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Exhibit 1.1
Onyx Acceptance Grantor Trust 1997-4
_____% Auto Loan Pass-Through Certificates
Onyx Acceptance Financial Corporation
as Seller
Onyx Acceptance Corporation
as Servicer
UNDERWRITING AGREEMENT
December __, 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 1997-4 (the "Trust")
to sell to Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated (the
"Underwriter") 6.35% Auto Loan Pass-Through Certificates, Series 1997-4 (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 December 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, Xxxx will enter into a capitalized interest
agreement dated as of December 1, 1997 with the Company (the "Capitalized
Interest Agreement") which will assign it to the Trust. The assets of the Trust
will include, among other
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things, (i) a pool (the " Contract Pool") of fixed rate Rule of 78's and Simple
Interest Method motor vehicle retail installment sales contracts (the "Initial
Contracts") secured by new and used automobiles and light-duty trucks (the
"Initial 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) amounts on deposit in a trust
account established for the benefit of the Certificateholders (the "Pre-funding
Account"), (v) all amounts on deposit in the Collection Account, (vi) the right
of the Company to cause Onyx to repurchase certain Contracts under certain
circumstances, 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 $___________the Original Pool Balance of the Contracts and the amount on
deposit in the Pre-Funding Account as of the opening of business on December 1,
1997 (the "Cutoff Date"). From time to time during the Funding Period pursuant
to the Pur chase Agreement, Onyx will be obligated to sell, and the Seller will
be obligated to purchase, additional Rule of 78's and Simple Interest Method
retail motor vehicle retail installment sales contracts (the "Subsequent
Contracts" and together with the Initial Contracts the "Contracts") secured by
new and used automobiles and light duty trucks (the "Subsequent Financed
Vehicles" and together with the Initial Financed Vehicles the "Financed
Vehicles"), which Subsequent Contracts will be described in a transfer
certificate delivered by the Company on each subsequent Transfer Date (the
"Transfer Certificate"). The Subsequent Contracts will be sold from the Seller
to the Trust on the same Business Day such Subsequent Contracts are sold by Onyx
to the Seller (each such date a "Subsequent Transfer Date"). The maximum
aggregate principal amount of Subsequent Contracts to be sold during the Funding
Period by Onyx to the Seller and by the Seller to the Trust is $________.
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:
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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.
(ii) The Company will next file with the Commission
either, (A) prior to the effective ness 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 de fined). 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
there of. 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 Under-
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writer 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 Under writer, 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 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
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(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 there in 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 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
Initial Contracts, and as of each Subsequent Transfer Date in the case
of the related Sub sequent Contracts, the representations and warranties
of the Company, as Seller, in the Pooling and Servicing Agreement will
be true and correct, and
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each Contract will satisfy the conditions set forth in Sections 2.2(b)
and 2.2(d), respectively, there of.
(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 the transactions contemplated herein or in the Pooling and
Servicing Agreement, the Purchase Agreement, the Capitalized Interest
Agreement or the Insurance Agreement. The execution, delivery and
performance of this Agreement, the Pooling and Servicing Agreement, the
Purchase Agreement, the Capitalized Inter est Agreement or the Insurance
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 juris diction 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 Capitalized Interest Agreement
and the Insurance Agreement and to consummate the transactions
contemplated herein and therein.
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(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 December __, 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 December __, 1997 or at such other time not later than seven full
business days thereafter as the Underwriter 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:
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(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 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
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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 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).
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(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.
5. Certain Agreements of the Company. The Company agrees with the
Underwriter that:
(i) The Company will use every reason able effort
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 supple mentation 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
ini-
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tiation 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 every reasonable effort 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 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;
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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.
(vii) So long as any of the Certificates 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 re quest.
(viii) On or before the Closing Date with respect
to the Initial Contracts, and on or before each Subsequent Transfer Date
with respect to the Subsequent Contracts to be transferred to the Trust
on such 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 or Subsequent Transfer Date, as the case may be,
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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 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.
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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 date or (B) 3:00 p.m. on the business day following the day on
which the public offering price was deter mined, 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
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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 authori-
ties; (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 O'Melveny & Xxxxx LLP, counsel of the Company,
substantially to the effect that:
(a) The Company (1) is duly incorporated 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 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 Purchase Agreement, the
Capitalized Interest 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 Capitalized Interest Agreement or the Insurance
Agreement except for (1) filing of a Uniform Commercial Code
financing statement in the State of
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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 Capitalized
Interest 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 Capitalized
Interest 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 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 Capitalized Interest
Agreement or the Insurance Agreement or the Certificates,
(2) seeking to prevent the
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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 Capitalized
Interest Agreement or the Insurance Agreement (3) seeking
adversely to affect the federal income tax at tributes 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 Capitalized
Interest 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 Prospectus under
the caption "Certain Legal Aspects of the Contracts," and "ERISA
Considerations" to the extent they constitute matters of
California 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, the Capitalized Interest 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
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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 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 data included therein;
(l) The Certificates, the Pooling and
Servicing Agreement, the Purchase Agreement, the Capitalized
Interest 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,
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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 O'Melveny & Xxxxx LLP, 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
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 Capitalized Interest 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 Capitalized Interest 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 Capitalized
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Interest 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 Capitalized Inter est
Agreement and the Purchase Agreement;
(d) None of the execution, de livery and
performance by Onyx of the Pooling and Servicing Agreement, the
Capitalized Interest 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 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 mate rial 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
Capitalized Interest 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
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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, the Capitalized Interest
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.
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
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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 O'Melveny & Xxxxx LLP, 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 Onyx 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
O'Melveny & Xxxxx LLP, 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 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
-- Federal Income Tax Status" and "Certain Federal Income Tax
Consequences" to the extent that they constitute matters of law
or legal conclusions with respect thereto, have been prepared or
reviewed by such
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counsel and are correct in all material respects; and
(c) For California franchise and income 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 tax in California will not be subject to
California franchise or income taxes with respect to interest or
other amounts allocable to such Certificateholder as a result of
such Certificateholder's beneficial ownership of Certificates.
(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;
(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;
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24
(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.
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;
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25
(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 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 & 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.
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(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.
(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 there under 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
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27
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.
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, dam
ages 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
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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, or (y) contained in any ABS Term Sheet to the
extent set forth in subsection (ii) of this Section 8; provided,
further, that the Company shall not be liable under this subsection (i)
to the extent that such losses, claims, damages or liabilities arose
out of or are based upon an untrue statement or omission made in any
preliminary prospectus that is corrected in the final Prospectus (or any
amendment or supplement thereto), and the Company has previously
furnished copies thereof in sufficient quantity to the Underwriter, if
the person asserting such loss, claim, damage or liability was not given
the final Prospectus (or any amendment or supplement thereto) on or
prior to the confirmation of the sale of the Certificates.
(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 supple-
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29
ment thereto) in reliance upon and in conformity with written
information furnished to the Company by the Underwriter through Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 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 except and to the extent of any
prejudice to such indemnifying party arising from such failure to
provide such notice. 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 subsequently incurred by the
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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 this Section 9. No person
guilty of fraudulent misrepresenta-
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31
tion (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) reason-
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32
ably incurred by it in connection with the offering of the Certificates.
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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Exhibit A
The information herein has been provided solely by Xxxxxxx Xxxxx,
Xxxxxx, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"). Neither Xxxxxxx Xxxxx,
the Issuer of the securities nor any of its affiliates make any representation
as to the accuracy or completeness of the information herein. The information
herein is preliminary, and will be superseded by the final prospectus and by any
other information subsequently filed with the Securities and Exchange
Commission.
The information contained herein will be superseded by the
description of the collateral pool contained in the final prospectus relating to
the securities.
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