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EXHIBIT 4.1
FORM OF TRUST AGREEMENT
between
ONYX ACCEPTANCE FINANCIAL CORPORATION,
as Depositor,
and
--------,
as Owner Trustee
Dated as of ________, 199_
ONYX ACCEPTANCE OWNER TRUST 199_-_
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TABLE OF CONTENTS
ARTICLE I - DEFINITIONS
SECTION 1.01 Definitions............................................................1
ARTICLE II - CREATION OF TRUST
SECTION 2.01 Creation of Trust......................................................4
SECTION 2.02 Office.................................................................4
SECTION 2.03 Purposes and Powers....................................................4
SECTION 2.04 Appointment of Owner Trustee...........................................5
SECTION 2.05 Initial Capital Contribution of Owner Trust Estate.....................5
SECTION 2.06 Declaration of Trust...................................................5
SECTION 2.07 Liability of the Certificateholders, Depositor and Onyx................6
SECTION 2.08 Title to Trust Property................................................6
SECTION 2.09 Situs of Trust.........................................................6
SECTION 2.10 Representations and Warranties of the Depositor........................7
ARTICLE III - CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.01 Initial Ownership......................................................8
SECTION 3.02 The Certificates.......................................................8
SECTION 3.03 Authentication of Certificates.........................................8
SECTION 3.04 Registration of Transfer and Exchange of Certificates..................8
SECTION 3.05 Mutilated, Destroyed, Lost or Stolen Certificates.....................10
SECTION 3.06 Persons Deemed Certificateholders.....................................10
SECTION 3.07 Maintenance of Office or Agency.......................................11
ARTICLE IV - ACTIONS BY OWNER TRUSTEE OR CERTIFICATEHOLDERS
SECTION 4.01 Prior Notice to Certificateholders with Respect to Certain Matters....11
SECTION 4.02 Action by Certificateholders with Respect to Certain Matters..........12
SECTION 4.03 Action with Respect to Bankruptcy.....................................12
SECTION 4.04 Restrictions on Certificateholders' Power.............................12
ARTICLE V - AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 5.01 General Authority.....................................................12
SECTION 5.02 General Duties........................................................13
SECTION 5.03 Action Upon Instruction...............................................13
SECTION 5.04 No Duties Except as Specified in this Agreement or in Instructions....14
SECTION 5.05 No Action Except Under Specified Documents or Instructions............14
SECTION 5.06 Restrictions..........................................................14
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ARTICLE VI - CONCERNING THE OWNER TRUSTEE
SECTION 6.01 Acceptance of Trusts and Duties.......................................15
SECTION 6.02 Furnishing of Documents...............................................16
SECTION 6.03 Representations and Warranties........................................16
SECTION 6.04 Reliance; Advice of Counsel...........................................17
SECTION 6.05 Not Acting in Individual Capacity.....................................17
SECTION 6.06 Owner Trustee Not Liable for Certificates or Contracts................17
SECTION 6.07 Owner Trustee May Own Certificates and Notes..........................18
ARTICLE VII - COMPENSATION OF OWNER TRUSTEE
SECTION 7.01 Owner Trustee's Fees and Expenses.....................................18
SECTION 7.02 Indemnification.......................................................18
SECTION 7.03 Payments to the Owner Trustee.........................................19
ARTICLE VIII - TERMINATION OF TRUST AGREEMENT
SECTION 8.01 Termination of Trust Agreement........................................19
SECTION 8.02 Dissolution upon Bankruptcy of the Depositor..........................20
ARTICLE IX - SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 9.01 Eligibility Requirements for Owner Trustee............................20
SECTION 9.02 Resignation or Removal of Owner Trustee...............................21
SECTION 9.03 Successor Owner Trustee...............................................21
SECTION 9.04 Merger or Consolidation of Owner Trustee..............................22
SECTION 9.05 Appointment of Co-Trustee or Separate Trustee.........................22
ARTICLE X - MISCELLANEOUS
SECTION 10.01 Supplements and Amendments...........................................23
SECTION 10.02 No Legal Title to Owner Trust Estate in Certificateholders...........24
SECTION 10.03 Limitations on Rights of Others......................................25
SECTION 10.04 Notices..............................................................25
SECTION 10.05 Severability.........................................................25
SECTION 10.06 Counterparts.........................................................25
SECTION 10.07 Successors and Assigns...............................................25
SECTION 10.08 No Petition..........................................................26
SECTION 10.09 No Recourse..........................................................26
SECTION 10.10 Headings.............................................................26
SECTION 10.11 GOVERNING LAW........................................................26
SECTION 10.12 Onyx Payment Obligation..............................................26
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EXHIBIT A Form of Certificate.........................................................A-1
EXHIBIT B Form of Certificate of Trust................................................B-1
EXHIBIT C Form of Certificate Depository Agreement ...................................C-1
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TRUST AGREEMENT dated as of ______, 199__ between Onyx Acceptance
Financial Corporation, a Delaware corporation (the "Depositor"), and ________, a
_______ banking corporation as Owner Trustee.
ARTICLE I
Definitions
SECTION 1.01 Definitions. Except as otherwise specified herein or in the
context may otherwise require, capitalized terms used but not otherwise defined
herein have the meanings ascribed thereto in the Sale and Servicing Agreement
for all purposes of this Trust Agreement. Except as otherwise provided in this
Agreement, whenever used herein the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
"Administration Agreement" means any agreement executed on or before the
Closing Date among the Trust, the Indenture Trustee and a third party that
undertakes to perform certain of the duties and obligations of the Trust and the
Owner Trustee hereunder, under the Sale and Servicing Agreement and under the
Indenture.
"Agreement" means this Trust Agreement, as the same may be amended and
supplemented from time to time.
"Basic Documents" means the Purchase Agreement, the Agreement, the
Certificate of Trust, the Sale and Servicing Agreement, the Indenture, the
Administration Agreement, the Depository Agreements and the other documents and
certificates delivered in connection herewith and therewith.
"Benefit Plan" shall have the meaning assigned to such term in Section
11.13.
"Book-Entry Note" means, a beneficial interest in the Notes of any
Class, ownership and transfers of which shall be made through book entries by a
Clearing Agency as described in Section 2.11 of the Indenture.
"Business Trust Statute" means Chapter 38 of Title 12 of I the Delaware
Code, 12 Del. Code Section 3801 et seq., as the same may be amended from time to
time.
"Certificate" means a certificate evidencing a beneficial ownership
interest in the Trust, substantially in the form attached hereto as Exhibit A.
"Certificate of Trust" means the Certificate of Trust to be filed with
respect to the formation of the Company pursuant to Section 3810(a) of the
Business Trust Statute, substantially in the form attached hereto as Exhibit B.
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"Certificate Register" means the register maintained pursuant to Section
3.04.
"Certificateholder" or "Holder" means a Person in whose name a
Certificate is registered in the Certificate Register.
"Certificate Registrar" means the Owner Trustee unless and until a
successor thereto is appointed pursuant to Section 3.04. The Certificate
Registrar initially designates its offices at ________, as its offices for
purposes of Section 3.04.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder.
"Corporate Trust Office" means, with respect to the Owner Trustee, the
principal corporate trust office of the Owner Trustee located at ________; or at
such other address as the Owner Trustee may designate by notice to the
Certificateholders, or the principal corporate trust office of any successor
Owner Trustee (the address of which the successor owner trustee will notify the
Certificateholders).
"Definitive Certificates" shall have the meaning set forth in Section
3.12.
"Depositor" means ▇▇▇▇▇ in its capacity as Depositor hereunder.
"Depository Agreements" means the agreement or agreements dated on or
before the Closing Date among the Trust, as issuer of the Certificates and the
Notes, the Owner Trustee, the Indenture Trustee and the Clearing Agency through
which interests in Book-Entry Notes are transferred.
"Expenses" shall have the meaning assigned to such term in Section 8.02.
"▇▇▇▇▇" means Onyx Acceptance Financial Corporation, a Delaware
corporation, its successors and assigns.
"Indenture" means any indenture entered into between the Trust and the
Indenture Trustee named therein pursuant to which a series of Notes is issued.
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"Notes" means the notes issued by the Trust pursuant to an Indenture
between the Trust and an Indenture Trustee, dated on or after the date hereof,
having the payment and other terms set forth in such Indenture.
"Onyx" means Onyx Acceptance Corporation, a Delaware corporation, its
successors and assigns.
"Owner Trust Estate" means all right, title and interest of the Trust in
and to the property and rights assigned to the Trust pursuant to Article II of
the Sale and servicing Agreement, all funds on deposit from time to time in the
Trust Accounts and all other property of the Trust from time to time, including
any rights of the Owner Trustee and the Trust pursuant to the Sale and Servicing
Agreement and the Administration Agreement.
"Owner Trustee" means ________, a [Delaware banking corporation], not in
its individual capacity but solely as owner trustee under this Agreement, and
any successor Owner Trustee hereunder.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 3.09, and shall initially be ________.
"Purchase Agreement" means that certain Sale and Servicing Agreement,
dated as of September 8, 1994, as amended, between Onyx, as seller, and ▇▇▇▇▇,
as purchaser of the Contracts.
"Record Date" means, with respect to any Distribution Date, the calendar
day immediately preceding such Distribution Date or, if Definitive Certificates
have been issued, the last day of the month immediately preceding the month in
which such Distribution Date occurs. Any amount stated "as of a Record Date" or
"on a Record Date" shall give effect to (i) all applications of collections, and
(ii) all distributions to any party under this Agreement, the Sale and Servicing
Agreement or the Indenture, or to the related Obligor, as the case may be, in
each case as determined as of the opening of business on the related Record
Date.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement
dated as of the date hereof, among the Trust, ▇▇▇▇▇, as seller, and Onyx, as
servicer.
"Secretary of State" means the Secretary of State of the State of
[Delaware].
"Treasury Regulations" means regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" means the Onyx Acceptance Owner Trust 199_-_ formed as a
Delaware business trust pursuant to this Agreement and the filing of the
Certificate of Trust.
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SECTION 1.02 Usage of Terms. With respect to all terms in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other genders; references to "writing" include
printing, typing, lithography and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments thereto or changes therein entered into in accordance with
their respective terms and not prohibited by this Agreement; references to
Persons include their permitted successors and assigns; and the term "including"
means "including without limitation."
ARTICLE II
Creation of Trust
SECTION 2.01 Creation of Trust. Upon the execution of this Agreement by
the parties hereto and the prompt filing thereafter of the Certificate of Trust,
there is hereby created the "Onyx Acceptance Owner Trust 199_-_", in which name
the Owner Trustee may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and ▇▇▇ and be sued.
SECTION 2.02 Office. The office of the Trust shall be in care of the
Owner Trustee at the Corporate Trust Office or at such other address in
[Delaware] as the Owner Trustee may designate by written notice to the
Certificateholders and the Depositor.
SECTION 2.03 Purposes and Powers. (a) The purpose of the Trust is to
engage in the following activities:
(i) to issue Notes pursuant to an Indenture and Certificates
pursuant to this Agreement and to sell such Notes and Certificates;
(ii) with the proceeds of the sale of Notes and Certificates to
pay the organizational, start-up and transactional expenses of the Trust
and to pay the balance to the Depositor pursuant to the Sale and
Servicing Agreement;
(iii) to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to, and on the terms and conditions set forth in,
the Indenture and to hold, manage and distribute to the
Certificateholders pursuant to the terms of the Sale and Servicing
Agreement any portion of the Trust Estate released from the Lien of, and
remitted to the Trust pursuant to, the Indenture as set forth herein;
(iv) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
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(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation
of the Owner Trust Estate and the making of distributions to the
Certificateholders and the Noteholders and in respect of amounts to be
released to the Depositor, the Servicer, the Administrator or [and third
party, if any].
The Trust is hereby authorized to engage in the foregoing activities. The Trust
shall not engage in any activity other than in connection with the foregoing and
as required or authorized by the terms of the Basic Documents.
SECTION 2.04 Appointment of Owner Trustee. The Depositor hereby appoints
the Owner Trustee as trustee of the Trust effective as of the date hereof, to
have all the rights, powers and duties set forth herein.
SECTION 2.05 Initial Capital Contribution of Owner Trust Estate. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $1. The Owner Trustee hereby
acknowledges receipt in trust from the Depositor, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Owner Trust Estate
and shall be deposited in the Collection Account. The Depositor shall pay
organizational expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any such
expenses paid by the Owner Trustee.
SECTION 2.06 Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholders,
subject to the obligations of the Trust under the Basic Documents. It is the
intention of the parties hereto that the Trust constitute a business trust under
the Business Trust Statute and that this Agreement constitute the governing
instrument of such business trust. It is the intention of the parties hereto
that, solely for income and franchise tax purposes, the Trust shall be treated
as a partnership, with the assets of the partnership being the Contracts and
other assets held by the Trust, the partners of the partnership being the
Certificateholders, and the Notes being debt of the partnership. The parties
agree that, unless otherwise required by appropriate tax authorities, the Trust
will file or cause to be filed annual or other necessary returns, reports and
other forms consistent with the characterization of the Trust as a partnership
for such tax purposes. Effective as of the date hereof, the Owner Trustee shall
have all rights, powers and duties set forth herein and in the Business Trust
Statute with respect to accomplishing the purposes of the Trust.
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SECTION 2.07 Liability of the Certificateholders, Depositor and Onyx.
(a) The Depositor and Onyx shall be liable directly to and will
indemnify and hold harmless the Trustee and the Indenture Trustee for any loss,
liability or expense of the Trust (including Expenses, to the extent not paid
out of the owner Trust Estate) to the extent that the Company would be liable if
the Trust were a partnership under the [Delaware] Revised Uniform Limited
Partnership Act in which the Company were a general partner; provided, however,
that the Depositor and Onyx shall not be liable for any losses incurred by a
Certificateholder in the capacity of an investor in the Certificates or a
Noteholder in the capacity of an investor in the Notes and will not and shall
not be deemed hereby to have indemnified the Trustee or Indenture Trustee
against any loss liability or expense resulting from such Trustee's own willful
misfeasance, bad faith or negligence or by reason of a breach of representation
or warranty thereof contained herein or in the Indenture, as the case may be. In
addition, any third party creditors of the Trust (other than in connection with
the obligations described in the provisions in the preceding sentence for which
the Company shall not be liable) shall be deemed to be third party beneficiaries
of this paragraph. The obligations of the Depositor and Onyx under this
paragraph shall be evidenced by the Certificates described in Section 3.10,
which for purposes of the Business Trust Statute shall be deemed to be a
separate class of Certificates from all other Certificates issued by the Trust;
provided, that the rights and obligations evidenced by all Certificates,
regardless of class, shall, except as provided in this Section, be identical.
(b) Except to the extent set forth in paragraph (a), no
Certificateholder shall have any personal liability for any liability or
obligation of the Trust.
SECTION 2.08 Title to Trust Property. Legal title to all the Owner Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Owner Trust Estate to be vested in a trustee or trustees, in which case
title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
SECTION 2.09 Situs of Trust. The Trust will be located and administered
in the state of [Delaware]. All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of [Delaware] or the State of
New York. The Trust shall not have any employees in any state other than
[Delaware]; provided, however, that nothing herein shall restrict or prohibit
the Owner Trustee from having employees within or without the State of
[Delaware]. Payments will be received by the Trust only in [Delaware] or New
York, and payments will be made by the Trust only from [Delaware] or [New York].
The only office of the Trust will be at the Corporate Trust Office in
[Delaware].
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SECTION 2.10 Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to the Owner Trustee
that:
(i) The Depositor is duly organized and validly existing as a
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and to conduct
its business as such properties are currently owned and such business is
presently conducted, and has corporate power, authority and legal right
to acquire, own and sell property including the Contracts.
(ii) The Depositor is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses
and approvals in all jurisdictions in which the ownership or lease of
property or the conduct of its business shall require such
qualifications.
(iii) The Depositor has the corporate power and authority to
execute and deliver this Agreement and to carry out its terms; the
Depositor has full corporate power and authority to sell and assign the
property to be sold and assigned to and deposited with the Trust and the
Depositor has duly authorized such sale and assignment and deposit to
the Trust by all necessary corporate action; and the execution, delivery
and performance of this Agreement has been duly authorized by the
Depositor by all necessary corporate action.
(iv) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under,
the articles of incorporation or bylaws of the Depositor, or any
indenture, agreement or other instrument to which the Depositor is a
party or by which it is bound, nor result in the creation or imposition
of any Lien upon any of its properties pursuant to the terms of any such
indenture agreement or other instrument (other than pursuant to the
Basic Documents); nor violate any law or, to the best of the Depositor's
knowledge, any order, rule or regulation applicable to the Depositor of
any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over
the Depositor or its properties which breach, default, conflict, lien or
violation would have a material adverse effect on the earnings, business
affairs or business prospects of the Depositor.
(v) There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending, or to
the Depositor's knowledge, threatened, against or affecting the
Depositor: (i) asserting the invalidity of this Agreement, (ii) seeking
to prevent the consummation of any of the transactions contemplated by
this Agreement, (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Depositor of its
obligations under, or the validity or
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enforceability of, this Agreement or (iv) relating to the Depositor and
which might adversely affect the federal income tax attributes of the
Trust or the Certificates or Notes.
ARTICLE III
Certificates and Transfer of Interests
SECTION 3.01 Initial Ownership. Upon the formation of the Trust by the
transfer by the Depositor of the initial capital contribution pursuant to
Section 2.05, and until the issuance of the Certificates, the Depositor shall be
the sole Certificateholder of the Trust.
SECTION 3.02 The Certificates. The Certificates shall be executed on
behalf of the Trust by manual or facsimile signature of a Responsible Officer of
the Owner Trustee. Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled
to the benefit of this Agreement, notwithstanding that such individuals or any
of them shall have ceased to be so authorized prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of
authentication and delivery of such Certificates.
A transferee of a Certificate shall become a Certificateholder, and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder, upon such transferee's acceptance of a Certificate
duly registered in such transferee's name pursuant to Section 3.04.
SECTION 3.03 Authentication of Certificates. Concurrently with the
initial sale of the Contracts to the Trust pursuant to the Sale and Servicing
Agreement, the Owner Trustee shall cause to be executed, authenticated and
delivered on behalf of the Trust to or upon the written order of the Depositor,
Certificates evidencing the entire ownership of the Trust. No Certificate shall
entitle its holder to any benefit under this Agreement or be valid for any
purpose, unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A, executed by the
Owner Trustee or ________, as the Owner Trustee's authenticating agent, by
manual or facsimile signature of a Responsible Officer, and such authentication
shall constitute conclusive evidence, and the only evidence, that such
Certificate shall have been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
SECTION 3.04 Registration of Transfer and Exchange of Certificates.
(a) The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.08, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the Owner
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. [The Owner Trustee] [________]
shall be the initial Certificate Registrar. In the event that the Certificate
Registrar shall for any reason become unable to act as Certificate Registrar,
the Certificate Registrar shall promptly give written notice to such effect to
the Depositor, the Owner Trustee and the Servicer. Upon receipt of
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such notice, the Servicer shall appoint another bank or trust company, having an
office or agency located in the [Borough of Manhattan], The City of New York,
and that shall agree to act in accordance with the provisions of this Agreement
applicable to it, and otherwise acceptable to the Owner Trustee, to act as
successor Certificate Registrar under this Agreement.
(b) Upon surrender for registration of transfer of any Certificate at
the office or agency maintained pursuant to Section 3.08, the Owner Trustee
shall execute, authenticate and deliver (or shall cause ________ as its
authenticating agent to authenticate and deliver), in the name of the designated
transferee or transferees, one or more new Certificates dated the date of
authentication by the Owner Trustee or any authenticating agent.
(c) Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Holder or his attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer or exchange shall be
cancelled and disposed of by the Owner Trustee in accordance with its customary
practice.
No transfer of a Certificate shall be made unless the Owner Trustee
shall have received a representation from the transferee of such Certificate
acceptable to and in form and substance satisfactory to the Owner Trustee to the
effect that:
(i) such transferee (A) is not an employee benefit plan or
arrangement subject to Section 406 of ERISA or a plan subject to Section
4975 of the Code (a "Plan"), nor a person acting on behalf of a Plan nor
using the assets of a Plan to effect such transfer, and (B) is not an
insurance company purchasing a Certificate with funds contained in an
"insurance company general account" (as defined in Section V(e) of
Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) as to which
there is a Plan with respect to which the amount of such general
account's reserves and liabilities for the contracts held by or on
behalf of such Plan and all other Plans maintained by the same employer
(or affiliate thereof as defined in Section V(a)(1) of PTCE 95-60) of by
the same employee organization exceed 10% of the total of all reserves
and liabilities of such general account (as such amounts are determined
under Section I(a) of PTCE 95-60) at the date of acquisition; or
(ii) is a Plan or is an insurance company purchasing a
Certificate with funds contained in an insurance company general
account, having attached thereto an opinion of counsel satisfactory to
the Owner Trustee, which opinion shall not be an expense of either the
Owner Trustee or the Trust, addressed to the Owner Trustee, to the
effect that the purchase or holding of such Certificate will not result
in the assets of the Owner Trust Estate being deemed to be "plan assets"
and subject to the prohibited transaction provisions of ERISA and the
Code and will not subject the Owner Trustee to any obligation in
addition to those expressly undertaken in this Agreement or to any
liability.
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Notwithstanding anything else to the contrary herein, any purported transfer of
a Certificate to or on behalf of an employee benefit plan subject to ERISA or to
the Code or to an insurance company purchasing with funds from a general account
not exempt pursuant to PTCE 95-60 without the delivery to the Owner Trustee of
an opinion of counsel satisfactory to the Owner Trustee as described in clause
(ii) above shall be void and of no effect.
To the extent permitted under applicable law (including, but not limited
to, ERISA), the Owner Trustee shall be under no liability to any Person for any
registration of transfer of any Certificate that is in fact not permitted by
this Section 3.04(c) or for taking any other action with respect to such Holder
under the provisions of this Trust Agreement or the Sale and Servicing Agreement
so long as the transfer was registered by the Certificate Registrar or the Owner
Trustee in accordance with the foregoing requirements.
(d) No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
SECTION 3.05 Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar, or
if the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity as
may be required by them to save each of them harmless, then in the absence of
notice that such Certificate shall have been acquired by a bona fide purchaser,
the Owner Trustee on behalf of the Trust shall execute and the Owner Trustee, or
________, as the Owner Trustee's authenticating agent, shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like tenor and denomination. Every
person by virtue of becoming a Certificateholder in accordance with this
Agreement shall be deemed to be bound by the terms of this Agreement. In
connection with the issuance of any new Certificate under this Section, the
Owner Trustee or the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Certificate issued pursuant to this Section
shall constitute conclusive evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
SECTION 3.06 Persons Deemed Certificateholders. Every person by virtue
of becoming a Certificateholder in accordance with this Agreement shall be
deemed to be bound by the terms of this Agreement. Prior to due presentation of
a Certificate for registration of transfer, the Owner Trustee or the Certificate
Registrar may treat the Person in whose name any Certificate shall be registered
in the Certificate Register as the owner of such Certificate for the purpose of
receiving distributions pursuant to the Sale and Servicing Agreement and for all
other purposes whatsoever, and neither the Owner Trustee nor the Certificate
Registrar shall be bound by any notice to the contrary.
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SECTION 3.07 Maintenance of Office or Agency. The Owner Trustee shall
maintain in the [Borough of Manhattan, The City of New York], an office or
offices or agency or agencies where Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Owner Trustee in respect of the Certificates and the Basic Documents may be
served. The Owner Trustee initially designates ________, [Address], as its
principal corporate trust office for such purposes. The Owner Trustee shall give
prompt written notice to the Depositor and to the Certificateholders of any
change in the location of the Certificate Register or any such office or agency.
ARTICLE IV
Actions By Owner Trustee or Certificateholders
SECTION 4.01 Prior Notice to Certificateholders with Respect to Certain
Matters. With respect to the following matters, the Owner Trustee shall not take
action unless at least 30 days before the taking of such action, the Owner
Trustee shall have notified the Certificateholders in writing of the proposed
action and the Certificateholders shall not have notified the Owner Trustee in
writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except claims
or lawsuits brought in connection with the collection of the Contracts) and the
compromise of any action, claim or lawsuit brought by or against the Trust
(except with respect to the aforementioned claims or lawsuits for collection of
the Contracts);
(b) the election by the Trust to file an amendment, to the Certificate
of Trust (unless such amendment is required to be filed under the Business Trust
Statute);
(c) the amendment of the Indenture, whether or not by a Supplemental
Indenture, in circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture, whether or not by a Supplemental
Indenture, in circumstances where the consent of any Noteholder is not required
but such amendment materially adversely affects the interest of the
Certificateholders;
(e) the amendment, change or modification of the Administration
Agreement, other than to cure any ambiguity or to amend or supplement any
provision in a manner or add any provision that would not materially adversely
affect the interests of the Certificateholders; or
(f) the appointment (i) pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee, (ii) pursuant to this Agreement of
a successor Certificate Registrar or
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(iii) any consent by the Note Registrar, Paying Agent or Indenture Trustee or
Certificate Registrar to the assignment of its respective obligations under the
Indenture or this Agreement, as applicable.
SECTION 4.02 Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee shall not have the power, except upon the direction
of the Certificateholders, to (a) remove the Administrator pursuant to [Section
8] of the Administration Agreement, (b) appoint a successor Administrator
pursuant to [Section 8] of the Administration Agreement, (c) remove the Servicer
pursuant to [Section 8.01] of the Sale and Servicing Agreement or (d) except as
expressly provided in the Basic Documents, sell the Contracts after the
termination of the Indenture. The Owner Trustee shall take the actions referred
to in the preceding sentence only upon written instructions signed by the
authorized representative of 100% of the Certificateholders.
SECTION 4.03 Action with Respect to Bankruptcy. The Owner Trustee shall
not have the power to commence a voluntary proceeding in bankruptcy relating to
the Trust without the unanimous prior approval of all Certificateholders and the
delivery to the Owner Trustee by each such Certificateholder of a certificate
certifying that such Certificateholder reasonably believes that the Trust is
insolvent.
SECTION 4.04 Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any
obligations of the Trust or of the Owner Trustee under any of the Basic
Documents or would be contrary to Section 2.03 nor shall the Owner Trustee be
obligated to follow any such direction, if given.
ARTICLE V
Authority and Duties of Owner Trustee
SECTION 5.01 General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to be
a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party and any
amendment thereto, in each case, in such form as the Depositor shall approve as
evidenced conclusively by the Owner Trustee's execution thereof, and, on behalf
of the Trust, to direct the Indenture Trustee to authenticate and deliver Class
A-1 Notes in the aggregate principal amount of $________ , Class A-2 Notes in
the aggregate principal amount of $________, and Class A-3 Notes in the
aggregate principal amount of $________ having the terms and conditions set
forth in Exhibits ▇-▇, ▇-▇ and A-3 to the Indenture in the form executed on the
Closing Date. In addition to the foregoing, the Owner Trustee is authorized, but
shall not be obligated, to take all actions required of the Trust, pursuant to
the Basic Documents. The Owner Trustee is further authorized from time to time
to take such action as the Administrator recommends with respect to the Basic
Documents.
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SECTION 5.02 General Duties. It shall be the duty of the Owner Trustee
to discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the Basic Documents to which the Trust is a
party and to administer the Trust in the interest of the Certificateholders,
subject to the Basic Documents and in accordance with the provisions of this
Agreement. Notwithstanding the foregoing, the Owner Trustee shall be deemed to
have discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Owner Trustee
hereunder or under any Basic Document, and the Owner Trustee shall not be held
liable for the default or failure of the Administrator to carry out such
obligations or fulfill such duties under the Administration Agreement.
SECTION 5.03 Action Upon Instruction.
(a) Subject to Article IV and in accordance with the terms of the Basic
Documents, the Certificateholders may by written instruction direct the Owner
Trustee in the management of the Trust. Such direction may be exercised at any
time by written instruction of the Certificateholders pursuant to Article IV.
(b) The Owner Trustee shall not be required to take any action hereunder
or under any Basic Document if the Owner Trustee reasonably shall have
determined, or shall have been advised by counsel, that such action is likely to
result in liability on the part of the Owner Trustee or is contrary to the terms
hereof or of any Basic Document or is otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or under
any Basic Document, the Owner Trustee shall promptly give notice (in such form
as shall be appropriate under the circumstances) to the Certificateholders
requesting instruction as to the course of action to be adopted, and to the
extent the Owner Trustee acts in good faith in accordance with any written
instruction received from Certificateholders representing the plurality based on
the percentage interest of the Trust represented by Certificates held by
Certificateholders responding, the Owner Trustee shall not be liable on account
of such action to any Person. If the Owner Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with the Basic Documents, as it shall
deem to be in the best interests of the Certificateholders, and shall have no
liability to any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the application
of any provision of this Agreement or any Basic Document or any such provision
is ambiguous as to its application, or is, or appears to be in conflict with any
other applicable provision, or in the event that this Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action that the Owner Trustee is required to take with respect to a
particular set of facts, the Owner Trustee may give notice (in such form as
shall be appropriate under the circumstances)
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to the Certificateholders requesting instruction and, to the extent that the
Owner Trustee acts or refrains from acting in good faith in accordance with any
written instruction received from Certificateholders representing the plurality
based on outstanding percentage interest of the Trust represented by
Certificates held by Certificateholders responding, the Owner Trustee shall not
be liable, on account of such action or inaction, to any Person. If the Owner
Trustee shall not have received appropriate instruction within 10 days of such
notice (or within such shorter period of time as reasonably may be specified in
such notice or may be necessary under the circumstances) it may, but shall be
under no duty to, take or refrain from taking such action, not inconsistent with
the Basic Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action or
inaction.
SECTION 5.04 No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any Basic Document or otherwise
contemplated hereby to which the Owner Trustee is a party, except as expressly
provided by the terms of this Agreement or in any document or written
instruction received by the Owner Trustee pursuant to section 5.03. No implied
duties or obligations shall be read into this Agreement or any Basic Document
against the Owner Trustee. The Owner Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any time
or otherwise to perfect or maintain the perfection of any security interest or
lien granted to it hereunder or to prepare or file any Securities and Exchange
Commission filing for the Trust or to record this Agreement or any Basic
Document. The Owner Trustee nevertheless agrees that it will, at its own cost
and expense, promptly take all action as may be necessary to discharge any liens
on any part of the Owner Trust Estate that result from actions by, or claims
against, the Owner Trustee that are not related to the ownership or the
administration of the Owner Trust Estate.
SECTION 5.05 No Action Except Under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise
deal with any part of the Owner Trust Estate except (i) in accordance with the
powers granted to and the authority conferred upon the Owner Trustee pursuant to
this Agreement, (ii) in accordance with the Basic Documents and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 5.03.
SECTION 5.06 Restrictions. The Owner Trustee shall not take any action
(a) that is inconsistent with the purposes of the Trust set forth in Section
2.03 or (b) that, to the actual knowledge of the Owner Trustee, would result in
the Trust's becoming taxable as a corporation for Federal income tax purposes.
The Certificateholders shall not have the authority to and, by acceptance of an
ownership interest in any Certificate shall thereby be deemed to have covenanted
not to, direct the Owner Trustee to take action that would violate the
provisions of this Section.
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ARTICLE VI
Concerning the Owner Trustee
SECTION 6.01 Acceptance of Trusts and Duties. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all moneys actually received by it or under its
control constituting part of the Owner Trust Estate upon the terms of the Basic
Documents and this Agreement. The Owner Trustee shall not be answerable or
accountable hereunder or under any Basic Document under any circumstances,
except (i) for its own willful misconduct or negligence or (ii) in the case of
the inaccuracy of any representation or warranty of the Owner Trustee contained
in Section 6.03 or made by the Owner Trustee in any other agreement, document or
certificate made or delivered in connection with this Agreement or any Basic
Document. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any reasonable error of
judgment made by a Responsible Officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of the
Administrator, as provided in the Administration Agreement, or the
Certificateholders, as provided herein;
(c) no provision of this Agreement or any Basic Document shall require
the Owner Trustee to expend or risk funds or otherwise incur any financial
liability in the performance of any of its rights or powers hereunder or under
any Basic Document if the Owner Trustee shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in respect of (i)
the validity or sufficiency of this Agreement, (ii) the due execution hereof by
the Depositor, (iii) the form, character, genuineness, sufficiency, value or
validity of any portion of the Owner Trust Estate or (iv) the validity or
sufficiency of the Basic Documents, other than the certificate of authentication
on the Certificates, and the Owner Trustee shall in no event assume or incur any
liability, duty, or obligation to any Noteholder or to any Certificateholder,
other than as expressly provided for herein and in the Basic Documents;
(f) the Owner Trustee shall not be liable for the default or misconduct
of the Administrator, the Servicer, the Depositor or the Indenture Trustee under
any of the Basic
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Documents or otherwise, and the Owner Trustee shall have no obligation or
liability to perform the obligations of the Trust under the Basic Documents that
are required to be performed by the Administrator under the Administration
Agreement, the Indenture Trustee under the Indenture or the Servicer under the
Sale and Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under or in relation to this Agreement or any Basic
Document or otherwise, at the request, order or direction of any of the
Certificateholders, unless such Certificateholders have offered to the Owner
Trustee security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Owner Trustee therein or thereby. The
right of the Owner Trustee to perform any discretionary act enumerated in this
Agreement or in any Basic Document shall not be construed as a duty, and the
Owner Trustee shall not be answerable therefor other than for its negligence or
willful misconduct in the performance thereof.
SECTION 6.02 Furnishing of Documents. The Owner Trustee shall furnish
(a) to the Certificateholders promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Basic Documents and (b) to Noteholders promptly upon
written request therefor, copies of the Sale and Servicing Agreement, the
Administration Agreement and the Trust Agreement.
SECTION 6.03 Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Depositor and the Certificateholders, that:
(a) It is a [banking corporation] duly organized and validly existing in
good standing under the laws of [the State of Delaware]. It has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Agreement and each other Basic Document.
(b) It has taken all corporate action necessary to authorize the
execution and delivery of this Agreement and each other Basic Document, and this
Agreement and each other Basic Document will be executed and delivered by one of
its officers duly authorized to execute and deliver this Agreement and each
other Basic Document on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement nor
the consummation by the Owner Trustee of the transactions contemplated hereby or
thereby nor compliance by it with any of the terms or provisions hereof or
thereof will contravene any federal or [Delaware] law, governmental rule or
regulation governing the [banking or trust] powers of the Owner Trustee or any
judgment or order binding on it, or constitute any default under its charter
documents or by-laws or any indenture, mortgage, contract, agreement or
instrument to which it is a party or by which any of its properties may be
bound.
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SECTION 6.04 Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting upon
any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond, or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of the determination
of which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a Certificate, signed by the president or any vice
president or by the treasurer or other authorized officers of the relevant
party, as to such fact or matter and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken by
it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under the Basic Documents, the Owner
Trustee (i) may act directly or through its agents or attorneys pursuant to
agreements entered into with any of them, and the Owner Trustee shall not be
liable for the conduct or misconduct of such agents or attorneys if such agents
or attorneys shall have been selected by the Owner Trustee with reasonable care,
and (ii) may consult with counsel, accountants and other skilled persons to be
selected with reasonable care and employed by it. The Owner Trustee shall not be
liable for anything done, suffered or omitted in good faith by it in accordance
with the written opinion or advice of any such counsel, accountants or other
such persons and not contrary to this Agreement or any Basic Document.
SECTION 6.05 Not Acting in Individual Capacity. Except as provided in
this Article VI, in accepting the trusts hereby created, ________ acts solely as
Owner Trustee hereunder and not in its individual capacity. All Persons having
any claim against the Owner Trustee by reason of the transactions contemplated
by this Agreement or any Basic Document shall look only to the Owner Trust
Estate for payment or satisfaction thereof.
SECTION 6.06 Owner Trustee Not Liable for Certificates or Contracts. The
recitals contained herein and in the Certificates (other than the signature of
the Owner Trustee and the certificate of authentication on the Certificates)
shall be taken as the statements of the Depositor and the Company, and the Owner
Trustee assumes no responsibility for the correctness thereof. The Owner Trustee
makes no representations as to the validity or sufficiency of any Basic Document
or of the Certificates (other than the signature of the Owner Trustee and the
certificate of authentication on the Certificates) or the Notes (other than the
signature of the Owner Trustee on the Notes), or of any Contract or related
document. The Owner Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Contract, or the perfection and priority of any security interest created by
any Contract in any Financed vehicle or the maintenance of any such perfection
and priority, or for or with respect to the sufficiency of the Owner Trust
Estate or the sufficiency to generate the payments to be distributed to
Certificateholders
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under this Agreement or the Noteholders under the Indenture, including, without
limitation: the existence, condition and ownership of any Financed Vehicle; the
existence and enforceability of any insurance thereon; the existence and
contents of any Contract on any computer or other record thereof; the validity
of the assignment of any Contract to the Trust or of any intervening assignment;
the completeness of any Contract; the performance or enforcement of any
Contract; the compliance by the Depositor, the Company or the Servicer with any
warranty or representation made under any Basic Document or in any related
document or the accuracy of any such warranty or representation or any action of
the Administrator, the Indenture Trustee or the Servicer or any subservicer
taken in the name of the Owner Trustee.
SECTION 6.07 Owner Trustee May Own Certificates and Notes. The Owner
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates or Notes and may deal with the Depositor, the Company, the
Administrator, the Indenture Trustee and the Servicer in banking transactions
with the same rights as it would have if it were not Owner Trustee.
ARTICLE VII
Compensation of Owner Trustee
SECTION 7.01 Owner Trustee's Fees and Expenses. The Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Company and the Owner
Trustee, and the Owner Trustee shall be entitled to be reimbursed by the Company
for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder.
SECTION 7.02 Indemnification. The Depositor shall be liable as primary
obligor for, and shall indemnify the Owner Trustee and its successors, assigns,
agents and servants (collectively, the "Indemnified Parties") from and against,
any and all liabilities, obligations, losses, damages, taxes, claims, actions
and suits, and any and all reasonable costs, expenses and disbursements
(including the reasonable fees and expenses of counsel) of any kind and nature
whatsoever (collectively, "Expenses") which may at any time be imposed on,
incurred by, or asserted against the Owner Trustee or any Indemnified Party in
any way relating to or arising out of the Basic Documents, the Owner Trust
Estate, the administration of the Owner Trust Estate or the action or inaction
of the Owner Trustee hereunder, except only that the Depositor shall not be
liable for or required to indemnify an Indemnified Party from and against
Expenses arising or resulting from any of the matters described in the third
sentence of Section 6.01. The indemnities contained in this Section 8.03 shall
survive the resignation or termination of the Owner Trustee or the termination
of this Agreement. In the event of any claim, action or proceeding for which
indemnity is sought pursuant to this Section, the Owner Trustee's choice of
legal counsel shall be subject to the approval of the Depositor, which approval
shall not be unreasonably withheld.
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SECTION 7.03 Payments to the Owner Trustee. Any amounts paid to the
Owner Trustee pursuant to this Article VII shall be deemed not to be a part of
the Owner Trust Estate immediately after such payment.
ARTICLE VIII
Termination of Trust Agreement
SECTION 8.01 Termination of Trust Agreement.
(a) This Agreement (other than Article VII) and the Trust shall
terminate and be of no further force or effect, (i) upon the final distribution
by the Owner Trustee of all moneys or other property or proceeds of the Owner
Trust Estate in accordance with the terms of this Agreement, [Article V] of the
Indenture and the Sale and Servicing Agreement or (ii) at the time provided in
Section 9.02. The bankruptcy, liquidation, dissolution, death or incapacity of
any Certificateholder, other than the Company as described in Section 9.02,
shall not (x) operate to terminate this Agreement or the Trust, nor (y) entitle
such Certificateholder's legal representatives or heirs to claim an accounting
or to take any action or proceeding in any court for a partition or winding up
of all or any part of the Trust or Owner Trust Estate nor (z) otherwise affect
the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Distribution
Date upon which the Certificateholders shall surrender their Certificates to the
[Paying Agent] for payment of the final distributions and cancellation, shall be
given by the Owner Trustee by letter to the Certificateholders mailed within
five Business Days of receipt of notice of such termination from the Servicer
given pursuant to [Section 9.01(c)] of the Sale and Servicing Agreement, stating
(i) the Distribution Date upon or with respect to which final payment of the
Certificates shall be made upon presentation and surrender of the Certificates
at the office of the [Paying Agent] therein designated, (ii) the amount of any
such final payment and (iii) that payment to be made on such Distribution Date
will be made only upon presentation and surrender of the Certificates at the
office of the [Paying Agent] therein specified. The Owner Trustee shall give
such notice to the Certificate Registrar (if other than the Owner Trustee) [and
the Paying Agent] at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Certificates, the [Paying Agent] shall cause
to be distributed to Certificateholders amounts distributable on such
Distribution Date pursuant to [Section ___] of the Sale and Servicing Agreement.
In the event that one or more of the Certificateholders shall not
surrender their Certificates for cancellation within six months after the date
specified in the above mentioned written notice, the Owner Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one
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year after the second notice all the Certificates shall not have been
surrendered for cancellation, the Owner Trustee may take appropriate steps, or
may appoint an agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement. Any funds remaining in the Trust after exhaustion of
such remedies shall be distributed by the Owner Trustee to the Depositor.
(d) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3820 of the Business Trust Statute.
SECTION 8.02 Dissolution upon Bankruptcy of the Depositor. In the event
that an Insolvency Event shall occur with respect to the Depositor, this
Agreement shall be terminated in accordance with Section 8.01 90 days after the
date of such Insolvency Event, unless, before the end of such 90-day period, the
Owner Trustee shall have received written instructions from Certificateholders
representing at least 51% of the percentage interest of the Trust to the effect
that each such party disapproves of the liquidation of the Contracts and
termination of the Trust. Promptly after the occurrence of any Insolvency Event
with respect to the Depositor, (A) the Depositor shall give the Indenture
Trustee and the Owner Trustee written notice of such Insolvency Event, (B) the
Owner Trustee shall, upon the receipt of such written notice from the Depositor,
give prompt written notice to the Certificateholders and the Indenture Trustee,
of the occurrence of such event and (C) the Indenture Trustee shall, upon
receipt of written notice of such Insolvency Event from the Owner Trustee or the
Depositor, give prompt written notice to the Noteholders of the occurrence of
such event; provided, however, that any failure to give a notice required by
this sentence shall not prevent or delay, in any manner, a termination of the
Trust pursuant to the first sentence of this Section 8.02. Upon a termination
pursuant to this Section 8.02, the Owner Trustee shall direct the Indenture
Trustee promptly to sell the assets of the Trust (other than the Trust Accounts
and the Collection Account) in a commercially reasonable manner and on
commercially reasonable terms. The proceeds of such a sale of the assets of the
Trust shall be treated as collections under the Sale and Servicing Agreement and
deposited in the Collection Account and distributed pursuant to the terms
thereof.
ARTICLE IX
Successor Owner Trustees and Additional Owner Trustees
SECTION 9.01 Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be an entity satisfying the provisions of Section
3807(a) of the Business Trust Statute authorized to exercise corporate powers,
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by federal or state authorities, and having (or
having a parent which has) a rating of at least Baa3 by ▇▇▇▇▇'▇. If such entity
shall publish reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section 9.01, the combined capital and surplus of
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such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any time
the Owner Trustee shall cease to be eligible in accordance with the provisions
of this Section, the Owner Trustee shall resign immediately in the manner and
with the effect specified in Section 9.02.
SECTION 9.02 Resignation or Removal of Owner Trustee. The Owner Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Depositor, the Administrator and the
Indenture Trustee. Upon receiving such notice of resignation, the Administrator
shall promptly appoint a successor Owner Trustee by written instrument, in
duplicate, one copy of which shall be delivered to each of the resigning Owner
Trustee and the successor Owner Trustee. If no successor Owner Trustee shall
have been so appointed or shall not have accepted such appointment within 30
days after the giving of such notice of resignation, the resigning Owner Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 9.01 and shall fail to resign
promptly, or if at any time the Owner Trustee shall be legally unable to act, or
shall be adjudged bankrupt or insolvent, or a receiver of the Owner Trustee or
of its property shall be appointed, or any public officer shall take charge or
control of the Owner Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Administrator may remove
the Owner Trustee by written instrument to such effect delivered to the Owner
Trustee, the Depositor and the Indenture Trustee. If the Administrator shall
remove the Owner Trustee under the authority of the immediately preceding
sentence, the Administrator shall promptly appoint a successor Owner Trustee by
written instrument in duplicate, one copy of which instrument shall be delivered
to each of the outgoing Owner Trustee so removed the successor Owner Trustee and
payment of all fees, expenses and other compensation owed to the outgoing Owner
Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 9.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Administrator shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies.
SECTION 9.03 Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 9.02 shall execute, acknowledge and deliver to the
Administrator and to its predecessor Owner Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties, and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver to
the successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and the Administrator and the predecessor Owner Trustee
shall
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execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Owner Trustee all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
meet the criteria for eligibility set forth in Section 9.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Administrator shall mail notice of the successor of such Owner
Trustee to all Certificateholders, the Indenture Trustee, the Noteholders and
the Rating Agencies. If the Administrator fails to mail such notice within 10
days after acceptance of appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense of
the Administrator.
SECTION 9.04 Merger or Consolidation of Owner Trustee. Any corporation
into which the Owner Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such corporation shall be eligible pursuant to Section 9.01, without the
execution or filing of any instrument or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding; provided,
further, that the Owner Trustee shall mail notice of such merger or
consolidation to the Rating Agencies.
SECTION 9.05 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate or any Financed Vehicle may at the time be located,
the Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or separate trustee or separate trustees, of all or any part of the
Owner Trust Estate, and to vest in such Person, in such capacity, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within 25 days after the
receipt by it of a request so to do, the Owner Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to Section 9.01 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 9.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provision and conditions:
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(i) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee is
not authorized to act separately without the Owner Trustee joining in
such act), except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed, the Owner
Trustee shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties, and obligations (including
the holding of title to the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable
by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Administrator and the Owner Trustee acting jointly may
at any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as if given to each of them. Every instrument any separate trustee or co-trustee
shall refer Agreement and the conditions of this Article. Each separate trustee
and co-trustee, upon its acceptance of conferred, shall be vested with the
estates or specified in its instrument of appointment, either jointly with the
Owner Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited. by law, to do any lawful act under or in respect, of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
ARTICLE X
Miscellaneous
SECTION 10.01 Supplements and Amendments. This Agreement may be amended
by the Depositor, the Company and the Owner Trustee, with prior written notice
to the Rating Agencies, without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions in this Agreement or
of modifying
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in any manner the rights of the Noteholders or the Certificateholders provided,
however, that such action shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any Noteholder or
Certificateholder.
This Agreement may also be amended from time to time by the Depositor
and the Owner Trustee, with prior written notice to the Rating Agencies, with
the consent of the Holders of Notes evidencing not less than 51% of the
outstanding principal amount of the Notes and the consent of the Holders of
Certificates evidencing not less than a majority percentage interest of the
Trust, for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholders; provided,
however, that no such amendment shall (a) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments on
Contracts or distributions that shall be required to be made for the benefit of
the Noteholders or the Certificateholders or (b) reduce the aforesaid
percentages of Noteholders and Certificateholders outstanding principal amount
required to consent to any such amendment, without the consent of the holders of
all the outstanding Notes and Certificates.
Promptly after the execution of any such amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment or
consent to each Certificateholder, the Indenture Trustee and each of the Rating
Agencies.
It shall not be necessary for the consent of Certificateholders, the
Noteholders or the Indenture Trustee pursuant to this Section to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of Certificateholders provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization of
the execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Owner Trustee may, but shall not
be obligated to, enter into any such amendment which affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
SECTION 10.02 No Legal Title to Owner Trust Estate in
Certificateholders. The Certificateholders shall not have legal title to any
part of the Owner Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their undivided ownership interest therein
only in accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title, or interest of the Certificateholders to and in
their ownership interest
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in the Owner Trust Estate shall operate to terminate this Agreement or the
trusts hereunder or entitle any transferee to an accounting or to the transfer
to it of legal title to any part of the Owner Trust Estate.
SECTION 10.03 Limitations on Rights of Others. Except for Section 2.07,
the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Depositor, the Company, the Certificateholders, the Administrator
and to the extent expressly provided herein the Indenture Trustee and the
Noteholders, and nothing in this Agreement, (other than Section 2.07), whether
express or implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the Owner Trust Estate or under or in
respect of this Agreement or any covenants, conditions or provisions contained
herein.
SECTION 10.04 Notices.
(a) Unless otherwise expressly specified or permitted by the terms
hereof, all notices shall be in writing and shall be deemed given upon receipt
by the intended recipient or three Business Days after mailing if mailed by
certified mail, postage prepaid (except that notice to the Owner Trustee shall
be deemed given only upon actual receipt by the Owner Trustee), if to the Owner
Trustee, addressed to the Corporate Trust Office; if to the Depositor, addressed
to Onyx Acceptance Financial Corporation, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Secretary; if, to the Trust, addressed to
Onyx Acceptance Owner Trust 199_-_, __________________; or, as to each party, at
such other address as shall be designated by such party in a written notice to
each other party.
(b) Any notice required or permitted to be given a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
SECTION 10.05 Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid or unenforceable in any jurisdiction, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 10.06 Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed to
be an original, and all of which shall constitute but one and the same
instrument.
SECTION 10.07 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor, the Company, the Owner Trustee and its successors and each
Certificateholder and its successors and permitted assigns, all as herein
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provided. Any request, notice, direction, consent, waiver or other instrument or
action by an Certificateholder shall bind the successors and assigns of such
owner.
SECTION 10.08 No Petition. The Owner Trustee (not in its individual
capacity but solely as Owner Trustee), by entering into this Agreement hereby
covenants and agrees, each Certificateholder, by accepting a Certificate, and
the Indenture Trustee and any Noteholder by accepting the benefits of this
Agreement, are thereby deemed to covenant and agree that they will not at any
time institute against the Depositor or the Trust, or join in any institution
against the Depositor or the Trust of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any federal or state bankruptcy or similar law. This Section 10.09 shall survive
the termination of this Agreement or the termination of the Owner Trustee under
this Agreement.
SECTION 10.09 No Recourse. Each Certificateholder by accepting an
interest in a Certificate acknowledges that such Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Depositor (in any capacity), Onyx, the Administrator, the
Owner Trustee, the Indenture Trustee or any Affiliate thereof and no recourse
may be had against such parties or their assets, except as may be expressly set
forth or contemplated in the Certificates or the Basic Documents.
SECTION 10.10 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 10.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF [DELAWARE], 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.
SECTION 10.12 Onyx Payment Obligation. The parties hereto acknowledge
and agree that Onyx shall be responsible for payment of the Administrator's fees
under the Administration Agreement and shall reimburse the Administrator for all
expenses and liabilities of the Administrator incurred thereunder. The parties
hereto covenant and agree that neither of them shall look to the other for
payment of any such fees or expenses.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
ONYX ACCEPTANCE FINANCIAL CORPORATION,
Depositor
By:_____________________________________
Name:
Title:
________________________________________,
not in its individual capacity but solely
as Owner Trustee
By:_____________________________________
Name:
Title:
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EXHIBIT A
NUMBER
R-
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFICATE IS NOT TRANSFERABLE,
EXCEPT UNDER THE LIMITED CONDITIONS
SPECIFIED IN THE TRUST AGREEMENT
---------------------------------
AUTO LOAN BACKED CERTIFICATE
evidencing a beneficial ownership interest in certain distributions of the
Trust, as defined below, the property of which includes a pool of retail
installment sale contracts secured by new or used automobiles, vans or light
duty trucks and sold to the Trust by Onyx Acceptance Financial Corporation.
(THIS CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF ONYX
ACCEPTANCE FINANCIAL CORPORATION OR ANY OF ITS AFFILIATES, EXCEPT TO THE EXTENT
DESCRIBED BELOW.)
THIS CERTIFIES THAT _____________________ is the registered owner of a
nonassessable, fully-paid, beneficial ownership interest in certain
distributions of Onyx Acceptance Owner Trust 199__-__ (the "Trust") formed by
Onyx Acceptance Financial Corporation, a Delaware corporation (the "Seller").
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Certificate referred to in the within-mentioned Trust
Agreement.
______________________________ _______________________________________
not in its individual capacity not in its individual capacity
but solely as Owner Trustee but solely as Owner Trustee
-or-
By:____________________________ By:______________________________________
Authenticating Agent
By:________________________________
A-1
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The Trust was created pursuant to a Trust Agreement dated as of
__________, 199___ (the "Trust Agreement"), between the Seller and
_______________________, as owner trustee (the "Owner Trustee"), a summary of
certain of the pertinent provisions of which is set forth below. To the extent
not otherwise defined herein, the capitalized terms used herein have the
meanings assigned to them in the Trust Agreement.
This is one of the duly authorized Certificates designated as "Auto Loan
Backed Certificates" (herein called the "Certificate"). Also issued under the
Indenture dated as of _________, 199___, among the Trust, ____________________,
as indenture trustee, are three classes of Notes designated as "Class A-1 ____%
Auto Loan Backed Notes" (the "Class A-1 Notes"), "Class A-2 ___% Auto Loan
Backed Notes" (the "Class A-2 Notes") and "Class A-3 ___% Auto Loan Backed
Notes" (the "Class A-3 Notes", together with the Class A-2 Notes and the Class
A-1 Notes, the "Notes"). This Certificate is issued under and is subject to the
terms, provisions and conditions of the Trust Agreement, to which Trust
Agreement the holder of this Certificate by virtue of the acceptance hereof
assents and by which such holder is bound. The property of the Trust includes a
pool of retail installment sale contracts secured by new and used automobiles,
vans or light duty trucks (the "Contracts"), all monies due thereunder on or
after Initial Cut-Off Date, security interests in the vehicles financed thereby,
certain bank accounts and the proceeds thereof, proceeds from claims on certain
insurance policies and certain other rights under the Trust Agreement and the
Sale and Servicing Agreement, all right, to and interest of the Seller in and to
the Purchase Agreement dated as of ___________ among Onyx Acceptance Corporation
and the Seller and all proceeds of the foregoing.
Under the Trust Agreement, there will be distributed on the _____ day of
each month or, if such _____ day is not a Business Day, the next Business Day
(the "Distribution Date"), commencing on ___________, 199__, to the Person in
whose name is on this Certificate the pro rata amount to be distributed to the
Certificateholder on such Distribution Date. No principal will be paid on this
Certificate until the Class A-3 Notes have been paid in full.
The holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the Sale and Servicing Agreement, the
Indenture and the Trust Agreement, as applicable.
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Owner Trustee by wire transfer or check mailed to the
Certificateholder without the presentation or surrender of this Certificate or
the making of any notation hereon. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this
Certificate will be made after due notice by the Owner Trustee of the pendency
of such distribution and only upon presentation and surrender of this
Certificate at the office or agency maintained for the purpose by the Owner
Trustee in the Borough of Manhattan, The City of New York.
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Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Owner Trustee, by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the Trust
Agreement or the Sale and Servicing Agreement or be valid for any purpose.
THIS CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, 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.
A-3
35
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Certificate to be duly executed.
ONYX ACCEPTANCE OWNER TRUST 199__-__
By:____________________________________
not in its individual capacity but
solely as Owner Trustee
By:_________________________________
Dated:
A-4
36
(Reverse of Certificate)
The Certificate does not represent an obligation of, or an interest in,
the Seller, the Servicer, the Owner Trustee or any Affiliates of any of them and
no recourse may be had against such parties or their assets, except as may be
expressly set forth or contemplated herein or in the Trust Agreement, the
Indenture or the Basic Documents. In addition, this Certificate is not
guaranteed by any governmental agency or instrumentality and is limited in right
of payment to certain collections with respect to the Receivables, all as more
specifically set forth herein and in the Sale and Servicing Agreement. A copy of
each of the Sale and Servicing Agreement and the Trust Agreement may be examined
during normal business hours at the principal office of the Seller, and at such
other places, if any, designated by the Seller, by any Certificateholder upon
written request.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Seller under the Trust Agreement at any time by the Seller and the Owner Trustee
with the consent of the Holders of Notes representing not less than 51% of the
outstanding principal amount of the Note and the Holders of Certificates
representing not less than a majority percentage interest of the Trust. Any such
consent by the Certificateholders shall be conclusive and binding on such
Certificateholders and on all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange hereof or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Trust Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Certificateholders.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Owner Trustee in the Borough of Manhattan, The City of New York, accompanied
by a written instrument of transfer in form satisfactory to the Owner Trustee
and the Certificate Registrar duly executed by the holder hereof or such
holder's attorney duly authorized in writing, and thereupon a new Certificate
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee. The initial Certificate Registrar appointed under the
Trust Agreement is ______________________. No service charge will be made for
any such registration of transfer or exchange, but the Owner Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge payable in connection therewith.
The Owner Trustee, the Security Insurer and any agent of the Owner
Trustee or the Security Insurer may treat the person in whose name this
Certificate is registered as the owner hereof for all purposes, and none of the
Owner Trustee, the Security Insurer nor any such agent shall be affected by any
notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to the
Certificateholders of all amounts required to be paid to it pursuant to the
Trust Agreement and the Sale and Servicing Agreement and the disposition of all
property held as part of the Trust. The Servicer of the Contracts may at its
option purchase the corpus of the Trust at a price specified in the Sale and
Servicing Agreement, and such purchase of the Contracts and other property of
the Trust will effect early retirement of the Certificate; however, such right
of purchase is exercisable, subject to certain restrictions, only as of the last
day of any Monthly Period as of which the Pool Balance is 10% or less of the
Original Pool Balance. The Certificate is also subject to mandatory prepayment,
pro rata on the basis of the initial Certificate Balance, on the Distribution
Date on or immediately following the last day of the Funding Period in the event
that any portion of the Prefunded Amount remains on deposit in the Prefunding
Account after giving effect to the purchase of all Subsequent Contracts,
including any purchase of Subsequent Contracts on such date. The aggregate
principal amount of the Certificate to be prepaid will be an amount equal to the
Certificate Prepayment Amount.
The Certificate may not be acquired by (a) an employee benefit plan (as
defined in Section 3(3) of ERISA) that is subject to the provisions of Title I
of ERISA, (b) a plan
A-5
37
described in Section 4975(e) (1) of the Code or (c) any entity whose underlying
assets include plan assets by reason of a plan's investment in the entity (each,
a "Benefit Plan"). By accepting and holding this Certificate, the Holder hereof
shall be deemed to have represented and warranted that it is not a Benefit Plan.
The recitals contained herein shall be taken as the statements of the
Depositor or the Servicer, as the case may be, and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Certificate or of any
Receivable or related document.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee, by manual or facsimile signature,
this Certificate shall not entitle the Holder hereof to any benefit under the
Trust Agreement or the Sale and Servicing Agreement or be valid for any purpose.
A-6
38
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
_______________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
_______________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
_____________________________________________________________________Attorney to
transfer said Certificate on the books of the Certificate Registrar, with full
power of substitution in the premises.
Dated:_______________
_____________________________________*/
Signature Guaranteed:
_____________________________________*/
_____________________
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the Now York Stock Exchange or a commercial bank
or trust company.
A-7
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EXHIBIT B
CERTIFICATE OF TRUST OF
ONYX ACCEPTANCE OWNER TRUST 199__-__
THIS Certificate of Trust of ONYX ACCEPTANCE OWNER TRUST 199__-__ (the
"Trust"), dated as of ________, is being duly executed and filed by ________, a
[Delaware banking corporation], as trustee, to form a business trust under the
[Delaware Business Trust Act (12 Del. Code, Section 3801 et seq.)].
1. Name. The name of the business trust formed hereby is ONYX
ACCEPTANCE OWNER TRUST 199__-__.
2. [Delaware] Trustee. The name and business address of the trustee of
the Trust in the State of [Delaware] is ________, [Address], Attention:
________.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
___________,
not in its individual capacity but
solely as owner trustee under a
Trust Agreement dated as of ________,
By:_________________________________
Name:
Title:
B-1