<PAGE> 1
This filing is made pursuant to Rule
424(b)(5) under the Securities Act of
1933 in connection with Registration
No. 333-92245
PROSPECTUS SUPPLEMENT
(To Prospectus dated February 23, 2000)
[ONYX LOGO]
$440,000,000
ONYX ACCEPTANCE OWNER TRUST 2000-C
Issuer
ONYX ACCEPTANCE FINANCIAL CORPORATION,
Seller
ONYX ACCEPTANCE CORPORATION,
Servicer
CONSIDER CAREFULLY THE RISK FACTORS BEGINNING ON PAGE S-11 IN THIS PROSPECTUS
SUPPLEMENT AND PAGE 6 IN THE ACCOMPANYING PROSPECTUS. The notes are auto loan
backed notes issued by the trust. The notes do not represent interests in or
obligations of Onyx Acceptance Corporation or any of its affiliates.
The trust will issue the following notes being offered by this prospectus
supplement:
<TABLE>
<CAPTION>
PRINCIPAL INTEREST PRICE TO UNDERWRITING PROCEEDS TO THE
BALANCE RATE PUBLIC(1) DISCOUNT(2) SELLER(1)(2)(3)
------------ -------- --------------- ------------- ---------------
<S> <C> <C> <C> <C> <C>
Class A-1 Notes........... $ 74,000,000 6.79 % 100.00000% 0.1500% 99.85000%
Class A-2 Notes........... $115,000,000 7.05 % 99.99421% 0.2400% 99.75421%
Class A-3 Notes........... $132,000,000 7.16 % 99.99800% 0.2700% 99.72800%
Class A-4 Notes........... $119,000,000 7.26 % 99.97897% 0.3000% 99.67897%
Total..................... $440,000,000 $439,965,675.80 $1,100,400.00 $438,865,275.80
</TABLE>
(1) Plus accrued interest, if any, calculated from July 27, 2000.
(2) See "Underwriting" in this prospectus supplement.
(3) Before deducting expenses payable by the Seller estimated to be $475,000.
------------------
Interest and principal on the notes will be payable on the 15th day of each
month. If the 15th day of a month is not a business day, then the payment will
be made on the next business day. The first payment will be due on August 15,
2000.
MBIA Insurance Corporation will unconditionally and irrevocably guarantee, to
the extent described in this prospectus supplement, the timely payment of
interest and the ultimate payment of principal on the notes.
[MBIA Logo]
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS SUPPLEMENT IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
We expect that delivery of the notes will be made in book-entry form only
through the facilities of The Depository Trust Company and Clearstream,
Luxembourg and the Euroclear System against payment in immediately available
funds on or about July 27, 2000.
------------------
SALOMON SMITH BARNEY
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON
MERRILL LYNCH & CO.
THE DATE OF THIS PROSPECTUS SUPPLEMENT IS JULY 20, 2000.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS PROSPECTUS SUPPLEMENT AND THE
ACCOMPANYING PROSPECTUS....................................................................S-3
SUMMARY OF TERMS...........................................................................S-4
RISK FACTORS..............................................................................S-11
THE TRUST.................................................................................S-19
General...........................................................................S-19
The Owner Trustee and Trust Agent.................................................S-20
Trust Property....................................................................S-20
THE ONYX PORTFOLIO OF MOTOR VEHICLE CONTRACTS.............................................S-21
Purchase, Origination and Servicing of Motor Vehicle Contracts....................S-21
Delinquency and Loan Loss
Information................................................................S-21
THE CONTRACTS.............................................................................S-22
MATURITY AND PREPAYMENT CONSIDERATIONS....................................................S-27
USE OF PROCEEDS...........................................................................S-27
DESCRIPTION OF THE NOTES..................................................................S-28
Payments of Interest..............................................................S-28
Payments of Principal.............................................................S-28
Mandatory Partial Redemption......................................................S-29
Optional Redemption...............................................................S-30
The Indenture Trustee.............................................................S-30
Indenture Events of Default.......................................................S-30
DESCRIPTION OF THE SALE AND SERVICING AGREEMENT...........................................S-30
Sale and Assignment of the Contracts..............................................S-30
The Accounts......................................................................S-32
Payments on Contracts.............................................................S-33
Distributions.....................................................................S-34
Payment Priorities of the Notes; The Spread Account...............................S-36
Withdrawals from the Spread Account...............................................S-37
Servicing Fee.....................................................................S-38
Servicer Default..................................................................S-38
Rights Upon Servicer Default......................................................S-38
Waiver of Servicer Default........................................................S-39
Termination.......................................................................S-39
Payment in Full of Notes..........................................................S-40
Certain Matters Relating to the Insurer...........................................S-40
THE POLICY................................................................................S-40
Insurer Default...................................................................S-42
DESCRIPTION OF THE INSURER................................................................S-43
CERTAIN FEDERAL INCOME TAX CONSEQUENCES...................................................S-46
ERISA CONSIDERATIONS......................................................................S-46
UNDERWRITING..............................................................................S-47
LEGAL MATTERS.............................................................................S-49
EXPERTS...................................................................................S-49
REPORTS TO NOTEHOLDERS....................................................................S-49
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE...........................................S-50
GLOSSARY OF TERMS.........................................................................S-51
</TABLE>
S-2
<PAGE> 3
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS
PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS
Information about the notes is contained in two separate documents that
progressively provide more detail:
- the accompanying prospectus, which provides general information,
some of which may not apply to the notes; and
- this prospectus supplement, which describes the specific terms
of the notes.
You should rely only on the information contained in this prospectus
supplement and the accompanying prospectus or that we have referred you to. We
have not authorized anyone to provide you with information that is different.
In this prospectus supplement and the accompanying prospectus, we
include cross references to sections in these materials where you can find
further related discussions. The Table of Contents on page S-2 of this
prospectus supplement and on page ii of the prospectus identify the pages where
these sections are located.
We have defined and used capitalized terms in this prospectus supplement
and the prospectus to assist you in understanding the terms of the notes and
this offering. Capitalized terms are defined in a Glossary beginning on page
S-51 of this prospectus supplement.
S-3
<PAGE> 4
SUMMARY OF TERMS
The following summary is a short, concise description of the main terms
of the offering of the notes. For this reason, the summary does not contain all
of the information that may be important to you. To fully understand the terms
of the offering of the notes, you will need to read both this prospectus
supplement and the attached prospectus, each in its entirety.
THE TRUST
Onyx Acceptance Owner Trust 2000-C, a Delaware business trust, will issue and
sell the notes. The trust will be established by a trust agreement among the
seller, the owner trustee and the trust agent.
THE SELLER
Onyx Acceptance Financial Corporation, a Delaware corporation and a
wholly-owned, limited purpose subsidiary of Onyx Acceptance Corporation. The
seller's principal executive offices are located at 27051 Towne Centre Drive,
Suite 200, Foothill Ranch, California 92610, and its telephone number is (949)
465-3500. See "The Seller" in the prospectus.
THE SERVICER
Onyx Acceptance Corporation, a Delaware corporation. The servicer's principal
executive offices are located at 27051 Towne Centre Drive, Suite 100, Foothill
Ranch, California 92610, and its telephone number is (949) 465-3900. See "The
Servicer" in the prospectus.
THE INDENTURE TRUSTEE
The Chase Manhattan Bank, as indenture trustee under the indenture.
THE OWNER TRUSTEE
Bankers Trust (Delaware), as owner trustee under the trust agreement.
THE TRUST AGENT
The Chase Manhattan Bank, as agent of the trust and the owner trustee under the
trust agreement.
NOTE INSURER
MBIA Insurance Corporation will unconditionally and irrevocably guarantee the
timely payment of interest and the ultimate payment of principal on the notes.
CLOSING DATE
The trust expects to issue the notes on or about July 27, 2000.
THE NOTES
The trust will issue the class A-1 notes, the class A-2 notes, the class A-3
notes and the class A-4 notes, as described on the cover page, under an
indenture between the trust and the indenture trustee. The notes will be
non-recourse obligations of the trust and will be secured by the trust property
described below in this Summary of Terms.
S-4
<PAGE> 5
THE RESIDUAL INTERESTS
The trust will issue certificates representing the residual interests in the
trust. The certificates are not offered for sale by this prospectus supplement.
TRUST PROPERTY
The trust's assets will include:
- a pool of fixed rate motor vehicle retail installment sales contracts
and/or installment loan agreements, each of which was purchased from
the seller and each of which is secured by a new or used automobile,
light-duty truck or van;
- documents relating to the contracts;
- monies received with respect to the contracts on or after the cut-off
date applicable to such contracts;
- security interests in the financed vehicles and the rights to receive
proceeds from claims under insurance policies covering the financed
vehicles or the individual obligors under each related contract;
- all amounts on deposit in specified accounts, excluding any investment
income credited to the collection account which will be paid to the
servicer, and excluding any investment income credited to the
capitalized interest account, which may be released to the seller
under certain circumstances;
- the right of the seller to cause Onyx to repurchase contracts under
specified circumstances; and
- all proceeds of the foregoing.
On the closing date, the seller will deposit approximately $132,000,000 into a
segregated trust account, referred to as the prefunding account, for the
purchase of additional fixed rate motor vehicle retail installment sales
contracts and/or installment loan agreements. Each day on which such a purchase
is made is referred to herein as a "prefunding transfer date".
See "The Trust" in this prospectus supplement and "The Trusts" in the
prospectus.
Under the indenture, the trust will grant a security interest in the trust
property in favor of the indenture trustee, on behalf of the noteholders, and
for the benefit of MBIA Insurance Corporation in support of the obligations
owing to MBIA under the insurance agreement.
THE CONTRACTS
The trust's main source of funds for making payments on the notes will be
collections on a pool of fixed rate motor vehicle retail installment sales
contracts and/or installment loan agreements included in the trust property. The
trust will acquire initial contracts with a total principal balance of
$227,077,814.86 as of July 1, 2000, the cut- off date for these initial
contracts.
Before the closing date, the trust will acquire additional motor vehicle retail
installment
S-5
<PAGE> 6
sales contracts and/or installment loan agreements that have been or will be
originated or purchased on or after the cut- off date for the initial contracts
but before July 26, 2000, the cut-off date for these additional contracts. These
additional contracts are referred to as "subsequent contracts" in this
prospectus supplement.
After the closing date, the trust will use funds from the prefunding account to
acquire additional motor vehicle retail installment sales contracts and/or
installment loan agreements which are referred to herein as "prefunded
contracts." On the business day preceding each prefunding transfer date, the
seller will deliver a transfer certificate to the trust, which certificate will
set forth certain information with respect to the prefunded contracts to be
transferred on that date, including a cut-off date for those prefunded
contracts.
The sum of (i) the total principal balance of the initial contracts as of July
1, 2000, (ii) the total principal balance of the subsequent contracts as of July
26, 2000, and (iii) the initial deposit in the prefunding account on the closing
date is expected to be $440,000,000, which amount is referred to herein as the
"original pool balance."
The trust will acquire the contracts from the seller under a sale and servicing
agreement dated as of July 1, 2000.
CHARACTERISTICS OF THE CONTRACTS
The initial contracts had the following characteristics as of July 1, 2000:
WEIGHTED AVERAGE ANNUAL PERCENTAGE RATE:
15.43%
WEIGHTED AVERAGE REMAINING TERM:
56.59 months
CONTRACTS THAT ALLOCATE INTEREST AND PRINCIPAL BY THE RULE OF 78'S METHOD OR THE
ACTUARIAL METHOD:
7.55% of the aggregate principal balance of the initial contracts
CONTRACTS THAT ALLOCATE INTEREST AND PRINCIPAL BY THE SIMPLE INTEREST METHOD:
92.45% of the aggregate principal balance of the initial contracts
CONTRACTS SECURED BY NEW VEHICLES:
15.21% of the aggregate principal balance of the initial contracts
CONTRACTS SECURED BY USED VEHICLES:
84.79% of the aggregate principal balance of the initial contracts
CONTRACTS ORIGINATED IN CALIFORNIA:
23.91% of the aggregate principal balance of the initial contracts
As of July 1, 2000, the aggregate principal balance of the initial contracts
originated in any single state other than California did not exceed 7.73% of
the aggregate principal balance of the initial contracts as of that date.
S-6
<PAGE> 7
None of the contracts has or will have a scheduled maturity date later than
November 15, 2006.
Because the financial and other data for the subsequent contracts and the
prefunded contracts that the trust will acquire on or after July 1, 2000 will
differ somewhat from the descriptions of the initial contracts set forth above,
the characteristics of the contracts as a whole are likely to vary from the
characteristics of the initial contracts. See "The Contracts" in this prospectus
supplement and in the prospectus.
DISTRIBUTION DATES
Interest and principal on the notes will be payable on the 15th day of each
month. If the 15th day of a month is not a business day, then the payment for
that month will be made on the next succeeding business day. The first payment
will be due on August 15, 2000.
A business day is a day other than a Saturday, Sunday or any other day on which
commercial banks located in California or New York are authorized or required to
be closed.
TERMS OF THE NOTES
INTEREST RATES:
The trust will pay interest on each class of notes at the rates specified on the
cover of this prospectus supplement.
Interest on the notes will accrue monthly, as described under "Description of
the Notes - Payments of Interest" in this prospectus supplement. Interest on the
notes will be calculated on the basis of a 360-day year of twelve 30-day months,
with the exception of the class A-1 notes, with respect to which interest will
be calculated on the basis of a 360-day year and the actual number of days in
the related accrual period.
PRINCIPAL:
The trust will make payments of principal on the notes monthly, on each
distribution date, as described under "Description of the Notes - Payments of
Principal" and "Description of the Sale and Servicing Agreement - Distributions"
in this prospectus supplement. No principal payments will be made on the class
A-2 notes until the class A-1 notes have been paid in full; no principal
payments will be made on the class A-3 notes until the class A-2 notes have been
paid in full; and no principal payments will be made on the class A-4 notes
until the class A-3 notes have been paid in full. The trust must pay the
outstanding principal amount of each class of notes, to the extent not
previously paid, by the final scheduled distribution date for that class of
notes, which occurs in the following months:
class A-1 notes - August 15, 2001
class A-2 notes - May 15, 2003
class A-3 notes - September 15, 2004
class A-4 notes - May 15, 2007
We expect that the outstanding principal balance of each class of notes will be
paid in full earlier, and could be paid significantly earlier, than the final
scheduled distribution date for that class, depending on a variety of factors.
S-7
<PAGE> 8
MANDATORY PARTIAL REDEMPTION
If an amount equal to or less than $50,000 remains on deposit in the prefunding
account at the end of the funding period, the class A-1 notes will be prepaid in
part on the distribution date immediately following the end of the funding
period. If an amount in excess of $50,000 remains on deposit in the prefunding
account at the end of the funding period, the notes will be prepaid in part, pro
rata, based on the then current principal balance of the notes, on the
distribution date immediately following the end of the funding period. The
amount of any such prepayment will be equal to the balance remaining on deposit
in the prefunding account, exclusive of any investment earnings thereon, after
giving effect to the sale to the trust of all prefunded contracts during the
funding period, including any such sale on the date the funding period ends. See
"Description of the Notes -- Mandatory Partial Redemption".
OPTIONAL PURCHASE
The servicer may, but is not obligated to, purchase the contracts on any
distribution date on which the principal balance of the contracts has declined
to 10% or less of the original pool balance. If the servicer exercises this
purchase option, all of the notes then outstanding will be redeemed. See
"Description of the Notes -- Optional Redemption" and "Description of the Sale
and Servicing Agreement -- Termination" in this prospectus supplement.
THE PREFUNDING ACCOUNT
The indenture trustee will establish a segregated trust account, entitled
"Prefunding Account -- OT 2000-C, The Chase Manhattan Bank, Indenture Trustee,"
for the benefit of the noteholders and the insurer. On the closing date, the
seller will fund the prefunding account with an initial deposit equal to the
amount by which the proceeds from the sale of the notes (prior to deducting any
expenses or underwriting commissions) exceeds the sum of the aggregate principal
balances of the initial contracts and the subsequent contracts, which amount is
expected to be approximately $132,000,000. The prefunding account will be an
asset of the trust.
The indenture trustee will pay interest on the portion of the note balance
represented by the balance in the prefunding account from earnings on the
prefunding account or from the capitalized interest account, but not from
collections on the contracts.
The "funding period" will be the period from the closing date until the earliest
to occur of:
- the date on which the balance remaining in the prefunding account is less
than $2,500.00,
- the date on which a servicer default or an indenture event of default
(each as defined in the sale and servicing agreement) occurs, or
- the close of business on October 26, 2000.
During the funding period, the indenture trustee will use the amounts on deposit
in the prefunding account to purchase prefunded contracts from the seller. Any
S-8
<PAGE> 9
amounts remaining on deposit in the prefunding account at the end of the funding
period will be payable as a prepayment of principal to class A-1 noteholders on
the immediately following distribution date; provided, however, if the amount
remaining on deposit in the prefunding account at the end of the funding period
is more than $50,000, such amount will be payable as a prepayment of principal
to the holders of all of the notes, pro rata based on the then current principal
balance of the notes, on the immediately following distribution date. See
"Description of the Notes -- Mandatory Partial Redemption".
THE CAPITALIZED INTEREST ACCOUNT
The indenture trustee will establish a segregated trust account, entitled
"Capitalized Interest Account -- OT 2000-C, The Chase Manhattan Bank, Indenture
Trustee," for the benefit of the noteholders and the insurer. On the closing
date, the seller will fund the capitalized interest account from a portion of
the proceeds received upon the sale of the notes. The capitalized interest
account will be available to cover the projected interest shortfall in respect
of amounts on deposit in the prefunding account during the funding period. The
capitalized interest account will be an asset of the trust.
THE SPREAD ACCOUNT
The indenture trustee will establish a segregated trust account, entitled
"Spread Account -- OT 2000-C, The Chase Manhattan Bank, Indenture Trustee," for
the benefit of the noteholders and the insurer. The spread account will be an
asset of the trust. The noteholders will be afforded limited protection against
losses on the contracts by the establishment of the spread account.
On each distribution date, the indenture trustee will deposit funds in the
spread account up to a specified maximum amount, as described under "Description
of the Sale and Servicing Agreement -- Distributions" in this prospectus
supplement. On each distribution date, funds will be withdrawn from the spread
account to cover any shortfalls in amounts available to pay:
- the servicing fee and applicable fees of the indenture trustee, the
owner trustee and the trust agent; and
- interest and principal due on the notes.
See "Description of the Sale and Servicing Agreement -- Payment Priorities of
the Notes; The Spread Account" in this prospectus supplement.
THE INSURANCE POLICY
On the closing date, MBIA will issue an insurance policy, under the terms of an
insurance agreement, in favor of the indenture trustee, for the benefit of the
noteholders. The policy is a "security insurance policy" as referred to in the
prospectus.
Under the policy, MBIA will irrevocably and unconditionally guarantee timely
payment of interest and ultimate payment of principal due on the notes, as
described under "The Policy" in this prospectus supplement. MBIA's obligations
under the policy will be discharged to the extent that
S-9
<PAGE> 10
amounts are deposited by the servicer into the collection account and to the
extent that amounts due under the policy are received by the indenture trustee,
whether or not the amounts are properly applied by the indenture trustee.
For a description of MBIA, see "Description of the Insurer" in this prospectus
supplement.
SERVICING FEE
The servicer will be responsible for managing, administering, servicing, and
collecting on the contracts. As compensation for its services, the servicer will
receive a servicing fee and other amounts, as described in this prospectus
supplement under "Description of the Sale and Servicing Agreement - Servicing
Fee".
FEDERAL INCOME TAX STATUS
In the opinion of Andrews & Kurth L.L.P., for federal income tax purposes, the
notes will be characterized as debt, and the trust will not be characterized as
an association or a publicly traded partnership taxable as a corporation.. See
"Certain Federal Income Tax Consequences" in this prospectus supplement and in
the accompanying prospectus for additional information concerning the
application of federal income tax laws to the trust and the notes.
ERISA CONSIDERATIONS
Subject to the considerations discussed under "ERISA Considerations" in this
prospectus supplement and in the prospectus, the notes are eligible for purchase
by employee benefit plans that are subject to ERISA. See "ERISA Considerations"
in this prospectus supplement and in the prospectus.
LEGAL INVESTMENT
The class A-1 notes will be eligible for purchase by money market funds under
Rule 2a-7 under the Investment Company Act of 1940, as amended.
RATING
On the closing date, Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., and Moody's Investors Service, Inc. will rate the
notes in the highest rating category available for the notes. The ratings of the
notes will be based substantially on the issuance of the policy by MBIA. See
"Risk Factors -- Downgrading of the rating of MBIA or the notes may have an
adverse effect on the liquidity and market value of the notes" in this
prospectus supplement.
REGISTRATION OF THE NOTES
Initially, the notes will be in the form of one or more certificates registered
in the name of Cede & Co., as the nominee of The Depository Trust Company. If
you acquire an interest in the notes through DTC, you will not be entitled to
receive a definitive note, except under limited circumstances. See "Description
of the Securities -- Book-Entry Registration" and "-- Definitive Securities" in
the prospectus.
S-10
<PAGE> 11
RISK FACTORS
You should consider the following risk factors, as well as the other
factors described under the heading "Risk Factors" in the prospectus, before
deciding to purchase the notes.
ONYX IS SUBJECT TO ALL OF THE RISKS INHERENT IN A RELATIVELY NEW BUSINESS
ENTERPRISE BECAUSE OF ITS LIMITED OPERATING HISTORY.
Onyx began its operations in February 1994 as a purchaser and servicer
of motor vehicle retail installment sales contracts. Accordingly, Onyx has
performance data for only a relatively short period with respect to the
contracts it purchases and originates. As the portfolio of contracts purchased
and originated by Onyx and its subsidiaries matures, delinquency percentages and
loan losses may increase.
As Onyx expands its operations in the United States, it must, among
other things, continue to attract, retain and motivate qualified personnel,
support and grow its auto lending and contract servicing business, maintain its
existing relationships with automobile dealers, and develop new relationships
with dealers.
Onyx experienced operating losses from its inception through December
31, 1995. Onyx's operating losses and net income for the years ended December
31, 1994 through December 31, 1999, and for the three months ended March 31,
2000, are set forth below:
<TABLE>
<CAPTION>
YEAR ENDED (OPERATING LOSS)/NET INCOME
<S> <C>
December 31, 1994 $(3.5 million)
December 31, 1995 (3.2 million)
December 31, 1996 6.1 million*
December 31, 1997 1.3 million*
December 31, 1998 6.1 million*
December 31, 1999 9.8 million
THREE MONTHS ENDED
March 31, 2000 1.7 million
</TABLE>
*The asterisked amounts above reflect the fact that, as required by the
Financial Accounting Standards Board's Special Report, "A Guide to
Implementation of Statement 125 on Accounting for Transfers and Servicing of
Financial Assets and Extinguishments of Liabilities, Second Edition," dated
December 1998, and related guidance set forth in statements made by the staff of
the Securities and Exchange Commission on December 8, 1998, Onyx retroactively
changed its practice of measuring and accounting for credit enhancement assets
on its securitization transactions to the cash-out method from the cash-in
method. As a result, Onyx, on January 26, 1999, announced a restatement of its
financial statements for the years ended December 31, 1996 and 1997, and for the
first three quarters of 1998. Onyx had previously reported net income of $7.7
million and $2.6 million for the years ended December 31, 1996 and 1997,
respectively.
S-11
<PAGE> 12
On January 25, 2000, a putative class action complaint was filed, and
has since been amended, against Onyx and certain of its officers and directors
alleging, among other matters, violations of Section 10(b) and 20(a) of the
Securities Exchange Act of 1934 arising from this restatement. Onyx intends to
vigorously defend against this matter and believes the resolution of this
litigation will not have a material adverse effect on Onyx's consolidated
financial position, results of operations or liquidity or Onyx's ability to
perform its obligations under the sale and servicing agreement.
THE ABSENCE OF A SECONDARY MARKET COULD LIMIT YOUR ABILITY TO RESELL YOUR NOTES.
The absence of a secondary market for the notes could limit your ability
to resell them. This means that if in the future you want to sell any of your
notes before they mature, you may be unable to find a buyer or, if you find a
buyer, the selling price may be less than it would have been if a market existed
for the notes. There is currently no secondary market for the notes. The
underwriters currently intend to participate in making a secondary market in the
notes, but they are not under any obligation to do so. We cannot assure you that
a secondary market for the notes will develop. If a secondary market does
develop, we cannot assure you that it will continue for any period of time or
for the duration of the notes or that you will be able to resell your notes.
PREPAYMENTS ON CONTRACTS WILL CAUSE PREPAYMENTS ON YOUR NOTES RESULTING IN
REINVESTMENT RISK TO YOU.
You may receive payment of principal on your notes earlier than you
expect for the reasons set forth below. You may not be able to reinvest any
prepayments of principal paid on your notes at a rate of return that is equal to
or greater than the rate of return on your notes.
The rate of payment of principal on each class of notes depends
primarily on the rate of payments, including prepayments, on the principal
balance of the contracts. As a result, final payment on any class of notes could
occur significantly earlier than the applicable final scheduled distribution
date.
Prepayments on the contracts by the related obligors and purchases of
the contracts by the seller and the servicer will shorten the life of the notes
to an extent that cannot be fully predicted. The contracts included in the trust
may be prepaid, in full or in part, voluntarily or as a result of defaults,
theft of or damage to the related vehicles or other reasons. Onyx will be
required to repurchase a contract from the seller, and the seller will be
required to repurchase a contract from the trust, if Onyx breached its
representations and warranties with respect to the contract in the sale and
servicing agreement with the seller. Onyx, in its capacity as servicer, will
also be required to purchase a contract from the trust if it breaches its
servicing obligations with respect to the contract and the contract is
materially and adversely affected by the breach. The servicer will also be
entitled to purchase all of the remaining contracts from the trust once the
aggregate principal balance of the contracts is 10% or less than the aggregate
principal balance of the contracts as of their applicable cut-off dates.
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<PAGE> 13
Onyx cannot predict the actual prepayment rates that will occur on the
contracts in either stable or changing interest rate environments. See "- Onyx
is subject to all of the risks inherent in a relatively new business enterprise
because of its limited operating history". Moreover, many other factors will
affect the amount and timing of payments of principal on each class of notes.
The factors include:
- the level of delinquencies, defaults and losses on the
contracts;
- the payment of any principal on the notes on an accelerated
basis; and
- the payment of any accelerated amounts on the notes following an
event of default under the indenture.
Additionally, the rate of payment of principal on the notes will depend,
in part, on whether sufficient additional motor vehicle contracts satisfying the
criteria set forth in the sale and servicing agreement are generated for
purchase by the trust before the end of the funding period. No assurances can be
given that sufficient motor vehicle contracts will be generated to avoid
mandatory partial redemption. In the event Onyx does not generate or acquire,
for purchase by the seller and sale to the trust, sufficient motor vehicle
contracts to avoid mandatory partial redemption of the notes, the weighted
average life of the notes will be shortened. See "Description of the Notes -
Mandatory Partial Redemption".
Any balance remaining on deposit in the prefunding account at the end of
the funding period will be payable as a prepayment of principal to the holders
of the class A-1 notes on the immediately following distribution date; provided,
however, if the balance remaining on deposit in the prefunding account at the
end of the funding period exceeds $50,000, such balance will be payable as a
prepayment of principal to the holders of all of the notes, pro rata based on
the then current principal balance of the notes, on the immediately following
distribution date. Onyx anticipates that the aggregate principal amount of the
prefunded contracts sold to the seller and transferred to the trust during the
funding period will not be exactly equal to the initial deposit in the
prefunding account and that, therefore, there will be at least a nominal amount
of principal prepaid to the holders of the class A-1 notes.
You will bear all the reinvestment risks relating to prepayments on the
contracts and resulting from distributions of principal on the notes. These
reinvestment risks include the possibility that you may not be able to reinvest
distributions of principal in alternative comparable investments having similar
yields. See "Maturity and Prepayment Considerations" in this prospectus
supplement and in the prospectus.
S-13
<PAGE> 14
OUR ABILITY TO ORIGINATE OR ACQUIRE PREFUNDED CONTRACTS MAY BE LIMITED
The seller's conveyance of prefunded contracts to the trust during the
funding period is subject to the conditions described in the sale and servicing
agreement. Each prefunded contract must satisfy the eligibility criteria
specified in the sale and servicing agreement. The ability of the seller to
convey prefunded contracts to the trust is completely dependent upon the ability
of Onyx to acquire through dealers a sufficient amount of motor vehicle
contracts that meet the requirements set forth in the sale and servicing
agreement for transfer. The ability of Onyx to acquire sufficient prefunded
contracts may be affected by a variety of social and economic factors. Economic
factors include interest rates, unemployment levels, the rate of inflation and
consumer perception of economic conditions generally. Neither Onyx nor the
seller has any basis to predict the extent to which economic or social factors
will affect the availability of prefunded contracts. Although no assurances can
be given, Onyx presently expects that it will acquire sufficient prefunded
contracts satisfying the criteria set forth in the sale and servicing agreement
to substantially deplete the prefunding account by the end of the funding
period.
YOU MAY SUFFER LOSSES IF THE CREDIT ENHANCEMENT PROVIDED FOR THE NOTES IS NOT
ADEQUATE.
The policy provided by MBIA will provide credit enhancement for the
notes. Additional credit enhancement, which will be used prior to the policy,
will be provided by the following:
- the excess, if any, of --
- the amount of interest collected on the contracts in
each collection period
over
- the amount of interest accruing and payable on the
notes, the amount of the fees of the servicer, the
indenture trustee, the owner trustee and the trust agent
payable on the related distribution date and the amount
of the premium payable to the insurer on the related
distribution date; and
- amounts available in the spread account, as described under
"Description of the Sale and Servicing Agreement -- Payment
Priorities of the Notes; The Spread Account" and "-- Withdrawals
from the Spread Account" in this prospectus supplement.
If the amounts available from this additional credit enhancement are
inadequate, you will bear the risk of any delays and losses resulting from the
delinquencies, defaults and losses on the contracts, unless the shortfalls are
covered by the policy and paid by MBIA. The policy guarantees payment of
principal of each class of notes only on the applicable final scheduled
distribution date.
S-14
<PAGE> 15
The amount required to be maintained in the spread account is subject to
change as described under "Description of the Sale and Servicing Agreement -
Payment Priorities of the Notes; The Spread Account" in this prospectus
supplement.
PRIORITY OF PAYMENT AND SUBORDINATION INCREASE THE RISK OF LOSS OR DELAY IN
PAYMENT FOR HOLDERS OF THE CLASS A-2 NOTES, CLASS A-3 NOTES AND CLASS A-4 NOTES
Because payments of principal will be applied first to the class A-1
notes, then to the class A-2 notes, then to the class A-3 notes, and then to the
class A-4 notes, in the event MBIA defaults under the policy after one or more
classes of notes have been fully or partially repaid and before the other
classes of notes with a lower priority of payment have been fully repaid,
delinquencies, defaults and losses experienced on the contracts will have a
disproportionately greater effect on the notes with a lower priority of payment.
Other than in the case of an event of default under the indenture:
- no principal will be paid to the holders of the class A-2 notes,
the class A-3 notes or the class A-4 notes until the principal
amount of the class A-1 notes has been reduced to zero;
- no principal will be paid to the holders of the class A-3 notes
or the class A-4 notes until the principal amount of the class
A-2 notes has been reduced to zero; and
- no principal will be paid to the holders of the class A-4 notes
until the principal amount of the class A-3 notes has been
reduced to zero.
See "Description of the Notes - Payments of Principal" in this prospectus
supplement.
GEOGRAPHIC CONCENTRATION MAY ADVERSELY AFFECT THE PERFORMANCE OF THE CONTRACTS.
Economic conditions in the states where the obligors under the contracts
live and work may affect the delinquency, loan loss and repossession experience
of the trust with respect to the contracts. Initial contracts representing
approximately 23.91% of the aggregate principal balance of the initial contracts
as of July 1, 2000 were originated in California. As of July 1, 2000, the
aggregate principal balances of initial contracts originated in any single state
other than California did not exceed 7.73% of the aggregate principal balance of
the initial contracts on that date. The geographic concentration of all of the
contracts as of the end of the funding period, including the initial contracts,
the subsequent contracts and the prefunded contracts purchased by the trust,
will be substantially similar to that of the initial contracts. Adverse economic
conditions or other factors particularly affecting California or other states in
which the contracts are geographically concentrated might adversely affect the
performance of the contracts. See "The Contracts -- Geographic Concentration of
the Initial Contracts" in this prospectus supplement.
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<PAGE> 16
YOU MAY SUFFER LOSSES DUE TO THE LIMITED ASSETS OF THE TRUST.
You may suffer a loss on your notes if the assets of the trust are
insufficient to pay fully the principal amount of the notes. The trust does not
have, nor is it permitted or expected to have, any significant assets or sources
of funds other than the contracts. You must rely upon payments on the contracts,
amounts, if any, on deposit in the spread account, and payments of claims made
under the policy for repayment of the notes.
The policy will guarantee:
- shortfalls in the payment of accrued interest on each
distribution date; and
- the ultimate repayment of principal on the final scheduled
distribution date with respect to each class of notes.
However, if MBIA defaults in its obligations under the policy, the trust will
have to depend solely on collections on the contracts and amounts, if any, on
deposit in the spread account to make payments then due on the notes. See
"Description of the Insurer" and "The Policy" in this prospectus supplement.
DOWNGRADING OF THE RATING OF MBIA OR THE NOTES MAY HAVE AN ADVERSE EFFECT ON THE
LIQUIDITY AND MARKET VALUE OF THE NOTES.
On the closing date, the notes will be rated "AAA" by Standard & Poor's
and "Aaa" by Moody's. A security rating is not a recommendation to buy, sell or
hold notes and may be revised or withdrawn at any time by the assigning rating
agency. Any rating agency rating the notes may lower or withdraw its rating if,
in the sole judgment of the rating agency, circumstances in the future so
warrant. The ratings of the notes address the likelihood of timely payment of
accrued interest, and ultimate payment of principal on the applicable final
scheduled distribution dates, which are guaranteed by MBIA under the policy. The
ratings of the notes are substantially based on the issuance of the policy by
MBIA, and are dependent on the rating of MBIA. The downgrading of the rating of
MBIA, therefore, may lead to a change in the ratings of the notes. We cannot
predict with certainty what effect any revision or withdrawal of the rating of
the notes may have on the liquidity or market value of the notes. See
"Description of the Insurer" in this prospectus supplement for a description of
MBIA's rating.
S-16
<PAGE> 17
PREPAYMENTS, POTENTIAL LOSSES AND CHANGES IN THE PRIORITY OF PRINCIPAL PAYMENTS
MAY RESULT FROM AN EVENT OF DEFAULT UNDER THE INDENTURE.
PAYMENTS ON THE NOTES MAY BE ACCELERATED. An event of default under the
indenture may result in payments on the notes being accelerated. As a result -
- you may suffer losses on your notes if the assets of the trust
are insufficient to pay the amounts owed on the notes;
- payments on your notes may be delayed until more senior classes
of notes are repaid; and
- your notes may be repaid earlier than scheduled, which may
require you to reinvest your principal at a lower rate of
return.
ONLY THE INSURER CAN DECLARE AN EVENT OF DEFAULT IF THE INSURER IS NOT
IN DEFAULT. Prior to a default by MBIA, only MBIA can declare an event of
default under the indenture. If MBIA has defaulted in its obligations under the
policy and continues to be in default, then either the indenture trustee or the
noteholders can declare an event of default under the indenture.
INSURER CONTROLS REMEDIES IF THE INSURER IS NOT IN DEFAULT. If an event
of default under the indenture occurs and MBIA is not in default under the
policy, MBIA may, but is not obligated to, declare that the notes become
immediately due and payable. In this event, MBIA will have the right to control
the exercise of remedies available with respect to the event of default,
including the right to direct the indenture trustee to liquidate the property of
the trust on any date or dates following the acceleration of the notes due to
the event of default. Liquidation will result in redemption, in whole or in
part, of the notes. MBIA may not, however, cause the indenture trustee to
liquidate the property of the trust, in whole or in part, if the proceeds of the
liquidation would not be enough to pay all outstanding principal and accrued
interest on the notes. Following an event of default under the indenture, the
indenture trustee and the owner trustee will continue to submit claims under the
policy for any shortfalls in amounts needed to make payments or distributions of
guaranteed amounts on the notes. In addition, MBIA, at its sole option, may
elect to pay all or any portion of the outstanding amount of the notes, plus
accrued interest to the date of payment.
THE ABILITY OF NOTEHOLDERS TO LIQUIDATE THE TRUST MAY BE LIMITED. If an
event of default under the indenture occurs and MBIA is in default under the
policy, the noteholders will be able to declare that the notes become
immediately due and payable. In this instance, the noteholders will have the
right to control the exercise of remedies available, including the right to
direct the indenture trustee to liquidate the property of the trust. However, no
noteholders may direct the indenture trustee to liquidate the property of the
trust, in whole or in part, unless --
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<PAGE> 18
(1) MBIA has failed to make a payment required under the policy and
the event of default under the indenture is a result of either --
- a default in the payment of any principal on the
final scheduled distribution date for a class of
notes or a default of at least five days in the
payment of any interest on any notes; or
- certain events of bankruptcy, insolvency,
receivership or liquidation of the trust;
or
(2) MBIA has not failed to make a payment required under the policy,
an event of default has occurred other than as described above,
and the proceeds of a liquidation of the trust property will be
sufficient to pay all outstanding principal of the notes,
together with accrued interest, and all amounts due to MBIA under
the insurance agreement.
In the event of a sale of the contracts as described in alternative (2)
above, the policy will not be available to cover losses to noteholders resulting
from the liquidation of the trust property. The policy will be terminated, and
MBIA will have no further obligation to make any payment thereunder.
Upon a sale of the contracts by the indenture trustee as described in
alternative (1) above, if the proceeds from the sale and any amounts on deposit
in the spread account and the collection account are not sufficient to pay all
the notes in full, then:
- the amount of principal paid to noteholders will be reduced; and
- the noteholders will incur a loss on their investment.
See "Description of the Notes -- Indenture Events of Default" in this prospectus
supplement and "The Indenture -- Indenture Events of Default" in the prospectus.
IF THERE IS A SERVICER DEFAULT, THE SERVICER MAY BE REMOVED ONLY BY THE INSURER
OR THE INDENTURE TRUSTEE AND THE NOTEHOLDERS.
If the servicer is in default under the sale and servicing agreement,
only MBIA may terminate the servicer for the default, unless MBIA is in default
under the policy. If the servicer is in default under the sale and servicing
agreement and MBIA is in default under the policy, the noteholders, or the
indenture trustee acting only on behalf of the noteholders, without regard to
the interests of the seller, may terminate the servicer. In addition, if MBIA is
in default under the policy, the noteholders may waive certain defaults by the
servicer. See "Description of the Sale
S-18
<PAGE> 19
and Servicing Agreement -- Servicer Default", "-- Rights Upon Servicer Default"
and "-- Certain Matters Relating to the Insurer" in this prospectus supplement.
THE INSURER HAS THE RIGHT TO EXERCISE ALL RIGHTS OF THE NOTEHOLDERS UNDER THE
SALE AND SERVICING AGREEMENT, THE INDENTURE AND THE TRUST AGREEMENT.
So long as MBIA is not in default under the policy, it will have the
right to exercise all rights, including voting rights, which the noteholders are
entitled to exercise under the sale and servicing agreement, the indenture and
the trust agreement. However, MBIA cannot exercise the noteholders' rights to
amend the sale and servicing agreement, the indenture or the trust agreement,
without the consent of each holder of a note or residual interest affected by
the amendment, in any manner that would:
- reduce the amount of, or delay the timing of, collections of
payments of monthly principal and interest on the contracts or
distributions required to be made on any class of notes;
- adversely affect in any material respect the interests of the
holders of any class of notes; or
- alter the rights of any such noteholder to consent to an
amendment.
If MBIA is in default under the policy, it cannot take any action under
the sale and servicing agreement, the indenture or the trust agreement, to
terminate the servicer, or to control or direct the actions of the trust, the
seller, the servicer, the indenture trustee, the owner trustee or the trust
agent under the terms of the sale and servicing agreement, the indenture or the
trust agreement. Furthermore, the consent of MBIA will not be required with
respect to any action, or waiver of a right to take action, to be taken by the
trust, the seller, the servicer, the indenture trustee, the owner trustee, the
trust agent or the noteholders; except that, the consent of MBIA is required at
all times to amend the sale and servicing agreement, the indenture and the trust
agreement.
THE TRUST
GENERAL
The trust is a business trust formed under the laws of the State of
Delaware under the trust agreement for the transactions described in this
prospectus supplement. The trust will not engage in any activity other than:
- acquiring, holding and managing the contracts and the other
assets of the trust and proceeds therefrom;
- issuing the notes;
S-19
<PAGE> 20
- making payments on the notes; and
- engaging in other activities that are necessary, suitable or
convenient to accomplish the foregoing or are incidental thereto
or connected therewith.
The trust's principal offices are in Wilmington, Delaware, in care of
Bankers Trust (Delaware), as owner trustee, at the address listed below under
"-- The Owner Trustee and Trust Agent."
THE OWNER TRUSTEE AND TRUST AGENT
Bankers Trust (Delaware) is the owner trustee under the trust agreement,
and is a Delaware banking corporation and its principal offices are located at
E.A. Delle Donne Corporate Center, 1011 Centre Road, Suite 200, Wilmington,
Delaware 19805-1266, Attention: Corporate Trust Administration Department.
Some functions of the owner trustee under the trust agreement and the
sale and servicing agreement will be performed by The Chase Manhattan Bank, a
New York banking corporation, in its capacity as trust agent under the trust
agreement and the sale and servicing agreement. However, upon the occurrence and
continuation of an insurer default, the trust agent will resign and the owner
trustee will assume the duties of the trust agent under the trust agreement and
the sale and servicing agreement.
The liability of the owner trustee and the trust agent in connection
with the issuance and sale of the notes is limited solely to the express
obligations of the owner trustee and the trust agent set forth in the trust
agreement and the sale and servicing agreement.
TRUST PROPERTY
The trust property will include the items specified under the heading
"The Trusts" in the prospectus. The trust property will also include the rights
of the indenture trustee under the policy.
Under the indenture, the trust will grant a security interest in the
trust property in favor of the indenture trustee on behalf of the noteholders
and for the benefit of MBIA in support of the obligations owing to MBIA under
the insurance agreement.
S-20
<PAGE> 21
THE ONYX PORTFOLIO OF MOTOR VEHICLE CONTRACTS
PURCHASE, ORIGINATION AND SERVICING OF MOTOR VEHICLE CONTRACTS
Onyx's purchase and origination of motor vehicle contracts are described
under "The Onyx Portfolio of Motor Vehicle Contracts -- Purchase, Origination
and Servicing of Motor Vehicle Contracts" in the prospectus. At March 31, 2000,
Onyx had agreements with approximately 7,900 dealers, of which approximately 89%
are franchised new car dealerships and approximately 11% are independent used
car dealerships. All of the contracts will have been sold to the seller and then
to the trust.
Onyx, together with its subsidiaries, had acquired or originated motor
vehicle contracts totaling approximately $4.3 billion from commencement of
operations through March 31, 2000. As of March 31, 2000, Onyx had amassed a
servicing portfolio of approximately $2.3 billion. As of March 31, 2000
approximately 83% of Onyx's servicing portfolio consisted of motor vehicle
contracts secured by used motor vehicles, and 17% secured by new motor vehicles.
As of March 31, 2000, Onyx had total assets of approximately $377.4 million and
stockholder's equity of $55.3 million.
DELINQUENCY AND LOAN LOSS INFORMATION
The following tables set forth information with respect to the
experience of Onyx relating to delinquencies, loan losses and recoveries for the
portfolio of motor vehicle contracts owned and serviced by Onyx on an annual
basis commencing December 31, 1997. The tables include delinquency information
relating to those motor vehicle contracts that were purchased, originated, sold
and serviced by Onyx. All of the motor vehicle contracts were originally
purchased by Onyx from dealers, or purchased or originated by a subsidiary of
Onyx, in accordance with credit underwriting criteria established by Onyx. In
February 1994, Onyx commenced its operations as a purchaser and servicer of
motor vehicle retail installment sales contracts. Accordingly, Onyx has
historical performance for only a limited time period with respect to the motor
vehicle contracts it purchases and originates and, consequently, delinquencies
and loan losses may increase from existing levels in the portfolio with the
passage of time. Delinquency and loan loss experience may be influenced by a
variety of economic, social and other factors. See "Risk Factors" in this
prospectus supplement and in the prospectus.
Management continues to rely on the use of current technology such as
predictive dialers utilizing an automated processing system for contacting
delinquent borrowers. Onyx also has a payment system that allows electronic
payment on delinquent accounts to be applied the same day as payment is sent or
initiated by the borrower.
S-21
<PAGE> 22
DELINQUENCY EXPERIENCE OF ONYX MOTOR VEHICLE CONTRACT PORTFOLIO
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
AT DECEMBER 31, AT DECEMBER 31, AT DECEMBER 31,
1997 1998 1999
------------------------ ----------------------- ------------------------
AMOUNT NO AMOUNT NO AMOUNT NO
---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Servicing portfolio ............... $ 757,277 73,502 $1,345,961 131,862 $2,133,460 209,745
DELINQUENCIES
30-59 days(1)(2) ................ $ 11,902 1,211 $ 26,410 2,766 $ 38,376 3,963
60-89 days(1)(2) ................ $ 3,370 346 $ 6,876 691 $ 16,596 1,671
90+ days(1)(2) .................. $ 3,743 316 $ 4,790 455 $ 14,203 1,383
Total delinquencies as
a percent of servicing
Portfolio........................ 2.51% 2.55% 2.83% 2.97% 3.24% 3.35%
<CAPTION>
AT MARCH 31, AT MARCH 31,
1999 2000
------------------------ ------------------------
AMOUNT NO AMOUNT NO
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Servicing portfolio ............... $1,542,612 151,037 $2,344,399 231,316
DELINQUENCIES
30-59 days(1)(2) ................ $ 19,282 2,049 $ 26,430 2,797
60-89 days(1)(2) ................ $ 6,747 711 $ 10,068 1,055
90+ days(1)(2) .................. $ 5,987 543 $ 13,965 1,328
Total delinquencies as
a percent of servicing
Portfolio....................... 2.08% 2.19% 2.15% 2.24%
</TABLE>
---------
(1) Delinquencies include principal amounts only, net of repossessed
inventory. Repossessed inventory as a percent of the servicing portfolio
was 1.17%, 0.62% and 0.83% at December 31, 1997, 1998 and 1999,
respectively and 0.78% and 0.75% at March 31, 1999 and 2000,
respectively.
(2) The period of delinquency is based on the number of days payments are
contractually past due.
LOAN LOSS EXPERIENCE OF ONYX MOTOR VEHICLE CONTRACT PORTFOLIO
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31, THREE MONTHS ENDED MARCH 31,
------------------------------------ ----------------------------
1997 1998 1999 1999 2000
-------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Number of Motor Vehicle Contracts
outstanding ................................. 73,502 131,862 209,745 151,037 231,316
Period end outstanding ...................... $757,277 $1,345,961 $2,133,460 $1,542,612 $2,344,399
Average outstanding ......................... $563,343 $1,023,237 $1,728,875 $1,435,409 $2,238,058
Number of gross charge-offs ................. 2,161 3,761 6,398 1,307 2,361
Gross charge-offs ........................... $ 13,076 $ 20,640 $ 37,024 $ 7,040 $ 15,054
Net charge-offs(1) .......................... $ 11,434 $ 17,618 $ 31,963 $ 6,221 $ 13,052
Net charge-offs as a percent of average
outstanding ............................... 2.03% 1.72% 1.85% 1.73% 2.33%
----------
</TABLE>
(1) Net charge-offs are gross charge-offs minus recoveries on motor vehicle
contracts previously charged off.
THE CONTRACTS
All of the contracts will have been purchased by the seller from Onyx.
All of the contracts have been purchased by Onyx from new and used car dealers
unaffiliated with Onyx or the seller. See "The Onyx Portfolio of Motor Vehicle
Contracts" in this prospectus supplement and in the prospectus. Each of the
contracts in the trust will be a fixed rate contract where the allocation of
each payment between interest and principal is calculated using the rule of 78's
method, the actuarial method or the simple interest method. Each of these
methods is explained under the heading "The Onyx Portfolio of Motor Vehicle
Contracts - Allocation of Payments on Contracts
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<PAGE> 23
to Interest and Principal" in the prospectus. Initial contracts representing
approximately 7.55% of the aggregate principal balance of the initial contracts
as of the Initial Cut-Off Date allocate interest and principal in accordance
with the rule of 78's or the actuarial method, and initial contracts
representing approximately 92.45% of the aggregate principal balance of the
initial contracts as of the Initial Cut-Off Date allocate interest in accordance
with the simple interest method.
The contracts will have been selected from the motor vehicle contracts
in the portfolio of Onyx using the following criteria. No selection procedures
will have been used with respect to the contracts that are believed by Onyx or
the seller to be adverse to the noteholders or MBIA. Initial contracts
representing approximately 15.21% of the aggregate principal balance of the
initial contracts as of the Initial Cut-Off Date are secured by new vehicles,
and initial contracts representing approximately 84.79% of the aggregate
principal balance of the initial contracts as of the Initial Cut-Off Date are
secured by used vehicles. The seller may not substitute other motor vehicle
contracts for the contracts at any time during the term of the sale and
servicing agreement.
The seller will represent that each contract included in the trust
satisfies the following eligibility requirements:
- the contract is secured by a new or used automobile, light-duty
truck or van;
- the contract has a remaining maturity as of the applicable
Cut-Off Date of not more than 72 months;
- the contract has an original maturity of not more than 72
months;
- the contract is a fully-amortizing fixed rate contract which
provides for level scheduled monthly payments determined on the
basis of the rule of 78's, actuarial or the simple interest
method, except for the last payment, which may be minimally
different from the level payments;
- the contract is secured by a vehicle that as of the applicable
Cut-Off Date has not been repossessed without reinstatement;
- the contract has no payment more than 30 days past due as of the
applicable Cut- Off Date;
- the contract has a remaining principal balance as of the
applicable Cut-Off Date of at least $500; and
- as of the applicable Cut-Off Date, the seller has not received
notice that the related obligor has filed for bankruptcy.
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<PAGE> 24
Set forth below is data concerning the initial contracts as of the
Initial Cut-Off Date which had an aggregate principal balance as of the Initial
Cut-Off Date of $227,077,814.86. Data concerning all of the contracts (including
the initial contracts, the subsequent contracts and the prefunded contracts)
will be available to purchasers of the notes at or before the end of the funding
period and will be filed with the SEC on Form 8-K within 15 days after the end
of the funding period. Because the financial and other data for the subsequent
contracts and the prefunded contracts will differ somewhat from the data for the
initial contracts, the characteristics of the contracts as a whole are likely to
vary from the characteristics of the initial contracts described below.
COMPOSITION OF THE INITIAL CONTRACTS
<TABLE>
<CAPTION>
<S> <C>
Aggregate principal balance.....................$227,077,814.86
Number of contracts...................................18,421
Average principal balance outstanding................$12,327.12
Average original amount financed.................... $12,411.57
Original amount financed (range)........$1,206.84 TO $62,076.98
Weighted average apr......................................15.43%
APR (range)......................................6.00% TO 25.80%
Weighted average original term.......................57.15 mos.
Original term (range)............................ 12 to 72 mos.
Weighted average remaining term......................56.59 mos.
Remaining term (range)............................10 to 72 mos.
</TABLE>
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<PAGE> 25
DISTRIBUTION BY APRS OF THE INITIAL CONTRACTS
<TABLE>
<CAPTION>
NUMBER % OF INITIAL
OF % OF CUT-OFF
INITIAL INITIAL PRINCIPAL POOL
APR RANGE CONTRACTS CONTRACTS BALANCE BALANCE
---------- --------- --------- ------- -----------
<S> <C> <C> <C> <C>
0.000% to 7.000% ........ 3 0.02% 26,141.64 0.01%
7.001% to 8.000% ........ 325 1.76% 5,908,717.15 2.60%
8.001% to 9.000% ........ 614 3.33% 9,966,371.53 4.39%
9.001% to 10.000% ....... 793 4.30% 12,041,187.41 5.30%
10.001% to 11.000% ....... 701 3.81% 10,063,455.93 4.43%
11.001% to 12.000% ....... 765 4.15% 10,640,178.74 4.69%
12.001% to 13.000% ....... 929 5.04% 12,236,771.29 5.39%
13.001% to 14.000% ....... 1,084 5.88% 14,074,472.70 6.20%
14.001% to 15.000% ....... 1,713 9.30% 21,865,473.91 9.63%
15.001% to 16.000% ....... 2,071 11.24% 26,566,685.97 11.70%
16.001% to 17.000% ....... 2,415 13.11% 29,952,185.33 13.19%
17.001% to 18.000% ....... 2,395 13.00% 27,543,287.75 12.13%
18.001% to 19.000% ....... 1,414 7.68% 15,481,136.55 6.82%
19.001% to 20.000% ....... 1,095 5.94% 11,207,234.86 4.94%
20.001% to 21.000% ....... 1,202 6.53% 12,278,730.70 5.41%
Over 21.000% ............. 902 4.90% 7,225,783.40 3.18%
------ --------- --------------- ---------
Totals ......... 18,421 100.00%* $227,077,814.86 100.00%*
</TABLE>
----------------
* Percentages may not add to 100% because of rounding.
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<PAGE> 26
GEOGRAPHIC CONCENTRATION OF THE INITIAL CONTRACTS
<TABLE>
<CAPTION>
NUMBER OF % OF % OF
INITIAL INITIAL PRINCIPAL INITIAL CUT-OFF
STATE CONTRACTS CONTRACTS BALANCE POOL BALANCE
----- --------- --------- ------------- ---------------
<S> <C> <C> <C> <C>
Alabama 237 1.29% 2,976,848.51 1.31%
Arizona 626 3.40% 7,458,830.37 3.28%
California 4,182 22.70% 54,300,273.97 23.91%
Colorado 307 1.67% 3,365,646.38 1.48%
Connecticut 3 0.02% 23,756.74 0.01%
Delaware 201 1.09% 2,363,328.59 1.04%
Florida 1,439 7.81% 17,546,903.07 7.73%
Georgia 1,091 5.92% 14,453,292.29 6.36%
Idaho 150 0.81% 1,659,980.92 0.73%
Illinois 1,061 5.76% 13,135,280.29 5.78%
Indiana 441 2.39% 5,011,650.70 2.21%
Iowa 79 0.43% 1,025,514.21 0.45%
Kansas 3 0.02% 29,139.04 0.01%
Kentucky 292 1.59% 3,402,077.88 1.50%
Maryland 460 2.50% 5,955,543.65 2.62%
Michigan 1,006 5.46% 12,413,704.83 5.47%
Minnesota 137 0.74% 1,809,182.61 0.80%
Mississippi 22 0.12% 347,331.34 0.15%
Missouri 269 1.46% 3,321,792.54 1.46%
Montana 5 0.03% 64,939.57 0.03%
Nevada 442 2.40% 5,079,069.08 2.24%
New Hampshire 6 0.03% 82,243.59 0.04%
New Jersey 1,188 6.45% 14,292,462.35 6.29%
New York 2 0.01% 19,559.36 0.01%
North Carolina 591 3.21% 7,646,525.70 3.37%
Oklahoma 141 0.77% 1,834,183.22 0.81%
Oregon 367 1.99% 4,032,573.44 1.78%
Pennsylvania 1,217 6.61% 13,791,762.22 6.07%
Rhode Island 18 0.10% 237,310.36 0.10%
South Carolina 354 1.92% 4,274,421.92 1.88%
Tennessee 349 1.89% 4,340,332.72 1.91%
Texas 502 2.73% 6,476,264.33 2.85%
Utah 78 0.42% 1,071,442.01 0.47%
Virginia 609 3.31% 7,318,027.05 3.22%
Washington 541 2.94% 5,860,759.46 2.58%
West Virginia 5 0.03% 55,860.55 0.02%
----- ------ --------------- ------
Totals 18,421 100.00% $227,077,814.86 100.00%*
</TABLE>
----------
* Percentages may not add to 100% because of rounding.
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<PAGE> 27
MATURITY AND PREPAYMENT CONSIDERATIONS
The contracts are or will be prepayable in full by the obligors at any
time without penalty. See "Maturity and Prepayment Considerations" in the
prospectus regarding the effects of prepayments on the weighted average life of
the contracts. As the rate of payment of principal of each class of notes
depends primarily on the rate of payment, including prepayments, of the
principal of the contracts, final payment of any class of notes is expected to
occur earlier, and could occur significantly earlier, than the respective final
scheduled distribution date for each class of notes.
All full and partial prepayments on simple interest contracts and all
full prepayments on rule of 78's and actuarial contracts will be paid to
noteholders on the distribution date immediately following the calendar month in
which the prepayments are received. Accordingly, the prepayments will shorten
the average life of those contracts and, therefore, of the notes. Partial
prepayments on rule of 78's and actuarial contracts are treated as payments in
advance and, accordingly, will not affect the average life of the contracts. The
obligors can prepay the contracts in full at any time without penalty.
Onyx can make no prediction as to the actual prepayment rates that will
be experienced on the contracts in either stable or changing interest rate
environments. In addition, the rate of payment of principal of each class of
notes will be affected by the incidence of delinquencies, defaults and losses,
by the application of the Accelerated Principal Distributable Amount to pay the
principal of the notes, and by any accelerated payments made on the notes
following an event of default under the indenture. The rate of payment of
principal of each class of notes will also be affected if sufficient additional
motor vehicle contracts are not generated for purchase by the trust prior to the
end of the funding period, because any balance remaining in the prefunding
account at the end of the funding period will be paid to the noteholders on the
distribution date immediately following the end of the funding period. See
"Description of the Notes -- Mandatory Partial Redemption". Although the seller
believes that sufficient additional motor vehicle contracts will be acquired by
Onyx prior to the end of the funding period, no assurances can be given in that
regard. Onyx anticipates that the aggregate principal amount of the prefunded
contracts sold to the seller and transferred to the trust during the funding
period will not be exactly equal to the initial deposit in the prefunding
account and that, therefore, there will be at least a nominal amount of
principal prepaid to the class A-1 noteholders. See "Risk Factors -- Prepayments
on contracts will cause prepayment on your notes resulting in reinvestment risk
to you" in this prospectus supplement.
USE OF PROCEEDS
The net proceeds of the initial sale of the notes will be used by the
trust to purchase the contracts from the seller under the sale and servicing
agreement and to fund the deposits in the prefunding account and the capitalized
interest account maintained for the benefit of the noteholders and the insurer.
The net proceeds to be received by the seller from the sale of the
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<PAGE> 28
contracts to the trust will be used by the seller to repay some or all of the
indebtedness incurred, or to pay other amounts owed, in connection with its
acquisition of the contracts, to fund the prefunding account and the capitalized
interest account and to pay other expenses in connection with the pooling of the
contracts and the issuance of the notes.
DESCRIPTION OF THE NOTES
The notes will be issued under the terms of the indenture, a form of
which will be filed with the SEC following the issuance of the notes. The
following summaries describe the material terms of the notes and the indenture,
but do not purport to be complete and are subject to, and qualified in their
entirety by reference to, the provisions of the notes and the indenture. Where
particular provisions of or terms used in the indenture are referred to, the
actual provisions, including definitions of terms, are incorporated by reference
as part of the summaries. The following summaries of terms of the indenture
supplement and, to the extent inconsistent therewith, replace, the description
of the general terms and provisions of the indenture set forth under the heading
"The Indenture" in the prospectus, to which description reference is hereby
made.
PAYMENTS OF INTEREST
Interest on the outstanding principal amount of each class of notes will
accrue during the Interest Accrual Period at the respective per annum interest
rates for the various classes of notes and will be payable to the noteholders on
each distribution date, commencing August 15, 2000. Interest accrued but not
paid on any distribution date will be due on the immediately succeeding
distribution date, together with, to the extent permitted by applicable law,
interest on the shortfall at the related interest rate. Interest on the notes
will be calculated on the basis of a 360-day year of twelve 30-day months, with
the exception of the class A-1 notes, with respect to which interest will be
calculated on the basis of a 360-day year and the actual number of days in the
related Interest Accrual Period. Interest payments on the notes will be made as
described below under "Description of the Sale and Servicing Agreement --
Distributions" in this prospectus supplement.
PAYMENTS OF PRINCIPAL
Principal payments will be made to the noteholders, to the extent
described below, on each distribution date in an amount equal to the Note
Principal Distributable Amount as described below under "Description of the Sale
and Servicing Agreement - Distributions" in this prospectus supplement.
Principal payments on the notes will be applied on each distribution
date from the note distribution account --
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<PAGE> 29
- first, to the holders of the class A-1 notes until the principal
amount of the class A-1 notes has been reduced to zero;
- second, to the holders of the class A-2 notes until the
principal amount of the class A-2 notes has been reduced to
zero;
- third, to the holders of the class A-3 notes until the principal
amount of the class A-3 notes has been reduced to zero; and
- fourth, to the holders of the class A-4 notes until the
principal amount of the class A-4 notes has been reduced to
zero.
The Note Principal Distributable Amount for each distribution date will include
an amount equal to the Accelerated Principal Distributable Amount for that
distribution date, if any. See "Description of the Sale and Servicing Agreement
-- Distributions" in this prospectus supplement.
The principal amount of each class of notes, to the extent not
previously paid, will be due on the final scheduled distribution date for that
class of notes. The actual date on which the outstanding principal amount of any
class of notes is paid is expected to be earlier, and could be significantly
earlier, than the final scheduled distribution date for that class based on a
variety of factors, including the factors described under "Maturity and
Prepayment Considerations" in this prospectus supplement and in the prospectus.
MANDATORY PARTIAL REDEMPTION
If an amount equal to or less than $50,000 remains on deposit in the
prefunding account at the end of the funding period, the class A-1 notes will be
prepaid in part on the distribution date immediately following the end of the
funding period. If an amount in excess of $50,000 remains on deposit in the
prefunding account at the end of the funding period, the notes will be prepaid
in part, pro rata based on the then current principal balance of the notes, on
the distribution date immediately following the end of the funding period. The
amount of any such prepayment will be equal to the balance remaining on deposit
in the prefunding account, exclusive of any investment earnings thereon, after
giving effect to the sale to the trust of all prefunded contracts during the
funding period, including any such sale on the date the funding period ends.
It is anticipated that the aggregate principal amount of prefunded
contracts purchased by the trust and delivered to the owner trustee during the
funding period will not be exactly equal to the initial deposit into the
prefunding account and that, therefore, there will be at least a nominal amount
of principal prepaid to the noteholders of the class A-1 notes.
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<PAGE> 30
OPTIONAL REDEMPTION
Each class of outstanding notes will be subject to redemption in whole,
but not in part, on any distribution date on which the aggregate outstanding
principal balance of the contracts has declined to 10% or less of the Original
Pool Balance. The redemption price for each class of notes will equal the unpaid
principal amount of that class of notes plus accrued and unpaid interest thereon
at the applicable interest rate. Any redemption will effect early retirement of
each class of notes. See "Description of the Sale and Servicing Agreement --
Termination" in this prospectus supplement.
THE INDENTURE TRUSTEE
The Chase Manhattan Bank will be the indenture trustee. The indenture
trustee is a New York banking corporation and its Corporate Trust Office is
located at 450 West 33rd Street, 14th Floor, New York, New York 10001-2697,
Attention: Capital Market Fiduciary Services.
The indenture trustee will have the rights and duties set forth under
"Description of the Transfer and Servicing Agreements -- The Trustee and the
Indenture Trustee" in the prospectus.
INDENTURE EVENTS OF DEFAULT
Those events which constitute a default by the indenture trustee under
the indenture are set forth under "The Indenture -- Indenture Events of Default"
in the prospectus. Upon an event of default under the indenture, the insurer and
the noteholders will have the rights set forth in the prospectus under "The
Indenture -- Rights Upon Indenture Event of Default."
DESCRIPTION OF THE SALE AND SERVICING AGREEMENT
The following summary, together with the information set forth in the
accompanying prospectus, includes a description of the material terms of the
sale and servicing agreement. The sale and servicing agreement will be filed
with the SEC following the issuance of the notes. This summary does not purport
to be complete and is subject to, and qualified in its entirety by reference to,
all the provisions of the sale and servicing agreement. The following summary
supplements the description of the general terms and provisions of the sale and
servicing agreement set forth under the heading "Description of the Transfer and
Servicing Agreements" in the prospectus, to which description reference is
hereby made.
SALE AND ASSIGNMENT OF THE CONTRACTS
At the time of issuance of the notes, the seller will sell and assign to
the trust, without recourse, the seller's entire interest in the funded
contracts and the proceeds thereof, including its security interests in the
financed vehicles. Concurrently with the sale and assignment of the funded
contracts, the seller will deposit approximately $132,000,000 into the
prefunding account
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<PAGE> 31
for the purchase of prefunded contracts during the funding period. Each funded
contract will be identified in a schedule appearing as an exhibit to the sale
and servicing agreement and each prefunded contract will be identified in a
supplement to such schedule. Concurrently with the sale and assignment of the
funded contracts, the trust will pledge the assets acquired by it to the
indenture trustee under the indenture, and the notes will be delivered to the
underwriters against payment to the seller of the net purchase price of the sale
of the notes. Before the sale of the funded contracts to the trust and the
issuance of the notes, each of Onyx's participating subsidiaries will sell and
assign to Onyx under a purchase agreement, without recourse, its entire interest
in the funded contracts, and Onyx will sell and assign to the seller its entire
interest in the funded contracts.
On each prefunding transfer date during the funding period, Onyx will
sell and assign to the seller, without recourse, its entire interest in the
prefunded contracts and the proceeds thereof, including its security interests
in the related financed vehicles. The purchase price to be paid to Onyx for each
prefunded contract will equal the principal balance thereof as of the related
Prefunding Cut-Off Date. The seller will, in turn, sell and assign to the trust,
without recourse, the seller's entire interest in the prefunded contracts and
the proceeds thereof, including its security interests in the related financed
vehicles. Concurrently with such sale and assignment, the trust will pledge the
assets acquired by it to the indenture trustee under the indenture. In
connection with each purchase of prefunded contracts, the trust will be required
to pay to the seller an amount equal to the amount paid by the seller to Onyx
for such prefunded contracts, which purchase price will be paid from funds on
deposit in the prefunding account. On the business day preceding each prefunding
transfer date, the seller will deliver a transfer certificate setting forth the
aggregate principal balance of the related prefunded contracts, an affirmation
of the representations and warranties set forth in the sale and servicing
agreement with respect to the seller and such prefunded contracts and other
information. Additionally, on the prefunding transfer date the seller will
deliver to the trust the prefunded contracts identified in the transfer
certificate.
As of each prefunding transfer date, the trust's assets will then
include:
- the prefunded contracts delivered to the trust on such
prefunding transfer date, each of which was purchased from the
seller and each of which is secured by a new or used automobile,
light-duty truck or van;
- certain documents relating to the prefunded contracts;
- certain monies received with respect to the prefunded contracts
on or after the related Prefunding Cut-Off Date;
- security interests in the financed vehicles and the rights to
receive proceeds from claims on certain insurance policies
covering the financed vehicles or the individual obligors under
each related prefunded contract;
S-31
<PAGE> 32
- the right of the seller to cause Onyx to repurchase certain
prefunded contracts under specified circumstances; and
- all proceeds of the foregoing.
All legal opinions, officers' certificates and other documentation
necessary with respect to the prefunded contracts delivered to the trust and
pledged to the indenture trustee on each prefunding transfer date will be
executed and delivered as of the last day of the funding period.
See "Description of the Transfer and Servicing Agreements -- Sale and
Assignment of the Contracts" in the prospectus.
THE ACCOUNTS
THE COLLECTION, PAYAHEAD AND PAYMENT ACCOUNTS. The collection account
and the payahead account referred to in the prospectus under "Description of the
Transfer and Servicing Agreements -- The Collection Account and Eligible
Investments" and "-- Payahead Account" will be established by the servicer and
maintained by a financial institution acceptable to the indenture trustee and
the insurer in the name of the indenture trustee. The indenture trustee will
establish and maintain a payment account, in the name of the indenture trustee,
into which amounts released from the collection account and other amounts for
distribution to noteholders will be deposited prior to transfer of those amounts
to the distribution account described below.
THE NOTE DISTRIBUTION ACCOUNT. The servicer will establish and maintain
with the indenture trustee a note distribution account, in the name of the
indenture trustee on behalf of the noteholders, in which amounts released from
the payment account for distribution to noteholders will be deposited and from
which all distributions to noteholders will be made.
THE PREFUNDING ACCOUNT. The servicer will establish and maintain with
the indenture trustee an account in the name of the indenture trustee for the
benefit of the noteholders and the insurer into which the seller will make an
initial deposit on the closing date of the amount by which the proceeds from the
sale of the notes (prior to deducting any expenses or underwriting commissions)
exceeds the principal balance of the funded contracts, which amount is expected
to be approximately $132,000,000. Monies will be released from the prefunding
account during the funding period to purchase prefunded contracts from the
seller.
The prefunding account will be part of the trust but monies on deposit
therein will not be available to cover losses on or in respect of the contracts.
Any balance remaining on deposit in the prefunding account as of the end of the
funding period will be payable as a prepayment of principal to the class A-1
noteholders on the immediately following distribution date; provided, however,
if the balance remaining on deposit in the prefunding account as of the end of
the funding period exceeds $50,000, such balance will be payable as a prepayment
of principal to all of the noteholders, pro rata based on the then current
principal balance of the notes, on the
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<PAGE> 33
immediately following distribution date. See "Description of the Notes --
Mandatory Partial Redemption".
Funds on deposit in the prefunding account may be invested in Eligible
Investments in the manner described in the sale and servicing agreement.
Earnings on investment of funds in the prefunding account will be used, together
with the Capitalized Interest Amount, to pay interest on the portion of the note
balance relating to the prefunding account. All income or other gain from
investment of the funds in the prefunding account shall be withdrawn from the
prefunding account and deposited in the payment account no later than the
business day immediately preceding any distribution date during (and immediately
following) the funding period.
Upon each conveyance to the trust of prefunded contracts on a prefunding
transfer date, an amount equal to the purchase price paid by the seller to Onyx
for such prefunded contracts will be released from the prefunding account and
paid to the seller.
THE CAPITALIZED INTEREST ACCOUNT. On the closing date, the seller will
deposit an amount agreed to by the insurer in a segregated trust account to be
maintained for the benefit of the noteholders and the insurer from a portion of
the proceeds received upon the sale of the notes. Monies in the capitalized
interest account will be available to cover the projected interest shortfall in
respect of amounts on deposit in the prefunding account during the funding
period. The capitalized interest account will be an asset of the trust. Amounts
may be released to the seller from the capitalized interest account during or
after the funding period as described in the sale and servicing agreement.
THE SPREAD ACCOUNT. The spread account will be established and
maintained as described under "Description of the Sale and Servicing Agreement
-- Payment Priorities of the Notes; The Spread Account" and "-- Withdrawals from
the Spread Account" in this prospectus supplement.
PAYMENTS ON CONTRACTS
Net collections on the contracts will be deposited in or credited to the
collection account within two business days of the receipt by the servicer of
payments from obligors. Net collections with respect to a distribution date and
the related Collection Period will include:
- amounts received with respect to the contracts in the Collection
Period representing monthly installments of principal and
interest;
- full prepayments and partial prepayments, pending transfer of
partial prepayments on any rule of 78's or actuarial contracts
to the payahead account;
- Net Liquidation Proceeds and Net Insurance Proceeds;
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<PAGE> 34
- any amounts deposited by Onyx or the seller in the collection
account to purchase contracts because of material defects in
documents related to the contracts or breaches of
representations or warranties regarding the contracts made by
the seller in the sale and servicing agreement that materially
and adversely affect the interests of the noteholders or the
insurer;
- any amounts deposited by the servicer in the collection account
to purchase contracts as to which the servicer has breached its
servicing covenants; and
- any amounts deposited by the servicer in the collection account
as a result of the servicer exercising its right to purchase all
of the remaining contracts.
Partial prepayments of rule of 78's and actuarial contracts are
initially deposited in the collection account and are transferred to the
payahead account on the Servicer Report Date.
DISTRIBUTIONS
On the business day immediately preceding each distribution date, the
servicer will cause funds equal to the amount of net collections available with
respect to that distribution date to be withdrawn from the collection account
and deposited into the payment account. On each distribution date, the indenture
trustee, based solely on the distribution date statement provided to the
indenture trustee by the servicer, will apply the net collections on deposit in
the payment account available with respect to the related Collection Period
together with amounts, if any, withdrawn from the spread account, the prefunding
account, the capitalized interest account or representing payment of the Policy
Claim Amount, to make the following deposits and distributions in the following
amounts and order of priority:
(1) to the servicer, the servicing fee, including any accrued and
unpaid servicing fees with respect to one or more prior
Collection Periods;
(2) to the indenture trustee, the owner trustee and the trust agent,
any accrued and unpaid fees of the indenture trustee, the owner
trustee and the trust agent, in each case to the extent the fees
have not been previously paid;
(3) to the note distribution account, the Note Interest Distributable
Amount to be paid pro rata to the holders of the notes at their
respective interest rates;
(4) to the note distribution account, if the distribution date is a
final scheduled distribution date for any class of notes, the
Note Principal Distributable Amount to the extent of the
remaining principal amount of that class of notes, to be paid to
the holders of that class of notes;
(5) if such distribution date is the Mandatory Partial Redemption
Date, to the note distribution account, the Mandatory Partial
Redemption Amount, to be distributed
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<PAGE> 35
to the holders of the class A-1 notes if such amount is less than
or equal to $50,000 and to be distributed to the holders of all
notes, pro rata based on the then current principal balance of
the notes, if such amount exceeds $50,000.
(6) to the note distribution account, from amounts remaining after
giving effect to the distributions described in clauses (1)
through (5) above, the remaining Note Principal Distributable
Amount, after giving effect to the payment, if any, described in
clause (5) above, to be paid --
- first, to the holders of the class A-1 notes
until the principal amount of the class A-1
notes has been reduced to zero;
- second, to the holders of the class A-2 notes
until the principal amount of the class A-2
notes has been reduced to zero;
- third, to the holders of the class A-3 notes
until the principal amount of the class A-3
notes has been reduced to zero; and
- fourth, to the holders of the class A-4 notes
until the principal amount of the class A-4
notes has been reduced to zero;
(7) to the insurer, after giving effect to the distributions
described in clauses (1) through (6) above, any amounts,
including the premium set forth in the insurance agreement, owing
to the insurer under the insurance agreement;
(8) to the spread account, after giving effect to the distributions
described in clauses (1) through (7) above, the amount, if any,
required to increase the amount in the spread account to the
Spread Account Maximum for that distribution date; and
(9) any amounts remaining after distribution of the Accelerated
Principal Distributable Amount as part of the Note Principal
Distributable Amount, if applicable, will be deposited into the
spread account and will be applied as described in the second
paragraph under "Description of the Sale and Servicing Agreement
-- Withdrawals from the Spread Account" in this prospectus
supplement.
If the notes are accelerated following an event of default under the
indenture, amounts collected will be applied --
- first, to pay any unpaid servicing fee;
- second, to pay any accrued and unpaid fees of the indenture
trustee, owner trustee and trust agent without preference or
priority of any kind;
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<PAGE> 36
- third, to pay accrued interest on each class of notes on a pro
rata basis based on the interest accrued, including interest
accrued on past-due interest, on each class of notes;
- fourth, to pay principal on the notes, on a pro rata basis based
on the aggregate principal balance of each class of notes, until
the aggregate principal balance of each such class of notes is
reduced to zero;
- fifth, to pay amounts owing the insurer under the insurance
agreement; and
- sixth, to the spread account, to be applied in accordance with
the insurance agreement.
Amounts on deposit in the spread account on a distribution date will be
available to make payments and distributions on that distribution date as
described under "-- Withdrawals from the Spread Account" in this prospectus
supplement.
Under the policy, the insurer is obligated to provide for payment to the
indenture trustee on each distribution date of any Policy Claim Amount. In
addition, on any distribution date, the insurer may elect, in its sole
discretion, to pay all or a portion of any shortfalls in the amount of net
collections available to distribute the amounts described in clause (6) above.
See "The Policy" in this prospectus supplement.
PAYMENT PRIORITIES OF THE NOTES; THE SPREAD ACCOUNT
The rights of the noteholders to receive distributions with respect to
the contracts will be subordinated to the rights of --
- the servicer, to the extent that the servicer has not been paid
all servicing fees; and
- the indenture trustee, the owner trustee and the trust agent, to
the extent any of them has not received accrued and unpaid fees.
In addition, the rights of the noteholders to receive distributions with
respect to the contracts will be subject to the priorities set forth under
"Description of the Sale and Servicing Agreement -- Distributions" in this
prospectus supplement to the extent described above. These priorities are
intended to enhance the likelihood of timely receipt by the noteholders of the
full amount of interest and principal required to be paid to them, and to afford
the noteholders limited protection against losses in respect of the contracts.
The foregoing protection will be effected both by the preferential right
of the noteholders to receive, to the extent described in this prospectus
supplement, current distributions with respect to the contracts, and by the
establishment of the spread account. The spread account will be a part of the
trust and will be a segregated trust account in the name of the indenture
trustee.
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<PAGE> 37
The indenture trustee will have a perfected security interest in all amounts
deposited in or credited to the spread account as well as all Eligible
Investments. The spread account will be funded by the deposit therein of amounts
under clauses (8) and (9) under "-- Distributions" above.
Amounts held from time to time in the spread account will continue to be
held for the benefit of holders of the notes and the insurer and may be invested
in Eligible Investments. Investment income on monies on deposit in the spread
account will be credited to the spread account. Any loss on the investment will
be charged to the spread account.
The Spread Account Maximum may increase or decrease over time, without
the consent of any of the noteholders, as a result of floors, caps and triggers
set forth in the insurance agreement. In addition, there can be no assurance
that the Spread Account Maximum will be reached at any given time. Consequently,
noteholders should not rely on amounts on deposit or to be deposited in the
spread account in evaluating the likelihood that the notes will be repaid.
WITHDRAWALS FROM THE SPREAD ACCOUNT
Amounts held from time to time in the spread account will continue to be
held for the benefit of the noteholders and the insurer. On each distribution
date funds will be withdrawn from the spread account and deposited into the
payment account to the extent that the sum of the amounts set forth in clauses
(1) though (4) under "-- Distributions" above with respect to that distribution
date exceeds the sum of (x) the amount of net collections available with respect
to that distribution date, and (y) the amounts transferred from the prefunding
account and the capitalized interest account to the payment account with respect
to such distribution date. Funds will also be withdrawn from the spread account
to reimburse the insurer for any draws under the policy with respect to any
Preference Amount.
If the amount on deposit in the spread account on any distribution date,
after giving effect to all deposits to and withdrawals from the spread account
on that distribution date, is greater than the Spread Account Maximum for that
distribution date, then the indenture trustee will distribute any excess --
- first, to the insurer, to the extent of any amounts owing to the
insurer under the insurance agreement;
- second, to the holders of the residual interests in the trust.
Upon any distributions to the insurer or the holders of the residual interests,
the noteholders will have no further rights in, or claims to, such amounts.
None of the noteholders, the indenture trustee, the owner trustee, the
trust agent, the seller, the insurer or the holders of the residual interests
will be required to refund any amounts properly distributed to them, whether or
not there are sufficient funds on any subsequent
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<PAGE> 38
distribution date to make full distributions to the noteholders. The obligations
of the insurer under the policy will not be diminished or otherwise affected by
any amounts distributed to the insurer as described in the preceding paragraph.
SERVICING FEE
The servicer will be entitled to compensation for the performance of its
obligations under the sale and servicing agreement. The servicer will be
entitled to receive as its servicing fee on each distribution date an amount
equal to the product of one-twelfth of 1% per annum multiplied by the aggregate
outstanding balance of the contracts as of the end of the Collection Period
preceding the related Collection Period. As additional compensation, the
servicer or its designee shall be entitled to retain all late payment charges,
extension fees and similar items paid in respect of the contracts. The servicer
or its designee will also receive as servicing compensation reinvestment
earnings on Eligible Investments of funds credited to the collection account and
the payahead account. The servicer will pay all expenses incurred by it in
connection with its servicing activities under the sale and servicing agreement
and will not be entitled to reimbursement of the expenses except to the extent
they constitute Liquidation Expenses or expenses recoverable under an applicable
insurance policy.
The sale and servicing agreement requires the servicer to use its best
efforts to collect all payments called for under the terms and provisions of the
contracts. The servicer, consistent with the foregoing, will be permitted, in
its discretion, to waive charges and grant extensions as described under
"Description of the Transfer and Servicing Agreements -- Waivers and Extensions"
in the prospectus. The maturity date of a contract, however, may not be extended
more than 120 days past the originally scheduled maturity date, and in no event
beyond the latest final scheduled distribution date for the notes.
SERVICER DEFAULT
The events which constitute a servicer default under the sale and
servicing agreement are described under "Description of the Transfer and
Servicing Agreements -- Servicer Default" in the prospectus. Additionally, the
occurrence of trigger events set forth in the insurance agreement will
constitute a servicer default.
RIGHTS UPON SERVICER DEFAULT
If a default by the insurer has occurred and is continuing, then upon
the occurrence of a servicer default, the indenture trustee, owner trustee and
the noteholders will have the rights described under "Description of the
Transfer and Servicing Agreement -- Rights Upon Servicer Default" in the
prospectus. However, if an insurer default shall not have occurred and be
continuing, then only the insurer, and not the indenture trustee, the owner
trustee or the noteholders, may terminate the servicer. If the insurer
terminates the servicer, the insurer will appoint a successor servicer who will
succeed to all the responsibilities, duties and liabilities of
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the servicer under the sale and servicing agreement and will be entitled to
similar compensation arrangements.
WAIVER OF SERVICER DEFAULT
If a default by the insurer has occurred and is continuing, then upon
the occurrence of a servicer default, the noteholders will have the right to
waive defaults by the servicer as described under "Description of the Transfer
and Servicing Agreements -- Waiver of Servicer Default" in the prospectus.
However, if an insurer default shall not have occurred and be continuing, then
only the insurer, and not the noteholders, may waive any default by the servicer
in the performance of its obligations under the sale and servicing agreement and
its consequences, except a servicer default in making any required deposits to
or payments from the trust accounts in accordance with the sale and servicing
agreement. No waiver by the insurer will impair the insurer's or the
noteholders' rights with respect to subsequent servicer defaults. If an insurer
default shall not have occurred and be continuing, then a servicer default in
making any required deposits to or payments from the trust accounts in
accordance with the sale and servicing agreement may only be waived with the
consent of both the insurer and the holders of 100% of the outstanding principal
amount of the notes.
TERMINATION
The obligations of the servicer, the seller, the owner trustee and
indenture trustee with respect to the related noteholders under the trust
agreement, sale and servicing agreement or indenture will terminate as described
under "Description of the Transfer and Servicing Agreements -- Termination" in
the prospectus, and as set forth below.
In order to avoid excessive administrative expenses, the servicer will
be permitted at its option to purchase the remaining contracts from the trust on
any distribution date as of which the aggregate outstanding principal balance of
the contracts has declined to 10% or less of the Original Pool Balance, at a
price equal to the greater of --
- the sum of:
- the aggregate outstanding principal balance of
the contracts on the date of repurchase, plus
- accrued and unpaid interest on the contracts;
and
- the sum of:
- the aggregate unpaid principal amount of the
notes, plus
- accrued and unpaid interest thereon, plus
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- all amounts due to the insurer under the
insurance agreement.
The trust agent and indenture trustee will give written notice of
termination to each noteholder of record. The final distribution to each
noteholder will be made only upon surrender and cancellation of the holder's
notes at the office or agency of the related trustee specified in the notice of
termination. Any funds remaining in the trust, after the trustee has taken
measures to locate a noteholder and those measures have failed, will be
distributed to a charity designated by the servicer.
Any outstanding notes will be redeemed concurrently with any purchase
described above.
PAYMENT IN FULL OF NOTES
Upon the payment in full of all outstanding notes and the satisfaction
and discharge of the indenture, the owner trustee will succeed to all the rights
of the indenture trustee, and the residual interest holders will succeed to all
the rights of the noteholders, under the sale and servicing agreement, except as
otherwise provided therein.
CERTAIN MATTERS RELATING TO THE INSURER
In the event an insurer default shall have occurred and be continuing,
the insurer shall not have the right to take any action under the sale and
servicing agreement, the indenture or the trust agreement, to terminate the
servicer, or to control or direct the actions of the seller, the servicer, the
owner trustee or the indenture trustee under the terms of the sale and servicing
agreement, the indenture or the trust agreement, nor shall the consent of the
insurer be required with respect to any action, or waiver of a right to take
action, to be taken by the seller, the servicer, the indenture trustee, the
owner trustee, the noteholders or the residual interestholders; provided, that
the consent of the insurer shall be required at all times with respect to any
amendment of the sale and servicing agreement, the indenture or the trust
agreement.
THE POLICY
The insurer, in consideration of the payment of the premium and subject
to the terms of the policy, thereby unconditionally and irrevocably guarantees
to any Owner that an amount equal to each Policy Claim Amount will be received
by the indenture trustee, or its successors, as trustee for the Owners, on
behalf of the Owners from the insurer, for distribution by the indenture
trustee, to each Owner of each Owner's proportionate share of the Policy Claim
Amount. The insurer's obligations under the policy shall be discharged to the
extent funds to pay the notes are deposited by the servicer in accordance with
the sale and servicing agreement or disbursed by the insurer as provided in the
policy, whether or not such funds are properly applied by the indenture trustee.
Payments of Policy Claim Amounts will be made only at the time set forth in the
policy. The policy will not guarantee payments of principal on any class of
notes other than the payment of the outstanding principal amount of a class of
notes on the final scheduled distribution date for
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that class of notes, and will not guarantee payment of any Accelerated Principal
Distributable Amount or any amounts which become due on an accelerated basis as
a result of a default by the trust, the occurrence of an event of default under
the indenture, or any other cause. The insurer may elect, in its sole
discretion, to pay in whole or in part the principal due upon acceleration. The
insurer may elect, in its sole discretion, to pay all or a portion of shortfalls
of funds available to make distributions of principal on the notes on a
distribution date, as described under "Description of the Sale and Servicing
Agreement" in this prospectus supplement. The policy does not cover shortfalls,
if any attributable to the liability of the trust for withholding taxes, if any
(including interest and penalties in respect of such liability).
The insurer will pay any Policy Claim Amount that is a Preference Amount
on the business day following receipt by the fiscal agent of the insurer, with a
copy to the insurer, of:
- a certified copy of the order requiring the return of a
preference payment;
- an opinion of counsel satisfactory to the insurer that the order
is final and not subject to appeal;
- an assignment in such form as is reasonably required by the
insurer, irrevocably assigning to the insurer all rights and
claims of each Owner relating to or arising under the notes
against the debtor which made the preference payment or
otherwise with respect to the preference payment; and
- appropriate instruments, in form satisfactory to the insurer, to
effect the appointment of the insurer as agent for the Owner in
any legal proceeding related to the preference payment.
If the above documents are received after 12:00 noon New York City time on a
business day, or any day that is not a business day, they will be deemed to be
received on the following business day. Payments of the Policy Claim Amount will
be disbursed to the receiver or the trustee in bankruptcy named in the final
order of the court exercising jurisdiction on behalf of the Owner and not to any
Owner directly unless the Owner has returned principal or interest paid on the
notes to the receiver or trustee in bankruptcy, in which case the payment will
be disbursed to the Owner.
The insurer will pay any other amount payable under the policy no later
than 12:00 noon New York City time on the later of:
- the distribution date on which the related Note Interest
Distributable Amount or outstanding principal amount in respect
of a class of notes for which that distribution date is the
final scheduled distribution date is due; or
- the second business day following receipt in New York, New York
on a business day by the fiscal agent, with a copy to the
insurer, of a notice specifying the Policy
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Claim Amount which will be due and owing on the following
distribution date; provided, that if the notice is received after
12:00 noon New York City time on that business day, it will be
deemed to be received on the following business day.
If any notice received by the fiscal agent is not in proper form or is otherwise
insufficient for the purpose of making a claim under the policy it will be
deemed not to have been received by the fiscal agent, and the insurer or the
fiscal agent, as the case may be, will promptly so advise the indenture trustee
and the indenture trustee may submit an amended notice.
Policy Claim Amounts due under the policy, unless otherwise stated
therein, will be disbursed by the fiscal agent to the indenture trustee on
behalf of the Owners by wire transfer of immediately available funds in the
amount of the Policy Claim Amount less, in respect of Policy Claim Amounts
including Preference Amounts, any amount held by the indenture trustee for the
payment of the Policy Claim Amount and legally available therefor.
The fiscal agent is the agent of the insurer only and the fiscal agent
will in no event be liable to Owners for any acts of the fiscal agent or any
failure of the insurer to deposit or cause to be deposited sufficient funds to
make payments due under the policy.
Subject to the terms of the indenture, the insurer shall be subrogated
to the rights of each Owner to receive payments under the notes to the extent of
any payment by the insurer under the policy.
The policy is being issued under, and shall be construed under, the laws
of the State of New York, without giving effect to the conflict of law
principles thereof. THE POLICY IS NOT COVERED BY THE PROPERTY/CASUALTY INSURANCE
SECURITY FUND SPECIFIED IN ARTICLE 76 OF THE NEW YORK INSURANCE LAW.
The policy is not cancelable for any reason. The premium on the policy
is not refundable for any reason including payment, or provision being made for
payment, prior to the latest final scheduled distribution date of the notes.
INSURER DEFAULT
All references in the prospectus and in this prospectus supplement to a
default by the insurer shall mean the occurrence and continuance of any of the
following events:
- the insurer shall have failed to make a payment required under
the policy in accordance with its terms;
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- the insurer shall have:
- filed a petition or commenced any case or
proceeding under any provision or chapter of the
United States Bankruptcy Code or any other
similar federal or state law relating to
insolvency, bankruptcy, rehabilitation,
liquidation or reorganization;
- made a general assignment for the benefit of its
creditors; or
- had an order for relief entered against it under
the United States Bankruptcy Code or any other
similar federal or state law relating to
insolvency, bankruptcy, rehabilitation,
liquidation or reorganization which is final and
nonappealable; or
- a court of competent jurisdiction, the New York Department of
Insurance or other competent regulatory authority shall have
entered a final and nonappealable order, judgment or decree:
- appointing a custodian, trustee, agent or
receiver for the insurer or for all or any
material portion of its property; or
- authorizing the taking of possession by a
custodian, trustee, agent or receiver of the
insurer, or the taking of possession of all or
any material portion of the property of the
insurer.
DESCRIPTION OF THE INSURER
MBIA
The insurer is the principal operating subsidiary of MBIA Inc., a New
York Stock Exchange listed company. MBIA Inc. is not obligated to pay the debts
of or claims against the insurer. The insurer is domiciled in the State of New
York and licensed to do business in and subject to regulation under the laws of
all 50 states, the District of Columbia, the Commonwealth of Puerto Rico, the
Commonwealth of the Northern Mariana Islands, the Virgin Islands of the United
States and the Territory of Guam. The insurer has two European branches, one in
the Republic of France and the other in the Kingdom of Spain. New York has laws
prescribing minimum capital requirements, limiting classes and concentrations of
investments and requiring the approval of policy rates and forms. State laws
also regulate the amount of both the aggregate and individual risks that may be
insured, the payment of dividends by the insurer, changes in control and
transactions among affiliates. Additionally, the insurer is required to maintain
contingency reserves on its liabilities in certain amounts and for certain
periods of time.
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The insurer does not accept any responsibility for the accuracy or
completeness of this prospectus supplement or any information or disclosure
contained in this prospectus supplement, or omitted herefrom, other than with
respect to the accuracy of the information regarding the insurer set forth under
the heading "Description of the Insurer" in this prospectus supplement.
Additionally, the insurer makes no representation regarding the notes or the
advisability of investing in the notes.
THE POLICY IS NOT COVERED BY THE PROPERTY/CASUALTY INSURANCE SECURITY
FUND SPECIFIED IN ARTICLE 76 OF THE NEW YORK INSURANCE LAW.
MBIA FINANCIAL INFORMATION
The consolidated financial statements of the insurer, a wholly owned
subsidiary of MBIA Inc., and its subsidiaries as of December 31, 1999 and
December 31, 1998 and for each of the three years in the period ended December
31, 1999, prepared in accordance with generally accepted accounting principles,
included in the Annual Report on Form 10-K of MBIA Inc. for the year ended
December 31, 1999, and the consolidated financial statements of MBIA and its
subsidiaries as of March 31, 2000 and for the three month periods ended March
31, 2000 and March 31, 1999 included in the Quarterly Report on Form 10-Q of
MBIA Inc. for the period ended March 31, 2000, are hereby incorporated by
reference into this prospectus supplement and shall be deemed to be a part
hereof. Any statement contained in a document incorporated by reference in this
prospectus supplement shall be modified or superseded for purposes of this
prospectus supplement to the extent that a statement contained in this
prospectus supplement or in any other subsequently filed document which also is
incorporated by reference in this prospectus supplement modifies or supersedes
the statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this prospectus
supplement.
All financial statements of the insurer and its subsidiaries included in
documents filed by MBIA Inc. under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended, subsequent to the date of this
prospectus supplement and prior to the termination of the offering of the notes
shall be deemed to be incorporated by reference into this prospectus supplement
and to be a part hereof from the respective dates of filing such documents.
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The tables below present selected financial information of the insurer
determined in accordance with statutory accounting practices prescribed or
permitted by insurance regulatory authorities, or SAP, and generally accepted
accounting principles, or GAAP:
<TABLE>
<CAPTION>
SAP GAAP
-------------------------------- --------------------------------
December 31, 1999 March 31, 2000 December 31, 1999 March 31,2000
----------------- -------------- ----------------- -------------
(Audited) (Unaudited) (Audited) (Unaudited)
(In Millions) (In Millions)
<S> <C> <C> <C> <C> <C>
Admitted Assets... $7,045 $7,188 Assets......... $7,446 $7,675
Liabilities....... 4,632 4,770 Liabilities.... 3,218 3,315
Capital Shareholder's
and Surplus....... 2,413 2,418 Equity......... 4,228 4,360
</TABLE>
WHERE YOU CAN OBTAIN ADDITIONAL INFORMATION ABOUT MBIA
Copies of the financial statements of the insurer incorporated by
reference in this prospectus supplement and copies of the insurer's 1999
year-end audited financial statements prepared in accordance with statutory
accounting practices are available, without charge, from the insurer. The
address of the insurer is 113 King Street, Armonk, New York 10504. The telephone
number of the insurer is (914) 273-4545.
FINANCIAL STRENGTH RATINGS OF MBIA
Moody's Investors Service, Inc. rates the financial strength of the
insurer "Aaa".
Standard & Poor's Ratings Services, a division of The McGraw-Hill
Companies, Inc., rates the financial strength of the insurer "AAA".
Fitch IBCA, Inc., formerly known as Fitch Investors Service, L.P., rates
the financial strength of the insurer "AAA".
Each rating of the insurer should be evaluated independently. The
ratings reflect the respective rating agency's current assessment of the
creditworthiness of the insurer and its ability to pay claims on its policies of
insurance. Any further explanation of the significance of the above ratings may
be obtained only from the applicable rating agency.
The above ratings are not recommendations to buy, sell or hold the notes
and the ratings may be subject to revision or withdrawal at any time by the
rating agencies. Any downward revision or withdrawal of any of the above ratings
may have an adverse effect on the market price of the notes. The insurer does
not guarantee the market price of the notes nor does it guarantee that the
ratings on the notes will not be revised or withdrawn.
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CERTAIN FEDERAL INCOME TAX CONSEQUENCES
In the opinion of Andrews & Kurth L.L.P. for federal income tax purposes
the notes will be characterized as debt and the trust will not be characterized
as an association, or a publicly traded partnership, taxable as a corporation.
Each noteholder, by the acceptance of a note, will agree to treat the notes as
indebtedness for federal income tax purposes. See "Certain Federal Income Tax
Consequences" in the prospectus for additional information concerning the
application of federal income tax laws to the trust and the notes.
ERISA CONSIDERATIONS
Subject to the considerations set forth below and under "ERISA
Considerations" in the prospectus, the notes may be purchased by an employee
benefit plan or an individual retirement account subject to ERISA or Section
4975 of the tax code. A fiduciary of a benefit plan or IRA must determine that
the purchase of a note is consistent with its fiduciary duties under ERISA and
does not result in a nonexempt prohibited transaction as defined in Section 406
of ERISA or Section 4975 of the tax code. Section 406 of ERISA prohibits parties
in interest or disqualified persons with respect to a benefit plan or IRA from
engaging in certain transactions, including loans, involving a benefit plan or
IRA and its assets unless a statutory, regulatory or administrative exemption
applies to the transaction. Section 4975 of the tax code imposes certain excise
taxes or, in some cases, a civil penalty may be assessed under section 502(i) of
ERISA, on parties in interest and disqualified persons which engage in
non-exempt prohibited transactions.
The United States Department of Labor has issued a regulation (29 CFR
ss. 2510.3-101) -- the "plan asset regulation" -- concerning the definition of
what constitutes the assets of a benefit plan or IRA. This regulation provides
that, as a general rule, the underlying assets and properties of corporations,
partnerships, trusts and certain other entities in which a benefit plan or IRA
purchases an "equity interest" will be deemed for purposes of ERISA to be assets
of the investing benefit plan or IRA unless certain exceptions apply. The plan
asset regulation defines an "equity interest" as any interest in an entity other
than an instrument that is treated as indebtedness under applicable local law
and which has no substantial equity features. Although the issue is not free
from doubt, the seller believes that the notes offered hereby should not be
treated as "equity interests" for purposes of the regulation. Accordingly, the
acquisition of the notes by benefit plan or IRA investors should not cause the
assets of the trust to be treated as "plan assets" for purposes of Title I of
ERISA. However, the notes may not be purchased with the assets of a benefit plan
or IRA if the seller, the servicer, the indenture trustee, the owner trustee or
any of their affiliates --
- has investment or administrative discretion with respect to the
assets of the benefit plan or IRA;
- has authority or responsibility to give, or regularly gives,
investment advice with respect to the assets of the benefit plan
or IRA, for a fee and under an agreement
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or understanding that the advice (1) will serve as a primary
basis for investment decisions with respect to the assets of the
benefit plan or IRA and (2) will be based on the particular
investment needs for the benefit plan or IRA; or
- is an employer maintaining or contributing to the benefit plan
or IRA.
Each purchaser and transferee of a note shall be deemed to represent that it
satisfies the foregoing conditions.
Affiliates of the trust or the servicer might be considered or might
become parties in interest or disqualified persons with respect to a benefit
plan or IRA. In either case, the acquisition or holding of notes by or on behalf
of such a benefit plan or IRA could be considered to give rise to an indirect
prohibited transaction within the meaning of ERISA and the tax code, unless the
acquisition and holding of the notes is covered by one or more exemptions such
as Prohibited Transaction Class Exemption 84-14, which exempts certain
transactions effected on behalf of a benefit plan or IRA by a "qualified
professional asset manager", PTCE 90-1, which exempts certain transactions
involving insurance company pooled separate accounts, PTCE 91-38, which exempts
certain transactions involving bank collective investment funds, PTCE 95-60,
which exempts certain transactions involving insurance company general accounts,
or PTCE 96-23, which exempts certain transactions effected on behalf of a
benefit plan or IRA by certain "in-house asset managers". Each purchaser or
transferee of a note that is a benefit plan or IRA will be deemed to have
represented that the relevant conditions for exemptive relief under at least one
of the foregoing exemptions, or other applicable exemption providing
substantially similar relief, have been satisfied.
UNDERWRITING
Subject to the terms and conditions set forth in the underwriting
agreement dated July 20, 2000 between the seller and the underwriters named
below, the seller has agreed to cause the trust to sell to each of the
underwriters, and each of the underwriters has severally agreed to purchase, the
principal amount of the notes set forth opposite its name in the table below:
CLASS A-1 NOTES
<TABLE>
<CAPTION>
Principal Amount
----------------
<S> <C>
Salomon Smith Barney Inc................... $ 18,500,000
Chase Securities Inc....................... $ 18,500,000
Credit Suisse First Boston................. $ 18,500,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated................... $ 18,500,000
------------
Total...................................... $ 74,000,000
============
</TABLE>
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<TABLE>
<CAPTION>
CLASS A-2 NOTES
Principal Amount
----------------
<S> <C>
Salomon Smith Barney Inc................... $ 28,750,000
Chase Securities Inc....................... $ 28,750,000
Credit Suisse First Boston................. $ 28,750,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated................... $ 28,750,000
------------
Total...................................... $ 115,000,000
=============
CLASS A-3 NOTES
Principal Amount
----------------
Salomon Smith Barney Inc................... $ 33,000,000
Chase Securities Inc....................... $ 33,000,000
Credit Suisse First Boston................. $ 33,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated................... $ 33,000,000
------------
Total...................................... $ 132,000,000
=============
CLASS A-4 NOTES
Principal Amount
----------------
Salomon Smith Barney Inc................... $ 29,750,000
Chase Securities Inc....................... $ 29,750,000
Credit Suisse First Boston................. $ 29,750,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated................... $ 29,750,000
------------
Total...................................... $ 119,000,000
=============
</TABLE>
The seller has been advised by the underwriters that they propose
initially to offer the notes to the public at the prices set forth in this
prospectus supplement, and to certain dealers at that price less the initial
concession not in excess of 0.090% of the denominations of the notes per class
A-1 note, 0.144% per class A-2 note, 0.162% per class A-3 note and 0.180% per
class A-4 note. The underwriters may allow, and the dealers may reallow, a
concession not in excess of 0.090% per class A-1 note, 0.120% per class A-2
note, 0.140% per class A-3 note and 0.175% per class A-4 note to certain other
dealers. After the initial public offering of the notes, the public offering
price and the concessions may be changed. The underwriters are obligated to
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purchase and pay for all of the notes if any notes are purchased. The
underwriters currently intend, but are not obligated, to make a market in the
notes.
In connection with this offering, the underwriters have agreed to
reimburse the seller for certain expenses incurred by the seller in issuing the
notes.
Onyx has agreed to indemnify the underwriters against certain
liabilities, including liabilities under applicable securities laws, or to
contribute to payments the underwriters may be required to make in respect
thereof.
Onyx or its affiliates may apply all or any portion of the net proceeds
of the sale of the contracts to the trust to the repayment of debt, including
"warehouse" debt secured by the contracts. One or more of the underwriters (or
(i) their respective affiliates or (ii) entities for which their respective
affiliates act as administrator and/or provide liquidity lines) may have acted
as a "warehouse" lender or purchaser to Onyx or its affiliates and may receive a
portion of such proceeds as repayment of such "warehouse" debt.
LEGAL MATTERS
Certain legal matters with respect to the notes and with respect to the
federal income tax matters discussed under "Certain Federal Income Tax
Consequences" in the prospectus will be passed upon for the seller by Andrews &
Kurth L.L.P., Dallas, Texas. Certain legal matters with respect to the notes
will be passed upon for the underwriters by Brown & Wood LLP, New York, New
York. Certain legal matters relating to the policy will be passed upon for the
insurer by Shaw Pittman, New York, New York.
EXPERTS
The consolidated balance sheets of MBIA and its subsidiaries as of
December 31, 1999 and 1998 and the related consolidated statements of income,
changes in shareholder's equity, and cash flows for each of the three years in
the period ended December 31, 1999, incorporated by reference in this prospectus
supplement, have been incorporated in this prospectus supplement in reliance on
the report of PricewaterhouseCoopers LLP, independent accountants, given on the
authority of that firm as experts in accounting and auditing.
REPORTS TO NOTEHOLDERS
Unless definitive notes are issued, which will occur under the limited
circumstances described in this prospectus supplement and in the prospectus, the
servicer will send unaudited monthly and annual reports concerning the trust to
the indenture trustee to be delivered to Cede & Co. as the nominee of DTC and
the registered holder of the notes. See "Description of the Securities --
Statements to Securityholders" in the prospectus. The reports will not
constitute
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<PAGE> 50
financial statements prepared in accordance with generally accepted accounting
principles. DTC will supply the reports to you in accordance with its
procedures. See "Description of the Securities -- Book-Entry Registration" in
the prospectus. None of the seller, the servicer, or the insurer intends to send
any of its financial reports to you.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
In addition to the documents described in the prospectus under
"Incorporation of Certain Documents by Reference," the consolidated financial
statements of MBIA included in, or as exhibits to, the following documents which
have been filed with the SEC by MBIA, are hereby incorporated by reference in
this prospectus supplement:
(a) Annual Report on Form 10-K for the year ended December 31, 1999;
and
(b) Quarterly Report on Form 10-Q for the quarter ended March 31,
2000.
All financial statements of MBIA included in documents filed by MBIA
under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of this prospectus supplement and prior to the termination of the offering
of the notes shall be deemed to be incorporated by reference into this
prospectus supplement and to be a part hereof from the respective dates of
filing of such documents.
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GLOSSARY OF TERMS
"ACCELERATED PRINCIPAL COMMENCEMENT DATE" means the first distribution
date on which:
- the aggregate outstanding principal balance of the contracts on
that distribution date is equal to or less than 15% of the
Original Pool Balance; and
- the Spread Account Maximum, after giving effect to any
distribution from the payment account to the spread account on
that distribution date, has been reached.
"ACCELERATED PRINCIPAL DISTRIBUTABLE AMOUNT" means, with respect to any
distribution date occurring on or after the Accelerated Principal Commencement
Date, the amount which would remain on deposit in the payment account for that
distribution date after giving effect to distributions under clauses (1) through
(8) under "Description of the Sale and Servicing Agreement -- Distributions" in
this prospectus supplement without regard to the inclusion of that amount as
part of the Note Principal Distributable Amount. The Accelerated Principal
Distributable Amount shall be included in the Note Principal Distributable
Amount until all of the notes have been paid in full.
"AMOUNT FINANCED" means, with respect to a contract, the aggregate
amount advanced under the contract toward the purchase price of the related
financed vehicle and related costs, including amounts advanced in respect of
accessories, insurance premiums, extended service and warranty contracts, and
other items customarily financed as part of retail automobile installment sales
contracts.
"CAPITALIZED INTEREST AMOUNT" means, with respect to each distribution
date following a Collection Period during which amounts are on deposit in the
prefunding account, an amount equal to the greater of:
(a) the sum of the Note Interest Distributable Amount for such
distribution date, plus the sum of the fees payable to the owner
trustee, the indenture trustee and the trust agent, and the premium
payable to the insurer for such distribution date, in each case,
allocable to the balance in the prefunding account at the beginning of
the related Collection Period, on a pro rata basis, minus the earnings
received by the indenture trustee on behalf of the trust during the
related Collection Period from investment of the funds on deposit in the
prefunding account; and
(b) the amount, if any, by which (i) the sum of the servicing
fees, the Note Interest Distributable Amount, the fees payable to the
owner trustee, the indenture trustee and the trust agent, and the
premium payable to the insurer for such distribution date exceeds (ii)
net collections plus the earnings received by the indenture trustee on
behalf of the trust during the related Collection Period from investment
of the funds on deposit in the prefunding account.
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"COLLECTION PERIOD" means with respect to a distribution date, the
calendar month preceding the month in which that distribution date occurs;
provided, that with respect to Liquidated Contracts, the Collection Period will
be the period from, but excluding, the sixth business day preceding the
immediately preceding distribution date to and including the sixth business day
preceding that distribution date. With respect to the first distribution date,
the Collection Period for Liquidated Contracts will be the period from and
including the related Cut-Off Date to and including the sixth business day
preceding the first distribution date.
"CRAM DOWN LOSS" means, with respect to a contract, if a court of
appropriate jurisdiction in an insolvency proceeding shall have issued an order
reducing the amount owed on the contract or otherwise modifying or restructuring
the scheduled payments to be made on the contract, an amount equal to:
- the excess of the Principal Balance of the contract immediately
prior to the order over the Principal Balance of the contract as
so reduced; and/or
- if the court shall have issued an order reducing the effective
rate of interest on the contract, the excess of the Principal
Balance of the contract immediately prior to the order over the
net present value (using as the discount rate the higher of the
annual percentage rate on the contract or the rate of interest,
if any, specified by the court in the order) of the scheduled
payments as so modified or restructured.
A Cram Down Loss shall be deemed to have occurred on the date of issuance of the
order.
"CUT-OFF DATE" means the Initial Cut-Off Date for the initial contracts,
the Subsequent Cut-Off Date for the subsequent contracts and the Prefunding
Cut-Off Date for the prefunded contracts.
"DEFAULTED CONTRACT" with respect to any Collection Period is a
contract:
- which is, at the end of that Collection Period, delinquent in
the amount of at least two monthly installments of principal and
interest; or
- with respect to which the related financed vehicle has been
repossessed or repossession efforts with respect to the related
financed vehicle have been commenced.
"DEFICIENCY AMOUNT" means, as of any distribution date, the amount by
which -
- the sum of the amounts set forth in clauses (1) though (4) under
"Description of the Sale and Servicing Agreement --
Distributions" in this prospectus supplement with respect to
that distribution date
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exceeds
- the amount of net collections available with respect to that
distribution date and the amount on deposit in the spread
account as of that distribution date and the amounts, if any,
transferred from the prefunding account and the capitalized
interest account to the payment account with respect to that
distribution date.
"ELIGIBLE INVESTMENTS" means investments acceptable to each rating
agency rating the notes as being consistent with the rating of the notes.
"FUNDED CONTRACTS" means the initial contracts and the subsequent
contracts, collectively.
"FUNDING PERIOD" means the period from the closing date until the
earliest to occur of (i) the date on which the balance in the prefunding account
is less than $2,500.00, (ii) the date on which a servicer default or indenture
event of default occurs or (iii) the close of business on October 26, 2000.
"INITIAL CONTRACTS" means the contracts acquired by the trust that have
been or will be originated or purchased on or before the Initial Cut-Off Date.
"INITIAL CUT-OFF DATE" means July 1, 2000.
"INTEREST ACCRUAL PERIOD" means, with respect to a distribution date,
the period from and including the prior distribution date to but excluding the
applicable distribution date; provided, that in the case of the period relating
to the first distribution date, the Interest Accrual Period will begin on and
include the closing date.
"LIQUIDATED CONTRACT" means a contract that:
- is the subject of a full prepayment;
- is a Defaulted Contract with respect to which liquidation
proceeds constituting, in the servicer's reasonable judgment,
the final amounts recoverable have been received and deposited
in the collection account;
- is paid in full on or after its maturity date; or
- has been a Defaulted Contract for four or more Collection
Periods and as to which liquidation proceeds have not been
deposited in the collection account;
provided, however, that in any event a contract that is delinquent in the amount
of five monthly installments of principal and interest at the end of a
Collection Period shall be deemed to be a Liquidated Contract and shall be
deemed to have a balance of zero.
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"LIQUIDATION EXPENSES" means the reasonable out-of-pocket expenses,
exclusive of overhead expenses, incurred by the servicer in realizing upon a
Defaulted Contract which are not recoverable under any insurance policy.
"MANDATORY PARTIAL REDEMPTION AMOUNT" means any balance (excluding
investment earnings) remaining on deposit in the prefunding account after giving
effect to the sale to the trust of all prefunded contracts sold to the trust
during the funding period, including any acquisition and conveyance of prefunded
contracts on the date on which the funding period ends.
"MANDATORY PARTIAL REDEMPTION DATE" means the distribution date
immediately following the date on which the funding period ends.
"MBIA" means MBIA Insurance Corporation.
"NET INSURANCE PROCEEDS" means the proceeds paid by any insurer under a
comprehensive and collision insurance policy related to a contract (other than
funds used for the repair of the related financed vehicle or otherwise released
to the related obligor in accordance with normal servicing procedures) after
reimbursement to the servicer of expenses recoverable under that policy.
"NET LIQUIDATION PROCEEDS" means the proceeds received by the servicer,
net of Liquidation Expenses, upon liquidation of any Defaulted Contract.
"NOTE DISTRIBUTABLE AMOUNT" means, with respect to any distribution
date, the sum of the Note Principal Distributable Amount and the Note Interest
Distributable Amount for that distribution date.
"NOTE INTEREST CARRYOVER SHORTFALL" means, with respect to any
distribution date and a class of notes, the excess, if any, of the Note Interest
Distributable Amount for that class for the immediately preceding distribution
date over the amount in respect of interest that is actually deposited in the
note distribution account with respect to that class on such preceding
distribution date, plus, to the extent permitted by applicable law, interest on
the amount of interest due but not paid to noteholders of the class on the
preceding distribution date at the related interest rate for the related
Interest Accrual Period; provided, however, that the Note Interest Carryover
Shortfall for the first distribution date shall be zero.
"NOTE INTEREST DISTRIBUTABLE AMOUNT" means, with respect to any
distribution date and a class of notes, the sum of:
- an amount equal to the interest accrued during the related
Interest Accrual Period at the related interest rate for that
class of notes on the outstanding principal amount of that class
of notes on the immediately preceding distribution date, after
giving effect to all payments of principal to noteholders of
that class on or prior to
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that distribution date, or, in the case of the first
distribution date, on the original principal amount of that
class of notes; and
- the Note Interest Carryover Shortfall for that class of notes
for that distribution date.
"NOTE PRINCIPAL CARRYOVER SHORTFALL" means, as of the close of any
distribution date, the excess of the Note Principal Distributable Amount for
that distribution date over the amount in respect of principal that is actually
deposited in the note distribution account on that distribution date.
"NOTE PRINCIPAL DISTRIBUTABLE AMOUNT" means, with respect to any
distribution date, the sum of:
- the Regular Principal Distributable Amount for that distribution
date;
- the Accelerated Principal Distributable Amount, if any, for that
distribution date; and
- any outstanding Note Principal Carryover Shortfall for the
immediately preceding distribution date;
provided, however, that the Note Principal Distributable Amount shall not exceed
the aggregate outstanding principal amount of the notes. Notwithstanding the
foregoing, the Note Principal Distributable Amount on the final scheduled
distribution date for each class of notes shall not be less than the amount that
is necessary to reduce the outstanding principal amount of the related class of
notes to zero.
"ONYX" means Onyx Acceptance Corporation.
"ORIGINAL POOL BALANCE" means the sum of:
- the total principal balance of the initial contracts as of the
Initial Cut-Off Date;
- the total principal balance of the subsequent contracts as of
the Subsequent Cut-Off Date; and
- the initial deposit in the prefunding account on July 27, 2000.
"OWNER" means each noteholder who, on the applicable distribution date,
is entitled under the terms of the related note to distribution thereunder.
"POLICY CLAIM AMOUNT" means, with respect to each distribution date, the
sum of:
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- the Deficiency Amount for that distribution date; and
- the Preference Amount for that distribution date.
"PREFERENCE AMOUNT" means any amount previously distributed to an Owner
in respect of the notes that is recoverable and sought to be recovered as a
voidable preference by a trustee in bankruptcy with respect to Onyx, the seller
or the trust under the United States Bankruptcy Code, in accordance with a final
nonappealable order of a court having competent jurisdiction.
"PREFUNDED CONTRACTS" means the additional contracts acquired by the
trust that have been or will be originated or purchased on or after the
Subsequent Cut-Off Date but on or before the end of the funding period.
"PREFUNDING CUT-OFF DATE" means the cut-off date specified in a transfer
certificate relating to a prefunded contract.
"PRINCIPAL BALANCE" means, with respect to a contract, as of any date,
the Amount Financed under the terms of the contract minus:
- that portion of monthly installments of principal and interest
in respect of that contract received on or prior to the end of
the most recently ended Collection Period and allocable to
principal as determined by the servicer; and
- any Cram Down Loss incurred in respect of the contract on or
prior to the end of the most recently ended Collection Period.
For purposes of this definition, allocations of monthly installments of
principal and interest on each contract by the servicer shall be made as
described under "The Onyx Portfolio of Motor Vehicle Contracts - Allocation of
Payments on Contracts to Interest and Principal" in the prospectus.
"PURCHASE AMOUNT" means, with respect to a Purchased Contract, the
Principal Balance of the contract as of the date of purchase of the contract
plus accrued and unpaid interest.
"PURCHASED CONTRACT" means a contract that:
- has been purchased by Onyx or the seller because of certain
material defects in documents related to the contract or certain
breaches of representations and warranties regarding the
contract made by the seller in the sale and servicing agreement
that materially and adversely affect the interests of the
noteholders or the insurer;
- has been purchased by the servicer because of certain breaches
of servicing covenants; or
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- has been purchased by the servicer at its option after the
aggregate outstanding Principal Balance of the contracts has
declined to 10% or less of the Original Pool Balance.
"REGULAR PRINCIPAL DISTRIBUTABLE AMOUNT" means, with respect to any
distribution date, the amount equal to the sum of the following amounts with
respect to the related Collection Period:
- collections received on contracts, other than Liquidated
Contracts and Purchased Contracts, allocable to principal as
determined by the servicer, including full and partial principal
prepayments (other than partial prepayments on rule of 78's and
actuarial contracts, representing amounts not due in that
Collection Period, which will be deposited into the payahead
account);
- the Principal Balance of all contracts, other than Purchased
Contracts, that became Liquidated Contracts during the related
Collection Period;
- the Principal Balance as of the date of purchase of all
contracts that became Purchased Contracts as of the immediately
preceding record date; and
- the aggregate amount of Cram Down Losses incurred during the
related Collection Period.
"SERVICER REPORT DATE" means, with respect to any distribution date, the
fifth business day prior to such distribution date.
"SPREAD ACCOUNT MAXIMUM" for a distribution date means an amount
calculated under the insurance agreement.
"SUBSEQUENT CONTRACTS" means the additional contracts acquired by the
trust that have been or will be originated or purchased on or after the Initial
Cut-Off Date but before the Subsequent Cut-Off Date.
"SUBSEQUENT CUT-OFF DATE" means July 26, 2000.
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PROSPECTUS
ONYX ACCEPTANCE AUTO LOAN TRUSTS
ISSUER
AUTO LOAN BACKED NOTES
AUTO LOAN BACKED CERTIFICATES
ONYX ACCEPTANCE FINANCIAL CORPORATION,
SELLER
ONYX ACCEPTANCE CORPORATION,
SERVICER
CONSIDER CAREFULLY THE RISK FACTORS BEGINNING ON PAGE 6 OF THIS PROSPECTUS AND
THE RISK FACTORS SET FORTH IN THE RELATED PROSPECTUS SUPPLEMENT.
The notes and the certificates will represent interest in or obligations of the
trust only and will not represent interests in or obligations of Onyx Acceptance
Corporation, Onyx Acceptance Financial Corporation or any of their affiliates.
This prospectus may be used to offer and sell any of the notes and/or
certificates only if accompanied by the prospectus supplement for the related
trust.
THE TRUSTS --
- may sell auto loan backed notes and/or certificates from time to time
in one or more series; and
- may issue one or more classes of notes and/or one or more classes of
certificates in connection with each series of notes and certificates.
THE NOTES --
- will represent non-recourse obligations of a trust and will be paid only
from the assets of that trust;
- may have one or more forms of enhancement; and
- will be issued in one or more classes of notes.
THE CERTIFICATES --
- will represent undivided ownership interests in a trust and will be paid
only from the assets of that trust;
- may have one or more forms of enhancement; and
- will be issued in one or more classes of certificates.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
The date of this prospectus is February 23, 2000
<PAGE> 59
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
IMPORTANT NOTICE ABOUT INFORMATION
PRESENTED IN THIS PROSPECTUS...................................................................iii
SUMMARY OF TERMS......................................................................................1
RISK FACTORS..........................................................................................6
THE TRUSTS............................................................................................9
THE TRUSTEE AND THE INDENTURE
TRUSTEE..............................................................................................10
THE ONYX PORTFOLIO OF MOTOR VEHICLE
CONTRACTS............................................................................................10
Purchase, Origination and Servicing of Motor
Vehicle Contracts............................................................................10
Underwriting....................................................................................11
Insurance.......................................................................................14
Collection Procedures...........................................................................14
Modifications and Extensions....................................................................15
Delinquency and Loan Loss Information...........................................................15
Allocation of Payments on Contracts to Interest
and Principal................................................................................16
We Will Provide More Specific Information
About the Contracts in the Prospectus
Supplement...................................................................................17
PREFUNDING ARRANGEMENTS..............................................................................18
MATURITY AND PREPAYMENT
CONSIDERATIONS..................................................................................19
POOL FACTOR AND POOL INFORMATION.....................................................................20
USE OF PROCEEDS......................................................................................20
THE SELLER...........................................................................................21
THE SERVICER.........................................................................................22
DESCRIPTION OF THE SECURITIES........................................................................22
General.........................................................................................22
Principal and Interest on the Securities........................................................23
Book-Entry Registration.........................................................................24
Definitive Securities...........................................................................29
List of Securityholders.........................................................................30
Statements to Securityholders ..................................................................30
DESCRIPTION OF THE TRANSFER AND
SERVICING AGREEMENTS............................................................................32
Sale and Assignment of the Contracts............................................................32
The Collection Account and Eligible Investments.................................................34
Payahead Account................................................................................35
Other Accounts..................................................................................35
Collections.....................................................................................35
Payments and Distributions .....................................................................36
Credit and Cash Flow Enhancement................................................................37
Insurance on Financed Vehicles..................................................................38
Servicer Reports to the Trustees and Security
Insurer......................................................................................38
Repurchase of Contracts.........................................................................38
Servicing Fee...................................................................................38
Waivers and Extensions..........................................................................39
Realization Upon Defaulted Contracts............................................................39
Evidence as to Compliance.......................................................................39
Certain Matters Regarding the Servicer..........................................................39
Servicer Default................................................................................40
Rights Upon Servicer Default....................................................................42
Waiver of Servicer Default......................................................................43
Nonpetition Covenant............................................................................43
Amendment.......................................................................................44
Termination.....................................................................................45
The Trustee and Indenture Trustee...............................................................46
Administration Agreement........................................................................47
THE INDENTURE........................................................................................48
Modification of Indenture.......................................................................48
Indenture Events of Default.....................................................................49
Rights Upon Indenture Event of Default..........................................................50
Covenants.......................................................................................51
Annual Compliance Statement.....................................................................53
Indenture Trustee's Annual Report...............................................................53
Satisfaction and Discharge of Indenture.........................................................53
The Indenture Trustee...........................................................................53
CERTAIN LEGAL ASPECTS OF THE
CONTRACTS.......................................................................................54
General.........................................................................................54
Security Interests in the Financed Vehicles.....................................................54
Repossession ...................................................................................56
Notice of Sale; Redemption Rights ..............................................................56
Deficiency Judgments and Excess Proceeds .......................................................57
Consumer Protection Laws .......................................................................57
Other Limitations ..............................................................................58
Repurchase Obligation...........................................................................59
CERTAIN FEDERAL INCOME TAX
CONSEQUENCES....................................................................................59
TRUSTS FOR WHICH A PARTNERSHIP
ELECTION IS MADE ...............................................................................60
Tax Characterization of the Trust as
a Partnership................................................................................60
Tax Consequences to Holders of the Notes........................................................61
Tax Consequences to Holders of the Certificates.................................................63
TRUSTS TREATED AS GRANTOR TRUSTS ....................................................................68
Tax Characterization of the Trust as a
Grantor Trust ...............................................................................68
Stripped Bonds and Stripped Coupons ............................................................70
ERISA CONSIDERATIONS.................................................................................74
PLAN OF DISTRIBUTION.................................................................................75
LEGAL OPINIONS ......................................................................................76
AVAILABLE INFORMATION................................................................................76
INCORPORATION OF CERTAIN DOCUMENTS
BY REFERENCE....................................................................................76
</TABLE>
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IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS PROSPECTUS
Information about the notes and the certificates is contained in two
separate documents that progressively provide more detail:
- this prospectus, which provides general information; and
- a prospectus supplement related to each series of securities, which
describes the specific terms of a series of securities.
You should rely only on the information contained in this prospectus and
the related prospectus supplement or that we have referred you to. We have not
authorized anyone to provide you with information that is different.
In this prospectus, we include cross references to sections in these
materials where you can find further related discussions. The table of contents
on the preceding page also identifies the pages where these sections are
located.
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SUMMARY OF TERMS
The following summary is a short, concise description of the information
contained elsewhere in this prospectus. For this reason, the summary does not
contain all of the information that may be important to you. To fully understand
the terms of the offering of the securities, you will need to read both this
prospectus and the related prospectus supplement, each in its entirety.
THE ISSUER
A separate trust will be formed with respect to each series of securities. The
seller will form each trust by entering into either:
- a trust agreement among the Seller and the
trustee for the trust; or
- a pooling and servicing agreement among
the seller, the servicer and the trustee for
the trust.
THE SELLER
Onyx Acceptance Financial Corporation, a Delaware corporation and a
wholly-owned, limited purpose subsidiary of Onyx Acceptance Corporation. The
seller's principal executive offices are located at 27051 Towne Centre Drive,
Suite 200, Foothill Ranch, California 92610, and its telephone number is (949)
465-3500. See "The Seller" in this prospectus.
THE SERVICER
Onyx Acceptance Corporation, a Delaware corporation. The servicer's principal
executive offices are located at 27051 Towne Centre Drive, Suite 100, Foothill
Ranch, California 92610, and its telephone number is (949) 465-3900. See "The
Servicer" in this prospectus.
THE TRUSTEE
Each prospectus supplement will specify the
trustee of the trust for that series of securities.
THE INDENTURE TRUSTEE
With respect to any series of securities that includes one or more classes of
notes, the prospectus supplement will specify the indenture trustee for that
series of securities in the related prospectus supplement.
THE DISTRIBUTION DATE
Interest and principal on the notes and the certificates will be payable on the
date set forth in the related prospectus supplement.
THE NOTES
A series of securities may include one or more classes of notes. The notes
issued by each trust will be governed by an indenture between the trust and an
indenture trustee. We will specify, in the related prospectus supplement, which
class or classes of notes, if any, will be offered in connection with the
issuance of a series.
Principal and Interest on the Notes
Except as described below with respect to strip notes, each class of notes will
have a stated note principal balance specified in the related prospectus
supplement. The notes will accrue interest on the stated note principal balance
at a specified interest rate. Each class of notes may have a different interest
rate. The interest rate may be fixed, variable or adjustable, or any combination
of fixed, variable and adjustable. We will specify the interest rate for each
class of notes, or the method for determining such
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interest rate, in the related prospectus supplement.
If a series includes two or more classes of notes, as specified in the related
prospectus supplement, each class may differ as to:
- timing and priority of payments;
- seniority of payments;
- allocations of losses;
- calculation or amount of the interest rate;
- amount of payments of principal or interest;
- whether or not payments of principal and interest will be delayed or
not made at all upon the occurrence of specified events; and
- whether payments of principal and interest may or may not be made from
designated portions of the pool of contracts.
THE CERTIFICATES
A series of securities may include one or more classes of certificates. The
certificates will be governed by a trust agreement. We will specify, in the
related prospectus supplement, which class or classes of certificates, if any,
will be offered in connection with the issuance of a series.
Principal and Interest on the Certificates
Except as described below with respect to strip certificates, each class of
certificates will have a stated principal balance specified in the related
prospectus supplement. The certificates will accrue interest on the applicable
stated principal balance at a specified interest rate. Each class of
certificates may have a different interest rate. The interest rate may be fixed,
variable or adjustable, or any combination of fixed, variable and adjustable. We
will specify the interest rate for each class of certificates or the method for
determining such certificate rate in the related prospectus supplement.
Subordination to Notes
If a series of securities includes classes of notes and certificates,
distributions on the certificates may be subordinated to payments on the notes
to the extent specified in the related prospectus supplement.
OPTIONAL REDEMPTION
If the servicer or a successor to the servicer exercises its option to purchase
the contracts of the trust, the notes and certificates then outstanding will be
redeemed as set forth in the related prospectus supplement. See "Description of
the Transfer and Servicing Agreements - Termination" in this prospectus.
A TRUST MAY ISSUE MULTIPLE CLASSES OF SECURITIES WITH DIFFERENT CHARACTERISTICS
Each trust may issue more than one class of notes and certificates. In these
cases, the characteristics of the securities in each class may differ from one
another. Some of these characteristics are:
- timing and priority of payments;
- seniority of payments;
- allocations of losses;
- calculation or amount of the interest rate;
- amount of distribution of principal or interest;
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- whether or not distributions of principal and interest will be delayed
or not made at all upon the occurrence of specified events; and
- whether distributions of principal and interest may or may not be made
from designated portions of the pool of contracts.
Any differences in characteristics will be specified in the prospectus
supplement.
STRIP SECURITIES MAY BE ISSUED
In addition, a trust might issue one or more classes of notes or certificates
providing for distributions of interest which are disproportionately large or
small in comparison to principal distributions, including:
- principal distributions with disproportionate, nominal or no interest
payments; or
- interest distributions with disproportionate, nominal or no principal
payments.
THE TRUST PROPERTY
The contracts supporting the securities of each trust will consist of a pool of
motor vehicle retail installment sale contracts and/or installment loan
agreements, each of which is secured by a new or used automobile, light-duty
truck or van, and other property, including:
- documents relating to the contracts;
- monies received with respect to the contracts on or after the
applicable cut- off date specified in the related prospectus
supplement;
- security interests in the vehicles financed by the contracts;
- the rights to receive proceeds from claims on various insurance
policies covering the financed vehicles or the individual obligors
under each related contract;
- all amounts on deposit in specified accounts identified in the related
prospectus supplement, including, to the extent described in the
related prospectus supplement, eligible investments credited to those
accounts;
- the benefits of any form of credit enhancement identified in the
applicable prospectus supplement;
- the right of the seller to cause Onyx to repurchase contracts in
particular circumstances; and
- all proceeds of the foregoing.
See "The Trusts" in this prospectus.
The seller will sell or transfer contracts to the trust on or before the closing
date on which a specified series of securities is issued, as set forth in the
related prospectus supplement. The prospectus supplement will specify the
aggregate principal balance of the contracts initially transferred to the trust.
If the trust related to a series of securities will be treated as an owner trust
for federal income tax purposes, the seller will sell the contracts to the trust
under a sale and servicing agreement among the seller, the servicer and the
trust. Alternatively, if the trust will be treated as a grantor trust for
federal income tax purposes, the seller will transfer the contracts to the trust
under a pooling and servicing agreement among the seller, the servicer and the
trustee.
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Other Property of the Trust
In addition to the contracts, each trust will own amounts on deposit in various
trust accounts, which may include:
- an account into which collections are deposited;
- an account to fund post-closing purchases of additional contracts;
- a spread account, reserve account or other account relating to credit
enhancement; and
- any other account identified in the related prospectus supplement.
THE CONTRACTS
The contracts included in the property of each trust will have been:
- either originated by automobile dealerships and assigned to Onyx, or
purchased or originated by subsidiaries of Onyx;
- purchased by the seller from Onyx or from a subsidiary of Onyx; and
- purchased by the trust from the seller.
See "The Onyx Portfolio of Motor Vehicle Contracts" in this prospectus. All of
the contracts included in the property of each trust will be selected based upon
the criteria specified in the related sale and servicing agreement or pooling
and servicing agreement, as applicable.
PREFUNDING ARRANGEMENTS
With respect to any series of securities, the trust may commit to purchase
additional contracts from the seller following the date on which the trust is
established and the related securities are issued. See "Prefunding Arrangements"
in this prospectus. We will describe any such prefunding arrangements in the
related prospectus supplement.
CREDIT AND CASH FLOW ENHANCEMENT
We may structure the securities of any series to include credit enhancement for
one or more classes of securities. Such credit enhancement may include any one
or more of the following:
- a surety bond or financial guarantee insurance policy provided by a
third-party insurer;
- subordination of one or more classes of securities to one or more
other classes of securities;
- a reserve fund;
- a yield maintenance account;
- over-collateralization;
- letters of credit;
- credit or liquidity facilities;
- guaranteed investment contracts;
- swaps or other interest rate protection agreements;
- repurchase obligations;
- cash deposits;
- other agreements or arrangements with respect to third party payments;
or
- other support.
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We will describe any such credit enhancement, including any limitations and
exclusions from coverage, in the related prospectus supplement. See "Description
of the Transfer and Servicing Agreements -- Credit and Cash Flow Enhancement" in
this prospectus.
TAX STATUS
If the prospectus supplement specifies that the related trust will be treated as
an owner trust, upon the issuance of a series of securities, tax counsel to the
trust will deliver an opinion to the effect that:
- any notes of such series will be characterized as debt for federal
income tax purposes; and
- the trust will not be characterized as an association or a publicly
traded partnership taxable as a corporation for federal income tax
purposes.
If the prospectus supplement specifies that the related trust will be treated as
a grantor trust, upon the issuance of the related series of certificates, tax
counsel to the trust will deliver an opinion to the effect that:
- the trust will be treated as a grantor trust for federal income tax
purposes; and
- the trust will not be subject to federal income tax.
See "Certain Federal Income Tax Consequences" in this prospectus for additional
information concerning the application of federal tax laws.
ERISA CONSIDERATIONS
Administrators of employee benefit plans should review the matters discussed
under "ERISA Considerations" in this prospectus and the related prospectus
supplement.
RATING
At the closing date of each series of securities, each class of securities in
such series will be rated in one of the four highest generic rating categories
established for such securities by at least one nationally recognized
statistical rating agency.
REGISTRATION OF THE SECURITIES
The securities may be available only in book- entry form. Each investor's
interest in the securities would be represented through an agent, rather than by
a physical note or certificate held by the investor. A trust will not issue
physical securities to investors unless specific events occur which make it
necessary or desirable to do so. See "Description of the Securities - Definitive
Securities" in this prospectus.
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RISK FACTORS
INTERESTS OF OTHER PERSONS IN THE CONTRACTS COULD REDUCE THE FUNDS AVAILABLE TO
MAKE PAYMENTS ON THE SECURITIES.
In connection with the sale of contracts to a trust, the seller will
assign the security interests in the financed vehicles securing those contracts
to the trust at the time of sale. If a series of securities includes one or more
classes of notes, the trust will pledge the security interests in the financed
vehicles to the related indenture trustee. Due to the administrative burden and
expense, the certificates of title to the financed vehicles will not be amended
to reflect the assignment to the trust or the indenture trustee. In the absence
of such an amendment, the trust and the indenture trustee may not have perfected
security interests in the financed vehicles securing the contracts in some
states. If the trust or the indenture trustee does not have a perfected security
interest in a financed vehicle, the collections on that contract and the
proceeds from the sale of the financed vehicle securing that contract may not be
available to make payment on the securities.
The security interest of the trust and, if applicable, the indenture
trustee, could be impaired for one or more of the following reasons:
- Onyx or one of its subsidiaries might fail to perfect its
security interest in a contract;
- Onyx or one of its subsidiaries might fail to perfect its
security interest in a financed vehicle;
- the trust may not have a security interest in the financed
vehicles in all states because the certificates of title to the
financed vehicles will not be amended to reflect assignment to
the trust;
- holders of some types of liens, such as tax liens or mechanics
liens, may have priority over the trust's security interest;
- the trust could lose its priority to a person who obtains
physical possession of a contract without knowledge of the
assignment of the contract to the trust; and
- the trust could lose its security interest or its priority
through fraud or negligence.
BANKRUPTCY OF ONYX COULD RESULT IN DELAYS IN PAYMENT OR LOSSES ON THE SECURITIES
If Onyx or a subsidiary of Onyx becomes subject to bankruptcy
proceedings, you could experience losses or delays in payments on your
securities. Onyx and each selling subsidiary of Onyx will transfer contracts to
the seller in a structure intended to constitute a "true sale." If the transfer
does constitute a "true sale," the applicable contracts and the proceeds thereof
would not be part of Onyx's or its subsidiary's bankruptcy estate should Onyx or
its subsidiary become the subject of a bankruptcy case. However, if Onyx or a
selling subsidiary of Onyx becomes subject to a bankruptcy proceeding, a court
in bankruptcy could conclude that Onyx or its subsidiary still owns the
contracts by concluding that the sale to the seller was not a "true sale" or
that the seller should be consolidated with Onyx. If a
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court were to reach this conclusion, you could experience losses or delays
in payments on your securities.
Onyx and the seller have taken and will take steps to structure the sale
of contracts to minimize the risk that a court would consolidate the seller with
Onyx for bankruptcy purposes or conclude that the sale of contracts to the
seller was not a "true sale." These steps include the creation of the seller as
a separate, limited purpose subsidiary of Onyx. The seller's certificate of
incorporation contains limitations which restrict the nature of the seller's
business. Further, the seller's certificate of incorporation restricts the
seller's ability to commence a voluntary case or proceeding in bankruptcy
without the prior unanimous affirmative vote of all of its directors. See "The
Seller" in this prospectus.
The trustee, the indenture trustee, the seller, the servicer and all
holders of securities will covenant that they will not at any time institute
against the seller or the trust any bankruptcy, reorganization or other
proceeding under any federal or state bankruptcy or similar law.
PREPAYMENTS MAY ADVERSELY AFFECT THE AVERAGE LIFE AND YIELDS OF THE SECURITIES.
The rate of payment of principal on the securities of each series
depends primarily on the rate of payments, including prepayments, on the
principal balance of the related contracts. As a result, final payment on any
class of securities could occur significantly earlier than the maturity date set
forth in the related prospectus supplement.
All of the contracts may be prepaid at any time. Prepayments may include
all of the following:
- an obligor on a contract makes payments, in whole or in part,
earlier than scheduled;
- the servicer liquidates a defaulted contract; and
- the servicer or seller is required to purchase or repurchase, as
the case may be, a contract from the trust.
Onyx cannot predict the actual prepayment rates that will occur on the
contracts in either stable or changing interest rate environments. See "Maturity
and Prepayment Considerations" in this prospectus and in the prospectus
supplement.
SUBORDINATION MAY CAUSE SOME CLASSES OF SECURITIES TO BEAR ADDITIONAL CREDIT
RISK.
Payments of interest and principal on one or more classes of securities
of a series may be subordinated to one or more other classes of securities of
the same series. Subordination of a class of securities has the effect of
increasing the likelihood of payment on the senior classes in that series and
decreasing the likelihood of payment on the subordinated classes of that series.
A class of securities may be subordinated to another class of securities in that
series with respect to timing and priority of payment, seniority and allocations
of losses, among other things. Any subordination will be described in the
related prospectus supplement.
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ONLY THE ASSETS OF THE TRUST ARE AVAILABLE TO MAKE PAYMENTS ON THE SECURITIES.
No trust will have, nor is a trust permitted or expected to have, any
significant assets or sources of funds other than the related contracts and the
other assets described in the related prospectus supplement. The notes of any
series will represent obligations solely of the related trust. The certificates
of any series will represent interests solely in the related trust. None of the
seller, the servicer or any of their respective affiliates, the trustee, or any
indenture trustee will insure or guarantee the notes or the certificates of any
series. Accordingly, you must rely upon payments on the contracts and amounts,
if any, available from the other assets specified in the related prospectus
supplement for repayment on the securities.
FAILURE TO COMPLY WITH CONSUMER PROTECTION LAWS MAY AFFECT THE ENFORCEABILITY OF
THE CONTRACTS.
Federal and state governments have enacted consumer protection laws
which apply to the contracts. These laws impose requirements with respect to the
making, transfer, acquisition, enforcement and collection of consumer contracts
and loans. These laws, as well as any new laws or rules which may be adopted,
may adversely affect the servicer's ability to collect on the contracts. If the
originator of the contracts or the servicer fails to comply with these consumer
protection laws, the contracts may not be enforceable. The seller will make
representations and warranties to the trust stating that the related contracts
are valid and enforceable and that the related contracts complied with
applicable law at the time they were made. Accordingly, the seller will be
obligated to repurchase each contract that does not comply with the applicable
requirements of any consumer protection law if the applicable trust's interest
in that contract is materially and adversely affected by such noncompliance. The
repurchase obligation of the seller is the sole remedy if the contract does not
comply with the representations and warranties of the seller within the
applicable cure period. See "Description of the Transfer and Servicing
Agreements -- Repurchase of Contracts" and "Certain Legal Aspects of the
Contracts -- Repurchase Obligation" in this prospectus.
IF BOOK-ENTRY REGISTRATION IS USED, YOU MAY BE ABLE TO EXERCISE YOUR RIGHTS AS A
SECURITYHOLDER ONLY THROUGH THE CLEARING AGENCY.
If the prospectus supplement specifies that securityholders of the trust
will hold their interests through a clearing agency or one of its participating
organizations, the securities will be registered in the name of a nominee of the
clearing agency and physical certificates will not be issued to individual
securityholders. You will not be recognized as a securityholder directly by the
trustee of the trust or the indenture trustee and must exercise all of your
rights and receive any payments through the clearing agency or the participating
organization, unless physical certificates are issued. Your ability to pledge
your securities to persons or entities that are not participating organizations
of the clearing agency may be limited due to lack of a physical certificate.
Physical certificates will only be issued in limited circumstances. See
"Description of the Securities -- Book-Entry Registration" in this prospectus.
Additionally, you may experience some delay in your receipt of payments
or distributions of interest and principal since the payments or distributions
will be provided by the trustee or indenture trustee to the clearing agency and
the clearing agency will credit the payments or distributions to the accounts of
its participants. The participants will then credit the payments or
distributions to your
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account either directly or indirectly through the clearing agency's indirect
participants. The clearing agency in the United States is expected to be DTC,
and in Europe either Clearstream or Euroclear.
THE TRUSTS
With respect to each series of securities, the seller will establish a
separate trust under either a trust agreement or a pooling and servicing
agreement, as applicable, to issue each series of notes and certificates. A
trust will be established for the transactions described in this prospectus and
the related prospectus supplement. The property of the trust will include:
- the related contracts,
- documents relating to the contracts,
- monies received with respect to the contracts on or after the
cut-off date specified in the related prospectus supplement,
- security interests in the related financed vehicles and the
rights to receive proceeds from claims on insurance policies
covering such financed vehicles or the individual obligors under
each related contract,
- amounts on deposit in certain specified accounts, including, to
the extent described in the related prospectus supplement,
eligible investments credited to such accounts;
- the benefits of any form of credit enhancement identified in the
related prospectus supplement;
- the right of the seller to cause Onyx to repurchase contracts
under some circumstances, and
- all proceeds of the foregoing.
To the extent specified in the related prospectus supplement, a security
insurance policy, reserve fund or other form of credit enhancement may be a part
of the property of the trust or may be held by the trustee or an indenture
trustee for the benefit of holders of the related securities.
Prior to formation, the trust will have had no assets or obligations.
After formation, the trust will not engage in any activity other than acquiring
and holding the related contracts, issuing the related securities, distributing
payments in respect thereof and as otherwise described in this prospectus, in
the related prospectus supplement and in the trust agreement or pooling and
servicing agreement, as applicable. The trust will not acquire any contracts or
assets other than the trust property.
The principal offices of each trust that is not a grantor trust and the
related trustee will be specified in the applicable prospectus supplement.
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THE TRUSTEE AND THE INDENTURE TRUSTEE
The trustee for each trust and, if applicable, the indenture trustee,
will be specified in the related prospectus supplement. The trustee's and, if
applicable, the indenture trustee's liability in connection with the issuance
and sale of the related securities will be limited solely to the express
obligations of the trustee or indenture trustee set forth in the related trust
agreement, sale and servicing agreement, and indenture or the related pooling
and servicing agreement, as applicable.
THE ONYX PORTFOLIO OF MOTOR VEHICLE CONTRACTS
PURCHASE, ORIGINATION AND SERVICING OF MOTOR VEHICLE CONTRACTS
Onyx's portfolio of motor vehicle contracts consists of retail
installment sales contracts and installment loan agreements secured by new and
used automobiles, light-duty trucks and vans. Onyx targets the prime auto
lending market because it believes that prime lending produces greater
origination and operating efficiency than does sub-prime lending. Onyx focuses
on late model used, rather than new, vehicles, as management believes the risk
of loss on used vehicles is lower due to lower depreciation rates, while
interest rates are typically higher. In addition, Onyx believes that the late
model used motor vehicle finance market is growing at a faster rate than is the
finance market for new motor vehicles.
Onyx has three auto lending programs:
- the "premier" program;
- the "preferred" program; and
- the "standard" program.
The premier program allows Onyx to market lower interest rates in order to
capture customers of superior credit quality. The preferred program allows Onyx
to offer contracts at higher interest rates to borrowers with proven credit
quality. The standard program allows Onyx to assist qualified borrowers, who may
have experienced previous credit problems or have not yet established a
significant credit history, at interest rates higher than the premium and
preferred programs.
Onyx generally acquires the contracts in its portfolio through one or
more of the following methods:
- Onyx purchases contracts from automobile dealers that originate
the contracts;
- a subsidiary of Onyx purchases contracts from credit unions or
others that originate the contracts; and
- a subsidiary of Onyx originates the contracts.
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Onyx anticipates that substantially all of the contracts included in the trust
property of a trust will have been purchased by Onyx from new and used car
dealers unaffiliated with Onyx and the seller, with a limited number of
contracts having been purchased or originated by subsidiaries of Onyx. All of
the contracts will have been sold to the seller and then to the trust. The
dealers are located in metropolitan areas in which the contracts are or will be
originated. Each dealer, credit union or other party from which Onyx or a
subsidiary of Onyx purchases contracts has entered into an agreement with Onyx
or its subsidiary under which the dealer, credit union or other seller
represents that:
- it will comply with federal and state laws regarding motor
vehicle financing;
- it will obtain the requisite financial information required of
the obligor in order to extend credit; and
- it will truthfully disclose to Onyx or Onyx's subsidiary such
financial information, the identity of the obligor and other
information in connection with the transaction.
The dealers with whom Onyx has agreements and dealers with whom Onyx would like
to have agreements are regularly contacted by Onyx account managers by telephone
and in person in an effort to obtain a continued supply of contracts for Onyx to
purchase. Before purchasing contracts from an independent used car dealer, Onyx
completes a credit review of the dealer's financial condition, which includes a
review of financial information provided by the dealer and a Dun & Bradstreet
report on the dealer, and also completes a review of the underwriting criteria
used by the dealer. The payment obligations of the obligor under each contract
are secured by the vehicle purchased with the proceeds provided under that
contract.
Onyx services all of the contracts and initially will serve as the
primary servicer of the contracts included in the trust property of a trust
after they are sold by the seller to the trust. The servicing functions
performed by Onyx include:
- customer service;
- document filekeeping;
- computerized account record keeping;
- vehicle title processing; and
- collections.
UNDERWRITING
Onyx underwrites contracts purchased from dealers through its regional
auto finance centers located throughout the United States. Contracts purchased
from dealers in other states are generally purchased by the auto finance center
that is geographically most proximate to the state of origination. In the case
of contracts originated by a subsidiary of Onyx, such contracts are underwritten
at Onyx's Foothill Ranch, California location. Generally, each contract is fully
amortizing and provides for level
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payments over its term with the portion of principal and interest of each level
payment determined either on the basis of the actuarial method, the rule of 78's
method or the simple interest method. See "The Contracts" in this prospectus.
In determining whether to purchase a contract originated by a dealer or
whether to directly originate a contract, Onyx or a subsidiary of Onyx reviews
an application package concerning the applicant and the proposed contract. The
application package sets forth information concerning the applicant, including:
- the applicant's income;
- the applicant's liabilities;
- the applicant's credit and employment history;
- other personal information about the applicant; and
- a description of the financed vehicle that secures or will
secure the contract.
Most credit applications are not made on forms provided by Onyx or a subsidiary
of Onyx. However, Onyx or a subsidiary of Onyx reviews the related application
for completeness and for compliance with Onyx's underwriting guidelines and
applicable federal and state consumer statutes and regulations. To evaluate
credit applications, Onyx or a subsidiary of Onyx reviews information in the
application and from credit bureau reports obtained by Onyx or its subsidiary.
Each proposed contract is evaluated using uniform underwriting standards
developed by Onyx. These underwriting standards are intended to assess the
applicant's ability to repay all amounts due under the contract and the adequacy
of the related financed vehicle as collateral, based upon a review of the
information contained in the contract application. Among the criteria considered
by credit managers of Onyx and its subsidiaries in evaluating the individual
applications are:
- stability of the applicant with specific regard to the
applicant's occupation, length of employment and length of
residency;
- the applicant's payment history, based on information known
directly by Onyx or as provided by various credit reporting
agencies with respect to present and past debt;
- a debt service-to-gross monthly income ratio test; and
- the principal amount of the contract taking into account the
age, type and market value of the related financed vehicle.
After review of an application, a credit manager, via an electronic
system, communicates an appropriate decision to the dealer or other appropriate
party specifying approval, denial or a counter-offer on the proposed contract.
If the response requires stipulations to the approval, these are communicated
concurrently to the dealer or other party and become a condition of the
approval. After
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approval, if Onyx or a subsidiary of Onyx is the chosen source of financing,
Onyx or its subsidiary will obtain the necessary documentation for processing,
which consists of the following:
- a signed credit application;
- the only original and a copy of the executed contract;
- an agreement by the applicant to provide insurance;
- a report of sale or guarantee of title;
- an application for registration;
- a co-signer notification, if applicable;
- a copy of any supplemental warranty purchased with respect to
the financed vehicle;
- acceptable vehicle valuation documentation; and
- any other required documentation.
Once the appropriate documentation is in hand for funding, the file
relating to the contract is ready to forward to a contract processor for a
pre-funding audit. The contract processor, who is employed by Onyx or one of its
subsidiaries, then audits the documents for completeness and consistency with
the application, providing final approval for purchase of the contract once
these requirements have been satisfied.
The amount advanced by Onyx or a subsidiary of Onyx under any contract
generally does not exceed the manufacturer's suggested retail price for a new
financed vehicle, or the value assigned by a nationally recognized used car
value guide for a used financed vehicle, in either case plus taxes, title and
license fees, any extended warranty and any credit and other insurance. However,
the actual amount advanced for a contract is often less than the maximum
permissible amount depending on a number of factors, including the length of the
contract term and the model and year of the related financed vehicle. These
adjustments are made to assure that the related financed vehicle constitutes
adequate collateral to secure the contract. Under no circumstances is the amount
advanced for a contract greater than the amount payable by the applicant with
respect to the purchase of the related financed vehicle.
Periodically, Onyx makes a detailed analysis of its portfolio of
contracts to evaluate the effectiveness of Onyx's credit guidelines. If external
economic factors, credit delinquencies or credit losses change, Onyx adjusts its
credit guidelines to maintain the asset quality deemed acceptable by Onyx's
management. Onyx reviews, on a daily basis, the quality of its contracts by
conducting audits of randomly selected contracts to ensure compliance with
established policies and procedures.
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INSURANCE
Each contract requires the obligor to obtain comprehensive and collision
insurance with respect to the related financed vehicle with Onyx or a subsidiary
of Onyx as a loss payee. Onyx tracks whether obligors maintain the required
insurance.
COLLECTION PROCEDURES
Onyx performs collection activities with respect to delinquent contracts
at its Foothill Ranch, California collection center. Collection activities
include prompt investigation and evaluation of the causes of any delinquency. An
obligor is considered delinquent when he or she has failed to make at least 90%
of a scheduled payment under the contract within 30 days of the due date.
To automate its collection procedures, Onyx uses features of the
computer system of its third party service bureau, Online Computer Systems, Inc.
to provide tracking and notification of delinquencies. The collection system
provides relevant obligor information and records of all contracts. The system
also maintains a record of an obligor's promise to pay and affords supervisors
the ability to review collection personnel activity and to modify collection
priorities with respect to contracts. Onyx utilizes a predictive dialing system
located at its Foothill Ranch, California collection center to make phone calls
to obligors whose payments are past due by more than eight days but less than 30
days. The predictive dialer is a computer-controlled telephone dialing system
which dials phone numbers of obligors from a file of records extracted from
Onyx's database. By eliminating time wasted on attempting to reach obligors, the
system gives a single collector, on average, the ability to speak with and work
200 to 250 accounts per day. Once a live voice responds to the automated
dialer's call, the system automatically transfers the call to a collector and
the relevant account information to the collector's computer screen. The system
also tracks and notifies collections management of phone numbers that the system
has been unable to reach within a specified number of days, thereby promptly
identifying for management all obligors who cannot be reached by telephone.
Once an obligor on a contract is 20 days or more delinquent, the account
is assigned to a specific collector at the Foothill Ranch, California collection
center who will have primary responsibility for the delinquent account until it
is resolved. To expedite collections from late paying obligors, Onyx uses
Western Union "Quick Collect," which allows an obligor to make late payments at
numerous locations, which are in turn wired daily to Onyx's lockbox account by
Western Union. Onyx also uses a Western Union payment system that allows an
obligor to authorize Onyx to present a draft on the obligor's bank account
directly to the obligor's bank for payment to Onyx.
Generally, after a scheduled payment under a contract continues to be
past due for between 45 and 60 days, Onyx will initiate repossession of the
financed vehicle. However, if the applicable contract is deemed uncollectible,
if the related financed vehicle is deemed by collection personnel to be in
danger of being damaged, destroyed or made unavailable for repossession, or if
the related obligor voluntarily surrenders the related financed vehicle, Onyx
may repossess the related financed vehicle without regard to the length or
existence of payment delinquency. Repossessions are conducted by third parties
who are engaged in the business of repossessing vehicles for secured parties.
Under the laws of California and most other states in which contracts are
originated, after repossession, the obligor generally has an
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additional period of 10 to 15 days to redeem a financed vehicle before it may be
resold by Onyx in an effort to recover the balance due under the contract.
Losses may occur in connection with delinquent contracts and can arise
in several ways, including inability to locate the related financed vehicle or
the obligor, or because of a discharge of the obligor in a bankruptcy
proceeding. The current policy of Onyx is to recognize losses at the time a
contract is deemed uncollectible or during the month a scheduled payment under a
contract becomes 120 days or more past due, whichever occurs first.
Upon repossession and sale of a financed vehicle, any deficiency
remaining is pursued against the obligor to the extent deemed practical by Onyx
and to the extent permitted by law. The loss recognition and collection policies
and practices of Onyx may change over time in accordance with Onyx's business
judgment. However, the sale and servicing agreement or pooling and servicing
agreement, as applicable, will require that Onyx service the contracts and
collect all amounts due using reasonable care and in at least the same manner as
it services and collects amounts due with respect to contracts serviced by it
for its own account.
MODIFICATIONS AND EXTENSIONS
Onyx offers credit-related extensions to obligors. Generally, these
extensions are offered only when:
- Onyx believes that the obligor's financial difficulty has been
resolved or will no longer impair the obligor's ability to make
future payments;
- the extension will result in the obligor's payments being
brought current;
- the total number of credit-related extensions granted on the
contract will not exceed three;
- the total of credit-related extensions granted on the contract
will not exceed three months in the aggregate;
- there has been no more than one credit-related extension granted
on the contract in the immediately preceding twelve months; and
- Onyx or its assignee has held the contract for at least six
months.
Any deviation from this policy requires the concurrence of a collection
supervisor and Onyx's collection manager and the Executive Vice President,
Collections.
DELINQUENCY AND LOAN LOSS INFORMATION
Certain information concerning the experience of Onyx pertaining to
delinquencies, loan losses and recoveries with respect to its portfolio of
contracts, including receivables previously sold which Onyx continues to
service, will be set forth in each prospectus supplement. There can be no
assurance
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that the delinquency, loan loss and recovery experience on any contracts related
to a series of securities will be comparable to prior experience or to that
information.
ALLOCATION OF PAYMENTS ON CONTRACTS TO INTEREST AND PRINCIPAL
If so provided in the prospectus supplement, each of the contracts in
the trust property of a trust will be a fixed rate contract where the allocation
of each payment between interest and principal is calculated using one of the
three methods described below -- the simple interest method, the actuarial
method or the rule of 78's method.
SIMPLE INTEREST METHOD. Under the simple interest method, interest due
is calculated on the scheduled due date based on the actual principal balance of
the contract on that date. For simple interest contracts, interest accrued as of
the scheduled due date is paid first, and then the remaining payment is applied
to the unpaid principal balance. Accordingly, if an obligor pays the fixed
monthly installment in advance of the scheduled due date:
- the portion of the payment allocable to interest for the period
since the preceding payment will be less than it would be if the
payment were made as scheduled; and
- the portion of the payment allocable to reduce the principal
balance will be correspondingly greater.
Conversely, if an obligor pays the fixed monthly installment after its scheduled
due date:
- the portion of the payment allocable to interest for the period
since the preceding payment will be greater than it would be if
the payment were made as scheduled; and
- the portion of the payment allocable to reduce the principal
balance will be correspondingly smaller.
When necessary, an adjustment is made at the maturity of the contract to
the scheduled final payment to reflect the larger or smaller, as the case may
be, allocations of payments to interest and principal under the contract as a
result of early or late payments, as the case may be.
ACTUARIAL METHOD. Under the actuarial method, contracts provide for
amortization over a series of fixed level payment monthly installments, whereby
each monthly installment, including the monthly installment representing the
final payment on the contract, consists of:
- an amount of interest equal to 1/12 of the annual percentage
rate, or APR, of the contract multiplied by the unpaid principal
balance of the contract; and
- an amount of principal equal to the remainder of the monthly
payment.
RULE OF 78'S METHOD. Under the rule of 78's method, contracts provide
for the payment by the obligor of a specified total amount of payments, payable
in equal monthly installments, which total represents the principal amount
financed plus add-on interest in an amount calculated as if the contract
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were a self-amortizing, level-yield contract bearing interest at an APR equal to
the stated APR set forth in the contract. The amount of each payment allocable
to interest on a contract is determined by multiplying the total amount of
add-on interest payable over the term of the contract by a fraction derived as
described below. The fraction used in the calculation of add-on interest earned
each month under a rule of 78's contract has as its denominator a number equal
to the sum of a series of numbers representing the total number of monthly
payments due under the contract. For example, with a rule of 78's contract
providing for 12 payments, the denominator of each month's fraction will be 78,
the sum of the series of numbers from 1 to 12. The numerator of the fraction for
a given month is the number of payments remaining before giving effect to the
payment to which the fraction is being applied. Accordingly, in the example of a
twelve-payment rule of 78's contract, the fraction for the first payment is
12/78, for the second payment 11/78, for the third payment 10/78, and so on
through the final payment, for which the fraction is 1/78. The applicable
fraction is then multiplied by the total add-on interest payment over the entire
term of the contract, and the resulting amount is the amount of add-on interest
earned that month. The difference between the amount of the monthly payment by
the obligor and the amount of earned add-on interest calculated for the month is
applied to principal reduction.
The purchase price paid by a trust for each contract included in the
trust property of the trust will reflect the principal balance of the contract
as of the cut-off date. The cut-off date principal balance of the contract will
be calculated under the simple interest method, the actuarial method or the rule
of 78's method, as appropriate, or otherwise as described in the related
prospectus supplement. For rule of 78's contracts, a greater portion of the
early payments under a contract is allocated to interest than would be the case
using the actuarial method. Therefore, the cut-off date principal balance of
each rule of 78's contract will exceed the amount that would have been its
cut-off date principal balance under the actuarial method. The trustee or, if
applicable, indenture trustee, and the servicer will account for interest and
principal on rule of 78's contracts using the actuarial method, but based on the
cut-off date principal balance. The remaining payments due on a rule of 78's
contract will not be sufficient to amortize the cut-off date principal balance
of the contract at a yield equal to its APR. Accordingly, in order to amortize
the cut-off date principal balance over the remaining term of the rule of 78's
contract using the actuarial method, the servicer will:
- recompute the effective yield of the contract based on the
remaining payments due and the cut-off date principal balance;
and
- will allocate each scheduled payment of principal and interest
between principal and interest on each rule of 78's contract
based on the cut-off date principal balance and the recomputed
yield for the contract.
WE WILL PROVIDE MORE SPECIFIC INFORMATION ABOUT THE CONTRACTS IN THE PROSPECTUS
SUPPLEMENT
We will provide information about each contracts pool in the related
prospectus supplement, including, to the extent appropriate:
- the portion of the contracts pool consisting of simple interest
contracts, actuarial contracts and rule of 78's contracts;
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- the portion of the contracts pool secured by new vehicles and by
used vehicles;
- the aggregate principal balance of all of the contracts;
- the number of contracts;
- the average outstanding principal balance of the contracts;
- the average original amount financed and the range of original
amount financed;
- the weighted average APR and the range of APR's;
- the weighted average original term and the range of original
terms;
- the weighted average remaining term and the range of remaining
terms; and
- the distribution of the contracts by APR and by state of
origination.
PREFUNDING ARRANGEMENTS
If so provided in the related prospectus supplement for a series of
securities, a trust may be required to purchase additional contracts from the
seller following the date on which the trust is established and the related
securities are issued. With respect to a series of securities, the prefunding
arrangement will require that any additional contracts transferred to the trust
conform to the requirements and conditions provided in the related sale and
servicing agreement or pooling and servicing agreement, as applicable. If a
prefunding arrangement is utilized in connection with the issuance of a series
of securities, the servicer will establish a prefunding account in the name of
the related trustee or indenture trustee, as applicable, for the benefit of the
securityholders, into which all or a portion of the net proceeds received from
the sale of the securities will be deposited and from which monies will be
released during a specified period to purchase additional contracts from the
seller. Upon each conveyance of additional contracts to the trust, an amount
equal to the purchase price paid by the seller to Onyx, or a subsidiary of Onyx,
for the additional contracts will be released from the prefunding account and
paid to the seller.
The use of a prefunding arrangement for a series of securities is
intended to improve the efficiency of the issuance of the securities and the
sale of the contracts to the related trust through the incremental delivery of
the contracts on the closing date and during a specified period following the
closing date. This allows for a more even accumulation of the contracts by the
seller and by Onyx and its subsidiaries and the issuance of a larger principal
amount of securities than would be the case without a prefunding arrangement.
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MATURITY AND PREPAYMENT CONSIDERATIONS
The weighted average life of the securities of any trust will generally
be influenced by the rate at which the principal balances of the related
contracts are paid, which payment may be in the form of scheduled amortization
or prepayments. "Weighted average life" means the average amount of time in
which each dollar of principal on a contract is repaid. "Prepayments" for these
purposes include the following circumstances:
- prepayments in full;
- repurchases by the seller as a result of the failure of a
contract to meet the criteria set forth in the related sale and
servicing agreement or pooling and servicing agreement;
- purchases by the servicer as a result of a breach of certain of
its covenants with respect to the contracts made by it in the
related sale and servicing agreement or pooling and servicing
agreement;
- partial prepayments;
- liquidations of the contracts due to default;
- receipts of proceeds from theft, physical damage, credit life
and credit disability insurance policies; and
- optional repurchase by the servicer for administrative reasons.
The contracts will be prepayable in full by the obligors at any time
without penalty. Full and partial prepayments on simple interest contracts and
full prepayments on actuarial and rule of 78's contracts will be paid or
distributed to the related securityholders on the distribution date following
the collection period in which they are received. Partial prepayments on
actuarial and rule of 78's contracts, however, will be treated as "payaheads"
and will not be paid or distributed until the collection period in which the
payaheads are due or until the amount of the partial prepayment equals the
amount the obligor would be required to pay in order to prepay the contract in
full. See "Description of the Transfer and Servicing Agreements - Payahead
Account".
The rate of full prepayments by obligors on the contracts may be
influenced by a variety of economic, social and other factors, including the
fact that an obligor may not sell or transfer the financed vehicle securing a
contract without the consent of the servicer. These factors may also include:
- unemployment;
- servicing decisions;
- seasoning of the contracts;
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- destruction of vehicles by accident;
- sales of vehicles; and
- market interest rates.
California law, and the law of some other states, requires that retail
installment sales contracts and installment loan agreements such as the
contracts permit full prepayment without penalty. Any full prepayments reduce
the average life of the contracts. The servicer will permit the sale or other
transfer of a financed vehicle without accelerating the maturity of the related
contract if the contract is assumed by a person satisfying Onyx's then current
underwriting standards. See "The Onyx Portfolio of Motor Vehicle Contracts -
Underwriting".
Onyx can make no prediction as to the actual prepayment rates that will
be experienced on the contracts included in the trust property of any trust in
either stable or changing interest rate environments. Securityholders of each
series will bear all reinvestment risk resulting from the rate of prepayment of
the contracts. The related prospectus supplement may set forth additional
information with respect to the maturity and prepayment considerations
applicable to the particular contracts pool and the related securities of the
trust.
POOL FACTOR AND POOL INFORMATION
The "pool factor" will be a six-digit decimal which the servicer will
compute each month indicating the aggregate outstanding principal balance of the
related pool of contracts at the end of the month as a fraction of the aggregate
principal balance of the contracts as of the cut-off date specified in the
related prospectus supplement. The pool factor will be 1.000000 as of the
closing date; thereafter, the pool factor will decline to reflect reductions in
the aggregate principal balance of the related contracts. The amount of a
securityholder's pro rata share of the aggregate outstanding principal balance
of the pool of contracts for a given month can be determined by multiplying the
original denomination of the holder's security by the pool factor for that
month.
With respect to each trust, the related securityholders will receive
monthly reports from the trustee concerning payments received on the contracts,
the aggregate outstanding principal balance of the pool of contracts, the pool
factor, and various other items of information. Securityholders of record during
any calendar year will be furnished information for tax reporting purposes not
later than the latest date permitted by law. See "Description of the Securities
- Statements to Securityholders".
USE OF PROCEEDS
The net proceeds from the sale of securities of a given trust will be
applied by the trust:
- to the purchase of the contracts from the seller;
- to make the initial deposit into any prefunding account;
- to make the initial deposit into any yield supplement account;
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- to make the initial deposit, if any, into any reserve account,
spread account or other similar account;
- for any other purposes specified in the related prospectus
supplement.
The seller will use the net proceeds to be received by the seller from
the sale of securities of a given series to repay indebtedness incurred in
connection with its acquisition of the contracts and to pay other expenses in
connection with the pooling of the contracts and the issuance of the securities.
THE SELLER
The seller is a wholly-owned, limited purpose finance subsidiary of Onyx
that was incorporated under the laws of the State of Delaware on July 28, 1994
and has a limited operating history. The principal office of the seller is
located at 27051 Towne Centre Drive, Suite 200, Foothill Ranch, California
92610. The telephone number of the seller at its principal office is (949)
465-3500.
The seller was organized principally for the purpose of purchasing
retail installment sales contracts from Onyx in connection with its activities
as a finance subsidiary of Onyx. The seller was organized for limited purposes,
and its certificate of incorporation limits its activities to purchasing motor
vehicle contracts from Onyx, transferring the contracts to third parties and any
activities incidental to and necessary or convenient for the accomplishment of
these purposes.
Onyx and the seller have taken and will take steps in structuring the
transactions contemplated in this prospectus and the related prospectus
supplement that are intended to ensure that the voluntary or involuntary
application for relief by Onyx under any bankruptcy or insolvency law will not
result in consolidation of the assets and liabilities of the seller with those
of Onyx. These steps include the creation of the seller as a separate, limited
purpose subsidiary with a certificate of incorporation containing limitations,
including restrictions on the nature of the seller's business and a restriction
on the seller's ability to commence a voluntary case or proceeding under any
bankruptcy or insolvency law without the unanimous affirmative vote of all of
its directors. However, there can be no assurance that the activities of the
Seller would not result in a court concluding that the assets and liabilities of
the seller should be consolidated with those of Onyx in a proceeding under any
bankruptcy or insolvency law.
The seller has received the advice of counsel to the effect that,
subject to certain facts, assumptions and qualifications, it would not be a
proper exercise by a court of its equitable discretion to disregard the separate
corporate existence of the seller and to require the consolidation of the assets
and liabilities of the seller with the assets and liabilities of Onyx in the
event of the application of any bankruptcy or insolvency law to Onyx. However,
there can be no assurance that a court would not conclude that the assets and
liabilities of the seller should be consolidated with those of Onyx. If a court
were to reach such a conclusion, or a filing were made under any bankruptcy or
insolvency law by or against the seller, or if an attempt were made to litigate
any of the foregoing issues, delays in payments or distributions on any
outstanding series of securities could occur or reductions in the amounts of the
payments or distributions could result.
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Onyx, each selling subsidiary of Onyx and the seller intend that each
transfer of contracts by Onyx or a subsidiary of Onyx to the seller under the
sale and servicing agreement or pooling and servicing agreement, as applicable,
or otherwise, will constitute a "true sale" of the contracts to the seller. If a
transfer of contracts constitutes a "true sale," the contracts and their
proceeds would not be part of the bankruptcy estate of Onyx or a subsidiary of
Onyx under Section 541 of the bankruptcy code should Onyx or a subsidiary of
Onyx become the subject of a bankruptcy case subsequent to the transfer of the
contracts to the seller.
The seller has received the advice of counsel to the effect that,
subject to certain facts, assumptions and qualifications, in the event Onyx were
to become the subject of a voluntary or involuntary case under the bankruptcy
code subsequent to the transfer of contracts to the seller, the transfer of
those contracts by Onyx to the seller would be characterized as a "true sale" of
the contracts from Onyx to the seller and the contracts and the proceeds thereof
would not form part of Onyx's bankruptcy estate under Section 541 of the
bankruptcy code.
THE SERVICER
Onyx will initially service the contracts included in the trust property
of each trust. Onyx was incorporated in California in 1993 and reincorporated in
Delaware in 1996 in connection with its initial public offering of common stock,
which was successfully completed in March 1996. Onyx is engaged principally in
the business of providing indirect automobile financing to new car dealerships
and selected used car dealerships in California and in other states across the
country. Onyx is headed by a management team with extensive experience in the
origination and servicing of indirect and direct automobile loans, and who, from
1985 to present, have actively participated in a number of public
securitizations of motor vehicle contracts. The common stock of Onyx is listed
on the NASDAQ. Onyx's principal executive offices are located at 27051 Towne
Centre Drive, Suite 100, Foothill Ranch, California 92610.
Onyx acquires individual contracts from dealers, and to a lesser extent
subsidiaries of Onyx purchase the contracts from credit unions or other parties
or directly originate the contracts, after reviewing and approving the
customer's credit application in accordance with its underwriting policies and
procedures. See "The Onyx Portfolio of Motor Vehicle Contracts". Onyx finances
acquisitions and originations of contracts on a short term basis through two
separate warehouse facilities and has previously financed acquisitions and
originations of motor vehicle installment contracts on a long term basis through
sales of contracts to grantor and owner trusts and periodically through whole
loan sales.
DESCRIPTION OF THE SECURITIES
GENERAL
With respect to each trust that issues notes, one or more classes of
notes of the related series will be issued under the terms of an indenture, a
form of which has been filed as an exhibit to the registration statement of
which this prospectus forms a part. With respect to each trust that issues
certificates, one or
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more classes of certificates of the related series will be issued under the
terms of a trust agreement or a pooling and servicing agreement, a form of each
of which has been filed as an exhibit to the registration statement of which
this prospectus forms a part. The following is a summary of the material terms
of the securities, but does not purport to be complete and is subject to, and is
qualified in its entirety by reference to, all the provisions of the notes,
certificates, indenture, trust agreement and pooling and servicing agreement, as
applicable, and the related prospectus supplement.
The securities of each series will be issued in the denominations
specified in the related prospectus supplement. The securities of each series
are expected to be issued in book-entry form. See "- Book-Entry Registration"
and "- Definitive Securities". All securities offered by this prospectus and the
related prospectus supplement will be rated in one of the four highest rating
categories by one or more nationally recognized statistical rating agencies.
PRINCIPAL AND INTEREST ON THE SECURITIES
The timing and priority of payment, seniority, allocations of losses,
interest rate and amount of or method of determining payments or distributions
of principal and interest on each class of securities of a given trust will be
described in the related prospectus supplement. The right of holders of any
class of securities to receive payments or distributions of principal and
interest may be senior or subordinate to the rights of holders of any other
class or classes of securities of that series, as described in the related
prospectus supplement. Payments of interest on the securities of that series may
be made prior to payments of principal thereon.
STRIP SECURITIES AND RESIDUAL INTEREST INSTRUMENTS. If so provided in
the related prospectus supplement, a series may include one or more classes
securities that are:
- strip notes or strip certificates entitled to principal payments
with disproportionate, nominal or no interest payments;
- strip notes or strip certificates entitled to interest payments
with disproportionate, nominal or no principal payments; and
- residual interest instruments entitled to all or a portion of
any remaining payments of principal and interest on the related
contracts after making all other distributions on each
distribution date.
INTEREST RATES. Each class of securities may have a different interest
rate, which may be a fixed, variable or adjustable rate, or any combination
thereof. For certain classes of strip securities, the interest rate may be zero.
The related prospectus supplement will specify the interest rate for each class
of securities of a given series or the method for determining the interest rate.
PREPAYMENT OF SECURITIES. One or more classes of securities of a series
may be redeemable in whole or in part under the circumstances specified in the
related prospectus supplement, including as a result of the servicer's
exercising its option to purchase the remaining related Contracts.
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PRIORITY. In the case of a series of securities which includes two or
more classes of securities, the sequential order and priority of payments or
distributions of principal and interest, and any schedule or formula or other
provisions applicable to the determination thereof, will be set forth in the
related prospectus supplement. Payments or distributions of principal and
interest of any class of securities will be made on a pro rata basis among all
the securityholders of that class.
BOOK-ENTRY REGISTRATION
We expect that the securities of each series will be issued in
uncertificated book-entry form, and will be registered in the name of Cede &
Co., as nominee of The Depository Trust Company, commonly known as DTC in the
United States and Clearstream, Luxembourg or the Euroclear System in Europe. The
securities will be tradeable as home market instruments in both the European and
U.S. domestic markets. Initial settlement and all secondary trades will settle
in same-day funds.
INITIAL SETTLEMENT OF THE SECURITIES. Investors' interests in the
securities will be represented through financial institutions acting on their
behalf as direct and indirect participants in DTC. As a result, Clearstream and
Euroclear will hold positions on behalf of their customers or participants
through their respective depositaries, which in turn will hold such positions in
accounts as DTC participants.
Investors electing to hold their securities through DTC will follow the
settlement practices applicable to U.S. corporate debt obligations. Investor
securities custody accounts will be credited with their holdings against payment
in same-day funds on the settlement date.
Investors electing to hold their securities through Clearstream or
Euroclear accounts will follow the settlement procedures applicable to
conventional eurobonds, except that there will be no temporary global security
and no "lock-up" or restricted period. Securities will be credited to the
securities custody accounts on the settlement date against payment in same-day
funds.
Unless and until definitive securities are issued under the limited
circumstances described in this prospectus or in the related prospectus
supplement, no securityholder will be entitled to receive a physical certificate
representing a security. All references in this prospectus and in the related
prospectus supplement to actions by securityholders shall refer to actions taken
by DTC upon instructions from its participants, and all references in this
prospectus and in the related prospectus supplement to distributions, notices,
reports and statements to securityholders shall refer to distributions, notices,
reports and statements to DTC or its nominee as the registered holder of the
securities, as the case may be, for distribution to holders of securities in
accordance with DTC's procedures with respect thereto.
In the event that any of DTC, Clearstream or Euroclear should
discontinue its services, the related administrator of each trust would seek an
alternative depository, if available, or cause the issuance of definitive
securities to securityholders or their nominees in the manner described under "-
Definitive Securities" below.
Except as required by law, none of the administrator, if any, the
applicable trustee or the applicable indenture trustee, if any, will have any
liability for any aspect of the records relating to payments made on account of
beneficial ownership interests of the securities of any trust held by DTC's
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nominee, or for maintaining, supervising or reviewing any records relating to
the beneficial ownership interests.
SECONDARY MARKET TRADING OF THE SECURITIES. Since the purchaser
determines the place of delivery, it is important to establish at the time of
the trade where both the purchaser's and seller's accounts are located to ensure
that settlement can be made on the desired value date.
Trading between DTC participants. Secondary market trading between DTC
participants will be settled using the procedures applicable to U.S. corporate
debt obligations in same-day funds.
Trading between Clearstream customers and/or Euroclear participants.
Secondary market trading between Clearstream customers or Euroclear participants
will be settled using the procedures applicable to conventional eurobonds in
same-day funds.
Trading between DTC seller and Clearstream or Euroclear purchaser. When
securities are to be transferred from the account of a DTC participant to the
account of a Clearstream customer or a Euroclear participant, the purchaser will
send instructions to Clearstream or Euroclear through a Clearstream customer or
Euroclear participant at least one business day prior to settlement. Clearstream
or Euroclear will instruct the respective depositary, as the case may be, to
receive the securities against payment. Payment will include interest accrued on
the securities from and including the last coupon payment date to and excluding
the settlement date. Payment will then be made by the respective depositary to
the DTC participant's account against delivery of the securities. After
settlement has been completed, the securities will be credited to the respective
clearing system and by the clearing system, in accordance with its usual
procedures, to the Clearstream customer's or Euroclear participant's account.
The securities credit will appear the next day (European time) and the cash
debit will be back-valued to, and the interest on the securities will accrue
from, the value date, which would be the preceding day when settlement occurred
in New York. If settlement is not completed on the intended value date, that is,
the trade fails, the Clearstream or Euroclear cash debit will be valued instead
as of the actual settlement date.
Clearstream customers and Euroclear participants will need to make
available to the respective clearing systems the funds necessary to process
same-day funds settlement. The most direct means of doing so is to pre-position
funds for settlement, either from cash on hand or existing lines of credit, as
they would for any settlement occurring within Clearstream or Euroclear. Under
this approach, they may take on credit exposure to Clearstream or Euroclear
until the securities are credited to their accounts one day later.
As an alternative, if Clearstream or Euroclear has extended a line of
credit to them, Clearstream customers or Euroclear participants can elect not to
pre-position funds and allow that credit line to be drawn upon to finance
settlement. Under this procedure, Clearstream customers or Euroclear
participants purchasing securities would incur overdraft charges for one day,
assuming they cleared the overdraft when the securities were credited to their
accounts. However, interest on the securities would accrue from the value date.
Therefore, in many cases the investment income on the securities earned during
that one-day period may substantially reduce or offset the amount of the
overdraft charges, although this result will depend on each Clearstream
customer's or Euroclear participant's particular cost of funds.
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Since the settlement is taking place during New York business hours, DTC
participants can employ their usual procedures for sending securities to the
respective depositary for the benefit of Clearstream customers or Euroclear
participants. The sale proceeds will be available to the DTC seller on the
settlement date. Thus, to the DTC participant a cross-market transaction will
settle no differently than a trade between two DTC participants.
Trading between Clearstream or Euroclear seller and DTC purchaser. Due
to time zone differences in their favor, Clearstream customers and Euroclear
participants may employ their customary procedures for transactions in which
securities are to be transferred by the respective clearing system, through the
respective depositary, to a DTC participant. The seller will send instructions
to Clearstream or Euroclear through a Clearstream customer or Euroclear
participant at least one business day prior to settlement. In these cases,
Clearstream or Euroclear will instruct the respective depositary, as
appropriate, to deliver the bonds to the DTC participant's account against
payment. Payment will include interest accrued on the securities from and
including the last coupon payment date to and excluding the settlement date. The
payment will then be reflected in the account of the Clearstream customer or
Euroclear participant the following day, and receipt of the cash proceeds in the
Clearstream customer's or Euroclear participant's account would be back-valued
to the value date, which would be the preceding day, when settlement occurred in
New York. Should the Clearstream customer or Euroclear participant have a line
of credit with its respective clearing system and elect to be in debit in
anticipation of receipt of the sale proceeds in its account, the back-valuation
will extinguish any overdraft charges incurred over that one-day period. If
settlement is not completed on the intended value date, that is, the trade
fails, receipt of the cash proceeds in the Clearstream customer's or Euroclear
participant's account would instead be valued as of the actual settlement date.
Finally, day traders that use Clearstream or Euroclear and that purchase
securities from DTC participants for delivery to Clearstream customers or
Euroclear participants should note that these trades would automatically fail on
the sale side unless affirmative action were taken. At least three techniques
should be readily available to eliminate this potential problem:
- borrowing through Clearstream or Euroclear for one day, until the
purchase side of the day trade is reflected in their Clearstream
or Euroclear accounts, in accordance with the clearing system's
customary procedures;
- borrowing the securities in the U.S. from a DTC participant no
later than one day prior to settlement, which would give the
securities sufficient time to be reflected in their Clearstream
or Euroclear account in order to settle the sale side of the
trade; or
- staggering the value dates for the buy and sell sides of the
trade so that the value date for the purchase from the DTC
participant is at least one day prior to the value date for the
sale to the Clearstream customer or Euroclear participant.
The securityholders who are not participants, either directly or
indirectly, but who desire to purchase, sell or otherwise transfer ownership of,
or other interest in, securities may do so only through direct and indirect
participants. In addition, securityholders will receive all distributions of
principal and interest from the indenture trustee or the applicable trustee
through the participants who in turn will receive them from DTC. Under a
book-entry format, securityholders may experience some delay in
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their receipt of payments, since the payments will be forwarded by the
applicable trustee to DTC's nominee. DTC will forward the payments to its
participants which thereafter will forward them to indirect participants or
securityholders. To the extent the related prospectus supplement provides that
book-entry securities will be issued, the only "noteholder" or
"certificateholder," as applicable, will be DTC's nominee. Securityholders will
not be recognized by the applicable trustee as "noteholders" or
"certificateholders" and securityholders will be permitted to exercise the
rights of securityholders only indirectly through DTC and its participants.
Under the rules, regulations and procedures creating and affecting DTC
and its operations, DTC is required to make book-entry transfers of securities
among participants on whose behalf it acts with respect to the securities and is
required to receive and transmit distributions of principal and interest on the
securities. Participants and indirect participants with which securityholders
have accounts with respect to their respective securities similarly are required
to make book-entry transfers and receive and transmit the payments on behalf of
their respective securityholders. Accordingly, although securityholders will not
possess their respective securities, the rules provide a mechanism by which
participants will receive payments and will be able to transfer their interests.
Because DTC can only act on behalf of participants, who in turn act on
behalf of indirect participants and certain banks, the ability of a
securityholder to pledge securities to persons or entities that do not
participate in the DTC system, or otherwise take actions with respect to the
securities, may be limited due to the lack of a physical certificate for the
securities.
DTC will advise the related administrator of each trust that it will
take any action permitted to be taken by a securityholder under the related
indenture or trust agreement only at the direction of one or more participants
to whose accounts with DTC the securities are credited. DTC may take conflicting
actions with respect to other undivided interests to the extent that the actions
are taken on behalf of participants whose holdings include the undivided
interests.
Non-U.S. holders of securities will be subject to U.S. withholding taxes
unless the holders meet certain requirements and deliver appropriate U.S. tax
documents to the securities clearing organizations or their participants.
THE DEPOSITORIES. DTC is a limited-purpose trust company organized under
the laws of the State of New York, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Uniform Commercial
Code, and a "clearing agency" registered under the provisions of Section 17A of
the Securities Exchange Act of 1934, as amended. DTC was created to hold
securities for its participants and facilitate the clearance and settlement of
securities transactions between participants through electronic book-entries,
thereby eliminating the need for physical movement of certificates. Participants
include securities brokers and dealers, who may include any of the underwriters
of securities of the trust, banks, trust companies and clearing corporations and
may include other organizations. Indirect access to the DTC system also is
available to others such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a participant, either
directly or indirectly.
Clearstream is incorporated under the laws of Luxembourg as a
professional depository. Clearstream holds securities for its customers and
facilitates the clearance and settlement of securities
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transactions between Clearstream customers through electronic book-entry changes
in accounts of Clearstream customers, thereby eliminating the need for physical
movement of certificates. Transactions may be settled by Clearstream in any of
36 currencies, including United States dollars. Clearstream provides to its
Clearstream customers, among other things, services for safekeeping,
administration, clearance and settlement of internationally traded securities
and securities lending and borrowing. Clearstream interfaces with domestic
markets in several countries. As a professional depository, Clearstream is
subject in Luxembourg to regulation by and supervision by the Commission for the
Supervision of the Financial Sector. Clearstream customers are recognized
financial institutions around the world, including underwriters, securities
brokers and dealers, banks, trust companies, clearing corporations and other
organizations and may include any of the underwriters of any trust securities.
Indirect access to Clearstream is also available to others, such as banks,
brokers, dealers and trust companies that clear through or maintain a custodial
relationship with a Clearstream customer, either directly or indirectly.
Euroclear was created in 1968 to hold securities for its participants
and to clear and settle transactions between Euroclear participants through
simultaneous electronic book-entry delivery against payment, thereby eliminating
the need for physical movement of certificates and the risk from transfers of
securities and cash that are not simultaneous.
The Euroclear system has subsequently been extended to clear and settle
transactions between Euroclear participants and counterparties both in
Clearstream and in many domestic securities markets. Transactions may be settled
in any of 34 currencies. In addition to safekeeping (custody) and securities
clearance and settlement, the Euroclear system includes securities lending and
borrowing and money transfer services. The Euroclear system is operated by the
Brussels, Belgium office of Morgan Guaranty Trust Company of New York under
contract with Euroclear Clearance System, S.C., a Belgian cooperative
corporation that establishes policy on behalf of Euroclear participants. The
Euroclear operator is the Belgian branch of a New York banking corporation which
is a member bank of the Federal Reserve System. As such, it is regulated and
examined by the Board of Governors of the Federal Reserve System and the New
York State Banking Department, as well as the Belgian Banking Commission.
All operations are conducted by the Euroclear operator and all Euroclear
securities clearance accounts and cash accounts are accounts with the Euroclear
operator. They are governed by the Terms and Conditions Governing Use of
Euroclear and the related Operating Procedures of the Euroclear system and
applicable Belgian law. These govern all transfers of securities and cash, both
within the Euroclear system, and receipts and withdrawals of securities and
cash. All securities in the Euroclear system are held on a fungible basis
without attribution of specific certificates to specific securities clearance
accounts.
Euroclear participants include banks (including central banks),
securities brokers and dealers and other professional financial intermediaries
and may include any of the underwriters of any trust securities. Indirect access
to the Euroclear system is also available to other firms that clear through or
maintain a custodial relationship with a Euroclear participant, either directly
or indirectly. The Euroclear operator acts under the Terms and Conditions, the
Operating Procedures of the Euroclear system and Belgian law only on behalf of
Euroclear participants and has no record of or relationship with persons holding
through Euroclear participants.
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DEFINITIVE SECURITIES
With respect to any class of notes and any class of certificates issued
in book-entry form, the notes and certificates will be issued as definitive
securities in fully registered, certificated form to noteholders or certificate
holders or their respective nominees, rather than to DTC or its nominee, only
if:
- the seller, the related trustee or the administrator, as the
case may be, advises the trustee in writing that DTC is no
longer willing or able to discharge properly its
responsibilities as depositary with respect to the securities,
and the seller, the related trustee or the administrator is
unable to locate a qualified successor;
- the seller, the related trustee or the administrator, as the
case may be, at its option, elects to terminate the book-entry
system through DTC; or
- after the occurrence of an event of default under the indenture,
if applicable, or an event of default under the related sale and
servicing agreement or pooling and servicing agreement, as
applicable, holders representing at least a majority of the
outstanding principal balance of the notes or certificates of a
class, as the case may be, advise the applicable trustee through
participants in writing that the continuation of a book-entry
system through DTC, or a successor thereto, with respect to the
notes or certificates is no longer in the best interest of the
holders of those securities.
Upon the occurrence of any of the events described in the immediately
preceding paragraph, the applicable trustee will be required to notify all
applicable securityholders of a given class, through participants, of the
availability of definitive securities. Upon surrender by DTC of the definitive
certificates representing the corresponding securities and receipt of
instructions for re-registration, the applicable trustee will reissue the
securities as definitive securities, and thereafter the applicable trustee will
recognize the holders of the definitive securities as securityholders.
Payments or distributions of principal of and interest on the securities
will be made by the paying agent directly to holders of definitive securities in
accordance with the procedures set forth in this prospectus and in the related
indenture or the related trust agreement or pooling and servicing agreement, as
applicable. Such payments or distributions on each distribution date and on the
final distribution date, as specified in the related prospectus supplement, will
be made to holders in whose names the definitive securities were registered at
the close of business on the related record date. Payments or distributions will
be made by check mailed to the address of the holder as it appears on the
register maintained by the applicable trustee or indenture trustee. The final
payment or distribution on any security, whether definitive securities or the
securities registered in the name of DTC's nominee, however, will be made only
upon presentation and surrender of the security at the office or agency
specified in the notice of final payment or distribution to securityholders.
Definitive securities will be transferable and exchangeable at the
offices of the applicable trustee or indenture trustee, or at the offices of a
transfer agent or registrar named in a notice delivered to holders of definitive
securities, which shall initially be the applicable trustee or indenture
trustee. No service charge will be imposed for any registration of transfer or
exchange, but the applicable trustee,
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indenture trustee, transfer agent or registrar may require payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection
therewith.
LIST OF SECURITYHOLDERS
With respect to the notes of any series, the related indenture trustee
will provide to the servicer, the seller and the security insurer, if any,
within 15 days after receipt of the request from the servicer, seller or
security insurer, if any, a list of the names and addresses of all holders of
record of notes as of the most recent record date. Upon written request by three
or more noteholders of the series or by noteholders evidencing not less than 25%
of the aggregate outstanding principal balance of the notes or a specified class
of the notes, as set forth in the related prospectus supplement, the indenture
trustee will afford the noteholders access during business hours to the current
list of noteholders for purposes of communicating with other noteholders with
respect to their rights under the indenture or under the notes.
With respect to the certificates of any series upon written request of
the servicer, the related trustee will provide to the servicer within 15 days
after receipt of the request a list of the names and addresses of all holders of
record of certificates as of the most recent record date. Upon written request
by three or more certificateholders of the series or by certificateholders
evidencing not less than 25% of the aggregate outstanding principal balance of
the certificates, the related trustee will afford the certificateholders access
during business hours to the current list of certificateholders for purposes of
communicating with other certificateholders with respect to their rights under
the related trust agreement or pooling and servicing agreement or under the
certificates.
The pooling and servicing agreement, trust agreement and indenture will
not provide for the holding of annual or other meetings of securityholders.
STATEMENTS TO SECURITYHOLDERS
With respect to each series of securities, on each distribution date,
the applicable trustee or indenture trustee will include with each payment or
distribution to each securityholder a statement setting forth for the
distribution date the following information:
- the amount of the distribution on or with respect to each class
of securities allocable to principal;
- the amount of the distribution on or with respect to each class
of securities allocable to interest;
- the aggregate distribution amount for the distribution date;
- the premiums payable to the related security insurer, if any,
the balance of any fund or account with respect to any credit or
liquidity enhancement on the distribution date, after giving
effect to changes thereto on the distribution date and the
amount to be deposited in the spread account, if any;
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- the aggregate servicing fee paid to the servicer with respect to
the related contracts for the related collection period;
- the number of, and aggregate amount of monthly principal and
interest payments due on, the related contracts which are
delinquent as of the end of the related collection period
presented on a 30-day, 60-day and 90-day basis;
- the amount available in the collection account for payment of
the aggregate amount payable or distributable on the securities;
- the amount of the servicing fee;
- the amount of any principal or interest shortfall with respect
to each class of securities;
- the amount of the draw, if any, required to be made from any
spread account, reserve account, yield supplement account, under
any security insurance policy or payments in respect of any
other credit or cash flow enhancement arrangement, and the
application of the draw;
- the amount on deposit in any spread account, reserve account or
other similar account on the distribution date, before and after
giving effect to changes in the accounts on that date;
- the amount on deposit in any yield supplement account or other
similar account on the distribution date, before and after
giving effect to changes in the accounts on that date;
- the amount on deposit in any prefunding account, capitalized
interest account or other similar account on the distribution
date, before and after giving effect to changes to the accounts
on that date;
- under a prefunding arrangement, the amount of earnings and other
amounts transferred from the prefunding account and the amounts
transferred from the capitalized interest account to the payment
account on the distribution date;
- for the first distribution date following the end of a funding
period under a prefunding arrangement, the amount remaining on
deposit in the prefunding account that has not been used to fund
the purchase of additional contracts and is being passed through
as payments of principal on the securities of the trust;
- the aggregate amount of proceeds received by the servicer, net
of recoverable out-of-pocket expenses, received for a contract
which is a "defaulted contract," as that term is defined in the
related prospectus supplement;
- the net credit losses for the collection period;
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- the number and net outstanding balance of contracts for which
the financed vehicle has been repossessed;
- the pool balance; and
- any other matters specified in the related prospectus
supplement.
Within a reasonable period of time after the end of each calendar year
during the term of each trust, but not later than the latest date permitted by
law, the applicable trustee or indenture trustee and the paying agent will
furnish to each person who on any record date during the calendar year shall
have been a registered securityholder a statement containing information for the
purposes of the securityholder's preparation of federal income tax returns. See
"Certain Federal Income Tax Consequences".
DESCRIPTION OF THE TRANSFER AND SERVICING AGREEMENTS
The following summary, together with the information set forth in the
related prospectus supplement, describes the material terms of the following
transfer and servicing agreements:
- each sale and servicing agreement or pooling and servicing
agreement under which a trust will purchase contracts from the
seller and the servicer will agree to service the contracts;
- each trust agreement or, in the case of a grantor trust, the
pooling and servicing agreement, under which a trust will be
created and certificates will be issued; and
- each administration agreement under which Onyx or another party
specified in the related prospectus supplement will undertake
particular administrative duties with respect to a trust that
issues notes.
Forms of the transfer and servicing agreements have been filed as exhibits to
the registration statement of which this prospectus forms a part. This summary
does not purport to be complete and is subject to, and qualified in its entirety
by reference to, all the provisions of each applicable transfer and servicing
agreement and the related prospectus supplement.
SALE AND ASSIGNMENT OF THE CONTRACTS
SALE AND ASSIGNMENT BY ONYX AND ITS SUBSIDIARIES. Before each trust
issues the related securities, Onyx and its participating subsidiaries will sell
and assign to the seller under a purchase agreement, without recourse, their
entire interest in the related contracts, including their security interests in
the related financed vehicles.
SALE AND ASSIGNMENT BY THE SELLER. At the time of issuance of a series
of securities, the seller will sell and assign to the applicable trustee,
without recourse, under a sale and servicing agreement or a pooling and
servicing agreement, as applicable, the seller's entire interest in the
contracts and the
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proceeds thereof, including its security interests in the related financed
vehicles. Each contract will be identified in a schedule appearing as an exhibit
to the sale and servicing agreement or pooling and servicing agreement. The
applicable trustee will, concurrently with the sale and assignment, execute,
authenticate and deliver the definitive certificates representing the related
securities.
SALE AND ASSIGNMENT OF CONTRACTS UNDER A PREFUNDING ARRANGEMENT. The
related prospectus supplement for the trust will specify whether, and the terms,
conditions and manner under which, additional contracts will be sold by Onyx and
its participating subsidiaries to the seller and by the seller to the applicable
trust under any prefunding arrangement.
REPRESENTATIONS AND WARRANTIES. In each sale and servicing agreement or
pooling and servicing agreement, the seller will represent and warrant to the
applicable trustee and the trust, among other things, for the benefit of holders
of the securities and any applicable security insurer that:
- each contract to be included in the trust property of the trust
contains customary and enforceable provisions such that the
rights and remedies of the holder thereof shall be adequate for
realization against the collateral of the benefits of the
security;
- each contract and the sale of the related financed vehicle
complied at the time it was made in all material respects with
all requirements of applicable federal, state, and local laws,
and regulations thereunder, including usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair
Credit Reporting Act, the Federal Trade Commission Act, the Fair
Debt Collection Practices Act, the Fair Credit Billing Act, the
Magnuson-Moss Warranty Act, the Federal Reserve Board's
Regulations B and Z, the Soldiers' and Sailors' Civil Relief Act
of 1940, state adaptations of the National Consumer Act and of
the Uniform Consumer Credit Code, and any other consumer credit,
equal opportunity and disclosure laws applicable to the contract
and sale;
- each contract constitutes the legal, valid, and binding payment
obligation in writing of the obligor, enforceable by the holder
thereof in all respects in accordance with its terms, subject,
as to enforcement, to applicable bankruptcy, insolvency,
reorganization, liquidation and other similar laws and equitable
principles relating to or affecting the enforcement of
creditors' rights;
- as of the closing date, each contract was secured by a validly
perfected first priority security interest in the financed
vehicle in favor of the seller as secured party or all necessary
action with respect to the contract has been taken to perfect a
first priority security interest in the related financed vehicle
in favor of the seller as secured party, which security interest
is assignable and has been so assigned by the seller to the
trust;
- as of the closing date, the seller had good and marketable title
to and was the sole owner of each contract, free of liens,
claims, encumbrances and rights of others;
- as of the closing date, there are no rights of rescission,
offset, counterclaim, or defense, and the seller has no
knowledge of the same being asserted or threatened, with respect
to any contract;
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- as of the closing date, the seller had no knowledge of any liens
or claims that have been filed, including liens for work, labor,
materials or unpaid taxes relating to a financed vehicle, that
would be liens prior to, or equal or coordinate with, the lien
granted by any contract;
- except for payment defaults continuing for a period of not more
than 30 days as of the cut-off date, the seller has no knowledge
that a default, breach, violation, or event permitting
acceleration under the terms of any contract exists, and the
seller has no knowledge that a continuing condition that with
notice or lapse of time would constitute a default, breach,
violation or event permitting acceleration under the terms of
any contract exists, and the seller has not waived any of the
foregoing;
- each contract requires that the obligor thereunder obtain
comprehensive and collision insurance covering the financed
vehicle;
- each contract was acquired from a dealer with whom Onyx
ordinarily does business, except for contracts purchased or
originated by a subsidiary of Onyx;
- no adverse selection procedures were utilized in selecting the
contracts;
- scheduled payments under each contract have been applied in
accordance with the method for allocating principal and interest
set forth in the contract; and
- there is only one original of each contract and the original is
being held by Onyx, the applicable trustee or indenture trustee,
or the custodian of the contracts specified in the related
prospectus supplement.
SELLER MUST REPURCHASE THE CONTRACTS RELATING TO A BREACH OF A
REPRESENTATION OR WARRANTY. As of the last day of the collection period
following the collection period (or, if the seller elects, the last day of the
collection period) during which the seller becomes aware or receives written
notice from the applicable trustee or the servicer of a breach of any
representation or warranty of the seller that materially and adversely affects
the interests of the securityholders or any applicable security insurer in a
contract, the seller, unless the breach has been cured, will repurchase the
contract from the trust at the price specified in the related prospectus
supplement. The repurchase obligation will constitute the sole remedy available
to the securityholders or the applicable trustee for any uncured breach.
THE COLLECTION ACCOUNT AND ELIGIBLE INVESTMENTS
With respect to each trust, the servicer will establish and maintain a
collection account in the name of the related trustee or, in the case of a
series of securities that includes notes, the related indenture trustee, into
which all collections made on the related contracts will be deposited. Funds in
the collection account will be invested in eligible investments by the
applicable trustee or indenture trustee, acting at the direction of any
applicable security insurer. "Eligible investments" are generally limited to
investments acceptable to each rating agency rating the applicable securities as
being consistent with the rating of the securities. Eligible investments made
with respect to the collection
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account will generally mature no later than the next following distribution
date, and income from amounts on deposit in the collection account which are
invested in eligible investments will be paid to the servicer monthly unless
earlier directed by the servicer.
PAYAHEAD ACCOUNT
If so provided in the related prospectus supplement, the servicer will
establish for each trust a payahead account in the name of the related trustee
or indenture trustee, as applicable. Payaheads will initially be deposited in
the collection account and subsequently transferred from the collection account
to the payahead account on the servicer report date defined in the related
prospectus supplement. "Payaheads" are payments made by an obligor, other than
full prepayments, in excess of the sum of:
- the scheduled payment of principal and interest due on the
current due date; and
- any other amount currently due on an actuarial or rule of 78's
contract.
Deposits of payaheads into the payahead account will be held in the account
until distributed in accordance with the original schedule of payments for the
related contract or until the amount of the payahead equals the amount the
obligor would be required to pay in order to prepay the contract in full. Unless
otherwise provided in the related prospectus supplement, amounts on deposit in
the payahead account will be invested in eligible investments with maturity
dates so that, on each distribution date, the amount of principal and interest
scheduled to be collected for each actuarial or rule of 78's contract with
respect to which a payahead has been made will be available to be paid or
distributed to securityholders. The payahead account will not be part of the
applicable trust and neither the related trustee nor the related indenture
trustee, if applicable, will have a security interest in the payahead account.
Earnings on eligible investments credited to the payahead account will be paid
to the servicer.
OTHER ACCOUNTS
Any other trust accounts to be established with respect to a trust,
including any reserve fund, will be described in the related prospectus
supplement. For any series of securities, funds in any related reserve fund and
the other trust account as may be identified in the related prospectus
supplement will be invested in eligible investments as provided in the related
sale and servicing agreement, pooling and servicing agreement or indenture.
COLLECTIONS
With respect to each trust, to the extent set forth in the related
prospectus supplement, net collections on the contracts will be deposited in or
credited to the collection account within two business days of the receipt by
the servicer of payments from obligors. Net collections with respect to a
distribution date and the related collection period will include:
- amounts received with respect to the related contracts in the
collection period representing monthly installments of principal
and interest;
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- full prepayments and partial prepayments, pending transfer of
payaheads on actuarial and rule of 78's contracts to any
payahead account;
- net liquidation proceeds -- proceeds received by the servicer
upon liquidation of any defaulted contract, net of the
reasonable out-of-pocket expenses, other than overhead expenses,
incurred by the servicer in realizing upon a defaulted contract
that are not recoverable under any insurance policy;
- net insurance proceeds -- proceeds paid by any insurer under a
comprehensive and collision insurance policy related to a
contract after reimbursement to the servicer of expenses
recoverable under the policy, but not including funds used for
the repair of the related financed vehicle or otherwise released
to the related obligor in accordance with normal servicing
procedures;
- any amounts deposited by Onyx or the seller in the collection
account to purchase contracts because of breaches of
representations or warranties regarding the contracts made by
the seller in the pooling and servicing agreement or sale and
servicing agreement that materially and adversely affect the
interests of the securityholders or any security insurer;
- any amounts deposited by the servicer in the collection account
to purchase contracts as to which the servicer has breached
servicing covenants; and
- any amounts deposited by the servicer in the collection account
as a result of that entity exercising its right under particular
circumstances to purchase all or a portion of the contracts.
PAYMENTS AND DISTRIBUTIONS
With respect to each series of securities, beginning on the distribution
date specified in the related prospectus supplement, payments and distributions
of principal and interest (or, where applicable, of principal or interest only)
on each class of the securities entitled thereto will be made by the applicable
trustee to the securityholders of the series. The related prospectus supplement
will set forth the timing, calculation, allocation, order, source, priorities of
and requirements for all payments and distributions to each class of securities
of the series.
With respect to each trust, on each distribution date, collections on
the related contracts will be withdrawn from the related collection account and
will be paid and distributed to the securityholders as provided in the related
prospectus supplement. Credit enhancement will be available to cover any
shortfalls in the amount available for payment or distribution to the
securityholders on the distribution date to the extent specified in the related
prospectus supplement. If specified in the related prospectus supplement,
payments or distributions in respect of one or more classes of securities of the
applicable series may be subordinate to payments or distributions in respect of
one or more other classes of securities of the series.
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CREDIT AND CASH FLOW ENHANCEMENT
The amounts and types of any credit and cash flow enhancement
arrangements and the provider thereof, if applicable, with respect to each class
of Securities of a given series, if any, will be set forth in the related
prospectus supplement. If and to the extent provided in the related prospectus
supplement, credit and cash flow enhancement may be in one or more of the
following forms:
- subordination of one or more classes of securities;
- one or more security insurance policies;
- reserve funds;
- over-collateralization;
- letters of credit;
- credit or liquidity facilities;
- guaranteed investment contracts;
- swaps or other interest rate protection agreements;
- repurchase obligations;
- yield supplement agreements;
- other agreements with respect to third party payments or other
support;
- cash deposits; or
- such other arrangements as may be described in the related
prospectus supplement.
If specified in the applicable prospectus supplement, credit or cash
flow enhancement for a class of securities may cover one or more other classes
of securities of the same series, and credit or cash flow enhancement for a
series of securities may cover one or more other series of securities.
The presence of credit enhancement for the benefit of any class or
series of securities is intended to enhance the likelihood of receipt by the
securityholders of that class or series of the full amount of principal and
interest due thereon and to decrease the likelihood that such securityholders
will experience losses. Unless otherwise specified in the related prospectus
supplement, the credit enhancement for a class or series of securities will not
provide protection against all risks of loss and will not guarantee repayment of
the entire principal balance and interest thereon. If losses occur which exceed
the amount covered by any credit enhancement or which are not covered by any
credit enhancement, securityholders of any class or series will bear their
allocable share of deficiencies, as described in the related prospectus
supplement. In addition, if a form of credit enhancement covers
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more than one class or series of securities, securityholders of any of those
series will be subject to the risk that the credit enhancement will be exhausted
by the claims of securityholders of other classes or series.
INSURANCE ON FINANCED VEHICLES
Each obligor on a contract will be required to maintain insurance
covering physical damage to his or her financed vehicle in an amount not less
than the lesser of its maximum insurable value or the unpaid principal balance
under the contract. Onyx or the applicable Onyx subsidiary will be required to
be named as a loss payee under the policy of insurance obtained by the obligor.
Each financed vehicle will be required to be insured against loss and damage due
to fire, theft, transportation, collision and other risks covered by
comprehensive coverage. Since obligors may choose their own insurers to provide
the required coverage, the specific terms and conditions of their policies vary.
SERVICER REPORTS TO THE TRUSTEES AND SECURITY INSURER
The servicer will perform certain monitoring and reporting functions for
the applicable indenture trustee, if any, the applicable trustee, and any
applicable security insurer, including the preparation and delivery on the
servicer report date set forth in the related prospectus supplement of a
statement setting forth substantially the same information as is required to be
provided in the periodic reports provided to securityholders of the trust
described under "Description of the Securities -- Statements to
Securityholders".
REPURCHASE OF CONTRACTS
Each sale and servicing agreement and pooling and servicing agreement
will provide that the servicer will have the option to purchase the remaining
contracts included in the trust property of a trust on any distribution date as
of which the aggregate principal balance of the related contracts, after giving
effect to the principal payments and distributions otherwise to be made on that
distribution date, has declined to the percentage of the original aggregate
cut-off date principal balance of the contracts specified in the related
prospectus supplement. Any such purchase must be effected at the price specified
in the related prospectus supplement, if applicable, plus all amounts due to any
applicable security insurer. In addition, Onyx or the seller will be required to
purchase or repurchase, respectively, contracts under particular circumstances
if representations and warranties made by Onyx or the seller respectively are
incorrect in any manner that materially and adversely affects the interest of
the securityholders. Additionally, the servicer will be required to purchase
contracts as to which the servicer has breached servicing covenants.
SERVICING FEE
The servicer will be entitled to compensation as described in the
related prospectus supplement for the performance of its obligations under each
sale and servicing agreement and pooling and servicing agreement.
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WAIVERS AND EXTENSIONS
Each sale and servicing agreement and pooling and servicing agreement
will require the servicer to use its best efforts to collect all payments called
for under the terms and provisions of the related contracts. The related
prospectus supplement may provide otherwise, but if it does not, the servicer
will be permitted, in its discretion, to:
- waive any late payment charges in connection with delinquent
payments on a contract;
- waive prepayment charges; and
- grant up to three extensions of 30 days or less in order to work
out a default or an impending default.
REALIZATION UPON DEFAULTED CONTRACTS
The servicer will liquidate any contract that comes into and continues
in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments. Liquidation may be through repossession or
sale of the financed vehicle securing the contract or otherwise. In connection
with the repossession or other conversion, the servicer will follow procedures
that are normal and usual for holders of motor vehicle retail installment sales
contracts or installment loan agreements. In this regard, the servicer may sell
the financed vehicle at an auction or other sale.
EVIDENCE AS TO COMPLIANCE
Each sale and servicing agreement and pooling and servicing agreement
will provide that a firm of independent public accountants will furnish to the
related trustee or indenture trustee, as applicable, and, if applicable, the
related security insurer, on or before each March 15 after the end of each
fiscal year of the servicer, a statement as to compliance by the servicer during
the preceding fiscal year with particular standards relating to the servicing of
the related contracts.
Each sale and servicing agreement and pooling and servicing agreement
will also provide for delivery to the related trustee or indenture trustee, as
applicable, and, if applicable, the related security insurer, on each March 15
after the end of each fiscal year of the servicer, of a certificate signed by an
authorized officer of the servicer stating that the servicer has fulfilled its
obligations under the sale and servicing agreement or pooling and servicing
agreement, as applicable, throughout the preceding fiscal year or, if there has
been a default in the fulfillment of any such obligation, describing each
default.
Copies of these statements and certificates may be obtained by
securityholders by a request in writing addressed to the applicable trustee or
indenture trustee.
CERTAIN MATTERS REGARDING THE SERVICER
Each sale and servicing agreement and pooling and servicing agreement
will provide that the servicer may not resign from its obligations and duties as
servicer thereunder except upon determination that the servicer's performance of
its duties is no longer permissible under applicable law. No
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resignation will become effective until the related trustee or indenture
trustee, as applicable, or a successor servicer, has assumed the servicer's
servicing obligations and duties under the sale and servicing agreement or
pooling and servicing agreement, as applicable. See "-- The Trustee and
Indenture Trustee" in this prospectus.
Each sale and servicing agreement and pooling and servicing agreement
will further provide that neither the servicer nor any of its directors,
officers, employees, and agents shall be under any liability to the related
trust or the related securityholders for taking any action or for refraining
from taking any action under the sale and servicing agreement or pooling and
servicing agreement, as applicable, or for errors in judgment; provided,
however, that neither the servicer nor any such person will be protected against
any liability that would otherwise be imposed by reason of willful misfeasance,
bad faith or negligence, except errors in judgment, in the performance of duties
or by reason of reckless disregard of obligations and duties thereunder. In
addition, the sale and servicing agreement or pooling and servicing agreement,
as applicable, will provide that the servicer is under no obligation to appear
in, prosecute or defend any legal action that is not incidental to the
servicer's servicing responsibilities under the sale and servicing agreement or
pooling and servicing agreement, as applicable, and that, in its opinion, may
cause it to incur any expense or liability. The servicer may, however, undertake
any reasonable action that it may deem necessary or desirable in respect of the
sale and servicing agreement or pooling and servicing agreement, as applicable,
and the rights and duties of the parties thereto and the interests of the
securityholders thereunder. In this event, the legal expenses and costs of this
action and any liability resulting therefrom will be expenses, costs and
liabilities of the related trust, and the servicer will be entitled to be
reimbursed therefor out of the collection account. This indemnification or
reimbursement could reduce the amount otherwise available for distribution to
securityholders.
Any corporation into which the servicer may be merged or consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which the servicer is a party or any corporation succeeding to the business of
the servicer, or, with respect to the servicer's obligation as the servicer,
will be the successor of the servicer under the sale and servicing agreement or
pooling and servicing agreement, as applicable.
SERVICER DEFAULT
The related prospectus supplement may provide for other events of
default by the servicer, but if it does not, a servicer default under the sale
and servicing agreement or pooling and servicing agreement, as applicable, will
consist of:
- any failure by the servicer to deposit in or credit to the
collection account or the payahead account, if any, any amount
required to be so deposited or credited, which failure continues
unremedied for a period of three business days after written
notice is received by the servicer from the trust, the applicable
trustee or indenture trustee, or, if applicable, the related
security insurer, or after discovery of the failure by an officer
of the servicer;
- any failure by the servicer to timely deliver to the trust, the
applicable trustee or indenture trustee, or, if applicable, the
related security insurer, reports required by the sale and
servicing agreement or pooling and servicing agreement, as
applicable;
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- any failure by the servicer or the seller, duly to observe or
perform in any material respect any other covenants or agreements
of the servicer or the seller in the sale and servicing agreement
or pooling and servicing agreement, which failure materially and
adversely affects the rights of securityholders, the trust or the
applicable trustee or indenture trustee, or, if applicable, the
related security insurer, and which continues unremedied for 30
days after the giving of written notice of the failure:
- to the servicer or the seller, as the case may be, by
the applicable trustee or indenture trustee, the trust,
or, if applicable, the related security insurer, or
- to the servicer or the seller, as the case may be, and
to the trust and the applicable trustee or indenture
trustee, by:
- the holders of notes evidencing not less than 25%
of the outstanding principal amount of the notes;
- if there are no notes outstanding, the holders of
certificates evidencing not less than 25% of the
outstanding principal balance of the certificates;
or
- if applicable, the related security insurer;
- events of insolvency, readjustment of debt, marshalling of
assets and liabilities, or similar proceedings and actions by
the servicer or the seller, indicating its insolvency,
reorganization through bankruptcy or similar proceedings or
inability to pay its obligations, as more particularly described
in the pooling and servicing agreement or sale and servicing
agreement;
- any breach of any of the representations and warranties of the
servicer or the seller, except for any breaches relating to
contracts repurchased by the seller or the servicer, which
breach has a material adverse effect on the related
securityholders or, if applicable, the related security insurer,
and which continues for 30 days after the giving of notice of
the breach to the seller or the servicer, as the case may be,
by:
- the trust, the applicable trustee or the indenture
trustee;
- the holders of notes evidencing not less than 25% of the
outstanding principal amount of the notes;
- if there are no notes outstanding, the holders of
certificates evidencing not less than 25% of the
outstanding principal balance of the certificates; or
- if applicable, the related security insurer;
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- any change in control of the servicer in violation of the
covenants set forth in the sale and servicing agreement or
pooling and servicing agreement.
References to the seller in the foregoing list of events which constitute
servicer defaults are effective only so long as Onyx is the servicer. If Onyx is
no longer the servicer, then no act of the seller will constitute a servicer
default.
RIGHTS UPON SERVICER DEFAULT
The related prospectus supplement may specify other rights in the event
of a servicer default under a sale and servicing agreement or pooling and
servicing agreement, but if it does not, then the trustee, the indenture
trustee, if applicable, the security holders and the security insurer, if any,
will have the rights described below.
In the case of any trust that has issued notes, as long as a servicer
default under a sale and servicing agreement remains unremedied, the related
indenture trustee, the related security insurer, if any, or holders of notes of
the related series evidencing not less than 25% of principal amount of the notes
then outstanding, acting together as a single class, may terminate all the
rights and obligations of the servicer under the sale and servicing agreement.
Upon termination of the servicer, the indenture trustee or a successor servicer
appointed by the indenture trustee will succeed to all the responsibilities,
duties and liabilities of the servicer under the sale and servicing agreement
and will be entitled to similar compensation arrangements; provided, however,
that the indenture trustee will not be obligated to purchase contracts if
specific representations and warranties of Onyx as servicer prove incorrect or
if specific covenants of Onyx as servicer are breached.
In the case of any trust that has not issued notes or with respect to
which no notes are outstanding, as long as a servicer default under the related
sale and servicing agreement or pooling and servicing agreement remains
unremedied, the related trustee, the related security insurer, if any, or
holders of certificates of the related series evidencing not less than 25% of
the principal amount of the certificates then outstanding, acting together as a
single class, may terminate all the rights and obligations of the servicer under
the sale and servicing agreement or pooling and servicing agreement. Upon
termination of the servicer, the trustee or a successor servicer appointed by
the trustee will succeed to all the responsibilities, duties and liabilities of
the servicer under the sale and servicing agreement or pooling and servicing
agreement and will be entitled to similar compensation arrangements; provided,
however, that the trustee will not be obligated to purchase contracts if
specific representations and warranties of Onyx as servicer prove incorrect or
if specific covenants of Onyx as servicer are breached.
In the event that the indenture trustee or trustee is unwilling or
unable to so act, it may appoint, or petition a court of competent jurisdiction
for the appointment of, a successor with a net worth of at least $50,000,000 and
whose regular business includes the servicing of automobile and/or light duty
truck receivables.
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WAIVER OF SERVICER DEFAULT
The related prospectus supplement may specify other waiver provisions,
but if it does not, then with respect to each trust that has issued notes, the
holders of notes of the related series evidencing not less than 51% of the
principal amount of the notes then outstanding, acting together as a single
class, with the consent of the related security insurer, if any, may, on behalf
of all securityholders of the related series, waive any default by the servicer
in the performance of its obligations under the related sale and servicing
agreement and its consequences, except a servicer default in making any required
deposits to or payments from any of the trust accounts in accordance with the
sale and servicing agreement.
The related prospectus supplement may specify other waiver provisions,
but if it does not, then with respect to each trust that has not issued notes or
with respect to which no notes are then outstanding, holders of certificates of
the related series evidencing not less than 25% of the principal amount of the
certificates then outstanding, acting together as a single class, with the
consent of the related security insurer, if any, may, on behalf of all the
certificateholders, waive any default by the servicer in the performance of its
obligations under the related sale and servicing agreement or pooling and
servicing agreement, except a servicer default in making any required deposits
to or payments from the related trust accounts in accordance with the sale and
servicing agreement or pooling and servicing agreement. No waiver will impair
the noteholders' or certificateholders' rights with respect to subsequent
defaults.
The related prospectus supplement may specify other waiver provisions,
but if it does not, then a servicer default in making any required deposits to
or payment from the related trust accounts in accordance with the sale and
servicing agreement or pooling and servicing agreement, as applicable, may only
be waived with the consent of the holders of 100% of the outstanding principal
amount of the notes or, if the notes have been paid in full or there are no
notes in that series of securities, the holders of 100% of the outstanding
principal amount of the certificates.
NONPETITION COVENANT
With respect to each trust, the applicable trustee or indenture trustee
will be under no obligation to exercise any of the trusts or powers vested in it
by the sale and servicing agreement or pooling and servicing agreement, as
applicable, or to make any investigation of matters arising thereunder or to
institute, conduct, or defend any litigation thereunder or in relation thereto
at the request, order, or direction of any of the securityholders, unless the
securityholders have offered to the trustee or indenture trustee reasonable
security or indemnity against the costs, expenses and liabilities which they may
incur under those agreements. No securityholder will have any right under the
sale and servicing agreement or the pooling and servicing agreement to institute
any proceeding with respect the agreement unless:
- the holder previously has given to the trustee or indenture
trustee, as applicable, written notice of default; and
- in the case of a trust that has issued notes, holders of notes
of the related series evidencing not less than 25% of the
principal amount of the notes then outstanding have
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made written request upon the trustee or indenture trustee to
institute the proceeding in its own name as trustee or indenture
trustee thereunder and have offered to the trustee or indenture
trustee reasonable indemnity;
- in the case of a trust that has not issued notes or with respect
to which no notes are then outstanding, holders of certificates
of the related series evidencing not less than 25% of the
principal amount of the certificates then outstanding have made
written request upon the trustee or indenture trustee to
institute the proceeding in its own name as trustee or indenture
trustee thereunder and have offered to the trustee or indenture
trustee reasonable indemnity; and
- the related security insurer, if any, consents to the
institution of the proceeding.
AMENDMENT
The related prospectus supplement may provide other provisions for the
amendment of the transfer and servicing agreements, but if it does not, then
each of the transfer and servicing agreements may be amended by the parties to
those agreements, without the consent of the related securityholders, but with
the consent of the related security insurer, if any, to cure any ambiguity,
correct or supplement any provisions in the agreement which may be inconsistent
with any other provisions in the agreement, or make any other provisions with
respect to matters or questions arising thereunder which are not inconsistent
with the provisions of the transfer and servicing agreement being amended;
provided that the amendment will not materially and adversely affect the
interest of any securityholder, including, in the case of a trust agreement, any
residual interestholder. Any amendment will be deemed not to materially and
adversely affect the interest of any securityholder if the person requesting the
amendment obtains:
- a letter from each rating agency to the effect that the
amendment would not result in a downgrading or withdrawal of the
ratings then assigned to the applicable securities by the rating
agency; or
- an opinion of counsel to that effect.
In the case of a trust agreement, any amendment will be deemed not to
materially and adversely affect the interest of any residual interestholder if:
- the person requesting the amendment obtains an opinion of
counsel to the effect that the amendment will not materially and
adversely affect the interest of any residual interestholder; or
- 100% of the residual interestholders consent to the amendment.
The related prospectus supplement may provide other amendment
provisions, but if it does not, then the transfer and servicing agreements may
also be amended, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the transfer and servicing
agreements or of modifying in any manner the rights of the noteholders,
certificateholders or
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residual interestholders, by the parties to those agreements with the consent of
the related security insurer, if any, and the consent of:
- in the case of a trust that has issued notes, the holders of
notes of the related series evidencing not less than 51% of the
principal amount of the notes then outstanding, acting together
as a single class; or
- in the case of a trust that has not issued notes or with respect
to which no notes are then outstanding, the holders of
certificates of the related series evidencing not less than 51%
of the principal amount of the certificates then outstanding,
acting together as a single class; and
- if the amendment materially and adversely affects the interests
of the residual interestholders, the holders of 51% of the
residual interest in the trust.
However, without the consent of the holders of all of the outstanding
notes or certificates of the related series, as the case may be, no amendment
may:
- increase or reduce in any manner the amount of, or accelerate or
delay the timing of, collections of payments on the related
contracts or distributions that are required to be made for the
benefit of the noteholders, certificateholders or, in the case
of an amendment to a trust agreement, the residual
interestholders; or
- reduce the percentage of the notes, certificates or, in the case
of an amendment to a trust agreement, the residual interests of
that series which are required to consent to any amendment.
TERMINATION
The related prospectus supplement may specify other termination
provisions, but if it does not, then with respect to each trust, the obligations
of the seller, the servicer, the related trustee and the related indenture
trustee, if any, under the transfer and servicing agreements will terminate upon
the earlier of:
- the maturity or other liquidation of the last related contract
and the disposition of any amounts received upon liquidation of
any remaining contracts that are part of the related trust
property; and
- the occurrence of all of the following:
- the payment to noteholders, if any, and
certificateholders of the related series of all amounts
required to be paid to them under the transfer and
servicing agreements and the disposition of all property
held as part of the related trust;
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- if applicable, the termination of the related security
insurance policy in accordance with its terms and the
surrender of the policy to the related security insurer
for cancellation;
- the payment of all amounts owed to the trustee or
indenture trustee under the transfer and servicing
agreements; and
- if applicable, the payment of all amounts owed to the
related security insurer in connection with the related
security insurance policy.
If so provided in the related prospectus supplement, in order to avoid
excessive administrative expense, the servicer will be permitted at its option
to purchase the remaining contracts included in the trust property of a trust on
any distribution date as of which the aggregate outstanding principal balance of
the related contracts, after giving effect to the principal payments and
distributions otherwise to be made on that date, has declined to the percentage
of the aggregate cut-off date principal balance of the contracts specified in
the related prospectus supplement at the price specified in the related
prospectus supplement and, if applicable, all amounts due to the related
security insurer in connection with the related security insurance policy. The
applicable trustee or indenture trustee will give written notice of termination
to each securityholder of record. The final payment or distribution to any
securityholder will be made only upon surrender and cancellation of the
securityholder's security at an office or agency of the applicable trustee or
indenture trustee specified in the notice of termination. Any funds remaining in
the applicable trust, after the applicable trustee or indenture trustee has
taken measures to locate a securityholder and these measures have failed, will
be distributed to a charity designated by the servicer.
THE TRUSTEE AND INDENTURE TRUSTEE
With respect to each trust, the applicable trustee or indenture trustee
will not make any representations as to the validity or sufficiency of the
related transfer and servicing agreements, the related indenture, if any, the
securities, or any related contracts or related documents, or the investment of
any monies by the servicer before being deposited in or credited to the related
collection account. At the applicable closing date, the trustee or indenture
trustee will not have examined the contracts. If no event of default has
occurred, the trustee or indenture trustee will be required to perform only
those duties specifically required of it under the related transfer and
servicing agreements or the related indenture, if applicable. Generally, those
duties are limited to:
- the receipt of the various certificates, reports or other
instruments required to be furnished to the trustee or indenture
trustee under the related transfer and servicing agreements or
the related indenture, if applicable;
- the making of payments or distributions to securityholders in
the amounts specified in certificates provided by the servicer;
and
- if applicable, drawing on the related security insurance policy
if required to make payments or distributions to
securityholders.
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Each trustee and indenture trustee, and any of its affiliates, may hold
securities in their own names. In addition, for the purpose of meeting the legal
requirements of local jurisdictions, each trustee and indenture trustee, in some
circumstances acting jointly with the servicer, will have the power to appoint
co-trustees or separate trustees of all or any part of the related trust
property. In this event, all rights, powers, duties and obligations conferred or
imposed upon the trustee or indenture trustee by the related transfer and
servicing agreement or indenture, as applicable, will be conferred or imposed
upon the trustee or indenture trustee and the separate trustee or co-trustee
jointly, or, in any jurisdiction in which the trustee or indenture trustee is
incompetent or unqualified to perform certain acts, singly upon the separate
trustee or co-trustee who will exercise and perform these rights, powers, duties
and obligations solely at the direction of the trustee or indenture trustee.
The related prospectus supplement may specify other resignation and
removal provisions, but if it does not, then each applicable trustee and
indenture trustee may resign at any time, in which event a successor trustee
will be appointed under the terms of the related transfer and servicing
agreement or indenture, as applicable. Each applicable trustee and indenture
trustee may be removed if it ceases to be eligible to continue as such under the
related transfer and servicing agreement or indenture, as applicable, or if the
trustee or indenture trustee becomes insolvent. Any resignation or removal of
the trustee or indenture trustee and appointment of a successor does not become
effective until acceptance of the appointment by the successor trustee.
If so provided by the related prospectus supplement, each applicable
trustee or indenture trustee will be entitled to a fee which will be payable on
an annual basis by the servicer. The related prospectus supplement may specify
other indemnification provisions, but if it does not, then the related transfer
and servicing agreement or indenture, as applicable, will further provide that
the trustee or indenture trustee will be entitled to indemnification by the
servicer for, and will be held harmless against, any loss, liability, or expense
incurred by the trustee or indenture trustee not resulting from the trustee's or
indenture trustee's own willful misfeasance, bad faith, or negligence, other
than errors in judgment, or by reason of breach of any of their respective
representations or warranties set forth in the related transfer and servicing
agreement or indenture, as applicable. However, the servicer will not be
obligated to indemnify the applicable trustee or indenture trustee to the extent
that the loss, liability, or expense relates to a specific contract or contracts
or certain taxes that could be asserted against the trustee or indenture
trustee, the related trust or the related contracts, in which case the trustee
or indenture trustee would be entitled to be indemnified by the applicable
trust.
Onyx and the seller may maintain other banking relationships with each
applicable trustee or indenture trustee in the ordinary course of business.
ADMINISTRATION AGREEMENT
With respect to a trust that issues notes, Onyx or another party
specified in the related prospectus supplement, in its capacity as
administrator, may enter into an administration agreement with the trust and the
related indenture trustee under which Onyx, or such other party, as the
administrator will agree, to the extent provided in the administration
agreement, to provide the notices and to perform other administrative
obligations required by the related indenture. The related prospectus supplement
may specify other compensation arrangements for the administrator, but if it
does not, then as compensation for the performance of the administrator's
obligations under the applicable administration agreement and
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as reimbursement for its related expenses, the administrator will be entitled to
a monthly administration fee of an amount to be set forth in the related
prospectus supplement, which fee will be paid by the servicer.
THE INDENTURE
The following summary describes some of the terms of each indenture
under which the notes, if any, of a series will be issued. A form of indenture
has been filed as an exhibit to the registration statement of which this
prospectus is a part. This summary does not purport to be complete and is
subject to, and qualified in its entirety by reference to, all the provisions of
each applicable indenture and the related prospectus supplement.
MODIFICATION OF INDENTURE
The related prospectus supplement may provide other provisions for
modification of the related indenture, but if it does not, then the related
indenture may be modified as described below.
With respect to each trust that has issued notes under an indenture, the
trust and the indenture trustee may, with the consent of the holders of notes of
the related series evidencing not less than 51% of the principal amount of the
notes then outstanding, acting as a single class, and with the consent of the
related security insurer, if any, execute a supplemental indenture to add
provisions to, change in any manner or eliminate any provisions of, the related
indenture, or modify, except as provided below, in any manner the rights of the
related noteholders.
With respect to a series that includes notes, without the consent of the
holder of each outstanding note affected by a supplemental indenture, no
supplemental indenture may:
- change the due date of any installment of principal of or
interest on a note;
- reduce the principal amount of a note;
- reduce the interest rate of a note;
- reduce the redemption price of a note;
- change any place of payment where a note or interest on a note
is payable;
- change the coin or currency in which a note or any interest on a
note is payable;
- impair the right to institute suit for the enforcement of
certain provisions of the related indenture regarding payment;
- reduce the percentage of the aggregate amount of the outstanding
notes of the series, the consent of the holders of which is
required for any supplemental indenture or the consent of the
holders of which is required for any waiver of compliance with
certain provisions
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of the related indenture or of certain defaults under the
related indenture and their consequences as provided for in the
related indenture;
- modify or alter the provisions of the related indenture
regarding the voting of notes held by the applicable trust, any
other obligor on the notes, the seller or an affiliate of any of
them;
- reduce the percentage of the aggregate outstanding amount of the
notes, the consent of the holders of which is required to direct
the related indenture trustee to sell or liquidate the contracts
if the proceeds of the sale would be insufficient to pay the
principal amount and accrued but unpaid interest on the
outstanding notes of the series;
- decrease the percentage of the aggregate principal amount of the
notes required to amend the sections of the related indenture
which specify the applicable percentage of aggregate principal
amount of the notes required to amend the related indenture or
certain other related agreements; or
- permit the creation of any lien ranking prior to or on a parity
with the lien of the related indenture with respect to any of
the collateral for the notes or, except as otherwise permitted
or contemplated in the indenture, terminate the lien of the
indenture on any of the collateral or deprive the holder of any
note of the security afforded by the lien of the indenture.
With respect to a series that includes notes, the related trust and the
applicable indenture trustee may also enter into supplemental indentures,
without obtaining the consent of the noteholders of the related series, but with
the consent of the related security insurer, if any, for the purpose of, among
other things, adding any provisions to or changing in any manner or eliminating
any of the provisions of the related indenture or of modifying in any manner the
rights of the noteholders; provided that this action will not materially and
adversely affect the interest of any noteholder.
INDENTURE EVENTS OF DEFAULT
The related prospectus supplement may specify other events of default
under the related indenture, but if it does not, then, with respect to the notes
of a given series, the following will constitute indenture events of default:
- a draw on any security insurance policy;
- a default for five days or more in the payment of any interest
on any note;
- a default in the payment of the principal of or any installment
of the principal of any note when the same becomes due and
payable;
- a default in the observance or performance of any covenant or
agreement of the applicable trust made in the related indenture
and the continuation of the default for a period of 90 days
after notice is given to the trust by the applicable indenture
trustee or
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the related security insurer, if any, or to the trust and the
indenture trustee by the holders of at least 25% in principal
amount of the notes then outstanding acting together as a single
class;
- any representation or warranty made by the trust in the related
indenture or in any certificate delivered under or in connection
with the indenture having been incorrect in a material respect
as of the time made, and the breach not having been cured within
30 days after notice thereof is given to the trust by the
applicable indenture trustee or the related security insurer, if
any, or to the trust and the indenture trustee by the holders of
at least 25% in principal amount of the notes then outstanding
acting together as a single class; or
- events of bankruptcy, insolvency, receivership or liquidation of
the applicable trust.
The related prospectus supplement may specify other default provisions,
but if it does not, and if a security insurance policy is in effect with respect
to the notes, then so long as a default by the insurer shall not have occurred
and be continuing, an indenture event of default will occur only upon delivery
by the security insurer to the indenture trustee of notice of the occurrence of
an indenture event of default. The failure to pay principal on a class of notes
generally will not result in the occurrence of an indenture event of default
until the final scheduled distribution date for that class of notes.
RIGHTS UPON INDENTURE EVENT OF DEFAULT
The related prospectus supplement may specify other rights upon the
occurrence of an indenture event of default, but if it does not, then the
trustee, the securityholders and the security insurer, if any, will have the
rights described below. The related prospectus supplement will specify those
events which constitute a default by the security insurer, if any.
NO SECURITY INSURANCE POLICY OR SECURITY INSURER IN DEFAULT. If there is
no security insurance policy with respect to a series of notes, or if a default
by the related security insurer has occurred and is continuing, then upon the
occurrence of an indenture event of default, the holders of at least 66 2/3% of
the principal amount of the notes then outstanding may declare that the notes
become immediately due and payable. Also, in this event, the holders of at least
66 2/3% of the principal amount of the notes then outstanding will have the
right to control the exercise of remedies available with respect to the
indenture event of default, including the right to direct the indenture trustee
to maintain possession of the trust property or to liquidate the trust property
in whole or in part. However, the noteholders may not direct the indenture
trustee to liquidate the trust property in whole or in part unless either:
- the security insurer, if any, has failed to make a payment
required under the security insurance policy, and the indenture
event of default has occurred because of:
- a default in the payment of any principal on the final
scheduled distribution date for a class of notes or a
default of at least five days in the payment of any
interest on any notes; or
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- events of bankruptcy, insolvency, receivership or
liquidation of the trust; or
- the security insurer, if any, has not failed to make a payment
required under the security insurance policy, and an indenture
event of default has occurred other than as described above, and
either:
- the proceeds of the sale will be sufficient to pay all
outstanding principal and accrued interest of the notes
and the certificates, and all amounts owing to the
security insurer, if any; or
- holders of certificates evidencing 100% of the
outstanding principal amount of the certificates consent
to the sale and all amounts owing to the security
insurer, if any, will be paid in connection with the
sale.
In the event of a sale of the contracts as described in the second
alternative above when the security insurer has not failed to make a payment
required under a security insurance policy, the security insurance policy will
not be available to cover losses to securityholders resulting from the sale and
will be terminated and the security insurer will have no further obligation to
make any payment thereunder.
SECURITY INSURANCE POLICY AND NO SECURITY INSURER DEFAULT. Upon the
occurrence of an indenture event of default, so long as a default by the
security insurer shall not have occurred and be continuing, the security insurer
will have the right, but not the obligation, to declare by written notice to the
trust and the indenture trustee that the notes become immediately due and
payable. Upon the occurrence of an indenture event of default, so long as a
default by the security insurer shall not have occurred and be continuing, the
security insurer will have the right to control the exercise of remedies
available with respect to the indenture event of default, including the right to
direct the indenture trustee to maintain possession of the trust property or to
liquidate the trust property in whole or in part, on any date or dates following
the acceleration of the notes due to the indenture event of default as the
security insurer, in its sole discretion, shall elect. The security insurer may
not, however, cause the indenture trustee to liquidate the trust property in
whole or in part if the proceeds of the liquidation would not be sufficient to
pay all outstanding principal of and accrued interest on the notes. Following
the occurrence of any indenture event of default, the trustee and the indenture
trustee will continue to submit claims under the security insurance policy for
any shortfalls in amounts available to make payments or distributions of
guaranteed amounts on the notes and the certificates. However, following the
occurrence of an indenture event of default, so long as a default by the
security insurer shall not have occurred and be continuing, the security
insurer, at its sole option, may elect to pay all or any portion of the
outstanding amount of the notes, plus accrued interest thereon to the date of
payment.
COVENANTS
RESTRICTIONS ON CONSOLIDATION OR MERGER. The related prospectus
supplement may specify other covenants, but if it does not, then, with respect
to a series that includes notes, each indenture will provide that the related
trust may not consolidate with or merge into any other entity, unless:
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- the entity formed by or surviving the consolidation or merger is
organized under the laws of the United States, any state or the
District of Columbia;
- the surviving entity expressly assumes the trust's obligation to
make due and punctual payments upon the notes of the related
series and the performance or observance of every agreement and
covenant of the trust under the indenture;
- no event of default under the indenture shall have occurred and
be continuing immediately after the merger or consolidation;
- the trust has been advised that the rating of the securities of
the related series then in effect would not be reduced or
withdrawn by any rating agency as a result of the merger or
consolidation; and
- the trust has received an opinion of counsel to the effect that
the consolidation or merger would have no material adverse tax
consequence to the trust or to any holder of the securities of
the related series.
OTHER NEGATIVE COVENANTS. Each trust that has issued notes will not,
among other things:
- except as expressly permitted by the applicable indenture, the
applicable transfer and servicing agreements or certain related
documents with respect to the trust, sell, transfer, exchange or
otherwise dispose of any of the assets of the trust;
- claim any credit on or make any deduction from the principal and
interest payable in respect of the notes of the related series,
other than amounts withheld under the tax code or applicable
state law, or assert any claim against any present or former
holder of the notes because of the payment of taxes levied or
assessed upon the trust;
- dissolve or liquidate in whole or in part;
- permit the validity or effectiveness of the related indenture to
be impaired or permit any person to be released from any
covenants or obligations with respect to the notes under the
indenture except as may be expressly permitted thereby; or
- permit any lien, charge, excise, claim, security interest,
mortgage or other encumbrance to be created on or extend to or
otherwise arise upon or burden the assets of the trust or any
part of the trust, or any interest in the trust or the proceeds
of the trust.
No trust that has issued notes will incur, assume or guarantee any
indebtedness other than indebtedness incurred under the related notes and the
related indenture, or otherwise in accordance with the applicable transfer and
servicing agreements and other related documents.
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ANNUAL COMPLIANCE STATEMENT
Each trust that has issued notes will be required to file annually with
the related indenture trustee a written statement as to the fulfillment of its
obligations under the indenture.
INDENTURE TRUSTEE'S ANNUAL REPORT
The indenture trustee for each trust that has issued notes will be
required to mail each year to all related noteholders a brief report relating
to:
- its eligibility and qualification to continue as indenture
trustee under the related indenture;
- any amounts advanced by it under the indenture;
- the amount, interest rate and maturity date of indebtedness
owing by the trust to the applicable indenture trustee in its
individual capacity; and
- the property and funds physically held by the indenture trustee
as such and any action taken by it that materially affects the
related notes and that has not been previously reported.
SATISFACTION AND DISCHARGE OF INDENTURE
An indenture will be discharged with respect to the collateral securing
the related notes upon the delivery to the related indenture trustee for
cancellation of all of the related notes or, with certain limitations, upon
deposit with the indenture trustee of funds sufficient for the payment in full
of all of the related notes.
THE INDENTURE TRUSTEE
The indenture trustee, if applicable, will be specified in the related
prospectus supplement. Under the Trust Indenture Act of 1939, as amended, the
indenture trustee may have a "conflicting interest" if any event of default
under the indenture occurs with respect to a series that includes one or more
classes of notes that are subordinated to any other class of notes. In this
event, the indenture trustee may be required to resign with respect to one or
more classes of notes and the successor indenture trustee would be appointed for
such class or classes of notes. Certain matters relating to the indenture
trustee for each series that includes notes are described under "Description of
the Transfer and Servicing Agreements -- The Trustee and Indenture Trustee" in
this prospectus.
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CERTAIN LEGAL ASPECTS OF THE CONTRACTS
GENERAL
The transfer of contracts by Onyx and any of its subsidiaries to the
seller, and by the seller to the applicable trust, and, if applicable, the
pledge of those contracts to an indenture trustee, the perfection of the
security interests in the contracts and the enforcement of rights to realize on
the related financed vehicles as collateral for the contracts are subject to a
number of federal and state laws, including the Uniform Commercial Code, or UCC,
as in effect in various states. The servicer and the seller will take the action
described below to perfect the rights of the applicable trust and, if
applicable, the indenture trustee in the contracts. If, through inadvertence or
otherwise, another party purchases, including the taking of a security interest
in, a contract for new value in the ordinary course of its business, without
actual knowledge of the trust's interest in the contract, and, if applicable,
the indenture trustee's interest in the contract, and takes possession of the
contract, the purchaser would acquire an interest in the contract superior to
the interest of the trust and, if applicable, the interest of the indenture
trustee.
The related prospectus supplement may specify other information
concerning the custody of the contracts, but if it does not, then under each
sale and servicing agreement, pooling and servicing agreement or indenture, as
applicable, Onyx will have custody of the contracts included in the trust
property of a trust following the sale of the contracts to the related trust
and, if applicable, the pledge of those contracts to the related indenture
trustee, and will hold the contracts as custodian for the benefit of the trust
or, if applicable, the indenture trustee. While the contracts will not be
physically marked to indicate the ownership interest thereof by the trust or, if
applicable, the pledge of the contracts to the related indenture trustee,
appropriate UCC-1 financing statements will be filed to perfect by filing and
give notice of the trust's ownership interest in, and, if applicable, the
indenture trustee's security interest in, the contracts. If, through
inadvertence or otherwise, any of the contracts were sold to another party who
purchased the contracts in the ordinary course of its business and took
possession of the contracts, the purchaser would acquire an interest in the
contracts superior to the interests of the trust and, if applicable, the
interests of the indenture trustee, if the purchaser acquired the contracts in
good faith, for value and without actual knowledge of the trust's and, if
applicable, the indenture trustee's, interests in the contracts.
SECURITY INTERESTS IN THE FINANCED VEHICLES
GENERAL. Retail installment sale contracts and installment loan
agreements like the contracts evidence the credit sale of automobiles, light
duty trucks and vans. The contracts also constitute personal property security
agreements and include grants of security interests in the vehicles under the
applicable UCC. In most states, a security interest in an automobile, light duty
truck or van is perfected by obtaining the certificate of title to the financed
vehicle or notation of the secured party's lien on the vehicle's certificate of
title. The seller will warrant to the related trust in the sale and servicing
agreement or pooling and servicing agreement, as applicable, that Onyx or a
subsidiary of Onyx has taken all steps necessary to obtain a perfected first
priority security interest with respect to all financed vehicles securing the
contracts and that the security interest has been assigned to the trust. If Onyx
fails, because of clerical errors or otherwise, to effect or maintain the
notation of the security interest on the certificate of title relating to a
financed vehicle, the trust may not have a first priority security interest in
the financed vehicle.
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PERFECTION. The seller will sell the contracts and assign the security
interest in each financed vehicle to the related trust. However, because of the
administrative burden and expense, the trust will not amend the certificates of
title to identify the trust as the new secured party. Accordingly, Onyx or a
subsidiary of Onyx will continue to be named as the secured party on the
certificates of title relating to the financed vehicles. Under the law of
California and most other states, the assignment of the contracts is an
effective conveyance of the security interests in the financed vehicles without
amendment of the lien noted on the related certificate of title and the new
secured party succeeds to the assignor's rights as the secured party. However,
there exists a risk in not identifying the related trust as the new secured
party on the certificate of title that, through fraud or negligence, the
security interest of the trust could be released.
In the absence of fraud or forgery by the financed vehicle owner or
administrative error by state recording officials, notation of the lien of Onyx
or a subsidiary of Onyx will be sufficient to protect the related trust against
the rights of subsequent purchasers of a financed vehicle or subsequent lenders
who take a security interest in a financed vehicle. If there are any financed
vehicles as to which Onyx or a subsidiary of Onyx has failed to perfect the
security interest assigned to the related trust, the security interest would be
subordinate to, among others, subsequent purchasers of the financed vehicles and
holders of perfected security interests.
In the event that the owner of a financed vehicle relocates to a state
other than the state in which the financed vehicle was registered at the
inception of the contract, under the laws of most states the perfected security
interest in the financed vehicle would continue for four months after the
relocation and thereafter, in most instances, until the owner re-registers the
financed vehicle in that state. A majority of states generally require surrender
of a certificate of title to re-register a vehicle. Therefore, the servicer will
provide the department of motor vehicles or other appropriate state or county
agency of the state of relocation with the certificate of title so that the
owner can effect the re-registration. If the financed vehicle owner moves to a
state that provides for notation of lien on the certificate of title to perfect
the security interests in the financed vehicle, Onyx or a subsidiary of Onyx,
absent clerical errors or fraud, would receive notice of surrender of the
certificate of title if its lien is noted thereon. Each subsidiary of Onyx named
as the secured party on a certificate of title will agree to promptly forward to
Onyx any notice received by the subsidiary. Accordingly, Onyx will have notice
and the opportunity to re-perfect the security interest in the financed vehicle
in the state of relocation. If the financed vehicle owner moves to a state which
does not require surrender of a certificate of title for registration of a motor
vehicle, re-registration could defeat perfection. In the ordinary course of
servicing its portfolio of contracts, Onyx takes steps to effect the
re-perfection upon receipt of notice of registration or information from the
obligor as to relocation. Similarly, when an obligor under a contract sells a
financed vehicle, the servicer must provide the owner with the certificate of
title, or the servicer will receive notice as a result of its lien or its
subsidiary's lien noted thereon and accordingly will have an opportunity to
require satisfaction of the related contract before release of the lien. Under
the sale and servicing agreement or pooling and servicing agreement, as
applicable, Onyx, at its cost, will be obligated to maintain the continuous
perfection of the security interest of Onyx or its subsidiary in the financed
vehicle.
Under the laws of most states, including California, certain statutory
liens such as liens for unpaid taxes, liens for towing and storage of and
repairs performed on a motor vehicle, motor vehicle accident liens, and liens
arising under various state and federal criminal statutes take priority even
over a
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perfected security interest. The tax code also grants priority to certain
federal tax liens over the lien of a secured party. The laws of most states and
federal law permit the confiscation of motor vehicles by governmental
authorities under certain circumstances if used in or acquired with the proceeds
of unlawful activities, which may result in the loss of a secured party's
perfected security interest in a confiscated vehicle. The seller will represent
in each sale and servicing agreement or pooling and servicing agreement, as
applicable, that, as of the initial issuance of the securities of the related
series, no such state or federal liens exist with respect to any financed
vehicle securing payment on any related Contract. However, these liens could
arise, or such a confiscation could occur, at any time during the term of a
contract. It is possible that no notice will be given to the servicer in the
event one of these liens arises or a confiscation occurs, and any lien arising
or confiscation occurring after the related closing date would not give rise to
the seller's repurchase obligations under the related sale and servicing
agreement or pooling and servicing agreement, as applicable.
REPOSSESSION
In the event of default by an obligor, the holder of the related retail
installment sale contract or installment loan agreement has all the remedies of
a secured party under the UCC, except where specifically limited by other state
laws. Among the UCC remedies, the secured party has the right to perform
repossession by self-help means, unless this would constitute a breach of the
peace or is otherwise limited by applicable state law. Unless a financed vehicle
is voluntarily surrendered, self-help repossession is accomplished simply by
retaking possession of the financed vehicle. In cases where the obligor objects
or raises a defense to repossession, or if otherwise required by applicable
state law, a court order must be obtained from the appropriate state court, and
the financed vehicle must then be recovered in accordance with that order. In
some jurisdictions, the secured party is required to notify the obligor of the
default and the intent to repossess the collateral and to give the obligor a
time period within which to cure the default prior to repossession. Generally,
this right of cure may only be exercised on a limited number of occasions during
the term of the related contract. Other jurisdictions permit repossession
without prior notice if it can be accomplished without a breach of the peace,
although in some states, a course of conduct in which the creditor has accepted
late payments has been held to create a right by the obligor to receive prior
notice. In many states, under certain circumstances after the financed vehicle
has been repossessed, the obligor may reinstate the related contract by paying
the delinquent installments and other amounts due.
NOTICE OF SALE; REDEMPTION RIGHTS
The UCC and other state laws require the secured party to provide the
obligor with reasonable notice of the date, time and place of any public sale
and/or the date after which any private sale of the collateral may be held. In
addition, some states also impose substantive timing requirements on the sale of
repossessed vehicles in certain circumstances and/or various substantive timing
and content requirements on the notices. In some states, under certain
circumstances after a financed vehicle has been repossessed, the obligor may
redeem the collateral by paying the delinquent installments and other amounts
due. The obligor has the right to redeem the collateral prior to actual sale or
entry by the secured party into a contract for sale of the collateral by paying
the secured party the unpaid principal balance of the obligation, accrued
interest thereon, reasonable expenses for repossessing, holding, and preparing
the collateral for disposition and arranging for its sale, plus, in some
jurisdictions, reasonable
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attorneys' fees and legal expenses or in some other states, by payment of
delinquent installments on the unpaid principal balance of the related
obligation.
DEFICIENCY JUDGMENTS AND EXCESS PROCEEDS
The proceeds of resale of the repossessed financed vehicles generally
will be applied first to the expenses of resale and repossession and then to the
satisfaction of the indebtedness. While some states impose prohibitions or
limitations on deficiency judgments if the net proceeds from resale do not cover
the full amount of the indebtedness, a deficiency judgment can be sought in
those states that do not prohibit or limit deficiency judgments. In addition to
the notice requirement, the UCC requires that every aspect of the sale or other
disposition, including the method, manner, time, place and terms, be
"commercially reasonable." Generally, courts have held that when a sale is not
"commercially reasonable," the secured party loses its right to a deficiency
judgment.
In addition, the UCC permits the debtor or other interested party to
recover for any loss caused by noncompliance with the provisions of the UCC.
Also, prior to a sale, the UCC permits the debtor or other interested person to
prohibit the secured party from disposing of the collateral if it is established
that the secured party is not proceeding in accordance with the "default"
provisions under the UCC. Any deficiency judgment would be a personal judgment
against the obligor for the shortfall, and a defaulting obligor can be expected
to have very little capital or sources of income available following
repossession. Therefore, in many cases, it may not be useful to seek a
deficiency judgment or, if one is obtained, it may be settled at a significant
discount or be uncollectible.
Occasionally, after resale of a repossessed vehicle and payment of all
expenses and indebtedness, there is a surplus of funds. In that case, the UCC
requires the creditor to remit the surplus to any holder of a subordinate lien
with respect to the repossessed vehicle or if no subordinate lienholder exists,
the UCC requires the creditor to remit the surplus to the obligor.
CONSUMER PROTECTION LAWS
Numerous federal and state consumer protection laws and related
regulations impose substantial requirements upon lenders and servicers involved
in consumer finance. These laws include the Truth-in-Lending Act, the Equal
Credit Opportunity Act, the Federal Trade Commission Act, the Fair Credit
Billing Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices
Act, the Magnuson-Moss Warranty Act, the Federal Reserve Board's Regulations B
and Z, the Soldiers' and Sailors' Civil Relief Act of 1940, state adoptions of
the National Consumer Act and of the Uniform Consumer Credit Code, state motor
vehicle retail installment sales acts, state "lemon" laws and other similar
laws. Also, state laws impose finance charge ceilings and other restrictions on
consumer transactions and require contract disclosures in addition to those
required under federal law. These requirements impose specific statutory
liabilities upon creditors who fail to comply with their provisions. In some
cases, this liability could affect an assignee's ability to enforce consumer
finance contracts such as the contracts.
The so-called "Holder-in-Due-Course" rule of the Federal Trade
Commission, commonly referred to as the "FTC Rule," has the effect of subjecting
any assignee of the seller in a consumer credit transaction, and certain related
creditors and their assignees, to all claims and defenses which the obligor
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in the transaction could assert against the seller. Liability under the FTC Rule
is limited to the amounts paid by the obligor under the contract, and the holder
of the contract may also be unable to collect any balance remaining due
thereunder from the obligor. The FTC Rule is generally duplicated by the Uniform
Consumer Credit Code, other state statutes or the common law in certain states.
Most of the contracts will be subject to the requirements of the FTC
Rule. Accordingly, each trust, as holder of the related contracts, will be
subject to any claims or defenses that the purchaser of the applicable financed
vehicle may assert against the seller of the financed vehicle. As to each
obligor, these claims are limited to a maximum liability equal to the amounts
paid by the obligor on the related contract. The seller will represent in each
sale and servicing agreement or pooling and servicing agreement, as applicable,
that each of the contracts, and the sale of the related financed vehicle
thereunder, complied with all material requirements of the laws and the
regulations issued under the FTC Rule.
Any shortfalls or losses arising in connection with the matters
described in the two preceding paragraphs, to the extent not covered by amounts
payable to the securityholders from amounts available under a credit enhancement
mechanism, could result in losses to the securityholders.
Courts have applied general equitable principles to secured parties
pursuing repossession and litigation involving deficiency balances. These
equitable principles may have the effect of relieving an obligor from some or
all of the legal consequences of a default.
In several cases, consumers have asserted that the self-help remedies of
secured parties under the UCC and related laws violate the due process
protections provided under the 14th Amendment to the Constitution of the United
States. Courts have generally upheld the notice provisions of the UCC and
related laws as reasonable or have found that the repossession and resale by the
creditor do not involve sufficient state action to afford constitutional
protection to borrowers.
OTHER LIMITATIONS
In addition to the laws limiting or prohibiting deficiency judgments,
numerous other statutory provisions, including federal bankruptcy laws and
related state laws, may interfere with or affect the ability of a secured party
to realize upon collateral or to enforce a deficiency judgment. For example, in
a Chapter 13 proceeding under the federal bankruptcy law, a court may prevent a
creditor from repossessing a vehicle, and, as part of the rehabilitation plan,
reduce the amount of the secured indebtedness to the market value of the vehicle
at the time of bankruptcy, as determined by the court, leaving the creditor as a
general unsecured creditor for the remainder of the indebtedness. A bankruptcy
court may also reduce the monthly payments due under a contract or change the
rate of interest and time of repayment of the indebtedness.
Under the terms of the Soldiers' and Sailors' Relief Act of 1940, an
obligor who enters the military service after the origination of the obligor's
contract, including an obligor who is a member of the National Guard or is in
reserve status at the time of the origination of the obligor's contract and is
later called to active duty, may not be charged interest above an annual rate of
6% during the period of his or her active duty status, unless a court orders
otherwise upon application of the lender. In addition, under the Military
Reservist Relief Act, under certain circumstances, California residents called
into
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active duty with the reserves can delay payments on retail installment
sales contracts, including the contracts, for a period, not to exceed 180 days,
beginning with the order to active duty and ending 30 days after release. It is
possible that this could have an effect on the ability of the servicer to
collect the full amount of interest owing on certain of the contracts. In
addition, the Relief Acts impose limitations that would impair the ability of
the servicer to repossess an affected contract during the obligor's period of
active duty status. Thus, in the event that an affected contract goes into
default, there may be delays and losses occasioned by the inability to exercise
the trust's rights with respect to the related financed vehicle in a timely
fashion.
Any shortfalls or losses arising in connection with the matters
described in the two preceding paragraphs, to the extent not covered by amounts
payable to the securityholders from amounts available under a credit enhancement
mechanism, could result in losses to the securityholders.
REPURCHASE OBLIGATION
Under each sale and servicing agreement or pooling and servicing
agreement, the seller will make representations and warranties relating to
validity, existence, perfection and priority of the security interest in each
related financed vehicle as of the related closing date. See "Description of the
Transfer and Servicing Agreements -- Sale and Assignment of the Contracts".
Accordingly, if any defect exists in the perfection of the security interest in
any financed vehicle as of the closing date and the defect adversely affects the
related trust's interest in the related contract, the defect would constitute a
breach of a warranty under the sale and servicing agreement or pooling and
servicing agreement, as applicable, and would create an obligation of the seller
to repurchase the contract unless the breach is cured. Additionally, in the sale
and servicing agreement or pooling and servicing agreement, as applicable, the
servicer will make certain representations, warranties and affirmative covenants
regarding, among other things, the maintenance of the security interest in each
financed vehicle, the breach of which would create an obligation of the servicer
to purchase any affected contract from the related trust unless the breach is
cured.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following general discussion of the anticipated material federal
income tax consequences of the purchase, ownership and disposition of the notes
and the certificates of any series, to the extent it relates to matters of law
or legal conclusions with respect thereto, represents the opinion of tax counsel
to each trust with respect to the related series on the material matters
associated with such consequences, subject to the qualifications set forth in
this section of this prospectus. "Tax counsel" with respect to each trust will
be Andrews & Kurth L.L.P. The summary does not purport to deal with federal
income tax consequences applicable to all categories of investors, some of which
may be subject to special rules. For example, it does not discuss the tax
treatment of noteholders or certificateholders that are insurance companies,
regulated investment companies or dealers in securities. Moreover, there are no
cases or IRS rulings on similar transactions involving both debt and equity
interests issued by a trust with terms similar to those of the notes and the
certificates. As a result, the IRS may disagree with all or a part of the
discussion below. Prospective investors are urged to consult their own tax
advisors in determining the federal, state, local, foreign and any other tax
consequences to them of the purchase, ownership and disposition of the notes and
the certificates.
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The following summary is based upon current provisions of the tax code -
the Internal Revenue Code of 1986, as amended, the Treasury regulations
promulgated thereunder and judicial or ruling authority, all of which are
subject to change, which change may be retroactive. Each trust will be provided
with an opinion of tax counsel regarding certain federal income tax matters
discussed below. An opinion of tax counsel, however, is not binding on the IRS
or the courts. No ruling on any of the issues discussed below will be sought
from the IRS. For purposes of the following summary, references to the trust,
the notes, the certificates and related terms, parties and documents shall be
deemed to refer, unless otherwise specified herein, to each trust and the notes,
certificates and related terms, parties and documents applicable to the trust.
The federal income tax consequences to certificateholders will vary depending on
whether an election is made to treat the trust as a partnership under the tax
code or whether the trust will be treated as a grantor trust. The prospectus
supplement for each series of certificates will specify whether a partnership
election will be made or the trust will be treated as a grantor trust.
TRUSTS FOR WHICH A PARTNERSHIP ELECTION IS MADE
TAX CHARACTERIZATION OF THE TRUST AS A PARTNERSHIP
The following general discussion of the anticipated federal income tax
consequences of the purchase, ownership and disposition of the notes and the
certificates of a trust for which a partnership election will be made, to the
extent it relates to matters of law or legal conclusions with respect thereto,
represents the opinion of tax counsel to each trust with respect to the related
series on the material matters associated with such consequences, subject to the
qualifications set forth in this section of this prospectus. In addition, tax
counsel has prepared or reviewed the statements in the prospectus under the
heading "Certain Federal Income Tax Consequences -- Trusts for Which a
Partnership Election is Made", and is of the opinion that the statements are
correct in all material respects. Those statements are intended as an
explanatory discussion of the related tax matters affecting investors generally,
but do not purport to furnish information in the level of detail or with the
attention to an investor's specific tax circumstances that would be provided by
an investor's own tax advisor. Accordingly, each investor is advised to consult
its own tax advisors with regard to the tax consequences to it of investing in
notes or certificates.
Tax counsel will deliver its opinion that a trust for which a
partnership election is made will not be an association, or publicly traded
partnership, taxable as a corporation for federal income tax purposes. This
opinion will be based on the assumption that the terms of the trust agreement
and related documents will be complied with, and on counsel's conclusions that
the nature of the income of the trust will exempt it from the rule that some
publicly traded partnerships are taxable as corporations.
If the trust were taxable as a corporation for federal income tax
purposes, the trust would be subject to corporate income tax on its taxable
income. The trust's taxable income would include all its income on the
contracts, possibly reduced by its interest expense on the notes. Any corporate
income tax could materially reduce cash available to make payments on the notes
and distributions on the certificates, and certificateholders could be liable
for any corporate income tax that is unpaid by the trust.
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TAX CONSEQUENCES TO HOLDERS OF THE NOTES
TREATMENT OF THE NOTES AS INDEBTEDNESS. The seller will agree, and the
noteholders will agree by their purchase of notes, to treat the notes as debt
for federal income tax purposes. Tax counsel will, except as otherwise provided
in the related prospectus supplement, advise the trust that the notes will be
classified as debt for federal income tax purposes. The discussion below assumes
this characterization of the notes is correct.
OID, INDEXED SECURITIES, ETC. The discussion below assumes that all
payments on the notes are denominated in U.S. dollars, and that the notes are
not strip notes. Moreover, the discussion assumes that the interest formula for
the notes meets the requirements for "qualified stated interest" under Treasury
regulations relating to original issue discount -- or OID -- and that any OID on
the notes (i.e., any excess of the principal amount of the notes over their
issue price) does not exceed a de minimis amount (i.e., 1/4% of their principal
amount multiplied by the number of full years included in their term), all
within the meaning of the OID regulations. If these conditions are not satisfied
with respect to any given series of notes, additional tax considerations with
respect to the notes will be disclosed in the applicable prospectus supplement.
INTEREST INCOME ON THE NOTES. Based on the above assumptions, except as
discussed in the following paragraph, the notes will not be considered issued
with OID. The stated interest thereon will be taxable to a noteholder as
ordinary interest income when received or accrued in accordance with the
noteholder's method of tax accounting. Under the OID regulations, a holder of a
note issued with a de minimis amount of OID must include the OID in income, on a
pro rata basis, as principal payments are made on the note. A purchaser who buys
a note for more or less than its principal amount will generally be subject,
respectively, to the premium amortization or market discount rules of the tax
code.
A holder of a short-term note -- one that has a fixed maturity date of
not more than one year from the issue date of the note -- may be subject to
special rules. An accrual basis holder of a short-term note, and specific cash
method holders, including regulated investment companies, as set forth in
Section 1281 of the tax code, generally would be required to report interest
income as interest accrues on a straight-line basis over the term of each
interest period. Other cash basis holders of a short-term note would, in
general, be required to report interest income as interest is paid or, if
earlier, upon the taxable disposition of the short-term note. However, a cash
basis holder of a short-term note reporting interest income as it is paid may be
required to defer a portion of any interest expense otherwise deductible on
indebtedness incurred to purchase or carry the short-term note until the taxable
disposition of the short-term note. A cash basis taxpayer may elect under
Section 1281 of the tax code to accrue interest income on all non-government
debt obligations with a term of one year or less, in which case the taxpayer
would include interest on the short-term note in income as it accrues, but would
not be subject to the interest expense deferral rule referred to in the
preceding sentence. Certain special rules apply if a short-term note is
purchased for more or less than its principal amount.
SALE OR OTHER DISPOSITION. If a noteholder sells a note, the holder will
recognize gain or loss in an amount equal to the difference between the amount
realized on the sale and the holder's adjusted tax basis in the note. The
adjusted tax basis of a note to a particular noteholder will equal the holder's
cost for the note, increased by any market discount, acquisition discount, OID
and gain previously included by the noteholder in income with respect to the
note and decreased by the amount of bond premium, if
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any, previously amortized and by the amount of principal payments previously
received by the noteholder with respect to that note. This gain or loss will be
capital gain or loss if the note was held as a capital asset, except for gain
representing accrued interest and accrued market discount not previously
included in income. Capital losses generally may be used only to offset capital
gains.
FOREIGN HOLDERS. Interest payments made, or accrued, to a noteholder who
is a foreign person -- a nonresident alien, foreign corporation or other
non-United States person -- generally will be considered "portfolio interest,"
and generally will not be subject to United States federal income tax and
withholding tax, if the interest is not effectively connected with the conduct
of a trade or business within the United States by the foreign person and the
foreign person:
- is not actually or constructively a "10 percent shareholder" of
the trust or the seller, including a holder of 10% of the
outstanding certificates, or a "controlled foreign corporation"
with respect to which the trust or the seller is a "related
person" within the meaning of the tax code; and
- provides the trustee or other person who is otherwise required
to withhold U.S. tax with respect to the notes with an
appropriate statement, on Form W-8 or a similar form, signed
under penalties of perjury, certifying that the beneficial owner
of the note is a foreign person and providing the foreign
person's name and address.
If a note is held through a securities clearing organization or certain
other financial institutions, the organization or institution may provide the
relevant signed statement to the withholding agent; in that case, however, the
signed statement must be accompanied by a Form W-8 or substitute form provided
by the foreign person that owns the note. If the interest is not portfolio
interest, then it will be subject to United States federal income and
withholding tax at a rate of 30 percent, unless reduced or eliminated under an
applicable tax treaty.
Any capital gain realized on the sale, redemption, retirement or other
taxable disposition of a note by a foreign person will be exempt from United
States federal income and withholding tax, provided that:
- the gain is not effectively connected with the conduct of a
trade or business in the United States by the foreign person;
and
- in the case of an individual foreign person, the foreign person
is not present in the United States for 183 days or more in the
taxable year.
Final regulations dealing with withholding tax on income paid to foreign
persons and related matters were issued by the Treasury Department on October 6,
1997. These new withholding regulations will generally be effective for payments
made after December 31, 2000, subject to transition rules. Prospective investors
who are foreign persons are strongly urged to consult their own tax advisors
with respect to the new withholding regulations.
BACKUP WITHHOLDING. Each holder of a note -- other than an exempt holder
such as a corporation, tax-exempt organization, qualified pension and
profit-sharing trust, individual retirement
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account or nonresident alien who provides certification as to status as a
nonresident -- will be required to provide, under penalties of perjury, a
certificate containing the holder's name, address, correct federal taxpayer
identification number and a statement that the holder is not subject to backup
withholding. Should a nonexempt noteholder fail to provide the required
certification, the trust will be required to withhold 31 percent of the amount
otherwise payable to the holder, and remit the withheld amount to the IRS as a
credit against the holder's federal income tax liability.
POSSIBLE ALTERNATIVE TREATMENTS OF THE NOTES. If, contrary to the
opinion of tax counsel, the IRS successfully asserted that one or more of the
notes did not represent debt for federal income tax purposes, the notes might be
treated as equity interests in the trust. If so treated, the trust might be
taxable as a corporation with the adverse consequences described above, and the
taxable corporation would not be able to reduce its taxable income by deductions
for interest expense on notes recharacterized as equity. Alternatively, and more
likely in the view of tax counsel, the trust might be treated as a publicly
traded partnership that would not be taxable as a corporation because it would
meet applicable qualifying income tests. Nonetheless, treatment of the notes as
equity interests in such a publicly traded partnership could have adverse tax
consequences to some holders. For example, income to some tax-exempt entities,
including pension funds, would be "unrelated business taxable income," income to
foreign holders generally would be subject to U.S. tax and U.S. tax return
filing and withholding requirements, and individual holders might be subject to
limitations on their ability to deduct their share of trust expenses.
TAX CONSEQUENCES TO HOLDERS OF THE CERTIFICATES
TREATMENT OF THE TRUST AS A PARTNERSHIP. The seller and the servicer
will agree, and the certificateholders will agree by their purchase of
certificates, to treat the trust as a partnership for purposes of federal and
state income tax, franchise tax and any other tax measured in whole or in part
by income, with the assets of the partnership being the assets held by the
trust, the partners of the partnership being the certificateholders, including
the seller or other entity in its capacity as recipient of distributions with
respect to the residual interest, if any, and the notes being debt of the
partnership. However, the proper characterization of the arrangement involving
the trust, the certificates, the notes, the seller and the servicer is not clear
because there is no authority on transactions closely comparable to that
contemplated by this prospectus.
A variety of alternative characterizations are possible. For example,
because the certificates have features characteristic of debt, the certificates
might be considered debt of the seller or the trust. Any such characterization
would not result in materially adverse tax consequences to certificateholders as
compared to the consequences from treatment of the certificates as equity in a
partnership, described below. The following discussion assumes that the
certificates represent equity interests in a partnership.
PARTNERSHIP TAXATION. As a partnership, the trust will not be subject to
federal income tax. Rather, each certificateholder will be required to
separately take into account the holder's allocated share of income, gains,
losses, deductions and credits of the trust. The trust's income will consist
primarily of interest and finance charges earned on the contracts, including
appropriate adjustments for market discount, OID and bond premium, and any gain
upon collection or disposition of contracts. The trust's deductions will consist
primarily of interest accruing with respect to the notes, servicing and other
fees, and losses or deductions upon collection or disposition of contracts.
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The tax items of a partnership are allocable to the partners in
accordance with the tax code, Treasury regulations and the partnership agreement
- here, the trust agreement and related documents. The trust agreement will
provide, in general, that the certificateholders will be allocated taxable
income of the trust for each month equal to the sum of:
- the interest that accrues on the certificates in accordance with
their terms for the month, including interest accruing at the
interest rate for the certificates for the month and interest on
amounts previously due on the certificates but not yet
distributed;
- any trust income attributable to discount on the contracts that
corresponds to any excess of the principal amount of the
certificates over their initial issue price;
- prepayment premium payable to the certificateholders for the
month; and
- any other amounts of income payable to the certificateholders
for the month.
This allocation will be reduced by any amortization by the trust of premium on
contracts that corresponds to any excess of the issue price of certificates over
their principal amount. All remaining taxable income of the trust will be
allocated to the seller. Based on the economic arrangement of the parties, this
approach for allocating trust income should be permissible under applicable
Treasury regulations, although no assurance can be given that the IRS would not
require a greater amount of income to be allocated to certificateholders.
Moreover, even under the foregoing method of allocation, certificateholders may
be allocated income equal to the entire interest rate of the certificates plus
the other items described above even though the trust might not have sufficient
cash to make current cash distributions of this amount. Thus, cash basis holders
will in effect be required to report income from the certificates on the accrual
basis and certificateholders may become liable for taxes on trust income even if
they have not received cash from the trust to pay these taxes. In addition,
because tax allocations and tax reporting will be done on a uniform basis for
all certificateholders but certificateholders may be purchasing certificates at
different times and at different prices, certificateholders may be required to
report on their tax returns taxable income that is greater or less than the
amount reported to them by the trust.
All of the taxable income allocated to a certificateholder that is a
pension, profit sharing or employee benefit plan or other tax-exempt entity,
including an individual retirement account, will constitute "unrelated business
taxable income" generally taxable to the certificateholder under the tax code.
An individual taxpayer's share of expenses of the trust, including fees
to the servicer but not interest expense, would be miscellaneous itemized
deductions and thus allowable as a deduction only to the extent that in the
aggregate all of the expenses exceed two percent of the individual tax payer's
adjusted gross income. Furthermore, some otherwise allowable itemized deductions
will be reduced, but not by more than 80%, by an amount equal to 3% of the
individual's adjusted gross income in excess of a statutorily defined threshold.
Therefore, these deductions might be disallowed to the individual in whole or in
part and might result in the holder being taxed on an amount of income that
exceeds the amount of cash actually distributed to the holder over the life of
the trust.
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The trust intends to make all tax calculations relating to income and
allocations to certificateholders on an aggregate basis. If the IRS were to
require that these calculations be made separately for each contract, the trust
might be required to incur additional expense but it is believed that there
would not be a material adverse effect on certificateholders.
DISCOUNT AND PREMIUM. It is believed that the contracts were not issued
with OID, and, therefore, the trust should not have OID income. However, the
purchase price paid by the trust for the contracts may be greater or less than
the remaining principal balance of the contracts at the time of purchase. If so,
the contracts will have been acquired at a premium or discount, as the case may
be. As indicated above, the trust will make this calculation on an aggregate
basis, but might be required to recompute it on a contract-by-contract basis.
If the trust acquires the contracts at a market discount or premium, the
trust will elect to include the market discount in income currently as it
accrues over the life of the contracts or to offset any market premium against
interest income on the contracts. As indicated above, a portion of the market
discount income or premium deduction may be allocated to certificateholders.
SECTION 708 TERMINATION. Under Section 708 of the tax code, the trust
will be deemed to terminate for federal income tax purposes if 50% or more of
the capital and profits interests in the trust are sold or exchanged within a
12-month period. If this type of termination occurs, the trust will be
considered to contribute its assets to a new partnership and, immediately
thereafter, the terminated partnership distributes interests in the new
partnership to the partners in liquidation of the terminated partnership. The
trust will not comply with technical requirements that might apply when a
constructive termination occurs. As a result, the trust may be subject to tax
penalties and may incur additional expenses if it is required to comply with
those requirements. Furthermore, the trust might not be able to comply due to
lack of data.
DISPOSITION OF CERTIFICATES. Generally, capital gain or loss will be
recognized on a sale of certificates in an amount equal to the difference
between the amount realized and the seller's tax basis in the certificates sold.
A certificateholder's tax basis in a certificate will generally equal the
holder's cost increased by the holder's share of trust income, includible in
income, and decreased by any distributions received with respect to the
certificate. In addition, both the tax basis in the certificates and the amount
realized on a sale of a certificate would include the holder's share of the
notes and other liabilities of the trust. A holder acquiring certificates at
different prices may be required to maintain a single aggregate adjusted tax
basis in the certificates, and, upon sale or other disposition of some of the
certificates, allocate a portion of the aggregate tax basis to the certificates
sold, rather than maintaining a separate tax basis in each certificate for
purposes of computing gain or loss on a sale of that certificate.
Any gain on the sale of a certificate attributable to the holder's share
of unrecognized accrued market discount on the contracts would generally be
treated as ordinary income to the holder and would give rise to special tax
reporting requirements. The trust does not expect to have any other assets that
would give rise to special tax reporting requirements. Thus, to avoid those
special reporting requirements, the trust will elect to include market discount
in income as it accrues.
If a certificateholder is required to recognize an aggregate amount of
income, not including income attributable to disallowed itemized deductions
described above, over the life of the certificates
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that exceeds the aggregate cash distributions with respect thereto, the excess
will generally give rise to a capital loss upon the retirement of the
certificates.
ALLOCATIONS BETWEEN TRANSFERORS AND TRANSFEREES. In general, the trust's
taxable income and losses will be determined monthly and the tax items for a
particular calendar month will be apportioned among the certificateholders in
proportion to the principal amount of certificates owned by them as of the close
of the last day of the month. As a result, a holder purchasing certificates may
be allocated tax items, which will affect its tax liability and tax basis,
attributable to periods before the actual transaction.
The use of this type of monthly convention may not be permitted by
existing regulations. If a monthly convention is not allowed, or only applies to
transfers of less than all of the partner's interest, taxable income or losses
of the trust might be reallocated among the certificateholders. The seller is
authorized to revise the trust's method of allocation between transferors and
transferees to conform to a method permitted by future regulations.
Section 754 Election. In the event that a certificateholder sells its
certificates at a profit or loss, the purchasing certificateholder will have a
higher or lower basis, respectively, in the certificates than the selling
certificateholder had. The tax basis of the trust's assets will not be adjusted
to reflect that higher or lower basis unless the trust were to file an election
under Section 754 of the tax code. In order to avoid the administrative
complexities that would be involved in keeping accurate accounting records, as
well as potentially onerous information reporting requirements, the trust will
not make an election under Section 754. As a result, certificateholders might be
allocated a greater or lesser amount of trust income than would be appropriate
based on their own purchase price for certificates.
Administrative Matters. The trustee is required to keep or have kept
complete and accurate books of the trust. The books will be maintained for
financial reporting and tax purposes on an accrual basis and the fiscal year of
the trust will be set forth in the related prospectus supplement. The trustee
will file a partnership information return on IRS Form 1065 with the IRS for
each taxable year of the trust and will report each certificateholder's
allocable share of items of trust income and expense to holders and the IRS on
Schedule K-1. The trust will provide the Schedule K-1 information to nominees
that fail to provide the trust with the information statement described below
and the nominees will be required to forward such information to the beneficial
owners of the certificates. Generally, holders must file tax returns that are
consistent with the information return filed by the trust or be subject to
penalties unless the holder notifies the IRS of all inconsistencies.
Under Section 6031 of the tax code, any person that holds certificates
as a nominee at any time during a calendar year is required to furnish the trust
with a statement containing information on the nominee, the beneficial owners
and the certificates so held. This information includes
- the name, address and taxpayer identification number of the
nominee; and
- as to each beneficial owner:
- the beneficial owner's name, address and identification
number;
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- whether the beneficial owner is a United States person,
a tax-exempt entity or a foreign government, an
international organization, or any wholly owned agency
or instrumentality of either of the foregoing; and
- information on certificates that were held, bought or
sold on behalf of the beneficial owner throughout the
year.
In addition, brokers and financial institutions that hold certificates through a
nominee are required to furnish directly to the trust information as to
themselves and their ownership of certificates. A clearing agency registered
under Section 17A of the Securities Exchange Act of 1934, as amended, is not
required to furnish an information statement to the trust. The information
referred to above for any calendar year must be furnished to the trust on or
before the following January 31. Nominees, brokers and financial institutions
that fail to provide the trust with the information described above may be
subject to penalties.
The seller will be designated as the tax matters partner in the related
trust agreement and, as such, will be responsible for representing the
certificateholders in any dispute with the IRS. The tax code provides for
administrative examination of a partnership as if the partnership were a
separate and distinct taxpayer. Generally, the statute of limitations for
partnership items does not expire before three years after the date on which the
partnership information return is filed. Any adverse determination following an
audit of the return of the trust by the appropriate taxing authorities could
result in an adjustment of the returns of the certificateholders, and, under
some circumstances, a certificateholder may be precluded from separately
litigating a proposed adjustment to the items of the trust. An adjustment could
also result in an audit of a certificateholder's returns and adjustments of
items not related to the income and losses of the trust.
TAX CONSEQUENCES TO FOREIGN CERTIFICATEHOLDERS. It is not clear whether
the trust would be considered to be engaged in a trade or business in the United
States for purposes of federal withholding taxes with respect to non-U.S.
persons because there is no clear authority dealing with that issue under facts
substantially similar to those described in this prospectus. Although it is not
expected that the trust would be engaged in a trade or business in the United
States for these purposes, the trust will withhold as if it were so engaged in
order to protect the trust from possible adverse consequences of a failure to
withhold. The trust expects to withhold on the portion of its taxable income
that is allocable to foreign certificateholders under Section 1446 of the tax
code, as if the income were effectively connected to a U.S. trade or business,
at a rate of 35% for foreign holders that are taxable as corporations and 39.6%
for all other foreign holders. The new withholding regulations or subsequent
adoption of Treasury regulations or the issuance of other administrative
pronouncements may require the trust to change its withholding procedures. In
determining a holder's withholding status, the trust may rely on IRS Form W-8,
IRS Form W-9 or the holder's certification of nonforeign status signed under
penalties of perjury.
Each foreign holder might be required to file a U.S. individual or
corporate income tax return, including, in the case of a corporation, the branch
profits tax, on its share of the trust's income. Each foreign holder must obtain
a taxpayer identification number from the IRS and submit that number to the
trust on Form W-8 in order to assure appropriate crediting of the taxes
withheld. A foreign holder generally would be entitled to file with the IRS a
claim for refund with respect to taxes withheld by the trust, taking the
position that no taxes were due because the trust was not engaged in a U.S.
trade or
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business. However, interest payments made, or accrued, to a certificateholder
who is a foreign person generally will be considered guaranteed payments to the
extent the payments are determined without regard to the income of the trust. If
these interest payments are properly characterized as guaranteed payments, then
the interest will not be considered "portfolio interest." As a result,
certificateholders will be subject to United States federal income tax and
withholding tax at a rate of 30 percent, unless reduced or eliminated under an
applicable treaty. In this case, a foreign holder would only be entitled to
claim a refund for that portion of the taxes in excess of the taxes that should
be withheld with respect to the guaranteed payments.
BACKUP WITHHOLDING. Distributions made on the certificates and proceeds
from the sale of the certificates will be subject to a "backup" withholding tax
of 31% if, in general, the certificateholder fails to comply with applicable
identification procedures, unless the holder is an exempt recipient under
applicable provisions of the tax code.
TRUSTS TREATED AS GRANTOR TRUSTS
TAX CHARACTERIZATION OF THE TRUST AS A GRANTOR TRUST
The following general discussion of the anticipated federal income tax
consequences of the purchase, ownership and disposition of the certificates of a
trust for which a partnership election will not be made, to the extent it
relates to matters of law or legal conclusions with respect thereto, represents
the opinion of tax counsel to each trust with respect to the related series on
the material matters associated with these consequences, subject to the
qualifications set forth in this section of this prospectus. In addition, tax
counsel has prepared or reviewed the statements in the prospectus under the
heading "Certain Federal Income Tax Consequences -- Trusts Treated as Grantor
Trusts", and is of the opinion that the statements are correct in all material
respects. The statements are intended as an explanatory discussion of the
possible effects of the classification of any trust as a grantor trust for
federal income tax purposes on investors generally and of related tax matters
affecting investors generally, but do not purport to furnish information in the
level of detail or with the attention to an investor's specific tax
circumstances that would be provided by an investor's own tax advisor.
Accordingly, each investor is advised to consult its own tax advisors with
regard to the tax consequences to it of investing in certificates.
If a partnership election is not made, tax counsel will deliver its
opinion that the trust will not be classified as an association taxable as a
corporation and that the trust will be classified as a grantor trust under
subpart E, Part I of subchapter J of Chapter 1 of Subtitle A of the tax code. In
this case, owners of certificates issued by a trust that is treated as a grantor
trust -- grantor trust certificates -- will be treated for federal income tax
purposes as owners of a portion of the trust's assets as described below.
CHARACTERIZATION. Each grantor trust certificateholder will be treated
as the owner of a pro rata undivided interest in the interest and principal
portions of the trust represented by the grantor trust certificates and will be
considered the equitable owner of a pro rata undivided interest in each of the
contracts in the trust. Any amounts received by a grantor trust
certificateholder in lieu of amounts due with respect to any contract because of
a default or delinquency in payment will be treated for federal income tax
purposes as having the same character as the payments they replace.
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Each grantor trust certificateholder will be required to report on its
federal income tax return in accordance with the grantor trust
certificateholder's method of accounting its pro rata share of the entire income
from the contracts in the trust represented by grantor trust certificates,
including interest, OID, if any, prepayment fees, assumption fees, any gain
recognized upon an assumption and late payment charges received by the servicer.
Under Sections 162 or 212, each grantor trust certificateholder will be entitled
to deduct its pro rata share of servicing fees, prepayment fees, assumption
fees, any loss recognized upon an assumption and late payment charges retained
by the servicer, provided that the amounts are reasonable compensation for
services rendered to the trust. Grantor trust certificateholders that are
individuals, estates or trusts will be entitled to deduct their share of
expenses only to the extent these expenses plus all other Section 212 expenses
exceed two percent of its adjusted gross income. A grantor trust
certificateholder using the cash method of accounting must take into account its
pro rata share of income and deductions as and when collected by or paid to the
servicer. A grantor trust certificateholder using an accrual method of
accounting must take into account its pro rata share of income and deductions as
they become due or are paid to the servicer, whichever is earlier. If the
servicing fees paid to the servicer are deemed to exceed reasonable servicing
compensation, the amount of this excess could be considered as an ownership
interest retained by the servicer, or any person to whom the servicer assigned
for value all or a portion of the servicing fees, in a portion of the interest
payments on the contracts. The contracts would then be subject to the "coupon
stripping" rules of the tax code discussed below.
PREMIUM. The price paid for a grantor trust certificate by a holder will
be allocated to the holder's undivided interest in each contract based on each
contract's relative fair market value, so that the holder's undivided interest
in each contract will have its own tax basis. A grantor trust certificateholder
that acquires an interest in contracts at a premium may elect to amortize the
premium under a constant interest method. Amortizable bond premium will be
treated as an offset to interest income on the grantor trust certificate. The
basis for the grantor trust certificate will be reduced to the extent that
amortizable premium is applied to offset interest payments. It is not clear
whether a reasonable prepayment assumption should be used in computing
amortization of premium allowable under Section 171. A grantor trust
certificateholder that makes this election for a grantor trust certificate that
is acquired at a premium will be deemed to have made an election to amortize
bond premium with respect to all debt instruments having amortizable bond
premium that the grantor trust certificateholder acquires during the year of the
election or thereafter.
If a premium is not subject to amortization using a reasonable
prepayment assumption, the holder of a grantor trust certificate acquired at a
premium should recognize a loss if a contract prepays in full, equal to the
difference between the portion of the prepaid principal amount of the contract
that is allocable to the grantor trust certificate and the portion of the
adjusted basis of the grantor trust certificate that is allocable to the
contract. If a reasonable prepayment assumption is used to amortize the premium,
it appears that such a loss would be available, if at all, only if prepayments
have occurred at a rate faster than the reasonable assumed prepayment rate. It
is not clear whether any other adjustments would be required to reflect
differences between an assumed prepayment rate and the actual rate of
prepayments.
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STRIPPED BONDS AND STRIPPED COUPONS
Although the tax treatment of stripped bonds is not entirely clear,
based on guidance issued by the IRS, each purchaser of a grantor trust
certificate will be treated as the purchaser of a stripped bond which generally
should be treated as a single debt instrument issued on the day it is purchased
for purposes of calculating any OID. Generally, under applicable Treasury
regulations promulgated under Section 1286 of the tax code, if the discount on a
stripped bond is larger than a de minimis amount, as calculated for purposes of
the OID rules of the tax code, the stripped bond will be considered to have been
issued with OID. See "-- Original Issue Discount" below. Based on the preamble
to the Section 1286 Treasury regulations, tax counsel is of the opinion that,
although the matter is not entirely clear, the interest income on the
certificates at the sum of the interest rate of the certificates and the portion
of the servicing fee rate that does not constitute excess servicing will be
treated as "qualified stated interest" within the meaning of the Section 1286
Treasury regulations and this income will be so treated in the trustee's tax
information reporting.
ORIGINAL ISSUE DISCOUNT. The IRS has stated in published rulings that,
in circumstances similar to those described in this prospectus, the special
rules of the tax code relating to OID -- currently Sections 1271 through 1273
and 1275 -- will be applicable to a grantor trust certificateholder's interest
in those contracts meeting the conditions necessary for these sections to apply.
Generally, a grantor trust certificateholder that acquires an undivided interest
in a contract issued or acquired with OID must include in gross income the sum
of the "daily portions," as defined below, of the OID on the contract for each
day on which it owns a certificate, including the date of purchase but excluding
the date of disposition. In the case of an original grantor trust
certificateholder, the daily portions of OID with respect to a contract
generally would be determined as follows. A calculation will be made of the
portion of OID that accrues on the contract during each successive monthly
accrual period, or shorter period in respect of the date of original issue or
the final distribution date. This will be done, in the case of each full monthly
accrual period, by adding:
- the present value of all remaining payments to be received on
the contract under the prepayment assumption used in respect of
the contracts; and
- any payments received during the accrual period, and subtracting
from that total the "adjusted issue price" of the contract at
the beginning of the accrual period.
No representation is made that the contracts will prepay at any prepayment
assumption. The "adjusted issue price" of a contract at the beginning of the
first accrual period is its issue price, as determined for purposes of the OID
rules of the tax code, and the "adjusted issue price" of a contract at the
beginning of a subsequent accrual period is the "adjusted issue price" at the
beginning of the immediately preceding accrual period plus the amount of OID
allocable to that accrual period and reduced by the amount of any payment, other
than "qualified stated interest," made at the end of or during that accrual
period. The OID accruing during that accrual period will then be divided by the
number of days in the period to determine the daily portion of OID for each day
in the period. With respect to an initial accrual period shorter than a full
monthly accrual period, the daily portions of OID must be determined according
to a reasonable method, provided that the method is consistent with the method
used to determine the yield to maturity of the contracts.
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With respect to the contracts, the method of calculating OID as
described above will cause the accrual of OID to either increase or decrease,
but never below zero, in any given accrual period to reflect the fact that
prepayments are occurring at a faster or slower rate than the prepayment
assumption used in respect of the contracts. Subsequent purchasers that purchase
contracts at more than a de minimis discount should consult their tax advisors
with respect to the proper method to accrue this OID.
The Taxpayer Relief Act of 1997 requires the use of a prepayment
assumption to accrue OID with respect to "any pool of debt instruments the yield
on which may be affected by reason of prepayments (or to the extent provided in
regulation, by reason of other events)." Unless otherwise provided in the
related prospectus supplement, the trustee will deem the prepayment assumption
to be that the contracts will not prepay. If the IRS were to require that OID be
computed using a different prepayment assumption, the character and timing of a
certificateholder's income could be adversely affected.
MARKET DISCOUNT. A grantor trust certificateholder that acquires an
undivided interest in contracts may be subject to the market discount rules of
Sections 1276 through 1278 to the extent an undivided interest in a contract is
considered to have been purchased at a "market discount." Generally, the amount
of market discount is equal to the excess of the portion of the principal amount
of the contract allocable to the holder's undivided interest over the holder's
tax basis in such interest. Market discount with respect to a grantor trust
certificate will be considered to be zero if the amount allocable to the grantor
trust certificate is less than 0.25% of the grantor trust certificate's stated
redemption price at maturity multiplied by the weighted average maturity
remaining after the date of purchase. Treasury regulations implementing the
market discount rules have not yet been issued; therefore, investors should
consult their own tax advisors regarding the application of these rules and the
advisability of making any of the elections allowed under Sections 1276 through
1278 of the tax code.
The tax code provides that any principal payment, whether a scheduled
payment or a prepayment, or any gain on disposition of a market discount bond
shall be treated as ordinary income to the extent that it does not exceed the
accrued market discount at the time of this payment. The amount of accrued
market discount for purposes of determining the tax treatment of subsequent
principal payments or dispositions of the market discount bond is to be reduced
by the amount so treated as ordinary income.
The tax code also grants the Treasury Department authority to issue
regulations providing for the computation of accrued market discount on debt
instruments, the principal of which is payable in more than one installment.
While the Treasury Department has not yet issued regulations, rules described in
the relevant legislative history will apply. Under those rules, the holder of a
market discount bond may elect to accrue market discount either on the basis of
a constant interest rate or according to one of the following methods. If a
grantor trust certificate is issued with OID, the amount of market discount that
accrues during any accrual period would be equal to the product of:
- the total remaining market discount; and
- a fraction, the numerator of which is the OID accruing during
the period and the denominator of which is the total remaining
OID at the beginning of the accrual period.
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For grantor trust certificates issued without OID, the amount of market discount
that accrues during a period is equal to the product of:
- the total remaining market discount; and
- a fraction, the numerator of which is the amount of stated
interest paid during the accrual period and the denominator of
which is the total amount of stated interest remaining to be
paid at the beginning of the accrual period.
For purposes of calculating market discount under any of the above methods in
the case of instruments, such as the grantor trust certificates, that provide
for payments that may be accelerated by reason of prepayments of other
obligations securing these instruments, the same prepayment assumption
applicable to calculating the accrual of OID will apply. Because the regulations
described above have not been issued, it is impossible to predict what effect
those regulations might have on the tax treatment of a grantor trust certificate
purchased at a discount or premium in the secondary market.
A holder who acquired a grantor trust certificate at a market discount
also may be required to defer a portion of its interest deductions for the
taxable year attributable to any indebtedness incurred or continued to purchase
or carry the grantor trust certificate purchased with market discount. For these
purposes, the de minimis rule referred above applies. Any deferred interest
expense would not exceed the market discount that accrues during the taxable
year and is, in general, allowed as a deduction not later than the year in which
the market discount is includible in income. If the holder elects to include
market discount in income currently as it accrues on all market discount
instruments acquired by the holder in that taxable year or thereafter, the
interest deferral rule described above will not apply.
PREMIUM. To the extent a grantor trust certificateholder is considered
to have purchased an undivided interest in a contract for an amount that is
greater than its stated redemption price at maturity of the contract, the
grantor trust certificateholder will be considered to have purchased the
contract with "amortizable bond premium" equal in amount to the excess. A
grantor trust certificateholder who does not hold the certificate for sale to
customers or in inventory may elect under Section 171 of the tax code to
amortize the premium. Under the tax code, premium is allocated among the
interest payments on the contracts to which it relates and is considered as an
offset against, and thus a reduction of, the interest payments. With certain
exceptions, such an election would apply to all debt instruments held or
subsequently acquired by the electing holder. Absent this type of election, the
premium will be deductible as an ordinary loss only upon disposition of the
certificate or pro rata as principal is paid on the contracts.
ELECTION TO TREAT ALL INTEREST AS OID. The OID regulations permit a
grantor trust certificateholder to elect to accrue all interest, discount,
including de minimis market or OID, and premium in income as interest, based on
a constant yield method. If this election were to be made with respect to a
grantor trust certificate with market discount, the certificateholder would be
deemed to have made an election to include in income currently market discount
with respect to all other debt instruments having market discount that the
grantor trust certificateholder acquires during the year of the election or
thereafter. Similarly, a grantor trust certificateholder that makes this
election for a grantor trust certificate that is acquired at a premium will be
deemed to have made an election to amortize bond premium with respect to all
debt instruments having amortizable bond premium that the grantor trust
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certificateholder owns or acquires. See "-- Premium" above. The election to
accrue interest, discount and premium on a constant yield method with respect to
a grantor trust certificate is irrevocable.
SALE OR EXCHANGE OF A GRANTOR TRUST CERTIFICATE. Sale or exchange of a
grantor trust certificate prior to its maturity will result in gain or loss
equal to the difference, if any, between the amount received and the owner's
adjusted basis in the grantor trust certificate. The adjusted basis generally
will equal the seller's purchase price for the grantor trust certificate,
increased by the OID included in the seller's gross income with respect to the
grantor trust certificate, and reduced by principal payments on the grantor
trust certificate previously received by the seller. The gain or loss will be
capital gain or loss to an owner for which a grantor trust certificate is a
"capital asset" within the meaning of Section 1221, and will be long-term or
short-term depending on whether the grantor trust certificate has been owned for
the long-term capital gain holding period, currently more than one year.
Grantor trust certificates will be "evidences of indebtedness" within
the meaning of Section 582(c)(1), so that gain or loss recognized from the sale
of a grantor trust certificate by a bank or a thrift institution to which this
section applies will be treated as ordinary income or loss.
NON-U.S. PERSONS. Generally, interest or OID paid by the person required
to withhold tax under Section 1441 or 1442 to (i) an owner that is not a "U.S.
person," as defined below, or (ii) a grantor trust certificateholder holding on
behalf of an owner that is not a U.S. person and accrued OID recognized by the
owner on the sale or exchange of such a grantor trust certificate will not be
subject to withholding to the extent that a grantor trust certificate evidences
ownership in contracts issued after July 18, 1984 by natural persons if the
grantor trust certificateholder complies with applicable identification
requirements, including delivery of a statement, signed by the grantor trust
certificateholder under penalties of perjury, certifying that the grantor trust
certificateholder is not a U.S. person and providing the name and address of the
grantor trust certificateholder. Additional restrictions apply to contracts
where the obligor is not a natural person in order to qualify for the exemption
from withholding.
As used in this prospectus, a "U.S. person" means:
- a citizen or resident of the United States;
- a corporation, partnership, or other entity created or organized
in or under the laws of the United States or any political
subdivision thereof, except, in the case of a partnership, as
otherwise provided by regulations;
- an estate, the income of which is includible in gross income for
United States federal income tax purposes regardless of its
source; or
- a trust whose administration is subject to the primary
supervision of a United States court and which has one or more
United States persons who have authority to control all
substantial decisions of the trust.
INFORMATION REPORTING AND BACKUP WITHHOLDING. The servicer will furnish
or make available, within a reasonable time after the end of each calendar year,
to each person who was a grantor trust certificateholder at any time during the
year, such information as may be deemed necessary or desirable
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to assist grantor trust certificateholders in preparing their federal income tax
returns, or to enable holders to make the information available to beneficial
owners or financial intermediaries that hold grantor trust certificates as
nominees on behalf of beneficial owners. If a holder, beneficial owner,
financial intermediary or other recipient of a payment on behalf of a beneficial
owner fails to supply a certified taxpayer identification number or if the
Secretary of the Treasury determines that the person has not reported all
interest and dividend income required to be shown on its federal income tax
return, 31% backup withholding may be required with respect to any payments. Any
amounts deducted and withheld from a distribution to a recipient would be
allowed as a credit against the recipient's federal income tax liability.
THE FEDERAL TAX DISCUSSIONS SET FORTH ABOVE ARE INCLUDED FOR GENERAL
INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A NOTEHOLDER'S OR
CERTIFICATEHOLDER'S PARTICULAR TAX SITUATION. PROSPECTIVE PURCHASERS SHOULD
CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE TAX CONSEQUENCES TO THEM OF THE
PURCHASE, OWNERSHIP AND DISPOSITION OF NOTES AND CERTIFICATES, INCLUDING THE TAX
CONSEQUENCES UNDER STATE, LOCAL, FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE
EFFECTS OF CHANGES IN FEDERAL OR OTHER TAX LAWS.
ERISA CONSIDERATIONS
ERISA and the tax code prohibit a pension, profit-sharing or other
employee benefit plan, as well as individual retirement accounts and some types
of Keogh Plans -- each a "benefit plan" -- from engaging in certain transactions
involving "plan assets" with persons that are "parties in interest" under ERISA
or "disqualified persons" under the tax code with respect to the benefit plan.
ERISA also imposes duties on persons who are fiduciaries of benefit plans
subject to ERISA and prohibits certain transactions between a benefit plan and
parties in interest with respect to the benefit plans. Under ERISA, any person
who exercises any authority or control with respect to the management or
disposition of the assets of a benefit plan is considered to be a fiduciary of
the benefit plan, subject to certain exceptions not here relevant. A violation
of these "prohibited transaction" rules may result in an excise tax or other
penalties and liabilities under ERISA and the tax code for such persons.
Certain transactions involving a trust might be deemed to constitute
prohibited transactions under ERISA and the tax code with respect to a benefit
plan that purchased notes or certificates if assets of the trust were deemed to
be assets of the benefit plan. Under a regulation issued by the United States
Department of Labor, the assets of a trust would be treated as plan assets of a
benefit plan for the purposes of ERISA and the tax code if the benefit plan
acquired an "equity interest" in the trust and none of the exceptions contained
in the regulation was applicable. An equity interest is defined under the
regulation as an interest other than an instrument which is treated as
indebtedness under applicable local law and which has no substantial equity
features. The likely treatment in this context of notes and certificates of a
given series will be discussed in the related prospectus supplement.
Employee benefit plans that are governmental plans, as defined in
Section 3(32) of ERISA, and certain church plans, as defined in Section 3(33) of
ERISA, are not subject to ERISA requirements. Due to the complexities of the
"prohibited transaction" rules and the penalties imposed upon persons
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involved in prohibited transactions, it is important that the fiduciary of any
benefit plan considering the purchase of securities consult with its tax and/or
legal advisors regarding whether the assets of the related trust would be
considered plan assets, the possibility of exemptive relief from the prohibited
transaction rules and other issues and their potential consequences.
PLAN OF DISTRIBUTION
Unless otherwise specified in the related prospectus supplement, on the
terms and conditions set forth in one or more underwriting agreements with
respect to the securities of a series, the seller will agree to cause the
related trust to sell to the underwriter or underwriters named in the
underwriting agreement and in the related prospectus supplement, and each of the
underwriters will severally agree to purchase, the principal amount of each
class of securities, as the case may be, of the related series set forth in the
underwriting agreement and in the related prospectus supplement.
The related prospectus supplement may provide that the underwriters are
not obligated to purchase all of the securities, but if it does not, then the
applicable underwriter or underwriters will agree in the underwriting agreement
with respect to any given series of securities, subject to the terms and
conditions set forth in the underwriting agreement, to purchase all the
securities described in the agreement which are offered by this prospectus and
the related prospectus supplement if any of the securities are purchased.
Each prospectus supplement will either (i) set forth the price at which
each class of securities being offered thereby will be offered to the public and
any concessions that may be offered to certain dealers participating in the
offering of the securities or (ii) specify that the related securities are to be
resold by the underwriter(s) in negotiated transactions at varying prices to be
determined at the time of the sale. After the initial public offering of any
securities, the public offering prices and concessions may be changed.
The related prospectus supplement may specify other indemnification
provisions, but if it does not, each underwriting agreement will provide that
Onyx will indemnify the underwriters against certain civil liabilities,
including liabilities under the Securities Act of 1933, as amended, or
contribute to payments the several underwriters may be required to make in
respect thereof.
The related prospectus supplement may specify otherwise, but if it does
not, then, under each underwriting agreement with respect to a given series of
securities, the closing of the sale of any class of securities subject to the
underwriting agreement will be conditioned on the closing of the sale of all
other classes of securities of that series.
The place and time of delivery for the securities in respect of which
this prospectus is delivered will be set forth in the related prospectus
supplement.
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LEGAL OPINIONS
Certain legal matters relating to the securities of any series will be
passed upon for the related trust, the seller and the servicer by Andrews &
Kurth L.L.P. In addition, certain United States federal tax and other matters
will be passed upon for the related trust by Andrews & Kurth L.L.P.
AVAILABLE INFORMATION
The seller, as originator of each trust, has filed with the SEC a
registration statement under the Securities Act of 1933, as amended, with
respect to the notes and the certificates offered by this prospectus. This
prospectus, which forms a part of the registration statement, does not contain
all of the information included in the registration statement and the exhibits
thereto. You may inspect and copy the registration statement and other
information filed by the seller at the public reference facilities maintained by
the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the SEC's
regional offices located at 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661 and Seven World Trade Center, Suite 1300, New York, New York
10048. You may also obtain copies of the registration statement at prescribed
rates from the Public Reference Section of the SEC at 450 Fifth Street, N.W.,
Washington, D.C. 20549. The SEC also maintains a web site that contains reports,
proxy and information statements and other information regarding registrants
that file electronically with the SEC, including the Servicer and each trust.
The address of the SEC's web site is http://www.sec.gov.
The servicer, on behalf of each trust, will also file or cause to be
filed with the SEC any periodic reports required under the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the SEC thereunder.
The reports can be obtained as described above. The reports will include Current
Reports on Form 8-K filed after each Distribution Date, and an Annual Report on
Form 10-K. The reports will contain certain financial information regarding the
related trust, including the statement which will be furnished monthly to
securityholders. The servicer will not file or cause to be filed reports on Form
8-K and Form 10-K with respect to a trust and the securities issued by the trust
for any period which ends after December 31 of the year in which the securities
are issued; however, the related securityholders will continue to receive the
monthly statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
All documents filed by the seller, as originator of any trust, under
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended, subsequent to the date of this prospectus and prior to the termination
of the offering of the securities, shall be deemed to be incorporated by
reference in this prospectus. Any statement contained in this prospectus or in a
document incorporated or deemed to be incorporated by reference in this
prospectus shall be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained in this prospectus or in any
subsequently filed document which also is or is deemed to be incorporated by
reference in this prospectus modifies or supersedes the statement. Any statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this prospectus.
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The seller will provide without charge to each person, including any
beneficial owner of securities, to whom a copy of this prospectus is delivered,
on the written or oral request of any such person, a copy of any or all of the
documents incorporated in this prospectus or in any related prospectus
supplement by reference, not including exhibits to the documents, unless the
exhibits are specifically incorporated by reference in the documents. Requests
for copies should be directed to the seller at 27051 Towne Centre Drive, Suite
200, Foothill Ranch, California 92610 (Telephone: (949) 465-3500).
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WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH ADDITIONAL OR DIFFERENT
INFORMATION FROM THAT CONTAINED IN THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS.
NEITHER THIS PROSPECTUS SUPPLEMENT NOR THE PROSPECTUS IS AN OFFER TO SELL OR A
SOLICITATION TO BUY THESE NOTES IN ANY CIRCUMSTANCES UNDER WHICH THE OFFER OR
SOLICITATION IS UNLAWFUL.
UNTIL 90 DAYS AFTER THE DATE OF THIS PROSPECTUS SUPPLEMENT ALL DEALERS EFFECTING
TRANSACTIONS IN THE NOTES, WHETHER OR NOT PARTICIPATING IN THIS DISTRIBUTION,
MAY BE REQUIRED TO DELIVER A PROSPECTUS SUPPLEMENT AND PROSPECTUS. THIS DELIVERY
REQUIREMENT IS IN ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS
SUPPLEMENT AND PROSPECTUS WHEN ACTING AS AN UNDERWRITER AND WITH RESPECT TO
THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
$440,000,000
ONYX ACCEPTANCE OWNER TRUST 2000-C
Issuer
$74,000,000 6.79% AUTO LOAN BACKED NOTES, CLASS A-1
$115,000,000 7.05% AUTO LOAN BACKED NOTES, CLASS A-2
$132,000,000 7.16% AUTO LOAN BACKED NOTES, CLASS A-3
$119,000,000 7.26% AUTO LOAN BACKED NOTES, CLASS A-4
[ONYX LOGO]
ONYX ACCEPTANCE FINANCIAL CORPORATION,
Seller
ONYX ACCEPTANCE CORPORATION,
Servicer
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PROSPECTUS SUPPLEMENT
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SALOMON SMITH BARNEY
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON
MERRILL LYNCH & CO.
JULY 20, 2000
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