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EXHIBIT 4.5
FORM OF ADMINISTRATION AGREEMENT
among
ONYX ACCEPTANCE OWNER TRUST 199_-_,
as Issuer
ONYX ACCEPTANCE CORPORATION
as Administrator
and
------------,
as Indenture Trustee
Dated as of ____________, 199__
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ADMINISTRATION AGREEMENT dated as of _______, 199_, among ONYX
ACCEPTANCE OWNER TRUST, a Delaware business trust (the "Issuer"), ONYX
ACCEPTANCE CORPORATION, a Delaware corporation, as administrator (the
"Administrator"), and _________, a [Delaware banking corporation], not in its
individual capacity but solely as Indenture Trustee (the "Indenture Trustee").
W I T N E S S E T H:
WHEREAS beneficial ownership interests in the Issuer represented by
certificates (the "Certificates") have been issued in connection with the
formation of the Issuer pursuant to the Trust Agreement dated as of _________,
199_ (the "Trust Agreement"), between Onyx Acceptance Financial Corporation
("▇▇▇▇▇"), a Delaware corporation, as depositor, and _________, as owner trustee
(the "Owner Trustee"), to the owners thereof (the "Owners");
WHEREAS the Issuer is issuing the Onyx Acceptance Owner Trust 199_-_
Class A-1 ____% Auto Loan Backed Notes, Class A-2 ___% Auto Loan Backed Notes
and Class A-3 ___% Auto Loan Backed Notes (collectively, the "Notes") pursuant
to the Indenture dated as of _______, 199_ (as amended and supplemented from
time to time, the "Indenture"), between the Issuer and the Indenture Trustee
(capitalized terms used herein and not defined herein shall have the meanings
assigned such terms in the Indenture, the Trust Agreement or the Sale and
Servicing Agreement dated as of _____, 199_, among the Issuer, Onyx, as
servicer, and ▇▇▇▇▇, as seller, as the case may be);
WHEREAS the Issuer has entered into certain agreements in connection
with the issuance of the Certificates and the Notes, including the Basic
Documents;
WHEREAS, pursuant to the Basic Documents, the Issuer and the Indenture
Trustee are required to perform certain duties in connection with the
Certificates, the Notes and the Collateral;
WHEREAS the Issuer and the Indenture Trustee desire to appoint Onyx as
administrator to perform certain of the duties of the Issuer and the Owner
Trustee under the Basic Documents and to provide such additional services
consistent with the terms of this Agreement and the Basic Documents as the
issuer and the Owner Trustee may from time to time request; and
WHEREAS the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
1. Duties of the Administrator.
(a) DUTIES WITH RESPECT TO THE DEPOSITORY AGREEMENTS AND THE INDENTURE.
(i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer under the Depository
Agreements. In addition, the Administrator shall consult with the Owner
Trustee regarding the duties of the Issuer under the Indenture and the
Depository Agreements. The Administrator shall monitor the performance
of the Issuer and shall advise the Owner Trustee when action by the
Issuer or the Owner Trustee is necessary to comply with the Issuer's
duties under
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the Indenture and the Depository Agreements. The Administrator shall
prepare for execution by the Issuer or shall cause the preparation by
other appropriate persons of all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the
Issuer to prepare, file or deliver pursuant to the Indenture and the
Depository Agreements. In furtherance of the foregoing, the
Administrator shall take all appropriate action that is the duty of the
Issuer to take pursuant to the Indenture including, without limitation,
such of the foregoing as are required with respect to the following
matters under the Indenture (references are to sections of the
Indenture):
(A) causing the Note Register to be kept and giving the Indenture
Trustee notice of any appointment of a new Note Registrar and the
location, or change in location, of the Note Register (Section 2.4);
(B) preparing the notification to Noteholders of the final
principal payment on their Notes (Section 2.7(b));
(C) fixing or causing to be fixed any specified record date and
the notification of the Indenture Trustee and Noteholders with respect
to special payment dates, if any (Section 2.7(c));
(D) preparing or obtaining the documents and instruments required
for the proper authentication of Notes and delivering the same to the
Indenture Trustee (section 2.2);
(E) preparing, obtaining and/or filing of all instruments,
opinions and certificates and other documents required for the release
of collateral (Section 2.9) ;
(F) maintaining an office in the [Borough of Manhattan], City of
New York, for the registration of transfer or exchange of Notes (Section
3.2);
(G) causing newly appointed Paying Agents, if any, to deliver to
the Indenture Trustee the instrument specified in the Indenture
regarding funds held in trust (Section 3.3);
(H) directing the Indenture Trustee to deposit moneys with Paying
Agents, if any, other than the Indenture Trustee (Section 3.3);
(I) obtaining and preserving the Issuer's qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of the Indenture,
the Notes, the Collateral and each other instrument and agreement
included in the Trust Estate (Section 3.4);
(J) preparing all supplements, amendments, financing statements,
continuation statements, instruments of further assurance and other
instruments, in accordance with Section 3.05 of the Indenture, necessary
to protect the Trust Estate (Section 3.5);
(K) delivering the required Opinions of Counsel on the Closing
Date and annually, in accordance with Section 3.6 of the Indenture, and
delivering the annual Officers' Certificates and certain other
statements as to compliance with the Indenture, in accordance with
Section 3.9 of the Indenture (Sections 3.6 and 3.9);
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(L) identifying to the Indenture Trustee in an Officers'
Certificate and Person with whom the Issuer has contracted to perform
its duties under the Indenture (Section 3.7(b));
(M) notifying the Indenture Trustee and the Rating Agencies of
any Servicer Default pursuant to the Sale and Servicing Agreement and,
if such Servicer Default arises from the failure of the Servicer to
perform any of its duties under the Sale and Servicing Agreement, taking
all reasonable steps available to remedy such failure (Section 3.7(d));
(N) preparing and obtaining documents and instruments required
for the release of the Issuer from its obligations under the Indenture
(Section 3.11(b));
(O) delivering notice to the Indenture Trustee of each Event of
Default and each other default by the Servicer or the Seller under the
Sale and Servicing Agreement (Section 3.19);
(P) monitoring the Issuer's obligations as to the satisfaction
and discharge of the Indenture and the preparation of an Officer's
Certificate and obtaining the Opinion of Counsel and the Independent
Certificate relating thereto (Section 4.1);
(Q) [complying with any written directive of the Indenture
Trustee with respect to any sale of any portion of the Trust Estate in
connection with any Event of Default (Section 5.4);]
(R) preparing and delivering of notice to Noteholders of any
removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee (Section 6.8);
(S) preparing all written instruments required to confirm the
authority of any co-trustee or separate trustee and any written
instruments necessary in connection with the resignation or removal of
any co-trustee or separate trustee (Sections 6.8 and 6.10);
(T) furnishing the Indenture Trustee with the names and addresses
of Noteholders during any period when the Indenture Trustee is not the
Note Registrar (Section 7.1);
(U) preparing and, after execution by the Issuer, filing with the
Commission, any applicable state agencies and the Indenture Trustee of
documents required to be filed on a periodic basis with the Commission
and any applicable state agencies (including any summaries thereof
required by rules and regulations prescribed thereby), and transmitting
of such summaries to the Noteholders (Section 7.3);
(V) opening the Trust Accounts, preparing the related Issuer
Orders, Officers' Certificates and Opinions of Counsel and all other
actions necessary with respect to investment and reinvestment of funds
in the Trust Accounts (Sections 8.2 and 8.3);
(W) preparing any Issuer Request and Officers' Certificates and
obtaining any Opinions of Counsel and Independent Certificates necessary
for the release of the Trust Estate (Sections 8.4 and 8.5);
(X) preparing Issuer Orders and obtaining Opinions of Counsel
with respect to the execution of any supplemental indentures, and
mailing notices to the Noteholders with respect thereto (Sections 9.1,
9.2 and 9.3);
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(Y) executing and delivering new Notes conforming to the
provisions of any supplemental indenture, as appropriate (Section 9.6);
(Z) notifying Noteholders of any redemption of the Notes or
causing the Indenture Trustee to provide such notice (Section 10.2);
(AA) preparing all Officers' Certificates, Opinions of Counsel
and Independent Certificates with respect to any requests by the Issuer
of the Indenture Trustee to take any action under the Indenture (Section
11.1(a));
(BB) preparing and delivering Officers' Certificates and
obtaining Independent Certificates, if necessary, for the release of
property from the lien of the Indenture (Section 11.1(b));
(CC) notifying the Rating Agencies, upon any failure of the
Indenture Trustee to give such notification, of the information required
pursuant to Section 11.4 of the Indenture (Section 11.4);
(DD) preparing and delivering to Noteholders and the Indenture
Trustee any agreements with respect to alternate payment and notice
provisions (Section 11.06);
(EE) recording the Indenture, if applicable (Section 11.15); and
(ii) The Administrator also will:
(A) pay the Indenture Trustee from time to time the reasonable
compensation provided for in the Indenture with respect to services
rendered by the Indenture Trustee under the Indenture (which
compensation shall not be limited by any provision of law in regard to
the compensation of a Trustee of an express trust);
(B) reimburse the Indenture Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Indenture Trustee in accordance with any provision of the Indenture
(including the reasonable compensation, expenses and disbursements of
its agents and counsel) to the extent the Indenture Trustee is entitled
to such reimbursement by the Issuer under the Indenture;
(C) indemnify the Indenture Trustee for, and hold it harmless
against, any losses, liability or expense incurred without negligence or
bad faith on the part of the Indenture Trustee, arising out of or in
connection with the acceptance or administration of the trusts and
duties contemplated by the Indenture, including the reasonable costs and
expenses of defending themselves against any claim or liability in
connection therewith to the extent the Indenture Trustee is entitled to
such indemnification from the Issuer under the Indenture; and
(D) indemnify the Owner Trustee for, and hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on the part of the Owner Trustee, arising out of or in
connection with the acceptance or administration of the transactions
contemplated by the Trust Agreement, the Indenture, the Depository
Agreements or this Administration Agreement, including the reasonable
costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of their
powers or duties under the Trust Agreement.
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(b) ADDITIONAL DUTIES.
(i) In addition to the duties of the Administrator set forth
above, the Administrator shall perform such calculations, and shall
prepare for execution by the Issuer or the Owner Trustee or shall cause
the preparation by other appropriate persons of all such documents,
reports, filings, instruments, certificates and opinions as it shall be
the duty of the Issuer or the Owner Trustee to prepare, file or deliver
pursuant to the Basic Documents, and at the request of the Owner Trustee
shall take all appropriate action that it is the duty of the Issuer or
the Owner Trustee to take pursuant to the Basic Documents. Subject to
Section 5 of this Agreement, and in accordance with the directions of
the Owner Trustee, the Administrator shall administer, perform or
supervise the performance of such other activities in connection with
the Collateral (including the Basic Documents) as are not covered by any
of the foregoing provisions and as are expressly requested by the Owner
Trustee and are reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Basic
Documents to the contrary, the Administrator shall be responsible for
promptly notifying the Owner Trustee in the event that any withholding
tax is imposed on the Issuer's payments (or allocations of income) to an
Owner as contemplated in [Section 5.2(c) of the Trust Agreement]. Any
such notice shall specify the amount of any withholding tax required to
be withheld by the Owner Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Basic
Documents to the contrary, the Administrator shall be responsible for
performance of the duties of the Owner Trustee set forth in [Section
5.4(a), (b), (c) and (d) of the Trust Agreement] with respect to, among
other accounting and reports to Owners; provided, however, that the
Owner Trustee shall remain exclusively responsible for the distribution
of the Schedule K-1s necessary to enable each Owner to prepare its
federal and state income tax returns.
(iv) The Administrator shall satisfy its obligations with respect
to clauses (ii) and (iii) above by retaining, at the expense of the
Issuer payable by the Administrator, a firm of independent public
accountants (the "Accountants") acceptable to the Owner Trustee which
shall perform the obligations of the Administrator thereunder. In
connection with paragraph (ii) above, the Accountants will provide prior
to _________, a letter in form and substance satisfactory to the Owner
Trustee as to whether any tax withholding is then required and, if
required, the procedures to be followed with respect thereto to comply
with the requirements of the Code. The Accountants shall be required to
update the letter in each instance that any additional tax withholding
is subsequently required or any previously required tax withholding
shall no longer be required.
(v) The Administrator shall perform the duties of the
Administrator specified in [Section 10.2] of the Trust Agreement
required to be performed in connection with the resignation or removal
of the Owner Trustee, and any other duties expressly required to be
performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions with or otherwise deal with any of its affiliates;
provided, however, that the terms of any such transactions or dealings
shall be in accordance with any directions received from the Issuer and
shall be, in the Administrator's opinion, no less favorable to the
Issuer than would be available from unaffiliated parties.
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(c) NON-MINISTERIAL MATTERS.
(i) With respect to matters that in the reasonable judgment of
the Administrator are non-ministerial, the Administrator shall not take
any action unless within a reasonable time before the taking of such
action the Administrator shall have notified the Owner Trustee of the
proposed action and the Owner Trustee shall not have withheld consent or
provided an alternative direction. For the purpose of the preceding
sentence, "non-ministerial matters" shall include, without limitation:
(A) the amendment of the Indenture or execution of any supplement
to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer and the
compromise of any action, claim or lawsuit brought by or against the
Issuer (other than in connection with the collection of the
Receivables);
(C) the amendment, change or modification of any of the Basic
Documents;
(D) the appointment of successor Note Registrars, successor
Paying Agents or successor Indenture Trustees pursuant to the Indenture
or the appointment of successor Administrators or Successor Servicers,
or the consent to the assignment by the Note Registrar, Paying Agent or
Indenture Trustee of its obligations, under the Indenture; and
(E) the removal of the indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement,
the Administrator shall not be obligated to, and shall not, (x) make any
payments to the Noteholders under the Basic Documents, (y) sell the
Trust Estate pursuant to Section 5.4 of the Indenture or (z) take any
other action that the issuer directs the Administrator not to take on
its behalf.
2. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer and the
Company at any time during normal business hours.
3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to a fee of
$________ per month which shall be solely an obligation of the Servicer.
4. Additional Information to be Furnished to the Issuer. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall, reasonably request.
5. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer or the Owner Trustee with respect to
the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer hereunder or otherwise, the
Administrator shall have no authority to act for or represent the Issuer or the
Owner Trustee, and shall not otherwise be or be deemed an agent of the Issuer or
the Owner Trustee.
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6. No Joint Venture. Nothing contained in this Agreement shall (i)
constitute the Administrator and either of the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) be construed to impose
any liability as such on any of them or (iii) be deemed to confer on any of them
any express, implied or apparent authority to incur any obligation or liability
on behalf of the others.
7. Other Activities of Administrator. Nothing herein shall prevent the
Administrator or its Affiliates from engaging in other businesses or, in its or
their sole discretion, from acting as an administrator for any other person or
entity, or in a similar capacity therefor, even though such person or entity may
engage in business activities similar to those of the Issuer, the Owner Trustee
or the Indenture Trustee.
8. Term of Agreement; Resignation and Removal of Administrator.
(a) This Agreement shall continue in force until the dissolution of the
Issuer, upon which event this Agreement shall automatically terminate.
(b) Subject to Section 8(e), the Administrator may resign its duties
hereunder by providing the Issuer with at least 60 days, prior written notice.
(c) Subject to Section 8(e), the Issuer may remove the Administrator
without cause by providing the Administrator with at least 60 days, prior
written notice.
(d) Subject to Section 8(e), at the sole option of the Issuer, the
Administrator may be removed immediately upon written notice of termination from
the Issuer to the Administrator if any of the following events shall occur:
(i) the Administrator shall fail to perform in any material
respect any of its duties under this Agreement and, after notice of such
default, shall not cure such default within ______ days (or, if such
default cannot be cured in such time, shall not give within such ______
days such assurance of timely and complete cure as shall be reasonably
satisfactory to the Issuer);
(ii) the entry of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the
appointment of a trustee in bankruptcy, conservator, receiver or
liquidator for the Administrator (or, so long as the Administrator is
Onyx, the Seller) in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding up or liquidation of their respective affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of ______ consecutive days; or
(iii) the consent by the Administrator (or, so long as the
Administrator is Onyx, the Seller) to the appointment of a trustee in
bankruptcy, conservator or receiver or liquidator in any bankruptcy,
insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceedings of or relating to the Administrator (or, so long
as the Administrator is Onyx, the Seller) of or relating to
substantially all of their property, or the Administrator (or, so long
as the Administrator is Onyx, the Seller) shall admit in writing its
inability to pay its debts generally as they become due, file a petition
to take advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors, or
voluntarily suspend payment of its obligations. The Administrator agrees
that if any of the events specified in clauses (ii) or (iii) of this
Section shall occur, it shall give written
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notice thereof to the Issuer, the Owner Trustee and the Indenture
Trustee within seven days after the happening of such event.
(e) No resignation or removal of the Administrator pursuant to this
Section shall be effective until (i) a successor Administrator shall have been
appointed by the Issuer and (ii) such successor Administrator shall have agreed
in writing to be bound by the terms of this Agreement in the same manner as the
Administrator is bound hereunder.
(f) The appointment of any successor Administrator shall be effective
only after each Rating Agency has provided to the Owner Trustee and the
Indenture Trustee written notice that the proposed appointment will not result
in the reduction or withdrawal of any rating then assigned by such Rating Agency
to any class of Notes or the Certificates.
(g) Subject to Section 8(e) and 8(f), the Administrator acknowledges
that upon the appointment of a Successor Servicer pursuant to the Sale and
Servicing Agreement, the Administrator shall immediately resign and such
Successor Servicer shall automatically succeed to the rights, duties and
obligations of the Administrator under this Agreement.
9. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 8(a) or the
resignation or removal of the Administrator pursuant to Section 8(b) or (c),
respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 8(a) deliver to or to the order of the Issuer all property
and documents of or relating to the Collateral then in the custody of the
Administrator in the event of the resignation or removal of the Administrator
pursuant to Section 8(b) or (c), respectively, the Administrator shall cooperate
with the Issuer and take all reasonable steps requested to assist the Issuer in
making an orderly transfer of the duties of the Administrator.
10. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to
Onyx Acceptance Owner Trust 199_-_
In care of_______________________________
_________________________________________
Attention:_______________________________
(b) if to the Administrator, to
Onyx Acceptance Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(c) if to the Indenture Trustee, to
_________________________________________
_________________________________________
Attention:_______________________________
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or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand delivered
to the address of such party as provided above.
11. Amendments. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Issuer, the Administrator
and the Indenture Trustee, with the written consent of the Owner Trustee,
without the consent of the Noteholders or the Certificateholders, for the
purpose of adding any provisions to or modifying or changing in any manner or
eliminating any of the provisions of this Agreement; provided that such
amendment does not and will not, in the Opinion of Counsel satisfactory to the
Indenture Trustee, materially and adversely affect the interest of any
Noteholder or Certificateholder. This Agreement may also be amended by the
Issuer, the Administrator and the Indenture Trustee with the written consent of
the Owner Trustee and the holders of Notes evidencing at least a majority in the
Outstanding Amount of the Notes and the holders of Certificates evidencing at
least a majority of the Certificate Balance for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of Noteholders or the
Certificateholders; provided, however, that no such amendment may (i) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on Receivables or distributions that are required to be
made for the benefit of the Noteholders or Certificateholders or (ii) reduce the
aforesaid percentage of the holders of Notes and Certificates which are required
to consent to any such amendment, without the consent of the holders of all the
outstanding Notes and Certificates.
12. Successor and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer and the Owner Trustee and the conditions precedent to appointment of
a successor Administrator set forth in Section 8 are satisfied. An assignment
with such consent and satisfaction, if accepted by the assignee, shall bind the
assignee hereunder in the same manner as the Administrator is bound hereunder.
Notwithstanding the foregoing, this Agreement may be assigned by the
Administrator without the consent of the Issuer or the Owner Trustee to a
corporation or other organization that is a successor (by merger, consolidation
or purchase of assets) to the Administrator, provided that such successor
organization executes and delivers to the Issuer, the Owner Trustee and the
Indenture Trustee an agreement in which such corporation or other organization
agrees to be bound hereunder by the terms of said assignment in the same manner'
as the Administrator is bound hereunder. Subject to the foregoing, this
Agreement shall bind any successors or assigns of the parties hereto.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of [New York], without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
14. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
15. Counterparts. This Agreement may be executed in counterparts, each
of which when so executed shall together constitute but one and the same
agreement.
16. Severability of Provisions. If any one or more of the agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid or unenforceable in any jurisdiction, then such agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or the other rights of
the parties hereto.
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17. Not Applicable to Onyx in Other Capacities. Nothing in this
Agreement shall affect any obligation Onyx may have in any other capacity.
18. Limitation of Liability of Owner Trustee and Indenture Trustee. (a)
Notwithstanding anything contained herein to the contrary, this instrument has
been countersigned by _______________ not in its individual capacity but solely
in its capacity as Owner Trustee of the Issuer and in no event shall
_______________ in its individual capacity or any Owner have any liability for
the representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder, as to all of which recourse shall be had solely to the
assets of the Issuer. For all purposes of this Agreement, in the performance of
any duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
[Articles VI, VII and VIII] of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by _________________ not in its individual
capacity but solely as Indenture Trustee and in no event shall
_____________________ have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in any of
the certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
19. Third-Party Beneficiary. The Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party hereto.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
ONYX ACCEPTANCE OWNER TRUST 199_-_
By: [Name of Owner Trustee]
not in its individual capacity
but solely as Owner Trustee,
By:________________________________
Name:___________________________
Title:__________________________
[Name of Indenture Trustee]
not in its individual capacity but
solely as Indenture Trustee,
By:_____________________________________
Name:________________________________
Title:_______________________________
ONYX ACCEPTANCE CORPORATION,
as Administrator,
By:_____________________________________
Name:________________________________
Title:_______________________________
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