Exhibit 10.12
EXECUTION COPY
OMNIBUS AMENDMENT AGREEMENT
This OMNIBUS AMENDMENT AGREEMENT, dated as of March 31, 1999 (this
"Omnibus Amendment Agreement"), is made among (i) LONG BEACH ACCEPTANCE
RECEIVABLES CORP., a Delaware corporation ("Borrower"), (ii) LONG BEACH
ACCEPTANCE CORP., a Delaware corporation ("Guarantor"), and (iii) GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC., a Delaware corporation ("Lender").
WITNESSETH:
WHEREAS, Borrower, Lender and Guarantor are parties to (i) the Credit
and Security Agreement dated as of March 31, 1997 (as amended, supplemented or
otherwise modified prior to the date hereof, the "97-1 Agreement"), (ii) the
Credit and Security Agreement dated as of August 29, 1997 (as amended,
supplemented or otherwise modified prior to the date hereof, the "97-2
Agreement"), (iii) the Credit and Security Agreement dated as of January 30,
1998 (as amended, supplemented or otherwise modified prior to the date hereof,
the "98-1 Agreement"), (iv) the Credit and Security Agreement dated as of
November 25, 1998 (as amended, supplemented or otherwise modified prior to the
date hereof, the "98-2 Agreement"; and collectively with the 97-1 Agreement, the
97-2 Agreement and the 98-1 Agreement, the "Residual Financing Agreements", and
each individually, a "Residual Financing Agreement"), in each case whereby
Lender has made certain loans to Borrower which are guaranteed by Guarantor and
Ameriquest Mortgage Company ("AMC") pursuant to certain guarantees referred to
therein, and which loans are secured by, among other things, the collateral
identified in the Residual Financing Agreements and certain collateral pledged
under the Security Agreement dated as of January 30, 1998 (as amended,
supplemented or otherwise modified from time to time in accordance with the
terms thereof, the "Security Agreement") made by Guarantor, as pledgor, in favor
of Lender, as pledgee (which Security Agreement also secures obligations of
Guarantor under the Warehouse Lending Agreement dated as of January 30, 1998 (as
amended, supplemented or otherwise modified from time to time in accordance with
the terms thereof, the "Warehouse Loan Agreement") between Guarantor, as
borrower, and Lender); and
WHEREAS, Borrower, Lender and Guarantor have agreed to make certain
amendments to the Residual Financing Agreements as provided herein.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. DEFINITIONS. Capitalized terms used, but not otherwise defined
herein, shall have the meanings ascribed thereto in the applicable Residual
Financing Agreement.
2. TRANSACTION SPECIFIC AMENDMENTS.
(a) THE 97-1 AGREEMENT AMENDMENTS. The 97-1 Agreement is hereby
amended as follows (capitalized terms used but not otherwise
defined in this clause (a) are, unless otherwise indicated,
used as defined in the 97-1 Agreement):
(i) Section 1. DEFINITIONS. Section 1 of the 97-1
Agreement is hereby amended as follows:
(A) The following definition of "Additional
Collateral Release Condition" is hereby
added to Section 1 of the 97-1 Agreement in
the appropriate alphabetical order:
"Additional Collateral Release
Condition" means, as of any date of
determination, if the Cumulative Actual
Advance Rate for such date does not exceed
75%.
(B) The following definition of "Advance Rate "
is hereby added to Section 1 of the 97-1
Agreement in the appropriate alphabetical
order:
"Advance Rate " means, as of any
Calculation Date, the percentage equivalent
of a fraction, the numerator of which shall
equal the aggregate unpaid principal balance
of the Loans, and the denominator of which
shall equal the Present Value of the
Collateral, in each case measured as of such
Calculation Date; provided that solely for
purposes of determining the Advance Rate at
any time from March 31, 1999 to May 31,
1999, the aggregate unpaid principal balance
of the Loans shall be deemed to be reduced
by the Paydown Balance. The Advance Rate
shall be determined in accordance with
Section 3.12(a)
(C) The following definition of "Average Default
Rate" is hereby added to Section 1 of the
97-1 Agreement in the appropriate
alphabetical order:
"Average Default Rate" means, as of
any Calculation Date, the lesser of (i) the
arithmetic average of the Default Rates for
the most recent three months as reported in
the related Servicer's Certificates and (ii)
the arithmetic average of the Default Rates
for the most recent six months as reported
in the related Servicer's Certificates.
(D) The following definition of "Calculation
Date" is hereby added to Section 1 of the
97-1 Agreement in the appropriate
alphabetical order:
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"Calculation Date" has the meaning
assigned thereto in the Section 3.12 hereto.
(E) The following definition of "Cumulative
Actual Advance Rate" is hereby added to the
97-1 Agreement in the appropriate
alphabetical order:
"Cumulative Actual Advance Rate"
means, as of any date, the percentage
equivalent of a fraction, (a) the numerator
of which shall equal the sum of (i) the
aggregate unpaid principal balance of the
Loans hereunder on such date and (ii) the
aggregate outstanding principal balance of
all loans under each Other Residual
Financing Agreement as of such date and (b)
the denominator of which shall equal the sum
of (i) the Present Value of the Collateral
hereunder (determined as of the most recent
date calculated in accordance with Section
3.12(a)) and (ii) the aggregate present
value of all collateral securing Borrower's
obligations to Lender under and as
determined in each Other Residual Financing
Agreement (determined as of the most recent
date specified in each such Other Residual
Financing Agreement; provided that, for
purposes of this definition, with respect to
the determination of the present value of
collateral under any Other Residual
Financing Agreement during the first six
months of its effectiveness, such
determination shall be deemed to equal the
initial determination of the present value
of the collateral under and as determined in
such Other Residual Financing Agreement in
connection with the initial borrowing
thereunder).
(F) The following definition of "Default Rate"
is hereby added to Section 1 of the 97-1
Agreement in the appropriate alphabetical
order:
"Default Rate" means, with respect
to any Collection Period, the product of (i)
twelve and (ii) a fraction, expressed as a
percentage, (a) the numerator of which is
the sum of (1) the aggregate of the
Principal Balances of all Receivables that
became Defaulted Receivables during such
Collection Period and (2) the aggregate of
the Principal Balances (as of the related
repurchase date) of all Receivables that
became Purchased Receivables during such
Collection Period that were 30 days or more
delinquent (calculated based on a 360-day
year consisting of twelve 30-day months)
with respect to more than 5% of a Scheduled
Payment at the time of such repurchase and
(b) the denominator of which is equal to the
arithmetic average of the Pool Balance as of
the end of
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such Collection Period and the
Pool Balance as of the end of the
immediately preceding Collection Period.
(G) The following definition of "Discount Rate"
is hereby added to Section 1 of the 97-1
Agreement in the appropriate alphabetical
order:
"Discount Rate" means 15% per
annum.
(H) The following definition of "Maintenance
Advance Rate" is hereby added to Section 1
of the 97-1 Agreement in the appropriate
alphabetical order:
"Maintenance Advance Rate" means,
as of any Calculation Date, the rate which
is 5% in excess of the Target Advance Rate
with respect to such date.
(I) The definition of "Maturity Date" is hereby
amended and restated in its entirety to read
as follows:
"Maturity Date" means March 31,
2000 (or if such day is not a Business Day,
the next preceding Business Day); provided
that if, prior to such date, the Pooling and
Servicing Agreement is terminated pursuant
to Section 10.01 thereof or the Originator
or Servicer exercises its option to purchase
the corpus of the Trust as provided in
Section 10.02 of the Pooling and Servicing
Agreement, the Maturity Date shall be the
date of such termination or purchase, as the
case may be.
(J) The following definition of "Monthly
Recovery Rate" is hereby added to Section 1
of the 97-1 Agreement in the appropriate
alphabetical order:
"Monthly Recovery Rate" means, with
respect to any Collection Period, a
fraction, the numerator of which shall equal
the sum of all Liquidation Proceeds and
Recoveries for such Collection Period, and
the denominator of which shall equal the sum
of the principal balances of all Receivables
which were actually liquidated during such
Collection Period, in each case as reported
in the related Servicer's Certificate.
(K) The following definition of "Paydown
Balance" is hereby added to Section 1 of the
97-1 Agreement in the appropriate
alphabetical order:
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"Paydown Balance" has the meaning
assigned thereto in the last sentence of
Section 2.5 hereto.
(L) The following definition of "Prepayment
Rate" is hereby added to Section 1 of the
97-1 Agreement in the appropriate
alphabetical order:
"Prepayment Rate" means as of any
Calculation Date, the cumulative ABS rate
(calculated according to the Uniform
Practices for the Clearance and Settlement
of Mortgage-Backed Securities and Other
Related Securities of the Public Securities
Association) for the most recent three
months, calculated using the Principal
Balance, APR, original term to maturity and
remaining term to maturity of the
Receivables as reported in the related
Servicer's Certificates.
(M) The following definition of "Present Value
of the Collateral" is hereby added to
Section 1 of the 97-1 Agreement in the
appropriate alphabetical order:
"Present Value of the Collateral"
means, as of any Calculation Date, in the
case of the Excess Cash Flow Certificate,
the then current present value thereof,
determined based upon the Valuation Rates
(as modified by the Valuation Model) and
calculated in accordance with Section
3.12(a), and in all other cases, the then
current market value of the Collateral.
(N) The following definition of "Recovery Rate"
is hereby added to Section 1 of the 97-1
Agreement in the appropriate alphabetical
order:
"Recovery Rate" means, as of any
Calculation Date, the arithmetic average of
the Monthly Recovery Rates for the most
recent three months.
(O) The following definition of "Target Advance
Rate" is hereby added to Section 1 of the
97-1 Agreement in the appropriate
alphabetical order:
"Target Advance Rate" means, for
any Calculation Date, 80%.
(P) The following definition of "Valuation
Model" is hereby added to Section 1 of the
97-1 Agreement in the appropriate
alphabetical order:
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"Valuation Model" means, a
proprietary cash flow valuation model in
computer spread sheet form to be used by
Lender in calculating the Present Value of
the Collateral and making related
calculations on each Calculation Date,
consistent with the valuation model used by
Lender to determine the increase in the
amount of the Loans (as such term is defined
in the 98-1 Agreement and the 98-2
Agreement, as applicable) under the 98-1
Agreement and the 98-2 Agreement and the
reduction of Loans hereunder and the Loans
(as such term is defined in the 97-2
Agreement) under the 97-2 Agreement and the
transactions contemplated hereby.
(Q) The following definition of "Valuation
Rates" is hereby added to Section 1 of the
97-1 Agreement in the appropriate
alphabetical order:
"Valuation Rates" means,
collectively, the Prepayment Rate, the
Average Default Rate, the Recovery Rate and
the Discount Rate.
(ii) Section 2.5 of the 97-1 Agreement is hereby amended
by adding the following sentence to the end of such
Section:
Without limiting the foregoing, Borrower agrees repay
the following aggregate principal balance of the
Loans, in each case together with accrued and unpaid
interest thereon to but excluding the date of
repayment, on the following dates (x) U.S.
$1,361,104.50 on or prior to April 30, 1999 (or if
such day is not a Business Day, on the preceding
Business Day) and (y) U.S. $1,361,104.50 on or prior
to May 31, 1999 (or if such day is not a Business
Day, on the preceding Business Day) (the sum of the
amounts set forth in clauses (x) and (y) above, the
"Paydown Balance").
(iii) The 97-1 Agreement is hereby amended by adding the
following Sections 3.12 and 3.13:
Section 3.12. ADVANCE RATE MAINTENANCE;
RELEASE OF EXCESS COLLATERAL. (a) Lender shall
determine the Present Value of the Collateral and the
Advance Rate monthly within five Business Days
following each Remittance Date based upon the
Valuation Rates as modified by the Valuation Model
(each such date of determination, a "Calculation
Date").
(b) In the event that as of any Calculation
Date the Advance Rate exceeds the Maintenance Advance
Rate, (i) Borrower shall, within one Business Day of
such Calculation Date, pay down the Loan or pledge
additional Collateral (and comply with the provisions
of Section 8.2(b)(ii)
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in respect thereof) in the amount necessary to
cause the Advance Rate not to exceed the
Maintenance Advance Rate and (ii) until such time
as the Advance Rate equals or is less than the
Maintenance Advance Rate, all funds received by
Borrower in respect of and Proceeds of all
Collateral shall be remitted by Borrower to Lender
in the manner set forth in Section 2.7(b) and
applied in the manner set forth in Section 2.7(c).
(c) After the first Calculation Date on
which the Advance Rate exceeds the Maintenance
Advance Rate, in the event that at the determination
of the Advance Rate as contemplated in Section
3.12(a) (after such first Calculation Date) the
Advance Rate is less than the Target Advance Rate by
an amount such that, after giving effect to a release
of a Pledged Security (such released security, a
"Designated Security") as Collateral hereunder, the
Advance Rate would continue to be less than the
Target Advance Rate, Borrower may request (subject to
the conditions set forth in the next sentence) that
Lender release such Designated Security to Borrower.
So long as no Event of Default or Other RF Event of
Default has occurred and is continuing and so long as
the Additional Collateral Release Condition is
satisfied, Lender will release and deliver such
Designated Security to Borrower within five (5)
Business Days following such request, unless Lender
reasonably determines that, after giving effect to
such release, the Advance Rate would no longer
continue to be less than the Target Advance Rate.
Section 3.13. VALUATION MODEL. In connection
with Lender's use of the Valuation Model, Borrower,
Guarantor and Lender each expressly acknowledge and
agree as follows:
(a) Lender shall be entitled, in the case of
any manifest error or manifest inaccuracy contained
in the Valuation Model, to revise or modify the
Valuation Model to correct any such error or
inaccuracy and shall, as soon as reasonably
practicable, provide notice to Borrower of error or
inaccuracy. Following the revision or modification of
such revised or modified Valuation Model, all
calculations of the Present Value of the Collateral
and all related calculations shall be made on all
subsequent Calculation Dates in accordance with such
Valuation Model as so revised or modified.
(b) Borrower and Guarantor hereby
acknowledge and agree that the Valuation Model is
proprietary to Lender, and that the Valuation Model
shall not be used by Borrower or Guarantor, or any of
their respective affiliates, subsidiaries, directors,
officers, agents or employees, as applicable
(collectively, the "AMC Group"), for any purpose
other than determining the Present Value of the
Collateral and making relating
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calculations in connection therewith, and shall at
all times be maintained by each member of the AMC
Group as confidential.
(c) Lender makes no representation or
warranty (whether express or implied, oral or
written) as to the accuracy or completeness, or
fitness for a particular use, of the Valuation Model,
and assumes no responsibility whatsoever to any
member of the AMC Group in connection with any use of
such Valuation Model and, consequently, no member of
the AMC Group is relying upon Lender or the Valuation
Model in such regard.
(d) In consideration of Lender's creation
and use of the Valuation Model, for which Lender is
not receiving any compensation, each member of the
AMC Group hereby unconditionally and irrevocably
releases and discharges Lender and its respective
affiliates, directors, officers, agents, employees
and representatives from, and agrees to indemnify,
hold harmless and reimburse any such party or parties
with respect to, any and all actions, liabilities,
losses, damages or claims of any kind or nature
whatsoever (including, without limitation, reasonable
attorney's fees and expenses), as incurred, that may
be imposed on or incurred by or asserted against any
such party or parties in any way relating to or
arising out of the use of such Valuation Model.
(b) THE 97-2 AGREEMENT AMENDMENTS. The 97-2 Agreement is hereby
amended as follows (capitalized terms used but not otherwise
defined in this clause (b) are, unless otherwise indicated,
used as defined in the 97-2 Agreement):
(i) Section 1. DEFINITIONS. Section 1 of the 97-2
Agreement is hereby amended as follows:
(A) The definition of "Default Rate" is hereby
amended and restated in its entirety to read
as follows:
"Default Rate" means, with respect
to any Collection Period, the product of (i)
twelve and (ii) a fraction, expressed as a
percentage, (a) the numerator of which is
the sum of (1) the aggregate of the
Principal Balances of all Receivables that
became Defaulted Receivables during such
Collection Period and (2) the aggregate of
the Principal Balances (as of the related
repurchase date) of all Receivables that
became Purchased Receivables during such
Collection Period that were 30 days or more
delinquent (calculated based on a 360-day
year consisting of twelve 30-day months)
with respect to more than 5% of a Scheduled
Payment at the time of such repurchase and
(b) the denominator of which is equal to the
arithmetic average of the Pool Balance as of
the end of
8
such Collection Period and the Pool
Balance as of the end of the immediately
preceding Collection Period.
(B) The definition of "Valuation Model" is
hereby amended by adding the following
phrase at the end of such definition:
", consistent with the valuation
model used by Lender to determine the
increase in the amount of the Loans (as such
term is defined in the 98-1 Agreement and
the 98-2 Agreement, as applicable) under the
98-1 Agreement and the 98-2 Agreement and
the reduction of Loans hereunder and the
Loans (as such term is defined in the 97-1
Agreement) under the 97-1 Agreement and the
transactions contemplated hereby."
(c) THE 98-1 AGREEMENT AMENDMENTS. The 98-1 Agreement is hereby
amended as follows (capitalized terms used but not otherwise
defined in this clause (c) are, unless otherwise indicated,
used as defined in the 98-1 Agreement):
(i) Section 1. DEFINITIONS. Section 1 of the 98-1
Agreement is hereby amended as follows:
(A) The definition of "Additional Advance " is
hereby added to Section 1 of the 98-1
Agreement in the appropriate alphabetical
order:
"Additional Advance" has the
meaning assigned to thereto in Section 2.1
hereof.
(B) The definition of "Default Rate" is hereby
amended and restated in its entirety to read
as follows:
"Default Rate" means, with respect
to any Collection Period, the product of (i)
twelve and (ii) a fraction, expressed as a
percentage, (a) the numerator of which is
the sum of (1) the aggregate of the
Principal Balances of all Receivables that
became Defaulted Receivables during such
Collection Period and (2) the aggregate of
the Principal Balances (as of the related
repurchase date) of all Receivables that
became Purchased Receivables during such
Collection Period that were 30 days or more
delinquent (calculated based on a 360-day
year consisting of twelve 30-day months)
with respect to more than 5% of a Scheduled
Payment at the time of such repurchase and
(b) the denominator of which is equal to the
arithmetic average of the Pool Balance as of
the end of such Collection Period and the
Pool Balance as of the end of the
immediately preceding Collection Period.
9
(C) The definition of "Loan" is hereby amended
by adding the following proviso at the end
of such definition: ", provided that the
term "Loan" shall for all purposes include
the Additional Advance."
(D) The definition of "Target Advance Rate" is
hereby amended and restated in its entirety
to read as follows:
"Target Advance Rate" means, for
any Calculation Date, 80%.
(E) The definition of "Valuation Model" is
hereby amended by adding the following
phrase at the end of such definition:
", consistent with the valuation
model used by Lender to determine the
increase in the amount of the Loan hereunder
and the Loan (as such term is defined in the
98-2 Agreement) under the 98-2 Agreement and
the reduction of Loans (as such term is
defined in the 97-1 Agreement and the 97-2
Agreement, as applicable) under the 97-1
Agreement and the 97-2 Agreement and the
transactions contemplated hereby.
(ii) Section 2.1 of the 98-1 Agreement is hereby amended
by adding the following sentences to the end of such
Section:
"Subject to the terms and conditions of this
Agreement, Lender agrees to lend to Borrower on March
31, 1999, an aggregate principal amount of U.S.
$4,303,898.00 (Four Million Three Hundred Three
Thousand Eight Hundred Ninety Eight Dollars) (the
"Additional Advance"). The proceeds of the Additional
Advance will be used by Borrower to pay Lender
amounts owed in respect of Loans (as such defined in
the 97-1 Agreement and the 97-2 Agreement, as
applicable) under the 97-1 Agreement and the 97-2
Agreement. The Additional Advance shall increase the
unpaid principal balance of the Loan and shall
constitute part of the Loan for all purposes."
(iii) Section 2.3(a) of the 98-1 Agreement is hereby
amended by adding the following sentence to the end
of such Section:
"Borrower shall execute and deliver to Lender on or
prior to March 31, 1999 a replacement Note evidencing
the increase in the amount of the Loan as a result of
the Additional Advance pursuant to Section 2.1."
(d) THE 98-2 AGREEMENT AMENDMENTS. The 98-2 Agreement is hereby
amended as follows (capitalized terms used but not otherwise
defined in this clause (d) are, unless otherwise indicated,
used as defined in the 98-2 Agreement):
10
(i) Section 1. DEFINITIONS. Section 1 of the 98-2
Agreement is hereby amended as follows:
(A) The definition of "Additional Advance " is
hereby added to Section 1 of the 98-1
Agreement in the appropriate alphabetical
order:
"Additional Advance" has the
meaning assigned to thereto in Section 2.1
hereof.
(B) The definition for "Default Rate" is hereby
amended and restated in its entirety to read
as follows:
"Default Rate" means, with respect
to any Collection Period, the product of (i)
twelve and (ii) a fraction, expressed as a
percentage, (a) the numerator of which is
the sum of (1) the aggregate of the
Principal Balances of all Receivables that
became Defaulted Receivables during such
Collection Period and (2) the aggregate of
the Principal Balances (as of the related
repurchase date) of all Receivables that
became Purchased Receivables during such
Collection Period that were 30 days or more
delinquent (calculated based on a 360-day
year consisting of twelve 30-day months)
with respect to more than 5% of a Scheduled
Payment at the time of such repurchase and
(b) the denominator of which is equal to the
arithmetic average of the Pool Balance as of
the end of such Collection Period and the
Pool Balance as of the end of the
immediately preceding Collection Period.
(C) The definition of "Loan" is hereby amended
by adding the following proviso at the end
of such definition: "; provided that the
term "Loan" shall for all purposes include
the Additional Advance."
(D) The definition of "Valuation Model" is
hereby amended by adding the following
phrase at the end of such definition:
", consistent with the valuation
model used by Lender to determine the
increase in the amount of the Loan hereunder
and the Loan (as such term is defined in the
98-1 Agreement) under the 98-1 Agreement and
the reduction of Loans (as such term is
defined in the 97-1 Agreement and the 97-2
Agreement, as applicable) under the 97-1
Agreement and the 97-2 Agreement and the
transactions contemplated hereby.
(ii) Section 2.1 of the 98-2 Agreement is hereby amended
by adding the following sentences to the end of such
Section:
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"Subject to the terms and conditions of this
Agreement, Lender agrees to lend to Borrower on March
31, 1999, an aggregate principal amount of U.S.
$300,000.00 (Three Hundred Thousand Dollars) (the
"Additional Advance"). The proceeds of the Additional
Advance will be used by Borrower to pay Lender
amounts owed in respect of Loans (as such term is
defined in the 97-1 Agreement and the 97-2 Agreement,
as applicable) under the 97-1 Agreement and the 97-2
Agreement. The Additional Advance shall increase the
unpaid principal balance of the Loan and shall
constitute part of the Loan for all purposes."
(iii) Section 2.3(a) of the 98-2 Agreement is hereby
amended by adding the following sentence to the end
of such Section:
"Borrower shall execute and deliver to Lender on or
prior to March 31, 1999 a replacement Note evidencing
the increase in the amount of the Loan as a result of
the Additional Advance pursuant to Section 2.1."
3. OMNIBUS AMENDMENTS.
(i) Section 2.5 of each of the 98-1 Agreement and the
98-2 Agreement is hereby amended by deleting the
phrase "the last sentence of Section 2.7(a)" and
replacing it with the following reference: "Section
2.7(b)".
(ii) The definition of "Present Value of the Collateral"
in each of the 97-2 Agreement, the 98-1 Agreement and
the 98-2 Agreement is hereby amended by inserting the
following parenthetical phrase after the term
"Valuation Rates" where it appears therein: "(as
modified by the Valuation Model)".
(iii) Section 3.12 of each of the 97-2 Agreement, the 98-1
Agreement and the 98-2 Agreement is hereby amended by
inserting the words " as modified by the Valuation
Model" after the term "Valuation Rates" where it
appears therein.
(iv) Section 5 of each Residual Financing Agreement is
hereby amended by adding the following covenant the
end of such Section:
"YEAR 2000 COMPLIANCE. Guarantor shall
demonstrate on or prior to September 30, 1999 to
Lender's satisfaction (which shall be in Lender's
sole discretion) that the Guarantor's computer
systems are Year 2000 Compliant. "Year 2000
Compliant" means generally that neither performance
nor functionality of any computer hardware or
software is affected by dates prior to, during, or
after the Year 2000. In particular: (a) no value for
current date will cause any interruption in
operation; (b) date based functionality must behave
consistently for dates prior to, during and
12
after the Year 2000; (c) in all interfaces and
data storage, the century in any date must be
specified either explicitly or by unambiguous
algorithms or interferencing rules; and (d) Year
2000 must be recognized as a leap year.
(v) The defined terms "97-1 Agreement," "97-2 Agreement,"
"98-1 Agreement" and "98-2 Agreement" shall be used
in the Residual Financing Agreements as defined
herein; provided that when used in the Residual
Financing Agreements such terms shall include
amendments, supplements and modifications thereto in
accordance with their terms after the date hereof.
(vi) For the avoidance of doubt, the parties hereto
acknowledge and agree that Exhibit G to each Residual
Financing Agreement contains references to each other
Residual Financing Agreement.
(vii) For the avoidance of doubt, the parties hereto
acknowledge and agree that the term "Other RF
Obligations" under each Residual Financing Agreement
includes all obligations of Guarantor, as borrower,
to Lender under the Warehouse Lending Agreement and
the Security Agreement, and that Exhibit G to each
Residual Financing Agreement contains a reference to
the Warehouse Lending Agreement and the Security
Agreement.
4. CONDITIONS PRECEDENT TO AMENDMENT. The obligations of Lender to
enter into this Omnibus Amendment Agreement, and to perform its obligations
hereunder, are subject to the fulfillment of each condition precedent set forth
in Exhibit A hereto.
5. CONDITIONS SUBSEQUENT TO AMENDMENT. The obligations of Lender to
enter into this Omnibus Amendment Agreement, and to perform its obligations
hereunder, are subject to the fulfillment of each condition subsequent set forth
in Exhibit B hereto (each an "Amendment Condition Subsequent") on or prior to
the dates specified for each such Amendment Condition Subsequent in Exhibit B
hereto (each such date, an "Expiration Date"). In the event that any Amendment
Condition Subsequent is not fulfilled on or prior to its related Expiration
Date, this Omnibus Amendment Agreement shall be of no force and effect AB INITIO
and shall not be binding on the parties hereto.
6. EXPENSES. Each of Borrower and Guarantor shall pay to Lender
(without duplication), on demand, any and all fees, costs and expenses
(including reasonable fees and expenses of counsel) incurred by Lender in
connection with the preparation, execution, delivery and performance of this
Omnibus Amendment Agreement.
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7. CONFIRMATIONS; REPRESENTATIONS AND WARRANTIES.
(a) Except as expressly amended hereby, all of the terms of each
Residual Financing Agreement shall remain in full force and
effect and are hereby ratified and confirmed in all respects.
(b) All presently outstanding and new Loans, as defined in each
Residual Financing Agreement, made under such Residual
Financing Agreement (including without limitation in the case
of the Loan under and as defined in the 98-1 Agreement and the
Loan under and as defined in the 98-2 Agreement, the
Additional Advance made under the 98-1 Agreement and the 98-2
Agreement, as applicable) (together with accrued interest
thereon pursuant to the terms of such Residual Financing
Agreement) shall constitute "Obligations" under such Residual
Financing Agreement and "Other RF Obligations" under each
other Residual Financing Agreement.
(c) Each of Borrower and Guarantor hereby represents and warrants
to Lender that (i) it has the requisite power and authority,
and legal right, to execute and deliver this Omnibus Amendment
Agreement and to perform its obligations under this Omnibus
Amendment Agreement and each Residual Financing Agreement as
amended by this Omnibus Amendment Agreement, (ii) it has taken
all necessary corporate and legal action to duly authorize the
execution and delivery of this Omnibus Amendment Agreement and
the performance of its obligations under this Omnibus
Amendment Agreement and each Residual Financing Agreement as
amended by this Omnibus Amendment Agreement, (iii) this
Omnibus Amendment Agreement has been duly executed and
delivered by it, (iv) each of this Omnibus Amendment Agreement
and each Residual Financing Agreement as amended by this
Omnibus Amendment Agreement constitutes its legal, valid and
binding obligation enforceable against it in accordance with
its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the rights of creditors generally
and by general equitable principles (whether enforcement is
sought by proceedings in equity or at law) and (v) after
giving effect to this Omnibus Amendment Agreement, no Default
or Event of Default under any Residual Financing Agreement has
occurred and is continuing.
(d) Each representation and warranty contained in each Residual
Financing Agreement is true and correct and is hereby restated
and affirmed.
(e) Each covenant contained in the each Residual Financing
Agreement is hereby restated and affirmed.
(f) Lender hereby confirms that, after giving effect to the
application of (i) the proceeds of the Additional Advance made
on the date hereof pursuant to Section 2.1 of the 98-1
Agreement, (ii) the proceeds of the Additional Advance
14
made on the date hereof pursuant to Section 2.1 of the 98-2
Agreement and (iii) the payment made by Borrower on the
date hereof as set forth in paragraph 5 of Exhibit A
hereto, the aggregate unpaid principal balance of the Loans
under the 97-1 Agreement shall equal $9,072,152.23 and the
aggregate unpaid principal balance of the Loan under the
97-2 Agreement shall equal $9,661,209.04, in each case as
of the date hereof.
8. FURTHER ASSURANCES. The parties hereto hereby agree to execute and
deliver such additional documents, instruments or agreements as may be
reasonably necessary and appropriate to effectuate the purposes of this Omnibus
Amendment Agreement.
9. CONFLICTS. In the event of a conflict of any provision hereof with
any provision or definition set forth in a Residual Financing Agreement, the
provisions and definitions of this Omnibus Amendment Agreement shall control.
10. GOVERNING LAW. THIS OMNIBUS AMENDMENT AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
11. SEVERABILITY. Any provision of this Omnibus Amendment Agreement or
a Residual Financing Agreement which is prohibited, unenforceable or not
authorized in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition, unenforceability or non-authorization without
invalidating the remaining provisions hereof or thereof or affecting the
validity, enforceability or legality of such provisions in any other
jurisdiction.
12. BINDING EFFECT. This Amendment shall be binding upon and shall be
enforceable by parties hereto and their respective successors and permitted
assigns.
13. HEADINGS. The headings appearing in this Omnibus Amendment
Agreement are included solely for convenience of reference and are not intended
to affect the interpretation of any other provision of this Omnibus Amendment
Agreement.
14. COUNTERPARTS. This Amendment may be signed in any number of
counterparts which, taken together, shall constitute a full and original
agreement for all purposes.
15
IN WITNESS WHEREOF, the parties hereto have caused this Omnibus
Amendment Agreement to be duly executed and delivered by their respective
authorized officers as of the date first above written.
LONG BEACH ACCEPTANCE
RECEIVABLES CORP., as Borrower
By: _____________________________
Name:
Title:
LONG BEACH ACCEPTANCE CORP., as
Guarantor
By: _____________________________
Name:
Title:
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC., as Lender
By: _____________________________
Name:
Title:
16
EXHIBIT A
CONDITIONS PRECEDENT
Borrower and the Guarantor shall deliver or cause to be delivered to Lender the
following, in each case in form and substance satisfactory to Lender:
1. Replacement Promissory Notes executed by Borrower under the
98-1 Agreement and the 98-2 Agreement (in the forms attached
as Exhibits E and F, respectively, to this Omnibus Amendment
Agreement).
2. Letter of Guarantor acknowledging that each of the Guarantees
relates to the related Residual Financing Agreement as amended
by this Omnibus Amendment Agreement, in the form attached to
this Omnibus Amendment Agreement as Exhibit C.
3. Letter of Ameriquest Mortgage Company acknowledging that each
of the AMC Guarantees relates to the related Residual
Financing Agreement as amended by this Omnibus Amendment
Agreement, in the form attached to this Omnibus Amendment
Agreement as Exhibit D.
4. Such other opinions, documents and instruments as Lender or
its counsel shall reasonably request.
5. The Lender shall have received from Borrower on or prior to
March 31, 1999 an aggregate amount equal to U.S.
$2,588,107.78, to be applied by Lender in respect of amounts
owed under the 97-1 Agreement and the 97-2 Agreement.
A-1
EXHIBIT B
CONDITIONS SUBSEQUENT
Borrower shall cause the following Amendment Conditions Subsequent to occur by
the Expiration Dates specified:
1. Borrower shall repay U.S. $1,361,104.50 aggregate principal
balance of the Loans under the 97-1 Agreement (together with
accrued but unpaid interest thereon to but excluding the date
of repayment) on or prior to April 30, 1999 (or if such day is
not a Business Day, on the preceding Business Day).
2. Borrower shall repay U.S. $1,361,104.50 aggregate principal
balance of the Loans under the 97-1 Agreement (together with
accrued but unpaid interest thereon to but excluding the date
of repayment) on or prior to May 31, 1999 (or if such day is
not a Business Day, on the preceding Business Day).
3. Opinion of Xxxxx Xxxxxxxxxx, special counsel to Borrower and
Guarantor, in form and substance satisfactory to Lender, shall
be delivered to Lender on or prior to April 15, 1999.
4. Secretary's Certificate and Incumbency Certificate of Borrower
(including certified resolutions of Borrower's board of
directors relating to the Residual Financing Agreements as
amended by this Omnibus Amendment Agreement), in form and
substance satisfactory to Lender, shall be delivered to Lender
on or prior to April 15, 1999.
5. Secretary's Certificate and Incumbency Certificate of
Guarantor (including certified resolutions of Guarantor's
board of directors relating to the Residual Financing
Agreements as amended by this Omnibus Amendment Agreement), in
form and substance satisfactory to Lender, shall be delivered
to Lender on or prior to April 15, 1999.
B-1
EXHIBIT C
[LBAC LETTERHEAD]
March 31, 1999
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to (i) the Credit and Security Agreement dated as of
March 31, 1997 (as amended, supplemented or otherwise modified prior to the date
hereof, the "Original 00-0 Xxxxxxxxx") xxxxx Xxxx Xxxxx Acceptance Receivables
Corp. ("Borrower"), Long Beach Acceptance Corp. ("Guarantor") and Greenwich
Capital Financial Products, Inc. ("Lender"), (ii) the Credit and Security
Agreement dated as of August 29, 1997 (as amended, supplemented or otherwise
modified prior to the date hereof, the "Original 97-2 Agreement") among
Borrower, Guarantor and Lender, (iii) the Credit and Security Agreement dated as
of January 30, 1998 (as amended, supplemented or otherwise modified prior to the
date hereof, the "Original 98-1 Agreement") among Borrower, Guarantor and
Lender, (iv) the Credit and Security Agreement dated as of November 25, 1998 (as
amended, supplemented or otherwise modified prior to the date hereof, the
"Original 98-2 Agreement"; and collectively with the Original 97-1 Agreement,
the Original 97-2 Agreement and the Original 98-1 Agreement, the "Original
Residual Financing Agreements", and each individually, an "Original Residual
Financing Agreement") among Borrower, Guarantor and Lender, (v) the Guarantee by
Guarantor dated as of March 31, 1997 (the "97-1 Guarantee") in favor of Lender,
(vi) the Guarantee by Guarantor dated as of August 27, 1997 (the "97-2
Guarantee") in favor of Lender, (vii) the Guarantee by Guarantor dated as of
January 30, 1998 (the "98-1 Guarantee") in favor of Lender, (viii) the Guarantee
by Guarantor dated as of November 25, 1998 (the "98-2 Guarantee"; and
collectively with the 97-1 Guarantee, the 97-2 Guarantee and the 98-1 Guarantee,
the " Guarantees", and each individually, an "Guarantee") in favor of Lender,
and (ix) the Omnibus Amendment Agreement dated as of March 31, 1999 (the
"Omnibus Amendment Agreement") among Borrower, Guarantor and Lender. The
Original 97-1 Agreement, the Original 97-2 Agreement, the Original 98-1
Agreement and the Original 98-2 Agreement, as amended by the Omnibus Amendment
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with the respective terms thereof are referred to
herein as the "97-1 Agreement," the "97-2 Agreement," the "98-1 Agreement" and
the "98-2 Agreement," respectively, and collectively, the "Residual Financing
Agreements", and each individually, a "Residual Financing Agreement".
Capitalized terms used but not otherwise defined herein are used as defined in
the applicable Guarantee.
C-1
For good and valuable consideration, the receipt and sufficiency of
which we hereby acknowledge, we hereby agree and confirm that (i) we
unconditionally and irrevocably guarantee to Lender, or any successor in
interest of Lender, the due, punctual and complete payment and performance by
Borrower when and as due, whether at the stated maturity, by acceleration, upon
one or more dates set for repayment or prepayment or otherwise, of the
Obligations, (ii) all Loans outstanding under each Residual Financing Agreement
(including without limitation, in the case of the 98-1 Agreement, the Additional
Advance made thereunder, and in the case of the 98-2 Agreement, the Additional
Advance made thereunder) (in each case together with interest accrued thereon
pursuant to the terms of such Residual Financing Agreement) shall constitute
"Obligations" under such Residual Financing Agreement, (iii) all "Obligations"
under each Residual Financing Agreement shall constitute "Obligations" under the
related Guarantee, and (iv) all of the terms of the Guarantees remain in full
force and effect and are hereby ratified and confirmed in all respects.
Very truly yours,
LONG BEACH ACCEPTANCE CORP.
By: __________________________
Name:
Title:
C-2
EXHIBIT D
[AMC XXXXXXXXXX]
Xxxxx 00, 0000
Xxxxxxxxx Xxxxxxx Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to (i) the Credit and Security Agreement dated as of
March 31, 1997 (as amended, supplemented or otherwise modified prior to the date
hereof, the "Original 00-0 Xxxxxxxxx") xxxxx Xxxx Xxxxx Acceptance Receivables
Corp. ("Borrower"), Long Beach Acceptance Corp. ("LBAC") and Greenwich Capital
Financial Products, Inc. ("Lender"), (ii) the Credit and Security Agreement
dated as of August 29, 1997 (as amended, supplemented or otherwise modified
prior to the date hereof, the "Original 97-2 Agreement") among Borrower, LBAC
and Lender, (iii) the Credit and Security Agreement dated as of January 30, 1998
(as amended, supplemented or otherwise modified prior to the date hereof, the
"Original 98-1 Agreement") among Borrower, LBAC and Lender, (iv) the Credit and
Security Agreement dated as of November 25, 1998 (as amended, supplemented or
otherwise modified prior to the date hereof, the "Original 98-2 Agreement"; and
collectively with the Original 97-1 Agreement, the Original 97-2 Agreement and
the Original 98-1 Agreement, the "Original Residual Financing Agreements", and
each individually, an "Original Residual Financing Agreement") among Borrower,
LBAC and Lender, (v) the LBMC Guarantee by Ameriquest Mortgage Company (as
successor of Long Beach Mortgage Company) dated as of March 31, 1997 (the "97-1
AMC Guarantee") in favor of Lender, (vi) the AMC Guarantee by Ameriquest
Mortgage Company dated as of August 27, 1997 (the "97-2 AMC Guarantee") in favor
of Lender, (vii) the AMC Guarantee by Ameriquest Mortgage Company dated as of
January 30, 1998 (the "98-1 AMC Guarantee") in favor of Lender, (viii) the AMC
Guarantee by Ameriquest Mortgage Company dated as of November 25, 1998 (the
"98-2 AMC Guarantee"; and collectively with the 97-1 AMC Guarantee, the 97-2 AMC
Guarantee and the 98-1 AMC Guarantee, the "AMC Guarantees", and each
individually, an "AMC Guarantee") in favor of Lender, (ix) the Guarantee by LBAC
dated as of March 31, 1997 (the "97-1 LBAC Guarantee") in favor of Lender, (x)
the Guarantee by LBAC dated as of August 27, 1997 (the "97-2 LBAC Guarantee") in
favor of Lender, (xi) the Guarantee by LBAC dated as of January 30, 1998 (the
"98-1 LBAC Guarantee") in favor of Lender, (xii) the Guarantee by LBAC dated as
of November 25, 1998 (the "98-2 LBAC Guarantee"; and collectively with the 97-1
LBAC Guarantee, the 97-2 LBAC Guarantee and the 98-1 LBAC Guarantee, the "LBAC
Guarantees", and each individually, a "LBAC Guarantee") in favor of Lender, and
(xiii) the Omnibus Amendment Agreement dated as of March 31, 1999 (the "Omnibus
Amendment Agreement") among Borrower, LBAC, as guarantor, and Lender. The
Original 97-1 Agreement, the Original 97-2 Agreement, the Original
D-1
98-1 Agreement and the Original 98-2 Agreement, as amended by the Omnibus
Amendment Agreement, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with the respective terms thereof
are referred to herein as the "97-1 Agreement," the "97-2 Agreement," the
"98-1 Agreement" and the "98-2 Agreement," respectively, and collectively,
the "Residual Financing Agreements", and each individually, a "Residual
Financing Agreement". Capitalized terms used but not otherwise defined herein
are used as defined in the applicable AMC Guarantee.
For good and valuable consideration, the receipt and sufficiency of
which we hereby acknowledge, we hereby agree and confirm that (i) we
unconditionally and irrevocably guarantee to Lender, or any successor in
interest of Lender, the due, punctual and complete payment and performance by
LBAC when and as due, whether at the stated maturity, by acceleration, upon one
or more dates set for repayment or prepayment or otherwise, of the LBAC
Obligations, (ii) all Loans outstanding under each Residual Financing Agreement
(including without limitation, in the case of the 98-1 Agreement, the Additional
Advance made thereunder, and in the case of the 98-2 Agreement, the Additional
Advance made thereunder) (in each case together with interest accrued thereon
pursuant to the terms of such Residual Financing Agreement) shall constitute
"Obligations" under such Residual Financing Agreement, (iii) all "Obligations"
under each Residual Financing Agreement shall constitute "LBAC Obligations"
under the related AMC Guarantee, and (iv) all of the terms of the AMC Guarantees
remain in full force and effect and are hereby ratified and confirmed in all
respects.
Very truly yours,
AMERIQUEST MORTGAGE COMPANY
By: __________________________
Name:
Title:
D-2
EXHIBIT E
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
PROMISSORY NOTE
March 31, 1999
Amount: U.S. $10,803,898.00
FOR VALUE RECEIVED, LONG BEACH ACCEPTANCE RECEIVABLES CORP. (the
"Borrower") unconditionally promises to pay on the Maturity Date (as defined in
the Agreement referred to below) to the order of Greenwich Capital Financial
Products, Inc. (the "Lender") in Federal or other immediately available funds in
lawful money of the United States the principal sum of TEN MILLION EIGHT HUNDRED
THREE THOUSAND EIGHT HUNDRED NINETY EIGHT DOLLARS (U.S. $10,803,898.00) or, if
less, the aggregate unpaid principal amount of the Loans made by Lender to
Borrower pursuant to the Agreement, and to pay interest thereon from the date
hereof until this Note is repaid in like money at the rates per annum and in the
manner set forth in the Agreement.
The principal of and interest on this Note shall be payable in
immediately available funds without set-off or counterclaim, in the manner set
forth in the Agreement.
This Note is issued pursuant to the terms of a Credit and Security
Agreement dated as of January 30, 1998 among Borrower, Lender and Long Beach
Acceptance Corp., as Guarantor (as amended from time to time, the "Agreement"),
and is subject to the terms thereof and is entitled to the benefits therein
provided.
Upon the occurrence of an Event of Default (as defined in the
Agreement), the principal of and accrued interest on this Note may be declared
due and payable in the manner and with the effect provided in the Agreement,
without presentment, demand, protest or notice of any kind, each of which is
hereby expressly waived by Borrower.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW
OF THE STATE OF NEW YORK.
LONG BEACH ACCEPTANCE RECEIVABLES CORP.
By: __________________________________
Name:
Title:
E-1
EXHIBIT F
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
PROMISSORY NOTE
March 31, 1999
Amount: U.S. $3,000,000.00
FOR VALUE RECEIVED, LONG BEACH ACCEPTANCE RECEIVABLES CORP. (the
"Borrower") unconditionally promises to pay on the Maturity Date (as defined in
the Agreement referred to below) to the order of Greenwich Capital Financial
Products, Inc. (the "Lender") in Federal or other immediately available funds in
lawful money of the United States the principal sum of THREE MILLION DOLLARS
(U.S. $3,000,000.00) or, if less, the aggregate unpaid principal amount of the
Loan made by Lender to Borrower pursuant to the Agreement, and to pay interest
thereon from the date hereof until this Note is repaid in like money at the
rates per annum and in the manner set forth in the Agreement.
The principal of and interest on this Note shall be payable in
immediately available funds without set-off or counterclaim, in the manner set
forth in the Agreement.
This Note is issued pursuant to the terms of a Credit and Security
Agreement dated as of November 25, 1998 among Borrower, Lender and Long Beach
Acceptance Corp., as Guarantor (as amended from time to time, the "Agreement"),
and is subject to the terms thereof and is entitled to the benefits therein
provided.
Upon the occurrence of an Event of Default (as defined in the
Agreement), the principal of and accrued interest on this Note may be declared
due and payable in the manner and with the effect provided in the Agreement,
without presentment, demand, protest or notice of any kind, each of which is
hereby expressly waived by Borrower.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW
OF THE STATE OF NEW YORK.
LONG BEACH ACCEPTANCE RECEIVABLES CORP.
By: __________________________________
Name:
Title:
F-1
EXECUTION COPY
OMNIBUS AMENDMENT AGREEMENT NO. 2
This OMNIBUS AMENDMENT AGREEMENT NO. 2, dated as of August 12, 1999
(this "Omnibus Amendment Agreement"), is made among (i) LONG BEACH ACCEPTANCE
RECEIVABLES CORP., a Delaware corporation ("Borrower"), (ii) LONG BEACH
ACCEPTANCE CORP., a Delaware corporation ("Guarantor"), and (iii) GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC., a Delaware corporation ("Lender").
WITNESSETH:
WHEREAS, Borrower, Lender and Guarantor are parties to (i) the Credit
and Security Agreement dated as of March 31, 1997 (as amended, supplemented or
otherwise modified prior to the date hereof, the "97-1 Agreement"), (ii) the
Credit and Security Agreement dated as of August 29, 1997 (as amended,
supplemented or otherwise modified prior to the date hereof, the "97-2
Agreement"), (iii) the Credit and Security Agreement dated as of January 30,
1998 (as amended, supplemented or otherwise modified prior to the date hereof,
the "98-1 Agreement"), (iv) the Credit and Security Agreement dated as of
November 25, 1998 (as amended, supplemented or otherwise modified prior to the
date hereof, the "98-2 Agreement") and (v) the Credit and Security Agreement
dated as of August 12, 1999 (the "99-1 Agreement" and, collectively with the
97-1 Agreement, the 97-2 Agreement, the 98-1 Agreement and the 98-2 Agreement,
the "Residual Financing Agreements", and each individually, a "Residual
Financing Agreement"), in each case whereby Lender has made certain loans to
Borrower which are guaranteed by Guarantor and Ameriquest Mortgage Company
("AMC") pursuant to certain guarantees referred to therein, and which loans are
secured by, among other things, the collateral identified in the Residual
Financing Agreements and certain collateral pledged under the Security Agreement
dated as of January 30, 1998 (as amended, supplemented or otherwise modified
from time to time in accordance with the terms thereof, the "Security
Agreement") made by Guarantor, as pledgor, in favor of Lender, as pledgee (which
Security Agreement also secures obligations of Guarantor under the Warehouse
Lending Agreement dated as of January 30, 1998 (as amended, supplemented or
otherwise modified from time to time in accordance with the terms thereof, the
"Warehouse Loan Agreement") between Guarantor, as borrower, and Lender); and
WHEREAS, Borrower, Lender and Guarantor have agreed to make certain
amendments to the 97-2 Agreement and the 98-2 Agreement as provided herein.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. DEFINITIONS. Capitalized terms used, but not otherwise defined herein, shall
have the meanings ascribed thereto in the applicable Residual Financing
Agreement.
2. AMENDMENTS.
(a) THE 97-2 AGREEMENT AMENDMENTS. The 97-2 Agreement is hereby
amended as follows (capitalized terms used but not otherwise
defined in this clause (a) are, unless otherwise indicated,
used as defined in the 97-2 Agreement):
(i) Section 1. DEFINITIONS. Section 1 of the 97-2
Agreement is hereby amended as follows:
(A) The definition of "Maturity Date" is hereby
amended and restated in its entirety to read
as follows:
"Maturity Date" means August 29,
2000 (or if such day is not a Business Day,
the next preceding Business Day); provided
that if, prior to such date, the Pooling and
Servicing Agreement is terminated pursuant
to Section 10.01 thereof or the Originator
or Servicer exercises its option to purchase
the corpus of the Trust as provided in
Section 10.02 of the Pooling and Servicing
Agreement, the Maturity Date shall be the
date of such termination or purchase, as the
case may be.
(b) THE 98-2 AGREEMENT AMENDMENTS. The 98-2 Agreement is hereby
amended as follows (capitalized terms used but not otherwise
defined in this clause (b) are, unless otherwise indicated,
used as defined in the 98-2 Agreement):
(i) Section 1. DEFINITIONS. Section 1 of the 98-2
Agreement is hereby amended as follows:
(A) The following definition of "Interest Rate
Determination Date" is hereby added to
Section 1 of the 1998-2 Agreement in the
appropriate alphabetical order
"INTEREST RATE DETERMINATION DATE"
means, with respect to the first Remittance
Date, the Closing Date, and with respect to
each subsequent Remittance Date, the day
which is two (2) LIBOR Business Days prior
to the immediately preceding Remittance
Date.
(B) The following definition of "LIBOR" is
hereby added to Section 1 of the 98-2
Agreement in the appropriate alphabetical
order
"LIBOR" means, with respect to the
interest payment to be made on each
Remittance Date, the rate of interest per
annum (rounded upwards, if necessary, to the
nearest 1/100th of 1%) for U.S. Dollar
deposits with a duration of one (1) month at
or about
2
11:00 a.m. (London time) on the Interest
Rate Determination Date corresponding to
such Remittance Date on Telerate Page
3750, or if such page ceases to display
such information, then such other page as
may replace it on that service for the
purpose of display of such information
(the "TELERATE RATE"). If the Telerate
Rate cannot be determined, then LIBOR
shall mean, with respect to the interest
payment to be made on such Remittance
Date, the arithmetic mean of the rates of
interest (rounded upwards, if necessary,
to the nearest 1/100th of 1%) offered to
two prime banks in the London interbank
market (selected by Lender) of U.S.
Dollar deposits with a duration of one
(1) month at or about 11:00 a.m. (London
time) on the Interest Rate Determination
Date corresponding to such Remittance
Date.
(C) The following definition of "LIBOR Business
Day" is hereby added to Section 1 of the
98-2 Agreement in the appropriate
alphabetical order
"LIBOR BUSINESS DAY" means a
Business Day on which trading in U.S.
Dollars is conducted by and between banks in
the London interbank market.
(D) The definition of "Loan" is hereby amended
by adding the following proviso at the end
of such definition: ", provided, further,
that the term "LOAN" shall for all purposes
include the Second Additional Advance."
(E) The following definition of "Margin" is
hereby added to Section 1 of the 98-2
Agreement in the appropriate alphabetical
order
"MARGIN" means 2.50% per annum.
(F) The definition of "Maturity Date" is hereby
amended and restated in its entirety to read
as follows:
"Maturity Date" means November 25,
2000 (or if such day is not a Business Day,
the next preceding Business Day); provided
that if, prior to such date, the Pooling and
Servicing Agreement is terminated pursuant
to Section 10.01 thereof or the Originator
or Servicer exercises its option to purchase
the corpus of the Trust as provided in
Section 10.02 of the Pooling and Servicing
Agreement, the Maturity Date shall be the
date of such termination or purchase, as the
case may be.
3
(G) The following definition of "Prime Rate" is
hereby added to Section 1 of the 98-2
Agreement in the appropriate alphabetical
order
"PRIME RATE" means the prime rate
(or if a range is given, the average prime
rates) listed under "Money Rates" in THE
WALL STREET JOURNAL for such date or, if THE
WALL STREET JOURNAL is not published on such
date, then in THE WALL STREET JOURNAL most
recently published.
(H) The following definition of "Second
Additional Advance " is hereby added to
Section 1 of the 98-2 Agreement in the
appropriate alphabetical order:
"SECOND ADDITIONAL ADVANCE" has the
meaning assigned to thereto in Section 2.1
hereof.
(ii) Section 2.1 of the 98-2 Agreement is hereby amended
by adding the following sentences to the end of such
Section:
"Subject to the terms and conditions of this
Agreement, Lender agrees to lend to Borrower on
August 12, 1999, an aggregate principal amount of
U.S. $3,500,000.00 (the "Second Additional Advance").
The proceeds of the Second Additional Advance will be
used by Borrower to pay Lender amounts owed in
respect of the Loan (as such term is defined in the
97-2 Agreement) under the 97-2 Agreement. The Second
Additional Advance shall increase the unpaid
principal balance of the Loan and shall constitute
part of the Loan for all purposes."
(iii) Section 2.4(a) of the 98-2 Agreement is hereby
amended and restated in its entirety to read as
follows:
"Borrower agrees to pay to Lender interest
on the unpaid principal amount of the Loan from and
including the date the Loan is extended to but not
including the date on which the Loan is paid in full.
Interest shall accrue on an adjustable basis at a
rate per annum equal to LIBOR plus the Margin. LIBOR
with respect to the interest payment to be made on
each Remittance Date shall be equal to LIBOR as
determined on the related Interest Rate Determination
Date. Accrued interest shall be payable in arrears on
each Remittance Date, and on the date of repayment in
full of the Loan."
4
(iv) The phrase "ten and one half (10.50) percent" in the
last sentence of Section 2.4(b) of the 98-2 Agreement
is hereby replaced with the phrase "LIBOR plus five
(5) percent".
(v) Section 2 of the 98-2 Agreement is hereby amended by
adding the following sub-section to the end of such
Section:
"Section 2.10. ILLEGALITY; SUBSTITUTED
INTEREST RATE Notwithstanding any other provisions
herein, (a) if any change in any Requirement of Law
or in the interpretation or application thereof shall
make it unlawful for Lender to make or maintain the
Loan at LIBOR as contemplated by this Agreement, or
(b) in the event that Lender shall have determined
(which determination shall be conclusive and binding
upon Borrower) that by reason of circumstances
affecting the LIBOR interbank market either adequate
and reasonable means do not exist for ascertaining
LIBOR, (x) the obligation of Lender to make or
maintain the Loan at LIBOR shall forthwith be
suspended and Lender shall promptly notify Borrower
thereof (by telephone confirmed in writing) and (y)
the Loan shall, from and including the next
Remittance Date, or at such earlier date as may be
required by law, until payment in full thereof, bear
interest at the rate per annum equal to the greater
of the Prime Rate and the rate of interest (including
the Margin) in effect on the date immediately
preceding the date any event described in clause (a)
or (b) occurred (calculated on the basis of the
actual number of days elapsed in a year of 360 days).
If any such conversion of LIBOR to the Prime Rate is
made on a day which is not a Remittance Date,
Borrower shall pay to Lender such amounts, if any, as
may be required to compensate Lender for any cost,
loss or expense which Lender may incur as a
consequence of such conversion on a day which is not
a Remittance Date, including any interest or fees
payable by Lender to lenders of funds obtained by it
in order to maintain the Loan. If subsequent to such
suspension of the obligation of Lender to make or
maintain the Loan at LIBOR it becomes lawful for
Lender to make or maintain the Loan at LIBOR, or the
circumstances described in clause (b) above no longer
exist, Lender shall so notify Borrower and the
LIBOR-based rate on the Loan shall be reinstated
effective as of the date it becomes lawful for Lender
to make or maintain the Loan at LIBOR, or the
circumstances described in clause (b) above no longer
exist."
(vi) Section 2.3(a) of the 98-2 Agreement is hereby
amended by adding the following sentence to the end
of such Section:
"Borrower shall execute and deliver to
Lender on or prior to August 12, 1999 a replacement
Note evidencing the increase in the
5
amount of the Loan as a result of the Second
Additional Advance pursuant to Section 2.1."
3. CONDITIONS PRECEDENT TO AMENDMENT. The obligations of Lender to enter into
this Omnibus Amendment Agreement, and to perform its obligations hereunder, are
subject to the fulfillment of each condition precedent set forth in Exhibit A
hereto.
4. EXPENSES. Each of Borrower and Guarantor shall pay to Lender (without
duplication), on demand, any and all fees, costs and expenses (including
reasonable fees and expenses of counsel) incurred by Lender in connection with
the preparation, execution, delivery and performance of this Omnibus Amendment
Agreement.
5. CONFIRMATIONS; REPRESENTATIONS AND WARRANTIES.
(a) Except as expressly amended hereby, all of the terms of each
Residual Financing Agreement shall remain in full force and
effect and are hereby ratified and confirmed in all respects.
(b) All presently outstanding and new Loans, as defined in each
Residual Financing Agreement, made under such Residual
Financing Agreement (including without limitation the Loan
(made under and as defined in the 98-2 Agreement), the
Additional Advance (as defined in the Omnibus Amendment
Agreement dated as of March 31, 1999 among Borrower, LBAC and
Lender) and the Second Additional Advance ) (together with
accrued interest thereon pursuant to the terms of such
Residual Financing Agreement) shall constitute "Obligations"
under such Residual Financing Agreement and "Other RF
Obligations" under each other Residual Financing Agreement.
(c) Each of Borrower and Guarantor hereby represents and warrants
to Lender that (i) it has the requisite power and authority,
and legal right, to execute and deliver this Omnibus Amendment
Agreement and to perform its obligations under this Omnibus
Amendment Agreement and each Residual Financing Agreement as
amended by this Omnibus Amendment Agreement, (ii) it has taken
all necessary corporate and legal action to duly authorize the
execution and delivery of this Omnibus Amendment Agreement and
the performance of its obligations under this Omnibus
Amendment Agreement and each Residual Financing Agreement (as
amended by this Omnibus Amendment Agreement, as applicable,
(iii) this Omnibus Amendment Agreement has been duly executed
and delivered by it, (iv) each of this Omnibus Amendment
Agreement and each Residual Financing Agreement as amended by
this Omnibus Amendment Agreement constitutes its legal, valid
and binding obligation enforceable against it in accordance
with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the rights of creditors generally
and by general equitable principles (whether enforcement is
sought by proceedings in equity or at law) and (v) after
giving effect to this
6
Omnibus Amendment Agreement, no Default or Event of Default
under any Residual Financing Agreement has occurred and
is continuing.
(d) Each representation and warranty contained in each Residual
Financing Agreement is true and correct and is hereby restated
and affirmed.
(e) Each covenant contained in the each Residual Financing
Agreement is hereby restated and affirmed.
(f) Lender hereby confirms that, after giving effect to the
application of (i) the proceeds of the Second Additional
Advance made on the date hereof pursuant to Section 2.1 of the
98-2 Agreement and (ii) the payment made by Borrower on the
date hereof as set forth in Section 2.1 of the 98-2 Agreement,
the aggregate unpaid principal balance of the Loan under the
97-2 Agreement shall equal $5,789,010.25 and the aggregate
unpaid principal balance of the Loan under the 98-2 Agreement
shall equal $6,500,000.00, in each case as of the date hereof.
(g) The defined terms "97-2 Agreement" and "98-2 Agreement" shall
be used in the Residual Financing Agreements as defined
herein; PROVIDED that when used in the Residual Financing
Agreements such terms shall include amendments, supplements
and modifications thereto in accordance with their terms after
the date hereof.
(h) For the avoidance of doubt, the parties hereto acknowledge and
agree that Exhibit G to each Residual Financing Agreement
contains references to each other Residual Financing
Agreement.
(i) For the avoidance of doubt, the parties hereto acknowledge and
agree that the term "Other RF Obligations" under each Residual
Financing Agreement includes all obligations of Guarantor, as
borrower, to Lender under the Warehouse Lending Agreement and
the Security Agreement, and that Exhibit G to each Residual
Financing Agreement contains a reference to the Warehouse
Lending Agreement and the Security Agreement.
6. FURTHER ASSURANCES. The parties hereto hereby agree to execute and deliver
such additional documents, instruments or agreements as may be reasonably
necessary and appropriate to effectuate the purposes of this Omnibus Amendment
Agreement.
7. CONFLICTS. In the event of a conflict of any provision hereof with any
provision or definition set forth in a Residual Financing Agreement, the
provisions and definitions of this Omnibus Amendment Agreement shall control.
8. GOVERNING LAW. THIS OMNIBUS AMENDMENT AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7
9. SEVERABILITY. Any provision of this Omnibus Amendment Agreement or a Residual
Financing Agreement which is prohibited, unenforceable or not authorized in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition, unenforceability or non-authorization without invalidating the
remaining provisions hereof or thereof or affecting the validity, enforceability
or legality of such provisions in any other jurisdiction.
10. BINDING EFFECT. This Amendment shall be binding upon and shall be
enforceable by parties hereto and their respective successors and permitted
assigns.
11. HEADINGS. The headings appearing in this Omnibus Amendment Agreement are
included solely for convenience of reference and are not intended to affect the
interpretation of any other provision of this Omnibus Amendment Agreement.
12. COUNTERPARTS. This Amendment may be signed in any number of counterparts
which, taken together, shall constitute a full and original agreement for all
purposes.
8
IN WITNESS WHEREOF, the parties hereto have caused this Omnibus
Amendment Agreement to be duly executed and delivered by their respective
authorized officers as of the date first above written.
LONG BEACH ACCEPTANCE
RECEIVABLES CORP., as Borrower
By: _____________________________
Name:
Title:
LONG BEACH ACCEPTANCE CORP., as
Guarantor
By: _____________________________
Name:
Title:
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC., as Lender
By: _____________________________
Name:
Title:
9
EXHIBIT A
CONDITIONS PRECEDENT
Borrower and the Guarantor shall deliver or cause to be delivered to Lender the
following, in each case in form and substance satisfactory to Lender:
1. Replacement Promissory Note executed by Borrower under the
98-2 Agreement (in the form attached as Exhibits E to this
Omnibus Amendment Agreement).
2. Letter of Guarantor acknowledging that each of the Guarantees
relates to the related Residual Financing Agreement as amended
by this Omnibus Amendment Agreement, in the form attached to
this Omnibus Amendment Agreement as Exhibit C.
3. Letter of Ameriquest Mortgage Company acknowledging that each
of the AMC Guarantees relates to the related Residual
Financing Agreement as amended by this Omnibus Amendment
Agreement, in the form attached to this Omnibus Amendment
Agreement as Exhibit D.
4. Such other opinions, documents and instruments as Lender or
its counsel shall reasonably request.
5. Opinion of Xxxxx Xxxxxxxxxx LLP, special counsel to Borrower
and Guarantor.
6. Secretary's Certificate and Incumbency Certificate of Borrower
(including certified resolutions of Borrower's board of
directors relating to 97-2 Agreement and the 98-2 Agreement as
amended by this Omnibus Amendment Agreement).
7. Secretary's Certificate and Incumbency Certificate of
Guarantor (including certified resolutions of Guarantor's
board of directors relating to the 97-2 Agreement and the 98-2
Agreement as amended by this Omnibus Amendment Agreement).
A-1
EXHIBIT B
[RESERVED]
B-1
EXHIBIT C
[LBAC LETTERHEAD]
August 12, 1999
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to (i) the Credit and Security Agreement dated as of
March 31, 1997 (as amended, supplemented or otherwise modified prior to the date
hereof, the "Original 00-0 Xxxxxxxxx") xxxxx Xxxx Xxxxx Acceptance Receivables
Corp. ("Borrower"), Long Beach Acceptance Corp. ("Guarantor") and Greenwich
Capital Financial Products, Inc. ("Lender"), (ii) the Credit and Security
Agreement dated as of August 29, 1997 (as amended, supplemented or otherwise
modified prior to the date hereof, the "Original 97-2 Agreement") among
Borrower, Guarantor and Lender, (iii) the Credit and Security Agreement dated as
of January 30, 1998 (as amended, supplemented or otherwise modified prior to the
date hereof, the "Original 98-1 Agreement") among Borrower, Guarantor and
Lender, (iv) the Credit and Security Agreement dated as of November 25, 1998 (as
amended, supplemented or otherwise modified prior to the date hereof, the
"Original 98-2 Agreement") among Borrower, Guarantor and Lender, (v) the Credit
and Security Agreement dated as of August 12, 1999 (as amended, supplemented or
otherwise modified prior to the date hereof, the "Original 99-1 Agreement" and,
together with the Original 97-1 Agreement, the Original 97-2 Agreement, the
Original 98-1 Agreement and the Original 98-2 Agreement, the "Original Residual
Financing Agreements", and each individually, an "Original Residual Financing
Agreement") among Borrower, Guarantor and Lender, (vi) the Guarantee by
Guarantor dated as of August 27, 1997 (the "97-2 Guarantee") in favor of Lender,
(vii) the Guarantee by Guarantor dated November 25, 1998 (the "98-2 Guarantee"
and, together with the 97-2 Guarantee, the " Guarantees", and each individually,
an "Guarantee") in favor of Lender, (viii) the Omnibus Amendment Agreement dated
as of March 31, 1999 (the "Omnibus Amendment Agreement") among Borrower,
Guarantor and Lender and (ix) Omnibus Amendment No. 2 dated as of August 12,
1999 (the "Second Omnibus Amendment") among Borrower, Guarantor and Lender. The
Original 97-1 Agreement, the Original 97-2 Agreement, the Original 98-1
Agreement, the Original 98-2 Agreement and the Original 99-1 Agreement, as
amended by the Omnibus Amendment Agreement and the Second Omnibus Amendment
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with the respective terms thereof are referred to
herein as the "97-1 Agreement", "97-2 Agreement," the "98-1 Agreement," the
"98-2 Agreement," and the "99-1 Agreement", respectively, and, collectively, the
"Residual Financing Agreements", and each individually, a "Residual Financing
Agreement". Capitalized terms used but not otherwise defined herein are used as
defined in the applicable Guarantee.
C-1
For good and valuable consideration, the receipt and sufficiency of
which we hereby acknowledge, we hereby agree and confirm that (i) we
unconditionally and irrevocably guarantee to Lender, or any successor in
interest of Lender, the due, punctual and complete payment and performance by
Borrower when and as due, whether at the stated maturity, by acceleration, upon
one or more dates set for repayment or prepayment or otherwise, of the
Obligations, (ii) all Loans outstanding under each Residual Financing Agreement
(including without limitation, in the case of the 98-2 Agreement, the Additional
Advance and the Second Additional Advance made thereunder) (in each case
together with interest accrued thereon pursuant to the terms of such Residual
Financing Agreement) shall constitute "Obligations" under such Residual
Financing Agreement, (iii) all "Obligations" under each Residual Financing
Agreement shall constitute "Obligations" under the related Guarantee, and (iv)
all of the terms of the Guarantees remain in full force and effect and are
hereby ratified and confirmed in all respects.
Very truly yours,
LONG BEACH ACCEPTANCE CORP.
By: __________________________
Name:
Title:
C-2
EXHIBIT D
[AMC LETTERHEAD]
August 12, 1999
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to (i) the Credit and Security Agreement dated as of
March 31, 1997 (as amended, supplemented or otherwise modified prior to the date
hereof, the "Original 00-0 Xxxxxxxxx") xxxxx Xxxx Xxxxx Acceptance Receivables
Corp. ("Borrower"), Long Beach Acceptance Corp. ("Guarantor") and Greenwich
Capital Financial Products, Inc. ("Lender"), (ii) the Credit and Security
Agreement dated as of August 29, 1997 (as amended, supplemented or otherwise
modified prior to the date hereof, the "Original 97-2 Agreement") among
Borrower, Guarantor and Lender, (iii) the Credit and Security Agreement dated as
of January 30, 1998 (as amended, supplemented or otherwise modified prior to the
date hereof, the "Original 98-1 Agreement") among Borrower, Guarantor and
Lender, (iv) the Credit and Security Agreement dated as of November 25, 1998 (as
amended, supplemented or otherwise modified prior to the date hereof, the
"Original 98-2 Agreement") among Borrower, Guarantor and Lender, (v) the Credit
and Security Agreement dated as of August 12, 1999 (as amended, supplemented or
otherwise modified prior to the date hereof, the "Original 99-1 Agreement" and,
together with the Original 97-1 Agreement, the Original 97-2 Agreement, the
Original 98-1 Agreement and the Original 98-2 Agreement, the "Original Residual
Financing Agreements", and each individually, an "Original Residual Financing
Agreement") among Borrower, Guarantor and Lender, (vi) the AMC Guarantee by
Ameriquest Mortgage Company dated as of August 27, 1997 (the "97-2 AMC
Guarantee") in favor of Lender, (vii) the AMC Guarantee by Ameriquest Mortgage
Company dated as of November 25, 1998 (the "98-2 AMC Guarantee"; and together
with the 97-2 AMC Guarantee, the "AMC Guarantees" and each individually, an "AMC
Guarantee") in favor of Lender , (viii) the Guarantee by LBAC dated as of August
27, 1997 (the "97-2 LBAC Guarantee") in favor of Lender, (ix) the Guarantee by
LBAC dated as of November 25, 1998 (the "98-2 LBAC Guarantee") in favor of
Lender (x) the Omnibus Amendment Agreement dated as of March 31, 1999 (the
"Omnibus Amendment Agreement") among Borrower, LBAC, as guarantor, and Lender
and (xi) Omnibus Amendment No. 2 dated as of August 12, 1999 (the "Second
Omnibus Amendment") among Borrower, Guarantor and Lender. The Original 97-1
Agreement, the Original 97-2 Agreement, the Original 98-1 Agreement, the
Original 98-2 Agreement and the Original 99-1 Agreement, as amended by the
Omnibus Amendment Agreement and the Second Omnibus Amendment Agreement, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with the respective terms thereof are referred to herein as the "97-1
Agreement," the "97-2 Agreement," the "98-1
D-1
Agreement", the "98-2 Agreement" and the "99-1 Agreement", respectively, and
collectively, the "Residual Financing Agreements", and each individually, a
"Residual Financing Agreement". Capitalized terms used but not otherwise
defined herein are used as defined in the applicable AMC Guarantee.
For good and valuable consideration, the receipt and sufficiency of
which we hereby acknowledge, we hereby agree and confirm that (i) we
unconditionally and irrevocably guarantee to Lender, or any successor in
interest of Lender, the due, punctual and complete payment and performance by
LBAC when and as due, whether at the stated maturity, by acceleration, upon one
or more dates set for repayment or prepayment or otherwise, of the LBAC
Obligations, (ii) all Loans outstanding under each Residual Financing Agreement
(including without limitation, in the case of the 98-2 Agreement, the Additional
Advance and Second Additional Advance made thereunder) (in each case together
with interest accrued thereon pursuant to the terms of such Residual Financing
Agreement) shall constitute "Obligations" under such Residual Financing
Agreement, (iii) all "Obligations" under each Residual Financing Agreement shall
constitute "LBAC Obligations" under the related AMC Guarantee, and (iv) all of
the terms of the AMC Guarantees remain in full force and effect and are hereby
ratified and confirmed in all respects.
Very truly yours,
AMERIQUEST MORTGAGE COMPANY
By: __________________________
Name:
Title:
D-2
EXHIBIT E
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
PROMISSORY NOTE
August 12, 1999
Amount: U.S. $6,500,000.00
FOR VALUE RECEIVED, LONG BEACH ACCEPTANCE RECEIVABLES CORP. (the
"Borrower") unconditionally promises to pay on the Maturity Date (as defined in
the Agreement referred to below) to the order of Greenwich Capital Financial
Products, Inc. (the "Lender") in Federal or other immediately available funds in
lawful money of the United States the principal sum of six million five hundred
thousand dollars (U.S. $6,500,000.00) or, if less, the aggregate unpaid
principal amount of the Loans made by Lender to Borrower pursuant to the
Agreement, and to pay interest thereon from the date hereof until this Note is
repaid in like money at the rates per annum and in the manner set forth in the
Agreement.
The principal of and interest on this Note shall be payable in
immediately available funds without set-off or counterclaim, in the manner set
forth in the Agreement.
This Note is issued pursuant to the terms of a Credit and Security
Agreement dated as of November 25, 1998 among Borrower, Lender and Long Beach
Acceptance Corp., as Guarantor (as amended from time to time, the "Agreement"),
and is subject to the terms thereof and is entitled to the benefits therein
provided.
Upon the occurrence of an Event of Default (as defined in the
Agreement), the principal of and accrued interest on this Note may be declared
due and payable in the manner and with the effect provided in the Agreement,
without presentment, demand, protest or notice of any kind, each of which is
hereby expressly waived by Borrower.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW
OF THE STATE OF NEW YORK.
LONG BEACH ACCEPTANCE RECEIVABLES CORP.
By: __________________________________
Name:
Title:
E-1
EXECUTION COPY
OMNIBUS AMENDMENT AGREEMENT NO. 3
This OMNIBUS AMENDMENT AGREEMENT NO. 3, dated as of April 14, 2000
(this "Amendment"), is made among (i) LONG BEACH ACCEPTANCE RECEIVABLES CORP., a
Delaware corporation ("Borrower"), (ii) LONG BEACH ACCEPTANCE CORP., a Delaware
corporation ("Guarantor"), and (iii) GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.,
a Delaware corporation ("Lender").
WITNESSETH:
WHEREAS, Borrower, Lender and Guarantor are parties to (i) the Credit
and Security Agreement dated as of March 31, 1997 (as amended, supplemented or
otherwise modified prior to the date hereof, the "97-1 Agreement"), (ii) the
Credit and Security Agreement dated as of August 29, 1997 (as amended,
supplemented or otherwise modified prior to the date hereof, the "97-2
Agreement"), (iii) the Credit and Security Agreement dated as of January 30,
1998 (as amended, supplemented or otherwise modified prior to the date hereof,
the "98-1 Agreement"), (iv) the Credit and Security Agreement dated as of
November 25, 1998 (as amended, supplemented or otherwise modified prior to the
date hereof, the "98-2 Agreement"), (v) the Credit and Security Agreement dated
as of August 12, 1999 (as amended, supplemented or otherwise modified prior to
the date hereof, the "99-1 Agreement") and (vi) the Credit and Security
Agreement dated as of December 9, 1999 (as amended, supplemented or otherwise
modified prior to the date hereof, the "99-2 Agreement"; and collectively with
the 97-1 Agreement, the 97-2 Agreement, the 98-1 Agreement, the 98-2 Agreement
and the 99-1 Agreement, the "Residual Financing Agreements", and each
individually, a "Residual Financing Agreement"), in each case whereby Lender has
made certain loans to Borrower which are guaranteed by Guarantor and Ameriquest
Mortgage Company ("AMC") pursuant to certain guarantees referred to therein, and
which loans are secured by, among other things, the collateral identified in the
Residual Financing Agreements and certain collateral pledged under the Security
Agreement dated as of January 30, 1998 (as amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof, the "Security
Agreement") made by Guarantor, as pledgor, in favor of Lender, as pledgee (which
Security Agreement also secures obligations of Guarantor under the Warehouse
Lending Agreement dated as of January 30, 1998 (as amended, supplemented or
otherwise modified from time to time in accordance with the terms thereof, the
"Warehouse Loan Agreement") between Guarantor, as borrower, and Lender, as
lender);
WHEREAS, Borrower, Lender and Guarantor have agreed to make certain
amendments to the Residual Financing Agreements as provided herein; and
WHEREAS, Section 9.3 of each Residual Financing Agreement permits the
amendment thereof as provided herein.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. DEFINITIONS. Capitalized terms used, but not otherwise defined herein, shall
have the meanings ascribed thereto in the applicable Residual Financing
Agreement.
2. AMENDMENTS.
(a) The following definition of "Change of Control" is hereby
added to Section 1 of each Residual Financing Agreement, in
each case in the appropriate alphabetical order:
"CHANGE OF CONTROL" means the occurrence of any of
the following without the Lender's prior written
consent (i) the consummation of any transaction or
series of transactions following which more than 49%
of the outstanding capital stock entitled to vote of
a member of the Parent Group or more than 49% of the
outstanding capital stock entitled to vote generally
in the election of directors of a member of the
Parent Group are owned by one or more Persons who are
not AMC; or (ii) there occurs any consolidation of a
member of the Parent Group with, or merger of a
member of the Parent Group into, any other Person, or
any merger of another Person into a member of the
Parent Group (other than any such transaction
pursuant to which the holders of the outstanding
capital stock of such member of the Parent Group
entitled to vote generally in the election of
directors of such member of the Parent Group
immediately prior to such transaction have, directly
or indirectly, shares of capital stock of the
continuing or surviving corporation immediately after
such transaction which entitle such holders to
exercise in excess of 51% of the total voting power
of all shares of capital stock of the continuing or
surviving corporation entitled to vote generally in
the election of directors), or (iii) a Person or
group of Persons acting in concert in one or a series
of transactions acquire (through purchase, transfer,
assignment or otherwise) a substantial portion of the
assets of a member of the Parent Group if, following
such transaction or transactions, such Person or
Persons are not wholly owned subsidiaries of AMC or
any successor thereto. Notwithstanding the foregoing,
a "Change in Control" shall not include (i) the
establishment of any new entity by or the occurrence
of any transaction with Ameriquest Capital
Corporation or Xxxxxx Xxxxxx which does not involve
the transfer of any assets of or an ownership
interest in AMC or any of its direct or indirect
subsidiaries or (ii) any transfer of assets by any
member of the Parent Group in the ordinary course of
its business.
(b) The following definition of "Parent Group" is hereby added to
Section 1 of each Residual Financing Agreement, in each case
in the appropriate alphabetical order:
"PARENT GROUP" means AMC, Guarantor and Borrower and
each of their respective subsidiaries and affiliates,
and each other entity which owns
2
directly or indirectly 51% or more of the
outstanding capital stock entitled to vote in the
election of directors of AMC, Guarantor or
Borrower and each of their respective subsidiaries
or affiliates. Notwithstanding the foregoing,
"Parent Group" shall not include any entity formed
as a result of any transaction specified in the
last sentence of the definition of "Change in
Control."
(c) The following definition of "Average Delinquency Ratio" is
hereby added to Section 1 of each of the 97-1 Agreement, the
97-2 Agreement and the 98-1 Agreement, in each case in the
appropriate alphabetical order:
"AVERAGE DELINQUENCY RATIO" has the meaning assigned
thereto in the Spread Account Agreement.
(d) The following definition of "Cumulative Default Rate" is
hereby added to Section 1 of each of the 97-1 Agreement, the
97-2 Agreement and the 98-1 Agreement, in each case in the
appropriate alphabetical order:
"CUMULATIVE DEFAULT RATE" has the meaning assigned
thereto in the Spread Account Agreement.
(e) The following definition of "Cumulative Loss Rate" is hereby
added to Section 1 of each of the 97-1 Agreement, the 97-2
Agreement and the 98-1 Agreement, in each case in the
appropriate alphabetical order:
"CUMULATIVE LOSS RATE" has the meaning assigned
thereto in the Spread Account Agreement.
(f) The definition of "Target Advance Rate" in each of the 97-1
Agreement, the 97-2 Agreement, the 98-1 Agreement and the 98-2
Agreement is hereby amended and restated in its entirety to
read as follows:
"TARGET ADVANCE RATE" means, for any Calculation
Date, 65%.
(g) The definition of "Maturity Date" in each of the 97-1
Agreement, the 97-2 Agreement, the 98-1 Agreement and the 98-2
Agreement is hereby amended and restated in its entirety to
read as follows:
"MATURITY DATE" means December 31, 2001 (or if such
day is not a Business Day, the next preceding
Business Day); PROVIDED that if, prior to such date,
the Pooling and Servicing Agreement is terminated
pursuant to Section 10.01 thereof or the Originator
or Servicer exercises its option to purchase the
corpus of the Trust as provided in Section 10.02 of
the Pooling and Servicing Agreement, the Maturity
Date shall be the date of such termination or
purchase, as the case may be.
3
(h) The definition of "Maturity Date" in each of the 99-1
Agreement and the 99-2 Agreement is hereby amended and
restated in its entirety to read as follows:
"MATURITY DATE" means December 31, 2001 (or if such
day is not a Business Day, the next preceding
Business Day); PROVIDED that if, prior to such date,
the Indenture is terminated pursuant to Section 4.1
thereof or the Certificateholder exercises its option
to redeem the Notes issued pursuant to the Indenture
as provided in Section 10.1 of the Indenture, the
Maturity Date shall be the date of such termination
or redemption, as the case may be.
(i) The following definition of "Additional Advance" is hereby
added to Section 1 of each of the 97-1 Agreement, the 97-2
Agreement, the 99-1 Agreement and the 99-2 Agreement, in each
case in the appropriate alphabetical order:
"ADDITIONAL ADVANCE" has the meaning assigned to
thereto in Section 2.1 hereof.
(j) The following definition of "Additional Advance Availability
Period" is hereby added to Section 1 of each of the 97-1
Agreement and the 97-2 Agreement, in each case in the
appropriate alphabetical order:
"ADDITIONAL ADVANCE AVAILABILITY PERIOD" means, with
respect to the Additional Advance, the period
commencing on April 14, 2000 and ending on the
Additional Advance Expiry Date.
(k) The following definition of "Additional Advance Availability
Period" is hereby added to Section 1 of the 99-1 Agreement in
the appropriate alphabetical order:
"ADDITIONAL ADVANCE AVAILABILITY PERIOD" means, with
respect to the Additional Advance, the period
commencing on May 15, 2000 and ending on the
Additional Advance Expiry Date.
(l) The following definition of "Additional Advance Availability
Period" is hereby added to Section 1 of the 99-2 Agreement in
the appropriate alphabetical order:
"ADDITIONAL ADVANCE AVAILABILITY PERIOD" means, with
respect to the Additional Advance, the period
commencing on September 15, 2000 and ending on the
Additional Advance Expiry Date.
(m) The following definition of "Additional Advance Condition" is
hereby added to Section 1 of each of the 97-1 Agreement and
the 97-2 Agreement, in each case in the appropriate
alphabetical order:
4
"ADDITIONAL ADVANCE CONDITION" means the following
conditions precedent to Lender's commitment to make
the Additional Advance hereunder: (a) the Advance
Rate shall not exceed 65% after giving effect to such
Additional Advance and (b) the sum of (i) the
aggregate unpaid principal balance of the Loans (as
defined in this Agreement) and (ii) the aggregate
unpaid principal balance of the Loans (as defined in
each Other Residual Financing Agreement) shall not
exceed $42,000,000, in each case after giving effect
to the Additional Advance.
(n) The following definition of "Second Additional Advance
Condition" is hereby added to Section 1 of the 98-1 Agreement,
in the appropriate alphabetical order:
"SECOND ADDITIONAL ADVANCE CONDITION" means the
following conditions precedent to Lender's commitment
to make the Second Additional Advance hereunder: (a)
the Advance Rate shall not exceed 65% after giving
effect to such Second Additional Advance and (b) the
sum of (i) the aggregate unpaid principal balance of
the Loans (as defined in this Agreement) and (ii) the
aggregate unpaid principal balance of the Loans (as
defined in each Other Residual Financing Agreement)
shall not exceed $42,000,000, in each case after
giving effect to the Second Additional Advance.
(o) The following definition of "Additional Advance Condition" is
hereby added to Section 1 of each of the 99-1 Agreement and
the 99-2 Agreement, in the appropriate alphabetical order:
"ADDITIONAL ADVANCE CONDITION" means the following
conditions precedent to Lender's commitment to make
the Additional Advance hereunder: (a) the Advance
Rate shall not exceed 60% after giving effect to such
Additional Advance and (b) the sum of (i) the
aggregate unpaid principal balance of the Loans (as
defined in this Agreement) and (ii) the aggregate
unpaid principal balance of the Loans (as defined in
each Other Residual Financing Agreement) shall not
exceed $42,000,000, in each case after giving effect
to the Additional Advance.
(p) The following definition of "Additional Advance Expiry Date"
is hereby added to Section 1 of each of the 97-1 Agreement,
the 97-2 Agreement, the 99-1 Agreement and the 99-2 Agreement,
in each case in the appropriate alphabetical order:
"ADDITIONAL ADVANCE EXPIRY DATE" means December 31,
2000 or such earlier date as Lender's commitment
hereunder may be terminated pursuant to the
provisions hereof.
5
(q) The following definition of "Maximum Additional Advance" is
hereby added to Section 1 of each of the 97-1 Agreement, the
97-2 Agreement, the 99-1 Agreement and the 99-2 Agreement:
"MAXIMUM ADDITIONAL ADVANCE: has the meaning assigned
thereto in Section 2.1 hereof.
(r) Section 2.1 of the 97-1 Agreement is hereby amended by adding
the following sentence to the end of such Section:
Subject to the terms and conditions of this
Agreement, Lender also agrees to lend to Borrower on
any date during the Additional Advance Availability
Period, an aggregate principal amount not to exceed
Eight Hundred Eleven Thousand Seventy Two Dollars
($811,072) (the "MAXIMUM ADDITIONAL ADVANCE" and the
borrowing pursuant to this sentence, the "ADDITIONAL
ADVANCE"), such Additional Advance being secured by
the Collateral; PROVIDED, HOWEVER, that the Maximum
Additional Advance shall be reduced to the extent
necessary to ensure that after giving effect to the
Additional Advance, the Advance Rate does not exceed
the Target Advance Rate.
(s) Section 2.1 of the 97-2 Agreement is hereby amended by adding
the following sentence to the end of such Section:
Subject to the terms and conditions of this
Agreement, Lender also agrees to lend to Borrower on
any date during the Additional Advance Availability
Period, an aggregate principal amount not to exceed
Two Million Four Hundred Fifty Nine Thousand Five
Hundred Sixty Five Dollars ($2,459,565) (the "MAXIMUM
ADDITIONAL ADVANCE" and the borrowing pursuant to
this sentence, the "ADDITIONAL ADVANCE"), such
Additional Advance being secured by the Collateral;
PROVIDED, HOWEVER, that the Maximum Additional
Advance shall be reduced to the extent necessary to
ensure that after giving effect to the Additional
Advance, the Advance Rate shall not exceed the Target
Advance Rate.
(t) The definition of "Loan" in each of the 97-1 Agreement, the
97-2 Agreement, the 99-1 Agreement and the 99-2 Agreement is
hereby amended by adding the following proviso at the end of
such definition:
, PROVIDED that the term "LOAN" shall for all
purposes include the Additional Advance.
(u) Section 2.3(a) of each of the 97-1 Agreement and the 97-2
Agreement is hereby amended by adding the following sentence
to the end of such Section:
6
Borrower shall execute and deliver to Lender on or
prior to April 14, 2000 a replacement Note evidencing
the Loan as increased by the Maximum Additional
Advance permitted pursuant to Section 2.1.
(v) Each of the 97-1 Agreement, the 97-2 Agreement, the 99-1
Agreement and the 99-2 Agreement is hereby amended by adding
the following Section 2.11 thereto in the appropriate
numerical order:
2.11 PROCEDURE FOR MAKING ADDITIONAL ADVANCE. The
Borrower may request the making of the Additional
Advance hereunder by delivering to Lender a notice in
the form of EXHIBIT H hereto (an "ADDITIONAL ADVANCE
NOTICE OF BORROWING") no later than 5:00 p.m., New
York City time, on any Business Day (but in no event
on more than one occasion) during the Additional
Advance Availability Period, appropriately completed
to specify the aggregate amount of the Additional
Advance requested. Subject to the prior or
contemporaneous satisfaction of each condition
precedent specified in Section 7.3 hereof during the
Additional Advance Availability Period, Lender shall
disburse the Additional Advance no later than the
close of business on the Business Day immediately
succeeding the Business Day on which Lender has
received the Additional Advance Notice of Borrowing.
If the Additional Advance Notice of Borrowing is
received by Lender after 5:00 p.m., New York City
time, on any Business Day, receipt by Lender of the
Additional Advance Notice of Borrowing shall be
deemed to have occurred at 9:00 a.m., New York City
time, on the immediately succeeding Business Day.
(w) Each of the 97-1 Agreement and the 97-2 Agreement is hereby
amended by adding the following Section 7.3 thereto in the
appropriate numerical order:
7.3 CONDITIONS PRECEDENT TO ADDITIONAL ADVANCE. The
obligation of Lender to extend the Additional Advance
hereunder shall be subject to the following
conditions:
(a) Each of the representations and warranties made
by Borrower and Guarantor in this Agreement and by
AMC in the AMC Guarantee shall be true and correct as
of the date the Additional Advance is disbursed;
(b) There shall not have occurred and be continuing
any Default, Event of Default or Other RF Event of
Default and Borrower, Guarantor and AMC shall be in
full compliance with all of their respective
covenants and obligations under this Agreement, the
Guarantee and the AMC Guarantee;
(c) There shall not have occurred a Change of
Control;
7
(d) Since February 29, 2000 there shall not have been
a material adverse change in the business,
operations, prospects or condition (financial or
otherwise) of Borrower, Guarantor or AMC, as
determined by Lender in good faith;
(e) The Additional Advance Condition shall be
satisfied;
(f) The disbursement of the Additional Advance shall
not violate any provision of law, regulation, order
or other governmental directive to which Lender or
any of its affiliates is bound; and
(g) Lender shall have received the Additional Advance
Notice of Borrowing described in Section 2.11 hereof.
(x) The following definition of "Second Additional Advance" is
hereby added to Section 1 of the 98-1 Agreement in the
appropriate alphabetical order:
"SECOND ADDITIONAL ADVANCE" has the meaning assigned
to thereto in Section 2.1 hereof.
(y) The following definition of "Second Additional Advance
Availability Period" is hereby added to Section 1 of the 98-1
Agreement in the appropriate alphabetical order:
"SECOND ADDITIONAL ADVANCE AVAILABILITY PERIOD"
means, with respect to the Second Additional Advance,
the period commencing on April 14, 2000 and ending on
the Second Additional Advance Expiry Date.
(z) The following definition of "Second Additional Advance Expiry
Date" is hereby added to Section 1 of the 98-1 Agreement in
the appropriate alphabetical order:
"SECOND ADDITIONAL ADVANCE EXPIRY DATE" means
December 31, 2000 or such earlier date as Lender's
commitment hereunder may be terminated pursuant to
the provisions hereof.
(aa) The following definition of "Maximum Second Additional
Advance" is hereby added to Section 1 of the 98-1 Agreement:
"MAXIMUM SECOND ADDITIONAL ADVANCE" has the meaning
assigned thereto in Section 2.1 hereof.
(bb) Section 2.1 of the 98-1 Agreement is hereby amended by adding
the following sentence to the end of such Section:
Subject to the terms and conditions of this
Agreement, Lender also agrees to lend to Borrower on
any date during the Second Additional Advance
8
Availability Period, an aggregate principal amount
not to exceed Seven Hundred Twenty Nine Thousand
Three Hundred Sixty Three Dollars ($729,363) (the
"MAXIMUM SECOND ADDITIONAL ADVANCE" and the borrowing
pursuant to this sentence, the "SECOND ADDITIONAL
ADVANCE"), such Second Additional Advance being
secured by the Collateral; PROVIDED, HOWEVER, that
the Maximum Second Additional Advance shall be
reduced to the extent necessary to ensure that after
giving effect to the Second Additional Advance, the
Advance Rate shall not exceed the Target Advance
Rate.
(cc) The definition of "Loan" in the 98-1 Agreement is hereby
amended by adding the following proviso at the end of such
definition:
, PROVIDED, FURTHER, that the term "LOAN" shall for
all purposes include the Second Additional Advance.
(dd) Section 2.3(a) of the 98-1 Agreement is hereby amended by
adding the following sentence to the end of such Section:
Borrower shall execute and deliver to Lender on or
prior to April 14, 2000 a replacement Note evidencing
the Loan as increased by the Maximum Second
Additional Advance permitted pursuant to Section 2.1.
(ee) The 98-1 Agreement is hereby amended by adding the following
Section 2.11 thereto in the appropriate numerical order:
2.11 PROCEDURE FOR MAKING SECOND ADDITIONAL ADVANCE.
The Borrower may request the making of the Second
Additional Advance hereunder by delivering to Lender
a notice in the form of EXHIBIT H hereto (a "SECOND
ADDITIONAL ADVANCE NOTICE OF BORROWING") no later
than 5:00 p.m., New York City time (but in no event
on more than one occasion) during the Second
Additional Advance Availability Period, appropriately
completed to specify the aggregate amount of the
Second Additional Advance requested. Subject to the
prior or contemporaneous satisfaction of each
condition precedent specified in Section 7.3 hereof
during the Second Additional Advance Availability
Period, Lender shall disburse the Second Additional
Advance no later than the close of business on the
Business Day immediately succeeding the Business Day
on which Lender has received the Second Additional
Advance Notice of Borrowing. If the Second Additional
Advance Notice of Borrowing is received by Lender
after 5:00 p.m., New York City time, on any Business
Day, receipt by Lender of the Second Additional
Advance Notice of Borrowing shall be deemed to have
occurred at 9:00 a.m., New York City time, on the
immediately succeeding Business Day.
9
(ff) The 98-1 Agreement is hereby amended by adding the following
Section 7.3 thereto in the appropriate numerical order:
7.3 CONDITIONS PRECEDENT TO SECOND ADDITIONAL
ADVANCE. The obligation of Lender to extend the
Second Additional Advance hereunder shall be subject
to the following conditions:
(a) Each of the representations and warranties made
by Borrower and Guarantor in this Agreement and by
AMC in the AMC Guarantee shall be true and correct as
of the date the Second Additional Advance is
disbursed;
(b) There shall not have occurred and be continuing
any Default, Event of Default or Other RF Event of
Default and Borrower, Guarantor and AMC shall be in
full compliance with all of their respective
covenants and obligations under this Agreement, the
Guarantee and the AMC Guarantee;
(c) There shall not have occurred a Change of
Control;
(d) Since February 29, 2000 there shall not have been
a material adverse change in the business,
operations, prospects or condition (financial or
otherwise) of Borrower, Guarantor or AMC, as
determined by Lender in good faith;
(e) The Second Additional Advance Condition shall be
satisfied;
(f) The disbursement of the Second Additional Advance
shall not violate any provision of law, regulation,
order or other governmental directive to which Lender
or any of its affiliates is bound; and
(g) Lender shall have received the Second Additional
Advance Notice of Borrowing described in Section 2.11
hereof.
(gg) Section 2.1 of each of the 99-1 Agreement and the 99-2
Agreement is hereby amended by adding the following sentence
to the end of such Section:
Subject to the terms and conditions of this
Agreement, Lender also agrees to lend to Borrower on
any date during the Additional Advance Availability
Period, an aggregate principal amount up to the
maximum amount that would satisfy the Additional
Advance Condition (the "MAXIMUM ADDITIONAL ADVANCE"
and the borrowing pursuant to this sentence, the
"ADDITIONAL ADVANCE"), such Additional Advance being
secured by the Collateral; PROVIDED, HOWEVER, that
the Maximum Additional Advance shall be reduced to
the extent necessary to ensure that
10
after giving effect to the Additional Advance, the
Advance Rate shall not exceed 60%.
(hh) Each of the 99-1 Agreement and the 99-2 Agreement is hereby
amended by adding the following Section 7.3 thereto in the
appropriate numerical order:
7.3 CONDITIONS PRECEDENT TO ADDITIONAL ADVANCE. The
obligation of Lender to extend the Additional Advance
hereunder shall be subject to the following
conditions:
(a) Each of the representations and warranties made
by Borrower and Guarantor in this Agreement and by
AMC in the AMC Guarantee shall be true and correct as
of the date the Additional Advance is disbursed;
(b) There shall not have occurred and be continuing
any Default, Event of Default or Other RF Event of
Default and Borrower, Guarantor and AMC shall be in
full compliance with all of their respective
covenants and obligations under this Agreement, the
Guarantee and the AMC Guarantee;
(c) There shall not have occurred a Change of
Control;
(d) Since February 29, 2000 there shall not have been
a material adverse change in the business,
operations, prospects or condition (financial or
otherwise) of Borrower, Guarantor or AMC, as
determined by Lender in good faith;
(e) The Additional Advance Condition shall be
satisfied;
(f) The disbursement of the Additional Advance shall
not violate any provision of law, regulation, order
or other governmental directive to which Lender or
any of its affiliates is bound;
(g) Borrower shall have delivered to Lender an
executed replacement promissory note evidencing the
Loan as increased by the Additional Advance in the
form of EXHIBIT I hereto; and
(h) Borrower shall have delivered to Lender an
opinion of special counsel to Borrower regarding the
due execution and delivery of the replacement
promissory note, in form and substance satisfactory
to Lender.
(i) Lender shall have received the Additional Advance
Notice of Borrowing described in Section 2.11 hereof.
11
(ii) The following definition of "GCFP Trigger Event" is hereby
added to Section 1 of each of the 98-2 Agreement, the 99-1
Agreement and the 99-2 Agreement, in each case in the
appropriate alphabetical order:
"GCFP TRIGGER EVENT" means, with respect to any
Determination Date, the occurrence of any of the
following events: (a) the Cumulative Default Rate
equals or exceeds 85% of the percentage referenced in
clause (b) of the definition of Trigger Event
relating to such Determination Date, (b) the
Cumulative Loss Rate equals or exceeds 85% of the
percentage referenced in clause (c) of the definition
of Trigger Event relating to such Determination Date
or (c) the Average Delinquency Ratio equals or
exceeds 6.50% for two successive Determination Dates.
(jj) The following definition of " Trigger Event" is hereby added
to Section 1 of each Residual Financing Agreement, in each
case in the appropriate alphabetical order:
"TRIGGER EVENT" shall have the meaning assigned to
such term in the Spread Account Agreement.
(kk) The following definition of "98-2 Spread Account Agreement" is
hereby added to Section 1 of each Residual Financing Agreement
(other than the 98-2 Agreement), in each case in the
appropriate alphabetical order:
"98-2 SPREAD ACCOUNT AGREEMENT" means the "Spread
Account Agreement", as defined in the Credit and
Security Agreement dated as of November 25, 1998
among Borrower, Lender and Guarantor.
(ll) The following definition of "99-1 Spread Account Agreement" is
hereby added to Section 1 of each Residual Financing Agreement
(other than the 99-1 Agreement), in each case in the
appropriate alphabetical order:
"99-1 SPREAD ACCOUNT AGREEMENT" means the "Spread
Account Agreement", as defined in the Credit and
Security Agreement dated as of August 12, 1999 among
Lender, Borrower and Guarantor.
(mm) The following definition of "99-2 Spread Account Agreement" is
hereby added to Section 1 of each Residual Financing Agreement
(other than the 99-2 Agreement), in each case in the
appropriate alphabetical order:
"99-2 SPREAD ACCOUNT AGREEMENT" means the "Spread
Account Agreement", as defined in the Credit and
Security Agreement dated as of December 9, 1999 among
Lender, Borrower and Guarantor.
(nn) Section 2.7(a) of each of the 97-1 Agreement and the 97-2
Agreement is hereby amended by adding the following sentence
to the end of such Section:
12
Any amounts received by Lender pursuant to the
immediately preceding sentence prior to 6:00 p.m.,
New York City time, on any Business Day shall be
deemed to be received on such Business Day, and any
amounts received by Lender after 6:00 p.m., New York
City time, on any Business Day shall be deemed to be
received on the next succeeding Business Day.
(oo) Section 2.7(b) of each of the 98-1 Agreement, the 98-2
Agreement, the 99-1 Agreement and the 99-2 Agreement is hereby
amended by adding the following sentence to the end of such
Section:
Any amounts received by Lender pursuant to this
Section 2.7(b) prior to 6:00 p.m., New York City
time, on any Business Day shall be deemed to be
received on such Business Day, and any amounts
received by Lender after 6:00 p.m., New York City
time, on any Business Day shall be deemed to be
received on the next succeeding Business Day.
(pp) Each of the 97-1 Agreement, the 97-2 Agreement and the 98-1
Agreement is hereby amended by adding the following Section in
the appropriate numerical order (such Section to be numbered
3.13 in the 97-1 Agreement and 3.15 in each of the 97-2
Agreement and the 98-1 Agreement):
PAYMENT OF EXCESS CASH FLOW. Upon receiving a
distribution pursuant to Section 2.5(b) hereof in
respect of amounts distributable to the Excess Cash
Flow Certifiateholder under the Pooling and Servicing
Agreement and the Spread Account Agreement, Lender
shall remit to Borrower an amount equal to 35% of any
such distribution by 4:00 p.m., New York City time,
on the date of receipt by Lender, in the case of
distributions received by Lender before 1:00 p.m.,
New York City time, and by 12:00 noon, New York City
time, on the Business Day immediately succeeding the
date of receipt by Lender, in the case of
distributions received by Lender after 1:00 p.m., New
York City time; PROVIDED, HOWEVER, that if a Trigger
Event (as defined in the Spread Account Agreement,
the 98-2 Spread Account Agreement, the 99-1 Spread
Account Agreement or the 99-2 Spread Account
Agreement) has occurred and is continuing, Lender
shall not remit to Borrower any amounts received by
Lender pursuant to Section 2.5(b) hereof. Lender
shall remit any amounts payable to Borrower pursuant
to the immediately preceding sentence to Borrower's
account (Account No. 00102672111) at Chase Bank of
Texas, N.A. (ABA No. 000000000).
(qq) The 98-2 Agreement is hereby amended by adding the following
Section 3.15 hereof in the appropriate numerical order:
3.15 PAYMENT OF EXCESS CASH FLOW. Upon receiving a
distribution pursuant to Section 2.5(b) hereof in
respect of amounts distributable to the
13
Excess Cash Flow Certifiateholder under the
Pooling and Servicing Agreement and the Spread
Account Agreement, Lender shall remit to Borrower
an amount equal to 35% of any such distribution by
4:00 p.m., New York City time, on the date of
receipt by Lender, in the case of distributions
received by Lender before 1:00 p.m., New York City
time, and by 12:00 noon, New York City time, on
the Business Day immediately succeeding the date
of receipt by Lender, in the case of distributions
received by Lender after 1:00 p.m., New York City
time; PROVIDED, HOWEVER, that if a Trigger Event
(as defined in the Spread Account Agreement, the
99-1 Spread Account Agreement or the 99-2 Spread
Account Agreement) or a GCFP Trigger Event has
occurred and is continuing, Lender shall not remit
to Borrower any amounts received by Lender
pursuant to Section 2.5(b) hereof. Lender shall
remit any amounts payable to Borrower pursuant to
the immediately preceding sentence to Borrower's
account (Account No. 00102672111) at Chase Bank of
Texas, N.A. (ABA No. 000000000).
(rr) The 99-1 Agreement is hereby amended by adding the following
Section 3.15 hereof in the appropriate numerical order:
3.15 PAYMENT OF EXCESS CASH FLOW. Upon receiving a
distribution pursuant to Section 2.5(b) hereof in
respect of amounts distributable to the
Certifiateholder under the Sale and Servicing
Agreement and the Spread Account Agreement, Lender
shall remit to Borrower an amount equal to 40% of any
such distribution by 4:00 p.m., New York City time,
on the date of receipt by Lender, in the case of
distributions received by Lender before 1:00 p.m.,
New York City time, and by 12:00 noon, New York City
time, on the Business Day immediately succeeding the
date of receipt by Lender, in the case of
distributions received by Lender after 1:00 p.m., New
York City time; PROVIDED, HOWEVER, that if a Trigger
Event (as defined in the Spread Account Agreement,
the 98-2 Spread Account Agreement or the 99-2 Spread
Account Agreement) or a GCFP Trigger Event has
occurred and is continuing, Lender shall not remit to
Borrower any amounts received by Lender pursuant to
Section 2.5(b) hereof. Lender shall remit any amounts
payable to Borrower pursuant to the immediately
preceding sentence to Borrower's account (Account No.
00102672111) at Chase Bank of Texas, N.A. (ABA No.
000000000).
(ss) The 99-2 Agreement is hereby amended by adding the following
Section 3.15 hereof in the appropriate numerical order:
14
3.15 PAYMENT OF EXCESS CASH FLOW. Upon receiving a
distribution pursuant to Section 2.5(b) hereof in
respect of amounts distributable to the
Certifiateholder under the Sale and Servicing
Agreement and the Spread Account Agreement, Lender
shall remit to Borrower an amount equal to 40% of any
such distribution by 4:00 p.m., New York City time,
on the date of receipt by Lender, in the case of
distributions received by Lender before 1:00 p.m.,
New York City time, and by 12:00 noon, New York City
time, on the Business Day immediately succeeding the
date of receipt by Lender, in the case of
distributions received by Lender after 1:00 p.m., New
York City time; PROVIDED, HOWEVER, that if a
Trigger Event (as defined in the Spread Account
Agreement, the 98-2 Spread Account Agreement or the
99-1 Spread Account Agreement) or a GCFP Trigger
Event has occurred and is continuing, Lender shall
not remit to Borrower any amounts received by Lender
pursuant to Section 2.5(b) hereof. Lender shall remit
any amounts payable to Borrower pursuant to the
immediately preceding sentence to Borrower's account
(Account No. 00102672111) at Chase Bank of Texas,
N.A. (ABA No. 000000000).
(tt) The following definition of "Constant Default Rate" is hereby
added to Section 1 of each Residual Financing Agreement, in
each case in the appropriate alphabetical order:
"CONSTANT DEFAULT RATE" means, with respect to any
Collection Period:
12
100 x (1-(1-D ))
where "D" equals the Default Rate for such
Collection Period.
(uu) The definition of "Average Default Rate" in each Residual
Financing Agreement is hereby deleted in its entirety and
replaced by the following definition of "Average Constant
Default Rate" in each case in the appropriate alphabetical
order:
"AVERAGE CONSTANT DEFAULT RATE" means, as of any
Calculation Date, the lesser of (i) the arithmetic
average of the Constant Default Rates for the most
recent three months as reported in the monthly
information sheets delivered by Borrower to Lender
and (ii) the arithmetic average of the Constant
Default Rates for the most recent six months as
reported in the monthly information sheets delivered
by Borrower to Lender.
15
(vv) The definition of "Default Rate" in each Residual Financing
Agreement is hereby amended and restated in its entirety to
read as follows:
"DEFAULT RATE" means, with respect to any Collection
Period, a fraction, expressed as a percentage, (a)
the numerator of which is the sum of (1) the
aggregate of the Principal Balances (as of the end of
the immediately preceding Collection Period) of all
Receivables that became Liquidated Receivables during
the current Collection Period and (2) the aggregate
of the Principal Balances (as of the related
repurchase date) of all Receivables that became
Purchased Receivables during such current Collection
Period that were 30 days or more delinquent
(calculated based on a 360-day year consisting of
twelve 30-day months) with respect to more than 5% of
a Scheduled Receivable Payment at the time of such
repurchase and (b) the denominator of which is equal
to Pool Balance as of the end of the immediately
preceding Collection Period.
(ww) The definition of "Valuation Rates" in each Residual Financing
Agreement is hereby amended and restated in its entirety to
read as follows:
"VALUATION RATES" means, collectively, the Prepayment
Rate, the Average Constant Default Rate, the Recovery
Rate and the Discount Rate.
(xx) The definition of "Monthly Recovery Rate" in each Residual
Financing Agreement is hereby amended and restated in its
entirety to read as follows:
"MONTHLY RECOVERY RATE" means, with respect to any
Collection Period, a fraction, the numerator of which
shall equal the sum of all Liquidation Proceeds and
Recoveries for such Collection Period, and the
denominator of which shall equal the sum of the
Principal Balances (as of the end of the immediately
preceding Collection Period) of all Receivables which
were actually liquidated during such Collection
Period, in each case as reported in the related
Servicer's Certificate.
(yy) The following definition of "Principal Balance" is hereby
added to Section 1 of each of the 97-1 Agreement, the 97-2
Agreement and the 98-1 Agreement, in each case in the
appropriate alphabetical order:
"PRINCIPAL BALANCE" has the meaning assigned thereto
in the Pooling and Servicing Agreement, without
giving effect to the proviso at the end of such
definition.
(zz) The definition of "Principal Balance" in the 98-2 Agreement is
hereby amended and restated in its entirety to read as
follows:
16
"PRINCIPAL BALANCE" has the meaning assigned thereto
in the Pooling and Servicing Agreement, without
giving effect to the proviso at the end of such
definition.
(aaa) The following definition of "Principal Balance" is hereby
added to Section 1 of the 99-1 Agreement, in the appropriate
alphabetical order:
"PRINCIPAL BALANCE" has the meaning assigned thereto
in Annex A to the Sale and Servicing Agreement,
without giving effect to the proviso at the end of
such definition.
(bbb) Each Residual Financing Agreement is hereby amended by adding
the following Section in the appropriate numerical order (such
Section to be numbered 6.6 in the 97-1 Agreement and the 97-2
Agreement, 6.7 in the 98-1 Agreement, 6.8 in the 98-2
Agreement and 6.9 in the 99-1 Agreement and the 99-2
Agreement):
CHANGE OF CONTROL. No Change of Control shall occur.
(ccc) Section 4.8 of each Residual Financing Agreement is hereby
amended and restated in its entirety to read as follows:
4.8 FINANCIAL STATEMENTS. The unaudited balance
sheets of Guarantor as at February 29, 2000 and the
related statements of income for the fiscal periods
ended on such date, heretofore furnished to Lender,
are complete and correct in all material respects and
fairly present the financial condition of Guarantor
as at said date (subject to normal year-end audit
adjustments), all in accordance with U.S. generally
accepted accounting principles applied on a
consistent basis. On said dates, Guarantor had no
material contingent liabilities, liabilities for
taxes, unusual or anticipated losses from any
unfavorable commitments, except as referred to or
reflected in said balance sheets as at said dates.
Since February 29, 2000 there has been no material
adverse change in the operations, condition
(financial or otherwise), business or prospects of
Guarantor from that set forth in said financial
statements as at said date.
(ddd) Each Residual Financing Agreement is hereby amended by adding
the following Section in the appropriate numerical order (such
Section to be numbered 5.14 in the 97-1 Agreement, the 97-2
Agreement and the 98-1 Agreement, 5.16 in the 98-2 Agreement,
5.15 in the 99-1 Agreement and 5.16 in the 99-2 Agreement):
MATERIAL ADVERSE CHANGE. Each of Borrower and
Guarantor shall promptly give written notice to
Lender of Borrower or Guarantor, as applicable,
obtaining knowledge of or its discovery of a material
adverse change in the business, operations, prospects
or condition (financial or otherwise) of Borrower,
Guarantor or AMC, which in Borrower's or
17
Guarantor's, as applicable, good faith, reasonable
judgment gives Borrower or Guarantor, as
applicable, reasonable cause to believe that as a
result of such event (x) Borrower may be unable to
fulfill its obligations hereunder (y) Guarantor
may be unable to fulfill its obligations under the
Guarantee or (z) AMC may be unable to fulfill its
obligations under the AMC Guarantee.
(eee) Each of the 97-1 Agreement, the 97-2 Agreement, the 98-1
Agreement, the 98-2 Agreement and the 99-1 Agreement is hereby
amended by adding the following Section in the appropriate
numerical order (such Section to be numbered 5.15 in the 97-1
Agreement, the 97-2 Agreement and the 98-1 Agreement, 5.17 in
the 98-2 Agreement and 5.16 in the 99-1 Agreement):
INFORMATION SHEET. By 1:00 p.m. (New York City time),
on each Payment Date, Guarantor shall deliver to
Lender an information sheet indicating the Average
Constant Default Rate for the related Collection
Periods.
(fff) Section 5.14 of the 99-2 Agreement is hereby amended and
restated in its entirety to read as follows:
5.14 INFORMATION SHEET. By 1:00 p.m. (New York City
time), on each Payment Date, Guarantor shall deliver
to Lender an information sheet indicating the Average
Constant Default Rate for the related Collection
Periods.
(ggg) Exhibit H is hereby added as an exhibit to each Residual
Financing Agreement in the form attached to this Amendment as
ANNEX I.
(hhh) Exhibit I is hereby added as an exhibit to each of the 99-1
Agreement and the 99-2 Agreement in the form attached to this
Amendment as ANNEX II.
3. CONDITIONS PRECEDENT TO AMENDMENT. The obligations of Lender to enter into
this Amendment, and to perform its obligations hereunder, are subject to the
fulfillment of each condition precedent set forth in EXHIBIT A hereto.
4. EXPENSES. Each of Borrower and Guarantor shall pay to Lender (without
duplication), on demand, any and all fees, costs and expenses (including
reasonable fees and expenses of counsel) incurred by Lender in connection with
the preparation, execution, delivery and performance of this Amendment.
5. CONFIRMATIONS; REPRESENTATIONS AND WARRANTIES.
(a) Except as expressly amended hereby, all of the terms of each
Residual Financing Agreement shall remain in full force and
effect and are hereby ratified and confirmed in all respects.
18
(b) All presently outstanding and new Loans (as defined in each
Residual Financing Agreement) made under such Residual
Financing Agreement (including without limitation the
Additional Advance made under each of the 97-1 Agreement, the
97-2 Agreement, the 99-1 Agreement and the 99-2 Agreement and
the Second Additional Advance made under the 98-1 Agreement)
(each together with accrued interest thereon pursuant to the
terms of such Residual Financing Agreement) shall constitute
"Obligations" under such Residual Financing Agreement and
"Other RF Obligations" under each other Residual Financing
Agreement.
(c) Each of Borrower and Guarantor hereby represents and warrants
to Lender that (i) it has the requisite power and authority,
and legal right, to execute and deliver this Amendment and to
perform its obligations under this Amendment and each Residual
Financing Agreement as amended by this Amendment, (ii) it has
taken all necessary corporate and legal action to duly
authorize the execution and delivery of this Amendment and the
performance of its obligations under this Amendment and each
Residual Financing Agreement as amended by this Amendment,
(iii) this Amendment has been duly executed and delivered by
it, (iv) each of this Amendment and each Residual Financing
Agreement as amended by this Amendment constitutes its legal,
valid and binding obligation enforceable against it in
accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law) and
(v) after giving effect to this Amendment, no Default or Event
of Default under any Residual Financing Agreement has occurred
and is continuing.
(d) Each representation and warranty contained in each Residual
Financing Agreement is true and correct as of the date of this
Amendment and is hereby restated and affirmed.
(e) Each covenant contained in each Residual Financing Agreement
is hereby restated and affirmed.
6. FURTHER ASSURANCES. The parties hereto hereby agree to execute and deliver
such additional documents, instruments or agreements as may be reasonably
necessary and appropriate to effectuate the purposes of this Amendment.
7. CONFLICTS. In the event of a conflict of any provision hereof with any
provision or definition set forth in a Residual Financing Agreement, the
provisions and definitions of this Amendment shall control.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
19
9. SEVERABILITY. Any provision of this Amendment or a Residual Financing
Agreement which is prohibited, unenforceable or not authorized in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition, unenforceability or non-authorization without invalidating the
remaining provisions hereof or thereof or affecting the validity, enforceability
or legality of such provisions in any other jurisdiction.
10. BINDING EFFECT. This Amendment shall be binding upon and shall be
enforceable by parties hereto and their respective successors and permitted
assigns.
11. HEADINGS. The headings appearing in this Amendment are included solely for
convenience of reference and are not intended to affect the interpretation of
any other provision of this Amendment.
12. COUNTERPARTS. This Amendment may be signed in any number of counterparts
which, taken together, shall constitute a full and original agreement for all
purposes.
20
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective authorized officers as of the
date first above written.
LONG BEACH ACCEPTANCE
RECEIVABLES CORP., as Borrower
By: _____________________________
Name:
Title:
LONG BEACH ACCEPTANCE CORP., as
Guarantor
By: _____________________________
Name:
Title:
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC., as Lender
By: _____________________________
Name:
Title:
21
EXHIBIT A
CONDITIONS PRECEDENT
Borrower and the Guarantor shall deliver or cause to be delivered to Lender the
following, in each case in form and substance satisfactory to Lender:
1. Replacement promissory notes executed by Borrower under the
97-1 Agreement, the 97-2 Agreement and the 98-1 Agreement (in
the forms attached as EXHIBIT B, to this Amendment).
2. Letter of Guarantor acknowledging that each of the Guarantees
relates to the related Residual Financing Agreement as amended
by this Amendment, in the form attached to this Amendment as
EXHIBIT C.
3. Letter of Ameriquest Mortgage Company ("AMC") amending each of
the AMC Guarantees and acknowledging that each of the AMC
Guarantees as amended relates to the related Residual
Financing Agreement as amended by this Amendment, in the form
attached to this Amendment as EXHIBIT D.
4. Opinion of Xxxxx Xxxxxxxxxx LLP, special counsel to Borrower
and Guarantor, in form and substance satisfactory to Lender.
5. Opinion of counsel to AMC, regarding due authorization,
execution and delivery of the amendment and acknowledgement
letter of AMC in form and substance satisfactory to Lender.
6. Secretary's Certificate and Incumbency Certificate of Borrower
(including good standing certificate of the Delaware Secretary
of State and certified resolutions of Borrower's board of
directors relating to the Residual Financing Agreements as
amended by this Amendment), in form and substance satisfactory
to Lender.
7. Secretary's Certificate and Incumbency Certificate of
Guarantor (including good standing certificate of the Delaware
Secretary of State and certified resolutions of Guarantor's
board of directors relating to the Residual Financing
Agreements as amended by this Amendment), in form and
substance satisfactory to Lender.
8. Secretary's Certificate and Incumbency Certificates of AMC
(including good standing certificate of the Delaware Secretary
of State and certified resolutions of AMC's board of directors
relating to the amended AMC Guarantees), in form and substance
satisfactory to Lender.
9. Such other opinions, documents and instruments as Lender or
its counsel shall reasonably request.
A-1
EXHIBIT B-1
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
PROMISSORY NOTE
April 14, 2000
Amount: U.S. $4,321,626
FOR VALUE RECEIVED, LONG BEACH ACCEPTANCE RECEIVABLES CORP. (the
"Borrower") unconditionally promises to pay on the Maturity Date (as defined in
the 97-1 Agreement referred to below) to the order of Greenwich Capital
Financial Products, Inc. (the "Lender") in Federal or other immediately
available funds in lawful money of the United States the principal sum of Four
Million Three Hundred Twenty One Thousand Six Hundred Twenty Six Dollars (U.S
$4,321,626) or, if less, the aggregate unpaid principal amount of the Loans made
by Lender to Borrower pursuant to the 97-1 Agreement, and to pay interest
thereon from the date hereof until this Note is repaid in like money at the
rates per annum and in the manner set forth in the 97-1 Agreement.
The principal of and interest on this Note shall be payable in
immediately available funds without set-off or counterclaim, in the manner set
forth in the 97-1 Agreement.
This Note is issued pursuant to the terms of a Credit and Security
Agreement dated as of March 31, 1997 among Borrower, Lender and Long Beach
Acceptance Corp., as Guarantor (as amended from time to time, the "97-1
Agreement"), and is subject to the terms thereof and is entitled to the benefits
therein provided.
Upon the occurrence of an Event of Default (as defined in the 97-1
Agreement), the principal of and accrued interest on this Note may be declared
due and payable in the manner and with the effect provided in the 97-1
Agreement, without presentment, demand, protest or notice of any kind, each of
which is hereby expressly waived by Borrower.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW
OF THE STATE OF NEW YORK.
LONG BEACH ACCEPTANCE RECEIVABLES CORP.
By: __________________________________
Name:
Title:
X-0-0
XXXXXXX X-0
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
PROMISSORY NOTE
April 14, 2000
Amount: U.S. $6,801,908
FOR VALUE RECEIVED, LONG BEACH ACCEPTANCE RECEIVABLES CORP. (the
"Borrower") unconditionally promises to pay on the Maturity Date (as defined in
the 97-2 Agreement referred to below) to the order of Greenwich Capital
Financial Products, Inc. (the "Lender") in Federal or other immediately
available funds in lawful money of the United States the principal sum of Six
Million Eight Hundred One Thousand Nine Hundred Eight Dollars (U.S. $6,801,908)
or, if less, the aggregate unpaid principal amount of the Loans made by Lender
to Borrower pursuant to the 97-2 Agreement, and to pay interest thereon from the
date hereof until this Note is repaid in like money at the rates per annum and
in the manner set forth in the 97-2 Agreement.
The principal of and interest on this Note shall be payable in
immediately available funds without set-off or counterclaim, in the manner set
forth in the 97-2 Agreement.
This Note is issued pursuant to the terms of a Credit and Security
Agreement dated as of August 29, 1997 among Borrower, Lender and Long Beach
Acceptance Corp., as Guarantor (as amended from time to time, the "97-2
Agreement"), and is subject to the terms thereof and is entitled to the benefits
therein provided.
Upon the occurrence of an Event of Default (as defined in the 97-2
Agreement), the principal of and accrued interest on this Note may be declared
due and payable in the manner and with the effect provided in the 97-2
Agreement, without presentment, demand, protest or notice of any kind, each of
which is hereby expressly waived by Borrower.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW
OF THE STATE OF NEW YORK.
LONG BEACH ACCEPTANCE RECEIVABLES CORP.
By: __________________________________
Name:
Title:
X-0-0
XXXXXXX X-0
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
PROMISSORY NOTE
April 14, 2000
Amount: U.S. $5,739,491
FOR VALUE RECEIVED, LONG BEACH ACCEPTANCE RECEIVABLES CORP. (the
"Borrower") unconditionally promises to pay on the Maturity Date (as defined in
the 98-1 Agreement referred to below) to the order of Greenwich Capital
Financial Products, Inc. (the "Lender") in Federal or other immediately
available funds in lawful money of the United States the principal sum of Five
Million Seven Hundred Thirty Nine Thousand Four Hundred Ninety One Dollars (U.S.
$5,739,491) or, if less, the aggregate unpaid principal amount of the Loans made
by Lender to Borrower pursuant to the 98-1 Agreement, and to pay interest
thereon from the date hereof until this Note is repaid in like money at the
rates per annum and in the manner set forth in the 98-1 Agreement.
The principal of and interest on this Note shall be payable in
immediately available funds without set-off or counterclaim, in the manner set
forth in the 98-1 Agreement.
This Note is issued pursuant to the terms of a Credit and Security
Agreement dated as of January 30, 1998 among Borrower, Lender and Long Beach
Acceptance Corp., as Guarantor (as amended from time to time, the "98-1
Agreement"), and is subject to the terms thereof and is entitled to the benefits
therein provided.
Upon the occurrence of an Event of Default (as defined in the 98-1
Agreement), the principal of and accrued interest on this Note may be declared
due and payable in the manner and with the effect provided in the 98-1
Agreement, without presentment, demand, protest or notice of any kind, each of
which is hereby expressly waived by Borrower.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW
OF THE STATE OF NEW YORK.
LONG BEACH ACCEPTANCE RECEIVABLES CORP.
By: __________________________________
Name:
Title:
B-3-1
EXHIBIT C
[LBAC LETTERHEAD]
April 14, 2000
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to (i) the Credit and Security Agreement dated as of
March 31, 1997 (as amended, supplemented or otherwise modified prior to the date
hereof, the "Original 00-0 Xxxxxxxxx") xxxxx Xxxx Xxxxx Acceptance Receivables
Corp. ("Borrower"), Long Beach Acceptance Corp. ("Guarantor") and Greenwich
Capital Financial Products, Inc. ("Lender"), (ii) the Credit and Security
Agreement dated as of August 29, 1997 (as amended, supplemented or otherwise
modified prior to the date hereof, the "Original 97-2 Agreement") among
Borrower, Guarantor and Lender, (iii) the Credit and Security Agreement dated as
of January 30, 1998 (as amended, supplemented or otherwise modified prior to the
date hereof, the "Original 98-1 Agreement") among Borrower, Guarantor and
Lender, (iv) the Credit and Security Agreement dated as of November 25, 1998 (as
amended, supplemented or otherwise modified prior to the date hereof, the
"Original 98-2 Agreement") among Borrower, Guarantor and Lender, (v) the Credit
and Security Agreement dated as of August 12, 1999 (as amended, supplemented or
otherwise modified prior to the date hereof, the "Original 99-1 Agreement")
among Borrower, Guarantor and Lender, (vi) the Credit and Security Agreement
dated as of December 9, 1999 (as amended, supplemented or otherwise modified
prior to the date hereof, the "Original 99-2 Agreement"; and collectively with
the Original 97-1 Agreement, the Original 97-2 Agreement, the Original 98-1
Agreement, the Original 98-2 Agreement and the Original 99-1 Agreement, the
"Original Residual Financing Agreements", and each individually, an "Original
Residual Financing Agreement") among Borrower, Guarantor and Lender, (vii) the
Guarantee by Guarantor dated as of March 31, 1997 (the "97-1 Guarantee") in
favor of Lender, (viii) the Guarantee by Guarantor dated as of August 27, 1997
(the "97-2 Guarantee") in favor of Lender, (ix) the Guarantee by Guarantor dated
as of January 30, 1998 (the "98-1 Guarantee") in favor of Lender, (x) the
Guarantee by Guarantor dated as of November 25, 1998 (the "98-2 Guarantee") in
favor of Lender, (xi) the Guarantee by Guarantor dated as of August 12, 1999
(the "99-1 Guarantee") in favor of Lender and (xii) the Guarantee by Guarantor
dated as of December 9, 1999 (the "99-2 Guarantee"; and collectively with the
97-1 Guarantee, the 97-2 Guarantee, the 98-1 Guarantee, the 98-2 Guarantee and
the 99-1 Guarantee, the "Guarantees", and each individually, an "Guarantee") in
favor of Lender, and (xiii) Omnibus Amendment Agreement No. 3 dated as of April
14, 2000 (the "Amendment") among Borrower, Guarantor and Lender. The Original
97-1 Agreement, the Original 97-2 Agreement, the Original 98-1 Agreement, the
Original 98-2 Agreement, the Original 99-1 Agreement and the Original 99-2
Agreement, each
C-1
as amended by the Amendment, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with the respective terms
thereof are referred to herein as the "97-1 Agreement," the "97-2 Agreement,"
the "98-1 Agreement," the "98-2 Agreement," the "99-1 Agreement" and the
"99-2 Agreement," respectively, and collectively, the "Residual Financing
Agreements", and each individually, a "Residual Financing Agreement".
Capitalized terms used but not otherwise defined herein are used as defined
in the applicable Guarantee.
For good and valuable consideration, the receipt and sufficiency of
which we hereby acknowledge, we hereby agree and confirm that (i) we
unconditionally and irrevocably guarantee to Lender, or any successor in
interest of Lender, the due, punctual and complete payment and performance by
Borrower when and as due, whether at the stated maturity, by acceleration, upon
one or more dates set for repayment or prepayment or otherwise, of the
Obligations, (ii) all Loans outstanding under each Residual Financing Agreement
(including without limitation the Additional Advance made under and as defined
in each of the 97-1 Agreement, the 97-2 Agreement, the 99-1 Agreement and the
99-2 Agreement and the Second Additional Advance made under and as defined in
the 98-1 Agreement) (in each case together with interest accrued thereon
pursuant to the terms of such Residual Financing Agreement) shall constitute
"Obligations" under such Residual Financing Agreement, (iii) all "Obligations"
under each Residual Financing Agreement shall constitute "Obligations" under the
related Guarantee, and (iv) all of the terms of the Guarantees remain in full
force and effect and are hereby ratified and confirmed in all respects.
Very truly yours,
LONG BEACH ACCEPTANCE CORP.
By: __________________________
Name:
Title:
C-2
EXHIBIT D
[AMC LETTERHEAD]
April 14, 2000
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to (i) the Credit and Security Agreement dated as of
March 31, 1997 (as amended, supplemented or otherwise modified prior to the date
hereof, the "Original 00-0 Xxxxxxxxx") xxxxx Xxxx Xxxxx Acceptance Receivables
Corp. ("Borrower"), Long Beach Acceptance Corp. ("LBAC") and Greenwich Capital
Financial Products, Inc. ("Lender"), (ii) the Credit and Security Agreement
dated as of August 29, 1997 (as amended, supplemented or otherwise modified
prior to the date hereof, the "Original 97-2 Agreement") among Borrower, LBAC
and Lender, (iii) the Credit and Security Agreement dated as of January 30, 1998
(as amended, supplemented or otherwise modified prior to the date hereof, the
"Original 98-1 Agreement") among Borrower, LBAC and Lender, (iv) the Credit and
Security Agreement dated as of November 25, 1998 (as amended, supplemented or
otherwise modified prior to the date hereof, the "Original 98-2 Agreement")
among Borrower, LBAC and Lender, (v) the Credit and Security Agreement dated as
of August 12, 1999 (as amended, supplemented or otherwise modified prior to the
date hereof, the "Original 99-1 Agreement") among Borrower, LBAC and Lender,
(vi) the Credit and Security Agreement dated as of December 9, 1999 (as amended,
supplemented or otherwise modified prior to the date hereof, the "Original 99-2
Agreement"; and collectively with the Original 97-1 Agreement, the Original 97-2
Agreement, the Original 98-1 Agreement, the Original 98-2 Agreement and the
Original 99-1 Agreement, the "Original Residual Financing Agreements", and each
individually, an "Original Residual Financing Agreement") (vii) the LBMC
Guarantee by Ameriquest Mortgage Company (as successor of Long Beach Mortgage
Company) dated as of March 31, 1997 (the "97-1 AMC Guarantee") in favor of
Lender, (viii) the AMC Guarantee by Ameriquest Mortgage Company dated as of
August 27, 1997 (the "97-2 AMC Guarantee") in favor of Lender, (ix) the AMC
Guarantee by Ameriquest Mortgage Company dated as of January 30, 1998 (the "98-1
AMC Guarantee") in favor of Lender, (x) the AMC Guarantee by Ameriquest Mortgage
Company dated as of November 25, 1998 (the "98-2 AMC Guarantee"), (xi) the AMC
Guarantee by Ameriquest Mortgage Company dated as of August 12, 1999 (the "99-1
AMC Guarantee") in favor of Lender, (xii) the AMC Guarantee by Ameriquest
Mortgage Company dated as of December 9, 1999 (the "99-2 AMC Guarantee") in
favor of Lender (the 97-1 AMC Guarantee, the 97-2 AMC Guarantee, the 98-1 AMC
Guarantee, the 98-2 AMC Guarantee and the 99-1 AMC Guarantee and the 99-2 AMC
Guarantee are collectively referred to herein as the "AMC Guarantees", and each
individually, an "AMC Guarantee"), (xiii) the Guarantee by LBAC dated as of
March 31, 1997 (the "97-1 LBAC Guarantee") in favor of Lender, (xiv) the
Guarantee by LBAC dated as of August 27, 1997 (the "97-2 LBAC Guarantee") in
favor of Lender, (xv) the Guarantee by LBAC dated as of January 30, 1998 (the
"98-1 LBAC Guarantee") in favor of Lender, (xvi) the
D-1
Guarantee by LBAC dated as of November 25, 1998 (the "98-2 LBAC Guarantee")
in favor of Lender, (xvii) the Guarantee by LBAC dated as of August 12, 1999
(the "99-1 LBAC Guarantee") in favor of Lender, (xviii) the Guarantee by LBAC
dated as of December 9, 1999 (the "99-2 LBAC Guarantee"; and collectively
with the 97-1 LBAC Guarantee, the 97-2 LBAC Guarantee, the 98-1 LBAC
Guarantee, the 98-2 LBAC Guarantee and the 99-1 LBAC Guarantee, the "LBAC
Guarantees", and each individually, a "LBAC Guarantee") in favor of Lender,
and (xix) Omnibus Amendment Agreement No. 3 dated as of April 14, 2000 (the
"Amendment") among Borrower, LBAC, as guarantor, and Lender. The Original
97-1 Agreement, the Original 97-2 Agreement, the Original 98-1 Agreement, the
Original 98-2 Agreement, the Original 99-1 Agreement and the Original 99-2
Agreement, as amended by the Amendment, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with the
respective terms thereof are referred to herein as the "97-1 Agreement," the
"97-2 Agreement," the "98-1 Agreement," the "98-2 Agreement," the "99-1
Agreement" and the "99-2 Agreement," respectively, and collectively, the
"Residual Financing Agreements", and each individually, a "Residual Financing
Agreement". Capitalized terms used but not otherwise defined herein are used
as defined in the applicable AMC Guarantee.
For good and valuable consideration, the receipt and sufficiency of
which we hereby acknowledge, we hereby agree and confirm that (i) we
unconditionally and irrevocably guarantee to Lender, or any successor in
interest of Lender, the due, punctual and complete payment and performance by
LBAC when and as due, whether at the stated maturity, by acceleration, upon one
or more dates set for repayment or prepayment or otherwise, of the LBAC
Obligations, (ii) all Loans outstanding under each Residual Financing Agreement
(including without limitation the Additional Advance made under and as defined
in each of the 97-1 Agreement, the 97-2 Agreement, the 99-1 Agreement and the
99-2 Agreement and the Second Additional Advance made under and as defined in
the 98-1 Agreement) (in each case together with interest accrued thereon
pursuant to the terms of such Residual Financing Agreement) shall constitute
"Obligations" under such Residual Financing Agreement, (iii) all "Obligations"
under each Residual Financing Agreement shall constitute "LBAC Obligations"
under the related AMC Guarantee, as amended by this letter, and (iv) all of the
terms of the AMC Guarantees, as amended by this letter, remain in full force and
effect and are hereby ratified and confirmed in all respects.
We hereby further amend and restate Section 10(g) of each AMC Guarantee
in its entirety to read as follows:
(g) FINANCIAL CONDITION. AMC shall maintain a net worth of at least
100% of the net worth AMC is required to maintain pursuant to the
credit documents AMC has entered into with its primary warehouse lender
(which on the date hereof is Chase Bank of Texas, National Association)
(net worth, in each case, being calculated in accordance with such
credit documents); PROVIDED that, if such credit documents are
terminated and AMC does not have a primary warehouse lender, the
reference to such credit documents will be deemed to be to such credit
documents as in effect immediately prior to such termination. AMC shall
maintain a debt-to-equity ratio of no more than 100% of the
debt-to-equity ratio AMC is required to maintain pursuant to the credit
documents AMC has entered into with its primary warehouse lender (which
on the date hereof is Chase Bank of
D-2
Texas, National Association) (debt-to-equity, in each case, being
calculated in accordance with such credit documents); PROVIDED that,
if such credit documents are terminated and AMC does not have a
primary warehouse lender, the reference to credit documents AMC has
entered into with its primary warehouse lender will be deemed to be
to such credit documents as in effect immediately prior to such
termination.
Very truly yours,
AMERIQUEST MORTGAGE COMPANY
By: __________________________
Name:
Title:
AGREED AND ACCEPTED:
GREENWICH CAPITAL MARKETS, INC.
By: ____________________________________________
Name:
Title:
D-3
ANNEX I
EXHIBIT H
FORM OF NOTICE OF ADDITIONAL ADVANCE BORROWING
[Date]
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
In accordance with Section 2.11 of that certain Credit and Security
Agreement, dated as of [____________] (as amended, modified or otherwise
supplemented from time to time, the "AGREEMENT", the terms defined therein being
used herein as defined therein), by and among Greenwich Capital Financial
Products, Inc., as Lender, the undersigned, as Borrower, and Long Beach
Acceptance Corp., as Guarantor, the undersigned hereby requests a Loan in an
aggregate principal amount equal to $_________________, to be disbursed in the
manner provided below.
The undersigned hereby certifies that the following statements are true
on the date hereof:
A. the representations and warranties contained in Section 4 of
the Agreement are true and correct as of the date hereof; and
B. no Default, Event of Default or Other RF Event of Default has
occurred and is continuing.
DISBURSEMENT INSTRUCTIONS:
Very truly yours,
Long Beach Acceptance Receivables Corp.,
as Borrower
By:
-----------------------------------
Name:
Title:
I-1
ANNEX II
EXHIBIT I
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
PROMISSORY NOTE
[Date]
Amount: U.S. $[_____________]
FOR VALUE RECEIVED, LONG BEACH ACCEPTANCE RECEIVABLES CORP. (the
"Borrower") unconditionally promises to pay on the Maturity Date (as defined in
the [99-1][99-2] Agreement referred to below) to the order of Greenwich Capital
Financial Products, Inc. (the "Lender") in Federal or other immediately
available funds in lawful money of the United States the principal sum of
[_____________________] (U.S. $[___________]) or, if less, the aggregate unpaid
principal amount of the Loans made by Lender to Borrower pursuant to the
[99-1][99-2] Agreement, and to pay interest thereon from the date hereof until
this Note is repaid in like money at the rates per annum and in the manner set
forth in the [99-1][99-2] Agreement.
The principal of and interest on this Note shall be payable in
immediately available funds without set-off or counterclaim, in the manner set
forth in the [99-1][99-2] Agreement.
This Note is issued pursuant to the terms of a Credit and Security
Agreement dated as of [August 12, 1999][December 9, 1999] among Borrower, Lender
and Long Beach Acceptance Corp., as Guarantor (as amended from time to time, the
"[99-1][99-2] Agreement"), and is subject to the terms thereof and is entitled
to the benefits therein provided.
Upon the occurrence of an Event of Default (as defined in the
[99-1][99-2] Agreement), the principal of and accrued interest on this Note may
be declared due and payable in the manner and with the effect provided in the
[99-1][99-2] Agreement, without presentment, demand, protest or notice of any
kind, each of which is hereby expressly waived by Borrower.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW
OF THE STATE OF NEW YORK.
LONG BEACH ACCEPTANCE RECEIVABLES CORP.
By: __________________________________
Name:
Title:
II-1
EXECUTION COPY
OMNIBUS AMENDMENT AGREEMENT NO. 4
This OMNIBUS AMENDMENT AGREEMENT NO. 4, dated as of December 13, 2000
(this "Amendment"), is made among (i) LONG BEACH ACCEPTANCE RECEIVABLES CORP., a
Delaware corporation ("Borrower"), (ii) LONG BEACH ACCEPTANCE CORP., a Delaware
corporation ("Guarantor"), and (iii) GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.,
a Delaware corporation ("Lender").
WITNESSETH:
WHEREAS, Borrower, Lender and Guarantor are parties to (i) the Credit
and Security Agreement dated as of August 29, 1997 (as amended, supplemented or
otherwise modified prior to the date hereof, the "97-2 Agreement"), (ii) the
Credit and Security Agreement dated as of January 30, 1998 (as amended,
supplemented or otherwise modified prior to the date hereof, the "98-1
Agreement"), (iii) the Credit and Security Agreement dated as of November 25,
1998 (as amended, supplemented or otherwise modified prior to the date hereof,
the "98-2 Agreement"), (iv) the Credit and Security Agreement dated as of August
12, 1999 (as amended, supplemented or otherwise modified prior to the date
hereof, the "99-1 Agreement"), (v) the Credit and Security Agreement dated as of
December 9, 1999 (as amended, supplemented or otherwise modified prior to the
date hereof, the "99-2 Agreement") and (vi) the Credit and Security Agreement
dated as of June 15, 2000 (as amended, supplemented or otherwise modified prior
to the date hereof, the "2000-1 Agreement" and, collectively with the 97-2
Agreement, the 98-1 Agreement, the 98-2 Agreement, the 99-1 Agreement and the
99-2 Agreement, the "Residual Financing Agreements", and each individually, a
"Residual Financing Agreement"), in each case whereby Lender has made certain
loans to Borrower which are guaranteed by Guarantor and Ameriquest Mortgage
Company ("AMC") pursuant to certain guarantees referred to therein, and which
loans are secured by, among other things, the collateral identified in the
Residual Financing Agreements and certain collateral pledged under the Security
Agreement dated as of January 30, 1998 (as amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof, the "Security
Agreement") made by Guarantor, as pledgor, in favor of Lender, as pledgee (which
Security Agreement also secures obligations of Guarantor under the Warehouse
Lending Agreement dated as of January 30, 1998 (as amended, supplemented or
otherwise modified from time to time in accordance with the terms thereof, the
"Warehouse Loan Agreement") between Guarantor, as borrower, and Lender, as
lender);
WHEREAS, Borrower, Lender and Guarantor have agreed to make certain
amendments to the Residual Financing Agreements as provided herein; and
WHEREAS, Section 9.3 of each Residual Financing Agreement permits the
amendment thereof as provided herein.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. DEFINITIONS. Capitalized terms used, but not otherwise defined herein, shall
have the meanings ascribed thereto in the applicable Residual Financing
Agreement.
2. AMENDMENTS.
(a) The following definition of "Crossed Paydown Method" is hereby
added to Section 1 of each Residual Financing Agreement, in
each case in the appropriate alphabetical order:
"CROSSED PAYDOWN METHOD" means, with respect to funds
to be applied to satisfy the Obligations and Other
Residual Financing Obligations, as applicable,
arising under any Crossed Residual Financing
Agreements pursuant to Section 3.15 hereof, that such
funds shall be applied sequentially, first to reduce
to zero the Obligations or Other Residual Financing
Obligations, as applicable, relating to the Crossed
Residual Financing Agreement having the earliest
origination date, and then to reduce to zero the
Obligations or Other RF Obligations, as applicable,
relating to the remaining Crossed Residual Financing
Agreement having the earliest origination date. The
foregoing order of priority shall be repeated until
all Obligations or Other RF Obligations, as
applicable, arising under any Crossed Residual
Financing Agreements have been reduced to zero.
(b) The following definition of "Crossed Residual Financing
Agreement" is hereby added to Section 1 of each Residual
Financing Agreement, in each case in the appropriate
alphabetical order:
"CROSSED RESIDUAL FINANCING AGREEMENT" means each
credit and security agreement or other similar
agreement among Lender, Borrower and Guarantor
secured by one or more certificates, excess cash flow
certificates or other residual interests in
securitizations identified on EXHIBIT J hereto (as
such EXHIBIT J may be amended or supplemented from
time to time in accordance with Section 3.16 hereof),
as each such agreement may be amended, supplemented
or otherwise modified from time to time in accordance
with the terms thereof.
(c) The following definition of "Future Spread Account Agreement"
is hereby added to Section 1 of each Residual Finance
Agreement, in each case in the appropriate alphabetical order:
"FUTURE SPREAD ACCOUNT AGREEMENT" means any master
spread account agreement among Borrower, Financial
Security Assurance Inc. and the other parties named
therein entered into after the date hereof, as the
same may be amended, supplemented or otherwise
modified from time to time in accordance with the
terms thereof.
2
(d) The following definition of "XXXX Reinsured Series" is hereby
added to Section 1 of each Residual Financing Agreement, in
each case in the appropriate alphabetical order:
"XXXX Resinsured Series" has the meaning ascribed
thereto in the 2000-2 Spread Account Agreement.
(e) The following definition of "2000-1 Spread Account Agreement"
is hereby added to Section 1 of each Residual Financing
Agreement other than the 2000-1 Agreement, in each case in the
appropriate alphabetical order:
"2000-1 SPREAD ACCOUNT AGREEMENT" means the "Spread
Account Agreement" as defined in the 2000-1
Agreement.
(f) The following definition of "2000-2 Spread Account Agreement"
is hereby added to Section 1 of each Residual Financing
Agreement, in each case in the appropriate alphabetical order:
"2000-2 SPREAD ACCOUNT AGREEMENT" means the Amended
and Restated Master Spread Account Agreement dated as
of December 1, 2000, among Borrower, Financial
Security Assurance, Inc. and the other parties
thereto as the same may be amended, supplemented or
otherwise modified from time to time in accordance
with the terms thereof.
(g) The second sentence of Section 2.7(b) of each of the 98-2
Agreement, the 99-1 Agreement, the 99-2 Agreement and the
2000-1 Agreement is hereby deleted in its entirety and
replaced with the following:
All amounts received in respect of the Certificate or
other Collateral will be applied pursuant to Section
3.15.
(h) Section 3.15 of each of the 97-2 Agreement and the 98-1
Agreement is hereby deleted in its entirety and replaced by
the following:
3.15. PAYMENT OF EXCESS CASH FLOW. Upon receiving a
distribution pursuant to Section 2.5(b), Section 2.7
hereof in respect of amounts distributable to the
Excess Cash Flow Certificateholder under the Pooling
and Servicing Agreement and the Spread Account
Agreement, Lender shall apply such distribution in
the following manner and order of priority: FIRST, an
amount equal to the product of (x) 33 1/3% and (y)
35% of such distribution shall be applied by Lender
to reduce to zero all Obligations and Other RF
Obligations, as applicable, arising under each
Crossed Residual Financing Agreement pursuant to the
Crossed Paydown Method; SECOND, Lender shall remit to
Borrower an amount equal to the product of (x) 66
2/3% and (y) 35% of such distribution, by 4:00 p.m.,
New York
3
City time, on the date of receipt by Lender,
in the case of distributions received by Lender
before 1:00 p.m., New York City time, and by 12:00
noon, New York City time, on the Business Day
immediately succeeding the date of receipt by Lender,
in the case of distributions received by Lender after
1:00 p.m., New York City time; and THIRD, an amount
equal to 65% of such distribution shall be applied by
Lender to reduce to zero any outstanding Other RF
Obligations; PROVIDED, HOWEVER, that if a Trigger
Event (as defined in the Spread Account Agreement,
the 98-2 Spread Account Agreement, the 99-1 Spread
Account Agreement, the 99-2 Spread Account Agreement,
the 2000-1 Spread Account Agreement, the 2000-2
Spread Account Agreement or any Future Spread Account
Agreement) has occurred and is continuing, Lender
shall not remit to Borrower any amounts received by
Lender pursuant to Section 2.5(b) or Section 2.7
hereof and shall apply any such amounts otherwise
distributable to Borrower as specified in clause
THIRD above. Lender shall remit any amounts payable
to Borrower pursuant to this Section 3.15 to
Borrower's account (Account No. 00102672111) at The
Chase Manhattan Bank, N.A. (ABA No. 000000000).
(i) Section 3.15 of the 98-2 Agreement is hereby deleted in its
entirety and replaced by the following:
PAYMENT OF EXCESS CASH FLOW. Upon receiving a
distribution pursuant to Section 2.5(b) or Section
2.7(b) hereof, as applicable, in respect of amounts
distributable to the Certificateholder under the Sale
and Servicing Agreement and the Spread Account
Agreement, (a) if a GCFP Trigger Event shall not have
occurred and be continuing, Lender shall apply such
distribution in the following manner and order of
priority: FIRST, 100% of such distribution shall be
applied by Lender to reduce to zero all Obligations
and Other RF Obligations, as applicable, under each
Crossed Residual Financing Agreement pursuant to the
Crossed Paydown Method, and SECOND, the remainder of
such distribution shall be applied by Lender to
reduce to zero any outstanding Other RF Obligations,
or (b) if a GCFP Trigger Event has occurred and is
continuing with respect to a Crossed Residual
Financing Agreement, Lender shall apply such
distribution in the following manner and order of
priority: FIRST, 100% of such distribution shall be
applied to reduce to zero all Obligations or Other RF
Obligations, as applicable, arising under such
Crossed Residual Financing Agreement and, SECOND, if
such GCFP Trigger Event has an adverse affect on any
other Crossed Residual Financing Agreement, the
remaining amount of such distribution, if any, shall
be applied to reduce to zero all Obligations and
Other RF Obligations, as applicable, arising under
such other Crossed Residual Financing Agreements
pursuant to the Crossed Payment Method.
4
(j) Each of the 99-1 Agreement, the 99-2 Agreement and the 2000-1
Agreement is hereby amended by deleting in its entirety
Section 3.15 thereof and replacing it with the following:
3.15. PAYMENT OF EXCESS CASH FLOW. Upon receiving
a distribution pursuant to Section 2.5(b) or
2.7(b) hereof in respect of amounts distributable
to the Certificateholder under the Sale and
Servicing Agreement and the Spread Account
Agreement, (a) if a GCFP Trigger Event shall not
have occurred and be continuing, Lender shall
apply such distribution in the following manner
and order of priority: FIRST, an amount equal to
the product of (x) 33 1/3% and (y) 40% of such
distribution shall be applied by Lender to reduce
to zero all Obligations and Other RF Obligations,
as applicable, arising under each Crossed Residual
Financing Agreement pursuant to the Crossed
Paydown Method; SECOND, Lender shall remit to
Borrower an amount equal to the product of (x) 66
2/3% and (y) of 40% of any such distribution, by
4:00 p.m., New York City time, on the date of
receipt by Lender, in the case of distributions
received by Lender before 1:00 p.m., New York City
time, and by 12:00 noon, New York City time, on
the Business Day immediately succeeding the date
of receipt by Lender, in the case of distributions
received by Lender after 1:00 p.m., New York City
time; and THIRD, an amount equal to 60% of such
distribution shall be applied by Lender to reduce
to zero any outstanding Other RF Obligations;
PROVIDED, HOWEVER, that if a Trigger Event (as
defined in the Spread Account Agreement, the 98-2
Spread Account Agreement, the 99-1 Spread Account
Agreement, the 99-2 Spread Account Agreement the
2000-1 Spread Account Agreement, the 2000-2 Spread
Account Agreement or any Future Spread Account
Agreement) has occurred and is continuing, Lender
shall not remit to Borrower any amounts received
by Lender pursuant to Section 2.5(b) or 2.7(b)
hereof and shall apply any such amounts otherwise
distributable to Borrower as specified in clause
THIRD above, or (b) if a GCFP Trigger Event shall
have occurred and be continuing with respect to a
Crossed Residual Financing Agreement, Lender shall
apply such distribution in the following manner
and order of priority: FIRST, 100% of such
distribution shall be applied to reduce to zero
all Obligations or Other RF Obligations, as
applicable, arising under such Crossed Residual
Financing Agreement and, SECOND, if such GCFP
Trigger Event has an adverse affect on any other
Crossed Residual Financing Agreement, the
remaining amount of such distribution, if any,
shall be applied to reduce to zero all Obligations
and Other RF Obligations, as applicable, arising
under such other Crossed Residual Financing
Agreements pursuant to the Crossed Payment Method.
Lender shall remit any amounts payable to Borrower
pursuant to this Section 3.15 to Borrower's
account (Account No. 00102672111) at Chase Bank of
Texas, N.A. (ABA No. 000000000).
5
(k) Each Residual Financing Agreement is hereby amended by adding
the following Section 3.16 thereto in the appropriate
numerical order:
3.16. EXHIBIT J. Exhibit J hereto may be amended or
supplemented from time to time by (i) written notice
from Lender to Borrower of any such amendment or
supplement or (ii) delivery by Lender to Borrower of
a copy of Exhibit J as so amended or supplemented;
PROVIDED that (a) such amendment or supplement
relates to one or more credit and security agreements
or other similar agreements among Lender, Borrower
and Guarantor, and (b) such credit and security
agreement relates to the financing of a certificate
issued in connection with a XXXX Reinsured Series,
the spread account relating to which is crossed,
pursuant to the related Spread Account Agreement or
any other spread account agreement relating thereto,
with the spread account of one or more of the Crossed
Residual Financing Agreements listed on Exhibit J,
whether at present so listed or hereafter added to
Exhibit J. In addition, if Lender delivers changes to
Exhibit J to any Other Residual Financing Agreement
as provided therein, Exhibit J hereto shall
automatically and without further action be amended
by such changes; PROVIDED that such change relates to
one or more credit and security agreements or other
similar agreements among Lender, Borrower and
Guarantor.
(l) Each Residual Financing Agreement is hereby amended by
deleting in its entirety the information under the heading "To
Lender:" in Section 9.10 and replacing it with the following:
To Lender: Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Asset-Backed Finance
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
WITH A COPY TO:
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000.
(m) Each Residual Financing Agreement is hereby amended by adding
"EXHIBIT J" thereto in the form attached hereto as Annex I.
6
3. CONDITIONS PRECEDENT TO AMENDMENT. The obligations of Lender to enter into
this Amendment, and to perform its obligations hereunder, are subject to the
fulfillment of each condition precedent set forth in EXHIBIT A hereto.
4. EXPENSES. Each of Borrower and Guarantor shall pay to Lender (without
duplication), on demand, any and all fees, costs and expenses (including
reasonable fees and expenses of counsel) incurred by Lender in connection with
the preparation, execution, delivery and performance of this Amendment.
5. CONFIRMATIONS; REPRESENTATIONS AND WARRANTIES.
(a) Except as expressly amended hereby, all of the terms of each
Residual Financing Agreement shall remain in full force and
effect and are hereby ratified and confirmed in all respects.
(b) All presently outstanding and new Loans (as defined in each
Residual Financing Agreement) made under such Residual
Financing Agreement (including without limitation the
Additional Advance made under each of the 97-2 Agreement, the
99-1 Agreement and the 99-2 Agreement and the Second
Additional Advance made under the 98-1 Agreement) (each
together with accrued interest thereon pursuant to the terms
of such Residual Financing Agreement) shall constitute
"Obligations" under such Residual Financing Agreement and
"Other RF Obligations" under each other Residual Financing
Agreement.
(c) Each of Borrower and Guarantor hereby represents and warrants
to Lender that (i) it has the requisite power and authority,
and legal right, to execute and deliver this Amendment and to
perform its obligations under this Amendment and each Residual
Financing Agreement as amended by this Amendment, (ii) it has
taken all necessary corporate and legal action to duly
authorize the execution and delivery of this Amendment and the
performance of its obligations under this Amendment and each
Residual Financing Agreement as amended by this Amendment,
(iii) this Amendment has been duly executed and delivered by
it, (iv) each of this Amendment and each Residual Financing
Agreement as amended by this Amendment constitutes its legal,
valid and binding obligation enforceable against it in
accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law) and
(v) after giving effect to this Amendment, no Default or Event
of Default under any Residual Financing Agreement has occurred
and is continuing.
7
(d) Each representation and warranty contained in each Residual
Financing Agreement is true and correct as of the date of this
Amendment and is hereby restated and affirmed.
(e) Each covenant contained in each Residual Financing Agreement
is hereby restated and affirmed.
6. FURTHER ASSURANCES. The parties hereto hereby agree to execute and deliver
such additional documents, instruments or agreements as may be reasonably
necessary and appropriate to effectuate the purposes of this Amendment.
7. CONFLICTS. In the event of a conflict of any provision hereof with any
provision or definition set forth in a Residual Financing Agreement, the
provisions and definitions of this Amendment shall control.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
9. SEVERABILITY. Any provision of this Amendment or a Residual Financing
Agreement which is prohibited, unenforceable or not authorized in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition, unenforceability or non-authorization without invalidating the
remaining provisions hereof or thereof or affecting the validity, enforceability
or legality of such provisions in any other jurisdiction.
10. BINDING EFFECT. This Amendment shall be binding upon and shall be
enforceable by parties hereto and their respective successors and permitted
assigns.
11. HEADINGS. The headings appearing in this Amendment are included solely for
convenience of reference and are not intended to affect the interpretation of
any other provision of this Amendment.
12. COUNTERPARTS. This Amendment may be signed in any number of counterparts
which, taken together, shall constitute a full and original agreement for all
purposes.
8
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective authorized officers as of the
date first above written.
LONG BEACH ACCEPTANCE
RECEIVABLES CORP., as Borrower
By: _____________________________
Name:
Title:
LONG BEACH ACCEPTANCE CORP., as
Guarantor
By: _____________________________
Name:
Title:
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC., as Lender
By: _____________________________
Name:
Title:
9
EXHIBIT A
CONDITIONS PRECEDENT
Borrower and the Guarantor shall deliver or cause to be delivered to Lender the
following, in each case in form and substance satisfactory to Lender:
1. Letter of Guarantor acknowledging that each of the Guarantees
relates to the related Residual Financing Agreement as amended
by this Amendment, in the form attached to this Amendment as
EXHIBIT B.
2. Letter of Ameriquest Mortgage Company ("AMC") amending each of
the AMC Guarantees and acknowledging that each of the AMC
Guarantees as amended relates to the related Residual
Financing Agreement as amended by this Amendment, in the form
attached to this Amendment as EXHIBIT C.
3. Opinion of Xxxxx Xxxxxxxxxx LLP, special counsel to Borrower
and Guarantor, in form and substance satisfactory to Lender.
4. Opinion of counsel to AMC, regarding due authorization,
execution and delivery of this Amendment and acknowledgement
letter of AMC in form and substance satisfactory to Lender.
5. Secretary's Certificate and Incumbency Certificate of Borrower
(including good standing certificate of the Delaware Secretary
of State and certified resolutions of Borrower's board of
directors relating to the Residual Financing Agreements as
amended by this Amendment), in form and substance satisfactory
to Lender.
6. Secretary's Certificate and Incumbency Certificate of
Guarantor (including good standing certificate of the Delaware
Secretary of State and certified resolutions of Guarantor's
board of directors relating to the Residual Financing
Agreements as amended by this Amendment), in form and
substance satisfactory to Lender.
7. Secretary's Certificate and Incumbency Certificates of AMC
(including good standing certificate of the Delaware Secretary
of State and certified resolutions of AMC's board of directors
relating to the amended AMC Guarantees), in form and substance
satisfactory to Lender.
8. Such other opinions, documents and instruments as Lender or
its counsel shall reasonably request.
A-1
EXHIBIT B
[LBAC LETTERHEAD]
December 13, 2000
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to (i) the Credit and Security Agreement dated as of
August 29, 1997 (as amended, supplemented or otherwise modified prior to the
date hereof, the "Original 00-0 Xxxxxxxxx") xxxxx Xxxx Xxxxx Acceptance
Receivables Corp. ("Borrower"), Long Beach Acceptance Corp. ("Guarantor") and
Greenwich Capital Financial Products, Inc. ("Lender"), (ii) the Credit and
Security Agreement dated as of January 30, 1998 (as amended, supplemented or
otherwise modified prior to the date hereof, the "Original 98-1 Agreement")
among Borrower, Guarantor and Lender, (iii) the Credit and Security Agreement
dated as of November 25, 1998 (as amended, supplemented or otherwise modified
prior to the date hereof, the "Original 98-2 Agreement") among Borrower,
Guarantor and Lender, (iv) the Credit and Security Agreement dated as of August
12, 1999 (as amended, supplemented or otherwise modified prior to the date
hereof, the "Original 99-1 Agreement") among Borrower, Guarantor and Lender, (v)
the Credit and Security Agreement dated as of December 9, 1999 (as amended,
supplemented or otherwise modified prior to the date hereof, the "Original 99-2
Agreement"), (vi) the Credit and Security Agreement dated as of June 15, 2000 by
and among Borrower, Guarantor and Lender (as amended, supplemented or otherwise
modified prior to the date hereof, the "Original 2000-1 Agreement" and,
collectively with the Original 97-2 Agreement, the Original 98-1 Agreement, the
Original 98-2 Agreement, the Original 99-1 Agreement and the Original 99-2
Agreement, the "Original Residual Financing Agreements", and each individually,
an "Original Residual Financing Agreement") among Borrower, Guarantor and
Lender, (vii) the Guarantee by Guarantor dated as of August 27, 1997 (the "97-2
Guarantee") in favor of Lender, (viii) the Guarantee by Guarantor dated as of
January 30, 1998 (the "98-1 Guarantee") in favor of Lender, (ix) the Guarantee
by Guarantor dated as of November 25, 1998 (the "98-2 Guarantee") in favor of
Lender, (x) the Guarantee by Guarantor dated as of August 12, 1999 (the "99-1
Guarantee") in favor of Lender, (xi) the Guarantee by Guarantor dated as of
December 9, 1999 (the "99-2 Guarantee") and (xii) the Guarantee by Guarantor
dated as of June 15, 2000 (the "2000-1 Guarantee" and, collectively with the
97-2 Guarantee, the 98-1 Guarantee, the 98-2 Guarantee, the 99-1 Guarantee and
the 99-2 Guarantee, and as amended, supplemented or otherwise modified prior to
the date hereof, the "Guarantees", and each individually, a "Guarantee") in
favor of Lender, and (xiii) Omnibus Amendment Agreement No. 4 dated as of
December 13, 2000 (the "Amendment") among Borrower, Guarantor and Lender. The
Original 97-2 Agreement, the Original 98-1 Agreement, the Original 98-2
Agreement, the Original 99-1
B-1
Agreement, the Original 99-2 Agreement and the Original 2000-1 Agreement,
each as amended by the Amendment, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with the respective terms
thereof are referred to herein as the "97-2 Agreement", the "98-1 Agreement",
the "98-2 Agreement", the "99-1 Agreement", the "99-2 Agreement" and the
"2000-1 Agreement", respectively, and collectively, the "Residual Financing
Agreements", and each individually, a "Residual Financing Agreement".
Capitalized terms used but not otherwise defined herein are used as defined
in the applicable Guarantee.
For good and valuable consideration, the receipt and sufficiency of
which we hereby acknowledge, we hereby agree and confirm that (i) we
unconditionally and irrevocably guarantee to Lender, or any successor in
interest of Lender, the due, punctual and complete payment and performance by
Borrower when and as due, whether at the stated maturity, by acceleration, upon
one or more dates set for repayment or prepayment or otherwise, of the
Obligations, (ii) all Loans outstanding under each Residual Financing Agreement
(including without limitation the Additional Advance made under and as defined
in each of the 97-2 Agreement, the 99-1 Agreement and the 99-2 Agreement and the
Second Additional Advance made under and as defined in the 98-1 Agreement) (in
each case together with interest accrued thereon pursuant to the terms of such
Residual Financing Agreement) shall constitute "Obligations" under such Residual
Financing Agreement, (iii) all "Obligations" under each Residual Financing
Agreement shall constitute "Obligations" under the related Guarantee, and (iv)
all of the terms of the Guarantees, as amended, supplemented or otherwise
modified prior to the date hereof and as confirmed by this letter, remain in
full force and effect and are hereby ratified and confirmed in all respects.
Very truly yours,
LONG BEACH ACCEPTANCE CORP.
By: __________________________
Name:
Title:
AGREED AND ACCEPTED:
-------------------
GREENWICH CAPITAL MARKETS, INC.
By:
-----------------------------------
Name:
Title:
B-2
EXHIBIT C
[AMC LETTERHEAD]
December 13, 2000
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to (i) the Credit and Security Agreement dated as of
August 29, 1997 (as amended, supplemented or otherwise modified prior to the
date hereof, the "Original 00-0 Xxxxxxxxx") xxxxx Xxxx Xxxxx Acceptance
Receivables Corp. ("Borrower"), Long Beach Acceptance Corp. ("LBAC") and
Greenwich Capital Financial Products, Inc. ("Lender"), (ii) the Credit and
Security Agreement dated as of January 30, 1998 (as amended, supplemented or
otherwise modified prior to the date hereof, the "Original 98-1 Agreement")
among Borrower, LBAC and Lender, (iii) the Credit and Security Agreement dated
as of November 25, 1998 (as amended, supplemented or otherwise modified prior to
the date hereof, the "Original 98-2 Agreement") among Borrower, LBAC and Lender,
(iv) the Credit and Security Agreement dated as of August 12, 1999 (as amended,
supplemented or otherwise modified prior to the date hereof, the "Original 99-1
Agreement") among Borrower, LBAC and Lender, (v) the Credit and Security
Agreement dated as of December 9, 1999 (as amended, supplemented or otherwise
modified prior to the date hereof, the "Original 99-2 Agreement"), (vi) the
Credit and Security Agreement dated as of June 15, 2000 (as amended,
supplemented or otherwise modified prior to the date hereof, the "Original
2000-1 Agreement" and, collectively with the Original 97-2 Agreement, the
Original 98-1 Agreement, the Original 98-2 Agreement, the Original 99-1
Agreement and the Original 99-2 Agreement, the "Original Residual Financing
Agreements", and each individually, an "Original Residual Financing Agreement"),
(vii) the AMC Guarantee by Ameriquest Mortgage Company (as successor of Long
Beach Mortgage Company) dated as of August 27, 1997 (the "97-2 AMC Guarantee")
in favor of Lender, (viii) the AMC Guarantee by Ameriquest Mortgage Company
dated as of January 30, 1998 (the "98-1 AMC Guarantee") in favor of Lender, (ix)
the AMC Guarantee by Ameriquest Mortgage Company dated as of November 25, 1998
(the "98-2 AMC Guarantee"), (x) the AMC Guarantee by Ameriquest Mortgage Company
dated as of August 12, 1999 (the "99-1 AMC Guarantee") in favor of Lender, (xi)
the AMC Guarantee by Ameriquest Mortgage Company dated as of December 9, 1999
(the "99-2 AMC Guarantee") in favor of Lender, (xii) the AMC Guarantee by
Ameriquest Mortgage Company dated as of June 15, 2000 (the "2000-1 AMC
Guarantee")and, collectively with the 97-2 AMC Guarantee, the 98-1 AMC
Guarantee, the 98-2 AMC Guarantee, the 99-1 AMC Guarantee and the 99-2 AMC
Guarantee and as amended, supplemented or otherwise modified prior to the date
hereof the "AMC Guarantees", and each individually, an "AMC Guarantee"), (xiii)
the Guarantee by LBAC dated as of August 27, 1997 (the "97-2 LBAC Guarantee") in
favor of Lender, (xiv) the Guarantee by LBAC dated as of January 30, 1998 (the
"98-1 LBAC Guarantee") in favor of Lender, (xv) the Guarantee by LBAC dated as
of November 25, 1998 (the "98-2 LBAC Guarantee") in favor of Lender, (xvi) the
Guarantee by LBAC dated as of
X-0
Xxxxxx 00, 0000 (xxx "99-1 LBAC Guarantee") in favor of Lender, (xvii) the
Guarantee by LBAC dated as of December 9, 1999 (the "99-2 LBAC Guarantee") in
favor of the Lender, (xviii) the Guarantee by LBAC dated as of June15, 2000
(the "2000-1 LBAC Guarantee" and, collectively with the 97-1 LBAC Guarantee,
the 97-2 LBAC Guarantee, the 98-1 LBAC Guarantee, the 98-2 LBAC Guarantee and
the 99-1 LBAC Guarantee, and as amended, supplemented or otherwise modified
prior to the date hereof, the "LBAC Guarantees", and each individually, an
"LBAC Guarantee") in favor of Lender, (xix) Omnibus Amendment Agreement No. 4
dated as of December 13, 2000 (the "Amendment") among Borrower, LBAC, as
guarantor, and Lender. The Original 97-1 Agreement, the Original 97-2
Agreement, the Original 98-1 Agreement, the Original 98-2 Agreement, the
Original 99-1 Agreement, the Original 99-2 and the Original 2000-1 Agreement,
as amended by the Amendment, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with the respective terms
thereof are referred to herein as the "97-2 Agreement", the "98-1 Agreement",
the "98-2 Agreement", the "99-1 Agreement", the "99-2 Agreement" and the
"2000-1 Agreement", respectively, and collectively, the "Residual Financing
Agreements", and each individually, a "Residual Financing Agreement".
Capitalized terms used but not otherwise defined herein are used as defined
in the applicable AMC Guarantee.
For good and valuable consideration, the receipt and sufficiency of
which we hereby acknowledge, we hereby agree and confirm that (i) we
unconditionally and irrevocably guarantee to Lender, or any successor in
interest of Lender, the due, punctual and complete payment and performance by
LBAC when and as due, whether at the stated maturity, by acceleration, upon one
or more dates set for repayment or prepayment or otherwise, of the LBAC
Obligations, (ii) all Loans outstanding under each Residual Financing Agreement
(including without limitation the Additional Advance made under and as defined
in each of the 97-2 Agreement, the 99-1 Agreement and the 99-2 Agreement and the
Second Additional Advance made under and as defined in the 98-1 Agreement) (in
each case together with interest accrued thereon pursuant to the terms of such
Residual Financing Agreement) shall constitute "Obligations" under such Residual
Financing Agreement, (iii) all "Obligations" under each Residual Financing
Agreement shall constitute "LBAC Obligations" under the related AMC Guarantee,
as amended by this letter, and (iv) all of the terms of the AMC Guarantees, as
confirmed by this letter, and as amended, supplemented or otherwise modified
prior to the date hereof remain in full force and effect and are hereby ratified
and confirmed in all respects.
Very truly yours,
AMERIQUEST MORTGAGE COMPANY
By: __________________________
Name:
Title:
C-2
ANNEX I
EXHIBIT J
CROSSED RESIDUAL FINANCING AGREEMENTS
Credit and Security Agreement dated as of November 25, 1998 by and among
Greenwich Capital Financial Products, Inc., as lender, Long Beach Acceptance
Receivables Corp., as borrower, and Long Beach Acceptance Corp., as guarantor,
as amended by the Omnibus Amendment Agreement dated as of March 31, 1999,
Omnibus Amendment Agreement No. 2 dated as of August 12, 1999, Omnibus Amendment
Agreement No. 3 dated as of April 14, 2000 and Omnibus Amendment Agreement No. 4
dated as of December 13, 2000, and as otherwise amended, supplemented or
modified from time to time pursuant to the terms thereof.
Credit and Security Agreement dated as of December 13, 2000 by and among
Greenwich Capital Financial Products, Inc., as lender, Long Beach Acceptance
Receivables Corp., as borrower, and Long Beach Acceptance Corp., as guarantor,
as amended, supplemented or modified from time to time in accordance with the
terms thereof.
I-J-1
EXECUTION COPPY
OMNIBUS AMENDMENT AGREEMENT NO. 5
This OMNIBUS AMENDMENT AGREEMENT NO. 5, dated as of January 12, 2001
(this "Amendment"), is made among (i) LONG BEACH ACCEPTANCE RECEIVABLES CORP., a
Delaware corporation ("Borrower"), (ii) LONG BEACH ACCEPTANCE CORP., a Delaware
corporation ("Guarantor"), and (iii) GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.,
a Delaware corporation ("Lender").
WITNESSETH:
WHEREAS, Borrower, Lender and Guarantor are parties to (i) the Credit
and Security Agreement dated as of August 29, 1997 (as amended, supplemented or
otherwise modified prior to the date hereof, the "97-2 Agreement"), (ii) the
Credit and Security Agreement dated as of January 30, 1998 (as amended,
supplemented or otherwise modified prior to the date hereof, the "98-1
Agreement"), (iii) the Credit and Security Agreement dated as of November 25,
1998 (as amended, supplemented or otherwise modified prior to the date hereof,
the "98-2 Agreement"), (iv) the Credit and Security Agreement dated as of August
12, 1999 (as amended, supplemented or otherwise modified prior to the date
hereof, the "99-1 Agreement"), (v) the Credit and Security Agreement dated as of
December 9, 1999 (as amended, supplemented or otherwise modified prior to the
date hereof, the "99-2 Agreement"), (vi) the Credit and Security Agreement dated
as of June 15, 2000 (as amended, supplemented or otherwise modified prior to the
date hereof, the "2000-1 Agreement") and (vii) the Credit and Security Agreement
dated as of December 13, 2000 (as amended, supplemented or otherwise modified
prior to the date hereof, the "2000-2 Agreement" and, collectively with the 97-2
Agreement, the 98-1 Agreement, the 98-2 Agreement, the 99-1 Agreement, the 99-2
Agreement and the 2000-1 Agreement, the "Residual Financing Agreements", and
each individually, a "Residual Financing Agreement"), in each case whereby
Lender has made certain loans to Borrower which are guaranteed by Guarantor and
Ameriquest Mortgage Company ("AMC") pursuant to certain guarantees referred to
therein, and which loans are secured by, among other things, the collateral
identified in the Residual Financing Agreements and certain collateral pledged
under the Security Agreement dated as of January 30, 1998 (as amended,
supplemented or otherwise modified from time to time in accordance with the
terms thereof, the "Security Agreement") made by Guarantor, as pledgor, in favor
of Lender, as pledgee (which Security Agreement also secures obligations of
Guarantor under the Warehouse Lending Agreement dated as of January 30, 1998 (as
amended, supplemented or otherwise modified from time to time in accordance with
the terms thereof, the "Warehouse Loan Agreement") between Guarantor, as
borrower, and Lender, as lender);
WHEREAS, Borrower, Lender and Guarantor have agreed to make certain
amendments to the Residual Financing Agreements as provided herein; and
WHEREAS, Section 9.3 of each Residual Financing Agreement permits the
amendment thereof as provided herein.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. DEFINITIONS. Capitalized terms used, but not otherwise defined herein, shall
have the meanings ascribed thereto in the applicable Residual Financing
Agreement.
2. AMENDMENTS.
(a) The definition of "Loan" in the 98-1 Agreement is hereby
amended by amending and restating the last proviso at the end
of such definition to read as follows:
, PROVIDED, FURTHER, that the term "LOAN" shall for
all purposes include the Second Additional Advance
and the Third Additional Advance.
(b) The following definition of "Maximum Third Additional Advance"
is hereby added to Section 1 of the 98-1 Agreement in the
appropriate alphabetical order:
"MAXIMUM THIRD ADDITIONAL ADVANCE" has the meaning
assigned thereto in Section 2.1 hereof.
(c) The following definition of "Third Additional Advance" is
hereby added to Section 1 of the 98-1 Agreement in the
appropriate alphabetical order:
"THIRD ADDITIONAL ADVANCE" has the meaning assigned
to thereto in Section 2.1 hereof.
(d) The following definition of "Third Additional Advance
Condition" is hereby added to Section 1 of the 98-1 Agreement
in the appropriate alphabetical order:
"THIRD ADDITIONAL ADVANCE CONDITION" means the
following conditions precedent to Lender's commitment
to make the Third Additional Advance hereunder: (a)
the Advance Rate shall not exceed 60% after giving
effect to such Third Additional Advance and (b) the
sum of (i) the aggregate unpaid principal balance of
the Loans (as defined in this Agreement) and (ii) the
aggregate unpaid principal balance of the Loans (as
defined in each Other Residual Financing Agreement)
shall not exceed $42,000,000, in each case after
giving effect to the Third Additional Advance.
(e) Section 2.1 of the 98-1 Agreement is hereby amended by adding
the following sentence to the end of such Section:
Subject to the terms and conditions of this
Agreement, Lender also agrees to lend to Borrower on
January 12, 2001, an aggregate principal amount not
to exceed One Million Eighty One Thousand Eight
Hundred Dollars
2
($1,081,800.00) (the "MAXIMUM THIRD ADDITIONAL
ADVANCE" and the borrowing pursuant to this
sentence, the "THIRD ADDITIONAL ADVANCE"), such
Third Additional Advance being secured by the
Collateral; PROVIDED, HOWEVER, that the Maximum
Third Additional Advance shall be reduced to the
extent necessary to ensure that after giving
effect to the Third Additional Advance, the
Advance Rate shall not exceed 60%.
(f) Section 2.3(a) of the 98-1 Agreement is hereby amended by
adding the following sentence to the end of such Section:
Borrower shall execute and deliver to Lender on or
prior to January 12, 2001 a replacement Note
evidencing the Loan as increased by the Maximum Third
Additional Advance permitted pursuant to Section 2.1.
(g) The 98-1 Agreement is hereby amended by adding the following
Section 2.12 thereto in the appropriate numerical order:
2.11 PROCEDURE FOR MAKING THIRD ADDITIONAL ADVANCE.
The Borrower may request the making of the Third
Additional Advance hereunder by delivering to Lender
a notice in the form of EXHIBIT K hereto (a "THIRD
ADDITIONAL ADVANCE NOTICE OF BORROWING") no later
than 5:00 p.m., New York City time, on January 11,
2001, appropriately completed to specify the
aggregate amount of the Third Additional Advance
requested. Subject to the prior or contemporaneous
satisfaction of each condition precedent specified in
Section 7.4 hereof on January 12, 2001, Lender shall
disburse the Third Additional Advance no later than
the close of business on January 12, 2001.
(h) The 98-1 Agreement is hereby amended by adding the following
Section 7.4 thereto in the appropriate numerical order:
7.4 CONDITIONS PRECEDENT TO THIRD ADDITIONAL ADVANCE.
The obligation of Lender to extend the Third
Additional Advance hereunder shall be subject to the
following conditions:
(a) Each of the representations and warranties made
by Borrower and Guarantor in this Agreement and by
AMC in the AMC Guarantee shall be true and correct as
of the date the Third Additional Advance is
disbursed;
(b) There shall not have occurred and be continuing
any Default, Event of Default or Other RF Event of
Default and Borrower, Guarantor and AMC shall be in
full compliance with all of their respective
covenants and obligations under this Agreement, the
Guarantee and the AMC Guarantee;
3
(c) There shall not have occurred a Change of
Control;
(d) Since November 30, 2000 there shall not have been
a material adverse change in the business,
operations, prospects or condition (financial or
otherwise) of Borrower, Guarantor or AMC, as
determined by Lender in good faith;
(e) The Third Additional Advance Condition shall be
satisfied;
(f) The disbursement of the Third Additional Advance
shall not violate any provision of law, regulation,
order or other governmental directive to which Lender
or any of its affiliates is bound;
(g) Borrower shall have delivered to Lender an
executed replacement promissory note evidencing the
Loan as increased by the Third Additional Advance in
the form of EXHIBIT L hereto; and
(h) Lender shall have received the Third Additional
Advance Notice of Borrowing described in Section 2.11
hereof.
(i) The definition of "Loan" in the 99-1 Agreement is hereby
amended by amending and restating the proviso at the end of
such definition to read as follows:
, PROVIDED that the term "LOAN" shall for all
purposes include the Additional Advance and the
Second Additional Advance.
(j) The following definition of "Maximum Second Additional
Advance" is hereby added to Section 1 of the 99-1 Agreement in
the appropriate alphabetical order :
"MAXIMUM SECOND ADDITIONAL ADVANCE" has the meaning
assigned thereto in Section 2.1 hereof.
(k) The following definition of "Second Additional Advance" is
hereby added to Section 1 of the 99-1 Agreement in the
appropriate alphabetical order:
"SECOND ADDITIONAL ADVANCE" has the meaning assigned
to thereto in Section 2.1 hereof.
(l) The following definition of "Second Additional Advance
Condition" is hereby added to Section 1 of the 99-1 Agreement
in the appropriate alphabetical order:
"SECOND ADDITIONAL ADVANCE CONDITION" means the
following conditions precedent to Lender's commitment
to make the Second Additional Advance hereunder: (a)
the Advance Rate shall not exceed 60% after giving
effect to such Second Additional Advance and (b) the
sum of (i) the aggregate unpaid principal balance of
the Loans (as defined in this
4
Agreement) and (ii) the aggregate unpaid principal
balance of the Loans (as defined in each Other
Residual Financing Agreement) shall not exceed
$42,000,000, in each case after giving effect to
the Second Additional Advance.
(m) Section 2.1 of the 99-1 Agreement is hereby amended by adding
the following sentence to the end of such Section:
Subject to the terms and conditions of this
Agreement, Lender also agrees to lend to Borrower on
January 12, 2001, an aggregate principal amount not
to exceed One Hundred Fourteen Thousand Four Hundred
Dollars ($114,400.00) (the "MAXIMUM SECOND ADDITIONAL
ADVANCE" and the borrowing pursuant to this sentence,
the "SECOND ADDITIONAL ADVANCE"), such Second
Additional Advance being secured by the Collateral;
PROVIDED, HOWEVER, that the Maximum Second Additional
Advance shall be reduced to the extent necessary to
ensure that after giving effect to the Second
Additional Advance, the Advance Rate shall not exceed
60%.
(n) The 99-1 Agreement is hereby amended by adding the following
Section 2.12 thereto in the appropriate numerical order:
2.12 PROCEDURE FOR MAKING SECOND ADDITIONAL ADVANCE.
The Borrower may request the making of the Second
Additional Advance hereunder by delivering to Lender
a notice in the form of EXHIBIT K hereto (a "SECOND
ADDITIONAL ADVANCE NOTICE OF BORROWING") no later
than 5:00 p.m., New York City time, on January 11,
2001, appropriately completed to specify the
aggregate amount of the Second Additional Advance
requested. Subject to the prior or contemporaneous
satisfaction of each condition precedent specified in
Section 7.4 hereof on or prior to the close of
business on January 12, 2001, Lender shall disburse
the Second Additional Advance no later than the close
of business on January 12, 2001.
(o) The 99-1 Agreement is hereby amended by adding the following
Section 7.4 thereto in the appropriate numerical order:
7.4 CONDITIONS PRECEDENT TO SECOND ADDITIONAL
ADVANCE. The obligation of Lender to extend the
Second Additional Advance hereunder shall be subject
to the following conditions:
(a) Each of the representations and warranties made
by Borrower and Guarantor in this Agreement and by
AMC in the AMC Guarantee shall be true and correct as
of the date the Second Additional Advance is
disbursed;
5
(b) There shall not have occurred and be continuing
any Default, Event of Default or Other RF Event of
Default and Borrower, Guarantor and AMC shall be in
full compliance with all of their respective
covenants and obligations under this Agreement, the
Guarantee and the AMC Guarantee;
(c) There shall not have occurred a Change of
Control;
(d) Since November 30, 2000 there shall not have been
a material adverse change in the business,
operations, prospects or condition (financial or
otherwise) of Borrower, Guarantor or AMC, as
determined by Lender in good faith;
(e) The Second Additional Advance Condition shall be
satisfied;
(f) The disbursement of the Second Additional Advance
shall not violate any provision of law, regulation,
order or other governmental directive to which Lender
or any of its affiliates is bound;
(g) Borrower shall have delivered to Lender an
executed replacement promissory note evidencing the
Loan as increased by the Second Additional Advance in
the form of EXHIBIT L hereto; and
(i) Lender shall have received the Third Additional
Advance Notice of Borrowing described in Section 2.12
hereof.
(p) Section 4.8 of each of the 98-1 Agreement and the 99-1
Agreement is hereby amended and restated in its entirety to
read as follows:
4.8 FINANCIAL STATEMENTS. The unaudited balance
sheets of Guarantor as at November 30, 2000 and the
related statements of income for the fiscal periods
ended on such date, heretofore furnished to Lender,
are complete and correct in all material respects and
fairly present the financial condition of Guarantor
as at said date (subject to normal year-end audit
adjustments), all in accordance with U.S. generally
accepted accounting principles applied on a
consistent basis. On said dates, Guarantor had no
material contingent liabilities, liabilities for
taxes, unusual or anticipated losses from any
unfavorable commitments, except as referred to or
reflected in said balance sheets as at said dates.
Since November 30, 2000 there has been no material
adverse change in the operations, condition
(financial or otherwise), business or prospects of
Guarantor from that set forth in said financial
statements as at said date.
6
(q) Exhibit L is hereby added as an exhibit to each of the 98-1
Agreement and the 99-1 Agreement in the form attached to this
Amendment as ANNEX I-A and ANNEX I-B respectively.
(r) Exhibit K is hereby added as an exhibit to each of the 98-1
Agreement and the 99-1 Agreement in the form attached to this
Amendment as ANNEX II.
3. CONDITIONS PRECEDENT TO AMENDMENT. The obligations of Lender to enter into
this Amendment, and to perform its obligations hereunder, are subject to the
fulfillment of each condition precedent set forth in EXHIBIT A hereto.
4. CONDITIONS SUBSEQUENT TO AMENDMENT. The obligations of Lender to enter into
this Omnibus Amendment Agreement No. 5, and to perform its obligations
hereunder, are subject to the fulfillment of each condition subsequent set forth
in Exhibit B hereto (each an "Amendment Condition Subsequent") on or prior to
January 24, 2001. Notwithstanding the forgoing, in the event that any Amendment
Condition Subsequent is not fulfilled on or prior to January 26, 2001, such
failure shall constitute an Event of Default for which there shall be no cure
period under each Residual Financing Agreement.
5. EXPENSES. Each of Borrower and Guarantor shall pay to Lender (without
duplication), on demand, any and all fees, costs and expenses (including
reasonable fees and expenses of counsel) incurred by Lender in connection with
the preparation, execution, delivery and performance of this Amendment.
6. CONFIRMATIONS; REPRESENTATIONS AND WARRANTIES.
(a) Except as expressly amended hereby, all of the terms of each
Residual Financing Agreement shall remain in full force and
effect and are hereby ratified and confirmed in all respects.
(b) All presently outstanding and new Loans (as defined in each
Residual Financing Agreement) made under such Residual
Financing Agreement (including without limitation the Third
Additional Advance made under the 98-1 Agreement and the
Second Additional Advance made under the 99-1 Agreement) (each
together with accrued interest thereon pursuant to the terms
of such Residual Financing Agreement) shall constitute
"Obligations" under such Residual Financing Agreement and
"Other RF Obligations" under each other Residual Financing
Agreement.
(c) Each of Borrower and Guarantor hereby represents and warrants
to Lender that (i) it has the requisite power and authority,
and legal right, to execute and deliver this Amendment and to
perform its obligations under this Amendment and each Residual
Financing Agreement as amended by this Amendment, (ii) it has
taken all necessary corporate and legal action to duly
authorize the execution and delivery of this Amendment and the
performance of its obligations under this
7
Amendment and each Residual Financing Agreement as amended
by this Amendment, (iii) this Amendment has been duly
executed and delivered by it, (iv) each of this Amendment
and each Residual Financing Agreement as amended by this
Amendment constitutes its legal, valid and binding
obligation enforceable against it in accordance with its
terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of
creditors generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or
at law) and (v) after giving effect to this Amendment, no
Default or Event of Default under any Residual Financing
Agreement has occurred and is continuing.
(d) Each representation and warranty contained in each Residual
Financing Agreement is true and correct as of the date of this
Amendment and is hereby restated and affirmed.
(e) Each covenant contained in each Residual Financing Agreement
is hereby restated and affirmed.
7. FURTHER ASSURANCES. The parties hereto hereby agree to execute and deliver
such additional documents, instruments or agreements as may be reasonably
necessary and appropriate to effectuate the purposes of this Amendment.
8. CONFLICTS. In the event of a conflict of any provision hereof with any
provision or definition set forth in a Residual Financing Agreement, the
provisions and definitions of this Amendment shall control.
9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
10. SEVERABILITY. Any provision of this Amendment or a Residual Financing
Agreement which is prohibited, unenforceable or not authorized in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition, unenforceability or non-authorization without invalidating the
remaining provisions hereof or thereof or affecting the validity, enforceability
or legality of such provisions in any other jurisdiction.
11. BINDING EFFECT. This Amendment shall be binding upon and shall be
enforceable by parties hereto and their respective successors and permitted
assigns.
12. HEADINGS. The headings appearing in this Amendment are included solely for
convenience of reference and are not intended to affect the interpretation of
any other provision of this Amendment.
13. COUNTERPARTS. This Amendment may be signed in any number of counterparts
which, taken together, shall constitute a full and original agreement for all
purposes.
8
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective authorized officers as of the
date first above written.
LONG BEACH ACCEPTANCE
RECEIVABLES CORP., as Borrower
By: _____________________________
Name:
Title:
LONG BEACH ACCEPTANCE CORP., as
Guarantor
By: _____________________________
Name:
Title:
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC., as Lender
By: _____________________________
Name:
Title:
9
EXHIBIT A
CONDITIONS PRECEDENT
Borrower and the Guarantor shall deliver or cause to be delivered to Lender the
following, in each case in form and substance satisfactory to Lender:
1. Replacement promissory notes executed by Borrower under the
98-1 Agreement and the 99-1 Agreement (in the forms attached
as ANNEX I-A and ANNEX I-B, to this Amendment).
2. Letter of Guarantor acknowledging that each of the Guarantees
relates to the related Residual Financing Agreement as amended
by this Amendment, in the form attached to this Amendment as
EXHIBIT C.
3. Letter of Ameriquest Mortgage Company ("AMC") amending each of
the AMC Guarantees and acknowledging that each of the AMC
Guarantees as amended relates to the related Residual
Financing Agreement as amended by this Amendment, in the form
attached to this Amendment as EXHIBIT C.
4. Such other opinions, documents and instruments as Lender or
its counsel shall reasonably request.
A-1
EXHIBIT B
CONDITIONS SUBSEQUENT
1. Opinion of Xxxxx Xxxxxxxxxx LLP, special counsel to Borrower
and Guarantor, in form and substance satisfactory to Lender.
2. Opinion of counsel to AMC, regarding due authorization,
execution and delivery of the acknowledgement letter of AMC
and such other matters as Lender shall reasonably request in
form and substance satisfactory to Lender.
3. Secretary's Certificate and Incumbency Certificate of Borrower
(including good standing certificate of the Delaware Secretary
of State and certified resolutions of Borrower's board of
directors relating to the Residual Financing Agreements as
amended by this Amendment), in form and substance satisfactory
to Lender.
4. Secretary's Certificate and Incumbency Certificate of
Guarantor (including good standing certificate of the Delaware
Secretary of State and certified resolutions of Guarantor's
board of directors relating to the Residual Financing
Agreements as amended by this Amendment), in form and
substance satisfactory to Lender.
5. Secretary's Certificate and Incumbency Certificates of AMC
--- (including good standing certificate of the Delaware Secretary
of State and certified resolutions of AMC's board of directors
relating to the amended AMC Guarantees), in form and substance
satisfactory to Lender.
6. Such other opinions, documents and instruments as Lender or
--- its counsel shall reasonably request.
B-1
EXHIBIT C
[LBAC LETTERHEAD]
January 12, 2001
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to (i) the Credit and Security Agreement dated as of
August 29, 1997 (as amended, supplemented or otherwise modified prior to the
date hereof, the "Original 00-0 Xxxxxxxxx") xxxxx Xxxx Xxxxx Acceptance
Receivables Corp. ("Borrower"), Long Beach Acceptance Corp. ("Guarantor") and
Greenwich Capital Financial Products, Inc. ("Lender"), (ii) the Credit and
Security Agreement dated as of January 30, 1998 (as amended, supplemented or
otherwise modified prior to the date hereof, the "Original 98-1 Agreement")
among Borrower, Guarantor and Lender, (iii) the Credit and Security Agreement
dated as of November 25, 1998 (as amended, supplemented or otherwise modified
prior to the date hereof, the "Original 98-2 Agreement") among Borrower,
Guarantor and Lender, (iv) the Credit and Security Agreement dated as of August
12, 1999 (as amended, supplemented or otherwise modified prior to the date
hereof, the "Original 99-1 Agreement") among Borrower, Guarantor and Lender, (v)
the Credit and Security Agreement dated as of December 9, 1999 (as amended,
supplemented or otherwise modified prior to the date hereof, the "Original 99-2
Agreement"), (vi) the Credit and Security Agreement dated as of June 15, 2000 by
and among Borrower, Guarantor and Lender (as amended, supplemented or otherwise
modified prior to the date hereof, the "Original 2000-1 Agreement"), (vii) the
Credit and Security Agreement dated as of December 13, 2000 by and among
Borrower, Lender and Guarantor (as amended, supplemented or otherwise modified
prior to the date hereof, the "Original 2000-2 Agreement" and, collectively with
the Original 97-2 Agreement, the Original 98-1 Agreement, the Original 98-2
Agreement, the Original 99-1 Agreement, the Original 99-2 Agreement and the
Original 2000-1 Agreement, the "Original Residual Financing Agreements", and
each individually, an "Original Residual Financing Agreement") among Borrower,
Guarantor and Lender, (viii) the Guarantee by Guarantor dated as of August 27,
1997 (the "97-2 Guarantee") in favor of Lender, (ix) the Guarantee by Guarantor
dated as of January 30, 1998 (the "98-1 Guarantee") in favor of Lender, (x) the
Guarantee by Guarantor dated as of November 25, 1998 (the "98-2 Guarantee") in
favor of Lender, (xi) the Guarantee by Guarantor dated as of August 12, 1999
(the "99-1 Guarantee") in favor of Lender, (xii) the Guarantee by Guarantor
dated as of December 9, 1999 (the "99-2 Guarantee"), (xiii) the Guarantee by
Guarantor dated as of June 15, 2000 (the "2000-1 Guarantee") and the Guarantee
by Guarantor dated as of December 13, 2000 (the "2000-2 Guarantee" and,
collectively with the 97-2 Guarantee, the 98-1 Guarantee, the 98-2 Guarantee,
the 99-1 Guarantee, the 99-2 Guarantee and the 2000-1 Guarantee, and as amended,
C-1
supplemented or otherwise modified prior to the date hereof, the "Guarantees",
and each individually, a "Guarantee") in favor of Lender, and (xiii) Omnibus
Amendment Agreement No. 5 dated as of January 12, 2001 (the "Amendment") among
Borrower, Guarantor and Lender. The Original 97-2 Agreement, the Original 98-1
Agreement, the Original 98-2 Agreement, the Original 99-1 Agreement, the
Original 99-2 Agreement, the Original 2000-1 Agreement and the Original 2000-2
Agreement, each as amended by the Amendment, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with the
respective terms thereof are referred to herein as the "97-2 Agreement", the
"98-1 Agreement", the "98-2 Agreement", the "99-1 Agreement", the "99-2
Agreement", the "2000-1 Agreement" and the 2000-2 Agreement, respectively, and
collectively, the "Residual Financing Agreements", and each individually, a
"Residual Financing Agreement". Capitalized terms used but not otherwise defined
herein are used as defined in the applicable Guarantee.
For good and valuable consideration, the receipt and sufficiency of
which we hereby acknowledge, we hereby agree and confirm that (i) we
unconditionally and irrevocably guarantee to Lender, or any successor in
interest of Lender, the due, punctual and complete payment and performance by
Borrower when and as due, whether at the stated maturity, by acceleration, upon
one or more dates set for repayment or prepayment or otherwise, of the
Obligations, (ii) all Loans outstanding under each Residual Financing Agreement
(including without limitation the Third Additional Advance made under and as
defined in the 98-1 Agreement and the Second Additional Advance made under and
as defined in the 99-1 Agreement) (in each case together with interest accrued
thereon pursuant to the terms of such Residual Financing Agreement) shall
constitute "Obligations" under such Residual Financing Agreement, (iii) all
"Obligations" under each Residual Financing Agreement shall constitute
"Obligations" under the related Guarantee, and (iv) all of the terms of the
Guarantees, as amended, supplemented or otherwise modified prior to the date
hereof and as confirmed by this letter, remain in full force and effect and are
hereby ratified and confirmed in all respects.
Very truly yours,
LONG BEACH ACCEPTANCE CORP.
By: __________________________
Name:
Title:
AGREED AND ACCEPTED:
GREENWICH CAPITAL MARKETS, INC.
By:
-----------------------------------
Name:
Title:
C-2
EXHIBIT D
[AMC LETTERHEAD]
January 12, 2001
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to (i) the Credit and Security Agreement dated as of
August 29, 1997 (as amended, supplemented or otherwise modified prior to the
date hereof, the "Original 00-0 Xxxxxxxxx") xxxxx Xxxx Xxxxx Acceptance
Receivables Corp. ("Borrower"), Long Beach Acceptance Corp. ("LBAC") and
Greenwich Capital Financial Products, Inc. ("Lender"), (ii) the Credit and
Security Agreement dated as of January 30, 1998 (as amended, supplemented or
otherwise modified prior to the date hereof, the "Original 98-1 Agreement")
among Borrower, LBAC and Lender, (iii) the Credit and Security Agreement dated
as of November 25, 1998 (as amended, supplemented or otherwise modified prior to
the date hereof, the "Original 98-2 Agreement") among Borrower, LBAC and Lender,
(iv) the Credit and Security Agreement dated as of August 12, 1999 (as amended,
supplemented or otherwise modified prior to the date hereof, the "Original 99-1
Agreement") among Borrower, LBAC and Lender, (v) the Credit and Security
Agreement dated as of December 9, 1999 (as amended, supplemented or otherwise
modified prior to the date hereof, the "Original 99-2 Agreement"), (vi) the
Credit and Security Agreement dated as of June 15, 2000 (as amended,
supplemented or otherwise modified prior to the date hereof, the "Original
2000-1 Agreement"), (vii) the Credit and Security Agreement dated as of December
13, 2000 by and among Borrower, Lender and Guarantor (as amended, supplemented
or otherwise modified prior to the date hereof, the "Original 2000-2 Agreement"
and, collectively with the Original 97-2 Agreement, the Original 98-1 Agreement,
the Original 98-2 Agreement, the Original 99-1 Agreement, the Original 99-2
Agreement and the Original 2000-1 Agreement, the "Original Residual Financing
Agreements", and each individually, an "Original Residual Financing Agreement"),
(viii) the AMC Guarantee by Ameriquest Mortgage Company (as successor of Long
Beach Mortgage Company) dated as of August 27, 1997 (the "97-2 AMC Guarantee")
in favor of Lender, (ix) the AMC Guarantee by Ameriquest Mortgage Company dated
as of January 30, 1998 (the "98-1 AMC Guarantee") in favor of Lender, (x) the
AMC Guarantee by Ameriquest Mortgage Company dated as of November 25, 1998 (the
"98-2 AMC Guarantee"), (xi) the AMC Guarantee by Ameriquest Mortgage Company
dated as of August 12, 1999 (the "99-1 AMC Guarantee") in favor of Lender, (xii)
the AMC Guarantee by Ameriquest Mortgage Company dated as of December 9, 1999
(the "99-2 AMC Guarantee") in favor of Lender, (xiii) the AMC Guarantee by
Ameriquest Mortgage Company dated as of June 15, 2000 (the "2000-1 AMC
Guarantee") and the Guarantee by Guarantor dated as of December 13, 2000 (the
"2000-2 Guarantee" and, collectively with the 97-2 AMC Guarantee, the 98-1 AMC
Guarantee, the 98-2 AMC Guarantee, the 99-1 AMC Guarantee and the 99-2 AMC
Guarantee and as amended, supplemented or otherwise modified prior to the date
hereof the "AMC Guarantees", and each individually, an "AMC Guarantee"), (xiv)
the Guarantee by LBAC dated
D-1
as of August 27, 1997 (the "97-2 LBAC Guarantee") in favor of Lender, (xv)
the Guarantee by LBAC dated as of January 30, 1998 (the "98-1 LBAC
Guarantee") in favor of Lender, (xvi) the Guarantee by LBAC dated as of
November 25, 1998 (the "98-2 LBAC Guarantee") in favor of Lender, (xvii) the
Guarantee by LBAC dated as of August 12, 1999 (the "99-1 LBAC Guarantee") in
favor of Lender, (xviii) the Guarantee by LBAC dated as of December 9, 1999
(the "99-2 LBAC Guarantee") in favor of the Lender, (xix) the Guarantee by
LBAC dated as of June15, 2000 (the "2000-1 LBAC Guarantee") in favor of the
Lender, (xx) the Guarantee by LBAC dated as of December 13, 2000 (the "2000-2
LBAC Guarantee" and, collectively with the 97-1 LBAC Guarantee, the 97-2 LBAC
Guarantee, the 98-1 LBAC Guarantee, the 98-2 LBAC Guarantee and the 99-1 LBAC
Guarantee, and as amended, supplemented or otherwise modified prior to the
date hereof, the "LBAC Guarantees", and each individually, an "LBAC
Guarantee") in favor of Lender, (xxi) Omnibus Amendment Agreement No.5 dated
as of January 12, 2001 (the "Amendment") among Borrower, LBAC, as guarantor,
and Lender. The Original 97-1 Agreement, the Original 97-2 Agreement, the
Original 98-1 Agreement, the Original 98-2 Agreement, the Original 99-1
Agreement, the Original 99-2, the Original 2000-1 Agreement and the Original
2000-2 Agreement, as amended by the Amendment, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with the
respective terms thereof are referred to herein as the "97-2 Agreement", the
"98-1 Agreement", the "98-2 Agreement", the "99-1 Agreement", the "99-2
Agreement", the "2000-1 Agreement" and the 2000-2 Agreement, respectively,
and collectively, the "Residual Financing Agreements", and each individually,
a "Residual Financing Agreement". Capitalized terms used but not otherwise
defined herein are used as defined in the applicable AMC Guarantee.
For good and valuable consideration, the receipt and sufficiency of
which we hereby acknowledge, we hereby agree and confirm that (i) we
unconditionally and irrevocably guarantee to Lender, or any successor in
interest of Lender, the due, punctual and complete payment and performance by
LBAC when and as due, whether at the stated maturity, by acceleration, upon one
or more dates set for repayment or prepayment or otherwise, of the LBAC
Obligations, (ii) all Loans outstanding under each Residual Financing Agreement
(including without limitation the Third Additional Advance made under and as
defined in the 98-1 Agreement and the Second Additional Advance made under and
as defined in the 99-1 Agreement) (in each case together with interest accrued
thereon pursuant to the terms of such Residual Financing Agreement) shall
constitute "Obligations" under such Residual Financing Agreement, (iii) all
"Obligations" under each Residual Financing Agreement shall constitute "LBAC
Obligations" under the related AMC Guarantee, as amended by this letter, and
(iv) all of the terms of the AMC Guarantees, as confirmed by this letter, and as
amended, supplemented or otherwise modified prior to the date hereof remain in
full force and effect and are hereby ratified and confirmed in all respects.
Very truly yours,
AMERIQUEST MORTGAGE COMPANY
By: __________________________
Name:
Title:
X-0
XXXXX X-X
EXHIBIT L
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
PROMISSORY NOTE
January 12, 2001
Amount: U.S. $4,354,331.62
FOR VALUE RECEIVED, LONG BEACH ACCEPTANCE RECEIVABLES CORP. (the
"Borrower") unconditionally promises to pay on the Maturity Date (as defined in
the 98-1 Agreement referred to below) to the order of Greenwich Capital
Financial Products, Inc. (the "Lender") in Federal or other immediately
available funds in lawful money of the United States the principal sum of Four
Million Three Hundred Fifty-Four Thousand Three Hundred Thirty-One Dollars and
Sixty-Two Cents (U.S $4,354,331.62) or, if less, the aggregate unpaid principal
amount of the Loans made by Lender to Borrower pursuant to the 98-1 Agreement,
and to pay interest thereon from the date hereof until this Note is repaid in
like money at the rates per annum and in the manner set forth in the 98-1
Agreement.
The principal of and interest on this Note shall be payable in
immediately available funds without set-off or counterclaim, in the manner set
forth in the 98-1 Agreement.
This Note is issued pursuant to the terms of a Credit and Security
Agreement dated as of January 30, 1998 among Borrower, Lender and Long Beach
Acceptance Corp., as Guarantor (as amended from time to time, the "98-1
Agreement"), and is subject to the terms thereof and is entitled to the benefits
therein provided.
Upon the occurrence of an Event of Default (as defined in the 98-1
Agreement), the principal of and accrued interest on this Note may be declared
due and payable in the manner and with the effect provided in the 98-1
Agreement, without presentment, demand, protest or notice of any kind, each of
which is hereby expressly waived by Borrower.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW
OF THE STATE OF NEW YORK.
LONG BEACH ACCEPTANCE RECEIVABLES CORP.
By: _________________________________
Name:
Title:
I-A-1
ANNEX I-B
EXHIBIT L
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
PROMISSORY NOTE
January 12, 2001
Amount: U.S. $7,706,258.59
FOR VALUE RECEIVED, LONG BEACH ACCEPTANCE RECEIVABLES CORP. (the
"Borrower") unconditionally promises to pay on the Maturity Date (as defined in
the 99-1 Agreement referred to below) to the order of Greenwich Capital
Financial Products, Inc. (the "Lender") in Federal or other immediately
available funds in lawful money of the United States the principal sum of Seven
Million Seven Hundred Six Thousand Two Hundred Fifty-Eight Dollars and
Fifty-Nine Cents (U.S. $7,706,258.59) or, if less, the aggregate unpaid
principal amount of the Loans made by Lender to Borrower pursuant to the 99-1
Agreement, and to pay interest thereon from the date hereof until this Note is
repaid in like money at the rates per annum and in the manner set forth in the
99-1 Agreement.
The principal of and interest on this Note shall be payable in
immediately available funds without set-off or counterclaim, in the manner set
forth in the 99-1 Agreement.
This Note is issued pursuant to the terms of a Credit and Security
Agreement dated as of August 12, 1999 among Borrower, Lender and Long Beach
Acceptance Corp., as Guarantor (as amended from time to time, the "99-1
Agreement"), and is subject to the terms thereof and is entitled to the benefits
therein provided.
Upon the occurrence of an Event of Default (as defined in the 99-1
Agreement), the principal of and accrued interest on this Note may be declared
due and payable in the manner and with the effect provided in the 99-1
Agreement, without presentment, demand, protest or notice of any kind, each of
which is hereby expressly waived by Borrower.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW
OF THE STATE OF NEW YORK.
LONG BEACH ACCEPTANCE RECEIVABLES CORP.
By: _________________________________
Name:
Title:
I-B-1
ANNEX II
EXHIBIT K
FORM OF NOTICE OF ADDITIONAL ADVANCE BORROWING
January 11, 2000
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
In accordance with Section 2.12 of that certain Credit and Security
Agreement, dated as of [____________] (as amended, modified or otherwise
supplemented from time to time, the "AGREEMENT", the terms defined therein being
used herein as defined therein), by and among Greenwich Capital Financial
Products, Inc., as Lender, the undersigned, as Borrower, and Long Beach
Acceptance Corp., as Guarantor, the undersigned hereby requests a Loan in an
aggregate principal amount equal to $_________________, to be disbursed in the
manner provided below.
The undersigned hereby certifies that the following statements are true
on the date hereof:
A. the representations and warranties contained in Section 4 of
the Agreement are true and correct as of the date hereof; and
B. no Default, Event of Default or Other RF Event of Default has
occurred and is continuing.
DISBURSEMENT INSTRUCTIONS:
Very truly yours,
Long Beach Acceptance Receivables Corp.,
as Borrower
By:
-----------------------------------
Name:
Title:
II-1
Execution Copy
OMNIBUS AMENDMENT AGREEMENT NO. 6
This OMNIBUS AMENDMENT AGREEMENT NO. 6, dated as of June 13, 2001 (this
"Amendment"), is made among (i) LONG BEACH ACCEPTANCE RECEIVABLES CORP., a
Delaware corporation ("Borrower"), (ii) LONG BEACH ACCEPTANCE CORP., a Delaware
corporation ("Guarantor"), and (iii) GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.,
a Delaware corporation ("Lender").
WITNESSETH:
WHEREAS, Borrower, Lender and Guarantor are parties to (i) the Credit
and Security Agreement dated as of January 30, 1998 (as amended, supplemented or
otherwise modified prior to the date hereof, the "98-1 Agreement"), (ii) the
Credit and Security Agreement dated as of November 25, 1998 (as amended,
supplemented or otherwise modified prior to the date hereof, the "98-2
Agreement"), (iii) the Credit and Security Agreement dated as of August 12, 1999
(as amended, supplemented or otherwise modified prior to the date hereof, the
"99-1 Agreement"), (iv) the Credit and Security Agreement dated as of December
9, 1999 (as amended, supplemented or otherwise modified prior to the date
hereof, the "99-2 Agreement"), (v) the Credit and Security Agreement dated as of
June 15, 2000 (as amended, supplemented or otherwise modified prior to the date
hereof, the "2000-1 Agreement") and (vi) the Credit and Security Agreement dated
as of December 13, 2000 (as amended, supplemented or otherwise modified prior to
the date hereof, the "2000-2 Agreement" and, collectively with the 98-1
Agreement, the 98-2 Agreement, the 99-1 Agreement, the 99-2 Agreement and the
2000-1 Agreement, the "Residual Financing Agreements", and each individually, a
"Residual Financing Agreement"), in each case whereby Lender has made certain
loans to Borrower which are guaranteed by Guarantor and Ameriquest Mortgage
Company ("AMC") pursuant to certain guarantees referred to therein, and which
loans are secured by, among other things, the collateral identified in the
Residual Financing Agreements and certain collateral pledged under the Security
Agreement dated as of January 30, 1998 (as amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof, the "Security
Agreement") made by Guarantor, as pledgor, in favor of Lender, as pledgee (which
Security Agreement also secures obligations of Guarantor under the Warehouse
Lending Agreement dated as of January 30, 1998 (as amended, supplemented or
otherwise modified from time to time in accordance with the terms thereof, the
"Warehouse Loan Agreement") between Guarantor, as borrower, and Lender, as
lender);
WHEREAS, Borrower, Lender and Guarantor have agreed to make certain
amendments to the Residual Financing Agreements as provided herein; and
WHEREAS, Section 9.3 of each Residual Financing Agreement permits the
amendment thereof as provided herein.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. DEFINITIONS. Capitalized terms used, but not otherwise defined herein, shall
have the meanings ascribed thereto in the applicable Residual Financing
Agreement.
2. AMENDMENTS.
(a) The following definition of "Additional Advance" is hereby
added to Section 1 of each of the 98-2 Agreement, the 2000-1
Agreement and the 2000-2 Agreement in the appropriate
alphabetical order:
"ADDITIONAL ADVANCE" has the meaning assigned to
thereto in Section 2.1 hereof.
(b) The following definition of "Additional Advance Condition" is
hereby added to Section 1 of the 98-2 Agreement in the
appropriate alphabetical order:
"ADDITIONAL ADVANCE CONDITION" means the following
conditions precedent to Lender's commitment to make
the Additional Advance hereunder: (a) the Advance
Rate shall not exceed 50% after giving effect to such
Additional Advance and (b) the sum of (i) the
aggregate unpaid principal balance of the Loans (as
defined in this Agreement) and (ii) the aggregate
unpaid principal balance of the Loans (as defined in
each Other Residual Financing Agreement) shall not
exceed $42,000,000, in each case after giving effect
to the Additional Advance.
(c) The definition of "Loan" in each of the 98-2 Agreement, the
2000-1 Agreement and the 2000-2 Agreement is hereby amended by
adding the following proviso at the end of such definition:
, PROVIDED that the term "LOAN" shall for all
purposes include the Additional Advance.
(d) The definition of "Maturity Date" in each of the 98-1
Agreement and the 98-2 Agreement is hereby amended and
restated in its entirety to read as follows:
"MATURITY DATE" means June 12, 2002 (or if such day
is not a Business Day, the next preceding Business
Day); PROVIDED that if, prior to such date, the
Pooling and Servicing Agreement is terminated
pursuant to Section 10.01 thereof or the Originator
or Servicer exercises its option to purchase the
corpus of the Trust as provided in Section 10.02 of
the Pooling and Servicing Agreement, the Maturity
Date shall be the date of such termination or
purchase, as the case may be.
(e) The definition of "Maturity Date" in each of the 99-1
Agreement, the 99-2 Agreement, the 2000-1 Agreement and the
2000-2 Agreement is hereby amended and restated in its
entirety to read as follows:
2
"MATURITY DATE" means June 12, 2002 (or if such day
is not a Business Day, the next preceding Business
Day); PROVIDED that if, prior to such date, the
Indenture is terminated pursuant to Section 4.1
thereof or the Certificateholder exercises its option
to redeem the Notes issued pursuant to the Indenture
as provided in Section 10.1 of the Indenture, the
Maturity Date shall be the date of such termination
or redemption, as the case may be.
(f) The following definition of "Maximum Additional Advance" is
hereby added to Section 1 of each of the 98-2 Agreement, the
2000-1 Agreement and the 2000-2 Agreement in the appropriate
alphabetical order :
"MAXIMUM ADDITIONAL ADVANCE" has the meaning assigned
thereto in Section 2.1 hereof.
(g) The definition of "Target Advance Rate" in the 98-2 Agreement
is hereby amended and restated in its entirety to read as
follows:
"TARGET ADVANCE RATE" means, for any Calculation
Date, 50%.
(h) The definition of "Target Advance Rate" in each of the 99-1
Agreement, the 99-2 Agreement and the 2000-1 Agreement is
hereby amended and restated in its entirety to read as
follows:
"TARGET ADVANCE RATE" means, for any Calculation
Date, 60%.
(i) The definition of "Target Advance Rate" in the 2000-2
Agreement is hereby amended and restated in its entirety to
read as follows:
"TARGET ADVANCE RATE" means, for any Calculation
Date, 35%.
(j) Section 2.1 of the 98-2 Agreement is hereby amended by adding
the following sentence to the end of such Section:
Subject to the terms and conditions of this
Agreement, Lender also agrees to lend to Borrower on
June 13, 2001, an aggregate principal amount not to
exceed Two Million Six Hundred Ten Thousand One
Hundred Sixty-Seven Dollars ($2,610,167) (the
"MAXIMUM ADDITIONAL ADVANCE" and the borrowing
pursuant to this sentence, the "ADDITIONAL ADVANCE"),
such Additional Advance being secured by the
Collateral; PROVIDED, HOWEVER, that the Maximum
Additional Advance shall be reduced to the extent
necessary to ensure that after giving effect to the
Additional Advance, the Advance Rate shall not exceed
50%.
3
(k) Each of the 98-2 Agreement, the 2000-1 Agreement and the
2000-2 Agreement is hereby amended by adding the following
Section 2.11 thereto in the appropriate numerical order:
2.11 PROCEDURE FOR MAKING ADDITIONAL ADVANCE. The
Borrower may request the making of the Additional
Advance hereunder by delivering to Lender a notice in
the form of EXHIBIT H hereto (an "ADDITIONAL ADVANCE
NOTICE OF BORROWING") no later than 5:00 p.m., New
York City time, on June 12, 2001, appropriately
completed to specify the aggregate amount of the
Additional Advance requested. Subject to the prior or
contemporaneous satisfaction of each condition
precedent specified in Section 7.3 hereof on or prior
to the close of business on June 13, 2001, Lender
shall disburse the Additional Advance no later than
the close of business on June 13, 2001.
(l) Each of the 98-2 Agreement, the 2000-1 Agreement and the
2000-2 Agreement is hereby amended by adding the following
Section 7.3 thereto in the appropriate numerical order:
7.3 CONDITIONS PRECEDENT TO ADDITIONAL ADVANCE. The
obligation of Lender to extend the Additional Advance
hereunder shall be subject to the following
conditions:
(a) Each of the representations and warranties made
by Borrower and Guarantor in this Agreement and by
AMC in the AMC Guarantee shall be true and correct as
of the date the Additional Advance is disbursed;
(b) There shall not have occurred and be continuing
any Default, Event of Default or Other RF Event of
Default and Borrower, Guarantor and AMC shall be in
full compliance with all of their respective
covenants and obligations under this Agreement, the
Guarantee and the AMC Guarantee;
(c) There shall not have occurred a Change of
Control;
(d) Since April 30, 2001 there shall not have been a
material adverse change in the business, operations,
prospects or condition (financial or otherwise) of
Borrower, Guarantor or AMC, as determined by Lender
in good faith;
(e) The Additional Advance Condition shall be
satisfied;
(f) The disbursement of the Additional Advance shall
not violate any provision of law, regulation, order
or other governmental directive to which Lender or
any of its affiliates is bound;
4
(g) Borrower shall have delivered to Lender an
executed replacement promissory note evidencing the
Loan as increased by the Additional Advance in the
form of EXHIBIT I hereto; and
(h) Lender shall have received the Additional Advance
Notice of Borrowing described in Section 2.11 hereof.
(m) The definition of "Loan" in the 99-1 Agreement is hereby
amended by amending and restating the proviso at the end of
such definition to read as follows:
, PROVIDED that the term "LOAN" shall for all
purposes include the Additional Advance, the Second
Additional Advance and the Third Additional Advance.
(n) The following definition of "Maximum Third Additional Advance"
is hereby added to Section 1 of the 99-1 Agreement in the
appropriate alphabetical order:
"MAXIMUM THIRD ADDITIONAL ADVANCE" has the meaning
assigned thereto in Section 2.1 hereof.
(o) The following definition of "Third Additional Advance" is
hereby added to Section 1 of the 99-1 Agreement in the
appropriate alphabetical order:
"THIRD ADDITIONAL ADVANCE" has the meaning assigned
to thereto in Section 2.1 hereof.
(p) The following definition of "Third Additional Advance
Condition" is hereby added to Section 1 of the 99-1 Agreement
in the appropriate alphabetical order:
"THIRD ADDITIONAL ADVANCE CONDITION" means the
following conditions precedent to Lender's commitment
to make the Third Additional Advance hereunder: (a)
the Advance Rate shall not exceed 60% after giving
effect to such Third Additional Advance and (b) the
sum of (i) the aggregate unpaid principal balance of
the Loans (as defined in this Agreement) and (ii) the
aggregate unpaid principal balance of the Loans (as
defined in each Other Residual Financing Agreement)
shall not exceed $42,000,000, in each case after
giving effect to the Third Additional Advance.
(q) Section 2.1 of the 99-1 Agreement is hereby amended by adding
the following sentence to the end of such Section:
Subject to the terms and conditions of this
Agreement, Lender also agrees to lend to Borrower on
June 13, 2001, an aggregate principal amount not to
exceed One Million One Hundred Sixty Two Thousand
Seven Hundred Eleven Dollars ($1,162,711) (the
"MAXIMUM THIRD ADDITIONAL ADVANCE"
5
and the borrowing pursuant to this sentence, the
"THIRD ADDITIONAL ADVANCE"), such Third Additional
Advance being secured by the Collateral; PROVIDED,
HOWEVER, that the Maximum Third Additional Advance
shall be reduced to the extent necessary to ensure
that after giving effect to the Third Additional
Advance, the Advance Rate shall not exceed 60%.
(r) The 99-1 Agreement is hereby amended by adding the following
Section 2.13 thereto in the appropriate numerical order:
2.13 PROCEDURE FOR MAKING THIRD ADDITIONAL ADVANCE.
The Borrower may request the making of the Third
Additional Advance hereunder by delivering to Lender
a notice in the form of EXHIBIT M hereto (a "THIRD
ADDITIONAL ADVANCE NOTICE OF BORROWING") no later
than 5:00 p.m., New York City time, on June 12, 2001,
appropriately completed to specify the aggregate
amount of the Third Additional Advance requested.
Subject to the prior or contemporaneous satisfaction
of each condition precedent specified in Section 7.5
hereof on or prior to the close of business on June
13, 2001, Lender shall disburse the Third Additional
Advance no later than the close of business on June
13, 2001.
(s) The 99-1 Agreement is hereby amended by adding the following
Section 7.5 thereto in the appropriate numerical order:
7.5 CONDITIONS PRECEDENT TO THIRD ADDITIONAL ADVANCE.
The obligation of Lender to extend the Third
Additional Advance hereunder shall be subject to the
following conditions:
(a) Each of the representations and warranties made
by Borrower and Guarantor in this Agreement and by
AMC in the AMC Guarantee shall be true and correct as
of the date the Third Additional Advance is
disbursed;
(b) There shall not have occurred and be continuing
any Default, Event of Default or Other RF Event of
Default and Borrower, Guarantor and AMC shall be in
full compliance with all of their respective
covenants and obligations under this Agreement, the
Guarantee and the AMC Guarantee;
(c) There shall not have occurred a Change of
Control;
(d) Since April 30, 2001 there shall not have been a
material adverse change in the business, operations,
prospects or condition (financial or otherwise) of
Borrower, Guarantor or AMC, as determined by Lender
in good faith;
6
(e) The Third Additional Advance Condition shall be
satisfied;
(f) The disbursement of the Third Additional Advance
shall not violate any provision of law, regulation,
order or other governmental directive to which Lender
or any of its affiliates is bound;
(g) Borrower shall have delivered to Lender an
executed replacement promissory note evidencing the
Loan as increased by the Third Additional Advance in
the form of EXHIBIT N hereto; and
(h) Lender shall have received the Third Additional
Advance Notice of Borrowing described in Section 2.13
hereof.
(t) The definition of "Loan" in the 99-2 Agreement is hereby
amended by amending and restating the proviso at the end of
such definition to read as follows:
, PROVIDED that the term "LOAN" shall for all
purposes include the Additional Advance and the
Second Additional Advance.
(u) The following definition of "Maximum Second Additional
Advance" is hereby added to Section 1 of the 99-2 Agreement in
the appropriate alphabetical order :
"MAXIMUM SECOND ADDITIONAL ADVANCE" has the meaning
assigned thereto in Section 2.1 hereof.
(v) The following definition of "Second Additional Advance" is
hereby added to Section 1 of the 99-2 Agreement in the
appropriate alphabetical order:
"SECOND ADDITIONAL ADVANCE" has the meaning assigned
to thereto in Section 2.1 hereof.
(w) The following definition of "Second Additional Advance
Condition" is hereby added to Section 1 of the 99-2 Agreement
in the appropriate alphabetical order:
"SECOND ADDITIONAL ADVANCE CONDITION" means the
following conditions precedent to Lender's commitment
to make the Second Additional Advance hereunder: (a)
the Advance Rate shall not exceed 60% after giving
effect to such Second Additional Advance and (b) the
sum of (i) the aggregate unpaid principal balance of
the Loans (as defined in this Agreement) and (ii) the
aggregate unpaid principal balance of the Loans (as
defined in each Other Residual Financing Agreement)
shall not exceed $42,000,000, in each case after
giving effect to the Second Additional Advance.
7
(x) Section 2.1 of the 99-2 Agreement is hereby amended by adding
the following sentence to the end of such Section:
Subject to the terms and conditions of this
Agreement, Lender also agrees to lend to Borrower on
June 13, 2001, an aggregate principal amount not to
exceed Six Hundred Forty-Four Thousand One Hundred
Sixty Eight Dollars ($644,168) (the "MAXIMUM SECOND
ADDITIONAL ADVANCE" and the borrowing pursuant to
this sentence, the "SECOND ADDITIONAL ADVANCE"), such
Second Additional Advance being secured by the
Collateral; PROVIDED, HOWEVER, that the Maximum
Second Additional Advance shall be reduced to the
extent necessary to ensure that after giving effect
to the Second Additional Advance, the Advance Rate
shall not exceed 60%.
(y) The 99-2 Agreement is hereby amended by adding the following
Section 2.12 thereto in the appropriate numerical order:
2.12 PROCEDURE FOR MAKING SECOND ADDITIONAL ADVANCE.
The Borrower may request the making of the Second
Additional Advance hereunder by delivering to Lender
a notice in the form of EXHIBIT K hereto (a "SECOND
ADDITIONAL ADVANCE NOTICE OF BORROWING") no later
than 5:00 p.m., New York City time, on June 12, 2001,
appropriately completed to specify the aggregate
amount of the Second Additional Advance requested.
Subject to the prior or contemporaneous satisfaction
of each condition precedent specified in Section 7.4
hereof on or prior to the close of business on June
13, 2001, Lender shall disburse the Second Additional
Advance no later than the close of business on June
13, 2001.
(z) The 99-2 Agreement is hereby amended by adding the following
Section 7.4 thereto in the appropriate numerical order:
7.4 CONDITIONS PRECEDENT TO SECOND ADDITIONAL
ADVANCE. The obligation of Lender to extend the
Second Additional Advance hereunder shall be subject
to the following conditions:
(a) Each of the representations and warranties made
by Borrower and Guarantor in this Agreement and by
AMC in the AMC Guarantee shall be true and correct as
of the date the Second Additional Advance is
disbursed;
(b) There shall not have occurred and be continuing
any Default, Event of Default or Other RF Event of
Default and Borrower, Guarantor and AMC shall be in
full compliance with all of their respective
covenants and obligations under this Agreement, the
Guarantee and the AMC Guarantee;
8
(c) There shall not have occurred a Change of
Control;
(d) Since April 30, 2001 there shall not have been a
material adverse change in the business, operations,
prospects or condition (financial or otherwise) of
Borrower, Guarantor or AMC, as determined by Lender
in good faith;
(e) The Second Additional Advance Condition shall be
satisfied;
(f) The disbursement of the Second Additional Advance
shall not violate any provision of law, regulation,
order or other governmental directive to which Lender
or any of its affiliates is bound;
(g) Borrower shall have delivered to Lender an
executed replacement promissory note evidencing the
Loan as increased by the Second Additional Advance in
the form of EXHIBIT L hereto; and
(h) Lender shall have received the Second Additional
Advance Notice of Borrowing described in Section 2.12
hereof.
(aa) The following definition of "Additional Advance Condition" is
hereby added to Section 1 of the 2000-1 Agreement in the
appropriate alphabetical order:
"ADDITIONAL ADVANCE CONDITION" means the following
conditions precedent to Lender's commitment to make
the Additional Advance hereunder: (a) the Advance
Rate shall not exceed 60% after giving effect to such
Additional Advance and (b) the sum of (i) the
aggregate unpaid principal balance of the Loans (as
defined in this Agreement) and (ii) the aggregate
unpaid principal balance of the Loans (as defined in
each Other Residual Financing Agreement) shall not
exceed $42,000,000, in each case after giving effect
to the Additional Advance.
(bb) Section 2.1 of the 2000-1 Agreement is hereby amended by
adding the following sentence to the end of such Section:
Subject to the terms and conditions of this
Agreement, Lender also agrees to lend to Borrower on
June 13, 2001, an aggregate principal amount not to
exceed Eight Hundred Seventy-Seven Thousand Eight
Hundred Sixty Two Dollars ($877,862) (the "MAXIMUM
ADDITIONAL ADVANCE" and the borrowing pursuant to
this sentence, the "ADDITIONAL ADVANCE"), such
Additional Advance being secured by the Collateral;
PROVIDED, HOWEVER, that the Maximum Additional
Advance shall be reduced to the extent necessary to
ensure that after giving effect to the Additional
Advance, the Advance Rate shall not exceed 60%.
9
(cc) The following definition of "Additional Advance Condition" is
hereby added to Section 1 of the 2000-2 Agreement in the
appropriate alphabetical order:
"ADDITIONAL ADVANCE CONDITION" means the following
conditions precedent to Lender's commitment to make
the Additional Advance hereunder: (a) the Advance
Rate shall not exceed 35% after giving effect to such
Additional Advance and (b) the sum of (i) the
aggregate unpaid principal balance of the Loans (as
defined in this Agreement) and (ii) the aggregate
unpaid principal balance of the Loans (as defined in
each Other Residual Financing Agreement) shall not
exceed $42,000,000, in each case after giving effect
to the Additional Advance.
(dd) Section 2.1 of the 2000-2 Agreement is hereby amended by
adding the following sentence to the end of such Section:
Subject to the terms and conditions of this
Agreement, Lender also agrees to lend to Borrower on
June 13, 2001, an aggregate principal amount not to
exceed One Million Ninety-Three Thousand Three
Hundred Sixty Dollars ($1,093,360) (the "MAXIMUM
ADDITIONAL ADVANCE" and the borrowing pursuant to
this sentence, the "ADDITIONAL ADVANCE"), such
Additional Advance being secured by the Collateral;
PROVIDED, HOWEVER, that the Maximum Additional
Advance shall be reduced to the extent necessary to
ensure that after giving effect to the Additional
Advance, the Advance Rate shall not exceed 35%.
(ee) Section 4.8 of each of the 98-2 Agreement, the 99-1 Agreement,
the 99-2 Agreement, the 2000-1 Agreement and the 2000-2
Agreement is hereby amended and restated in its entirety to
read as follows:
4.8 FINANCIAL STATEMENTS. The unaudited balance
sheets of Guarantor as at April 30, 2001 and the
related statements of income for the fiscal periods
ended on such date, heretofore furnished to Lender,
are complete and correct in all material respects and
fairly present the financial condition of Guarantor
as at said date (subject to normal year-end audit
adjustments), all in accordance with U.S. generally
accepted accounting principles applied on a
consistent basis. On said dates, Guarantor had no
material contingent liabilities, liabilities for
taxes, unusual or anticipated losses from any
unfavorable commitments, except as referred to or
reflected in said balance sheets as at said dates.
Since April 30, 2001 there has been no material
adverse change in the operations, condition
(financial or otherwise), business or prospects of
Guarantor from that set forth in said financial
statements as at said date.
10
(ff) Section 4.10 of each of the 98-1 Agreement, the 98-2
Agreement, the 99-1 Agreement, the 99-2 Agreement, the 2000-1
Agreement and the 2000-2 Agreement is hereby amended and
restated in its entirety to read as follows:
4.10 REGULATION U. No proceeds of any Loan will be
used, directly or indirectly, by Borrower for the
purpose of purchasing or carrying any Margin Stock
(as defined in Regulation U of the Board of Governors
of the Federal Reserve System) or for the purpose of
reducing or retiring any indebtedness which was
originally incurred to purchase or carry Margin Stock
or for any other purpose which might cause any Loan
to be a "purpose credit" within the meaning of
Regulation U.
(gg) Section 5.12 of each of the 98-1 Agreement, the 98-2
Agreement, the 99-1 Agreement, the 99-2 Agreement and the
2000-1 Agreement is hereby amended and restated in its
entirety to read as follows:
5.12 NOTICE OF CHANGE OF CHIEF EXECUTIVE OFFICE.
Borrower will provide Lender with not less than 30
days prior written notice of any change in the chief
executive office or state of incorporation of
Borrower to permit Lender to make any additional
filings necessary to continue Lender's perfected
security interest in the Collateral.
(hh) Exhibit I, Exhibit N, Exhibit L, Exhibit I and Exhibit I are
hereby added as an exhibit to the 98-2 Agreement, the 99-1
Agreement, the 99-2 Agreement, the 2000-1 Agreement and the
2000-2 Agreement, respectively, in the form attached to this
Amendment as ANNEX I -A, ANNEX I-B, ANNEX I -C, ANNEX I -D and
ANNEX I -E, respectively.
(ii) Exhibit H is hereby added as an exhibit to each of the 98-2
Agreement, the 2000-1 Agreement and the 2000-2 Agreement in
the form attached to this Amendment as ANNEX II.
(jj) Exhibit M is hereby added as an exhibit to the 99-1 Agreement
in the form attached to this Amendment as ANNEX III.
(kk) Exhibit K is hereby added as an exhibit tot he 99-2 Agreement
in the form attached to this Agreement as EXHIBIT IV.
3. CONDITIONS PRECEDENT TO AMENDMENT. The obligations of Lender to enter into
this Amendment, and to perform its obligations hereunder, are subject to the
fulfillment of each condition precedent set forth in EXHIBIT A hereto.
4. EXPENSES. Each of Borrower and Guarantor shall pay to Lender (without
duplication), on demand, any and all fees, costs and expenses (including
reasonable fees and expenses of counsel)
11
incurred by Lender in connection with the preparation, execution, delivery and
performance of this Amendment.
5. CONFIRMATIONS; REPRESENTATIONS AND WARRANTIES.
(a) Except as expressly amended hereby, all of the terms of each
Residual Financing Agreement shall remain in full force and
effect and are hereby ratified and confirmed in all respects.
(b) All presently outstanding and new Loans (as defined in each
Residual Financing Agreement) made under such Residual
Financing Agreement (including without limitation the
Additional Advance made under the 98-2 Agreement, the Third
Additional Advance made under the 99-1 Agreement, the Second
Additional Advance made under the 99-2 Agreement, the
Additional Advance made under the 2000-1 Agreement and the
Additional Advance made under the 2000-2 Agreement) (each
together with accrued interest thereon pursuant to the terms
of such Residual Financing Agreement) shall constitute
"Obligations" under such Residual Financing Agreement and
"Other RF Obligations" under each other Residual Financing
Agreement.
(c) Each of Borrower and Guarantor hereby represents and warrants
to Lender that (i) it has the requisite power and authority,
and legal right, to execute and deliver this Amendment and to
perform its obligations under this Amendment and each Residual
Financing Agreement as amended by this Amendment, (ii) it has
taken all necessary corporate and legal action to duly
authorize the execution and delivery of this Amendment and the
performance of its obligations under this Amendment and each
Residual Financing Agreement as amended by this Amendment,
(iii) this Amendment has been duly executed and delivered by
it, (iv) each of this Amendment and each Residual Financing
Agreement as amended by this Amendment constitutes its legal,
valid and binding obligation enforceable against it in
accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors
generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law) and
(v) after giving effect to this Amendment, no Default or Event
of Default under any Residual Financing Agreement has occurred
and is continuing.
(d) Each representation and warranty contained in each Residual
Financing Agreement is true and correct as of the date of this
Amendment and is hereby restated and affirmed.
(e) Each covenant contained in each Residual Financing Agreement
is hereby restated and affirmed.
12
6. FURTHER ASSURANCES. The parties hereto hereby agree to execute and deliver
such additional documents, instruments or agreements as may be reasonably
necessary and appropriate to effectuate the purposes of this Amendment.
7. CONFLICTS. In the event of a conflict of any provision hereof with any
provision or definition set forth in a Residual Financing Agreement, the
provisions and definitions of this Amendment shall control.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
9. SEVERABILITY. Any provision of this Amendment or a Residual Financing
Agreement which is prohibited, unenforceable or not authorized in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition, unenforceability or non-authorization without invalidating the
remaining provisions hereof or thereof or affecting the validity, enforceability
or legality of such provisions in any other jurisdiction.
10. BINDING EFFECT. This Amendment shall be binding upon and shall be
enforceable by parties hereto and their respective successors and permitted
assigns.
11. HEADINGS. The headings appearing in this Amendment are included solely for
convenience of reference and are not intended to affect the interpretation of
any other provision of this Amendment.
12. COUNTERPARTS. This Amendment may be signed in any number of counterparts
which, taken together, shall constitute a full and original agreement for all
purposes.
13
Executive Copy
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective authorized officers as of the
date first above written.
LONG BEACH ACCEPTANCE
RECEIVABLES CORP., as Borrower
By: _____________________________
Name:
Title:
LONG BEACH ACCEPTANCE CORP., as
Guarantor
By: _____________________________
Name:
Title:
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC., as Lender
By: _____________________________
Name:
Title:
EXHIBIT A
CONDITIONS PRECEDENT
Borrower and the Guarantor shall deliver or cause to be delivered to Lender the
following, in each case in form and substance satisfactory to Lender:
1. Replacement promissory notes executed by Borrower under the
98-2 Agreement, the 99-1 Agreement, the 99-2 Agreement, the
2000-1 Agreement and the 2000-2 Agreement (in the forms
attached as ANNEX I-A, ANNEX I-B, ANNEX I-C, ANNEX I-D and
ANNEX I-E to this Amendment).
2. Letter of Guarantor acknowledging that each of the Guarantees
relates to the related Residual Financing Agreement as amended
by this Amendment, in the form attached to this Amendment as
EXHIBIT B.
3. Letter of Ameriquest Mortgage Company ("AMC") amending each of
the AMC Guarantees and acknowledging that each of the AMC
Guarantees as amended relates to the related Residual
Financing Agreement as amended by this Amendment, in the form
attached to this Amendment as EXHIBIT C.
4. Opinion of Xxxxx Xxxxxxxxxx LLP, special counsel to Borrower
and Guarantor, in form and substance satisfactory to Lender.
5. Opinion of counsel to AMC, regarding due authorization,
execution and delivery of the acknowledgement letter of AMC
and such other matters as Lender shall reasonably request in
form and substance satisfactory to Lender.
6. Secretary's Certificate and Incumbency Certificate of Borrower
(including good standing certificate of the Delaware Secretary
of State and certified resolutions of Borrower's board of
directors relating to the Residual Financing Agreements as
amended by this Amendment), in form and substance satisfactory
to Lender.
7. Secretary's Certificate and Incumbency Certificate of
Guarantor (including good standing certificate of the Delaware
Secretary of State and certified resolutions of Guarantor's
board of directors relating to the Residual Financing
Agreements as amended by this Amendment), in form and
substance satisfactory to Lender.
8. Secretary's Certificate and Incumbency Certificates of AMC
(including good standing certificate of the Delaware Secretary
of State and certified resolutions of AMC's board of directors
relating to the amended AMC Guarantees), in form and substance
satisfactory to Lender.
9. Such other opinions, documents and instruments as Lender or
its counsel shall reasonably request.
A-1
EXHIBIT B
[LBAC LETTERHEAD]
June 13, 2001
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to (i) the Credit and Security Agreement dated as of
January 30, 1998 (as amended, supplemented or otherwise modified prior to the
date hereof, the "Original 00-0 Xxxxxxxxx") xxxxx Xxxx Xxxxx Acceptance
Receivables Corp. ("Borrower"), Long Beach Acceptance Corp. ("Guarantor") and
Greenwich Capital Financial Products, Inc. ("Lender"), (ii) the Credit and
Security Agreement dated as of November 25, 1998 (as amended, supplemented or
otherwise modified prior to the date hereof, the "Original 98-2 Agreement")
among Borrower, Guarantor and Lender, (iii) the Credit and Security Agreement
dated as of August 12, 1999 (as amended, supplemented or otherwise modified
prior to the date hereof, the "Original 99-1 Agreement") among Borrower,
Guarantor and Lender, (iv) the Credit and Security Agreement dated as of
December 9, 1999 (as amended, supplemented or otherwise modified prior to the
date hereof, the "Original 99-2 Agreement"), (v) the Credit and Security
Agreement dated as of June 15, 2000 by and among Borrower, Guarantor and Lender
(as amended, supplemented or otherwise modified prior to the date hereof, the
"Original 2000-1 Agreement"), (vi) the Credit and Security Agreement dated as of
December 13, 2000 by and among Borrower, Lender and Guarantor (as amended,
supplemented or otherwise modified prior to the date hereof, the "Original
2000-2 Agreement" and, collectively with the Original 98-1 Agreement, the
Original 98-2 Agreement, the Original 99-1 Agreement, the Original 99-2
Agreement and the Original 2000-1 Agreement, the "Original Residual Financing
Agreements", and each individually, an "Original Residual Financing Agreement")
among Borrower, Guarantor and Lender, (vii) the Guarantee by Guarantor dated as
of January 30, 1998 (the "98-1 Guarantee") in favor of Lender, (viii) the
Guarantee by Guarantor dated as of November 25, 1998 (the "98-2 Guarantee") in
favor of Lender, (ix) the Guarantee by Guarantor dated as of August 12, 1999
(the "99-1 Guarantee") in favor of Lender, (x) the Guarantee by Guarantor dated
as of December 9, 1999 (the "99-2 Guarantee"), (xi) the Guarantee by Guarantor
dated as of June 15, 2000 (the "2000-1 Guarantee") and (xii) the Guarantee by
Guarantor dated as of December 13, 2000 (the "2000-2 Guarantee" and,
collectively with the 98-1 Guarantee, the 98-2 Guarantee, the 99-1 Guarantee,
the 99-2 Guarantee and the 2000-1 Guarantee, and as amended, supplemented or
otherwise modified prior to the date hereof, the "Guarantees", and each
individually, a "Guarantee") in favor of Lender, and (xiii) Omnibus Amendment
Agreement No. 6 dated as of June 13, 2001 (the "Amendment") among Borrower,
Guarantor and Lender. The Original 98-1 Agreement, the Original 98-2 Agreement,
the Original 99-1 Agreement, the Original 99-2 Agreement, the
B-1
Original 2000-1 Agreement and the Original 2000-2 Agreement, each as amended by
the Amendment, as the same may be amended, supplemented or otherwise modified
from time to time in accordance with the respective terms thereof are referred
to herein as the "98-1 Agreement", the "98-2 Agreement", the "99-1 Agreement",
the "99-2 Agreement", the "2000-1 Agreement" and the 2000-2 Agreement,
respectively, and collectively, the "Residual Financing Agreements", and each
individually, a "Residual Financing Agreement". Capitalized terms used but not
otherwise defined herein are used as defined in the applicable Guarantee.
For good and valuable consideration, the receipt and sufficiency of
which we hereby acknowledge, we hereby agree and confirm that (i) we
unconditionally and irrevocably guarantee to Lender, or any successor in
interest of Lender, the due, punctual and complete payment and performance by
Borrower when and as due, whether at the stated maturity, by acceleration, upon
one or more dates set for repayment or prepayment or otherwise, of the
Obligations, (ii) all Loans outstanding under each Residual Financing Agreement
(including without limitation the Additional Advance made under and as defined
in the 98-2 Agreement, the Third Additional Advance made under and as defined in
the 99-1 Agreement, the Second Additional Advance made under and as defined in
the 99-2 Agreement, the Additional Advance made under and as defined in the
2000-1 Agreement and the Additional Advance made under and as defined in the
2000-2 Agreement) (in each case together with interest accrued thereon pursuant
to the terms of such Residual Financing Agreement) shall constitute
"Obligations" under such Residual Financing Agreement, (iii) all "Obligations"
under each Residual Financing Agreement shall constitute "Obligations" under the
related Guarantee, and (iv) all of the terms of the Guarantees, as amended,
supplemented or otherwise modified prior to the date hereof and as confirmed by
this letter, remain in full force and effect and are hereby ratified and
confirmed in all respects.
Very truly yours,
LONG BEACH ACCEPTANCE CORP.
By: __________________________
Name:
Title:
AGREED AND ACCEPTED:
GREENWICH CAPITAL MARKETS, INC.
By: __________________________
Name:
Title:
B-2
EXHIBIT C
[AMC LETTERHEAD]
June 13, 2001
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to (i) the Credit and Security Agreement dated as of
January 30, 1998 (as amended, supplemented or otherwise modified prior to the
date hereof, the "Original 00-0 Xxxxxxxxx") xxxxx Xxxx Xxxxx Acceptance
Receivables Corp. ("Borrower"), Long Beach Acceptance Corp. ("LBAC") and
Greenwich Capital Financial Products, Inc. ("Lender"), (ii) the Credit and
Security Agreement dated as of November 25, 1998 (as amended, supplemented or
otherwise modified prior to the date hereof, the "Original 98-2 Agreement")
among Borrower, LBAC and Lender, (iii) the Credit and Security Agreement dated
as of August 12, 1999 (as amended, supplemented or otherwise modified prior to
the date hereof, the "Original 99-1 Agreement") among Borrower, LBAC and Lender,
(iv) the Credit and Security Agreement dated as of December 9, 1999 (as amended,
supplemented or otherwise modified prior to the date hereof, the "Original 99-2
Agreement"), (v) the Credit and Security Agreement dated as of June 15, 2000 (as
amended, supplemented or otherwise modified prior to the date hereof, the
"Original 2000-1 Agreement"), (vi) the Credit and Security Agreement dated as of
December 13, 2000 by and among Borrower, Lender and Guarantor (as amended,
supplemented or otherwise modified prior to the date hereof, the "Original
2000-2 Agreement" and, collectively with the Original 98-1 Agreement, the
Original 98-2 Agreement, the Original 99-1 Agreement, the Original 99-2
Agreement and the Original 2000-1 Agreement, the "Original Residual Financing
Agreements", and each individually, an "Original Residual Financing Agreement"),
(vii) the AMC Guarantee by Ameriquest Mortgage Company (as successor of Long
Beach Mortgage Company) dated as of January 30, 1998 (the "98-1 AMC Guarantee")
in favor of Lender, (viii) the AMC Guarantee by Ameriquest Mortgage Company
dated as of November 25, 1998 (the "98-2 AMC Guarantee"), (ix) the AMC Guarantee
by Ameriquest Mortgage Company dated as of August 12, 1999 (the "99-1 AMC
Guarantee") in favor of Lender, (x) the AMC Guarantee by Ameriquest Mortgage
Company dated as of December 9, 1999 (the "99-2 AMC Guarantee") in favor of
Lender, (xi) the AMC Guarantee by Ameriquest Mortgage Company dated as of June
15, 2000 (the "2000-1 AMC Guarantee") and (xii) the Guarantee by Guarantor dated
as of December 13, 2000 (the "2000-2 Guarantee" and, collectively with the 98-1
AMC Guarantee, the 98-2 AMC Guarantee, the 99-1 AMC Guarantee and the 99-2 AMC
Guarantee and as amended, supplemented or otherwise modified prior to the date
hereof the "AMC Guarantees", and each individually, an "AMC Guarantee"), (xiii)
the Guarantee by LBAC dated as of January 30, 1998 (the "98-1 LBAC Guarantee")
in favor of Lender, (xiv) the Guarantee by LBAC dated as of November 25, 1998
(the "98-2 LBAC Guarantee") in favor of Lender, (xv) the Guarantee by LBAC dated
as of August 12, 1999 (the "99-1 LBAC Guarantee") in favor of Lender, (xvi) the
Guarantee by LBAC dated as of December 9, 1999 (the "99-2 LBAC
C-1
Guarantee") in favor of the Lender, (xvii) the Guarantee by LBAC dated as of
June 15, 2000 (the "2000-1 LBAC Guarantee") in favor of the Lender, (xviii) the
Guarantee by LBAC dated as of December 13, 2000 (the "2000-2 LBAC Guarantee"
and, collectively with the 98-1 LBAC Guarantee, the 98-2 LBAC Guarantee, the
99-1 LBAC Guarantee, the 99-2 LBAC Guarantee and the 2000-1 LBAC Guarantee, and
as amended, supplemented or otherwise modified prior to the date hereof, the
"LBAC Guarantees", and each individually, an "LBAC Guarantee") in favor of
Lender, (xix) Omnibus Amendment Agreement No. 6 dated as of June 13, 2001 (the
"Amendment") among Borrower, LBAC, as guarantor, and Lender. The Original 98-1
Agreement, the Original 98-2 Agreement, the Original 99-1 Agreement, the
Original 99-2, the Original 2000-1 Agreement and the Original 2000-2 Agreement,
as amended by the Amendment, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with the respective terms
thereof are referred to herein as the "98-1 Agreement", the "98-2 Agreement",
the "99-1 Agreement", the "99-2 Agreement", the "2000-1 Agreement" and the
2000-2 Agreement, respectively, and collectively, the "Residual Financing
Agreements", and each individually, a "Residual Financing Agreement".
Capitalized terms used but not otherwise defined herein are used as defined in
the applicable AMC Guarantee.
For good and valuable consideration, the receipt and sufficiency of
which we hereby acknowledge, we hereby agree and confirm that (i) we
unconditionally and irrevocably guarantee to Lender, or any successor in
interest of Lender, the due, punctual and complete payment and performance by
LBAC when and as due, whether at the stated maturity, by acceleration, upon one
or more dates set for repayment or prepayment or otherwise, of the LBAC
Obligations, (ii) all Loans outstanding under each Residual Financing Agreement
(including without limitation the Additional Advance made under and as defined
in the 98-2 Agreement, the Third Additional Advance made under and as defined in
the 99-1 Agreement, the Second Additional Advance made under and as defined in
the 99-2 Agreement, the Additional Advance made under and as defined in the
2000-1 Agreement and the Additional Advance made under and as defined in the
2000-2 Agreement) (in each case together with interest accrued thereon pursuant
to the terms of such Residual Financing Agreement) shall constitute
"Obligations" under such Residual Financing Agreement, (iii) all "Obligations"
under each Residual Financing Agreement shall constitute "LBAC Obligations"
under the related AMC Guarantee, as amended by this letter, and (iv) all of the
terms of the AMC Guarantees, as confirmed by this letter, and as amended,
supplemented or otherwise modified prior to the date hereof remain in full force
and effect and are hereby ratified and confirmed in all respects.
Very truly yours,
AMERIQUEST MORTGAGE COMPANY
By: __________________________
Name:
Title:
X-0
XXXXX X-X
EXHIBIT I
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
PROMISSORY NOTE
June 13, 2001
Amount: U.S. $3,081,108.04
FOR VALUE RECEIVED, LONG BEACH ACCEPTANCE RECEIVABLES CORP. (the
"Borrower") unconditionally promises to pay on the Maturity Date (as defined in
the 98-2 Agreement referred to below) to the order of Greenwich Capital
Financial Products, Inc. (the "Lender") in Federal or other immediately
available funds in lawful money of the United States the principal sum of Three
Million, Eighty-one Thousand, One Hundred Eight Dollars and Four Cents (U.S
$3,081,108.04) or, if less, the aggregate unpaid principal amount of the Loans
made by Lender to Borrower pursuant to the 98-2 Agreement, and to pay interest
thereon from the date hereof until this Note is repaid in like money at the
rates per annum and in the manner set forth in the 98-2 Agreement.
The principal of and interest on this Note shall be payable in
immediately available funds without set-off or counterclaim, in the manner set
forth in the 98-2 Agreement.
This Note is issued pursuant to the terms of a Credit and Security
Agreement dated as of November 25, 1998 among Borrower, Lender and Long Beach
Acceptance Corp., as Guarantor (as amended from time to time, the "98-2
Agreement"), and is subject to the terms thereof and is entitled to the benefits
therein provided.
Upon the occurrence of an Event of Default (as defined in the 98-2
Agreement), the principal of and accrued interest on this Note may be declared
due and payable in the manner and with the effect provided in the 98-2
Agreement, without presentment, demand, protest or notice of any kind, each of
which is hereby expressly waived by Borrower.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW
OF THE STATE OF NEW YORK.
LONG BEACH ACCEPTANCE RECEIVABLES CORP.
By: __________________________________
Name:
Title:
I-A-1
ANNEX I-B
EXHIBIT N
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
PROMISSORY NOTE
June 13, 2001
Amount: U.S. $8,453,378.31
FOR VALUE RECEIVED, LONG BEACH ACCEPTANCE RECEIVABLES CORP. (the
"Borrower") unconditionally promises to pay on the Maturity Date (as defined in
the 99-1 Agreement referred to below) to the order of Greenwich Capital
Financial Products, Inc. (the "Lender") in Federal or other immediately
available funds in lawful money of the United States the principal sum of Eight
Million, Four Hundred Fifty-three Thousand, Three Hundred Seventy-eight Dollars
and Thirty-one Cents (U.S. $8,453,378.31) or, if less, the aggregate unpaid
principal amount of the Loans made by Lender to Borrower pursuant to the 99-1
Agreement, and to pay interest thereon from the date hereof until this Note is
repaid in like money at the rates per annum and in the manner set forth in the
99-1 Agreement.
The principal of and interest on this Note shall be payable in
immediately available funds without set-off or counterclaim, in the manner set
forth in the 99-1 Agreement.
This Note is issued pursuant to the terms of a Credit and Security
Agreement dated as of August 12, 1999 among Borrower, Lender and Long Beach
Acceptance Corp., as Guarantor (as amended from time to time, the "99-1
Agreement"), and is subject to the terms thereof and is entitled to the benefits
therein provided.
Upon the occurrence of an Event of Default (as defined in the 99-1
Agreement), the principal of and accrued interest on this Note may be declared
due and payable in the manner and with the effect provided in the 99-1
Agreement, without presentment, demand, protest or notice of any kind, each of
which is hereby expressly waived by Borrower.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW
OF THE STATE OF NEW YORK.
LONG BEACH ACCEPTANCE RECEIVABLES CORP.
By: __________________________________
Name:
Title:
I-B-1
ANNEX I-C
EXHIBIT L
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
PROMISSORY NOTE
June 13, 2001
Amount: U.S. $7,091,447.81
FOR VALUE RECEIVED, LONG BEACH ACCEPTANCE RECEIVABLES CORP. (the
"Borrower") unconditionally promises to pay on the Maturity Date (as defined in
the 99-2 Agreement referred to below) to the order of Greenwich Capital
Financial Products, Inc. (the "Lender") in Federal or other immediately
available funds in lawful money of the United States the principal sum of Seven
Million, Ninety-one Thousand, Four Hundred Forty-seven Dollars and Eighty-one
Cents (U.S $7,091,447.81) or, if less, the aggregate unpaid principal amount of
the Loans made by Lender to Borrower pursuant to the 99-2 Agreement, and to pay
interest thereon from the date hereof until this Note is repaid in like money at
the rates per annum and in the manner set forth in the 99-2 Agreement.
The principal of and interest on this Note shall be payable in
immediately available funds without set-off or counterclaim, in the manner set
forth in the 99-2 Agreement.
This Note is issued pursuant to the terms of a Credit and Security
Agreement dated as of December 9, 1999 among Borrower, Lender and Long Beach
Acceptance Corp., as Guarantor (as amended from time to time, the "99-2
Agreement"), and is subject to the terms thereof and is entitled to the benefits
therein provided.
Upon the occurrence of an Event of Default (as defined in the 99-2
Agreement), the principal of and accrued interest on this Note may be declared
due and payable in the manner and with the effect provided in the 99-2
Agreement, without presentment, demand, protest or notice of any kind, each of
which is hereby expressly waived by Borrower.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW
OF THE STATE OF NEW YORK.
LONG BEACH ACCEPTANCE RECEIVABLES CORP.
By: __________________________________
Name:
Title:
I-C-1
ANNEX I-D
EXHIBIT I
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
PROMISSORY NOTE
June 13, 2001
Amount: U.S. $6,616,203.80
FOR VALUE RECEIVED, LONG BEACH ACCEPTANCE RECEIVABLES CORP. (the
"Borrower") unconditionally promises to pay on the Maturity Date (as defined in
the 2000-1 Agreement referred to below) to the order of Greenwich Capital
Financial Products, Inc. (the "Lender") in Federal or other immediately
available funds in lawful money of the United States the principal sum of Six
Million, Six Hundred Sixteen Thousand, Two Hundred Three Dollars and Eighty
Cents (U.S $6,616,203.80) or, if less, the aggregate unpaid principal amount of
the Loans made by Lender to Borrower pursuant to the 2000-1 Agreement, and to
pay interest thereon from the date hereof until this Note is repaid in like
money at the rates per annum and in the manner set forth in the 2000-1
Agreement.
The principal of and interest on this Note shall be payable in
immediately available funds without set-off or counterclaim, in the manner set
forth in the 2000-1 Agreement.
This Note is issued pursuant to the terms of a Credit and Security
Agreement dated as of June 15, 2000 among Borrower, Lender and Long Beach
Acceptance Corp., as Guarantor (as amended from time to time, the "2000-1
Agreement"), and is subject to the terms thereof and is entitled to the benefits
therein provided.
Upon the occurrence of an Event of Default (as defined in the 2000-1
Agreement), the principal of and accrued interest on this Note may be declared
due and payable in the manner and with the effect provided in the 2000-1
Agreement, without presentment, demand, protest or notice of any kind, each of
which is hereby expressly waived by Borrower.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW
OF THE STATE OF NEW YORK.
LONG BEACH ACCEPTANCE RECEIVABLES CORP.
By: __________________________________
Name:
Title:
I-D-1
ANNEX I-E
EXHIBIT I
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
PROMISSORY NOTE
June 13, 2001
Amount: U.S. $2,809,767.60
FOR VALUE RECEIVED, LONG BEACH ACCEPTANCE RECEIVABLES CORP. (the
"Borrower") unconditionally promises to pay on the Maturity Date (as defined in
the 2000-2 Agreement referred to below) to the order of Greenwich Capital
Financial Products, Inc. (the "Lender") in Federal or other immediately
available funds in lawful money of the United States the principal sum of Two
Million, Eight Hundred Nine Thousand, Seven Hundred Sixty-seven Dollars and
Sixty Cents (U.S $2,809,767.60) or, if less, the aggregate unpaid principal
amount of the Loans made by Lender to Borrower pursuant to the 2000-2 Agreement,
and to pay interest thereon from the date hereof until this Note is repaid in
like money at the rates per annum and in the manner set forth in the 2000-2
Agreement.
The principal of and interest on this Note shall be payable in
immediately available funds without set-off or counterclaim, in the manner set
forth in the 2000-2 Agreement.
This Note is issued pursuant to the terms of a Credit and Security
Agreement dated as of December 13, 2000 among Borrower, Lender and Long Beach
Acceptance Corp., as Guarantor (as amended from time to time, the "2000-2
Agreement"), and is subject to the terms thereof and is entitled to the benefits
therein provided.
Upon the occurrence of an Event of Default (as defined in the 2000-2
Agreement), the principal of and accrued interest on this Note may be declared
due and payable in the manner and with the effect provided in the 2000-2
Agreement, without presentment, demand, protest or notice of any kind, each of
which is hereby expressly waived by Borrower.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW
OF THE STATE OF NEW YORK.
LONG BEACH ACCEPTANCE RECEIVABLES CORP.
By: __________________________________
Name:
Title:
I-E-1
ANNEX II
EXHIBIT H
FORM OF ADDITIONAL ADVANCE NOTICE OF BORROWING
June 12, 2001
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
In accordance with Section 2.11 of that certain Credit and Security
Agreement, dated as of [____________] (as amended, modified or otherwise
supplemented from time to time in accordance with the terms thereof, the
"AGREEMENT", the terms defined therein being used herein as defined therein), by
and among Greenwich Capital Financial Products, Inc., as Lender, the
undersigned, as Borrower, and Long Beach Acceptance Corp., as Guarantor, the
undersigned hereby requests a Loan in an aggregate principal amount equal to
$_________________, to be disbursed in the manner provided below.
The undersigned hereby certifies that the following statements are true
on the date hereof:
A. the representations and warranties contained in Section 4 of
the Agreement are true and correct as of the date hereof; and
B. no Default, Event of Default or Other RF Event of Default has
occurred and is continuing.
DISBURSEMENT INSTRUCTIONS:
Very truly yours,
Long Beach Acceptance Receivables Corp.,
as Borrower
By:
-----------------------------------
Name:
Title:
II-1
ANNEX III
EXHIBIT M
FORM OF THIRD ADDITIONAL ADVANCE NOTICE OF BORROWING
June 12, 2001
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
In accordance with Section 2.13 of that certain Credit and Security
Agreement, dated as of [____________] (as amended, modified or otherwise
supplemented from time to time in accordance with the terms thereof, the
"AGREEMENT", the terms defined therein being used herein as defined therein), by
and among Greenwich Capital Financial Products, Inc., as Lender, the
undersigned, as Borrower, and Long Beach Acceptance Corp., as Guarantor, the
undersigned hereby requests a Loan in an aggregate principal amount equal to
$_________________, to be disbursed in the manner provided below.
The undersigned hereby certifies that the following statements are true
on the date hereof:
A. the representations and warranties contained in Section 4 of
the Agreement are true and correct as of the date hereof; and
B. no Default, Event of Default or Other RF Event of Default has
occurred and is continuing.
DISBURSEMENT INSTRUCTIONS:
Very truly yours,
Long Beach Acceptance Receivables Corp.,
as Borrower
By:
-----------------------------------
Name:
Title:
III-1
ANNEX IV
EXHIBIT K
FORM OF SECOND ADDITIONAL ADVANCE NOTICE OF BORROWING
June 12, 2001
Greenwich Capital Financial Products, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
In accordance with Section 2.12 of that certain Credit and Security
Agreement, dated as of [____________] (as amended, modified or otherwise
supplemented from time to time in accordance with the terms thereof, the
"AGREEMENT", the terms defined therein being used herein as defined therein), by
and among Greenwich Capital Financial Products, Inc., as Lender, the
undersigned, as Borrower, and Long Beach Acceptance Corp., as Guarantor, the
undersigned hereby requests a Loan in an aggregate principal amount equal to
$_________________, to be disbursed in the manner provided below.
The undersigned hereby certifies that the following statements are true
on the date hereof:
A. the representations and warranties contained in Section 4 of
the Agreement are true and correct as of the date hereof; and
B. no Default, Event of Default or Other RF Event of Default has
occurred and is continuing.
DISBURSEMENT INSTRUCTIONS:
Very truly yours,
Long Beach Acceptance Receivables Corp.,
as Borrower
By:
------------------------------------
Name:
Title:
IV-1
