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[PSA LOGO]
MASTER
REPURCHASE AGREEMENT
SEPTEMBER 1996 VERSION
Dated as of October 13, 2000
AMONG:
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED, as Buyer
CREDIT SUISSE FIRST BOSTON CORPORATION, as Agent
and
ONYX ACCEPTANCE FUNDING CORPORATION, as Seller
1. APPLICABILITY
From time to time the parties hereto may enter into transactions in which
one party ("Seller") agrees to transfer to the other("Buyer") securities
or other assets ("Securities") against the transfer of funds by Buyer,
with a simultaneous agreement by Buyer to transfer to Seller such
Securities at a date certain or on demand, against the transfer of funds
by Seller. Each such transaction shall be referred to herein as a
"Transaction" and, unless otherwise agreed in writing, shall be governed
by this Agreement, including any supplemental terms or conditions
contained in Annex I hereto and in any other annexes identified herein or
therein as applicable hereunder.
2. DEFINITIONS
(a) "Act of Insolvency", with respect to any party, (i) the
commencement by such party as debtor of any case or proceeding
under any bankruptcy, insolvency, reorganization, liquidation,
moratorium, dissolution, delinquency or similar law, or such
party seeking the appointment or election of a receiver,
conservator, trustee, custodian or similar official for such party
or any substantial part of its property, or the convening of any
meeting of creditors for purposes of commencing any such case or
proceeding or seeking such an appointment or election, (ii) the
commencement of any such case or proceeding against such party, or
another seeking such an appointment or election, or the filing
against a party of an application for a protective decree under
the provisions of the Securities Investor Protection Act of 1970,
which (A) is consented to or not timely contested by such party,
(B) results in the entry of an order for relief, such an
appointment or election, the issuance of such a protective decree
or the entry of an order having a similar effect, or (C) is not
dismissed within 15 days, (iii) the making by such party of a
general assignment for the benefit of creditors, or (iv) the
admission in writing by such party of such party's inability to
pay such party's debts as they become due;
(b) "Additional Purchased Securities", Securities provided by Seller
to Buyer pursuant to Paragraph 4(a) hereof;
(c) "Buyer's Margin Amount", with respect to any Transaction as of any
date, the amount obtained by application of the Buyer's Margin
Percentage to the Repurchase Price for such Transaction as of such
date:
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(d) "Buyer's Margin Percentage", with respect to any Transaction as of
any date, a percentage (which may be equal to the Seller's Margin
Percentage) agreed to by Buyer and Seller or, in the absence of
any such agreement, the percentage obtained by dividing the Market
Value of the Purchased Securities on the Purchase Date by the
Purchase Price on the Purchase Date for such Transaction;
(e) "Confirmation", the meaning specified in Paragraph 3(b) hereof;
(f) "Income", with respect to any Security at any time, any principal
thereof and all interest, dividends or other distributions
thereon;
(g) "Margin Deficit", the meaning specified in Paragraph 4(a) hereof;
(h) "Margin Excess", the meaning specified in Paragraph 4(b) hereof;
(i) "Margin Notice Deadline", the time agreed to by the parties in the
relevant Confirmation, Annex I hereto or otherwise as the deadline
for giving notice requiring same-day satisfaction of margin
maintenance obligations as provided in Paragraph 4 hereof (or, in
the absence of any such agreement, the deadline for such purposes
established in accordance with market practice);
(j) "Market Value", with respect to any Securities as of any date, the
price for such Securities on such date obtained from a generally
recognized source agreed to by the parties or the most recent
closing bid quotation from such a source, plus accrued Income to
the extent not included therein (other than any Income credited or
transferred to, or applied to the obligations of, Seller pursuant
to Paragraph 5 hereof) as of such date (unless contrary to market
practice for such Securities);
(k) "Price Differential", with respect to any Transaction as of any
date, the aggregate amount obtained by daily application of the
Pricing Rate for such Transaction to the Purchase Price for such
Transaction on a 360-day-per-year basis for the actual number of
days during the period commencing on (and including) the Purchase
Date for such Transaction and ending on (but excluding) the date
of determination (reduced by any amount of such Price Differential
previously paid by Seller to Buyer with respect to such
Transaction);
(1) "Pricing Rate", the per annum percentage rate for determination of
the Price Differential;
(m) "Prime Rate", the prime rate of U.S. commercial banks as published
in The Wall Street Journal (or, if more than one such rate is
published, the average of such rates);
(n) "Purchase Date", the date on which Purchased Securities are to be
transferred by Seller to Buyer;
(o) "Purchase Price", (i) on the Purchase Date, the price at which
Purchased Securities are transferred by Seller to Buyer, and (ii)
thereafter, except where Buyer and Seller agree otherwise, such
price increased by the amount of any cash transferred by Buyer to
Seller pursuant to Paragraph 4(b) hereof and decreased by the
amount of any cash transferred by Seller to Buyer pursuant to
Paragraph 4(a) hereof or applied to reduce Seller's obligations
under clause (ii) of Paragraph 5 hereof;
(p) "Purchased Securities", the Securities transferred by Seller to
Buyer in a Transaction hereunder, and any Securities substituted
therefor in accordance with Paragraph 9 hereof. The term
"Purchased Securities" with respect to any Transaction at any time
also shall include Additional Purchased Securities delivered
pursuant to Paragraph 4(a) hereof and shall exclude Securities
returned pursuant to Paragraph 4(b) hereof;
(q) "Repurchase Date", the date on which Seller is to repurchase the
Purchased Securities from Buyer, including any date determined by
application of the provisions of Paragraph 3(c) or ll hereof;
(r) "Repurchase Price", the price at which Purchased Securities are to
be transferred from Buyer to Seller upon termination of a
Transaction, which will be determined in each case (including
Transactions terminable upon demand) as the sum of the Purchase
Price and the Price Differential as of the date of such
determination;
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"Seller's Margin Amount", with respect to any Transaction as of
any date, the amount obtained by application of the Seller's
Margin Percentage to the Repurchase Price for such Transaction as
of such date;
(t) "Seller's Margin Percentage", with respect to any Transaction as
of any date, a percentage (which may be equal to the Buyer's
Margin Percentage) agreed to by Buyer and Seller or, in the
absence of any such agreement, the percentage obtained by dividing
the Market Value of the Purchased Securities on the Purchase Date
by the Purchase Price on the Purchase Date for such Transaction.
3. INITIATION; CONFIRMATION; TERMINATION
(a) An agreement to enter into a Transaction may be made orally or in
writing at the initiation of either Buyer or Seller. On the
Purchase Date for the Transaction, the Purchased Securities shall
be transferred to Buyer or its agent against the transfer of the
Purchase Price to an account of Seller.
(b) Upon agreeing to enter into a Transaction hereunder, Buyer or
Seller (or both), as shall be agreed, shall promptly deliver to
the other party a written confirmation of each Transaction (a
"Confirmation"). The Confirmation shall describe the Purchased
Securities (including CUSIP number, if any), identify Buyer and
Seller and set forth (i) the Purchase Date, (ii) the Purchase
Price, (iii) the Repurchase Date, unless the Transaction is to be
terminable on demand, (iv) the Pricing Rate or Repurchase Price
applicable to the Transaction, and (v) any additional terms or
conditions of the Transaction not inconsistent with this
Agreement. The Confirmation, together with this Agreement, shall
constitute conclusive evidence of the terms agreed between Buyer
and Seller with respect to the Transaction to which the
Confirmation relates, unless with respect to the Confirmation
specific objection is made promptly after receipt thereof. In the
event of any conflict between the terms of such Confirmation and
this Agreement, this Agreement shall prevail.
(c) In the case of Transactions terminable upon demand, such demand
shall be made by Buyer or Seller, no later than such time as is
customary in accordance with market practice, by telephone or
otherwise on or prior to the business day on which such
termination will be effective. On the date specified in such
demand, or on the date fixed for termination in the case of
Transactions having a fixed term, termination of the Transaction
will be effected by transfer to Seller or its agent of the
Purchased Securities and any Income in respect thereof received by
Buyer (and not previously credited or transferred to, or applied
to the obligations of, Seller pursuant to Paragraph 5 hereof)
against the transfer of the Repurchase Price to an account of
Buyer.
4. MARGIN MAINTENANCE
(a) If at any time the aggregate Market Value of all Purchased
Securities subject to all Transactions in which a particular party
hereto is acting as Buyer is less than the aggregate Buyer's
Margin Amount for all such Transactions (a "Margin Deficit"), then
Buyer may by notice to Seller require Seller in such Transactions,
at Seller's option, to transfer to Buyer cash or additional
Securities reasonably acceptable to Buyer ("Additional Purchased
Securities"), so that the cash and aggregate Market Value of the
Purchased Securities, including any such Additional Purchased
Securities, will thereupon equal or exceed such aggregate Buyer's
Margin Amount (decreased by the amount of any Margin Deficit as of
such date arising from any Transactions in which such Buyer is
acting as Seller).
(b) If at any time the aggregate Market Value of all Purchased
Securities subject to all Transactions in which a particular party
hereto is acting as Seller exceeds the aggregate Seller's Margin
Amount for all such Transactions at such time (a "Margin Excess"),
then Seller may by notice to Buyer require Buyer in such
Transactions, at Buyer's option, to transfer cash or Purchased
Securities to Seller, so that the aggregate Market Value of the
Purchased Securities, after deduction of any such
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cash or any Purchased Securities so transferred, will thereupon
not exceed such aggregate Seller's Margin Amount (increased by the
amount of any Margin Excess as of such date arising from any
Transactions in which such Seller is acting as Buyer).
(c) If any notice is given by Buyer or Seller under subparagraph (a)
or (b) of this Paragraph at or before the Margin Notice Deadline
on any business day, the party receiving such notice shall
transfer cash or Additional Purchased Securities as provided in
such subparagraph no later than the close of business in the
relevant market on such day. If any such notice is given after the
Margin Notice Deadline, the party receiving such notice shall
transfer such cash or Securities no later than the close of
business in the relevant market on the next business day following
such notice.
(d) Any cash transferred pursuant to this Paragraph shall be
attributed to such Transactions as shall be agreed upon by Buyer
and Seller.
(e) Seller and Buyer may agree, with respect to any or all
Transactions hereunder, that the respective rights of Buyer or
Seller (or both) under subparagraphs (a) and (b) of this Paragraph
may be exercised only where a Margin Deficit or a Margin Excess,
as the case may be, exceeds a specified dollar amount or a
specified percentage of the Repurchase Prices for such
Transactions (which amount or percentage shall be agreed to by
Buyer and Seller prior to entering into any such Transactions).
(f) Seller and Buyer may agree, with respect to any or all
Transactions hereunder, that the respective rights of Buyer and
Seller under subparagraphs (a) and (b) of this Paragraph to
require the elimination of a Margin Deficit or a Margin Excess, as
the case may be, may be exercised whenever such a Margin Deficit
or a Margin Excess exists with respect to any single Transaction
hereunder (calculated without regard to any other Transaction
outstanding under this Agreement).
5. INCOME PAYMENTS
Seller shall be entitled to receive an amount equal to all Income paid or
distributed on or in respect of the Securities that is not otherwise
received by Seller, to the full extent it would be so entitled if the
Securities had not been sold to Buyer. Buyer shall, as the parties may
agree with respect to any Transaction (or, in the absence of any such
agreement, as Buyer shall reasonably determine in its discretion), on the
date such Income is paid or distributed either (i) transfer to or credit
to the account of Seller such Income with respect to any Purchased
Securities subject to such Transaction or (ii) with respect to Income
paid in cash, apply the Income payment or payments to reduce the amount,
if any, to be transferred to Buyer by Seller upon termination of such
Transaction. Buyer shall not be obligated to take any action pursuant to
the preceding sentence (A) to the extent that such action would result in
the creation of a Margin Deficit, unless prior thereto or simultaneously
therewith Seller transfers to Buyer cash or Additional Purchased
Securities sufficient to eliminate such Margin Deficit, or (B) if an
Event of Default with respect to Seller has occurred and is then
continuing at the time such Income is paid or distributed.
6. SECURITY INTEREST
Although the parties intend that all Transactions hereunder be sales and
purchases and not loans, in the event any such Transactions are deemed to
be loans, Seller shall be deemed to have pledged to Buyer as security for
the performance by Seller of its obligations under each such Transaction,
and shall be deemed to have granted to Buyer a security interest in, all
of the Purchased Securities with respect to all Transactions hereunder
and all Income thereon and other proceeds thereof.
7. PAYMENT AND TRANSFER
Unless otherwise mutually agreed, all transfers of funds hereunder shall
be in immediately available funds. All Securities transferred by one
party hereto to the other party (i) shall be in suitable form for
transfer or shall be accompanied by duly executed instruments of transfer
or assignment in blank and
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such other documentation as the party receiving possession may reasonably
request, (ii) shall be transferred on the book-entry system of a Federal
Reserve Bank, or (iii) shall be transferred by any other method mutually
acceptable to Seller and Buyer.
8. SEGREGATION OF PURCHASED SECURITIES
To the extent required by applicable law, all Purchased Securities in the
possession of Seller shall be segregated from other securities in its
possession and shall be identified as subject to this Agreement.
Segregation may be accomplished by appropriate identification on the
books and records of the holder, including a financial or securities
intermediary or a clearing corporation. All of Seller's interest in the
Purchased Securities shall pass to Buyer on the Purchase Date and, unless
otherwise agreed by Buyer and Seller, nothing in this Agreement shall
preclude Buyer from engaging in repurchase transactions with the
Purchased Securities or otherwise selling, transferring, pledging or
hypothecating the Purchased Securities, but no such transaction shall
relieve Buyer of its obligations to transfer Purchased Securities to
Seller pursuant to Paragraph 3,4 or 11 hereof, or of Buyer's obligation
to credit or pay Income to, or apply Income to the obligations of, Seller
pursuant to Paragraph 5 hereof.
REQUIRED DISCLOSURE FOR TRANSACTIONS IN WHICH THE SELLER RETAINS CUSTODY
OF THE PURCHASED SECURITIES
Seller is not permitted to substitute other securities for those
subject to this Agreement and therefore must keep Buyer's
securities segregated at all times, unless in this Agreement Buyer
grants Seller the right to substitute other securities. If Buyer
grants the right to substitute, this means that Buyer's securities
will likely be commingled with Seller's own securities during the
trading day. Buyer is advised that, during any trading day that
Buyer's securities are commingled with Seller's securities, they
[will]* [may]** be subject to liens granted by Seller to [its
clearing bank]* [third parties]** and may be used by Seller for
deliveries on other securities transactions. Whenever the
securities are commingled, Seller's ability to resegregate
substitute securities for Buyer will be subject to Seller's
ability to satisfy [the clearing]* [any]** lien or to obtain
substitute securities.
* Language to be used under 17 C.F.R. Section 403.4(e) if Seller is a
government securities broker or dealer other than a financial institution.
**Language to be used under 17 C.F.R. Section 403.5(d) if Seller is a financial
institution.
9. SUBSTITUTION
(a) Seller may, subject to agreement with and acceptance by Buyer,
substitute other Securities for any Purchased Securities. Such
substitution shall be made by transfer to Buyer of such other
Securities and transfer to Seller of such Purchased Securities.
After substitution, the substituted Securities shall be deemed to
be Purchased Securities.
(b) In Transactions in which Seller retains custody of Purchased
Securities, the parties expressly agree that Buyer shall be
deemed, for purposes of subparagraph (a) of this Paragraph, to
have agreed to and accepted in this Agreement substitution by
Seller of other Securities for Purchased Securities; provided,
however, that such other Securities shall have a Market Value at
least equal to the Market Value of the Purchased Securities for
which they are substituted.
10. REPRESENTATIONS
Each of Buyer and Seller represents and warrants to the other that (i) it
is duly authorized to execute and deliver this Agreement, to enter into
Transactions contemplated hereunder and to perform its obligations
hereunder and has taken all necessary action to authorize such execution,
delivery and per-
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formance, (ii) it will engage in such Transactions as principal (or, if
agreed in writing, in the form of an annex hereto or otherwise, in
advance of any Transaction by the other party hereto, as agent for a
disclosed principal), (iii) the person signing this Agreement on its
behalf is duly authorized to do so on its behalf (or on behalf of any
such disclosed principal), (iv) it has obtained all authorizations of any
governmental body required in connection with this Agreement and the
Transactions hereunder and such authorizations are in full force and
effect and (v) the execution, delivery and performance of this Agreement
and the Transactions hereunder will not violate any law, ordinance,
charter, by-law or rule applicable to it or any agreement by which it is
bound or by which any of its assets are affected. On the Purchase Date
for any Transaction Buyer and Seller shall each be deemed to repeat all
the foregoing representations made by it.
11. Events of Default
In the event that (i) Seller fails to transfer or Buyer fails to purchase
Purchased Securities upon the applicable Purchase Date, (ii) Seller fails
to repurchase or Buyer fails to transfer Purchased Securities upon the
applicable Repurchase Date, (iii) Seller or Buyer fails to comply with
Paragraph 4 hereof, (iv) Buyer fails, after one business day's notice, to
comply with Paragraph 5 hereof, (v) an Act of Insolvency occurs with
respect to Seller or Buyer, (vi) any representation made by Seller or
Buyer shall have been incorrect or untrue in any material respect when
made or repeated or deemed to have been made or repeated, or (vii) Seller
or Buyer shall admit to the other its inability to, or its intention not
to, perform any of its obligations hereunder (each an "Event of
Default"):
(a) The nondefaulting party may, at its option (which option shall be
deemed to have been exercised immediately upon the occurrence of
an Act of Insolvency), declare an Event of Default to have
occurred hereunder and, upon the exercise or deemed exercise of
such option, the Repurchase Date for each Transaction hereunder
shall, if it has not already occurred, be deemed immediately to
occur (except that, in the event that the Purchase Date for any
Transaction has not yet occurred as of the date of such exercise
or deemed exercise, such Transaction shall be deemed immediately
canceled). The nondefaulting party shall (except upon the
occurrence of an Act of Insolvency) give notice to the defaulting
party of the exercise of such option as promptly as practicable.
(b) In all Transactions in which the defaulting party is acting as
Seller, if the nondefaulting party exercises or is deemed to have
exercised the option referred to in subparagraph (a) of this
Paragraph, (i) the defaulting party's obligations in such
Transactions to repurchase all Purchased Securities, at the
Repurchase Price therefor on the Repurchase Date determined in
accordance with subparagraph (a) of this Paragraph, shall
thereupon become immediately due and payable, (ii) all Income paid
after such exercise or deemed exercise shall be retained by the
nondefaulting party and applied to the aggregate unpaid Repurchase
Prices and any other amounts owing by the defaulting party
hereunder, and (iii) the defaulting party shall immediately
deliver to the nondefaulting party any Purchased Securities
subject to such Transactions then in the defaulting party's
possession or control.
(c) In all Transactions in which the defaulting party is acting as
Buyer, upon tender by the nondefaulting party of payment of the
aggregate Repurchase Prices for all such Transactions, all right,
title and interest in and entitlement to all Purchased Securities
subject to such Transactions shall be deemed transferred to the
nondefaulting party, and the defaulting party shall deliver all
such Purchased Securities to the nondefaulting party.
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(d) If the nondefaulting party exercises or is deemed to have
exercised the option referred to in subparagraph (a) of this
Paragraph, the nondefaulting party, without prior notice to the
defaulting party, may:
(i) as to Transactions in which the defaulting party is acting
as Seller, (A) immediately sell, in a recognized market (or
otherwise in a commercially reasonable manner) at such
price or prices as the nondefaulting party may reasonably
deem satisfactory, any or all Purchased Securities subject
to such Transactions and apply the proceeds thereof to the
aggregate unpaid Repurchase Prices and any other amounts
owing by the defaulting party hereunder or (B) in its sole
discretion elect, in lieu of selling all or a portion of
such Purchased Securities, to give the defaulting party
credit for such Purchased Securities in an amount equal to
the price therefor on such date, obtained from a generally
recognized source or the most recent dosing bid quotation
from such a source, against the aggregate unpaid Repurchase
Prices and any other amounts owing by the defaulting party
hereunder; and
(ii) as to Transactions in which the defaulting party is acting
as Buyer, (A) immediately purchase, in a recognized market
(or otherwise in a commercially reasonable manner) at such
price or prices as the nondefaulting party may reasonably
deem satisfactory, securities ("Replacement Securities") of
the same class and amount as any Purchased Securities that
are not delivered by the defaulting party to the
nondefaulting party as required hereunder or (B) in its
sole discretion elect, in lieu of purchasing Replacement
Securities, to be deemed to have purchased Replacement
Securities at the price therefor on such date, obtained
from a generally recognized source or the most recent
closing offer quotation from such a source.
Unless otherwise provided in Annex I, the parties acknowledge and
agree that (1) the Securities subject to any Transaction hereunder
are instruments traded in a recognized market, (2) in the absence
of a generally recognized source for prices or bid or offer
quotations for any Security, the nondefaulting party may establish
the source therefor in its sole discretion and (3) all prices,
bids and offers shall be determined together with accrued Income
(except to the extent contrary to market practice with respect to
the relevant Securities).
(e) As to Transactions in which the defaulting party is acting as
Buyer, the defaulting party shall be liable to the nondefaulting
party for any excess of the price paid (or deemed paid) by the
nondefaulting party for Replacement Securities over the Repurchase
Price for the Purchased Securities replaced thereby and for any
amounts payable by the defaulting party under Paragraph 5 hereof
or otherwise hereunder.
(f) For purposes of this Paragraph 11, the Repurchase Price for each
Transaction hereunder in respect of which the defaulting party is
acting as Buyer shall not increase above the amount of such
Repurchase Price for such Transaction determined as of the date of
the exercise or deemed exercise by the nondefaulting party of the
option referred to in subparagraph (a) of this Paragraph.
(g) The defaulting party shall be liable to the nondefaulting party
for (i) the amount of all reasonable legal or other expenses
incurred by the nondefaulting party in connection with or as a
result of an Event of Default, (ii) damages in an amount equal to
the cost (including all fees, expenses and commissions) of
entering into replacement transactions and entering into or
terminating hedge transactions in connection with or as a result
of an Event of Default, and (iii) any other loss, damage, cost or
expense directly arising or resulting from the occurrence of an
Event of Default in respect of a Transaction.
(h) To the extent permitted by applicable law, the defaulting party
shall be liable to the nondefaulting party for interest on any
amounts owing by the defaulting party hereunder, from the date the
defaulting party becomes liable for such amounts hereunder until
such amounts are (i) paid in full
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by the defaulting party or (ii) satisfied in full by the exercise
of the nondefaulting party's rights hereunder. Interest on any sum
payable by the defaulting party to the nondefaulting party under
this Paragraph 11(h) shall be at a rate equal to the greater of
the Pricing Rate for the relevant Transaction or the Prime Rate.
(i) The nondefaulting party shall have, in addition to its rights
hereunder, any rights otherwise available to it under any other
agreement or applicable law.
12. SINGLE AGREEMENT
Buyer and Seller acknowledge that, and have entered hereinto and will
enter into each Transaction hereunder in consideration of and in reliance
upon the fact that, all Transactions hereunder constitute a single
business and contractual relationship and have been made in consideration
of each other. Accordingly, each of Buyer and Seller agrees (i) to
perform all of its obligations in respect of each Transaction hereunder,
and that a default in the performance of any such obligations shall
constitute a default by it in respect of all Transactions hereunder, (ii)
that each of them shall be entitled to set off claims and apply property
held by them in respect of any Transaction against obligations owing to
them in respect of any other Transactions hereunder and (iii) that
payments, deliveries and other transfers made by either of them in
respect of any Transaction shall be deemed to have been made in
consideration of payments, deliveries and other transfers in respect of
any other Transactions hereunder, and the obligations to make any such
payments, deliveries and other transfers may be applied against each
other and netted.
13. NOTICES AND OTHER COMMUNICATIONS
Any and all notices, statements, demands or other communications
hereunder may be given by a party to the other by mail, facsimile,
telegraph, messenger or otherwise to the address specified in Annex II
hereto, or so sent to such party at any other place specified in a notice
of change of address hereafter received by the other. All notices,
demands and requests hereunder may be made orally, to be confirmed
promptly in writing, or by other communication as specified in the
preceding sentence.
14. ENTIRE AGREEMENT; SEVERABILITY
This Agreement shall supersede any existing agreements between the
parties containing general terms and conditions for repurchase
transactions. 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 unenforceability of any such
other provision or agreement.
15. NON-ASSIGNABILITY; TERMINATION
(a) The rights and obligations of the parties under this Agreement and
under any Transaction shall not be assigned by either party
without the prior written consent of the other party, and any such
assignment without the prior written consent of the other party
shall be null and void. Subject to the foregoing, this Agreement
and any Transactions shall be binding upon and shall inure to the
benefit of the parties and their respective successors and
assigns. This Agreement may be terminated by either party upon
giving written notice to the other, except that this Agreement
shall, notwithstanding such notice, remain applicable to any
Transactions then outstanding.
(b) Subparagraph (a) of this Paragraph 15 shall not preclude a party
from assigning, charging or otherwise dealing with all or any part
of its interest in any sum payable to it under Paragraph 11
hereof.
16. GOVERNING LAW
This Agreement shall be governed by the laws of the State of New York
without giving effect to the conflict of law principles thereof.
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17. NO WAIVERS, ETC.
No express or implied waiver of any Event of Default by either party
shall constitute a waiver of any other Event of Default and no exercise
of any remedy hereunder by any party shall constitute a waiver of its
right to exercise any other remedy hereunder. No modification or waiver
of any provision of this Agreement and no consent by any party to a
departure herefrom shall be effective unless and until such shall be in
writing and duly executed by both of the parties hereto. Without
limitation on any of the foregoing, the failure to give a notice
pursuant to Paragraph 4(a) or 4(b) hereof will not constitute a waiver
of any right to do so at a later date.
18. USE OF EMPLOYEE PLAN ASSETS
(a) If assets of an employee benefit plan subject to any provision of
the Employee Retirement Income Security Act of 1974 ("ERISA") are
intended to be used by either party hereto (the "Plan Party") in a
Transaction, the Plan Party shall so notify the other party prior
to the Transaction. The Plan Party shall represent in writing to
the other party that the Transaction does not constitute a
prohibited transaction under ERISA or is otherwise exempt
therefrom, and the other party may proceed in reliance thereon but
shall not be required so to proceed.
(b) Subject to the last sentence of subparagraph (a) of this
Paragraph, any such Transaction shall proceed only if Seller
furnishes or has furnished to Buyer its most recent available
audited statement of its financial condition and its most recent
subsequent unaudited statement of its financial condition.
(c) By entering into a Transaction pursuant to this Paragraph, Seller
shall be deemed (i) to represent to Buyer that since the date of
Seller's latest such financial statements, there has been no
material adverse change in Seller's financial condition which
Seller has not disclosed to Buyer, and (ii) to agree to provide
Buyer with future audited and unaudited statements of its
financial condition as they are issued, so long as it is a Seller
in any outstanding Transaction involving a Plan Party.
19. INTENT
(a) The parties recognize that each Transaction is a "repurchase
agreement" as that term is defined in Section 101 of Title 11 of
the United States Code, as amended (except insofar as the type of
Securities subject to such Transaction or the term of such
Transaction would render such definition inapplicable), and a
"securities contract" as that term is defined in Section 741 of
Title 11 of the United States Code, as amended (except insofar as
the type of assets subject to such Transaction would render such
definition inapplicable).
(b) It is understood that either party's right to liquidate Securities
delivered to it in connection with Transactions hereunder or to
exercise any other remedies pursuant to Paragraph 11 hereof is a
contractual right to liquidate such Transaction as described in
Sections 555 and 559 of Title 11 of the United States Code, as
amended.
(c) The parties agree and acknowledge that if a party hereto is an
"insured depository institution," as such term is defined in the
Federal Deposit Insurance Act, as amended ("FDIA"), then each
Transaction hereunder is a "qualified financial contract," as that
term is defined in FDIA and any rules, orders or policy statements
thereunder (except insofar as the type of assets subject to such
Transaction would render such definition inapplicable).
(d) It is understood that this Agreement constitutes a "netting
contract" as defined in and subject to Title IV of the Federal
Deposit Insurance Corporation Improvement Act of 1991 ("FDICIA")
and each payment entitlement and payment obligation under any
Transaction hereunder shall constitute a "covered contractual
payment entitlement" or "covered contractual payment obligation",
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respectively, as defined in and subject to FDICIA (except insofar
as one or both of the parties is not a "financial institution" as
that term is defined in FDICIA).
20. DISCLOSURE RELATING TO CERTAIN FEDERAL PROTECTIONS
The parties acknowledge that they have been advised that.
(a) in the case of Transactions in which one of the parties is a
broker or dealer registered with the Securities and Exchange
Commission ("SEC") under Section 15 of the Securities Exchange Act
of 1934 ("1934 Act"), the Securities Investor Protection
Corporation has taken the position that the provisions of the
Securities Investor Protection Act of 1970 ("SIPA") do not protect
the other party with respect to any Transaction hereunder;
(b) in the case of Transactions in which one of the parties is a
government securities broker or a government securities dealer
registered with the SEC under Section 15C of the 1934 Act, SIPA
will not provide protection to the other party with respect to any
Transaction hereunder; and
(c) in the case of Transactions in which one of the parties is a
financial institution, funds held by the financial institution
pursuant to a Transaction hereunder are not a deposit and
therefore are not insured by the Federal Deposit Insurance
Corporation or the National Credit Union Share Insurance Fund, as
applicable.
CREDIT SUISSE FIRST BOSTON ONYX ACCEPTANCE FUNDING
(EUROPE) LIMITED, as Buyer CORPORATION, as Seller
By: /s/ ▇.▇. ▇▇▇▇-▇▇▇▇▇ By:
-------------------------------- --------------------------------
Name: ▇.▇. ▇▇▇▇-▇▇▇▇▇ Name:
------------------------------ ------------------------------
Title: Attorney-in-Fact Title:
----------------------------- -----------------------------
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Title: Attorney-in-Fact
-----------------------------
CREDIT SUISSE FIRST BOSTON
CORPORATION, as Agent
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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ANNEX I
SUPPLEMENTAL TERMS AND CONDITIONS
This Annex I forms a part of the Master Repurchase Agreement dated as
of October 13, 2000 (the "Master Repurchase Agreement" and, together with this
Annex I and Annex II, the "Agreement") between Credit Suisse First Boston
(Europe) Limited, as Buyer (the "Buyer"), Credit Suisse First Boston Corporation
("CSFB" or "Agent"), as Agent, and Onyx Acceptance Funding Corporation, as
Seller (the "Seller"). Capitalized terms used but not defined in this Annex I
shall have the meanings ascribed to them in the Master Repurchase Agreement. The
supplemental terms set forth in this Annex I (the "Supplemental Terms") modify
the terms and conditions under which the parties, from time to time, enter into
Transactions. To the extent that the terms of this Annex I conflict with the
terms of the Master Repurchase Agreement, the terms of this Annex I shall
control.
1. OPTIONAL ANNEXES
In addition to this Annex I and Annex II, the following Annexes and any
Schedules thereto shall form part of the Agreement and shall be applicable
thereunder: None.
2. ADDITIONAL OR REPLACED DEFINITIONS
a. Paragraph 2 of the Master Repurchase Agreement shall be modified to
include the following additional or replaced definitions:
i. "Adjusted EBITDA Coverage" means, with respect to any
fiscal quarter of Onyx, the average, as of the last day of such fiscal
quarter and each of the three immediately preceding fiscal quarters of
Onyx, of the sum of: (1) the consolidated pre-tax income, (2) interest
expense, (3) amortization of excess servicing asset and (4) other
amortization and depreciation, less any gain on sale recognized
according to FASB 125 (or a successor thereto), divided by consolidated
interest expense of Onyx or its subsidiaries, each of the above-listed
items as they appear in the consolidated financial statements of Onyx
prepared in accordance with GAAP.
ii. "Adjusted Tangible Net Worth" means the sum of (1)
Consolidated Tangible Net Worth and (2) Subordinated Debt; provided,
however, that Subordinated Debt shall not exceed 20% of Consolidated
Tangible Net Worth.
iii. "Base Currency" means the lawful money of the United
States of America, as designated by the phrase "U.S. Dollar" and the
sign "$".
iv. "Business Day" shall mean any day excluding Saturday,
Sunday or any other day on which banks in New York City, London or
California are authorized or required by law to close.
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v. "Buyer's Margin Percentage" means, with respect to any
Transaction as of any date, a percentage (which may be equal to the
Seller's Margin Percentage) determined by the Buyer in its sole
discretion.
vi. "Change of Control" means that at any time (i) Onyx shall
own less than 100% of all classes of capital stock of Seller, (ii) any
event or condition occurs that results in any Person or "group" (within
the meaning of Section 13(d) or 14(d) of the Exchange Act) other than a
Person or group that owns the majority of the capital stock of Onyx on
the date of this Agreement: (A) having acquired beneficial ownership of
50% or more of any outstanding class of capital stock of Onyx having
ordinary voting power in the election of directors of Onyx or (B)
obtaining the power (whether or not exercised) to elect a majority of
Onyx's directors, or (iii) Onyx or Seller merge or consolidate with any
other Person.
vii. "Consolidated Tangible Net Worth" means, at any date, (i)
the amount which, in conformity with GAAP, would be set forth opposite
the caption "shareholder's equity" (or any like caption) on a
consolidated balance sheet of Onyx and its subsidiaries at such date,
minus (ii) the aggregate amount of any Intangible Assets at such date.
viii. "Default" means an event that would constitute an Event
of Default with the giving of notice and/or lapse of time.
ix. "Excess Collections" means, with respect to any
Securitized Pool, an amount equal to the excess of (i) the aggregate
amount of collections on the automobile contracts and loans included in
such Securitized Pool over (ii) the amount required for (A) payments or
distributions to holders of securities (other than residual securities)
collateralized or supported by such Securitized Pool and (B) payments
of any expenses related to such Securitized Pool, which expenses are,
pursuant to any agreement, required to be paid by way of application of
such collections.
x. "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
xi. "GAAP" means generally accepted accounting principles as
in effect from time to time in the United States of America,
consistently applied.
xii. "Governmental Authority" means any nation, government, or
state, or any political subdivision of any of them, or any court,
entity or agency exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
xiii. "Intangible Assets" means all licenses, franchises,
patents, patent applications, trademarks, trade names, copyrights, good
will, research and development expense, organizational expense,
deferred expenses and other like intangible assets shown on the
consolidated balance sheet of Onyx and its subsidiaries.
xiv. "Market Value" means, with respect to any Purchased
Security and as of any date, an amount equal to the present value, as
of such date, of the distributions due to the holder of such Purchased
Security, as determined by Buyer in its sole discretion based upon
information regarding the performance of Securitized Pools and other
data regarding the automobile-loan-securitization industry.
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xv. "Material Adverse Change" means (a) with respect to Seller
or Onyx, as applicable, a material adverse change in the business,
operations, properties, prospects or condition (financial or otherwise)
of Seller or Onyx, as applicable, or (b) with respect to Seller, a
material adverse change in the ability of Seller to perform its
obligations under this Agreement.
xvi. "One-Month LIBOR" means, as of any date, the average of
interbank offered rates for one-month U.S. dollar deposits in the
London market based on quotations of major banks that are most recently
available as of such date, as calculated by Buyer.
xvii. "Onyx" means Onyx Acceptance Corporation.
xviii. "Other Facility" means any credit or insurance
facility, other than the facility established pursuant to this
Agreement, of Seller or Onyx.
xix. "Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture, government
(or any agency or political subdivision thereof) or other entity.
xx. "Price Differential Repayment Date" means, with respect to
a Purchased Security, the last Business Day of the month following the
Purchase Date and the last Business Day of each succeeding month
thereafter; provided that with respect to such Purchased Security the
last Price Differential Payment Date shall be the related Repurchase
Date; and, provided further, that if any such date is not a Business
Day, the Price Differential Payment Date shall be the next succeeding
Business Day.
xxi. "Pricing Rate" shall have the meaning, with respect to
any Transaction, set forth in the confirmation related to such
Transaction.
xxii. The definition of "Purchase Price" in Paragraph 2(o) is
amended by adding the following sentence at the end of such definition:
"The price at which any Purchased Security shall be transferred by the
Seller to the Buyer on the related Purchase Date shall be determined by
CSFB in its sole discretion."
xxiii. "Residual Collections" means, with respect to any
Securitized Pool, the Excess Collections generated by such Securitized
Pool (including, without limitation, any releases from any reserve
account established in connection with such Securitized Pool).
xxiv. "SEC" means the U.S. Securities and Exchange Commission.
xxv. "Securitization Assets" means the sum of (1) trust
receivables and (2) excess servicing (retained interest in securitized
assets net of amortization), each of the above-listed items as they
appear in the consolidated financial statements of Onyx and its
subsidiaries prepared in accordance with GAAP.
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xxvi. "Securitized Pool" means a securitized pool of
automobile contracts and loans that were originated or purchased by
Onyx.
xxvii. "Seller's Bid Submission Deadline" means, with respect
to the date and time of day on which Buyer presents bids to Seller
pursuant to Section 10(b)ii of these Supplemental Terms, such time of
day on the immediately succeeding Business Day;
xxviii. "Servicer Default" means, with respect to any
Securitized Pool, a default by the servicer of such Securitized Pool in
the performance of its servicing obligations, as set forth in the
servicing agreement related to such Securitized Pool.
xxix. "Servicer Securitization Statement" means, with respect
to any Securitized Pool, a servicing report or servicing certificate
with respect to such Securitized Pool prepared by the servicer of such
Securitized Pool.
xxx. "Spot Rate" means, with respect to any date and any
currency other than the Base Currency, the rate of conversion of such
currency to the Base Currency on such date, as determined by Agent.
xxxi. "Total Assets" means, at any date, all items or amounts
which, in conformity with GAAP, would be set forth as "assets" on a
consolidated balance sheet of Onyx and its subsidiaries at such date.
xxxii. "Total Liabilities" means, at any date, all claims on
assets which, in conformity with GAAP, would be set forth as
"liabilities" on a consolidated balance sheet of Onyx and its
subsidiaries at such date.
b. Accounting Terms and Determinations. Unless otherwise defined or
specified in this Agreement, all accounting terms shall be construed herein, all
accounting determinations hereunder shall be made, all financial statements
required to be delivered hereunder shall be prepared and all financial records
shall be maintained in accordance with GAAP applied on a basis consistent with
the financial statements referred to herein.
3. MODIFICATION OF PARAGRAPH 3(b) OF THE MASTER REPURCHASE AGREEMENT
Paragraph 3(b) of the Master Repurchase Agreement shall be modified as
follows:
a. The following sentence shall be added immediately prior to the last
sentence of Paragraph 3(b) of the Master Repurchase Agreement:
Each Transaction made under the Agreement shall be confirmed by CSFB,
as agent for each of Buyer and Seller, on or before the relevant
Purchase Date by confirmation in accordance with this Paragraph 3(b).
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b. The last sentence of Paragraph 3(b) of the Master Repurchase
Agreement shall be amended to read as follows:
In the event of any conflict between the terms of such Confirmation and
this Agreement, such Confirmation shall prevail.
4. MODIFICATION OF PARAGRAPH 5 OF THE MASTER REPURCHASE AGREEMENT
Paragraph 5 of the Master Repurchase Agreement shall be amended as
follows:
The first sentence of Paragraph 5 is amended by adding in
subparagraph "(a)" before the word "Seller" at the beginning of the
first sentence. Paragraph 5 is further amended by adding the following
subparagraphs after subparagraph "5(a)":
(b) Each party agrees to be liable to the relevant taxing
authority for the full amount of any Taxes required by
governing law to be deducted or withheld from payments or
distributions of income that the party receives from the
issuer of the Securities ("Income Payments"). All payments
made by one party to the other party in respect of any
Transaction pursuant to this Agreement, including any Income
Payments payable by Buyer to Seller, shall be made free and
clear of, and without any, withholding or deduction for or on
account of any Taxes, unless such withholding or deduction is
required by any applicable law, as modified by the practice
of any relevant governmental revenue authority. If such
withholding or deduction is so required, then the payor shall
(i) promptly notify the payee of such requirement, (ii) pay
to the relevant authorities the full amount required to be
deducted or withheld promptly upon learning that such
deduction or withholding is required, (iii) promptly forward
to the payee an official receipt (or certified copy), or
other such documentation, evidencing such payment to such
authorities, and (iv) pay to the payee such additional
amounts as are necessary to yield and remit to the payee an
amount which, after deduction of all Taxes (including any
Taxes imposed on the additional amounts) so withheld or
deducted, equals the full amount that the payee would have
received had no such withholding or deduction been required;
provided, however, that in no event will Seller be entitled
to receive any amount in respect of any Income Payment
greater than Seller would have received had it not entered
into the relevant Transaction. If (i) the payor fails to
remit in a timely manner the appropriate amount to the
relevant governmental revenue authority in respect of any
amount that the payor is required to withhold or deduct from
any payment to the payee and (ii) a liability for such amount
is assessed directly against the payee, then the payor shall,
in addition to its liability to pay additional amounts to the
payee pursuant to the preceding sentence, be liable to the
payee for any interest or penalties that are thereby imposed
upon the payee by reason of such failure by the payor. In the
event of Buyer failing to remit, either directly or through
its agent, the full amount owing to Seller pursuant to this
Agreement, Buyer hereby undertakes to pay interest to Seller
(upon demand) on the amount due and outstanding at the rate
of the LIBOR Rate as it fluctuates from day to day plus 1%.
Such sum shall accrue daily commencing on and inclusive of
the third Business Day after the relevant payment date,
unless otherwise agreed between the parties.
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(c) Each party agrees to complete (accurately and in a manner
reasonably satisfactory to the other party), execute, arrange
for any required certification of, and deliver to the other
party or such government or taxing authority as the other
party directs, any form or document that may be required or
reasonably requested in order to assist or enable the other
party to secure the benefit of any available exemption or
relief from any deduction or withholding on account of any
Taxes or, if there is no available exemption or relief as
aforesaid, to secure the benefit of any reduced rate of
deduction or withholding, in respect of any payment under
this Agreement, promptly upon the earlier of: (i) reasonable
demand by the other party and (ii) learning that the form or
document is so required. Without limitation of the foregoing,
Seller agrees to deliver to Agent, on the date of this
Agreement, a completed Form W-9, Request for Taxpayer
Identification Number and Certification, it being understood
that Buyer shall have no obligation to enter into any
Transaction pursuant to this Agreement prior to Agent's
receipt of such Form W-9. Failure to comply with or perform
any tax covenant provided for hereunder will terminate the
payor's obligation to pay any additional amount to the extent
such additional amount would not be required to be paid but
for such failure.
(d) (1) In the event a Tax Event occurs with respect to this
Agreement, at the option of such party (exercised by written
notice to the other party, such notice being treated as a
demand pursuant to Paragraph 3(c) of this Agreement), the
Repurchase Date for the Transaction with respect to which the
Tax Event occurred shall be immediately deemed to occur and
such Repurchase Date shall be treated as the date of
determination for the purposes of calculating the Repurchase
Price.
(2) The occurrence with respect to either party of any of the
following events will constitute a "Tax Event" for the
purposes of this subparagraph 5(d):
(i) the party shall be required on the next succeeding
payment date to pay to the other party an additional
amount under subparagraph 5(b) hereof as a result of a
Change in Tax Law;
(ii) there is a substantial likelihood that the party
will be required on the next succeeding payment date to
pay to the other party an additional amount under
subparagraph 5(b) hereof and such substantial likelihood
results from an action taken by a taxing authority or
court of competent jurisdiction, on or after the date on
which such Transaction was entered into (regardless of
whether such action was taken or brought with respect to
a party to this Agreement); or
(iii) the party will be required on the next succeeding
payment date to pay to the other party an additional
amount under subparagraph 5(b) hereof as a result of a
consolidation, amalgamation, merger or transfer of
substantially all of the assets of such other party by
such other party.
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(e) Each party agrees that it will pay any Stamp Tax levied or
imposed upon it or in respect of its execution or performance
of this Agreement by an government or other authority in a
jurisdiction in which it is incorporated, organized, managed
and controlled, or is considered to have its seat, or in
which a branch or office through which it is acting for the
purpose of this Agreement is located (a "Stamp Tax
Jurisdiction") and will indemnify the other party against any
Stamp Tax levied or imposed upon the other party or in
respect of the other party's execution or performance of this
Agreement by any such Stamp Tax Jurisdiction which is not
also a Stamp Tax Jurisdiction with respect to the other
party. Notwithstanding the foregoing, if a party becomes a
Defaulting Party under this Agreement, then such party agrees
to indemnify the other party for any Stamp Taxes imposed upon
such other party by reason of such other party's enforcement
and protection, as a result of such other default, of its
rights under this Agreement or any related credit support
document.
(f) For the purposes of this Paragraph 5:
(1) "Change in Tax Law" means the enactment, promulgation,
execution or ratification of, or any change in or
amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the
date on which the relevant Transaction is entered into.
(2) "Defaulting Party" means a party that defaults in the
performance of any obligation thereof under this
Agreement.
(3) "Law" includes any treaty, law, rule or regulation (as
modified, in the case of tax matters, by practice of any
relevant governmental revenue authority either generally
or with respect to a party to this Agreement) and "Change
in Tax Law" shall be construed accordingly.
(4) "LIBOR Rate" means, with respect to any date, the posted
rate for United States dollar deposits for one month that
appears on Telerate Page 3750 (as defined below) as of
11:00 A.M., London time, on such date. "Telerate Page
3750" means the display page designated on the Bridge
Information Systems Telerate Service (or such other page
as may replace that page on that service, or such other
service as may be nominated as the information vendor,
for the purpose of displaying London inter-bank offered
rates of major banks). If, on such date, no posted rate
appears on Telerate Page 3750, LIBOR will be determined
on such date on the basis of quotations of major banks
that are most recently available as of such date, as
calculated by Agent.
(5) "Stamp Tax" means any stamp, registration, documentation
or similar tax.
(6) "Tax" or "Taxes" means any present or future tax, levy,
impost, duty, charge, assessment or fee of any nature
that is imposed by a governmental or other taxing
authority in respect of any payment under this Agreement
other than any franchise or income taxes imposed upon any
party to this Agreement.
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5. MODIFICATION OF PARAGRAPH 9 OF THE MASTER REPURCHASE AGREEMENT
Paragraph 9 of the Master Repurchase Agreement shall be amended by
adding the following new subparagraphs (c) and (d) to such Paragraph:
(c) In the case of any Transaction for which the Repurchase Date is
other than the business day immediately following the Purchase Date
and with respect to which Seller does not have any existing right
to substitute substantially the same Securities for the Purchased
Securities, Seller shall have the right, subject to the proviso to
this sentence, upon notice to Buyer, which notice shall be given at
or prior to 10:00 am (New York Time) on such business day, to
substitute substantially the same Securities for any Purchased
Securities; provided, however, that Buyer may elect, by the close
of business on the business day notice is received, or by the close
of the next business day if notice is given after 10:00 am (New
York Time) on such day, not to accept such substitution. In the
event such substitution is accepted by Buyer, such substitution
shall be made by Seller's transfer to Buyer of such other
Securities and Buyer's transfer to Seller of such Purchased
Securities, and after substitution, the substituted Securities
shall be deemed to be Purchased Securities. In the event Buyer
elects not to accept such substitution, Buyer shall offer Seller
the right to terminate the Transaction.
(d) In the event Seller exercises its right to substitute or terminate
under sub-paragraph (c), Seller shall be obligated to pay to Buyer,
by the close of the business day of such substitution or
termination, as the case may be, an amount equal to (A) Buyer's
actual cost (including all fees, expenses and commissions) of (i)
entering into replacement transactions; and/or (ii) terminating
transactions or substituting Securities in like transactions with
third parties in connection with or as a result of such
substitution or termination, and (B) to the extent Buyer determines
not to enter into replacement transactions, the loss incurred by
Buyer directly arising or resulting from such substitution or
termination. The foregoing amounts shall be solely determined and
calculated by Buyer in good faith. For the purposes of this
Paragraph 9(d), the term of any replacement transaction,
terminating transaction or transaction with respect to substituting
Securities shall not be greater than thirty (30) days.
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6. MODIFICATION OF PARAGRAPH 12 OF THE MASTER REPURCHASE AGREEMENT
Paragraph 12 of the Master Repurchase Agreement shall be amended by
deleting such Paragraph in its entirety and replacing such Paragraph with the
following:
12. SINGLE AGREEMENT
Buyer and Seller hereby acknowledge that they consider all
Transactions and agreements between them to constitute a single
business and contractual relationship and to have been made in
consideration of each other and this Agreement. Therefore, (a) each
party hereby agrees (i) to perform all of its obligations to the
other party with respect to all Transactions or agreements between
them, (ii) that a default in the performance of any such
obligations ("Obligations") shall constitute an Event of Default
hereunder and (iii) that any Event of Default hereunder shall
constitute a default in respect of all such other Transactions and
agreements between them, (b) each party shall have a right of
setoff against the other party for amounts owing hereunder and any
other Obligations owing in respect of any other agreement or
transaction whatsoever, and (c) payments, deliveries, and other
transfers made by either party hereunder shall be considered to
have been made in consideration of payments, deliveries, and other
transfers made by the other party with respect to all other
agreements or transactions between them, and the Obligations to
make any such payments, deliveries, and other transfers may be
applied against each other and netted. As security for the
performance by each party of all of its Obligations, each party
hereby grants to the other a security interest in all securities,
instruments, money, and other property (and all proceeds thereof)
transferred by such party to the other pursuant to this Agreement.
With respect to defaulted Obligations which did not arise under
this Agreement, such security interest may be enforced in
accordance with the provisions of applicable law or Paragraph
11(d)(i) hereof (applying such Paragraph as if such defaulted
Obligations were owed hereunder in respect of a Transaction in
which the defaulting party is acting as Seller).
7. MODIFICATION OF PARAGRAPH 19 OF THE MASTER REPURCHASE AGREEMENT
Paragraph 19 of the Master Repurchase Agreement shall be amended by
adding the following new subparagraph (e) to such Paragraph:
(e) The parties recognize and intend that each Transaction is, and
shall constitute, a "repurchase agreement" (except insofar as the
type of Securities subject to such Transaction or the term of such
Transaction would render such definition inapplicable) and a
"securities contract," as those terms are defined in Section 212 of
the U.S. Financial Institutions Reform, Recovery and Enforcement
Act of 1989 ("FIRREA"), and that this Agreement constitutes a
"master agreement" as that term is used in such Section.
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8. AGENCY PROVISIONS
Notwithstanding any provision to the contrary contained in this
Agreement, any Confirmation or any other agreements or instruments delivered in
connection with any Transaction hereunder:
a. CSFB, as a broker-dealer registered with the SEC, will arrange, as
agent for each of Buyer and Seller, each Transaction to be entered into pursuant
to this Agreement in accordance with Rule 15a-6 promulgated under the Exchange
Act. As agent for each of Buyer and Seller, CSFB will be responsible for (i)
effecting and settling all such Transactions in compliance with said Rule 15a-6,
(ii) issuing all required confirmations and statements to Buyer and Seller in
compliance with Rule 15c3-1 under the Exchange Act, (iii) maintaining books and
records relating to such Transactions as required by Rules 17a-3 and 17a-4 under
the Exchange Act and (iv) if requested by Buyer or Seller, receiving, delivering
and safeguarding such party's funds and securities in connection with such
Transactions in compliance with Rule 15c3-3 under the Exchange Act.
b. CSFB is participating in each Transaction solely as agent for each
of Buyer and Seller. CSFB shall have no responsibility or liability to either
Buyer or Seller arising from any failure of Buyer or Seller to pay or perform
any obligation hereunder, including, without limitation, any obligation to
maintain margin. Each of Buyer and Seller agrees to proceed solely against the
other to collect or recover any securities or monies owing to it in connection
with or as a result of any Transaction or otherwise hereunder. CSFB shall
otherwise have no liability in respect of this Agreement or any Transaction,
except that CSFB shall be liable for its gross negligence or willful misconduct,
or its failure to comply with applicable U.S. securities laws and regulations,
in performing its duties as agent for each of Buyer and Seller hereunder.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS
Paragraph 10 of the Master Repurchase Agreement shall be modified to
include the following additional terms:
a. Buyer represents and warrants to Seller, and shall on and as of the
Purchase Date of any Transaction be deemed to represent and warrant, as follows:
i. Buyer has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation and is duly qualified and in good standing in each other
jurisdiction where the conduct of its business or the ownership, lease or
operation of its property requires such qualification; and
ii. this Agreement has been duly executed and delivered by Buyer and
constitutes the legal, valid and binding obligation of Buyer, enforceable
against it in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization or similar laws of general applicability
relating to or affecting creditors' rights, to the assumption that enforcement
will be undertaken in a commercially reasonable manner and to general principles
of equity and equitable remedies, regardless of whether enforcement is
considered in a proceeding in equity or at law.
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b. Agent represents and warrants to Seller, and shall on and as of the
Purchase Date of any Transaction be deemed to represent and warrant, as follows:
i. Agent has been duly organized and is validly existing as a
corporation in good standing under the laws of the state of its
incorporation and is duly qualified and in good standing in each other
jurisdiction where the conduct of its business or the ownership, lease
or operation of its property requires such qualification; and
ii. this Agreement has been duly executed and delivered by Agent and
constitutes the legal, valid and binding obligation of Agent,
enforceable against it in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization or similar laws
of general applicability relating to or affecting creditors' rights, to
the assumption that enforcement will be undertaken in a commercially
reasonable manner and to general principles of equity and equitable
remedies, regardless of whether enforcement is considered in a
proceeding in equity or at law.
c. 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:
i. Seller has been duly organized and is validly existing as a
corporation in good standing under the laws of the state of its
incorporation and is duly qualified and in good standing in each other
jurisdiction where the conduct of its business or the ownership, lease
or operation of its property requires such qualification;
ii. this 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, subject, as to
enforcement, to bankruptcy, insolvency, reorganization or similar laws
of general applicability relating to or affecting creditors' rights, to
the assumption that enforcement will be undertaken in a commercially
reasonable manner and to general principles of equity and equitable
remedies, regardless of whether enforcement is considered in a
proceeding in equity or at law;
iii. neither the execution and delivery nor the performance by
Seller of this Agreement will result in or require the creation of any
lien, security interest or other charge or encumbrance (other than
pursuant hereto) upon or with respect to any of Seller's properties,
except for the security interest created by this Agreement;
iv. neither the execution and delivery nor the performance by Seller
of this Agreement requires any authorization, approval, consent,
license, exemption (other than any self-executing exemption), filing,
registration or the taking of any other action in respect of any
federal or state authority except where the failure to comply with such
requirement would not adversely affect the delivery, execution or
performance by Seller of this Agreement or cause a Material Adverse
Change;
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v. Immediately prior to the delivery by the Seller to the Buyer of
any Purchased Securities for any Transaction, Seller shall be the legal
and beneficial owner of such Purchased Securities free and clear of any
lien, security interest, option or encumbrance;
vi. there are no delinquent federal, state, city, county or other
taxes relating to Seller, the Purchased Securities or any arrangement
pursuant to which the Purchased Securities are issued that might, in
the reasonable judgment of Buyer, materially adversely affect any of
the Purchased Securities or cause a Material Adverse Change in Seller,
and all such delinquent tax liabilities have been satisfied except
those that are being contested by Seller in good faith;
vii. since the date of the most recent financial statement delivered
by Seller to Buyer, there has been no Material Adverse Change; Seller
shall provide Buyer with such financial statements and other
information as is contemplated in Section 9(d)xvi of these Supplemental
Terms;
viii. there are no actions, suits, investigations, or other
proceedings pending, or, to the best knowledge of Seller, after due
inquiry, threatened, against or affecting Seller by or before any
court, arbitrator, Governmental Authority which challenge any of the
transactions contemplated under this Agreement or could result in a
Material Adverse Change and there are no preliminary or permanent
injunctions or orders by any court or other Governmental Authority
pending affecting this Agreement or any of the Transactions
contemplated hereby;
ix. no certificate, statement, report or other document furnished
and no representation or warranty made or to be furnished or made to
Buyer by or on behalf of Seller in or in connection with this Agreement
or any Transaction contemplated hereby, at the time furnished, contains
or will contain any untrue statement of a material fact or omits or
will omit to state any material fact necessary in order to make the
statements contained therein not misleading; and
x. Seller is a direct or indirect wholly-owned subsidiary of Onyx.
d. Seller covenants with Buyer, from and after the date hereof, as
follows:
i. Seller shall notify Buyer no later than one (1) Business Day
after obtaining actual knowledge thereof, if any event has occurred
that constitutes an Event of Default with respect to Seller or any
event that with the giving of notice or lapse of time, or both, would
become an Event of Default with respect to Seller;
ii. Seller shall not take any action that would directly or
indirectly impair or adversely affect Buyer's title to or the value of
the Purchased Securities;
iii. Seller shall not pledge, assign, convey, grant, bargain, sell,
set over, deliver or otherwise transfer any interest in the Purchased
Securities, to any person not a party to this Agreement nor will the
Seller create, incur or permit to exist any lien, encumbrance or
security interest in or on the Purchased Securities;
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iv. Seller shall, at Buyer's request, take all action necessary to
ensure that Buyer will have a perfected first priority security
interest in the Purchased Securities in the event that the Transactions
are recharacterized by a court of competent jurisdiction as loans,
including among other things, filing such UCC financing statements,
mortgages or other instruments as Buyer may reasonably request;
v. Seller shall not enter into any transaction of merger or
consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation, winding up or dissolution) or sell all or
substantially all of its assets;
vi. Seller shall promptly inform Buyer of any changes to the senior
management of either Seller or Onyx, and such other information as
Buyer may reasonably request from time to time;
vii. Seller shall promptly notify Buyer of any litigation against
Seller or any affiliate of Seller relating to the Purchased Securities
which, individually or in the aggregate, if adversely determined
against Seller, would materially affect such Purchased Securities;
viii. Seller shall provide Buyer with copies of such documentation
as Buyer may reasonably request evidencing the truthfulness of the
representations set forth in subsection (b) above;
ix. Seller shall take all actions necessary to remain duly
organized, validly existing and in good standing as a domestic
corporation in Delaware and maintain all requisite authority to conduct
its business in each jurisdiction in which its business is conducted,
except where the failure to maintain such authority would not have a
material adverse effect on the ability of Seller to conduct its
business or to perform its obligations under this Agreement;
x. Seller shall not create, incur, assume or suffer to exist any
guarantee of indebtedness of any person other than an intercompany
guarantee in favor of an affiliate of Seller;
xi. Seller shall not change the identity of its independent public
accountants without prior written notice to Buyer of such change and
the reason therefor; Seller shall at all times utilize a nationally
recognized independent public accounting firm;
xii. the ratio of (A) Adjusted Tangible Net Worth to (B) Total
Assets shall be at least 15% as of the end of each fiscal quarter of
Onyx;
xiii. as of the end of each fiscal quarter of Onyx, the Adjusted
EBITDA Coverage shall be greater than 1.5;
xiv. the ratio of (A) Securitization Assets to (B) Adjusted Tangible
Net Worth shall not be greater than 3 to 1 as of the end of any fiscal
quarter of Onyx;
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xv. as of the end of each fiscal quarter of Onyx, Consolidated
Tangible Net Worth shall be greater than $45,000,000; and
xvi. Seller shall provide to Buyer the following financial and
reporting information:
(i) as soon as available and in any event within ninety (90)
days after the close of each fiscal year of Onyx, a consolidated
balance sheet of Onyx, a consolidated statement of income of Onyx and a
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 Buyer) by independent public accountants selected by Onyx
and reasonably satisfactory to Buyer;
(ii) as soon as available and in any event within forty-five
(45) days after the close of each of the first three (3) quarters of
each fiscal year of Seller, the Onyx applicable quarterly Form 10-Q as
filed with the SEC, including the consolidating statements for Seller,
subject to normal recurring year-end audit adjustments, and as prepared
in accordance with GAAP;
(iii) as soon as available and in any event within thirty (30)
days after the close of each calendar month other than a month in which
a quarter of a fiscal year of Onyx closes, a consolidated balance sheet
of Onyx, a consolidated statement of income of Onyx and a consolidated
statement of changes in financial position of Onyx's consolidated
financial group as at the end of such calendar month, as prepared in
accordance with GAAP;
(iv) as soon as available and in any event within thirty (30)
days after the close of each calendar month, loan performance data for
such month, including pool analytic reports (i.e., prepayment,
delinquency, repossession and net charge-off reports), with respect to
each Securitized Pool;
(v) as soon as available and in any event within thirty (30)
days after the close of each calendar month, the Servicer
Securitization Statement for such month with respect to each
Securitized Pool;
(vi) promptly, and in any event no later than five (5) Business
Days, after the commencement thereof, written notice of any material
actions, suits or proceedings (including arbitrations) against Seller
or Onyx before any court or other Governmental Authority;
(vii) immediately upon becoming aware of any development or
other information which is reasonably likely to result in a Material
Adverse Change of Seller or Onyx, as applicable, written notice
specifying the nature of such development or information, such
anticipated effect and action, if any, Seller or Onyx proposes to take
or has taken with respect thereto;
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(viii) concurrently with the delivery of the financial
statements required to be furnished by subsections (i) or (ii) above, a
certificate signed by the chief executive or financial officer of
Seller, stating (1) that a review of the activities of Seller during
such quarter or fiscal year, as the case may be, has been made under
his or her immediate supervision with a view to determining whether
Seller has observed, performed and fulfilled all of its obligations
under this Agreement and whether Seller is in compliance with the
representations, warranties and covenants of the Seller under this
Agreement, and (2) that there existed during such quarter or fiscal
year, as the case may be, no Event of Default and no Default or if any
such Event of Default or Default did exist, specifying the nature
thereof, the period of existence thereof and what action Seller
proposes to take, or has taken, with respect thereto; and
(ix) such other information of a financial or operational nature
of Seller and/or Onyx as may be reasonably requested by Buyer from time
to time.
10. EVENT OF DEFAULT
Paragraph 11 of the Master Repurchase Agreement shall be modified to
include the following additional or supplemental terms:
a. The following events shall constitute additional events of default
(each an "Event of Default") under the Agreement with respect to Buyer or
Seller, as applicable:
i. any failure by Seller to pay, whether on the acceleration thereof
or otherwise, any amounts due under this Agreement or to perform any
provision of this Agreement in accordance herewith, or any material
breach of any representation, warranty or covenant of Seller set forth
in this Agreement;
ii. the granting by Seller of any security interest, lien, pledge or
other encumbrance on any Purchased Securities to any person other than
Buyer;
iii. Buyer shall for any reason cease to have a valid, first
priority security interest in any of the Purchased Securities purported
to be covered thereby, or any Person shall assert that Buyer does not
have a valid, first priority security interest in any of the Purchased
Securities;
iv. the filing by Seller, Onyx or any affiliate, of a petition in
bankruptcy, the adjudication of Seller, Onyx or any affiliate as
insolvent or bankrupt, the petition or application by Seller, Onyx or
any affiliate for any receiver or trustee for itself or any substantial
part of its property, the commencement by Seller, Onyx or any affiliate
of any proceeding relating to it under any reorganization, arrangement,
dissolution or liquidation law, or the initiation of any such
proceeding against Seller, Onyx or any affiliate, if Seller, Onyx or
such affiliate indicates by any act its consent thereto or if such
proceeding is not dismissed within sixty (60) days;
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v. Buyer shall reasonably determine that Seller is or will be unable
to meet its commitments under this Agreement, and notifies Seller of
such determination, and Seller shall not have responded with
appropriate information to the contrary to the satisfaction of Buyer
within thirty-six (36) hours;
vi. Seller or Onyx violates any law or any regulation promulgated
pursuant to any such law that relates to the Purchased Securities;
vii. a final, non-appealable 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 Onyx, Seller or any affiliate
thereof, and the same remains undischarged for a period of sixty (60)
days after the entry thereof, during which period the execution of such
judgment is not effectively appealed or otherwise stayed;
viii. in the reasonable judgment of Agent, a Material Adverse Change
shall have occurred with respect to Onyx and/or Seller;
ix. any Change of Control with respect to Seller or Onyx shall have
occurred, unless Buyer shall have expressly consented to such Change of
Control in writing, which consent shall not be unreasonably withheld;
x. any representation or warranty made by Seller in this Agreement
shall have been incorrect or untrue in any material respect when made
or repeated or when deemed to have been made or repeated, and Buyer's
interests shall have been materially adversely affected by such breach;
xi. Seller shall breach in any material respect any covenant made by
it in this Agreement and Buyer's interests shall have been materially
adversely affected by such breach;
xii. there shall occur an event of default or a default which with
notice, the passage of time, or both, shall constitute an event of
default by Onyx or Seller with respect to any normal and customary
covenants (including, without limitation, an Act of Insolvency of Onyx
or Seller, as applicable, or the failure of Onyx or Seller, as
applicable, to make required payments as they become due) under any
note, instrument, debt contract or agreement, servicing agreement,
other agreement or lease to which Onyx or Seller, as applicable, is a
party and under which the obligations of Onyx or Seller, as applicable,
total at least (A) $1,000,000 in the case of any agreement concerning
leasehold improvements or equipment financing or any lease, or
(B)$500,000 in the case of any other note, instrument, debt contract or
agreement, servicing agreement or other agreement, provided that such
default: (i) entitles any creditor or obligee of Onyx or Seller, as
applicable, to accelerate or declare immediately due an amount of at
least (A) $1,000,000 in the case of any agreement concerning leasehold
improvements or equipment financing or any lease, or (B)$500,000 in the
case of any other note, instrument, debt contract or agreement,
servicing agreement or other agreement; or (ii) otherwise results in a
Material Adverse Change with respect to Onyx or Seller;
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xiii. Seller or Onyx shall have received a "going concern" letter
from its accounting firm; or
xiv. a Servicer Default shall have occurred.
b. Upon the occurrence and during the continuance of an Event of
Default by Seller, in addition to the provisions of the Master Repurchase
Agreement:
i. If the proceeds of sale of the Purchased Securities are
insufficient to cover (A) the costs and expenses incurred by Buyer in
connection with such sale and (B) the payment in full of Seller's
outstanding obligations to Buyer under this Agreement, then Seller
shall remain liable for any deficiency.
ii. Buyer shall incur no liability as a result of the sale of any
Purchased Securities at any private sale. Seller hereby waives any
claims against Buyer arising by reason of the fact that the price at
which any Purchased Securities may have been sold at such a private
sale was less than the price that might have been obtained therefor at
a public sale or was less than the aggregate amount of Seller's
outstanding obligations to Buyer under this Agreement, even if Buyer
accepts the first offer received and does not offer the Purchased
Securities to more than one offeree; provided, however, that Buyer
shall present to Seller any bids that Buyer receives on any Purchased
Securities in connection with any such private sale and shall allow
Seller to submit, no later than the Seller's Bid Submission Deadline, a
bid for such Purchased Securities that is not less than the amount of
the highest such bid that shall have been so presented to Seller.
iii. The proceeds of any sale of all or any part of the Purchased
Securities shall be applied by Buyer in the following order of
priority:
first, to the payment of the costs and expenses of such sale and
all expenses (including the reasonable fees and expenses of
counsel), liabilities and advances made or incurred by Buyer in
connection therewith;
second, to the payment of the Price Differential due or past due;
third, to the payment of the Repurchase Price of all Purchased
Securities;
fourth, to the payment of all other amounts owing under this
Agreement; and
fifth, to Seller, or to such other person as a court of competent
jurisdiction may direct, the payment of any surplus then
remaining from such proceeds.
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11. CONDITIONS PRECEDENT
The purchase of the Securities on any Business Day is subject to the
satisfaction of the following additional conditions precedent, both immediately
prior to such purchase and also after giving effect thereto and to the intended
use thereof:
a. no Event of Default or Default shall have occurred and be
continuing;
b. both immediately prior to the entering into of such Transaction and
also after giving effect thereto and to the intended use thereof, the
representations and warranties made by Seller in this Agreement shall be deemed
given and shall be true and complete on and as of the date of the Transaction in
all material respects with the same force and effect as if made on and as of
such date (or, if any such representation or warranty is expressly stated to
have been made as of a specific date, as of such specific date);
c. both immediately prior to the entering into of such Transaction and
also after giving effect thereto and to the intended use thereof, no covenant
made by Seller in this Agreement shall have been breached; and
d. the proposed Transaction shall not violate any requirement of law
and shall not be enjoined, temporarily, preliminarily or permanently.
12. MINIMUM AND MAXIMUM TRANSACTION AMOUNTS
With respect to Transactions entered into hereunder:
a. the minimum Purchase Price of any Purchased Security subject to a
Transaction shall be $500,000;
b. the number of Transactions pursuant to the Agreement shall be
limited to one (1) in any five (5) consecutive Business Days; and
c. The aggregate outstanding Repurchase Price for the Purchased
Securities subject to the Agreement at any one time shall not exceed
$35,000,000.
13. PRIOR NOTICE REQUIRED FOR REPURCHASES
Seller may repurchase any Purchased Security at any time at the
Repurchase Price of such Purchased Security; provided, however, that no such
repurchase shall occur prior to the second Business Day following Agent's
receipt of Seller's written notice of its intent to effect such repurchase.
14. PAYMENT OF PRICE DIFFERENTIAL
The Price Differential shall be payable monthly on the Price
Differential Payment Date for the related Transaction. Payment of the Price
Differential to Buyer shall be made by wire transfer in immediately available
funds.
15. REGISTRATION OF PURCHASED SECURITIES; DISTRIBUTIONS ON PURCHASED SECURITIES
a. The Purchased Securities shall be registered in the name of Credit
Suisse First Boston Corporation.
b. All payments and distributions, whether in cash or in kind, made on
or with respect to the Purchased Securities will, unless otherwise agreed by
Buyer, be paid, delivered or transferred directly to Buyer (or any such
affiliate as Buyer shall designate). Provided that no Event of
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Default has occurred, Buyer may, in its sole discretion, use such Income to (a)
satisfy a Margin Deficit under Section 4 of the Agreement, (b) reduce the
Repurchase Price or (c) satisfy any other amounts due and owing to Buyer under
the Agreement. Any amounts in excess of the amounts in clauses (a), (b) and (c)
shall be transferred by Buyer to Seller promptly. Following the occurrence and
continuation of an Event of Default, Buyer shall retain all Income in an amount
not to exceed the sum of (i) the respective Repurchase Prices for the Purchased
Securities and (ii) all other amounts then due and owing by Seller to Buyer (it
being understood that any Income in excess of such sum shall be transferred to
Seller). If Seller shall receive any payment or distribution on or with respect
to the Purchased Securities, it shall hold such payment or distribution in trust
for the benefit of Buyer and shall forward such payment, at the direction of
Buyer, to be applied by Buyer to the then outstanding obligations.
16. TERMINATION
Notwithstanding any provisions of Paragraph 15 of the Master Repurchase
Agreement to the contrary, this Agreement and all Transactions outstanding
hereunder shall terminate automatically without any requirement for notice on
the date occurring three hundred sixty days after the date as of which this
Agreement is entered into; provided, however, that this Agreement and any
Transaction outstanding hereunder may be extended by mutual agreement of Buyer
and the Seller; and provided further, however, that no such party shall be
obligated to agree to any such extension.
17. CONFIDENTIALITY
Each of the parties acknowledges that the Agreement and the terms of
the Securities are confidential in nature and each such party agrees that,
unless otherwise directed by a court or regulatory entity of competent
jurisdiction or as may be required by federal or state law (which determination
as to federal or state law shall be based upon written advice of counsel), it
shall limit the distribution of such documents and the disclosure of such
information to its officers, employees, attorneys, accountants and agents as
required in order to conduct its business with the other parties hereto.
Notwithstanding the foregoing, Buyer shall be permitted to provide a copy of
this Agreement, and shall be permitted to describe the terms of the Securities,
in connection with the re-hypothecation of the Securities. Except as otherwise
provided in this Section 17, Seller shall not disclose the terms of this
Agreement to any Person other than Seller's counsel or accountants without the
prior written consent of Buyer, such consent not to be unreasonably withheld;
provided, however, that prior consent of Buyer shall not be required in the case
of any filing of this Agreement with the SEC or any other Governmental Authority
that is required under applicable law. This Section 17 shall not apply to
information which has entered the public domain through means other than a
breach of the foregoing covenant by the party seeking to distribute such
documents or which the other party has given written permission to disclose.
Buyer may disclose to any affiliate of Buyer any information concerning
the Purchased Securities (the "Purchased Securities Information") that is
furnished by Seller or any affiliate of Seller to Buyer. Except as otherwise
provided in this Section 17, Buyer shall not disclose to any affiliate of Buyer
any information concerning Seller or any affiliate of Seller other than
Purchased Securities Information (such information, the "Seller Information")
without the prior written consent of Onyx, such consent not to be unreasonably
withheld. Seller hereby
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acknowledges and agrees that any and all Purchased Securities Information and
Seller Information (collectively, the "Information") that is furnished by Seller
to Buyer and that is disclosed to any affiliate of Buyer in accordance with this
Section 17 may be used and relied upon by any such Buyer affiliate without any
liability to Seller, to the extent the Information is obtained by a Buyer entity
from another Buyer entity.
18. COUNTERPARTS
This 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.
19. PAYMENT OF EXPENSES
a. Seller shall pay, or shall cause Onyx to pay, to Buyer, at the date
of execution of the Agreement, all related fees and expenses incurred by Buyer
in connection with the preparation of this Agreement and the enforcement of
Buyer's rights thereunder; provided, however, that Seller shall not be required
to reimburse Buyer in an amount in excess of $20,000 for fees and expenses of
Buyer's counsel incurred in the preparation, reproduction and distribution of
the Agreement and any documents contemplated thereby or relating thereto. The
payment by Seller or Onyx of such fees and expenses to Buyer shall be by wire
transfer in immediately available funds. The effectiveness of the Agreement
shall be conditioned upon Buyer's receipt of such payment.
b. Notwithstanding the foregoing, Buyer shall pay to Buyer's counsel,
▇▇▇▇▇ & ▇▇▇▇ LLP, at the date of execution of the Agreement, a pre-arranged fee
of $30,000 together with the reasonable disbursements of such counsel incurred
in the preparation, reproduction and distribution of the Agreement and any
documents contemplated thereby or relating thereto. The payment of such fee
shall be by wire transfer in immediately available funds. The effectiveness of
the Agreement shall be conditioned upon the payment of such fee and the
aforementioned expenses.
20. RELIANCE
Seller further agrees that, notwithstanding any right of Buyer to
investigate fully the affairs of the Seller and notwithstanding any knowledge of
facts determined or determinable by Buyer, Buyer has the right to rely fully on
the representations, warranties, covenants and agreements of Seller contained in
the Agreement and upon the accuracy of any document, instrument, certificate or
exhibit given or delivered hereunder.
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21. LIMITATION OF DAMAGES
UNDER NO CIRCUMSTANCES SHALL ANY PARTY TO THIS AGREEMENT BE LIABLE FOR
PUNITIVE DAMAGES IN ANY WAY RELATED TO THIS AGREEMENT AND, EXCEPT AS PROVIDED IN
PARAGRAPH 11(g) OF THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL ANY PARTY BE
LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGES
SUFFERED OR INCURRED BY ANY OTHER PARTY HERETO, OR BY ANY OTHER PARTY, IN EACH
CASE ARISING UNDER THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES COULD HAVE
BEEN FORESEEN OR PREVENTED.
22. CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
EACH PARTY TO THIS AGREEMENT IRREVOCABLY AND UNCONDITIONALLY (A)
SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK
STATE COURT SITTING IN NEW YORK CITY, AND ANY APPELLATE COURT FROM ANY SUCH
COURT, SOLELY FOR THE PURPOSE OF ANY SUIT, ACTION OR PROCEEDING BROUGHT TO
ENFORCE ITS OBLIGATIONS HEREUNDER OR RELATING IN ANY WAY TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREUNDER AND (B) WAIVES, TO THE FULLEST EXTENT IT
MAY EFFECTIVELY DO SO, ANY DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE
OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT AND ANY RIGHT OF JURISDICTION ON
ACCOUNT OF ITS PLACE OF RESIDENCE OR DOMICILE.
EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ANY RIGHT THAT
IT MAY HAVE TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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23. INCORPORATION OF TERMS
The Master Repurchase Agreement as supplemented by this Annex I and by
Annex II shall be read, taken and construed as one and the same instrument.
CREDIT SUISSE FIRST BOSTON CREDIT SUISSE FIRST BOSTON
(EUROPE) LIMITED (EUROPE) LIMITED
By: By:
-------------------------------- ------------------------------
Name: Name:
Title: Title:
ONYX ACCEPTANCE FUNDING CORPORATION
By:
-------------------------------
Name:
Title:
ACCEPTED AND AGREED TO SOLELY IN
ITS CAPACITY AS AGENT:
CREDIT SUISSE FIRST BOSTON
CORPORATION
By:
-------------------------------
Name:
Title:
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ANNEX II
NAMES AND ADDRESSES FOR COMMUNICATIONS BETWEEN PARTIES
FOR ALL NOTICES TO BUYER AND/OR AGENT (OTHER THAN LEGAL NOTICES):
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Credit Risk Management
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
FOR LEGAL NOTICES TO BUYER AND/OR AGENT ONLY:
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Legal and Compliance Department
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
COPY TO:
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Managing Director - Legal and Compliance Department
FOR ALL NOTICES TO SELLER
ONYX ACCEPTANCE FUNDING CORPORATION
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
Copy to: ▇▇▇▇▇▇▇ ▇. Krahelski
Senior Vice President and General Counsel
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇