capital Markets Assurance
Corporation, and acknowledged by Onyx, Recco, Finco, CapMac Financial Services,
Inc., Triple-A One Funding Corporation, XLCA, Eiffel, CDC FP, VFCC, Wachovia
Bank and Wachovia Securities, as further amended, supplemented or otherwise
modified from time to time.
Interest Period:
With respect to any CP Loan, each calendar month; or
With respect to any Alternative Rate Loan: (i) initially, the period
commencing on the date of the initial funding of such Loan and ending on (but
excluding) the Business Day immediately preceding the next following Scheduled
Interest Payment Date, and (ii) thereafter, each period commencing on (and
including) the Business Day immediately preceding a Scheduled Interest Payment
Date and ending on (but excluding) the Business Day immediately preceding the
next following Scheduled Interest Payment Date.
Notwithstanding the foregoing, if any Interest Period for any Loan that
commences before the Commitment Termination Date would otherwise end on a date
occurring after such Commitment Termination Date, such Interest Period shall end
on such Commitment Termination Date and the duration of each such Interest
Period that commences on or after the Commitment Termination Date, if any, shall
be of such duration as shall be selected by a Group Agent with respect to its
Lending Group.
Interest Rate Hedge Assignment Acknowledgment: An acknowledgment in
substantially the form of Exhibit G to the Credit Agreement executed by a
counterparty to an Interest Rate Hedge Mechanism in favor of the Administrative
Agent, the Group Agents, the Surety Provider and the Collateral Agent.
Interest Rate Hedge Mechanisms: Such agreement or combination of
agreements, including without limitation, interest rate swaps, interest rate cap
agreements, forward contracts and hedge mechanisms, and any appropriate
ancillary agreements, executed copies of which shall be delivered to the
Collateral Agent, the Surety Provider, the Administrative Agent and the Group
Agents and shall be satisfactory to Moody's, S&P and the Controlling Party, in
accordance with Section 5.14 of the Credit Agreement; provided, however, that
such Interest Rate Hedge Mechanism shall be an Eligible Hedge.
Investment Company Act: The Investment Company Act of 1940, including,
unless the context otherwise requires, the rules and regulations thereunder, as
amended from time to time.
IRS: The Internal Revenue Service, and its successors.
Joinder Agreement: An agreement between Recco, the Administrative Agent,
the Lenders in an Additional Lending Group and the related Group Agent,
substantially in the form of Exhibit K hereto.
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Late Payment Rate: The lesser of (a) the greater of (i) the Prime Rate
plus 2% from time to time (any change in such rate of interest to be effective
on the date such change is published) and (ii) the then applicable highest rate
of interest on the Lender Notes and (b) the maximum rate permissible under
applicable usury or similar laws limiting interest rates. The Late Payment Rate
shall be computed on the basis of a 360 day year for the actual number of days
elapsed for such period. The Late Payment Rate shall be calculated by the
Controlling Party and evidenced by a certificate of the Surety Provider
delivered to the Group Agents, the Collateral Agent and Recco.
Lenders Annex: With respect to (i) the VFCC Lenders, Annex A to the Credit
Agreement, (ii) the Eiffel Lenders, Annex B to the Credit Agreement and (iii)
any other Lending Group, an annex to the agreement by which such Lending Group's
Lenders become parties to the Credit Agreement.
Lender Fee Letter: The Fee Letter among Recco, the Eiffel Group Agent and
the VFCC Group Agent, dated as of the Closing Date, as such may be amended,
modified or supplemented from time to time.
Lender Note: As defined in Section 2.2 of the Credit Agreement.
Lenders: The Eiffel Lenders, the VFCC Lenders, and any other Conduit
Lender or Committed Lenders from time to time party to the Credit Agreement.
Lending Group: The Eiffel Lenders, the VFCC Lenders and any other related
group of Conduit Lenders and Committed Lenders who become parties to the Credit
Agreement as a distinct "Lending Group."
LIBOR Rate: With respect to (i) the VFCC Lenders, as defined in Annex A of
the Credit Agreement, (ii) the Eiffel Lenders, as defined in Annex B of the
Credit Agreement and (iii) with respect to any other Lending Group, as defined
on the Lenders Annex related to such Lending Group.
LIBOR Rate Loan: Any Loan held by a Lender that is funded at the LIBOR
Rate for such Lender.
Lien: Any lien, mortgage, security interest, pledge, hypothecation,
charge, equity, encumbrance or right of any kind whatsoever (except any lien,
mortgage, security interest, pledge, hypothecation, charge, equity, encumbrance
or right of any kind granted under the Sale Agreement, the Credit Agreement or
the Security Agreement with respect to the Purchased Contracts); provided
however, that the term "Lien" shall not include any lien, mortgage, security
interest, pledge, hypothecation, charge, equity, encumbrance or right of any
kind whatsoever granted upon any Purchased Contract which has been released by
the Collateral Agent and the Seller pursuant to the terms and conditions of
Section 23(b) of the Security Agreement and Section 19(b) of the Subordinated
Security Agreement.
Lien Release Request Certificate: The Lien Release Request Certificate to
be delivered by Recco to the Collateral Agent in accordance with Section 23(b)
of the Security Agreement, in
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the form attached thereto as Exhibit A and to the Seller in accordance with
Section 19(b) of the Subordinated Security Agreement in the form attached
thereto as Exhibit A.
Liquidation Day: The Commitment Termination Date and each day thereafter.
Liquidity Agreement: Each of the Eiffel Liquidity Agreement and the VFCC
Liquidity Agreement, as defined on the first page of this Definitions List or
any other liquidity agreement between a Conduit Lender and its related liquidity
provider.
Loan: As defined in Section 2.1 of the Credit Agreement.
Lock-Box: A lock-box or account to which Obligors remit Collections.
Lock-Box Agreement: As defined in Section 6.21 of the Credit Agreement.
Lock Box Bank: Any institution at which a Lock-Box is kept.
Managed Contract: A Contract serviced by Onyx, whether a Purchased
Contract, a Contract owned by Onyx or otherwise.
Mandatory Payment Date: As defined in Section 2.5(a) of the Credit
Agreement.
Material Adverse Effect: (i) In respect of Recco or the Seller, as
applicable, a material adverse effect on the financial condition, operations or
business of Recco or the Seller, as applicable, or a material adverse effect on
the ability or right of Recco or the Seller, as applicable, to perform its
obligations under any Operative Document, (ii) any impairment of the ability or
right of, the Administrative Agent, the Group Agents, the Lenders or the Surety
Provider to enforce any Operative Document, or (iii) a material adverse effect
on the Collateral or the Purchased Contracts or the perfection or priority of
the Collateral Agent's security interest therein.
Maximum Commercial Paper Amount: At any time of determination thereof,
after giving effect to the application of proceeds of Commercial Paper to be
sold on such date, an amount equal to (a) the Maximum Program Amount at such
time minus (b) the aggregate principal amount of all Loans then outstanding
minus (c) the aggregate unreimbursed amount drawn on the Surety Bonds at such
time.
Maximum Program Amount: At any time, the lesser of (a) the Total
Commitment then in effect and (b) the sum, at such time, of (i) the amount of
Deposited Funds plus (ii) the Borrowing Base.
Maximum Seller Interest: At any time, 2% of the Aggregate Purchase Price.
Maximum Subordinated Interest: At any time, 8% of the Aggregate Purchase
Price.
Monthly Report: The report to be delivered by the Servicer pursuant to
Section 8.8 of the Sale Agreement, substantially in the form of Exhibit H
thereto.
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Moody's: Xxxxx'x Investors Service, Inc. or its successor in interest.
References to Moody's in any of the documents are only operative if Moody's has
rated, and is continuing to rate, Commercial Paper of any Conduit Lender.
Multiemployer Plan: A Plan which constitutes a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA.
Multiple Employer Plan: A Plan which (a) is maintained for employees of
the Seller or any of its ERISA Affiliates and at least one Person other than the
Seller and its ERISA Affiliates or (b) was so maintained and in respect of which
the Seller or any of its ERISA Affiliates could have liability under Sections
4063, 4064 or 4069 of ERISA in the event such Plan has been or were to be
terminated.
Net Advance Rate: On any day, the percentage equivalent of a fraction, the
numerator of which is the Borrowing Base on such day and the denominator of
which is the Outstanding Balance of all Purchased Contracts on such day.
Net Charge-Offs: For any Determination Period, the Gross Charge-Offs for
such period minus the Recoveries received by Recco for such period.
Net Yield: On any day, the percentage equivalent of (a) twelve multiplied
by (b) a fraction the numerator of which is equal to (i) the aggregate of all
Finance Charges collected on Purchased Contracts during the three immediately
preceding Determination Periods (including Finance Charges and interest on
account of such Purchased Contracts collected and subsequently transferred in
connection with a securitization transaction) minus (ii) the sum of (A) the
aggregate of all Net Charge-Offs for such three Determination Periods and (B)
the sum of the Average Cost of Funds for such three Determination Periods, and
the denominator of which is equal to the sum of the average daily Outstanding
Balances of all Purchased Contracts for each of such three immediately preceding
Determination Periods.
Notice of Borrowing: As defined in Section 2.3 of the Credit Agreement.
Notice of Wind-Down: A notice to Recco, the Servicer, and the Seller from
the Administrative Agent or any Group Agent and given at the direction of the
Controlling Party to the effect that one (1) or more Wind-Down Events has
occurred and is continuing and that such notice shall be deemed to be a "Notice
of Wind-Down."
Obligations: All the Outstanding Principal Amount of, and interest on
(including interest accruing on or after any Bankruptcy Event, whether or not a
claim for post-filing or post-petition interest is allowed in a proceeding
relating thereto, and interest on overdue interest) the Lender Notes and all
other obligations and liabilities of Recco to the Lenders, the Collateral Agent,
the Surety Provider, the Administrative Agent, Group Agents or a counterparty
under an Interest Rate Hedge Mechanism whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, the Credit Agreement, the
Insurance Agreement, the Lender Notes or the Security Agreement and any other
Operative Document or document executed and delivered in connection therewith
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs,
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expenses (including, without limitation, all fees and disbursements of counsel
to the Lenders, the Collateral Agent, the Group Agents or the Surety Provider)
or otherwise.
Obligor: Each Person who is indebted on a Contract.
Onyx: Onyx Acceptance Corporation, a Delaware corporation, and its
successors.
Operative Documents: The collective reference to the Amended and Restated
Credit Agreement, the Sale Agreement, the Collection Account Agreement, the Fee
Letters, the Security Agreement, the Lender Notes, the Subordinated Note, the
Seller Note, the Surety Bond, the Insurance Agreement, the Subordinated Security
Agreement, the File Custody Agreement, the Security Interest Notice, the
Intercreditor Agreement, any documents related to Interest Rate Hedge Mechanisms
and any other agreement or instrument related or delivered to any party to any
of the foregoing pursuant to or in connection with any of the foregoing.
Original Borrowing Date: The date on which Recco made its initial purchase
pursuant to the Original Sale Agreement.
Original Credit Agreement: As defined in the preamble to the Credit
Agreement.
Original Sale Agreement: As defined in the preamble to the Sale Agreement.
Other Conveyed Property: All property conveyed by the Seller to Recco
pursuant to the Sale Agreement other than the Purchased Contracts.
Outstanding Commercial Paper Note: When used with reference to any
Commercial Paper Note, at the time of any determination thereof, any Commercial
Paper Note authenticated and issued pursuant to and in accordance with the
Issuing and Paying Agreement, except (a) any Commercial Paper Note paid upon or
following its maturity as provided in such Commercial Paper Note, and (b) any
Commercial Paper Note as to which funds for payment have been deposited with,
and are being held by, the Issuing and Paying Agent in the Issuing and Paying
Agent Account.
Outstanding Balance: On any day, with respect to any Contract, the
outstanding principal amount due and owing on such Contract on such day.
Outstanding Extensions of Credit: On any day, the aggregate on such day
(after giving effect to the issuance of Commercial Paper Notes on such day and
the use of proceeds thereof) of (a) the Face Amount of the Outstanding
Commercial Paper Notes, (b) the outstanding principal amount of Loans, and (c)
the unreimbursed drawings under the Surety Bonds.
Outstanding Principal Amount: On any day, with respect to the Loans, the
sum of the Group Outstanding Principal Amounts on such day, as reflected on the
Lender Notes.
Paperless Title System: The Electronic Lien and Title system of the
California Department of Motor Vehicles or other electronic title systems used
by departments of motor vehicles in other jurisdictions.
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Payment Date: With respect to each Purchase Date, the date on which
payment is made pursuant to Section 2.2 of the Sale Agreement with respect to
Contracts acquired by Recco on such Purchase Date.
PBGC: The Pension Benefit Guaranty Corporation established under ERISA,
and its successors.
Permitted Investments: Book-entry securities, negotiable instruments or
securities represented by instruments in bearer or registered form which
evidence:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment by, the United States of America;
(ii) demand deposits, time deposits or certificates of deposit of
any depository institution or trust company incorporated under the laws of
the United States of America or any state thereof (or any domestic branch
of a foreign bank) and subject to supervision and examination by Federal
or State banking or depository institution authorities; provided, however,
that at the time of the investment, the commercial paper or other
short-term unsecured debt obligations (other than such obligations the
rating of which is based on the credit of a person other than such
depository institution or trust company) thereof shall have a credit
rating from each of S&P and Moody's at least as high as the ratings by
such agencies of the Commercial Paper;
(iii) commercial paper having, at the time of the investment, a
rating from each of S&P and Moody's at least as high as the ratings by
such agencies of the Commercial Paper;
(iv) investments in money market or common trust funds having a
rating from S&P of at least Am or Am-G and from Moody's at least as high
as the ratings by Moody's of the Commercial Paper;
(v) demand deposits, time deposits and certificates of deposit
which are fully insured by the Federal Deposit Insurance Corporation;
(vi) bankers' acceptances issued by any depository institution or
trust company referred to in clause (ii) above; and
(vii) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of America
or any agency or instrumentality thereof, the obligations of which are
backed by the full faith and credit of the United States of America, in
either case entered into with a depository institution or trust company
(acting as principal) the deposits of which are insured by the Federal
Deposit Insurance Corporation.
Person: An individual, a partnership, a corporation, a limited liability
company, a business trust, a joint stock company, a trust, an unincorporated
association, a joint venture, a Governmental Authority or other entity of
whatever nature.
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Plan: Any employee benefit plan defined in Section 3(3) of ERISA in
respect of which Recco, the Seller or any ERISA Affiliate thereof is or at any
time within the immediately preceding five years was an "employer" as defined in
Section 3(5) of ERISA or may have, or in the past five years have had,
liability, including but not limited to liability as a substantial employer,
within the meaning of Section 4063 of ERISA and liability as a contributing
sponsor under Section 4069 of ERISA.
Premium: The premium payable in accordance with Section 3.2 of the
Insurance Agreement and the Premium Letter.
Premium Letter: As defined on the first page of this Definitions List.
Prepayment Amount: As defined in Section 22(b) of the Security Agreement.
Prime Rate: With respect to (i) the VFCC Lenders, as defined in Annex A of
the Credit Agreement, (ii) the Eiffel Lenders, as defined in Annex B of the
Credit Agreement and (iii) any other Lending Group, the Prime Rate as defined in
the related Lenders Annex.
Principal Portion: With respect to Commercial Paper, the Face Amount of
such Commercial Paper less the imputed interest and any fees applicable to the
Dealer associated therewith.
Proceeds: As defined in the UCC.
Program: The financing arrangements provided for in the Operative
Documents.
Purchase: Each purchase by Recco of Contracts pursuant to the terms of the
Sale Agreement.
Purchase Date: Each Business Day on which any Contract is acquired by
Recco pursuant to the terms of the Sale Agreement.
Purchase Period: The period from and including the Closing Date to and
including the first Determination Date and, thereafter, the period from but
excluding any Determination Date to and including the next Determination Date.
Purchase Price: As defined in Section 2.2 of the Sale Agreement.
Purchased Contracts: All Contracts transferred to Recco as a result of
each Purchase, including any Contracts that have become Delinquent Contracts or
Defaulted Contracts or are Ineligible Contracts (but only to the extent such
Ineligible Contracts have not been repurchased by the Seller pursuant to the
terms and conditions of the Sale Agreement), provided however that, only for the
purposes of the Credit Agreement, the Security Agreement and the Subordinated
Security Agreement, the term Purchased Contracts shall not include any Purchased
Contract which has been released by the Collateral Agent and the Seller pursuant
to the terms and conditions of Section 23(b) of the Security Agreement and
Section 19(b) of the Subordinated Security Agreement.
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Rate Setting Day: For any Interest Period, two (2) Business Days prior to
the commencement of such Interest Period. In the event such day is not a
Business Day, then the Rate Setting Day shall be the immediately preceding
Business Day.
Rating Agency: Fitch, S&P and Moody's and any nationally recognized
statistical rating organization who has assigned a rating to the related
Commercial Paper Notes.
Rating Agency Confirmation: The written confirmation by the Rating
Agencies that any Proposed Transaction shall not result in a reduction or
withdrawal of the then-current rating assigned to the related Commercial Paper
Notes (without giving effect to the Surety Bond).
Recco: Onyx Acceptance Receivables Corporation, a Delaware corporation,
and its successors.
Recco Account: The account established by Recco, and as to which Recco has
notified the Administrative Agent, the Group Agents and the Collateral Agent,
into which a Lender deposits the proceeds of Loans made by such Lender.
Recco Expenses: All (a) operating expenses incurred by Recco at any time
prior to the Scheduled Maturity Date and in the ordinary course of its business
(including rent, salaries, professional fees and expenses incurred in connection
therewith), (b) fees, premiums and other expenses at any time owing to the
Collateral Agent, the Dealer, the Surety Provider, any Lender or the Servicer
pursuant to, or incurred in connection with, any Operative Document (excluding
the Facilities Costs and the Servicing Fee) and (c) all fees and expenses
incurred at any time in respect of any of the Bank Accounts.
Recco Hedge Termination Amounts: Any termination payments owing by Recco
to the counterparty of any Hedge Agreement where Recco is the Defaulting Party
or the sole Affected Party as defined in such Hedge Agreement.
Recco Secured Parties: The holders of the Obligations under the Security
Agreement.
Recoveries: With respect to any Determination Period, the aggregate amount
of all cash received by Recco, the Seller or the Servicer during such
Determination Period in respect of any Defaulted Contract including (i) cash
received in connection with the sale or other disposition of the related
Vehicle, (ii) proceeds of Insurance Policies with respect to the related Vehicle
and (iii) payments made by or on behalf of the Obligor.
Recovery Procedure: As defined in Section 4.1(i) of the Credit Agreement.
Reference Bank: Any bank that furnishes information for purposes of
determining the Adjusted Eurodollar Rate.
Register: As defined in Section 2.2 of the Credit Agreement.
Registrar of Titles: The agency, department or office having the
responsibility for maintaining records of titles of motor vehicles and issuing
documents or records evidencing such titles in the jurisdiction in which a
particular Vehicle is registered.
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Regulation D: Regulation D of the Board of Governors (or any successor) of
the Federal Reserve System, as the same may be amended or supplemented from time
to time.
Regulation T: Regulation T of the Board of Governors (or any successor) of
the Federal Reserve System, as the same may be amended or supplemented from time
to time.
Regulation U: Regulation U of the Board of Governors (or any successor) of
the Federal Reserve System, as the same may be amended or supplemented from time
to time.
Regulation X: Regulation X of the Board of Governors (or any successor) of
the Federal Reserve System, as the same may be amended or supplemented from time
to time.
Reorganization: With respect to any Multiemployer Plan, the condition that
such plan is in reorganization within the meaning of Section 4241 of ERISA.
Reportable Event: Any of the events set forth in Section 4043(b) of ERISA
or the regulations thereunder other than those events as to which the thirty day
notice period is waived.
Repossessed Vehicle: As defined in Section 4.2(h) of the Sale Agreement.
Repurchase Price: The amount required to be paid by the Seller to Recco
pursuant to Section 4.5 of the Sale Agreement in connection with the repurchase
by the Seller of any Ineligible Contract.
Required Lenders: Those Lenders belonging to Lending Groups, whose
aggregate Group Commitments exceed 66 2/3 % of the Total Commitment.
Requirement of Law: As to any Person, the Certificate of Incorporation and
By-laws or other organizational or governing documents of such Person and any
law, treaty, rule or regulation or determination of any arbitrator or a court or
other Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property is
subject.
Residual Lines: (a) The Master Loan Agreement between Onyx Acceptance
Funding Corporation and Salomon Brothers Realty Corp., dated as of September 3,
1998, as the same may be amended, supplemented or otherwise modified from time
to time, (b) the Master Repurchase Agreement among Credit Suisse First Boston
(Europe) Limited, Credit Suisse First Boston Corporation and Onyx Acceptance
Funding Corporation, dated as of October 13, 2000, as the same may be amended,
supplemented or otherwise modified from time to time and (c) any other similarly
structured agreements or arrangements entered into by Onyx Acceptance Funding
Corporation or any of its Affiliates.
Responsible Officer: The chief executive officer, president, vice
president-operations, chief financial officer, controller, secretary or
treasurer of a corporation, provided that, (a) with respect to any certificate
to be delivered by a Responsible Officer, such Officer shall have personal
knowledge of the subject matter of such certificate, and (b) with respect to any
other matter to be undertaken by a Responsible Officer, such Officer shall be
duly authorized by all necessary corporate or other action with respect to such
matter.
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Sale Agreement: The Sale Agreement, as defined on the first page of this
Definitions List.
Scheduled Interest Payment Date: Each Determination Date hereafter
commencing with February 6, 2004.
Scheduled Maturity Date: The date that is 78 months following the
Commitment Termination Date.
Scheduled Payment: With respect to any Determination Period and any
Contract, the amount set forth in such Contract as required to be paid by the
related Obligor in such Determination Period.
Scheduled Termination Date: January 27, 2005, or such later date as
mutually agreed upon in writing by the Seller, Recco, the Administrative Agent,
the Surety Provider, each Group Agent and the Lenders at least sixty (60) days
before the Scheduled Termination Date then in effect.
SEC: Securities and Exchange Commission.
Security Agreement: The Security Agreement, as defined on the first page
of this Definitions List.
Security Interest: As defined in the UCC.
Security Interest Notice: The Notice of Grant of Security Interest in
Insurance Policy dated January 9, 2003, among Onyx, Recco, and Great American
Insurance Companies, as the same may be amended, supplemented or otherwise
modified from time to time.
Securities Act: The Securities Act of 1933, including, unless the context
otherwise requires, the rules and regulations thereunder, as amended from time
to time.
Securities Exchange Act: The Securities Exchange Act of 1934, including,
unless the context otherwise requires, the rules and regulations thereunder, as
amended from time to time.
Seller: Onyx.
Seller Interest: On any day, an amount equal to the Outstanding Balance of
Purchased Contracts as reflected on the most recent Daily Report minus the sum
of (a) the Outstanding Principal Amount of Loans on such day and (b) the
Subordinated Interest on such day.
Seller Lien Release Certificate: The lien release certificate to be
delivered by the Seller to Recco in accordance with Section 19(b) of the
Subordinated Security Agreement in the form attached thereto as Exhibit B.
Seller Note: As defined in Section 5.1 of the Sale Agreement.
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Seller Note Interest Rate: On any date, the applicable CP Rate as of the
immediately preceding Determination Date.
Servicer: Onyx or any Successor Servicer.
Servicer's Certificate: As defined in Section 8.8 of the Sale Agreement.
Servicer Termination Event: As defined in Section 8.10 of the Sale
Agreement.
Servicer Termination Notice: As defined in Section 8.10 of the Sale
Agreement.
Servicing Fee: For any Determination Period (or portion thereof), an
amount equal to the product of (a) the Servicing Fee Percentage, (b) the
Outstanding Balance of the Purchased Contracts as of the last day of the
preceding Determination Period, and (c) the number of days in such Determination
Period divided by 365.
Servicing Fee Percentage: For any Determination Period (or portion
thereof), either (i) if the Seller or any of its Affiliates is the Servicer, 1%
or (ii) if the Seller or any of its Affiliates is not the Servicer, 1% or such
other percentage as may be agreed upon between such successor Servicer and the
Controlling Party.
Share: With respect to each Lending Group and any Loan, the percentage
equivalent of a fraction the numerator of which is such Lending Group's Group
Commitment on such day and the denominator of which is the Total Commitment on
such day, multiplied by the amount of the Loan requested in the Notice of
Borrowing on such day. Notwithstanding the forgoing, if any Lending Group has a
Group Outstanding Principal Amount greater than zero at the time one or more
other Lending Groups are added to this Agreement, the Share for each existing
Lending Group shall be zero and the Share for a new Lending Group shall be 100%
or, if more than one new Lending Group has been added to this Agreement, its pro
rata share (based upon its Group Commitment to each other new Lending Group's
Group Commitment), until such time as the Group Outstanding Principal Amount for
each Lending Group equals its Share of the Outstanding Amount, as calculated by
the first sentence of this definition.
S&P: Standard & Poor's Ratings Services Group, a division of the
XxXxxx-Xxxx Companies, Inc., or its successor in interest. References to S&P in
any of the documents are only operative if S&P has rated, and is continuing to
rate, the Commercial Paper of any Conduit Lender.
Solvent: When used with respect to any Person, as of any date of
determination, (a) the amount of the "present fair saleable value" of the assets
of such Person will, as of such date, exceed the amount of all "liabilities of
such Person, contingent or otherwise", as of such date, as such quoted terms are
determined in accordance with applicable federal and state laws governing
determinations of the insolvency of debtors, (b) the present fair saleable value
of the assets of such Person will, as of such date, be greater than the amount
that will be required to pay the liability of such Person on its debts as such
debts become absolute and matured, (c) such Person will not have, as of such
date, an unreasonably small amount of capital with which to conduct its
business, (d) such Person will be able to pay its debts as they mature, and (e)
such Person is not insolvent within the meaning of any applicable Requirements
of Law. For purposes of this definition, (i) "debt" means liability on a
"claim", and (ii) "claim" means any (x) right to
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payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured or (y) right to an equitable remedy for
breach of performance if such breach gives rise to a right to payment, whether
or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured or unmatured, disputed, undisputed, secured or unsecured.
Subordinated Interest: On any day, an amount equal to the positive
difference result, if any, of (a) the Outstanding Principal Amount of Loans on
such day divided by the Net Advance Rate on such day less (b) the Outstanding
Principal Amount of Loans on such day.
Subordinated Note: As defined in Section 5.3 of the Sale Agreement.
Subordinated Security Agreement: The Subordinated Security Agreement, as
defined on the second page of this Definitions List.
Subsidiary: As to any Person, a corporation of which shares of stock
having ordinary voting power (other than a stock having such power only by
reason of the happening of a contingency) to elect a majority of the board of
directors or other managers of such corporation are at the time owned, or a
corporation or other entity the management of which is otherwise controlled,
directly or indirectly, through one or more intermediaries, or both, by such
Person.
Successor Servicer: As defined in Section 8.11 of the Sale Agreement.
Surety Bond: The financial guaranty insurance policy #CA00332A issued by
the Surety Provider on January 9, 2003, to the Collateral Agent for the benefit
of the Lenders as endorsed by any endorsements thereto.
Surety Provider: XLCA, and its permitted successors and assigns in such
capacity.
Surety Provider Defense Costs: All costs and expenses of the Surety
Provider (including, without limitation, any costs and expenses of the Group
Agents or the Collateral Agent that the Surety Provider may have paid) in
connection with any action, proceeding or investigation that could materially
adversely affect the rights or obligations of the Surety Provider under the
Operative Documents or any other document delivered with respect thereto,
including (without limitation) any judgment or settlement entered into affecting
the Surety Provider or the Surety Provider's interests, together with interest
thereon at a rate equal to the Base Rate plus 1% until paid.
Target Net Yield: Five percent per annum.
Taxes: As defined in Section 2.10 of the Credit Agreement.
Term of the Agreement: As defined in Section 4.1 of the Insurance
Agreement.
Term of the Surety Bond: Has the meaning assigned to the term "Term of
this Surety Bond" in the Surety Bond.
-28-
Title Document: With respect to any Vehicle, the original certificate of
title for, or other evidence of ownership (which indicates that the lien of the
secured party on the Vehicle is recorded on the original certificate of title)
of, such Vehicle issued by the Registrar of Titles in the jurisdiction in which
such Vehicle is registered. For Vehicles registered in certain states, the Title
Document may consist of electronic evidence of ownership on the electronic lien
and title systems of such states.
Total Commitment: The lesser of (i) $300,000,000 and (ii) the sum of the
Group Commitments, as such Total Commitment may be reduced pursuant to Section
2.9 or Section 7.1 of the Credit Agreement, or such other amount agreed upon in
writing by the Seller, Recco, the Lenders, the Surety Provider and the Group
Agents.
Transaction: The transactions contemplated by the Operative Documents.
Transaction Party: The meaning set forth in Section 10.17(c) of the Credit
Agreement.
UCC: The Uniform Commercial Code as in effect in the specified
jurisdiction or, if no jurisdiction is specified, as in effect in the state
whose law, by agreement of the parties, governs the document or agreement in
which the term "UCC" appears.
Unmatured Wind-Down Event: Any of the events specified in the definition
of Wind-Down Event, which, with the giving of notice, the lapse of time, or
both, or any other condition, would be a Wind-Down Event.
Vehicle: Any new or used automobile, van or light truck that secures a
Purchased Contract.
Vehicle Condition Report: The Vehicle Condition Report generated pursuant
to Section 4.2(g) of the Sale Agreement.
Vehicle Dealer: Any seller of automobiles, vans or light trucks that
originated one or more of the Contracts and transferred, sold or assigned the
respective Contract, to the Seller under a Dealer Assignment.
VFCC: Variable Funding Capital Corporation, a Delaware corporation, and
its successors.
VFCC Commitment: With respect to the VFCC Lenders, $150,000,000, as such
amount may be reduced pursuant to Section 2.9 of the Credit Agreement.
VFCC Group Agent: Wachovia Securities, and its successors and assigns as
Group Agent for the VFCC Lenders.
VFCC Lenders: VFCC and Wachovia Bank, and their successors and assigns.
VFCC Liquidity Agreement: The VFCC Liquidity Agreement, as defined on the
first page of this Definitions List.
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VFCC Loan: A Loan held by a VFCC Lender pursuant to the Credit Agreement.
VFCC Note: The Lender Note issued to the VFCC Lenders substantially in the
form of Exhibit I to the VFCC Lenders Annex.
VFCC Outstanding Principal Amount: On any day, with respect to the VFCC
Loans, the outstanding principal amount of such VFCC Loans, as reflected on the
VFCC Note.
Wachovia Bank: Wachovia Bank, National Association, a national banking
association, and its successors.
Wachovia Securities: Wachovia Capital Markets, LLC, a Delaware limited
liability company, and its successors.
Xxxxx Fargo Bank: Xxxxx Fargo Bank, National Association, and its
successors.
Wind-Down Date: The earlier to occur of the date on which: (a) a Notice of
Wind-Down is given and (b) any Wind-Down Event described in clauses (v), (xiii)
or (xxii) of the definition of Wind-Down Event occurs.
Wind-Down Event: The occurrence of any of the following events; provided
that any condition set forth therein has been satisfied:
(i) The Seller or Recco fails to pay when due any amount payable
under any of the Operative Documents and such failure continues for two
(2) Business Days.
(ii) Any representation or warranty made or deemed made by the
Seller or Recco, in any capacity which is contained in any Operative
Document or in any agreement, written report or written information
furnished at any time under or required by the Operative Documents shall
prove to have been false or incorrect in any material respect on or as of
the date made or deemed made.
(iii) The Seller (i) defaults in any payment of principal of or
interest on any Debt in excess of $3,000,000, beyond the period of grace,
if any, provided in the instrument or agreement under which such Debt was
created or (ii) defaults in the observance or performance of any other
material agreement or condition relating to any such Debt or contained in
any instrument or agreement evidencing, securing or relating thereto,
except when the amount or validity of such Debt is currently being
contested in good faith by appropriate proceedings, reserves in the full
amount of such contested Debt have been provided on the books of the
Seller, such proceedings suspend the collection of such contested Debt
from any Collateral and the Seller shall have notified the Surety
Provider, the Administrative Agent and the Group Agents in advance of its
intention to contest any such Debt and shall have furnished complete
information as to such proceedings and reserves to the Surety Provider,
the Administrative Agent and the Group Agents and any additional
information which the Surety Provider, the Administrative Agent or any
Group Agent shall have requested with respect thereto.
-30-
(iv) For any reason, the Sale Agreement shall not or shall cease
to create a valid and perfected first priority ownership interest or to
transfer legal and equitable title in the Purchased Contracts to Recco,
the Security Agreement shall not or shall cease to create a valid and
perfected first priority security interest in the Collateral in favor of
the Collateral Agent (free and clear of any lien in favor of any other
Person), or any other Operative Document shall cease to be in full force
and effect or cease to be the legal, valid, binding and enforceable
obligation of any party thereto.
(v) (i) The Seller, Recco or any Subsidiary of the Seller shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its assets, or any such
Person shall make a general assignment for the benefit of its creditors;
or (ii) there shall be commenced against any of the Seller, Recco or any
Subsidiary of the Seller any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an order
for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of sixty (60) days
(which grace period shall not apply in the case of Recco); or (iii) there
shall be commenced against any of the Seller, Recco or any Subsidiary of
the Seller any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry of an
order for any such relief which shall not have been vacated, discharged,
or stayed or bonded pending appeal within sixty (60) days from the entry
thereof (which grace period shall not apply in the case of Recco); or (iv)
any of the Seller, Recco or any Subsidiary of the Seller shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii) or (iii)
above; or (v) any of the Seller, Recco or any Subsidiary of the Seller
shall generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due.
(vi) One or more judgments or decrees shall have been entered
against Recco, or one or more judgments or decrees in excess of $2,000,000
shall have been entered against the Seller or any shareholder or Affiliate
of the Seller (other than Recco) which is not paid, bonded, stayed or
covered by insurance within thirty (30) days thereof.
(vii) If at any time Recco shall become liable for environmental
remediation or compliance expenses or fines, penalties or other charges
related to environmental matters in excess of $50,000.
(viii) Any of Recco, the Seller or any ERISA Affiliate thereof, (i)
shall engage in any nonexempt "prohibited transaction" (as defined in
Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii)
any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan, (iii) a
Reportable Event shall occur with respect to, or proceedings shall
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commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Controlling Party, reasonably likely to result
in the termination of such Plan for purposes of Title IV of ERISA, (iv)
any Plan shall terminate for purposes of Title IV of ERISA, (v) the Seller
or Recco or any ERISA Affiliate shall, or in the reasonable opinion of the
Controlling Party is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, any Plan, or (vi)
Seller, Recco or any of their ERISA Affiliates shall, for the first time
become obligated to contribute or incur any other liability with respect
to a Plan which is subject to the provisions of Title IV of ERISA if, in
the reasonable opinion of the Controlling Party, such liability or
obligation is or may be material; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such events
or conditions, if any, is reasonably likely to, in the Controlling Party's
sole discretion, (A) subject the Seller or any ERISA Affiliate (other than
Recco) to any tax, penalty or other liability, which tax, penalty or other
liability has or is reasonably likely to have a Material Adverse Effect or
(B) subject Recco to any tax, penalty or other liability.
(ix) Any financial statement delivered pursuant to the Operative
Documents and reported on by Xxxxx Xxxxxxxx LLP or other Independent
certified public accountants of nationally recognized standing shall
contain a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit.
(x) A Material Adverse Effect from the date hereof.
(xi) A material adverse change from the date hereof in the
collectibility of the Purchased Contracts taken as a whole.
(xii) A material adverse change from the date hereof in the
ability of the Seller to act as Servicer or the Servicer shall not perform
its obligations as Servicer in a manner conforming to the terms of the
Sale Agreement as reasonably determined by the Controlling Party.
(xiii) Recco becomes an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940.
(xiv) On any Determination Date, the Net Advance Rate does not
equal or exceed 92%.
(xv) A Borrowing Base Deficiency shall occur and remain uncured
for more than one Business Day.
(xvi) An "event of default" under any of the Operative Documents,
including, without limitation, any Servicer Termination Event.
(xvii) The Servicer resigns, other than pursuant to Section 8.5(b),
of the Sale Agreement.
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(xviii) Recco shall fail to provide any information required to be
provided by Section 5.13 of the Credit Agreement by the time required
thereby.
(xix) The Seller shall fail to comply with or observe any covenant
contained in Section 4.5 or 4.6 of the Sale Agreement.
(xx) The delivery of a Servicer Termination Notice.
(xxi) The Seller, the Servicer or Recco shall default in the
observance or performance of any other term, condition or covenant (not
specifically referenced in any other clause of this definition) under the
Operative Documents and such failure to observe or perform continues for
ten (10) Business Days.
(xxii) Failure by the Seller and Recco to maintain or cause to be
maintained Interest Rate Hedge Mechanisms in accordance with Section 5.14
of the Credit Agreement.
(xxiii) The occurrence of a servicer termination event, trigger
event, event of default, liquidation event, wind-down event or other
event, circumstance or condition of similar nature and consequence with
respect to any transaction insured by the Surety Provider relating to
automobile contracts originated and/or acquired by the Seller.
Withdrawal Notice: As defined in Section 2.4(c) of the Credit Agreement.
Withdrawing Lender: As defined in Section 2.4(c) of the Credit Agreement.
Working Day: Any Business Day on which dealings in foreign currencies and
exchange between banks may be carried on in London, England.
XLCA: XL Capital Assurance Inc., a New York corporation, and its
successors.
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ANNEX A
VFCC LENDERS ANNEX
I. Defined Terms
Defined terms not otherwise defined herein shall have the meanings
ascribed thereto in the Definitions List.
Alternative Rate: An interest rate per annum equal to the Adjusted
Eurodollar Rate; provided, however, that the Alternative Rate shall be the Base
Rate if a Eurodollar Disruption Event occurs.
Base Rate: On any date of determination, a fluctuating rate of interest
per annum equal to the higher of (a) the Prime Rate and, (b) the Federal Funds
Rate most recently determined by the VFCC Group Agent plus 0.50% per annum.
CP Rate: For any day during any Interest Period, the per annum rate
equivalent to the weighted average of the per annum rates paid or payable by
VFCC from time to time as interest on or otherwise (by means of interest rate
xxxxxx or otherwise taking into consideration any incremental carrying costs
associated with short-term promissory notes issued by VFCC maturing on dates
other than those certain dates on which VFCC is to receive funds) in respect of
the promissory notes issued by VFCC that are allocated, in whole or in part, by
the VFCC Group Agent (on behalf of VFCC) to fund or maintain the VFCC Lender's
Loans during such period, as determined by the VFCC Group Agent (on behalf of
VFCC) and reported to Recco, which rates shall reflect and give effect to (i)
the commissions of placement agents and dealers in respect of such promissory
notes, to the extent such commissions are allocated, in whole or in part, to
such promissory notes by the VFCC Group Agent (on behalf of VFCC) and (ii) other
borrowings by VFCC, including, without limitation, borrowings to fund small or
odd dollar amounts that are not easily accommodated in the commercial paper
market; provided, however, that if any component of such rate is a discount
rate, in calculating the CP Rate, the VFCC Group Agent shall for such component
use the rate resulting from converting such discount rate to an interest bearing
equivalent rate per annum.
Federal Funds Rate: For any period, a fluctuating interest rate per annum
equal for each day during such period to the weighted average of the overnight
federal funds rates as in Federal Reserve Board Statistical Release H.15(519) or
any successor or substitute publication selected by the VFCC Group Agent (or, if
such day is not a Business Day, for the next preceding Business Day), or, if,
for any reason, such rate is not available on any day, the rate determined, in
the sole opinion of the VFCC Group Agent, to be the rate at which overnight
federal funds are being offered in the national federal funds market at 9:00
a.m. Charlotte, North Carolina time.
LIBOR Rate: For any day during any Interest Period, an interest rate per
annum on the Rate Setting Day equal to:
(i) the posted rate for 30-day deposits in United States Dollars
appearing on Telerate page 3750 as of 11:00 A.M. (London time) on the
Business Day which is the second Business Day immediately preceding the
applicable Loan date (with respect to the
initial Interest Period) and as of the second Business Day immediately
preceding the first day of the applicable Interest Period (with respect to
all subsequent Interest Periods); or
(ii) if no such rate appears on Telerate page 3750 at such time and
day, then the LIBOR Rate shall be determined by the VFCC Group Agent at
its principal office in Charlotte, North Carolina as its rate (each such
determination, absent manifest error, to be conclusive and binding on all
parties hereto and their assignees) at which 30-day deposits in United
States Dollars are being, have been, or would be offered or quoted by the
VFCC Group Agent to major banks in the applicable interbank market for
Eurodollar deposits at or about 11:00 A.M. (Charlotte, North Carolina
time) on such day.
Prime Rate: The rate announced by the VFCC Group Agent from time to time
as its prime rate in the United States, such rate to change as and when such
designated rate changes. The Prime Rate is not intended to be the lowest rate of
interest charged by the VFCC Group Agent in connection with extensions of credit
to debtors.
II. VFCC Note. The Lender Note with respect to the VFCC Lenders shall be made
payable to the order of "Wachovia Capital Markets, LLC, as the Group Agent for
the VFCC Lenders (the "VFCC Group Agent") for the benefit of the VFCC Lenders. "
-2-
EXHIBIT I TO VFCC LENDERS ANNEX
[FORM OF VFCC NOTE]
January 29, 2004
$150,000,000 New York, New York
FOR VALUE RECEIVED, the undersigned, Onyx Acceptance Receivables
Corporation, a Delaware corporation ("Recco"), promises to pay to the order of
Wachovia Capital Markets, LLC, as the Group Agent for the VFCC Lenders (the
"VFCC Group Agent"), for the benefit of the VFCC Lenders, on the date specified
in Section 2.2 of the Credit Agreement hereinafter referred to, in lawful money
of the United States of America and in immediately available funds, the
principal amount of ONE HUNDRED FIFTY MILLION DOLLARS ($150,000,000), or, if
less, the aggregate unpaid principal amount of all Loans made by the VFCC
Lenders (the "VFCC Loans") to Recco pursuant to the Credit Agreement, as set
forth on the attached Schedule I, and to pay interest at such office, in like
money, from the date hereof on the unpaid principal amount of such Loans from
time to time outstanding at the rates and on the dates specified in Section 2.6
of the Credit Agreement and each other date specified in the Credit Agreement.
The VFCC Group Agent is authorized to record, on the schedule annexed
hereto and made a part hereof or on other appropriate records of the VFCC Group
Agent the date and amount of each VFCC Loan made by the Lenders, each
continuation thereof, the interest rate from time to time on each VFCC 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 the VFCC Group Agent to
make any such recordation (or any error in such recordation) shall not affect
the obligations of Recco hereunder or under the Credit Agreement in respect of
the VFCC Loans.
This Lender Note is one of the Lender Notes referred to in the Amended and
Restated Credit Agreement dated as of January 29, 2004 (as amended, supplemented
or otherwise modified and in effect from time to time, the "Credit Agreement")
among Recco, CDC Financial Products, Inc., as Administrative Agent, the Conduit
Lenders parties thereto, the Committed Lenders parties thereto and the
respective Group Agents, and is entitled to the benefits thereof. Capitalized
terms used herein without definition have the meanings assigned to them in the
Credit Agreement.
This Lender Note is subject to optional and mandatory prepayment as
provided in the Credit Agreement.
Upon the occurrence of the Wind-Down Date, the VFCC Group Agent shall have
all of the remedies specified in the Credit Agreement. Recco hereby waives
presentment, demand, protest and all notices of any kind.
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THIS LENDER NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
LENDER NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAWS, BUT WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES WHICH MAY
REQUIRE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
ONYX ACCEPTANCE RECEIVABLES
CORPORATION
By ______________________________
Name:
Title:
-4-
Schedule I to
LENDER NOTE
Principal of Prepayment of
Date Loans Interest on Loans Loans Notation By
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DATED:
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ANNEX B
EIFFEL LENDERS ANNEX
Defined terms not otherwise defined herein shall have the meanings
ascribed thereto in the Schedule of Definitions.
Alternative Rate: Means:
(a) for any Interest Period while the LIBOR Rate is unavailable
pursuant to Section 2.6(d) of the Credit Agreement, an interest rate per
annum equal to the Base Rate,
(b) for any Interest Period until the applicable Lender has
received not less than three (3) Business Days' prior notice that Recco
wishes to select a LIBOR Rate, an interest rate per annum equal to the
Base Rate, and
(c) at all other times, an interest rate per annum equal to the
LIBOR Rate applicable to such Interest Period.
Base Rate: On any date of determination, a fluctuating rate of interest
per annum equal to the higher of (a) the Prime Rate and, (b) the Federal Funds
Rate most recently determined by the Administrative Agent plus 0.50% per annum.
CP Rate: With respect to any funding made by Eiffel with the proceeds of
Commercial Paper Notes, the rate equivalent to the rate (or if more than one
rate, the weighted average of the rates) at which Commercial Paper Notes having
a term equal to the term of such funding may be sold by any Commercial Paper
Dealer selected by Eiffel, which rate shall incorporate applicable Commercial
Paper Dealer fees and commissions and other paying agent and sub-agency fees;
provided that if the rate (or rates) as agreed between any such Commercial Paper
Dealer and Eiffel is a discount rate, then the rate (or if more than one rate,
the weighted average of the rates) resulting from such Conduit Lender's
converting such discount rate (or rates) to an interest-bearing equivalent rate
per annum.
Federal Funds Rate: means, for any period, the per annum rate set forth in
the weekly statistical release designated as H. 15(519), or any successor
publication, published by the Federal Reserve Board (including any such
successor, "H.15(519)") for such day opposite the caption "Federal Funds
(Effective)." If on any relevant day such rate is not yet published in
H.15(519), the rate for such day will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publications, published by the Federal
Reserve Bank of New York (including any such successor, the "Composite 3:30 p.m.
Quotations") for such day under the caption "Federal Funds Effective Rate." If
on any relevant day the appropriate rate for such previous day is not yet
published in either H.15(519) or the Composite 3:30 p.m. Quotations, the rate
for such day will be the arithmetic mean as determined by the Administrative
Agent of the rates for the last transaction in overnight Federal funds arranged
prior to 9:00 A.M. (New York time) on that day
by each of three leading brokers of Federal funds transactions in New York City
selected by the Administrative Agent.
LIBOR Rate: For any Interest Period, the rate per annum on the Rate
Setting Day of such Interest Period shown on page 3750 of Telerate or any
successor page as the composite offered rate for London interbank deposits for
one month, as shown under the heading "USD" as of 11:00 A.M. (London time);
provided that in the event no such rate is shown, the LIBOR Rate shall be the
rate per annum (rounded upwards, if necessary, to the nearest 1/16th of one
percent) based on the rates at which Dollar deposits for one month are displayed
on page "LIBOR" of the Reuters Screen as of 11:00 A.M. (London time) on the Rate
Setting Day (it being understood that if at least two (2) such rates appear on
such page, the rate will be the arithmetic mean of such displayed rates);
provided further, that in the event fewer than two (2) such rates are displayed,
or if no such rate is relevant, the LIBOR Rate shall be the rate per annum equal
to the average of the rates at which deposits in Dollars are offered by the
Administrative Agent at approximately 11:00 A.M. (London time) on the Rate
Setting Day to prime banks in the London interbank market for a one month.
Prime Rate: As of any date of determination, the rate of interest most
recently published in The Wall Street Journal as the "prime rate" of such date
of determination.
II. Eiffel Note. The Lender Note issued to the Eiffel Lenders shall be made
payable to the order of "Xxxx & Co., as designee of Deutsche Bank Trust Company
Americas, Collateral Agent for the benefit of the Eiffel Lenders and other
parties.
EXHIBIT I TO EIFFEL LENDERS ANNEX
[FORM OF EIFFEL NOTE]
January 29, 2004
$150,000,000 New York, New York
FOR VALUE RECEIVED, the undersigned, Onyx Acceptance Receivables
Corporation, a Delaware corporation ("Recco"), promises to pay to the order of
Xxxx & Co., a designee of Deutsche Bank Trust Company Americas, Collateral
Trustee for Eiffel, for the benefit of the Eiffel Lenders (as such term is
defined below), on the date specified in Section 2.2 of the Credit Agreement
hereinafter referred to, in lawful money of the United States of America and in
immediately available funds, the principal amount of ONE HUNDRED FIFTY MILLION
DOLLARS ($150,000,000), or, if less, the aggregate unpaid principal amount of
all Eiffel Loans made by the Eiffel Lenders (the "Eiffel Loans")to Recco
pursuant to the Credit Agreement, and to pay interest at such office, in like
money, from the date hereof on the unpaid principal amount of such Loans from
time to time outstanding at the rates and on the dates specified in Section 2.6
of the Credit Agreement and each other date specified in the Credit Agreement.
The Eiffel Group Agent is authorized to record, on the schedule annexed
hereto and made a part hereof or on other appropriate records of the Eiffel
Group Agent the date and amount of each Eiffel Loan made by the Lenders, each
continuation thereof, the interest rate from time to time on each Eiffel 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 the Administrative Agent
to make any such recordation (or any error in such recordation) shall not affect
the obligations of Recco hereunder or under the Credit Agreement in respect of
the Eiffel Loans.
This Lender Note is one of the Lender Notes referred to in the Amended and
Restated Credit Agreement dated as of January 29, 2004 (as amended, supplemented
or otherwise modified and in effect from time to time, the "Credit Agreement")
among Recco, CDC Financial Products, Inc., as Administrative Agent, the Conduit
Lenders parties thereto, the Committed Lenders parties thereto and the
respective Group Agents, and is entitled to the benefits thereof. Capitalized
terms used herein without definition have the meanings assigned to them in the
Credit Agreement.
This Lender Note is subject to optional and mandatory prepayment as
provided in the Credit Agreement.
Upon the occurrence of the Wind-Down Date, the Administrative Agent shall
have all of the remedies specified in the Credit Agreement. Recco hereby waives
presentment, demand, protest and all notices of any kind.
THIS LENDER NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
LENDER NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES WHICH MAY REQUIRE THE APPLICATION OF THE LAWS OF ANY OTHER
JURISDICTION.
ONYX ACCEPTANCE RECEIVABLES
CORPORATION
By ________________________________
Name:
Title:
Schedule I to
LENDER NOTE
Principal of Prepayment of
Date Loans Interest on Loans Loans Notation By
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DATED:
EXHIBIT D
NOTICE OF BORROWING
[Date]
CDC Financial Products, Inc.
0 Xxxx 00x Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Variable Funding Capital Corporation
c/o Wachovia Capital Markets, LLC
000 X. Xxxxxxx Xxxxxx, XX0000
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxx
Onyx Acceptance Receivables Corporation hereby requests that the Lenders
make a Loan to it on [insert Borrowing Date] in the amount of [amount of Loan
requested] by placing the proceeds of such Loan on wire transmission to the
Recco Account by 2:00 P.M. (New York time) on [insert Borrowing Date]
(capitalized terms used herein have the meaning assigned to them in the Amended
and Restated Credit Agreement dated as of January 29, 2004, as amended, modified
or supplemented from time to time). The Eiffel Lenders' Share of the Loan shall
be [insert Eiffel Lenders' Share] and the VFCC Lenders' Share of the Loan shall
be [insert VFCC Lenders' Share]. Onyx Acceptance Receivables Corporation hereby
certifies as of the date hereof that (i) the representations and warranties made
in Section 3.1 of the Credit Agreement are true and correct on and as of the
Borrowing Date for such Loan, both before and after giving effect to such Loan,
(ii) each of the representations and warranties made in the Operative Documents
by the Seller and the Servicer (if the Seller or any Affiliate of the Seller)
are true and correct on and as of the Borrowing Date for such Loan, both before
and after giving effect to such Loan and (iii) that each condition precedent to
the making of such Loan, as described in Section 4.2 of the Credit Agreement,
has been satisfied. The most recently delivered Daily Report (which, if not
heretofore delivered, is attached) contains a true, correct and complete
calculation of the Borrowing Base and all components thereof. After giving
effect to the Loans to be made on the Borrowing Date for such Loans (and any
transfer of Purchased Contracts to Recco on such Borrowing Date), no Borrowing
Base Deficiency shall exist.
___________________________________
BY: [RESPONSIBLE OFFICER OF RECCO]
TITLE:
Dated:
cc: XL Capital Assurance Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Surveillance
EXHIBIT E
SECURITY AGREEMENT
EXHIBIT F
FORM OF LOCK-BOX AGREEMENT
EXHIBIT G
[FORM OF INTEREST RATE HEDGE ASSIGNMENT ACKNOWLEDGMENT]
[Date]
[Name of Hedge Counterparty]
[Address of Hedge Counterparty]
Attention: ___________________
Re: ISDA Master Agreement and Schedule, dated as of _______________ (as
amended, the "Hedge Agreement"), between [Name of Hedge
Counterparty] (the "Counterparty") and Onyx Acceptance Receivables
Corporation ("Company")
Ladies and Gentlemen:
Company hereby notifies you that Company has assigned to JPMorgan Chase
Bank, as Collateral Agent (the "Collateral Agent"), under the Financing
Agreement identified below, all of its right, title and interest in and to any
interest rate hedge (each, a "Hedge") entered into pursuant to the Hedge
Agreement, including, without limitation, (i) all rights of Company to receive
moneys due and to become due under or pursuant to the Xxxxxx, (ii) claims of
Company for damages arising out of or for breach of or default under the Xxxxxx,
(iii) the right of Company to terminate the Xxxxxx or the Hedge Agreement, and
to compel performance and otherwise exercise all remedies thereunder, and (iv)
all proceeds of any and all of the foregoing (the assignment of all right, title
and interest of Company in and to the Xxxxxx and the Hedge Agreement being
referred to as the "Assigned Rights").
As used herein, "Financing Agreement" shall mean that certain Amended and
Restated Credit Agreement, dated as of January 29, 2004, by and among Onyx
Acceptance Receivables Corporation, Eiffel Funding, LLC, as Conduit Lender, CDC
Financial Products Inc., as Committed Lender, Eiffel Group Agent and
Administrative Agent, Variable Funding Capital Corporation, as Conduit Lender,
Wachovia Bank, National Association, as Committed Lender and Wachovia Capital
Markets, LLC, as VFCC Group Agent as the same may from time to time be amended,
supplemented or otherwise modified and in effect. Capitalized terms used but not
defined herein shall have the meanings set forth in the Financing Agreement.
The Counterparty hereby agrees that, until the Counterparty receives
written notice from the Collateral Agent to the contrary, the Counterparty shall
make all payments under the Hedge Agreement and the Xxxxxx to the Company. Upon
the Counterparty's receipt of written notice from the Collateral Agent, (i) the
Counterparty will cease to make any such payments to the Company, and shall make
all such payments only to the Collateral Agent or as the Collateral Agent may
from time to time direct, and (ii) the Collateral Agent shall be entitled to
exercise any and all rights and remedies of Company under the Hedge Agreement
and the Xxxxxx to receive such payments in accordance with the terms hereof.
All payments to be made under the Hedge Agreement and the Xxxxxx by the
Counterparty shall be made by the Counterparty irrespective of, and without
deduction for, any counterclaim, defense, recoupment or set-off (other than
netting for payments owing by Company thereunder in accordance with the terms of
the Hedge Agreement and the Xxxxxx) and shall be final, and the Counterparty
will not seek to recover from the Collateral Agent or any Person for any reason
any such payment once made.
Notwithstanding the foregoing, (a) Company shall remain liable under the
Hedge Agreement and each Hedge to perform all of its duties and obligations
thereunder to the same extent as if this Acknowledgment had not been executed,
(b) the exercise by the Collateral Agent of any of the rights hereunder shall
not release Company from any of its duties or obligations under the Hedge
Agreement or any Hedge, and (c) neither the Collateral Agent nor the Lenders
shall have any obligation or liability under the Hedge Agreement or any Hedge by
reason of this Acknowledgment, nor shall any of them be obligated to perform any
of the obligations or duties of Company thereunder or to take any action to
collect or enforce any claim for payment thereunder.
Company shall not, without the prior written consent of the Collateral
Agent and the Controlling Party (i) sell, assign (by operation of law or
otherwise) or otherwise dispose of, or grant any option with respect to, any of
the Assigned Rights, or create or permit to exist any lien, security interest,
option or other charge or encumbrance upon or with respect to any of the
Assigned Rights, except for the assignment acknowledged hereby; (ii) cancel or
terminate the Hedge Agreement or any Hedge or consent to or accept any
cancellation or termination thereof; (iii) amend or otherwise modify the Hedge
Agreement or any Hedge or give any consent, waiver or approval thereunder; (iv)
waive any default under or breach of the Hedge Agreement or any Hedge; or (v)
take any other action in connection with the Hedge Agreement or any Hedge which
would impair the value of the interest or rights of Company thereunder or which
would impair the interests or rights of the Collateral Agent for the benefit of
the holders of the Obligations.
No amendment or waiver of any provision hereof, and no consent to any
departure by Company herefrom shall in any event be effective unless the same
shall be in writing and signed by the Collateral Agent, Company, the Controlling
Party and the Counterparty, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
This letter agreement may be executed in counterparts, each of which when
executed by the parties hereto shall be deemed an original and all of which
together shall be deemed the same instrument.
G-2
This letter agreement shall be binding upon Company and the Counterparty
and their respective successors and assigns, and shall inure, together with the
rights and remedies of the Collateral Agent hereunder, to the benefit of the
Collateral Agent and the Lenders, and their respective successors, transferees
and assigns. This letter agreement shall be governed by and construed in
accordance with the law (including Section 5-1401 of the General Obligations
Laws of New York but otherwise without regard to conflicts of law provisions) of
the State of New York.
ONYX ACCEPTANCE RECEIVABLES
CORPORATION
By __________________________________
Name:
Title:
Agreed:
[NAME OF HEDGE COUNTERPARTY]
By: ____________________________
Name:
Title:
G-3
EXHIBIT H
FORM OF ASSIGNMENT AND ACCEPTANCE
(a) Reference is made to the Amended and Restate Credit Agreement dated
as of January 29, 2004 among, among Onyx Acceptance Receivables Corporation
("Recco"), CDC Financial Products, Inc. ("CDC FP"), as Administrative Agent (the
"Administrative Agent"), the Conduit Lenders party thereto, the Committed
Lenders party thereto, and the respective Group Agents (as amended, restated
modified or supplemented from time to time the "Credit Agreement"). Terms
defined in the Credit Agreement are used in this Assignment and Acceptance
Agreement (this "Assignment") with the same meaning.
___________ (the "Assignor") and ________________ (the "Assignee")
and ___________ , as Group Agent for the Assignee and the Assignee's Lender
Group (the "Assignee Group Agent") agree as follows:
1. In consideration of the payment in the amount of $_________ (the "Purchase
Amount"), the Assignor hereby sells and assigns to the Assignee, without
recourse and without representation and warranty, and the Assignee hereby
purchases and assumes from the Assignor, a % pro rata interest in and to
all of the Assignor's right, title and interest in and to the Lender Note
of the Lender Group of which Assignor is a member (the "Related Group"),
the proceeds with respect thereto and all of the Assignor's rights and
obligations under the Credit Agreement and the other Transaction Documents
with respect thereto (collectively, the "Assigned Interests"). After
giving effect to such sale and assignment, the Assignee's Commitment will
be as set forth on the signature page hereto.
2. The Assignor and Assignee thereunder confirm to and agree with each other
and the other parties to the Credit Agreement as follows: (a) the Assignor
makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with the Credit Agreement, the other Transaction Documents or
any other instrument or document furnished pursuant thereto or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement, the other Transaction Documents or any such
other instrument or document; (b) the Assignor makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of Recco, Onyx or the Surety Provider or the performance or
observance by Recco, Onyx or the Surety Provider of any of their
respective obligations under the Credit Agreement or the other Transaction
Documents, as applicable, or any other instrument or document furnished
pursuant thereto; (c) the Assignee confirms that it has received a copy of
the Credit Agreement and such other instruments, documents and information
as it has deemed appropriate to make its own credit analysis and decision
to enter into this Assignment and to purchase such Assigned Interest; (d)
the Assignee has and will, independently and without reliance upon the
Administrative Agent, the Assignee Group Agent or any other Group Agent or
any of their Affiliates, or the Assignor and based on such agreements,
documents and information as it shall have or shall deem appropriate at
the time, continue to make its own credit decisions in taking or not
taking action under the Credit Agreement and the other Transaction
Documents; (e) such Assignee appoints and authorizes the
Administrative Agent and the Assignee Group Agent to take such action as
agent on its behalf and to exercise such powers under the Credit
Agreement, the other Transaction Documents and any other instrument or
document furnished pursuant thereto as are delegated to the Agent by the
terms thereof, together with such powers as are reasonably incidental
thereto and to enforce its respective rights and interests in and under
the Credit Agreement, the other Transaction Documents and the related
Lender Note; (f) such Assignee agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement and the other Transaction Documents are required to be performed
by it as the Assignee of the Assignor; (g) such Assignee agrees that it
will not institute against the Lenders any proceeding of the type referred
to in Section 10.15(a) of the Credit Agreement prior to the date which is
one year and one day after the payment in full of all Commercial Paper
issued by the Conduit Lenders. (h) the Assignor and Assignee agree to
reimburse the Administrative Agent and each Group Agent, as applicable,
for all fees, costs and expenses incurred by such in connection with the
assignment (including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel to the Administrative Agent and each
Group Agent, as applicable), and (i) the Assignee agrees to be bound by
the confidentiality provisions of Section 10.17 of the Credit Agreement.
3. The effective date for this Assignment (the "Effective Date") shall be the
later of (a) the date on which the Issuer, the Agent, the Assignee Group
Agent and, unless Wind-Down Event shall have occurred and be continuing,
Recco and Onyx, receive a fully executed copy of this Assignment and the
written consents of the Administrative Agent and, unless Wind-Down Event
shall have occurred and be continuing, Recco and Onyx, (b) the date of
receipt of the Purchase Amount and (c) the date of this Assignment.
Following the execution of this Assignment including the written consents
of the of the Administrative Agent and, unless Wind-Down Event shall have
occurred and be continuing, Recco and Onyx, the Assignor shall promptly
deliver this Assignment to the Assignee and to the Administrative Agent
and the Assignor's related Group Agent for acceptance and recording, and
shall promptly deliver copies to each non-assigning Lender of the related
Lender Group. The Assignor shall confirm the Effective Date in writing to
the Assignor Agent and the Administrative Agent.
4. Upon such acceptance and recording, as of the Effective Date, (a) the
Assignee shall have all of the rights and obligations of the Assignor
hereunder and under the other Transaction Documents to which such Assignor
is or, immediately prior to such assignment, was a party with respect to
such Assigned Interest for all purposes of the Credit Agreement and under
the other Transaction Documents to which such Assignor is or, immediately
prior to such assignment, was a party (it being understood that the
Lenders shall be obligated to fund Loans under the Credit Agreement in
accordance with the terms thereof, notwithstanding that the Purchasers are
not so obligated, and (b) the Assignor shall relinquish its rights with
respect to such Assigned Interest for all purposes of the Credit Agreement
and under the other Transaction Documents to which such Assignor is or,
immediately prior to such assignment, was a party.
5. Upon such acceptance and recording, from and after the Effective Date,
Recco shall make all payments under the Credit Agreement in respect of the
Assigned Interest
G-2
assigned hereby (including, without limitation, all payments in respect of
such interest in the Loans of the related Lender Group, interest and fees)
to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement for periods prior to
the Effective Date directly between themselves.
6. The defined terms set forth on Annex A hereto (the "Assignee Lender
Annex") shall be applicable to the Assignee and the Assignee's Lender
Group under the Credit Agreement and the other Transaction Documents. Upon
the Effective Date, if the Assignee's Lender Group is an Additional Lender
Group, Recco shall issue a Lender Note for the Additional Lender Group
substantially in the form set forth in the Assignee Lender Annex.
6. This Assignment shall be governed by, and construed in accordance with,
the laws of the State of New York.
7. This Assignment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. Delivery of an executed
counterpart of the signature page to this Assignment by telecopier shall
be effective as delivery of a manually executed counterpart of this
Assignment.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
G-3
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be
executed by their respective officers thereunto duly authorized as of the ____
day of ______, 20__. Remaining [NAME OF ASSIGNOR] Commitment
$____________
By: _________________________________
Name:
Title:
Commitment [NAME OF ASSIGNEE]
$____________
By: _________________________________
Name:
Title:
Address for notices:
[Address]
[NAME OF ASSIGNEE GROUP AGENT]
Address for notices and Account for
payments:
[Address]
[Account]
G-4
Consented to this __ day
of _________, 20__
ONYX ACCEPTANCE CORPORATION
By: _______________________________
Name:
Title:
ONYX ACCEPTANCE RECEIVABLES CORPORATION,
as Borrower
By: _______________________________
Name:
Title:
CDC FINANCIAL PRODUCTS, INC.,
as Administrative Agent
By: _______________________________
Name:
Title:
G-5
EXHIBIT I
HEDGE SPREADSHEET
EXHIBIT J
ISDA MASTER AGREEMENT AND SCHEDULE
EXHIBIT K
FORM OF JOINDER AGREEMENT
G-2
