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EXHIBIT 10.102
ANNEX I
SUPPLEMENTAL TERMS TO
MASTER REPURCHASE AGREEMENT,
DATED AS OF FEBRUARY 4, 1998, AMONG
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE CAPITAL INC.
AND
ONYX ACCEPTANCE FUNDING CORPORATION
APPLICABILITY. These Supplemental Terms (the "Supplemental Terms") to Master
Repurchase Agreement (the "Repurchase Agreement") modify the terms and
conditions of the Repurchase Agreement and the terms under which the
parties hereto may, from time to time, enter into Transactions (the
Repurchase Agreement, together with these Supplemental Terms, the
"Agreement"). The Agreement shall be read, taken and construed as one
and the same instrument. Capitalized terms used in these Supplemental
Terms and not otherwise defined herein shall have the meanings set forth
in the Repurchase Agreement.
ADDITIONAL DEFINITIONS.
Notwithstanding the definition set forth in Paragraph 2(j) of the
Repurchase Agreement, with respect to Eligible Assets, the
"Market Value" of Eligible Assets shall be the price of
Purchased Auto Loans, determined, as of any date of
determination, to be the fair market value thereof as determined
solely by Buyer; provided, however, that (i) a Market Value of
zero shall be assigned to each Eligible Asset that is more than
thirty (30) days delinquent, (ii) the Market Value of Eligible
Assets shall not in any event exceed the outstanding principal
amount thereof, (iii) any Eligible Asset that has been subject
to the Agreement for more than 120 days in aggregate shall have
a Market Value of zero, (iv) any Wet Eligible Asset that is
subject to the Agreement for more than three (3) business days
without having become a Dry Eligible Asset shall have a Market
Value of zero and (v) any Eligible Asset with respect to which
there is a breach of a representation or warranty that is not
cured within any applicable cure period shall have a Market
Value of zero.
"Affiliate Purchase Agreement" shall mean that certain Sale and
Servicing Agreement dated as of February 4, 1998 by and between
Seller and Onyx, a copy of which is attached as Exhibit G.
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"Auto Loan" shall mean either (i) a promissory note and the related
security agreement or (ii) a retail installment sale contract
for a Financed Vehicle.
"Borrower" shall refer to the obligor on any Eligible Asset.
"Buyer" shall mean MLMCI.
"Buyer's Margin Percentage" shall refer to the percentage used to
calculate Buyer's Margin Amount, which shall be 112.5% unless
otherwise agreed by the parties and set forth in the related
Confirmation.
"Code" shall refer to the Internal Revenue Code of 1986, as amended.
"Computer Tape" shall mean a computer tape of information relating to
the Eligible Assets generated by the Servicer in a format
acceptable to the Custodian and Buyer.
"Contract" means the retail installment sale contract, or the promissory
note and related security agreement, relating to a Financed
Vehicle.
"Custody Agreement" shall refer to the Custody Agreement, by and among
Seller, Buyer and the Custodian, providing for the custody of
records relating to Eligible Assets, as the same may be amended,
supplemented or otherwise modified from time to time.
"Custodial Confirmation Statement" shall refer to the confirmation
statement issued by the party named as custodian in the Custody
Agreement that evidences ownership of the Eligible Assets
indicated thereon.
"Custodian" shall refer to Bankers Trust Company of California, N.A. and
its permitted successors as custodian under the Custody
Agreement.
"Custodian's Asset File" shall, as to each Eligible Asset, have the
meaning set forth in Section 2 of the Custody Agreement.
"Dealer" means the dealer who sold a Financed Vehicle and who originated
and assigned the related receivable to Onyx under an existing
Dealer Agreement.
"Dealer Agreement" means each agreement between a Dealer and Onyx,
substantially in the form of Exhibit F hereto.
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"Dry Eligible Asset" shall refer to an Eligible Asset with respect to
which the Required Documents are in the Custodian's custody.
"Eligible Assets" shall mean Purchased Auto Loans subject to the
Agreement.
"Financed Vehicle" shall mean a new or used automobile or light duty
trucks (including all accessories thereto) that is the subject
of an Auto Loan.
"GAAP" shall mean generally accepted accounting principles consistently
applied.
"Guarantee" shall mean the guarantee of Onyx to be delivered pursuant to
Paragraph 7(c)(viii).
"Indebtedness" shall mean, for any Person: (a) obligations created,
issued or incurred by such Person for borrowed money (whether by
loan, the issuance and sale of debt securities or the sale of
property to another Person subject to an understanding or
agreement, contingent or otherwise, to repurchase such property
from such Person); (b) obligations of such Person to pay the
deferred purchase or acquisition price of property or services,
other than trade accounts payable (other than for borrowed
money) arising, and accrued expenses incurred, in the ordinary
course of business so long as such trade accounts payable are
payable within 90 days of the date the respective goods are
delivered or the respective services are rendered; (c)
Indebtedness of others secured by a lien on the property of such
Person, whether or not the respective Indebtedness so secured
has been assumed by such Person; (d) obligations (contingent or
otherwise) of such Person in respect of letters of credit or
similar instruments issued or accepted by banks and other
financial institutions for account of such Person; (e) capital
lease obligations of such Person; (f) obligations of such Person
under repurchase agreements or like arrangements; (g)
Indebtedness of others guaranteed by such Person; (h) all
obligations of such Person incurred in connection with the
acquisition or carrying of fixed assets by such Person; and (i)
Indebtedness of general partnerships of which such Person is a
general partner.
"LIBOR" shall mean the London Interbank Offered Rate for one-month
United States Dollar deposits as set forth on page 8695 of
▇▇▇▇▇▇-▇▇▇▇▇▇ as of 8:00 a.m., New York City time, on the date
of determination.
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"Lien Certificate" means, as to each Financed Vehicle, the application
for title, the existing title, the lien entry form or the
receipt of registration, in each case noting the lien of Onyx on
the Financed Vehicle.
"List of Auto Loans" shall be as defined in Paragraph 3 of these
Supplemental Terms.
"Master Assignment Agreement" shall mean the Master Assignment
Agreement, dated as of February 4, 1998, between Seller and
Buyer.
"MLMCI" shall refer to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Capital Inc.
"Net Worth" shall refer to the sum of equity and subordinated debt of
Onyx, each as determined in accordance with GAAP on a
consolidated basis less the sum of (i) intercompany receivables,
(ii) loans to officers or employees of Onyx, (iii) good will and
(iv) deferred taxes.
"Obligor" means, with respect to any Eligible Asset, the purchaser or
co-purchasers of the Financed Vehicle and any other Person who
owes payments under the applicable Purchased Auto Loan.
"Onyx" shall mean Onyx Acceptance Corporation.
"Person" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, limited liability
company, trust, unincorporated association or government (or any
agency, instrumentality or political subdivision thereof).1
"Purchased Auto Loan" shall mean each Auto Loan purchased hereunder.
"Required Documents" means the documents relating to each Eligible Asset
(other than a Wet Eligible Asset) that are required to be
delivered to the Custodian under the Custody Agreement.
"Securities" shall be deemed to mean Eligible Assets and,
notwithstanding the use of the term "Securities" in the Master
Repurchase Agreement, in no event shall such Eligible Assets be
deemed to be securities for the purposes of any securities or
blue sky laws.
"Seller" shall refer to Onyx Acceptance Funding Corporation.
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"Seller's Affiliate" shall mean C.U. Acceptance Corporation or ABNI,
Inc., as applicable.
"Seller's Origination Guide" shall refer to the origination guide of
Onyx for Auto Loans in the form most recently accepted in
writing by Buyer.
"Seller's Physical Damage Policy" shall mean the blanket insurance
policy of Seller covering physical damage with respect to all
Financed Vehicles in the form attached hereto as Exhibit E.
"Servicer" means the servicer of the Eligible Assets, which may be Onyx
and which servicer shall be acceptable to Buyer in its sole
discretion.
"Transaction" shall, in addition to the definition set forth in the
Repurchase Agreement, refer to substitutions pursuant to
Paragraph 9 of the Repurchase Agreement.
"Wet Eligible Assets" shall mean Eligible Assets with respect to
which the Required Documents are not in the Custodian's custody
on the related Purchase Date.
CONFIRMATIONS. Each Confirmation shall be binding upon the parties hereto unless
written notice of objection is given by the objecting party to the other
party within one (1) business day after the objecting party's receipt of
such Confirmation. In the case of Transactions involving Auto Loans, the
Eligible Assets shall be identified on a detailed listing to be provided
by Seller to Buyer (a "List of Auto Loans") and may be identified in the
related Confirmation by reference to such lists.
MARGIN MAINTENANCE.
Paragraph 4(b) of the Repurchase Agreement is hereby modified to provide
that if the notice to be given by Buyer to Seller under such
paragraph is given at or prior to 10:00 a.m., New York City
time, Seller shall transfer the Additional Eligible Assets to
Buyer prior to the close of business in New York City on the
date of such notice, and if such notice is given after 10:00
a.m., New York City time, Seller shall transfer the Additional
Eligible Assets prior to the close of business in New York City
on the business day immediately following the date of such
notice. The Custody Agreement shall set forth further terms and
provisions relating to Buyer's and Seller's rights and
obligations under Paragraph 4 of the Repurchase Agreement.
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Paragraph 4 of the Repurchase Agreement is hereby modified by adding the
following at the end thereof:
"(f)In the event that Seller fails to comply with the
provisions of this Paragraph 4, Buyer shall not enter
into any additional Transactions hereunder after the
date of such failure."
INCOME PAYMENTS. Paragraph 5 of the Repurchase Agreement is hereby modified to
provide that, so long as no Event of Default shall have occurred and be
continuing, Seller shall be entitled to all payments of principal and
interest and principal prepayments payable to the holder of the Eligible
Assets. Upon the occurrence of an Event of Default, payment of principal
and interest and principal prepayments shall be paid directly to Buyer.
ASSIGNMENT; INTENT OF THE PARTIES; SECURITY INTEREST.
Seller hereby assigns and transfers to Buyer, for good and valuable
consideration the receipt and sufficiency of which is hereby
acknowledged by Seller, the Eligible Assets subject to each
Transaction including, without limitation, the Contracts
relating to the Purchased Auto Loans that are subject to each
Transaction.
In the event, for any reason, any Transaction is construed by any
court as a secured loan rather than a purchase and sale, the
parties intend that Seller shall have granted to Buyer, and the
Seller hereby does grant to Buyer, all right title and interest
of Seller in and to, and a lien upon and a continuing and
security interest in, all of Seller's right title and interest
to the Eligible Assets, all rights with respect thereto and all
proceeds thereof.
Seller shall pay all fees and expenses associated with perfecting such
security interest including, without limitation, the cost of
filing financing statements under the Uniform Commercial Code.
In the event that Buyer elects to engage in repurchase transactions
with the Eligible Assets or otherwise elects to pledge or
hypothecate such Eligible Assets, Seller shall, at the request
of Buyer and at the expense of Seller, provide Buyer's
counterparty in such repurchase transaction with an opinion of
counsel to the effect that such counterparty has a perfected
first priority security interest in the Eligible Assets.
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Notwithstanding Paragraph 9(b) of the Repurchase Agreement, it is the
intention of the parties that the Custodian, rather than Seller,
shall maintain custody of the Purchased Securities pursuant to
the Custody Agreement.
REPRESENTATIONS, WARRANTIES AND COVENANTS.
Each party represents and warrants, and shall on and as of the
Purchase Date of any Transaction be deemed to represent and
warrant, as follows:
The execution, delivery and performance of the Agreement and
the performance of each Transaction do not and will not
result in or require the creation of any lien, security
interest or other charge or encumbrance (other than
pursuant to the Agreement) upon or with respect to any
of its properties; and
The Agreement is, and each Transaction when entered into under the
Agreement will be, a legal, valid and binding obligation of it
enforceable against it in accordance with the terms of the
Agreement.
Seller represents and warrants to Buyer, and shall on and as of the
Purchase Date of any Transaction be deemed to represent and
warrant, as follows:
The documents disclosed by Seller to Buyer pursuant to the Agreement
are either original documents or genuine and true copies
thereof;
Seller is a separate and independent corporate entity from the
Custodian named in the Custody Agreement, Seller does not own a
controlling interest in such Custodian either directly or
through affiliates and no director or officer of Seller is also
a director or officer of such Custodian;
None of the Purchase Price for any Eligible Assets will be used either
directly or indirectly to acquire any security, as that term is
defined in Regulation T of the Regulations of the Board of
Governors of the Federal Reserve System, and Seller has not
taken any action that might cause any Transaction to violate any
regulation of the Federal Reserve Board;
Each Auto Loan conforms to the current market standards of
institutional securitization applicable to auto loans similar in
nature to the Auto Loans;
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Each Auto Loan was underwritten in accordance with the written
underwriting standards of Seller's Origination Guidelines
furnished by Seller to Buyer, and no change to such underwriting
standards has occurred since the date of the last written
revision to such standards was furnished to Buyer by Seller or
on behalf of Seller;
Since the date of the most recent consolidated financial statement of
Onyx, delivered by it pursuant to Paragraph 11 of these
Supplemental Terms, there has been no material adverse change in
the financial condition or results of operations of Seller or
Onyx;
Seller shall be at the time it delivers any Eligible Assets for any
Transaction, and shall continue to be, through the Purchase Date
relating to each such Transaction, the legal and beneficial
owner of such Eligible Assets, free of any lien, security
interest, option or encumbrance except for the security interest
created by or pursuant to the Agreement;
Seller has taken all action with respect to the Agreement, the Custody
Agreement and the transactions contemplated hereby and thereby
in order to comply with the provisions of all applicable law;
The aggregate outstanding Repurchase Price for Eligible Assets subject
to the Agreement as of any date that are Wet Eligible Assets
does not exceed (1) during each of the first three business days
after a periodic securitization of Eligible Assets by Seller or
an Affiliate, $500,000 for each such business day and (2) in all
other cases, $1,500,000;
Onyx and each Seller's Affiliate has all applicable licenses and other
authority to originate the Contracts originated by it and sell
such Contracts to Seller pursuant to the applicable Affiliate
Purchase Agreement;
Seller is a wholly owned subsidiary of Onyx and Seller's only business
is to purchase and sell Eligible Assets as contemplated hereby;
The chief executive office of Seller is located in the State of
California;
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The Seller's Physical Damage Policy is in the form of Exhibit E
hereto, as amended from time to time (so long as each such
amendment shall have been provided to Buyer) and is in full
force and effect and covers all Eligible Assets;
There exists for each Eligible Asset, other than Contracts originated
by a Seller's Affiliate, a fully executed Dealer Agreement in
the form of Exhibit F hereto;
The Affiliate Purchase Agreement has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and
binding agreement of the parties thereto, enforceable in
accordance with its terms; and
Buyer is a third party beneficiary to the Affiliate Purchase Agreement
and is entitled to enforce the rights of Seller thereunder.
Seller covenants with Buyer, from and after the date of the Agreement,
as follows:
Seller will take all actions necessary with respect to the Agreement,
the Custody Agreement and the transactions contemplated hereby
and thereby in order to maintain compliance with the provisions
of all applicable law;
Seller shall immediately notify Buyer if an Event of Default or an
event contemplated by Paragraph 9 of these Supplemental Terms
shall have occurred;
Seller shall deliver a Computer Tape relating to the Custody Agreement
to Buyer with such frequency as Buyer may require but in no
event less frequently than bi-monthly;
Seller shall deliver to Buyer a Weekly Report on the first business day
of each week during the term of the Agreement;
Seller shall not permit any change in its ownership without the prior
written consent of Buyer;
Seller shall notify Buyer in writing at least sixty (60) days prior to
any termination or attenuation of the Seller's Physical Damage
Policy;
Seller shall cause Onyx to deliver to Buyer, in writing within thirty
(30) days after the end of each calendar month, a certificate of
an authorized
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officer to the effect that none of the events contemplated by
Paragraph 8(a)(ix) or (x) have occurred and are continuing;
Seller shall cause Onyx to deliver to Buyer, in writing within thirty
(30) days after the end of each calendar quarter, a certificate
of an authorized officer to the effect that the events
contemplated by Paragraph 8(a)(viii) have not occurred; and
Seller shall proceed in good faith to cause Onyx amend Onyx's existing
warehouse agreements so as to enable Onyx to provide to Buyer a
guaranty substantially in the form of Exhibit D hereto, and
after such amendments have been made Seller shall cause Onyx to
provide such guaranty to Buyer.
EVENTS OF DEFAULT.
The term "Event of Default" shall, in addition to the definition set
forth in the Repurchase Agreement, include the following events:
Any governmental or self-regulatory authority shall take possession
of Buyer or Seller or Onyx or their property or appoint any
receiver, conservator or other official, or such party shall
take any action to authorize any of the actions set forth in
this clause (i).
Buyer shall have reasonably determined that Seller (or, when the
Guarantee is provided, Onyx) is or will be unable to meet its
commitments under the Agreement (or, in the case of Onyx, the
Guarantee), shall have notified Seller (or Onyx, as and when
applicable) of such determination and such party shall not have
responded with appropriate information to the contrary to the
satisfaction of Buyer within 24 hours.
The Agreement shall for any reason cease to create a valid, first
priority security interest in any of the Eligible Assets
purported to be covered thereby.
A final judgment by any competent court in the United States of
America for the payment of money in an amount of at least
$100,000 is rendered against Seller or Onyx, and the same
remains undischarged for a period of sixty (60) days during
which execution of such judgment is not effectively stayed.
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Any representation or warranty made by Seller in the Agreement or any
Custody Agreement shall have been incorrect or untrue when made
or repeated or when deemed to have been made or repeated.
Any covenant made by Seller in the Agreement or any Custody Agreement
shall have been breached in any material respect.
Any event of default or any event which with notice, the passage of
time or both shall constitute an event of default shall occur
and be continuing under any repurchase or other financing
agreement for borrowed funds or indenture for borrowed funds by
which Seller or Onyx is bound or affected shall occur and be
continuing including, without limitation, any such agreement of
Seller or Onyx to which Buyer or any of its affiliates is a
party.
Onyx shall experience losses or changes in its financial condition
(exclusive of amounts withdrawn for payment of taxes due and
payable by the shareholders of Onyx) that cause its Net Worth
for any two consecutive calendar quarters to be less than or
equal to 80% of its Net Worth as of the commencement of such
period.
The ratio of Onyx's total Indebtedness to Onyx's Net Worth determined as
of the end of each calendar month shall exceed 8:1.
Onyx's Net Worth shall at any time be less than $30,000,000.
Upon the occurrence and during the continuance of an Event of Default by
Seller:
All rights of Seller to receive payments which it would otherwise be
authorized to receive pursuant to Paragraph 5 of these
Supplemental Terms shall cease, and all such rights shall
thereupon become vested in Buyer, which shall thereupon have the
sole right to receive such payments and apply them to the
aggregate unpaid Repurchase Prices owed by Seller.
All payments which are received by Seller contrary to the provisions
of the preceding clause (i) shall be received in trust for the
benefit of Buyer and shall be segregated from other funds of
Seller.
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Buyer may exercise any self-help remedies permitted by applicable law.
The parties hereby agree that sales of Eligible Assets under Paragraph
11(d)(i) of the Repurchase Agreement shall be deemed to include
and permit sales of Eligible Assets pursuant to a securities
offering.
Buyer may, in its sole discretion upon the occurrence and during the
continuation of an Event of Default hereunder, proceed against
any assets held by it under any agreement between Buyer or any
of its affiliates and Seller (including, without limitation, the
Master Assignment Agreement) and shall have a right of set-off
against any amounts owed by Buyer or any such affiliate to
Seller under any such agreements. In addition, the parties agree
that Buyer may, in its sole discretion upon the occurrence and
during the continuation of an event of default under any
agreement between Buyer or any of its affiliates and Seller or
any of its affiliates (including, without limitation, the Master
Assignment Agreement), proceed against any assets held by it
hereunder and shall have a right of set-off against any amount
owed by Buyer to Seller hereunder.
EVENTS OF TERMINATION.
At the option of Buyer, exercised by written notice to Seller, the
Repurchase Date for each Transaction under the Agreement shall
be deemed to immediately occur in the event that:
In the judgment of Buyer a material adverse change shall have
occurred in the business, operations, properties,
prospects or condition (financial or otherwise) of
Seller or Onyx;
Buyer shall request written assurances as to the financial well-being
of Seller or Onyx and such assurances shall not have been
provided within 24 hours of such request;
Seller or Onyx shall be in default with respect to any normal and
customary covenants under any debt contract or agreement, any
servicing agreement or any lease to which it is a party, which
default could materially adversely affect the financial
condition of such party (which covenants include, but are not
limited to, an Act of Insolvency of Seller or Onyx or the
failure of Seller or Onyx to
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make required payments under such contract or agreement as they
become due);
The senior debt obligations or short-term debt obligations of ▇▇▇▇▇▇▇
▇▇▇▇▇ & Co., Inc. shall be rated below the four highest generic
grades (without regard to any pluses or minuses reflecting
gradations within such generic grades) by any nationally
recognized statistical rating organization;
Any representation or warranty made by Seller in the Agreement or any
Custody Agreement shall have been incorrect or untrue when made
or repeated or when deemed to have been made or repeated;
Seller shall fail to promptly notify Buyer of (i) the acceleration of
any debt obligation or the early termination of any credit
facility of Seller or Onyx; (ii) the amount and maturity of any
such debt assumed after the date hereof; (iii) any adverse
developments with respect to pending or future litigation
involving Seller or Onyx; and (iv) any other developments which
might reasonably be expected to materially and adversely affect
the financial condition of Seller or Onyx;
Seller shall have failed to comply in any material respect with its
obligations under the Custody Agreement; or
At any time after the issuance of the Guarantee, Onyx shall have failed
to comply in any material respect with its obligations under the
Guarantee.
The events specified in Paragraph 9(a) of these Supplemental Terms
which may, at the option of Buyer, cause an acceleration of the
Repurchase Date for a Transaction shall be in addition to any
other rights of Buyer to cause such an acceleration under the
Agreement.
FINANCIAL STATEMENTS. Seller shall furnish, or cause to be furnished, to Buyer:
as soon as available and in any event within sixty (60) days
after the close of each of the first three (3) quarters of each fiscal
year of Seller, Onyx's applicable quarterly Form 10-Q as filed with the
Securities and Exchange Commission, including the consolidating
statements for the Seller, subject to normal recurring year-end audit
adjustments, and as prepared in accordance with GAAP; and
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as soon as available and in any event within one hundred and
twenty (120) days after the close of each fiscal year of Onyx, a
consolidated audited balance sheet of Onyx, a consolidated audited
statement of income of Onyx and an audited consolidated statement of
changes in financial position of Onyx's consolidated financial group as
at the end of and for the fiscal year just closed, setting forth the
corresponding figures of the previous fiscal year, if applicable, in
comparative form, all in reasonable detail and certified (without any
qualification or exception deemed material by MLMCI); by independent
public accountants selected by Onyx and reasonably satisfactory to
MLMCI.
MINIMUM AND MAXIMUM TRANSACTION AMOUNTS; MARGIN. With respect to all
Transactions hereunder:
The minimum amount of any Transaction under the Agreement shall have an
aggregate Repurchase Price of $1,000,000;
The aggregate outstanding Repurchase Price for the Eligible Assets
subject to the Agreement at any one time shall not exceed
$100,000,000; and
Buyer's Margin Percentage with respect to each category of Eligible
Assets shall be as mutually agreed upon by Buyer and Seller.
REPURCHASE PRICE; PRICE DIFFERENTIAL. The Repurchase Price as of any date shall
include that portion of the Price Differential that has accrued but has
not been paid. The Price Differential shall accrue, be calculated and be
compounded on a daily basis for each Purchased Security (such
calculation to be made on the basis of a 360-day year and the actual
number of days elapsed). The Price Differential shall be payable monthly
in arrears to Buyer with respect to each Transaction. The Price
Differential for any Transaction shall, unless otherwise agreed by the
parties, be equal to the product of (i) the Repurchase Price (which
shall be the Purchase Price increased by the accrued and unpaid Price
Differential) and (ii) a per annum percentage seventy-five (75) basis
points (or such other number of basis points as Buyer and Seller shall
mutually agree) in excess of LIBOR. Payment of the Price Differential to
Buyer shall be made by wire transfer in immediately available funds.
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ADDITIONAL INFORMATION.
At any reasonable time, Seller shall permit Buyer, its agents or
attorneys, to inspect and copy any and all documents and data in
their possession pertaining to each Security that is the subject
of such Transaction. Such inspection shall occur upon the
request of Buyer at a mutually agreeable location during regular
business hours and on a date not more than two (2) business days
after the date of such request.
Seller agrees to provide Buyer from time to time with such information
concerning Seller of a financial or operational nature as Buyer
may reasonably request.
Seller shall provide Buyer with copies of all filings made by or on
behalf of Seller or any entity that controls Seller, with the
Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934, as amended, promptly upon making such
filings.
TRANSACTION PROCEDURES. Buyer may, in its sole discretion, reject any Security
from inclusion in a Transaction hereunder for any reason.
OPINIONS OF COUNSEL. Seller shall, on the date of the first Transaction
hereunder and, upon the request of Buyer, on the date of any subsequent
Transaction, cause to be delivered to Buyer, with reliance thereon
permitted as to any Person or entity that purchases the Eligible Assets
from Buyer in a repurchase transaction, a favorable opinion of counsel
to Seller and Onyx with respect to the matters set forth in Exhibit A
hereto, in form and substance reasonably acceptable to Buyer.
ADDITIONAL CONDITIONS. Prior to entering into the initial Transaction under the
Agreement, Seller shall cause each of the following conditions to occur:
A Custody Agreement in a form satisfactory to Buyer shall have been
executed and delivered by the parties thereto;
Seller shall have disclosed information satisfactory to Buyer with
respect to the scheduled maturities and termination provisions
of all outstanding credit facilities and debt of Seller;
Seller shall have delivered to Buyer an undated letter to Seller's
archivist authorizing and directing such
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archivist to make available to Buyer and its agents all
printouts and all computer software pertaining to the Eligible
Assets; and
The Custodian shall have delivered to Buyer a Custodial Confirmation
Statement relating to the Eligible Assets subject to the
Transaction (which, in the case of Wet Eligible Assets, need
only list the Wet Eligible Assets that Seller has advised the
Custodian have been sold to Buyer hereunder).
REPURCHASE TRANSACTIONS. Buyer may in its sole election engage in repurchase
transactions with the Eligible Assets or otherwise pledge or hypothecate
the Eligible Assets with a counterparty of Buyer's choice; provided,
however, that no such transaction by Buyer shall relieve Buyer of its
obligations to Seller in connection with the repurchase by Seller of any
Eligible Assets in accordance with the terms of the Agreement.
NEW YORK JURISDICTION; WAIVER OF JURY TRIAL. Seller agrees to submit to
personal jurisdiction in the State of New York in any action or
proceeding arising out of the Agreement. Buyer and Seller each hereby
waives the right of trial by jury in any litigation arising hereunder.
SERVICING ARRANGEMENTS.
The parties hereto agree and acknowledge that, notwithstanding the
purchase and sale of the Eligible Assets contemplated hereby,
Seller shall cause the Eligible Assets to continue to be
serviced for the benefit of Buyer and, if Buyer shall exercise
its rights to sell the Eligible Assets pursuant to the Agreement
prior to the related Repurchase Date, Buyer's assigns; provided,
however, that the obligation of Seller to cause Eligible Assets
to be serviced for the benefit of Buyer as aforesaid shall cease
upon the payment to Buyer of the Repurchase Price therefor.
Seller shall cause the Eligible Assets to be serviced in accordance
with the servicing standards for similar assets employed by
prudent servicers in the auto loan industry for similar assets.
Seller shall cause the Servicer to enforce the rights of the owner of
the Eligible Assets in accordance with the standards of a
prudent lender in the auto loan industry.
16
17
Buyer may, in its sole discretion if an Event of Default shall have
occurred and be continuing, without payment of any termination
fee, servicing fee or any other amount to Seller, Onyx or any
Servicer, (i) sell its right to the Eligible Assets on a
servicing released basis or (ii) terminate the Servicer of the
Eligible Assets with or without cause.
Each Servicer of Eligible Assets must be approved by Buyer.
FURTHER ASSURANCES. Seller shall promptly provide such further
assurances or agreements as Buyer may request in order to effect
the purposes of the Agreement.
BUYER AS ATTORNEY-IN-FACT. Buyer is hereby appointed to act after the
occurrence and during the continuation of an Event of Default as
the attorney-in-fact of Seller for the purpose of carrying out
the provisions of the Agreement and taking any action and
executing any instruments that Buyer may deem necessary or
advisable to accomplish the purposes hereof, which appointment
as attorney-in-fact is irrevocable and coupled with an interest.
Without limiting the generality of the foregoing, Buyer shall
have the right and power after the occurrence and during the
continuation of any Event of Default to receive, endorse and
collect all checks made payable to the order of Seller
representing any payment on account of the principal of or
interest on any of the Purchased Securities and to give full
discharge for the same.
TERMINATION. Notwithstanding any provisions of Paragraph 15 of the
Master Repurchase Agreement to the contrary, the Agreement and
all Transactions outstanding hereunder shall terminate
automatically without any requirement for notice on the date
occurring eleven calendar months and twenty-nine days after the
date as of which the Agreement is entered into; provided,
however, that the Agreement and any Transaction outstanding
hereunder may be extended by mutual agreement of Buyer and
Seller; and provided further, however, that no such party shall
be obligated to agree to such an extension.
BINDING TERMS. All of the covenants, stipulations, promises and
agreements in the Agreement shall bind the successors and
assigns of the parties hereto, whether expressed or not.
NOTICES AND OTHER COMMUNICATIONS. Any provision of Paragraph 13 of the
Repurchase Agreement to the contrary notwithstanding, any notice
required or permitted by the Agreement shall be in writing
(including telegraphic, facsimile or telex communication) and
shall be effective and deemed delivered
17
18
only when received by the party to which it is sent; provided,
however, that a facsimile transmission shall be deemed to be
received when transmitted so long as the transmitting machine
has provided an electronic confirmation of such transmission.
Any such notice shall be sent to a party at the address or
facsimile transmission number set forth in Annex II attached
hereto.
INCORPORATION OF TERMS. The Repurchase Agreement as supplemented hereby
shall be read, taken and construed as one and the same
instrument.
EXPENSES. Seller shall pay its own expenses and all reasonable
out-of-pocket costs and expenses (including fees and
disbursements of counsel): (1) of Buyer incident to the
preparation and negotiation of the Agreement, the Custody
Agreement, any documents relating thereto, any amendments or
waivers thereto, the performance of due diligence reviews with
respect to the Eligible Assets and the protection of the rights
of Buyer thereunder(provided, however, that Seller shall not be
liable for such out-of-pocket costs and expenses in excess of
$35,000) and (2) of Buyer incident to the enforcement of payment
of amounts due under the Agreement or the Custody Agreement,
whether by judicial proceedings or otherwise, including, without
limitation, in connection with bankruptcy, insolvency,
liquidation, reorganization, moratorium or other similar
proceedings involving Seller. Notwithstanding any provision
hereof to the contrary, the obligations of Seller under this
Paragraph 26 shall be effective and enforceable whether or not
any Transaction remains outstanding and shall survive payment of
all other obligations owed by Seller to Buyer.
COUNTERPARTS. The Agreement may be executed in any number of
counterparts, each of which counterparts shall be deemed to be
an original, and such counterparts shall constitute but one and
the same instrument.
18
19
EXHIBIT A
OPINIONS OF COUNSEL TO SELLER AND Onyx
[Opinions regarding the Guarantee shall be provided after the Guarantee
is issued.]
Seller is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and has the corporate
power and authority to execute, deliver and perform its obligations
under the Agreement and the Custody Agreement. Seller is duly qualified
to do business and is in good standing in each jurisdiction in which the
character of the business transacted by it requires such qualification
and in which the failure so to qualify would have a material adverse
effect on the business, properties, assets or condition (financial or
other) of Seller and its subsidiaries, considered as a whole.
Onyx is a corporation duly incorporated and validly existing and in good
standing under the laws of the State of Delaware and has the corporate
power and authority to execute, deliver and perform its obligations
under the Guarantee. Onyx is duly qualified to do business and is in
good standing in each jurisdiction in which the character of the
business transacted by it requires such qualification and in which the
failure so to qualify would have a material adverse effect on the
business, properties, assets or condition (financial or other) of Onyx
and its subsidiaries, considered as a whole.
The execution, delivery and performance by Seller of the Agreement and the
Custody Agreement (a) has been duly authorized by all necessary
corporate action on the part of Seller, (b) does not and will not
violate, or result in a breach of (1) the Certificate of Incorporation
or Bylaws of Seller, (2) the provisions of the Delaware General
Corporate Law or any California, New York or federal law, rule or
regulation applicable to Seller (other than California, New York and
federal securities laws, as to which no opinion is expressed) or (3) to
the best of counsel's knowledge, any order of any court or other
governmental authority to which Seller is a party or by which Seller or
any of its properties are bound or subject, where, in the case of items
(2) and (3), such violation or breach could have a material and adverse
effect on the ability of Seller to perform its obligations under the
Agreement or the Custody Agreement and (c) will not conflict
A-1-1
20
with, or result in a breach, violation or acceleration of, or constitute
a default under any material agreement to which Seller is a party or by
which Seller is bound.
The execution, delivery and performance by Onyx of the Guaranty (a) has been
duly authorized by all necessary corporate action on the part of Onyx,
(b) does not and will not violate, or result in a breach of (1) the
Certificate of Incorporation or Bylaws of Onyx, (2) the provisions of
the Delaware General Corporation Law, or any California, New York or
federal law, rule or regulation applicable to Onyx (other than
California, New York and federal securities laws, as to which counsel
expresses no opinion) or (3) to the best of counsel's knowledge, any
order of any court or other governmental authority to which Onyx is a
party or by which Onyx or any of its properties are bound or subject,
where in the case of items (2) and (3) above, such violation or breach
could have a material and adverse effect on the ability of Onyx to
perform its obligations under the Guaranty and (d) will not conflict
with, or result in a breach, violation or acceleration of, or constitute
a default under any of the material agreements to which Onyx is a party
or by which it is bound.
Each of the Agreement and the Custody Agreement has been duly executed and
delivered by Seller and constitutes the legal, valid and binding
obligation of Seller enforceable against Seller in accordance with its
terms.
No authorization, consent approval, license, filing or registration with any
governmental or regulatory authority or agency is required under
California, New York or federal law for the validity of the execution
and delivery of, or performance by Seller of its obligations under the
Agreement and the Custody Agreement (except (a) such as have been
received or made, (b) such as may be required under California, New York
or federal securities laws, as to which no opinion is expressed, and (c)
such filings of financing or continuation statements as may be required
to be made under the Uniform Commercial Code in any jurisdiction).
The Guaranty has been duly executed and delivered by Onyx and constitutes the
legal, valid and binding obligation of Onyx enforceable against Onyx in
accordance with its terms.
A-1-2
21
To the best of counsel's knowledge, there is no action, suit, proceeding or
investigation before or by any court or governmental agency or body,
domestic or foreign, now pending or threatened against Seller which
could reasonably be expected to interfere with or materially and
adversely affect the consummation of the transactions contemplated in
the Agreement or the Custody Agreement.
To the best of counsel's knowledge, there is no action, suit, proceeding or
investigation before or by any court or governmental agency or body,
domestic or foreign, now pending or threatened against Onyx which could
reasonably be expected to interfere with or materially and adversely
affect the consummation of the transactions contemplated in the
Guaranty.
Assuming this Agreement does not transfer an ownership interest in a Purchased
Auto Loan, the Agreement creates in favor of Buyer a security interest
under the Uniform Commercial Code as currently in effect in the State of
New York. Upon delivery of a List of Auto Loans as required by the
Custody Agreement, the conveyance from time to time of Auto Loans
described on such List of Auto Loans by Seller to the Custodian, on
behalf of Buyer, in the State of California will perfect the security
interest in favor of Buyer under the Uniform Commercial Code as
currently in effect in the State of California (the "California UCC")
and, assuming Buyer acquires its security interest in such Purchased
Auto Loan in the ordinary course of its business and that Buyer acts
without knowledge that the specific Purchased Auto Loan is subject to a
security interest (other than the security interest in favor of Buyer),
such security interest of Buyer will be prior to any security interest
which may be perfected under Article 9 of the California UCC.
A-1-3
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EXHIBIT B
REPRESENTATIONS AND WARRANTIES
Characteristics of Eligible Assets. Each Eligible Asset (A) was fully
and properly executed by the parties thereto, (B) contains customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for realization against the collateral security, (C) is fully
amortizing and provides for level monthly payments which, if made when due,
shall fully amortize the amount financed over the original term and (D) provides
for, in the event that such Eligible Asset is prepaid in full, payment of an
amount that fully pays the principal balance and includes accrued but unpaid
interest at least through the date of prepayment in an amount at least equal to
its annual percentage rate. If such Eligible Asset was originated by a dealer,
such Eligible Asset, to the knowledge of Seller, was originated by the dealer
for the retail sale of a Financed Vehicle in the ordinary course of such
dealer's business, was purchased by Seller from such dealer for new value under
a Dealer Agreement and was validly assigned by the dealer to Seller. To the
knowledge of Seller, such dealer had all necessary licenses and permits to
originate Eligible Assets in the state where such dealer was located. If such
Eligible Asset was originated by an affiliate of Seller, such Eligible Asset was
originated for value by such affiliate in the ordinary course of its business to
finance the purchase of, or refinance, the related Financed Vehicle by the
related Obligor. Such affiliate of Seller had all necessary licenses and permits
to originate or purchase such Eligible Asset. Either the Eligible Assets
constitute substantially all of the motor vehicle receivables owned by Seller or
no adverse selection procedure was used in selecting the Eligible Assets from
among the motor vehicle receivables owned by Seller.
No Fraud or Misrepresentation. Each Eligible Asset was originated by a
dealer or an affiliate of Seller and was sold by the dealer to Seller (if
applicable) without any fraud or misrepresentation on the part of such dealer.
Compliance with Law. To the knowledge of Seller, all requirements of
applicable federal, state and local laws, and regulations thereunder (including,
without limitation, usury laws, the Federal Truth-in-Lending Act, the Equal
Credit Opportunity Act, the Fair Credit Billing Act, the Fair Credit Reporting
Act, the Fair Debt Collection Practices Act, the Federal Trade Commission Act,
the ▇▇▇▇▇▇▇▇-▇▇▇▇ Warranty Act, the Federal Reserve Board's Regulations "B" and
"Z", the Soldiers' and Sailors' Civil Relief Act of 1940, the state motor
vehicle
B-1
23
retail installment sales act, and state adaptations of the National Consumer Act
and of the Uniform Consumer Credit Code and other consumer credit laws and equal
credit opportunity and disclosure laws) in respect of all of the Eligible Assets
and each and every sale of Financed Vehicles, have been complied with in all
material respects, and each Eligible Asset and the sale of the Financed Vehicle
evidenced by each Eligible Asset complied at the time it was originated or made
and now complies in all material respects with all applicable legal
requirements.
Origination. Each Eligible Asset was originated in the United States.
Binding Obligation. Each Eligible Asset represents the genuine, legal,
valid and binding payment obligation of the Obligor thereon, enforceable by the
holder thereof in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting the
enforcement of creditors' rights generally and by equitable limitations on the
availability of specific remedies, regardless of whether such enforceability is
considered in a proceeding in equity or at law; and all parties to each Eligible
Asset had full legal capacity to execute and deliver such Eligible Asset and all
other documents related thereto and to grant the security interest purported to
be granted thereby.
No Government Obligor. No Obligor is the United States of America or any
State or any agency, department, subdivision or instrumentality thereof.
Obligor Bankruptcy. At the Purchase Date, no Obligor had been identified
on the records of Seller as being the subject of a current bankruptcy
proceeding.
List of Auto Loans. The information set forth in the List of Auto Loans
is true and correct in all material respects as of the date of such list.
Marking Records. By the Purchase Date, Seller will have caused the
portions of its electronic ledger relating to the Eligible Assets to be clearly
and unambiguously marked to show that the Eligible Assets have been sold to
Buyer under the Master Repurchase Agreement.
Computer Tape. The Computer Tape was complete and accurate as of the
date of such tape and includes a description of the same Eligible Assets that
are described in the related List of Auto Loans.
B-2
24
Chattel Paper. The Eligible Assets constitute chattel paper within the
meaning of the UCC as in effect in the states in which the Obligors reside.
One Original. There is only one original executed copy of each Contract.
Eligible Assets in Force. No Eligible Asset has been satisfied,
subordinated or rescinded, and the Financed Vehicle securing each such Eligible
Asset has not been released from the lien of the related Eligible Asset in whole
or in part. No provisions of any Eligible Asset have been waived, altered or
modified in any respect since its origination, except by instruments or
documents identified in the Eligible Asset File. No Eligible Asset has been
modified as a result of application of the Soldiers' and Sailors' Civil Relief
Act of 1940, as amended.
Lawful Assignment. No Eligible Asset was originated in, or is subject to
the laws of, any jurisdiction the laws of which (a) would make unlawful, void or
voidable the sale, transfer and assignment of such Eligible Asset under this
Agreement or (b) would impair the validity or enforceability of any Eligible
Asset because of any such sale, transfer or assignment.
Good Title. No Eligible Asset has been sold, transferred, assigned or
pledged by Seller to any Person; immediately prior to the transfer thereof
pursuant to this Agreement, Seller had good and indefeasible title to and was
the sole owner of each Eligible Asset, free of any Lien and such title is freely
assignable pursuant to the terms hereof; immediately upon the transfer and
assignment thereof herein contemplated, Buyer shall have full ownership of and
good and marketable title to each Eligible Asset, free and clear of all Liens
and rights of others, and the transfer and assignment herein contemplated has
been perfected under the UCC. Neither Seller nor any dealer has a participation
in, or other right to receive, payments or proceeds in respect of any Eligible
Asset. Seller has not taken any action to convey any right to any Person that
would result in such Person having a right to payments received under any
related insurance policies or the related Dealer Agreements or to payments due
under such Eligible Assets.
Security Interest in Financed Vehicle. Each Eligible Asset has created a
valid, binding and enforceable first priority security interest in favor of
Seller in the related Financed Vehicle, which is in full force and effect. Each
Lien Certificate contained in the Custodian's Asset Files shows Seller, Onyx or
a Seller's Affiliate named as the original secured party under each Eligible
Asset and as the holder of a first priority security interest in such Financed
Vehicle.
B-3
25
Seller's security interest in each Financed Vehicle has been validly assigned by
Seller to Buyer pursuant to this Agreement.
All Filings Made; Valid Security Interest. All filings (including UCC
filings) necessary in any jurisdiction to give Buyer a first perfected ownership
interest in the Eligible Assets have been made.
No Impairment. Seller has not done and will not do anything to convey
any right to any Person that would result in such Person having a right to
payments due under a Eligible Asset or otherwise to impair the rights of Buyer
in any Eligible Asset or the proceeds thereof.
No Release. No Eligible Asset is assumable by another Person in a manner
which would release the Obligor thereof from such Obligor's obligations to
Seller with respect to such Eligible Asset.
No Defenses. No Eligible Asset is subject to any right of rescission,
setoff, counterclaim or defense and, to the knowledge of Seller, no such right
has been asserted or threatened with respect to any Eligible Asset. The
operation of the terms of any Eligible Asset or the exercise of any right
thereunder will not render the Eligible Asset unenforceable in whole or in part
or subject to any right of rescission, setoff, counterclaim or defense, and to
the knowledge of Seller, no such right of rescission, setoff, counterclaim or
defense has been asserted with respect thereto.
No Default. To the knowledge of Seller, there has been no default,
breach, violation or event permitting acceleration under the terms of any
Eligible Asset (other than payment delinquencies of not more than 30 days), and
no condition exists or event has occurred and is continuing that with notice,
the lapse of time or both would constitute a default, breach, violation or event
permitting acceleration under the terms of any Eligible Asset, and there has
been no waiver of any of the foregoing. As of the related Purchase Date, no
Financed Vehicle had been repossessed.
Insurance. As of the Purchase Date, each Financed Vehicle is covered by
a vendor's single interest insurance policy (i) that provides coverage as to
such Financed Vehicle in an amount at least equal to the lesser of (a) the value
of such Financed Vehicle or (b) the principal amount due from the Obligor under
the related Eligible Asset, (ii) naming Seller and its successors and assigns as
loss payees and (iii) insuring against loss and damage due to fire, theft,
transportation, collision and other risks generally covered by comprehensive and
collision coverage and such coverage will not be voided or voidable due to
B-4
26
the sales or pledges of the related Eligible Asset pursuant to this Agreement.
Each Eligible Asset requires the Obligor to maintain physical loss and damage
insurance, naming Seller and its successors and assigns as additional insured
parties, and each Eligible Asset permits the holder thereof to obtain physical
loss and damage insurance at the expense of the Obligor if the Obligor fails to
do so. No Financed Vehicle was or had previously been insured under a policy of
force-placed insurance on the related Purchase Date.
Past Due. At the Purchase Date, no Eligible Asset is more than 30 days
past due.
No Liens. There are no Liens or claims which have been filed, and, to
the knowledge of Seller, none pending or threatened to be filed, for work,
labor, materials or unpaid state or federal taxes affecting the vehicle securing
any Eligible Asset which are or may become liens prior or equal to the lien of
the Eligible Asset.
Remaining Principal Balance. At each Purchase Date, the principal
balance of each Eligible Asset set forth in the List of Auto Loans is true and
accurate in all material respects.
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EXHIBIT C
WEEKLY ACTIVITY REPORT
Reporting Period (_____________ - _____________) Friday to Friday
Beginning Repurchase Price
Buyer's Market Value (date - attach ▇▇▇▇-to-market output)
Par Value of Eligible Assets (adjusted monthly for principal payments)
The lesser of 2 or 3.
Additions
+the lesser of Buyer's Market Value or the par value of
Purchased Securities (includes Additional Purchased Securities
and replacement Purchased Securities) - attach Confirmations
+Margin Deficit (if applicable)
+cumulative accrued Price Differential (Interest)
Subtractions
-the par value of Repurchased Securities - attach Confirmations
-par value of Eligible Assets
-par value of Eligible Assets - 120 day limitation
-Income payments attributable to principal (reported monthly -
attach master servicer report)
-Margin Excess (if applicable)
-cumulative paid Price Differential (Interest)
Aggregate Eligible Assets par value (summation of 4, 5, & 6)
The reciprocal of Buyer's Margin Percentage divided by 100.
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EXHIBIT D
ONYX ACCEPTANCE CORPORATION
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
February __, 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Capital Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Gentlemen:
This letter will confirm that Onyx Acceptance Corporation, a Delaware
corporation ("Onyx"), agrees to absolutely and unconditionally guaranty to
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Capital Inc. and any of its affiliates (collectively, the
"Beneficiary"), the full and prompt payment and performance of the obligations,
undertakings and liabilities of Onyx Acceptance Funding Corporation, a Delaware
corporation ("Assignor"), arising under the terms and provisions of a Master
Repurchase Agreement (the "Agreement"), dated as of February 4, 1998 by and
between Assignor and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Capital Inc. ("MLMCI"), in an amount
not to exceed 10% of the aggregate outstanding amount owed by Assignor to MLMCI
under the Agreement (such obligations, undertakings and liabilities are herein
referred to as the "Guarantied Obligations"). Onyx hereby expressly consents to
any amendment to the Agreement as may be agreed upon by Assignor and MLMCI and
waives notice of any such amendment. A copy of the Agreement is attached hereto
as Exhibit A. Capitalized terms used and not otherwise defined herein shall have
the meanings assigned in the Agreement.
Onyx hereby represents and warrants to you that Assignor is a direct or
an indirect wholly-owned subsidiary of Onyx.
Onyx hereby agrees that if Assignor shall fail at any time to make due
and punctual payment to the Beneficiary of any Guarantied Obligation or if
Assignor shall fail at any time to perform any other Guarantied Obligation to
the Beneficiary, Onyx will forthwith pay such amount and perform such obligation
without demand therefor.
Onyx covenants and agrees to immediately notify MLMCI if a
representation, warranty or covenant of Assignor under Agreement has been
breached or if an Event of Default shall have occurred.
Onyx, to the extent permitted by law, hereby waives any requirement that
the Beneficiary take legal action against Assignor before enforcing this
guaranty; agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Guarantied
Obligations or the dissolution, liquidation, reorganization or other change
regarding the Assignor or the Assignor seeking protection, or having a case or
proceeding commenced against it, under any law for the protection of debtors or
creditors; waives diligence, presentment, demand for payment or performance,
protest or notice or other formality of any kind whatsoever; waives filing of
claims with any court in case of the insolvency, reorganization or bankruptcy of
the Assignor;
D-1
29
waives any fact, event or circumstance that might otherwise constitute a legal
or equitable defense to or discharge of Onyx, including (but without typifying
or limiting this waiver) failure by the Beneficiary to perfect a security
interest in any collateral securing performance of any Guarantied Obligation and
any delay by the Beneficiary in exercising any of its rights hereunder. Onyx
covenants that this guaranty will not be discharged except by full and final
payment and performance to the Beneficiary of all Guarantied Obligations
incurred while it is effective, and agrees that this guaranty shall continue to
be effective or be reinstated (as the case may be) if at any time all or any
part of any payment or interest thereon or other performance by Assignor is
avoided or must otherwise be restored by the Beneficiary. Onyx hereby further
consents to any renewal or modification of any Guarantied Obligation or any
extension of the time within which such is to be performed and to any other
indulgences, whether before or after the date of this guaranty.
Onyx agrees to pay on demand all out-of-pocket expenses (including legal
fees and disbursements) incurred by the Beneficiary in connection with the
enforcement and protection of its rights hereunder.
This is a continuing guaranty and will remain in effect until thirty
(30) days after written notice of termination is received by ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage Capital Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters, World Financial Center,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇. Any such termination shall not affect or reduce Onyx's obligations
hereunder for any liability of Assignor that arose prior to the expiration of
said thirty-day period. This guaranty shall terminate and shall be of no further
force or effect upon full payment of all amounts due to MLMCI under the
Agreement. This guaranty shall inure to the benefit of any successor of the
Beneficiary and be binding on any successor or assignee of Onyx.
This guaranty shall be governed by and construed in accordance with the
laws of the State of New York. Onyx hereby agrees that (i) any dispute or
controversy arising out of or relating to this guaranty, the Agreement or the
Note shall be submitted to arbitration before the American Arbitration
Association, (ii) the arbitration proceedings shall be conducted in New York,
New York and (iii) the decision of the arbitrators shall be final and judgment
may be entered on the award. In the event that such arbitration is unavailable,
Onyx hereby submits to the jurisdiction of the United States Federal and New
York State courts situated in the City, County, and State of New York and hereby
agrees that any litigation arising out of or relating to this guaranty, the
Agreement or the Note shall be brought in such courts. Each provision and
agreement herein shall be treated as separate and independent from any other
provision or agreement herein and shall be enforceable notwithstanding the
non-enforceability of any such other provision or agreement.
Any demand by MLMCI for payment or performance by Onyx shall be by a
written demand to Onyx, which shall be deemed to have been duly given if made by
facsimile transmission to Onyx Acceptance Corporation, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇. ▇▇▇▇▇, Phone: (714)
▇▇▇-▇▇▇▇, Fax: (▇▇▇) ▇▇▇-▇▇▇▇ or if personally delivered at or upon the fifth
day after deposit in the mails, mailed by registered mail, postage prepaid, to
Onyx Acceptance Corporation, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇. ▇▇▇▇▇.
Very truly yours,
ONYX ACCEPTANCE CORPORATION
By: _________________________
Name: _______________________
Title: ______________________
▇-▇
▇▇
▇▇▇▇▇▇▇ ▇
SELLER'S PHYSICAL DAMAGE POLICY
E-1
31
EXHIBIT F
FORM OF DEALER AGREEMENT
F-2
32
EXHIBIT G
AFFILIATE PURCHASE AGREEMENT
G-1
33
ANNEX II
Names and Addresses for Communications Between Parties
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE CAPITAL, INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
World Financial Center
▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
ONYX ACCEPTANCE FUNDING CORPORATION
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
II-1
