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EXHIBIT 1.1
Onyx Acceptance Grantor Trust 1997-2
____% Auto Loan Pass-Through Certificates
Onyx Acceptance Financial Corporation
as Seller
Onyx Acceptance Corporation
as Servicer
UNDERWRITING AGREEMENT
June __, 1997
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center
North Tower, 15th Floor
New York, New York l0281-1315
Ladies and Gentlemen:
1. Introductory. Onyx Acceptance Financial Corporation (the "Company")
proposes to cause Onyx Acceptance Grantor Trust 1997-2 (the "Trust") to sell to
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated (the "Underwriter") ____%
Auto Loan Pass-Through Certificates, Series 1997-2 (the "Certificates"). The
Certificates will be issued pursuant to a Pooling and Servicing Agreement
between the Company, as Seller, Onyx Acceptance Corporation as Servicer (the
"Servicer" or "Onyx"), Bankers Trust Company as Trustee (the "Trustee"), dated
as of June 1, 1997 (the "Pooling and Servicing Agreement"). Pursuant to an
insurance and reimbursement agreement (the "Insurance Agreement") among the
Company, Onyx Acceptance Corporation, the Trustee and Capital Markets Assurance
Corporation ("the Insurer"), the Insurer has issued its surety bond (the "Surety
Bond") to the Trustee for the benefit of the Certificateholders guaranteeing
timely payment of interest and principal on the Certificates. In addition, Onyx
will enter into a yield supplement agreement dated as of June __, 1997 with the
Company (the "Yield Supplement Agreement") which will assign it to the Trust.
The assets of the Trust will include, among other things, (i) a pool (the
"Contract Pool") of fixed
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rate Rule of 78's and Simple Interest Method motor vehicle retail installment
sales contracts (the "Contracts") secured by new and used automobiles and
light-duty trucks (the "Financed Vehicles"), certain monies due or to become due
thereunder on or after the Cutoff Date (as hereinafter defined), such Contracts
to be sold to the Trust by the Seller and serviced by the Servicer, (ii) the
Surety Bond, (iii) security interests in the Financed Vehicles and the rights to
receive proceeds from claims on certain insurance policies covering the Financed
Vehicles or the individual obligors under each related Contract and the right to
proceeds under a blanket insurance policy, (iv) all amounts on deposit in the
Collection Account, (v) the right of the Company to cause Onyx to repurchase
certain Contracts under certain circumstances, (vi) all right, title and
interest of the Company under the Yield Supplement Agreement dated as of June__,
1997 between the Company and Onyx (the "Yield Supplement Agreement") and (vii)
all proceeds of the foregoing. The Certificates will be issued in an aggregate
principal amount of $__________ which is equal to the sum of $__________
outstanding principal balance of Contracts as of June __, 1997 (the "Cut-Off
Date"). Capitalized terms used herein and not otherwise herein defined shall
have the meanings assigned to such terms in the Pooling and Servicing Agreement.
The Company hereby agrees with the Underwriter, as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with the Underwriter that:
(i) A registration statement on Form S-1 (No. 333-_____),
including a prospectus and such amendments thereto as may have been
required on the date hereof, relating to the Certificates, has been
filed with the Securities and Exchange Commission (the "Commission").
The conditions to the use of a registration statement on Form S-1 under
the Securities Act of 1933, as amended (the "Act"), as set forth in the
General Instructions to Form S-1, have been, or will prior to the
effective date of the Registration Statement be, satisfied in all
material respects with respect to the Company and the Registration
Statement.
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(ii) The Company will next file with the Commission either, (A)
prior to the effectiveness of such registration statement, a further
amendment thereto (including the form of final prospectus) or (B) after
effectiveness of such registration statement, a final prospectus in
accordance with Rules 430A and 424(b) (each, as hereinafter defined).
In the case of clause (B), the Company has included in such
registration statement, as amended at the Effective Date (as
hereinafter defined), all information (other than Rule 430A Information
(as hereinafter defined)) required by the Act and the rules and
regulations thereunder (the "Rules and Regulations") to be included in
the prospectus with respect to the Certificates and the offering
thereof. As filed, such amendment and form of final prospectus, or such
final prospectus, shall include all Rule 430A Information and, except
to the extent the Underwriter shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to the
Underwriter prior to the Execution Time (as hereinafter defined) or, to
the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the latest Preliminary Prospectus (as hereinafter defined)
which has previously been furnished to the Underwriter) as the Company
has advised the Underwriter, prior to the Execution Time, will be
included or made therein.
The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective under the Act. "Execution
Time" shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Preliminary Prospectus" shall mean
any preliminary prospectus referred to in the preceding paragraph and
any preliminary prospectus included in the Registration Statement
which, as of the Effective Date, omits Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the Certificates
that is first filed with the Commission pursuant to Rule 424(b) and any
prospectus subsequently filed pursuant to
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Rule 424 or, if no filing pursuant to Rule 424(b) is required, shall
mean the form of final prospectus included in the Registration
Statement at the Effective Date. "Registration Statement" shall mean
the registration statement referred to in the preceding paragraph and
any registration statement required to be filed under the Act or the
Rules and Regulations, including incorporated documents, exhibits and
financial statements, in the form in which it has, or shall, become
effective and, in the event that any post effective amendment thereto
becomes effective prior to the Closing Date (as hereinafter defined),
shall also mean such registration statement as so amended. Such term
shall include Rule 430A Information deemed to be included therein at
the Effective Date as provided by Rule 430A. "Rule 424" and "Rule 430A"
refer to such rules and regulations under the Act. "Rule 430A
Information" means information with respect to the Certificates and the
offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A.
(iii) On the Effective Date, the Registration Statement did, or
will, comply in all material respects with the applicable requirements
of the Act and the Rules and Regulations; on the Effective Date and
when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date, the Prospectus (and any
supplements thereto) will comply in all material respects with the
applicable requirements of the Act and the Rules and Regulations; on
the Effective Date, the Registration Statement did not, or will not,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and, on the Effective Date,
the Prospectus, if not filed pursuant to Rule 424(b), did not, or will
not, and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the
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Company makes no representations or warranties as to the information
contained in, or omitted from, the Registration Statement or the
Prospectus (or any supplements thereto) in reliance upon, and in
conformity with, information furnished in writing to the Company on the
Underwriter's behalf specifically for use in connection with the
preparation of the Registration Statement or the Prospectus (or any
supplements thereto).
(iv) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with full power and authority (corporate
and other) to own its properties and conduct its businesses as
described in the Prospectus, and is duly qualified to transact business
as a foreign corporation in good standing under the laws of each
jurisdiction where the ownership or leasing of its properties or the
conduct of its business requires such qualification.
(v) As of the Closing Date in the case of the Contracts in the
case of the related Subsequent Contracts the representations and
warranties of the Company, as Seller, in the Pooling and Servicing
Agreement will be true and correct, and each Contract will satisfy the
conditions set forth in Sections 2.2(b) thereof.
(vi) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required to be
obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement, except such as have been
obtained and made under the Act, such as may be required under state
securities laws and the filing of any financing statements required to
perfect the Trust's interest in the Contracts.
(vii) The Company is not in violation of its Certificate of
Incorporation or By-Laws or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
agreement or instrument to which it is a party or by which it or its
properties are bound which would have a material adverse effect on
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the transactions contemplated herein or in the Pooling and Servicing
Agreement, the Purchase Agreement, the Insurance Agreement or the Yield
Supplement Agreement. The execution, delivery and performance of this
Agreement, the Pooling and Servicing Agreement, the Purchase Agreement,
the Insurance Agreement or the Yield Supplement Agreement and the
issuance and sale of the Certificates and compliance with the terms and
provisions thereof will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any
statute, rule, regulation or order of any governmental agency or body
or any court having jurisdiction over the Company or any of its
properties or any agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the
properties of the Company is subject, or By-Laws of the Company and the
Company has full corporate power and authority to authorize, cause the
Trust to issue, and sell the Certificates as contemplated by this
Agreement, to enter into this Agreement, the Pooling and Servicing
Agreement, the Purchase Agreement, the Insurance Agreement and the
Yield Supplement Agreement and to consummate the transactions
contemplated herein and therein.
(viii) This Agreement has been duly authorized, executed and
delivered by the Company.
3. Purchase, Sale, Payment and Delivery of Certificates. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Company agrees to sell to the
Underwriter, and the Underwriter agrees to purchase from the Company
$___________ aggregate principal amount of the Certificates. The Certificates
are to be purchased at a purchase price of ________% of the aggregate principal
amount thereof plus accrued interest, if any, from June __, 1997.
The Company will deliver the Certificates to the Underwriter against
payment of the purchase price in immediately available funds by wire transfer to
the order of the Company at the offices of the Company at 0000, Xxxxxx Xxxxxx
Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000 at 10:00 a.m., New York City time on
June __, 1997 or at such other time not later than seven full business days
thereafter as the Underwriter
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and the Company determine, such time being herein referred to as the "Closing
Date". The Certificates so to be delivered shall be represented by one or more
global certificates registered in the name of Cede & Co., as nominee for The
Depository Trust Company and definitive certificate(s) registered in the name(s)
provided by the Underwriter, each in such numbers as the Underwriter shall
reasonably request not later than 48 hours prior to the Closing Date. The
Company shall make such definitive certificates representing the Certificates
available for inspection by the Underwriter at the office at which the
Certificates are to be delivered no later than 10:00 a.m., New York City time,
on the business day prior to the Closing Date.
4. Offering by the Underwriter. (a) It is understood that, after the
Registration Statement becomes effective, the Underwriter proposes to offer the
Certificates for sale to the public (which may include selected brokers and
dealers) as set forth in the Prospectus.
(b) The Underwriter may prepare and provide to prospective investors
certain ABS Term Sheets, Structural Term Sheets and Collateral Term Sheets in
connection with its offering of the Certificates, subject to the following
conditions:
(i) The Underwriter shall have complied with the requirements of
the no-action letter, dated February 17, 1995, issued by the Commission
to the Public Securities Association (the "No-Action Letter").
(ii) For purposes hereof, "ABS Term Sheets", "Structured Term
Sheets" and "Collateral Term Sheets" shall have the meanings given such
terms in the No-Action Letter but shall include only those ABS Term
Sheets, Structured Term Sheets or Collateral Term Sheets that have been
prepared or delivered to prospective investors by or at the direction
of the Underwriter.
(iii) All ABS Term Sheets provided to prospective investors that
are required to be filed pursuant to the No-Action Letter shall bear a
legend substantially in the form attached hereto as Exhibit A. The
Company shall have the right to require specific legends or notations
to appear on any ABS Term Sheets, the right to require changes
regarding the use of terminology and the right to determine the types
of information appearing therein. Notwithstanding the foregoing, this
subsection (iii) will be satisfied if all ABS Term Sheets referred to
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herein bear a legend in a form previously approved in writing by the
Company.
(iv) The Underwriter shall have provided the Company with
representative forms of all ABS Term Sheets prior to their first use,
to the extent such forms have not previously been approved in writing
by the Company for use by the Underwriter. The Underwriter shall have
provided to the Company, for filing as a post-effective amendment to
the Registration Statement as provided in Section 5(i), copies (in such
format as required by the Company) of all ABS Term Sheets that are
required to be filed with the Commission pursuant to the No-Action
Letter. The Underwriter may provide copies of the foregoing in a
consolidated or aggregated form including all information required to
be filed. All ABS Term Sheets described in this subsection (iv) shall
have been provided to the Company not later than 10:00 a.m. (New York
City time) not less than one business day before filing thereof is
required to be made with the Commission pursuant to the No-Action
Letter. The Underwriter shall have not provided to any investor or
prospective investor in the Certificates any ABS Term Sheets on or
after the day on which ABS Term Sheets are required to be provided to
the Company pursuant to this subsection (iv) (other than copies of ABS
Term Sheets previously submitted to the Company in accordance with this
subsection (iv) for filing pursuant to Section 5(i)), unless such ABS
Term Sheets are preceded or accompanied by the delivery of a Prospectus
to such investor or prospective investor.
(v) All information included in the ABS Term Sheets shall have
been generated based on substantially the same methodology and
assumptions that are used to generate the information in the Prospectus
as set forth therein; provided that the ABS Term Sheets may have
included information based on alternative methodologies or assumptions
if specified therein. If any ABS Term Sheets that are required to be
filed were based on assumptions with respect to the Contract Pool that
differ from the final Contract Pool information in any material respect
or on Certificate structuring terms that were revised in any material
respect prior to the printing of the Prospectus, the Underwriter shall
have prepared revised ABS Term Sheets based on the final Contract Pool
information and structuring assumptions, shall have circulated such
revised ABS Term Sheets to all recipients of the preliminary versions
thereof that indicated orally to the Underwriter they would purchase
all or any portion of the Certificates, and shall have included such
revised ABS
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Term Sheets (marked, "as revised") in the materials delivered to the
Company pursuant to subsection (iv) above.
(vi) The Company shall not be obligated to file any ABS Term
Sheets that have been determined to contain any material error or
omission, provided that, at the request of the Underwriter, the Company
will file ABS Term Sheets that contain a material error or omission if
clearly marked "superseded by materials dated _______" and accompanied
by corrected ABS Term Sheets that are marked, "supersedes material
previously dated _______, as corrected." If, within the period during
which the Prospectus relating to the Certificates is required to be
delivered under the Act, any ABS Term Sheets are determined, in the
reasonable judgment of the Company or the Underwriter, to contain a
material error or omission, the Underwriter shall prepare a corrected
version of such ABS Term Sheets, shall circulate such corrected ABS
Term Sheets to all recipients of the prior versions thereof that either
indicated orally to the Underwriter they would purchase all or any
portion of the Certificates, or actually purchased all or any portion
thereof, and shall deliver copies of such corrected ABS Term Sheets
(marked, "as corrected") to the Company for filing with the Commission
in a subsequent post-effective amendment to the Registration Statement
(subject to the Company's obtaining an accountant's comfort letter in
respect of such corrected ABS Term Sheets, which shall be at the
expense of the Underwriter).
(vii) The Underwriter shall be deemed to have represented as of
the Closing Date, that, except for ABS Term Sheets provided to the
Company pursuant to subsection (iv) above, the Underwriter did not
provide any prospective investors with any information in written or
electronic form in connection with the offering of the Certificates
that is required to be filed with the Commission in accordance with the
No-Action Letter.
(viii) In the event of any delay in the delivery by the
Underwriter to the Company of all ABS Term Sheets required to be
delivered in accordance with subsection (iv) above, or in the delivery
of the accountant's comfort letter in respect thereof pursuant to
Section 5(x), the Company shall have the right to delay the release of
the Prospectus to investors or to the Underwriter, to delay the Closing
Date and to take other appropriate actions in each case as necessary in
order to allow the Company to comply with its agreement set forth in
Section 5(x) to file the ABS Term Sheets by the time specified therein.
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5. Certain Agreements of the Company. The Company agrees with the
Underwriter that:
(i) The Company will use its best efforts to cause the
Registration Statement, and any amendment thereto, if not effective at
the Execution Time, to become effective. If the Registration Statement
has become or becomes effective pursuant to Rule 430A, or filing of the
Prospectus is otherwise required under Rule 424(b), the Company will
file the prospectus, properly completed, pursuant to Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to
the Underwriter of such timely filing. The Company will advise the
Underwriter promptly of any proposal to amend or supplement the
Registration Statement or the Prospectus, and will not effect any such
amendment or supplementation to which the Underwriter shall reasonably
object. The Company will also advise you promptly of the effectiveness
of any amendment or supplementation of the Registration Statement or
Prospectus, of any request by the Commission for any amendment or
supplementation of the Registration Statement or the Prospectus or for
any additional information, of the receipt by the Company of any
notification with respect to the suspension of qualification of the
Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and of the institution
by the Commission of any stop order proceeding in respect of the
Registration Statement, and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(ii) If, at any time when a prospectus relating to the
Certificates is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Company promptly will prepare
and file with the Commission (subject to the Underwriter's prior review
pursuant to paragraph (i) of this Section 5) an amendment or supplement
which
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will correct such statement or omission or an amendment or supplement
which will effect such compliance.
(iii) As soon as practicable, the Company will cause the Trust to
make generally available to the Certificateholders of the Trust an
earnings statement or statements of the Trust covering a period of at
least 12 months beginning after the Effective Date of the Registration
Statement which will satisfy the provisions of Section 11(a) of the Act
and Rule 158 of the Commission promulgated thereunder.
(iv) The Company will furnish to the Underwriter copies of the
Registration Statement, each related preliminary prospectus, the
Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the
Underwriter may reasonably request.
(v) The Company will cooperate with the Underwriter in arranging
for the qualification of the Certificates for sale and the
determination of their eligibility for investment under the laws of
such jurisdictions as the Underwriter designates and will continue such
qualifications in effect so long as required for the distribution of
the Certificates; provided, however, that the Company shall not be
obligated to qualify to do business in any jurisdiction in which it is
not currently so qualified or to take any action which would subject it
to general or unlimited service of process in any jurisdiction where it
is not now so subject.
(vi) For a period from the date of this Agreement until the
retirement of the Certificates, the Company will furnish to the
Underwriter copies of each certificate and the annual statements of
compliance delivered to the Trustee pursuant to Article III of the
Pooling and Servicing Agreement and the annual independent public
accountant's reports furnished to the Trustee pursuant to Article III
of the Pooling and Servicing Agreement, as soon as practicable after
such statements and reports are furnished to the Trustee.
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(vii) So long as any of the Certifi- xxxxx are outstanding, the
Company will furnish to you as soon as practicable, (A) all documents
distributed, or caused to be distributed, by the Servicer to the
Certificateholders, (B) all documents filed, or caused to be filed, by
the Company with the Commission pursuant to the Securities Act of 1934,
as amended, any order of the Commission thereunder or pursuant to a
"no-action" letter from the staff of the Commission and (C) from time
to time, such other information in the possession of the Company
concerning the Trust and any other information concerning the Company
filed with any governmental or regulatory authority which is otherwise
publicly available as you may reasonably request.
(viii) On or before the Closing Date the Company shall cause its
computer records relating to the Contracts to be marked to show the
Trust's absolute ownership of the Contracts and shall cause the
Servicer to mark its computer records relating to the Contracts to show
the sale to the Company of the Contracts and its subsequent transfer to
the Trust, and from and after the Closing Date the Company shall not
and shall instruct the Servicer not to take any action inconsistent
with the Trust's ownership of such Contracts, other than as permitted
by the Pooling and Servicing Agreement.
(ix) The Company will file with the Commission a post-effective
amendment setting forth all ABS Terms Sheet provided to the Company by
the Underwriter and identified by it as such within the time period
allotted for such filing pursuant to the No-Action Letter; provided,
however, that prior to such filing of the ABS Term Sheets (other than
any ABS Term Sheets that are not based on the Contract Pool
information) by the Company, the Underwriter must comply with its
obligations pursuant to Section 4 and the Company must receive a letter
from Coopers & Xxxxxxx, certified public accountants, satisfactory in
form and substance to the Company, to the effect that such accountants
have performed certain specified procedures, all of which have been
agreed to by the Company, as a result of which they have determined
that the information included in the ABS Term Sheets (if any), provided
by the Underwriter to the Company
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for filing on a post-effective amendment pursuant to Section 4 and, if
the Company then so specifies, this subsection (i), and that the
accountants have examined in accordance with such agreed upon
procedures, is accurate except as to such matters that are not deemed
by the Company to be material. The foregoing letter shall be at the
expense of the Underwriter. The Company shall file any corrected ABS
Term Sheets described in Section 4(b)(vi) as soon as practicable
following receipt thereof.
6. Payment of Expenses. Except as provided in Sections 4(b) and 5(ix)
the Company will pay all expenses incident to the performance of its obligations
under this Agreement, including (i) the printing and filing of the Registration
Statement as originally filed and of each amendment thereto, (ii) the Trustee's
fees and the fees and disbursements of the counsel to the Trustee, (iii) any
up-front fees and premiums payable to the Insurer and the fees and disbursements
of counsel to the Insurer, (iv) the fees and disbursements of the accountants,
(v) the fees of the rating agencies and (vi) blue sky expenses.
7. Conditions to the Obligations of the Underwriter. The obligation of
the Underwriter to purchase and pay for the Certificates will be subject to the
accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the written statements of officers of the Company
made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(i) On or prior to the date of this Agreement, the Underwriter
shall have received a letter, dated the date of this Agreement, of
Coopers & Xxxxxxx and substantially in the form heretofore agreed,
which letter shall be in form and substance agreed to by the
Underwriter.
(ii) If the Registration Statement has not become effective prior
to the date of this Agreement, unless the Underwriter agrees in writing
to a later time, the Registration Statement shall have become effective
not later than (A) 6:00 p.m., New York City time, on the date of
determination of the public offering price, if such determination
occurred at or prior to 12:00 noon, New York City time, on such
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date or (B) 3:00 p.m. on the business day following the day on which
the public offering price was determined, if such determination
occurred after 12:00 noon, New York City time, on such date; if filing
of the Prospectus, or any supplement thereto, is required pursuant to
Rule 424(b), the Prospectus shall be filed in the manner and within the
time period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(iii) Subsequent to the execution and delivery of this Agreement,
there shall have not occurred (a) any change, or any development
involving a prospective change, in or affecting particularly the
business or properties of the Company or Onyx which, in the reasonable
judgment of the Underwriter materially impairs the investment quality
of the Certificates; (b) any suspension or material limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of Onyx on any exchange or in
the over-the-counter market by such exchange or over-the-counter market
or by the Commission; (c) any banking moratorium declared by Federal,
New York or California authorities; (d) any outbreak or material
escalation of major hostilities or any other substantial national or
international calamity or emergency if, in the reasonable judgment of
the Underwriter, the effect of any such outbreak, escalation, calamity
or emergency on the United States financial markets makes it
impracticable or inadvisable to proceed with completion of the sale of,
and any payment for, the Certificates.
(iv) The Underwriter shall have received an opinion, dated the
Closing Date, of Xxxxxxx & Xxxxx L.L. P., counsel of the Company,
substantially to the effect that:
(a) The Company (1) is duly organized and is validly existing
and in good standing under the laws of the State of Delaware, (2)
has the corporate power and corporate authority to own its
properties and conduct its business as described in the Prospectus
and (3) had
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at all relevant times, and now has, the power, authority and
legal right to acquire, own and sell the Contracts;
(b) The Company has, or at the time such agreement was
executed and delivered, had, the corporate power and corporate
authority to execute and deliver this Agreement, the Pooling and
Servicing Agreement, the Yield Supplement Agreement, the Purchase
Agreement, and the Insurance Agreement and to consummate the
transactions contemplated herein and therein;
(c) No consent, approval, authorization or order of, or
filing with, any California, Delaware or federal governmental
agency or body or any court is or was required by the Company to
perform the transactions contemplated by this Agreement, Pooling
and Servicing Agreement, the Purchase Agreement, the Yield
Supplement Agreement, or the Insurance Agreement except for (1)
filing of a Uniform Commercial Code financing statement in the
State of California with respect to the transfer of the Contracts
to the Trust pursuant to the Pooling and Servicing Agreement and
the sale of the Contracts to the Company pursuant to the Purchase
Agreement and (2) such consents, approvals, authorizations, orders
or filings as may be required under the federal and state
securities laws;
(d) None of the execution, delivery and performance by the
Company of this Agreement, the Pooling and Servicing Agreement,
the Purchase Agreement, the Yield Supplement Agreement, or the
Insurance Agreement, the transfer of the Contracts to the Trust,
the assignment of the security interests of the Company in the
Financed Vehicles, the issuance and sale of the Certificates or
the consummation of any other of the transactions contemplated
herein or in the Pooling and Servicing Agreement, the Purchase
Agreement, the Yield Supplement Agreement, or the Insurance
Agreement conflicts or will conflict with, has resulted or will
result in a breach, violation or acceleration of any of the terms
of, or has constituted or will constitute a default
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under, the By-Laws or the Certificate of Incorporation of the
Company, as amended, or, to the best of such counsel's knowledge,
any rule, order, statute or regulation known to such counsel to be
currently applicable to the Company of any court, regulatory body,
administrative agency or governmental body having jurisdiction
over the Company or the terms of any material indenture or other
material agreement or instrument known to such counsel to which
the Company is a party or by which it or its properties are bound;
(e) To the best knowledge of such counsel, after due inquiry,
there are no actions, proceedings or investigations pending or
threatened before any court, administrative agency or other
tribunal (1) asserting the invalidity of this Agreement, the
Pooling and Servicing Agreement, the Purchase Agreement, the Yield
Supplement Agreement or the Insurance Agreement or the
Certificates, (2) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions
contemplated by this Agreement, the Pooling and Servicing
Agreement, the Purchase Agreement, the Yield Supplement Agreement
or the Insurance Agreement (3) seeking adversely to affect the
federal income tax attributes of the Certificates as described in
the Prospectus under the headings "Prospectus Summary -- Tax
Status" and "Certain Tax Consequences";
(f) This Agreement, the Pooling and Servicing Agreement, the
Purchase Agreement the Yield Supplement Agreement and the
Insurance Agreement have each been duly authorized, executed and
delivered by the Company;
(g) The Contracts constitute "chattel paper" as defined in
Section 9-105(a)(2) of the Uniform Commercial Code of the State of
California;
(h) The statements in the Pro- spectus under the caption
"Certain Legal Aspects of the Contracts," and "ERISA
Considerations" to the extent they constitute matters of
California
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or federal law or legal conclusions, are correct in all
material respects;
(i) The Certificates have been duly and validly authorized
and, when executed, authenticated and issued in accordance with
the terms of the Pooling and Servicing Agreement, and delivered to
and paid for by the Underwriter pursuant to this Agreement, will
be duly and validly issued and outstanding and will be entitled to
the benefits of the Pooling and Servicing Agreement;
(j) Assuming the authorization, execution and delivery
thereof by the Trustee and the Servicer with respect to the
Pooling and Servicing Agreement, and by Onyx with respect to
Purchase Agreement and the Yield Supplement Agreement and the
Insurer with respect to the Insurance Agreement, each such
agreement constitutes the legal, valid and binding agreement of
the Company, enforceable against the Company in accordance with
its terms, subject, as to enforcement, to (1) the effect of
bankruptcy, insolvency, reorganization, moratorium,
conservatorship, receivership or other similar laws of general
application relating to or affecting creditors' rights generally
(2) the application of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law); and (3) the unenforceability under certain
circumstances of provisions indemnifying a party against liability
where such indemnification is contrary to public policy;
(k) The Registration Statement became effective under the Act
as of the date and time specified in such opinion; after due
inquiry, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act; the
Registration Statement, and each amendment thereof or supplement
thereto as of its Effective Date and the Prospectus as of its date
of
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issuance appeared on its face to be appropriately responsive in
all material respects to the applicable requirements of the
Securities Act and the Rules and Regulations, and such counsel
need not opine as to the financial statements and related notes,
schedules and other financial and statistical date included
therein;
(l) The Certificates, the Pooling and Servicing Agreement,
the Purchase Agreement, the Yield Supplement Agreement and the
Insurance Agreement conform in all material respects to the
descriptions thereof contained in the Registration Statement and
the Prospectus;
(m) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended; and
(n) The Trust is not now, and immediately following the sale
of the Certificates pursuant to this Agreement will not be,
required to be registered under the Investment Company Act of
1940, as amended.
In addition, such counsel shall opine as to certain matters
relating to the acquisition by the Company of a perfected first
priority security interest in the vehicles financed by motor vehicle
installment loans made by the Company.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent deemed proper and as stated therein, on
certificates of responsible officers of the Company and public
officials. References to the Prospectus in this paragraph (iv) include
any supplements thereto.
(v) The Underwriter shall have received an opinion, dated the
Closing Date, of Xxxxxxx & Xxxxx L.L.P., counsel to Onyx, substantially
to the effect that:
(a) Onyx (1) is duly incorporated and is validly existing and
in good standing under the laws of the State of California, (2)
has the corporate power and corporate authority to own its
properties and conduct its business as
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described in the Prospectus and (3) had at all relevant times, and
now has, the power, authority and legal right to acquire, own and
sell the Contracts;
(b) Onyx has the corporate power and corporate authority to
execute and deliver the Pooling and Servicing Agreement the Yield
Supplement Agreement and the Purchase Agreement and at the time it
was executed and delivered, had the power and authority to execute
and deliver the Purchase Agreement, the Yield Supplement
Agreement, and the Pooling and Servicing Agreement and to
consummate the transactions contemplated herein and therein;
(c) No consent, approval, authorization or order of, or
filing with, any California or federal governmental agency or body
or any court is required by Onyx to perform the transactions
contemplated by the Pooling and Servicing Agreement, the Yield
Supplement Agreement or the Purchase Agreement except for (1)
filing of a Uniform Commercial Code financing statement in the
State of California with respect to the sale of the Contracts to
the Company pursuant to the Purchase Agreement and the transfer of
the Contracts to the Trust pursuant to the Pooling and Servicing
Agreement and (2) such consents, approvals, authorizations, orders
or filings as may be required under the federal and state
securities laws; the opinion set forth in this sentence is limited
to such authorizations, approvals, consents and orders which, in
such counsel's experience, are normally applicable to transactions
of the type contemplated by the Pooling and Servicing Agreement,
the Yield Supplement Agreement, and the Purchase Agreement;
(d) None of the execution, delivery and performance by Onyx
of the Pooling and Servicing Agreement, the Yield Supplement
Agreement or the Purchase Agreement, or the transfer of the
Contracts to the Company, has conflicted with or will conflict
with, has resulted or will result in a breach, violation or
acceleration of any of the terms of, or has constituted or will
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constitute a default under, the By-Laws or the Certificate of
Incorporation of Onyx, as amended, or, to the best of such
counsel's knowledge, any rule, order, statute or regulation known
to such counsel to be currently applicable to Onyx of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over Onyx or the terms of any material indenture or
other material agreement or instrument known to such counsel to
which Onyx is a party or by which it or its properties are bound;
(e) The Pooling and Servicing Agreement, the Yield Supplement
Agreement and the Purchase Agreement have each been duly
authorized, executed and delivered by Onyx; and
(f) The indemnification agreement dated as of the date
hereof, between Onyx and the Underwriter has been duly authorized,
executed and delivered by Xxxx.
(g) Assuming the authorization, execution and delivery
thereof by the Trustee and the Company with respect to the Pooling
and Servicing Agreement and the Yield Supplement Agreement and by
the Company with respect to Purchase Agreement, each such
agreement constitutes the legal, valid and binding agreement of
Onyx, enforceable against Onyx in accordance with its terms,
subject, as to enforcement, to (1) the effect of bankruptcy,
insolvency, reorganization, moratorium, conservatorship,
receivership or other similar laws of general application relating
to or affecting creditors' rights generally (2) the application of
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
and (3) the unenforceability under certain circumstances of
provisions indemnifying a party against liability where such
indemnification is contrary to public policy;
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent deemed proper and as stated therein, on
certificates of responsible officers of Onyx and public officials.
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In addition, such counsel shall state that they have participated in
conferences with the officers and other representatives of the Company and Onyx,
representatives of the independent public accountants of the Company and Onyx
and representatives of the Underwriter and the Insurer at which the contents of
the Registration Statement and the Prospectus and related matters were discussed
and, although such counsel has not independently verified and are not passing
upon and do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement and the
Prospectus, on the basis of the foregoing, no facts have come to such counsel's
attention that lead them to believe that the Registration Statement, as of the
Effective Date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus as of its date or as
of the Closing Date contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need make no comment
and express no belief with respect to the financial statements and related
notes, schedules and the other financial and statistical data included in the
Registration Statements or the Prospectus).
(vi) The Underwriter shall have received an opinion or opinions
of Xxxxxxx & Xxxxx L.L. P., counsel to the Company, dated the Closing
Date and satisfactory in form and substance to you, with respect the
characterization of the transfer of the Contracts by Xxxx to the
Company as a sale and with respect to the perfection of the Trust's
interests in the Contracts and with respect to the non-consolidation
of the Company with Onyx in the event of bankruptcy filing with respect
to Onyx and with respect to certain other matters.
(vii) The Underwriter shall have received an opinion of Xxxxxxx
& Xxxxx L.L.P., tax counsel to the Company, dated the Closing Date and
satisfactory in form and substance to you substantially to the effect
that:
(a) the Trust created by the Pooling and Servicing Agreement
will not be classified as an association taxable as a corporation
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for federal income tax purposes and, instead, under subpart
E, part I of subchapter J of the Internal Revenue Code of 1986, as
amended, the Trust will be treated as a grantor trust, and subject
to possible recharacterization of certain amounts paid by the
Trust to the Servicer, the holders of the Certificates will be
treated as owning an undivided pro-rata interest in the income and
corpus attributable to the Trust;
(b) The statements in the Registration Statement and
Prospectus under the headings "Prospectus Summary -- Tax Status"
and "Certain Tax Consequences" to the extent that they constitute
matters of law or legal conclusions with respect thereto, have
been prepared or reviewed by such counsel and are correct in all
material respects; and
(c) For California franchise tax purposes, the Trust created
by the Pooling and Servicing Agreement will not be subject to
California franchise or income taxes, and Certificateholders who
are not residents of or otherwise subject to the tax in California
will not be subject to California franchise or income taxes with
respect to interest received from the Certificates or with respect
to any of the Contracts.
(viii) The Underwriter shall have received an opinion, dated the
Closing Date, of Xxxx, Xxxxxxx, Xxxxx & Xxxxxxxxxx, counsel to the
Insurer, substantially to the effect that:
(a) The Insurer is a corporation validly existing, in good
standing and licensed to transact the business of surety and
financial guaranty insurance under the laws of the State of New
York;
(b) The Insurer has the corporate power to execute and
deliver, and to take all action required of it under the Surety
Bond, the Insurance Agreement and the Indemnification Agreement;
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(c) Except as have already been obtained, no authorization,
consent, approval, license, formal exemption or declaration from,
nor any registration or filing with, any court or governmental
agency or body of the United States of America or the State of New
York, which if not obtained would affect or impair the validity or
enforceability of the Surety Bond, the Insurance Agreement or the
Indemnification Agreement against the Insurer, is required in
connection with the execution and delivery by the Insurer of the
Surety Bond, the Insurance Agreement or the Indemnification
Agreement or in connection with the Insurer's performance of its
obligations thereunder;
(d) The Surety Bond, the Insurance Agreement and the
Indemnification Agreement have been duly authorized, executed and
delivered by the Insurer, and the Surety Bond and, assuming due
authorization, execution and delivery of the Insurance Agreement
by the parties thereto (other than the Insurer), the Insurance
Agreement constitute the legally valid and binding obligations of
the Insurer, enforceable in accordance with their respective terms
subject, as to enforcement, to (1) bankruptcy, reorganization,
insolvency, moratorium and other similar laws relating to or
affecting the enforcement of creditors' rights generally,
including, without limitation, laws relating to fraudulent
transfers or conveyances, preferential transfers and equitable
subordination, presently or from time to time in effect and
general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law), as
such laws may be applied in any such proceeding with respect to
the Insurer and (2) the qualification that the remedy of specific
performance may be subject to equitable defenses and to the
discretion of the court before which any proceedings with respect
thereto may be brought; and
(e) The Surety Bond is not required to be registered under
the Securities Act of 1933, as amended.
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In rendering such opinion, such counsel may rely as to matters of fact,
to the extent deemed proper and as stated therein, on certificates of
responsible officers of the Insurer and public officials. References to the
Prospectus in this paragraph (viii) include any supplements thereto.
(ix) The Underwriter shall have received an opinion of counsel
to the Trustee, dated the Closing Date and satisfactory in form and
substance to you, substantially to the effect that:
(a) The Trustee is a banking corporation validly existing
under the laws of the State of New York;
(b) The Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Pooling and
Servicing Agreement, and has taken all necessary action to
authorize the execution, delivery and performance by it of the
Pooling and Servicing Agreement; and
(c) The Pooling and Servicing Agreement has been duly
executed and delivered by the Trustee and constitutes a legal,
valid and binding obligation of the Trustee, enforceable against
the Trustee in accordance with its terms, except that certain of
such obligations may be enforceable solely against the Trust
Estate and except that such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, liquidation,
or other similar laws applicable to banking corporations affecting
the enforcement of creditors' rights generally, and by general
principles of equity , including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(x) The Underwriter shall have received from Skadden, Arps,
Slate, Xxxxxxx & Xxxx, counsel to the Underwriter, such opinion or
opinions, dated the Closing Date and satisfactory in form and substance
to you, with respect to the validity of the
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Certificates, the Registration Statement, the Prospectus and other
related matters as the Underwriter may require, and the Company shall
have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(xi) The Underwriter shall have received a letter, dated the
Closing Date, of Coopers and Xxxxxxx which meets the requirements of
the subsection (i) of this Section 7, except that the specified date
referred to in such subsection will be a date not more than five days
prior to the Closing Date for the purposes of this subsection.
(xii) The Underwriter shall have received evidence satisfactory
to them that the Certificates have been rated in the highest rating
category by Xxxxx'x Investors Service, Inc. and by Standard & Poor's
Ratings Service.
(xiii) The Underwriter shall have received a certificate, dated
the Closing Date, of a Vice President or more senior officer of the
Company in which such officer shall state that, to the best of his or
her knowledge after reasonable investigation, the representations and
warranties of the Company in this Agreement are true and correct on and
as of the Closing Date, that the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, that the
representations and warranties of the Company, as Seller, in the
Pooling and Servicing Agreement and the conditions set forth in Section
2.2(b) of the Pooling and Servicing Agreement, are true and correct as
of the dates specified in the Pooling and Servicing Agreement, that no
stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are threatened by the Commission and that, subsequent to
the date of the Prospectus, there has been no material adverse change
in the financial position or results of operations of the Company's
motor vehicle installment loan business except as set forth in or
contemplated by the Prospectus or as described in such certificate.
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(xiv) The Underwriter shall have received a certificate, dated
the Closing Date, of a Vice President or more senior officer of Onyx in
which such officer shall state that, to the best of his or her
knowledge after reasonable investigation, the representations and
warranties of Onyx in the Purchase Agreement are true and correct in
all material respects on and as of the Closing Date, that Onyx has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied thereunder at or prior to the Closing
Date, that the representations and warranties of Onyx, as Servicer, in
the Pooling and Servicing Agreement are true and correct as of the
dates specified in the Pooling and Servicing Agreement, there has been
no material adverse change in the financial position or results of
operations of Onyx's motor vehicle installment loan business except as
set forth in or contemplated by the Prospectus or as described in such
certificate.
(xv) The Surety Bond shall have been duly authorized, executed,
issued and delivered by the Insurer; all fees due and payable to the
Insurer as of the Closing Date shall have been paid in full; and the
Surety Bond shall conform to the description thereof in the
Registration Statement and the Prospectus.
(xvi) The Underwriter shall have received a Certificate from a
senior officer of the Insurer to the effect that such officer has no
reason to believe that the section of the Prospectus captioned
"Description of the Insurer" or any such amendment thereof or
supplement thereto as of its Effective Date or date of issuance, as the
case may be, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
The Company will furnish or cause to be furnished to the Underwriter
such number of conformed copies of such opinions, certificates, letters and
documents as the Underwriter reasonably requests.
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8. Indemnification.
(i) The Company will indemnify and hold harmless the Underwriter
and each person, if any, who controls the Underwriter with the meaning
of Section 15 of the Act against any losses, claims, damages or
liabilities, joint or several, to which the Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of, or
are based upon, any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus,
or any amendment or supplement thereto, or arise out of, or are based
upon, the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and will reimburse the Underwriter for any
legal or other expenses reasonably incurred by the Underwriter in
connection with investigating or defending any such action or claim;
provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability
arises out of, or is based upon, an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration
Statement or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to
the Company by the Underwriter expressly for use therein.
(ii) The Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers or agents who
signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the Act
against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (i) of this Section
8, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, (A) made in the
Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with written information furnished
to the Company by the Underwriter through Xxxxxxx Lynch, Xxxxxx, Xxxxxx
& Xxxxx Incorporated
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expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or (B) made in the ABS Term Sheets
distributed by the Underwriter and filed as a post-effective amendment
to the Registration Statement or the Prospectus as a result of any
filing pursuant to Section 5(x); provided however that the Underwriter
will not be liable in any such case to the extent that any such loss,
claim or damage or liability arises out of, or is based upon, an untrue
statement or omission made in the ABS Term Sheet or any supplement
thereto in reliance upon and in conformity with (x) information
furnished to the Underwriter by the Company or (y) information
contained in the Registration Statement or any preliminary prospectus
or the Prospectus other than information described in clause (A) above.
(iii) Each indemnified party shall give prompt notice to the
indemnifying party of any action commenced against the indemnified
party in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability which it may have hereunder or
otherwise than on account of this indemnity agreement. In case any such
action shall be brought against an indemnified party and it shall have
notified the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, to assume the defense thereof, with counsel,
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party
with respect to such action), and it being understood that the
indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more
than one separate firm of attorneys, and, after notice from the
indemnifying party to the indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable
to the indemnified party under subsections (i) or (ii) of this Section
8 for any legal expenses of other counsel or any other expenses, in
each case
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subsequently incurred by the indemnified party, in connection with the
defense thereof other than reasonable costs of investigation.
9. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 8 is for any reason held to be unavailable other than in accordance with
its terms, then each indemnifying party shall contribute to the amount paid or
payable by such indemnifying party as a result of the losses, claims, damages or
liabilities referred to in 8(i) and 8(ii) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriter on the other from the offering of the Certificates or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and of the Underwriter on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriter on
the other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriter.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this Section 9 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
Section 9. Notwithstanding the provisions of this Section 9, the Underwriter
shall not be required to contribute any amount in excess of the underwriting
discount or commission applicable to the Certificates purchased by it hereunder.
The Company and the Underwriter agrees that it would not be just and equitable
if contribution pursuant to this Section 9 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in
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this Section 9. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
10. Termination. The Underwriter may terminate this Agreement
immediately upon notice to the Company, if at any time, prior to the Closing
Date, there has occurred: (a) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Company or Onyx which, in the reasonable judgment of the Underwriter,
materially impairs the investment quality of the Certificates; (b) any
suspension or material limitation of trading in securities generally on the New
York Stock Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company or of
Onyx on any exchange or in the over-the-counter market by such exchange or
over-the-counter market or by the Commission; (c) any banking moratorium
declared by Federal, New York or California authorities; or (d) any outbreak or
material escalation of major hostilities or any other substantial national or
international calamity or emergency if, in the reasonable judgment of the
Underwriter, the effect of any such outbreak, escalation, calamity or emergency
on the United States financial markets makes it impracticable or inadvisable to
proceed with completion of the sale of and any payment for the Certificates.
11. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Underwriter set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
the Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Certificates. If for any reason the purchase of the
Certificates by the Underwriter is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
6 and the respective obligations of the Company and the Underwriter pursuant to
Sections 6, 8 and 9 shall remain in effect. If the purchase of the Certificates
by the Underwriter is not consummated for any reason other than solely because
of the occurrence of any event specified in clauses (b), (c) or (d) of Section
7(iii) or Section 10, the Company will reimburse the Underwriter for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by it in connection with the offering of the Certificates.
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12. Notices. All communications hereunder will be in writing and, if
sent to the Underwriter, will be mailed, delivered or telegraphed and confirmed
to the Underwriter at c/x Xxxxxxx Xxxxx & Co., World Financial Center,
Attention: Managing Director, Asset-Backed Securities Department, or to such
other address as the Underwriter may designate in writing to the Company, or if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to
the Company at Onyx Acceptance Financial Corporation, 0000 Xxxxxx Xxxxxx Xxxxx,
0xx Xxxxx, Xxxxxx XX 00000, Attention: Xxxxx X. Xxxxx, Esq., Executive Vice
President.
13. Successors. This Agreement will inure to the benefit of, and be
binding upon, the parties hereto and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 8 and 9 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Certificates
from the Underwriter shall be deemed to be a successor by reason merely of such
purchase.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
16. Severability of Provisions. Any covenant, provisions, agreement or
term of this Agreement that is prohibited or is held to be void or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the
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extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
17. Entire Agreement. This Agreement constitutes the entire agreement
and understanding of the parties hereto with respect to the matters and
transactions contemplated hereby and supersedes all prior agreements and
understandings whatsoever relating to such matters and transactions.
18. Amendment. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
19. Heading. The headings in this Agreement are for the purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate thereof,
whereupon it will become a binding agreement among the undersigned in accordance
with its terms.
Very truly yours,
ONYX ACCEPTANCE FINANCIAL
CORPORATION
By:
-----------------------
Name:
Title:
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
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