EXHIBIT 10.120
SALE AND ASSIGNMENT AGREEMENT
between
ONYX ACCEPTANCE RESIDUAL FUNDING OWNER TRUST 2002-A
as Issuer,
ONYX ACCEPTANCE FINANCIAL CORPORATION
as Seller,
and
JPMORGAN CHASE BANK
as Indenture Trustee and as Trust Agent
Dated as of March 15, 2002
TABLE OF CONTENTS
PAGE
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......................... 8
SECTION 3.04. SELLER NOT TO RESIGN................................................. 8
SECTION 3.05. SELLER MAY OWN NOTES AND TRUST CERTIFICATES.......................... 8
ARTICLE IV - TERMINATION........................................................................ 8
SECTION 4.01. OPTIONAL PURCHASE OF ALL TRUST PROPERTY; SATISFACTION
AND DISCHARGE OF THE INDENTURE....................................... 8
ARTICLE V - MISCELLANEOUS....................................................................... 9
SECTION 5.01. AMENDMENT............................................................ 9
SECTION 5.02. PROTECTION OF TITLE TO TRUST PROPERTY................................ 10
SECTION 5.03. COUNTERPARTS......................................................... 10
SECTION 5.04. GOVERNING LAW........................................................ 10
SECTION 5.05. NOTICES.............................................................. 11
SECTION 5.06. SEVERABILITY OF PROVISIONS........................................... 11
SECTION 5.07. ASSIGNMENT........................................................... 11
SECTION 5.08. THIRD PARTY BENEFICIARIES............................................ 12
SECTION 5.09. HEADINGS............................................................. 12
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 - Information Related to Underlying Securitization Transactions
i
This SALE AND ASSIGNMENT AGREEMENT, dated as of March 15, 2002 (this
"AGREEMENT"), is between Onyx Acceptance Residual Funding Owner Trust 2002-A
(the "ISSUER" or the "TRUST"), Onyx Acceptance Financial Corporation (the
"SELLER"), and JPMorgan Chase 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 15, 2002
"DEPOSITOR" means the Seller in its capacity as Depositor under the Trust
Agreement, and its successors.
"INDENTURE" means the Indenture, dated as of the date hereof, between the
Issuer and the Indenture Trustee.
"INDENTURE TRUSTEE" means JPMorgan Chase 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 2002-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 JPMorgan Chase 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: Institutional
Trust Services: 2002-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 15, 2002
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 nine trusts formed by the Seller between October 1999 and
October 2001 in connection with securitizations of fixed rate motor vehicle
retail installment sales contracts and installment loan agreements as
specifically identified on Schedule I, each of which shall be registered in the
name of or as designated by the Issuer.
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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 issuance of the Trust Certificate to Seller
and the net proceeds from the initial sale of the authenticated Notes 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) an amount equal to all monies remitted, received or
otherwise recovered in respect of the Underlying
Certificates from January 15, 2002 through and including
the Closing Date and the right to receive all monies
remitted, received or otherwise recovered in respect of
the Underlying Certificates after the Closing Date; and
(iii) 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 an
amount of money equal to any and all distributions received by the Seller with
respect to the Underlying Certificates from January 15, 2002 through and
including the Closing Date and any and all distributions received by the Seller
with respect to the Underlying Certificates 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 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 pursuant to
this Agreement, the Seller has filed or caused to be filed with the Secretary of
State of the State of Delaware 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 Trust Property in the
description of the collateral. In connection with the pledge of the Trust
Property 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 Trust Property 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 Trust Property 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 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, or upon the
relocation of the state of organization of the Seller, 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 Trust Property. Promptly
thereafter, the Seller shall deliver to the Owner Trustee and the Indenture
Trustee an Opinion of Counsel stating that, in the opinion of such counsel, all
financing statements or amendments necessary fully
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to preserve and protect the interests of the Trust, the Indenture Trustee and
the Noteholders in the Trust Property 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 Trust Property 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 and on which the Indenture Trustee is deemed to have relied in
entering into this Agreement. 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 Trust Property, 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
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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.
(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) There are no proceedings or investigations pending, or,
to the Seller's best knowledge after due inquiry,
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 Trust Agreement, the Indenture, 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.
(vii) Immediately prior to the sale and assignment to the
Issuer, and following the transfer by Onyx Acceptance
Funding Corporation to Onyx and then to the Seller, the
Seller will be the sole owner of the Underlying
Certificates, free and clear of any and all liens,
pledges, charges of security interests of any nature.
(viii) the Seller's location for purposes of the Uniform
Commercial Code in effect in the State of New York is
the State of Delaware, the Seller's state of
incorporation.
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(b) The aggregate outstanding balance of the contracts underlying the
Underlying Certificates, the aggregate outstanding balance of the senior
securities related to the Underlying Certificates and the balance of the related
spread accounts as of February 15, 2002, as set forth in Schedule II 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.
(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.
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
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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.
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 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 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 20th day prior to the
specified Payment Date and not earlier than the 15th day of the month prior to
the month of the specified 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 Payment Date, the sum of (x) Outstanding Amount of the Notes plus (y)
accrued and unpaid interest thereon (including, to the extent permitted by
applicable law, interest accrued on any interest accrued but not timely paid) up
to but excluding the related Payment Date plus (z) all other amounts payable in
connection with the
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satisfaction and discharge of the Indenture and 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.
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, with the consent of MBIA Insurance
Corporation but 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 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 MBIA Insurance
Corporation and the holders of Notes evidencing in the aggregate not less than
51% of the Outstanding Amount of the Notes 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 a copy
of such amendment or consent to each Noteholder.
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(d) 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.
SECTION 5.02. PROTECTION OF TITLE TO TRUST PROPERTY.
(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 Trust Property. 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 9-508(b) of the UCC or change its
jurisdiction of organization, unless it shall have given, the Trust Agent and
the Indenture Trustee at least 60 days' prior written notice thereof.
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 (I) THE
DUTIES OF THE TRUST AGENT AND THE INDENTURE TRUSTEE SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK AND (II) THE PARTIES HERETO AGREE THAT TO
EFFECTUATE THEIR INTENT THAT THIS AGREEMENT EVIDENCES A SALE, THE DETERMINATION
OF WHETHER
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THE TRANSFER BY THE SELLER OF THE UNDERLYING CERTIFICATES CONSTITUTES A SALE
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE.
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);
(iii) the Trust Agent, at the Trust Agent Office;
(iv) the Indenture Trustee, at the Corporate Trust Office;
and
(v) ▇▇▇▇▇'▇ Investors Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ABS Monitoring 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 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 evidencing not less
than 51% of the Outstanding Amount of Notes consent thereto. In the event of a
transfer or assignment
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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.
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 Trust Property
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 JPMorgan Chase 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, JPMorgan Chase 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 2002-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:
JPMORGAN CHASE 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
----------- -----------
Onyx Acceptance Owner Trust 1999-D Residual Interest Instrument R-3
Onyx Acceptance Owner Trust 2000-A Residual Interest Instrument R-3
Onyx Acceptance Owner Trust 2000-B Residual Interest Instrument R-6
Onyx Acceptance Owner Trust 2000-C Residual Interest Instrument R-3
Onyx Acceptance Owner Trust 2000-D Residual Interest Instrument R-5
Onyx Acceptance Owner Trust 2001-A Residual Interest Instrument R-5
Onyx Acceptance Owner Trust 2001-B Residual Interest Instrument R-3
Onyx Acceptance Owner Trust 2001-C Residual Interest Instrument R-5
Onyx Acceptance Owner Trust 2001-D Residual Interest Instrument R-4
SCHEDULE II
Information Related to Underlying Securitization Transactions
Aggregate Outstanding Aggregate Outstanding Balance in
Balance Balance Related
Securitization of Related Contracts of Senior Securities Spread Account
Transaction as of February 15, 2002 as of February 15, 2002 as of February 15, 2002
----------- ----------------------- ----------------------- -----------------------
Onyx Acceptance Owner Trust 1999-D $128,237,399.95 $128,237,401.26 $ 4,195,991.96
Onyx Acceptance Owner Trust 2000-A $169,090,241.37 $169,090,241.37 $10,620,438.72
Onyx Acceptance Owner Trust 2000-B $203,574,176.49 $203,574,175.51 $ 7,220,055.39
Onyx Acceptance Owner Trust 2000-C $228,643,882.59 $228,643,882.59 $ 6,834,983.46
Onyx Acceptance Owner Trust 2000-D $230,564,440.67 $230,564,440.67 $ 8,000,000.00
Onyx Acceptance Owner Trust 2001-A $253,915,934.46 $253,915,934.46 $ 9,800,000.00
Onyx Acceptance Owner Trust 2001-B $289,959,250.61 $289,959,250.61 $ 8,000,000.00
Onyx Acceptance Owner Trust 2001-C $321,278,210.15 $321,278,209.70 $ 8,000,000.00
Onyx Acceptance Owner Trust 2001-D $351,688,930.03 $351,688,928.32 $ 7,231,406.34
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