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EXHIBIT 4.1.5
SALE AND ASSIGNMENT AGREEMENT
between
ONYX ACCEPTANCE RESIDUAL FUNDING OWNER TRUST 2000-A
as Issuer,
ONYX ACCEPTANCE FINANCIAL CORPORATION
as Seller,
and
THE CHASE MANHATTAN BANK
as Indenture Trustee and as Trust Agent
Dated as of March 29, 2000
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TABLE OF CONTENTS
PAGE
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ARTICLE I - DEFINITIONS.................................................... 1
SECTION 1.01. DEFINITIONS............................................. 1
SECTION 1.02. USAGE OF TERMS.......................................... 3
SECTION 1.03. SECTION REFERENCES...................................... 3
ARTICLE II - CONVEYANCE OF UNDERLYING CERTIFICATES; REPRESENTATIONS
AND WARRANTIES OF THE SELLER.................................. 3
SECTION 2.01. CONVEYANCE OF UNDERLYING CERTIFICATES................... 3
SECTION 2.02. REPRESENTATIONS AND WARRANTIES OF THE SELLER............ 5
SECTION 2.03. NONPETITION COVENANT.................................... 7
ARTICLE III - THE SELLER................................................... 7
SECTION 3.01. LIABILITY OF SELLER..................................... 7
SECTION 3.02. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, SELLER; CERTAIN LIMITATIONS............. 7
SECTION 3.03. LIMITATION ON LIABILITY OF SELLER AND OTHERS............ 7
SECTION 3.04. SELLER NOT TO RESIGN.................................... 7
SECTION 3.05. SELLER MAY OWN NOTES AND TRUST CERTIFICATES............. 8
ARTICLE IV - TERMINATION................................................... 8
SECTION 4.01. OPTION PURCHASE OF ALL UNDERLYING CERTIFICATES;
SATISFACTION AND DISCHARGE OF THE INDENTURE............. 8
ARTICLE V - MISCELLANEOUS.................................................. 9
SECTION 5.01. AMENDMENT .............................................. 9
SECTION 5.02. PROTECTION OF TITLE TO TRUST ........................... 10
SECTION 5.03. COUNTERPARTS............................................ 10
SECTION 5.04. GOVERNING LAW........................................... 10
SECTION 5.05. NOTICES................................................. 10
SECTION 5.06. SEVERABILITY OF PROVISIONS.............................. 11
SECTION 5.07. ASSIGNMENT.............................................. 11
SECTION 5.08. THIRD PARTY BENEFICIARIES............................... 11
SECTION 5.09. HEADINGS ............................................... 11
SECTION 5.10. ASSIGNMENT BY ISSUER ................................... 12
SECTION 5.11. LIMITATION OF LIABILITY OF OWNER TRUSTEE................ 12
SCHEDULES
Schedule I - List of Underlying Certificates
Schedule II - List of General Beneficial Certificates
Schedule III - Information Related to Underlying Securitization Transactions
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This SALE AND ASSIGNMENT AGREEMENT, dated as of March 29, 2000 (this
"AGREEMENT"), is between Onyx Acceptance Residual Funding Owner Trust 2000-A
(the "ISSUER" or the "TRUST"), Onyx Acceptance Financial Corporation (the
"SELLER"), and The Chase Manhattan Bank, as the Indenture Trustee on behalf of
the Noteholders (in such capacity, the "INDENTURE TRUSTEE"), and as the Trust
Agent on behalf of the Owner Trustee (in such capacity, the "TRUST AGENT") .
In consideration of the premises and the mutual covenants herein contained,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
Whenever used in this Agreement, (i) capitalized terms that are not
otherwise defined herein have the meanings set forth in the Indenture (as
defined below) and (ii) the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
"AFFILIATE" of any specified Person means any other Person controlling or
controlled by or under common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" or "controlled" have meanings
correlative to the foregoing.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or other day
on which commercial banks located in California or New York are authorized or
required to be closed.
"CLOSING DATE" means March 29, 2000
"CONTRACT RIGHTS" means all monies remitted, received or otherwise
recovered in respect of the General Beneficial Certificates.
"DEPOSITOR" means the Seller in its capacity as Depositor under the Trust
Agreement, and its successors.
"GENERAL BENEFICIAL CERTIFICATES" means the Certificates representing 1% of
the residual interests issued by eight grantor trusts formed by the Seller
between February 1996 and December 1997 in connection with securitizations of
fixed rate motor vehicle retail installment sales contracts and installment loan
agreements as specifically identified in Schedule II, each of which is
registered in the name of the Seller.
"INDENTURE" means the Indenture, dated as of the date hereof, between the
Issuer and the Indenture Trustee.
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"INDENTURE TRUSTEE" means The Chase Manhattan Bank, not in its individual
capacity but solely as the Indenture Trustee under the Indenture, its successors
in interest and any successor Indenture Trustee under the Indenture.
"ISSUER" means Onyx Acceptance Residual Funding Owner Trust 2000-A and its
successors.
"ONYX" means Onyx Acceptance Corporation and its successors in interest.
"OPINION OF COUNSEL" means a written opinion of counsel (who may be counsel
to the Seller) acceptable to the Indenture Trustee, the Owner Trustee or the
Trust Agent, as the case may be.
"OWNER TRUSTEE" means Bankers Trust (Delaware), not in its individual
capacity but solely as the Owner Trustee under the Trust Agreement acting on
behalf of the holders of the Trust Certificates, its successors in interest and
any successor Owner Trustee under the Trust Agreement.
"OWNER TRUSTEE CORPORATE TRUST OFFICE" means the principal office of the
Owner Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of the execution of this Agreement is
located at E.A. Delle Donne Corporate Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Administration; or
at such other address as the Owner Trustee may designate from time to time by
notice to the Noteholders, the holders of the Trust Certificates, the
Administrator and the Seller.
"SELLER" means Onyx Acceptance Financial Corporation, in its capacity as
the Seller of the Underlying Certificates under this Agreement, and each
successor thereto (in the same capacity) pursuant to Section 3.02.
"TRUST" means the Issuer.
"TRUST AGENT" means The Chase Manhattan Bank, not in its individual
capacity but solely as the Trust Agent under the Trust Agreement and this
Agreement acting on behalf of the Owner Trustee, its successors in interest, and
any successor Trust Agent under such agreements.
"TRUST AGENT OFFICE" means the principal office of the Trust Agent, which
office at the date of the execution of this Agreement is located at ▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Capital Markets
Fiduciary Services: 2000-A; or at such other address as the Trust Agent may
designate from time to time by notice to the Noteholders and the Seller.
"TRUST AGREEMENT" means the Trust Agreement, dated as of March 29, 2000
among the Depositor, the Owner Trustee and the Trust Agent.
"TRUST PROPERTY" has the meaning set forth in Section 2.01 hereof.
"UCC" means the Uniform Commercial Code as in effect in the applicable
jurisdiction.
"UNDERLYING CERTIFICATES" means the certificates representing the residual
interests issued by fifteen trusts formed by the Seller between February 1996
and August 1999 in connection with securitizations of fixed rate motor vehicle
retail installment sales contracts and installment loan
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agreements as specifically identified on Schedule I, each of which shall be
registered in the name of or as designated by the Issuer.
Section 1.02. Usage of Terms.
With respect to all terms in this Agreement, the singular includes the
plural and the plural the singular; words importing any gender include the other
genders; references to "writing" include printing, typing, lithography and other
means of reproducing words in a visible form; references to agreements and other
contractual instruments include all amendments, modifications and supplements
thereto or any changes therein entered into in accordance with their respective
terms and not prohibited by this Agreement; references to Persons include their
permitted successors and assigns; and the term "including" means "including
without limitation."
Section 1.03. Section References.
All section references, unless otherwise indicated, shall be to Sections in
this Agreement.
ARTICLE II
CONVEYANCE OF UNDERLYING CERTIFICATES;
REPRESENTATIONS AND WARRANTIES OF THE SELLER
Section 2.01. Conveyance of Underlying Certificates.
(a) In consideration of the Issuer's delivery of the authenticated Notes to
or upon the order of the Seller, effective upon the Closing Date, the Seller
hereby sells, grants, transfers, conveys and assigns to the Issuer, without
recourse, all of the right, title and interest of the Seller in, to and under:
(i) the Underlying Certificates;
(ii) the Contract Rights;
(iii) all monies remitted, received or otherwise recovered in respect
of the Underlying Certificates on or after the Closing Date;
(iv) all amounts on deposit in the Collection Account, the Trust
Spread Account and the Trigger Spread Account; and
(v) all proceeds in any way delivered with respect to the foregoing,
all rights to payments with respect to the foregoing and all
rights to enforce the foregoing.
The foregoing items of property listed in this Section 2.01, are
collectively referred to as the "TRUST Property". The Seller also hereby agrees
that it shall deposit or cause to be deposited into the Collection Account any
and all distributions received by the Seller with respect to the Underlying
Certificates on or after the Closing Date.
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It is the intention of the Seller and the Issuer that the assignment and
transfer herein contemplated constitute (and shall be construed and treated for
all purposes as) a true and complete sale of the Trust Property, conveying good
title thereto free and clear of any liens and encumbrances, from the Seller to
the Issuer. However, in the event that such conveyance is deemed to be a pledge
to secure a loan (in spite of the express intent of the parties hereto that this
conveyance constitutes, and shall be construed and treated for all purposes, as
a true and complete sale), the Seller hereby grants to the Issuer, for the
benefit of the Noteholders, a first priority perfected security interest in all
of the Seller's right, title and interest in the Trust Property whether now
existing or hereafter created and all proceeds of the foregoing to secure the
loan deemed to be made in connection with such pledge and, in such event, this
Agreement shall constitute a security agreement under applicable law.
(b) As of the Closing Date, the Issuer acknowledges the conveyance to it of
the Trust Property from the Seller, including all right, title and interest of
the Seller in and to the Trust Property, receipt of which is hereby acknowledged
by the Issuer. Concurrently with such delivery and in exchange therefor, the
Issuer has pledged to the Indenture Trustee, for the benefit of the Noteholders,
the Trust Property (other than the Certificate Distribution Account and amounts
on deposit therein) and the Indenture Trustee, pursuant to the written
instructions of the Issuer, has executed and caused to be authenticated and
delivered the Notes to the Seller or its designee, upon the order of the Issuer.
(c) In connection with the sale of the Underlying Certificates and the
assignment of the Contract Rights pursuant to this Agreement, the Seller has
filed or caused to be filed with the Secretary of State of the State of
California a UCC-1 financing statement naming the Seller as debtor, naming the
Issuer as secured party, naming the Indenture Trustee, on behalf of the
Noteholders, as assignee, and including the Underlying Certificates and the
Contract Rights in the description of the collateral. In connection with the
pledge of the Underlying Certificates and the Contract Rights pursuant to the
Indenture, the Trust has filed with the offices of the Secretary of State of the
State of Delaware UCC-1 financing statements naming the Trust as debtor and the
Indenture Trustee, on behalf of the Noteholders, as secured party. The grant of
a security interest to the Indenture Trustee and the rights of the Indenture
Trustee in the Underlying Certificates and the Contract Rights shall be governed
by the Indenture.
(d) From time to time, the Seller shall cause to be taken such actions as
are necessary to continue the perfection of the respective interests of the
Trust and the Indenture Trustee in the Underlying Certificates and their
proceeds (other than, as to such priority, any statutory lien arising by
operation of law after the Closing Date which is prior to such interest),
including, without limitation, the filing of financing statements, amendments
thereto or continuation statements and the making of notations on records or
documents of title.
(e) If any change in the name, identity or corporate structure of the
Seller or Onyx or the relocation of the chief executive office of either of them
would make any financing or continuation statement or notice of lien filed under
this Agreement or the other Basic Documents misleading within the meaning of
applicable provisions of the UCC or any title statute, the Seller, within the
time period required by applicable law, shall file such financing statements or
amendments as may be required to preserve and protect the interests of the
Trust, the Indenture Trustee and the Noteholders in the Underlying Certificates
and the proceeds thereof. Promptly thereafter, the Seller shall deliver to the
Owner Trustee and the Indenture Trustee an Opinion of Counsel stating that, in
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the opinion of such counsel, all financing statements or amendments necessary
fully to preserve and protect the interests of the Trust, the Indenture Trustee
and the Noteholders in the Underlying Certificates and the proceeds thereof have
been filed, and reciting the details of such filings.
(f) During the term of this Agreement, the Seller shall maintain its chief
executive office in one of the states of the United States.
(g) The Seller shall pay all reasonable costs and disbursements in
connection with the perfection and the maintenance of perfection, as against all
third parties, of the Indenture Trustee's right, title and interest in and to
the Underlying Certificates and the proceeds thereof.
Section 2.02. Representations and Warranties of the Seller.
The Seller hereby makes the following representations and warranties on
which the Issuer is deemed to have relied in acquiring the Underlying
Certificates. Such representations and warranties speak as of the execution and
delivery of this Agreement and as of the Closing Date, but shall survive the
sale, transfer and assignment of the Underlying Certificates to the Issuer and
the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) As to the Seller:
(i) The Seller is duly organized and validly existing as a
corporation organized and existing and in good standing under the
laws of the State of Delaware, with power and authority to own
its properties and to conduct its business and had at all
relevant times, and has, power, authority, and legal right to
acquire and own the Underlying Certificates.
(ii) The Seller is duly qualified to do business as a foreign
corporation in good standing, and shall have obtained all
necessary licenses and approvals in all jurisdictions in which
the ownership or lease of property or the conduct of its business
requires such qualifications.
(iii) The Seller has the power and authority to execute and deliver
this Agreement and to carry out its terms; the Seller has full
power and authority to sell and assign the property to be sold
and assigned to and deposited with the Issuer and has duly
authorized such sale and assignment to the Issuer by all
necessary corporate action; and the execution, delivery, and
performance of this Agreement has been duly authorized by the
Seller by all necessary corporate action.
(iv) This Agreement constitutes (A) a valid sale, transfer, and
assignment of the Underlying Certificates, enforceable against
creditors of and purchasers from the Seller and (B) a legal,
valid, and binding obligation of the Seller enforceable in
accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, or other
similar laws affecting the enforcement of creditors' rights in
general and by general principles of equity, regardless of
whether such enforceability shall be considered in a proceeding
in equity or at law.
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(v) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof shall not
conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of
time) a default under, the certificate of incorporation or bylaws
of the Seller, or any indenture, agreement, or other instrument
to which the Seller is a party or by which it shall be bound; nor
result in the creation or imposition of any lien upon any of the
properties of the Seller pursuant to the terms of any such
indenture, agreement, or other instrument (other than pursuant to
the Basic Documents to which the Seller is a party); nor violate
any law or any order, rule, or regulation applicable to the
Seller of any court or of any federal or state regulatory body,
administrative agency, or other governmental instrumentality
having jurisdiction over the Seller or its properties.
(vi) To the Seller's best knowledge after due inquiry, there are no
proceedings or investigations pending, or threatened, before any
court, regulatory body, administrative agency, or other
governmental instrumentality having jurisdiction over the Seller
or its properties: (A) asserting the invalidity of this
Agreement, the Notes or the Trust Certificates, (B) seeking to
prevent the issuance of the Notes or the Trust Certificates or
the consummation of any of the transactions contemplated by this
Agreement, (C) seeking any determination or ruling that might
materially and adversely affect the performance by the Seller of
its obligations under, or the validity or enforceability of, this
Agreement, the Notes or the Trust Certificates, or (D) naming the
Seller which might adversely affect the federal income tax
attributes of the Notes.
(b) The aggregate outstanding balance of the contracts underlying the
Underlying Certificates and Contract Rights, the aggregate outstanding balance
of the senior securities related to the Underlying Certificates and Contract
Rights and the balance of the related spread accounts as of March 15, 2000, as
set forth in Schedule III hereto, are true and correct as of such date.
(c) None of the foregoing representations and warranties shall be construed
as, and the Seller is specifically not making, any representations and
warranties regarding the collectibility of the contracts or the future
performance of the contracts underlying the Underlying Certificates and Contract
Rights.
(d) The Seller has not prepared any financial statement which accounts for
the transfer of the Trust Property hereunder to the Issuer in any manner other
than as a sale of the Trust Property by it to the Issuer, and the Seller has not
in any other non-income tax respect (including, but not limited to, for
accounting purposes) accounted for or treated the transfer of the Trust Property
hereunder in any manner other than as a sale and absolute assignment to the
Issuer of the Seller's full right, title and ownership interest in the Trust
Property to the Issuer.
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Section 2.03. Nonpetition Covenant.
The Seller shall not petition or otherwise invoke the process of any court
or government authority for the purpose of commencing or sustaining a case
against the Issuer under any federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Issuer or any substantial part of
its property, or ordering the winding up or liquidation of the affairs of the
Issuer.
ARTICLE III
THE SELLER
Section 3.01. Liability of Seller
The Seller shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Seller under this Agreement.
Section 3.02. Merger or Consolidation of, or Assumption of the Obligations
of, Seller; Certain Limitations.
The Seller shall not consolidate with or merge into any other corporation
or convey, transfer or lease substantially all of its assets as an entirety to
any Person unless the corporation formed by such consolidation or into which the
Seller has merged or the Person which acquires by conveyance, transfer or lease
substantially all the assets of the Seller as an entirety, can lawfully perform
the obligations of the Seller hereunder and executes and delivers to the Issuer,
the Trust Agent and the Indenture Trustee an agreement in form and substance
reasonably satisfactory to the Issuer, the Trust Agent and the Indenture
Trustee, which contains an assumption by such successor entity of the due and
punctual performance and observance of each covenant and condition to be
performed or observed by the Seller under this Agreement.
Section 3.03. Limitation on Liability of Seller and Others.
The Seller and any director or officer or employee or agent of the Seller
may rely in good faith on any document of any kind, prima facie properly
executed and submitted by any Person respecting any matters arising hereunder.
The Seller shall not be under any obligation to appear in, prosecute or defend
any legal action that shall not be incidental to its obligations under this
Agreement, and that in its opinion may involve it in any expense or liability.
Section 3.04. Seller Not to Resign.
Subject to the provisions of Section 3.02, the Seller shall not resign from
the obligations and duties hereby imposed on it as Seller under this Agreement.
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Section 3.05. Seller May Own Notes and Trust Certificates.
The Seller and any Affiliate thereof may in its individual or any other
capacity become the owner or pledgee of Notes or Trust Certificates with the
same rights as it would have if it were not the Seller or an Affiliate thereof,
except as expressly provided herein or in any Basic Document. Notes or Trust
Certificates so owned by or pledged to the Seller or such Affiliate shall have
an equal and proportionate benefit under the provisions of this Agreement,
without preference, priority or distinction as among all of the Notes of the
same Class or Trust Certificates, as the case may be.
ARTICLE IV
TERMINATION
Section 4.01. Optional Purchase of All Trust Property; Satisfaction and
Discharge of the Indenture.
(a) On each Quarterly Payment Date as of which the Outstanding Amount of
the Notes is 10% or less of the initial Outstanding Amount of the Notes, the
Seller shall have the option to purchase the remaining Trust Property from the
Trust. Notice of the exercise of such option shall be given by the Seller to the
Issuer, the Trust Agent and the Indenture Trustee not later than the 10th day
prior to the specified Quarterly Payment Date and not earlier than the 15th day
of the month prior to the month of the specified Quarterly Payment Date. To
exercise such option, the Seller shall pay to the Indenture Trustee for the
benefit of the Noteholders, by deposit in the Collection Account on the Business
Day immediately preceding the related Quarterly Payment Date, the sum of (x)
Outstanding Amount of the Notes plus (y) accrued and unpaid interest thereon
through the related Quarterly Payment Date plus (z) all amounts due to the
Indenture Trustee, Trust Agent and Owner Trustee.
(b) Notice of any termination of the Trust shall be given by the Seller to
the Owner Trustee and the Trust Agent and the Indenture Trustee as soon as
practicable after the Seller has received notice thereof. Such notice shall
conform to the notice described in Section 9.01(c) of the Trust Agreement.
(c) Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, the holders of
the Trust Certificates will succeed to the rights of the Noteholders hereunder
and the Owner Trustee and, on its behalf, the Trust Agent, will succeed to the
rights of, and assume the obligations of, the Indenture Trustee pursuant to this
Agreement.
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ARTICLE V
MISCELLANEOUS
Section 5.01. Amendment.
(a) This Agreement may be amended by the Issuer, the Seller, the Indenture
Trustee and the Trust Agent, collectively, without the consent of any
Noteholders, to cure any ambiguity, to correct or supplement any provisions in
this Agreement which are inconsistent with the provisions herein, or to make any
other provisions with respect to matters or questions arising under this
Agreement which are not inconsistent with the provisions of this Agreement;
provided, however, that any such action shall not materially and adversely
affect the interests of any Noteholder; and provided, further, that any such
amendment shall be deemed not to materially and adversely affect the interests
of any Noteholder if the Person requesting the amendment obtains a letter from
the Rating Agency to the effect that such amendment would not result in a
downgrading or withdrawal of the ratings then assigned to the applicable Notes
by such Rating Agency.
(b) This Agreement may also be amended by the Issuer, the Seller, the
Indenture Trustee and the Trust Agent, with the consent of the holders of Notes
evidencing in the aggregate not less than 51% of the Outstanding Amount of the
Highest Priority Class then outstanding for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement, or of modifying in any manner the rights of the Noteholders;
provided, however, that no such amendment shall (i) increase or reduce in any
manner the amount of, or accelerate or delay the timing of distributions that
shall be required to be made for the benefit of the Noteholders, or (ii) reduce
the aforesaid percentage of the outstanding amount of the Notes the Noteholders
of which are required to consent to any such amendment, without the consent of
all Noteholders.
(c) Promptly after the execution of any such amendment or consent, the
Trust Agent and the Indenture Trustee, as the case may be, shall furnish the
written notification of the substance of such amendment or consent to each
Noteholder.
(d) It shall not be necessary for the consent of Noteholders pursuant to
Section 5.01(b) to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization by Noteholders of the execution thereof shall be subject to such
reasonable requirements as the Trust Agent or the Indenture Trustee may
prescribe. Any consent by a Noteholder to an amendment of the Agreement shall be
conclusive and binding on such Noteholder and upon all future Noteholders of
such Note and of any Note issued upon the transfer thereof or in exchange
thereof or in lieu thereof whether or not notation of such consent is made upon
such Note.
(e) The Trust Agent and the Indenture Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Trust Agent's or
the Indenture Trustee's own rights, duties or immunities under this Agreement or
otherwise and any such amendment shall be unenforceable in its entirety absent
the execution of such amendment by the Trust Agent and the Indenture Trustee.
Prior to entering into any amendment to this Agreement, the Indenture Trustee
and Trust Agent shall be entitled to receive and rely upon an Opinion of Counsel
from counsel to the Seller to the effect that such amendment is authorized and
permitted under the Basic Documents.
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Section 5.02. Protection of Title to Trust.
(a) The Seller shall execute and file such financing statements and cause
to be executed and filed such continuation statements, all in such manner and in
such places as may be required by law fully to preserve, maintain and protect
the interest of the Issuer, the Noteholders, the Owner Trustee, the Indenture
Trustee and the Trust Agent in the Underlying Certificates and in the proceeds
thereof. The Seller shall deliver (or cause to be delivered) to the Trust Agent
and the Indenture Trustee file-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such filing.
(b) The Seller shall not change its name, identity or corporate structure
in any manner that would, could or might make any financing statement or
continuation statement filed in accordance with Section 5.02(a) seriously
misleading within the meaning of Section 9-402(7) of the UCC, unless it shall
have given, the Trust Agent and the Indenture Trustee at least 60 days' prior
written notice thereof.
(c) The Seller shall give the Trust Agent and the Indenture Trustee at
least 60 days' prior written notice of any relocation of the principal executive
office of the Seller if as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new financing
statement.
Section 5.03. Counterparts.
For the purpose of facilitating the execution of this Agreement and for
other purposes, this Agreement may be executed simultaneously in any number of
counterparts, each of which counterpart shall be deemed to be an original, and
all of which counterparts shall constitute but one and the same instrument.
Section 5.04. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF CALIFORNIA AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES UNDER THE
AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, EXCEPT THAT THE
DUTIES OF THE TRUST AGENT AND THE INDENTURE TRUSTEE SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.
Section 5.05. Notices.
All demands, notices and communications under this Agreement shall be in
writing, personally delivered or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt in the case
of
(i) the Seller, at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: President, facsimile (▇▇▇) ▇▇▇-▇▇▇▇;
(ii) the Issuer or the Owner Trustee, at the Owner Trustee Corporate
Trust Office (with, in the case of the Issuer, a copy to the
Seller);
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(iii) the Trust Agent, at the Trust Agent Office;
(iv) the Indenture Trustee, at the Corporate Trust Office; and
(v) Standard & Poor's, to Standard & Poor's Ratings Services, ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset Backed
Surveillance Department;
or, as to each of the foregoing, at such other address as shall be designated by
written notice to the other parties. Any notice required or permitted to be to
be mailed to a Noteholder shall be given by first class mail, postage prepaid,
at the address of such Noteholder as shown in the Note Register. Any notice so
mailed within the time prescribed herein shall be conclusively presumed to have
been duly given, whether or not such Noteholder shall receive such notice.
Section 5.06. Severability of Provisions.
If the covenants, agreements, provisions or terms of this Agreement shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect the
validity or enforceability of the other provisions of this Agreement or of the
Notes or the rights of the related Noteholders.
Section 5.07. Assignment.
Notwithstanding anything to the contrary contained herein, except as
provided in Section 3.02, the Seller may not transfer or assign all, or a
portion of, its rights, obligations and duties under this Agreement unless such
transfer or assignment (i) (A) will not result in a reduction or withdrawal by
the Rating Agency of the rating then assigned by it to the Class A Notes and (B)
the Issuer and the Indenture Trustee have consented to such transfer or
assignment, or (ii) the Issuer, the Indenture Trustee and Noteholders of each
Class evidencing not less than 51% of the Outstanding Amount of Notes of such
Class consent thereto. In the event of a transfer or assignment pursuant to
clause (ii) above, the Rating Agency shall be provided with notice of such
transfer or assignment.
Section 5.08. Third Party Beneficiaries.
Except as otherwise specifically provided herein, the parties to this
Agreement hereby manifest their intent that no third party shall be deemed a
third party beneficiary of this Agreement.
Section 5.09. Headings.
The headings of the various Articles and Sections herein are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.
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Section 5.10. Assignment by Issuer.
The Seller hereby acknowledges and consents to any mortgage, pledge,
assignment and grant of a security interest by the Issuer to the Indenture
Trustee pursuant to the Indenture for the benefit of the Noteholders of all
right, title and interest of the Issuer in, to and under the Underlying
Certificates and/or the assignment of any or all of the Issuer's rights and
obligations hereunder to the Indenture Trustee.
Section 5.11. Limitation of Liability of Owner Trustee.
Notwithstanding anything contained herein to the contrary, this instrument
has been executed by Bankers Trust (Delaware) not in its individual capacity but
in its capacity as Owner Trustee of the Issuer and by The Chase Manhattan Bank
not in its individual capacity but in its capacity as Indenture Trustee and
Trust Agent, and in no event shall Bankers Trust (Delaware) in its individual
capacity, The Chase Manhattan Bank in its individual capacity or any beneficial
owner of the Issuer have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder, as to all of
which recourse shall be had solely to the assets of the Issuer.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
ONYX ACCEPTANCE RESIDUAL FUNDING
OWNER TRUST 2000-A, as Issuer
By: Bankers Trust (Delaware), not in
its individual capacity but solely
as Owner Trustee
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
ONYX ACCEPTANCE FINANCIAL
CORPORATION, as Seller
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
THE CHASE MANHATTAN BANK, not in its
individual capacity but solely as
Indenture Trustee and as Trust Agent
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
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SCHEDULE I
List of Underlying Certificates
Certificate
Certificate Number
----------- -----------
Spread Account Trust 1996-1 Limited Beneficial Certificate LBC-2
Spread Account Trust 1996-2 Limited Beneficial Certificate LBC-2
Spread Account Trust 1996-3 Limited Beneficial Certificate LBC-2
Spread Account Trust 1996-4 Limited Beneficial Certificate LBC-2
Spread Account Trust 1997-1 Limited Beneficial Certificate LBC-2
Spread Account Trust 1997-2 Limited Beneficial Certificate LBC-2
Spread Account Trust 1997-3 Limited Beneficial Certificate LBC-2
Spread Account Trust 1997-4 Limited Beneficial Certificate LBC-4
Spread Account Trust 1998-1 Beneficial Certificate BC-2
Onyx Acceptance Owner Trust 1998-A Residual Interest Instrument R-2
Onyx Acceptance Owner Trust 1998-B Residual Interest Instrument R-3
Onyx Acceptance Owner Trust 1998-C Residual Interest Instrument R-2
Onyx Acceptance Owner Trust 1999-A Residual Interest Instrument R-2
Onyx Acceptance Owner Trust 1999-B Residual Interest Instrument R-2
Onyx Acceptance Owner Trust 1999-C Residual Interest Instrument R-2
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SCHEDULE II
List of General Beneficial Certificates
Certificate
Certificate Number
----------- -----------
Spread Account Trust 1996-1 General Beneficial Certificate GBC-1
Spread Account Trust 1996-2 General Beneficial Certificate GBC-1
Spread Account Trust 1996-3 General Beneficial Certificate GBC-1
Spread Account Trust 1996-4 General Beneficial Certificate GBC-1
Spread Account Trust 1997-1 General Beneficial Certificate GBC-1
Spread Account Trust 1997-2 General Beneficial Certificate GBC-1
Spread Account Trust 1997-3 General Beneficial Certificate GBC-1
Spread Account Trust 1997-4 General Beneficial Certificate GBC-1
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SCHEDULE III
Information Related to Underlying Securitization Transactions
Aggregate Aggregate Balance in
Outstanding Balance Outstanding Balance Related Spread
of Related Contracts of Senior Securities Accounts as of
Transaction as of March 15, 2000 as of March 15, 2000 March 15, 2000
----------- -------------------- -------------------- --------------
Onyx Acceptance Grantor Trust 1996-1 3,303,011.67 3,303,011.67 1,004,999.13
Onyx Acceptance Grantor Trust 1996-2 6,028,487.29 6,028,487.29 850,133.18
Onyx Acceptance Grantor Trust 1996-3 12,705,683.60 12,705,683.60 1,200,007.86
Onyx Acceptance Grantor Trust 1996-4 14,420,193.34 14,420,193.34 1,000,000.00
Onyx Acceptance Grantor Trust 1997-1 16,473,714.80 16,473,714.80 900,000.00
Onyx Acceptance Grantor Trust 1997-2 26,725,478.41 26,725,478.41 1,216,790.91
Onyx Acceptance Grantor Trust 1997-3 40,854,314.97 40,854,314.97 1,496,000.00
Onyx Acceptance Grantor Trust 1997-4 52,942,651.94 52,942,651.94 2,075,000.00
Onyx Acceptance Grantor Trust 1998-1 64,113,348.03 64,113,348.03 1,730,000.00
Onyx Acceptance Owner Trust 1998-A 90,346,663.57 87,558,155.09 2,087,593.15
Onyx Acceptance Owner Trust 1998-B 127,190,724.74 124,208,623.18 2,500,002.85
Onyx Acceptance Owner Trust 1998-C 161,384,102.44 157,531,339.80 2,800,000.00
Onyx Acceptance Owner Trust 1999-A 194,909,925.38 194,909,925.38 3,100,000.00
Onyx Acceptance Owner Trust 1999-B 255,623,677.89 255,623,677.89 3,500,000.00
Onyx Acceptance Owner Trust 1999-C 328,046,292.47 328,046,292.47 7,636,862.06
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