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Exhibit 1.2
Onyx Acceptance Owner Trust 1998-C
$53,000,000 5.261% Auto Loan Backed Notes, Class A-1
$70,000,000 5.55% Auto Loan Backed Notes, Class A-2
$89,000,000 5.65% Auto Loan Backed Notes, Class A-3
$54,000,000 5.76% Auto Loan Backed Notes, Class A-4
$14,000,000 6.09% Auto Loan Backed Certificates
Onyx Acceptance Financial Corporation
as Seller
Onyx Acceptance Corporation
as Servicer
UNDERWRITING AGREEMENT
November 19, 1998
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
as representative of
the several Underwriters
World Financial Center
North Tower - 15th Floor
New York, New York 10281-1315
Ladies and Gentlemen:
1. Introductory. Onyx Acceptance Financial Corporation (the "Company")
proposes to cause Onyx Acceptance Owner Trust 1998-C (the "Trust") to sell to
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated (the "Representative") and
Xxxxxxx Xxxxx Xxxxxx Inc. (together with the Representative, the "Underwriters")
$53,000,000 aggregate principal amount of 5.261% Auto Loan Backed Notes, Class
A-1 (the "Class A-1 Notes"), $70,000,000 aggregate principal amount of 5.55%
Auto Loan Backed Notes, Class A-2 (the "Class A-2 Notes") $89,000,000 aggregate
principal amount of 5.65% Auto Loan Backed Notes, Class A-3 (the "Class A-3
Notes"), $54,000,000 aggregate principal amount of 5.76% Auto Loan Backed Notes,
Class A-4 (the "Class A-4 Notes" and together with the Class A-1 Notes, the
Class A-2 Notes and the Class A-3 Notes the "Notes"), and $14,000,000 aggregate
principal amount of 6.09% Auto Loan Backed Certificates (the "Certificates," and
together with the Notes, the "Securities"). The Notes will be issued pursuant to
an Indenture dated as of November 1, 1998 (the "Indenture"), between the Trust
and The Chase Manhattan Bank as Indenture Trustee (the "Indenture Trustee"). The
Certificates will be issued pursuant to a Trust Agreement dated as of November
1, 1998 (the "Trust Agreement")among the
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Company, Bankers Trust (Delaware) as Owner Trustee (the "Owner Trustee") and The
Chase Manhattan Bank as Trust Agent (the "Trust Agent"). Pursuant to a Sale and
Servicing Agreement dated as of November 1, 1998 (the "Servicing Agreement")
among the Trust, the Company as Seller (the "Seller"), Onyx Acceptance
Corporation as Servicer ("Onyx" or in such capacity, the "Servicer"), the Chase
Manhattan Bank in its capacity as Indenture Trustee and the Trust Agent, the
Seller will sell and assign to the Trust, without recourse, the Seller's entire
interest in the Contracts and Onyx will act as servicer of the Contracts.
Pursuant to an Administration Agreement dated as of November 1, 1998 (the
"Administration Agreement") among the Trust, Onyx, the Company, the Indenture
Trustee and the Trust Agent, Onyx will serve as administrator of the Trust.
Pursuant to an Amended and Restated Sale and Servicing dated as of September 4,
1998 (the "Purchase Agreement"), Onyx has sold the Contracts to the Company.
Pursuant to an insurance and reimbursement agreement (the "Insurance Agreement")
among the Company, Onyx and MBIA Insurance Corporation (the "Insurer"), the
Insurer has issued its financial guarantee insurance policy (the "Guarantee") to
the Indenture Trustee for the benefit of the Securityholders guaranteeing timely
payment of interest and payment of principal at maturity on the Securities. The
Trust's assets (the "Trust Property") will include: (i) a pool of fixed rate
motor vehicle retail installment sales contracts (the "Contracts"), all of which
were purchased from the Seller and secured by new and used automobiles and
light-duty trucks (the "Financed Vehicles"), (ii) certain documents relating to
the Contracts, (iii) with respect to Contracts (the "Initial Contracts")
originated prior to November 1, 1998 (the "Initial Cut-Off Date") certain monies
received with respect to the Initial Contracts on or after the Initial Cut-Off
Date, (iv) with respect to Contracts (the "Subsequent Contracts"), originated on
or after the Initial Cut-Off Date and prior to November 24, 1998 (the "Final
Cut-Off Date), certain monies received with respect to the Subsequent Contracts
on or after the Final Cut-Off Date,(v) 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, (vi) all amounts on deposit in the Collection Account, the
Payment Account, the Note Distribution Account, the Certificate Distribution
Account, and the Spread Account, including all Eligible Investments credited
thereto (but excluding any investment income from Eligible Investments, credited
to the Collection Account, which will be paid to the Servicer),(vii) the right
of the Company to cause Onyx to repurchase certain Contracts under certain
circumstances, and (viii) all proceeds of the foregoing. The Securities will be
issued in an aggregate principal amount of $280,000,000 which is approximately
equal to the outstanding principal balance of the Initial Contracts as of the
Initial Cut-Off Date and the outstanding principal balance of Subsequent
Contracts as the Final Cut-Off Date. The term "Cut-Off" Date as used herein
refers to the Initial Cut-Off Date for the Initial Contracts and the Final
Cut-Off Date for the Subsequent Contracts. Capitalized terms used herein and not
otherwise herein defined shall have the meanings assigned to such terms in the
Servicing Agreement or if not defined therein, in the Trust Agreement.
The Company hereby agrees with the Underwriters, as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with the Underwriters that:
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(i) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement (Registration No. 333-51239) on such Form, including a prospectus
and forms of prospectus supplements, for registration under the Act of the
offering and sale of the Notes and Certificates. The Company may have filed
one or more amendments thereto, each of which amendments has previously
been furnished to the Representative. The Company will also file with the
Commission a prospectus supplement in accordance with Rule 424(b) under the
Act. The Company has included in the Registration Statement, as amended at
the Effective Date (as hereinafter defined), all information required by
the Act and the rules thereunder to be included in the Prospectus (as
hereinafter defined) with respect to the Notes and Certificates and the
offering thereof. As filed, the registration statement as amended, the
forms of prospectus supplements, and any prospectuses or prospectus
supplements filed pursuant to Rule 424(b) under the Act relating to the
Notes and Certificates shall, except to the extent that the Representative
shall agree in writing to a modification, be in all substantive respects in
the form furnished to the Representative 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
as the Company has advised the Representative, prior to the Execution Time,
will be included or made therein.
For purposes of this Agreement, "Effective Time" means the date and
time as of which such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission, and
"Effective Date" means the date of the Effective Time. "Execution Time" shall
mean the date and time that this Agreement is executed and delivered by the
parties hereto. Such registration statement, as amended at the Effective Time,
and including the exhibits thereto and any material incorporated by reference
therein (including any ABS Term Sheets (as defined in Section 4(b) of this
Agreement) filed on Form 8-K), is hereinafter referred to as the "Registration
Statement," and any prospectus supplement (the "Prospectus Supplement") relating
to the Notes and Certificates, as filed with the Commission pursuant to and in
accordance with Rule 424(b) under the Act is, together with the prospectus filed
as part of the Registration Statement (such prospectus, in the form it appears
in the Registration Statement or in the form most recently revised and filed
with the Commission pursuant to Rule 424(b) being hereinafter referred to as the
"Basic Prospectus"), hereinafter referred to as the "Prospectus". "Rule 424"
refers to such rule under the Act. Any reference herein to the Registration
Statement, the Prospectus or any Prospectus Supplement shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 which were filed by the Company as the originator of the Trust
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on
or before the Effective Date of the Registration Statement or the issue date of
the Prospectus or any Prospectus Supplement, as the case may be (but shall not
be deemed to refer to or include any Form T-1 filed with respect to the
Indenture Trustee); and any reference herein to the terms "amend", "amendment"
or "supplement" with respect to the Registration Statement, the Prospectus or
any Prospectus Supplement shall be deemed to refer to and include the filing of
any document under the Exchange
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Act after the Effective Date of the Registration Statement, or the issue date of
the Prospectus or any Prospectus Supplement, as the case may be, deemed to be
incorporated therein by reference.
(ii) On the Effective Date and on the date of this Agreement, the
Registration Statement did or will, and, when the Prospectus was first
filed and on the Closing Date (as defined below), the Prospectus and any
Prospectus Supplement did or will comply in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
respective rules and regulations of the Commission thereunder (the "Rules
and Regulations"). On the Effective Date, the Registration Statement did
not and 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 Prospectus Supplement, did not or
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 representation or warranty as
to the information contained in or omitted from the Registration Statement
or the Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by any Underwriter through the
Representative specifically for use in connection with preparation of the
Registration Statement or the Prospectus.
(iii) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, (i) there has not been
any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
management, financial condition, stockholders' equity, results of
operations, regulatory status or business prospects of the Company or Onyx,
and (ii) neither the Company nor Onyx has entered into any transaction or
agreement (whether or not in the ordinary course of business) material to
it that, in either case, would reasonably be expected to materially
adversely affect the interests of the holders of the Notes or Certificates,
other than as set forth or contemplated in the Prospectus.
(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 the representations and warranties of
the Company, as Seller, in the Servicing Agreement and Trust Agreement will
be
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true and correct, and each Contract will satisfy the representations and
warranties set forth in Section 2.02(b) of the Servicing Agreement.
(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 violation or default would have a material adverse effect on
the transactions contemplated herein or in the Indenture, the Trust
Agreement, the Servicing Agreement, the Purchase Agreement or the Insurance
Agreement. The execution, delivery and performance by the Company of this
Agreement, the Trust Agreement, the Servicing Agreement, the Purchase
Agreement or the Insurance Agreement and the issuance and sale of the
Securities 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 the Certificate of
Incorporation 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
Securities as contemplated by this Agreement, to enter into this Agreement,
the Trust Agreement, the Servicing Agreement, the Purchase Agreement and
the Insurance 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 Securities. 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 each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company the aggregate principal amount of each class of Securities set
forth opposite such Underwriter's name on Schedule I hereto and at the price set
forth on such Schedule plus accrued interest, if any, from the Closing Date.
The Company will deliver the Securities to the Underwriters against
payment of the purchase price in immediately available funds by wire transfer to
the order of the Company at the
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offices of Xxxxxxx & Xxxxx L.L.P., 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
00000 at 10:00 a.m., New York City time on November 24, 1998 or at such other
time not later than seven full business days thereafter as the Underwriters and
the Company determine, such time being herein referred to as the "Closing Date".
The Securities so to be delivered shall be represented by one or more global
notes or certificates as applicable registered in the name of Cede & Co., as
nominee for The Depository Trust Company, in such numbers as the Underwriters
shall reasonably request not later than 48 hours prior to the Closing Date. The
Company shall make such global notes or certificates, as applicable,
representing the Securities available for inspection by the Underwriters at the
office at which the Securities 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 Underwriters. (a) It is understood that, after the
Registration Statement becomes effective, the Underwriters propose to offer the
Securities for sale to the public (which may include selected brokers and
dealers) as set forth in the Prospectus.
(b) The Underwriters may prepare and provide to prospective investors
certain ABS Term Sheets, in connection with its offering of the Securities,
subject to the following conditions:
(i) The Underwriters 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" shall have the
meaning given such term in the No-Action Letter but shall include only
those ABS Term Sheets that have been prepared or delivered to prospective
investors by or at the direction of the Underwriters.
(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-1 in the case
of the Representative and Exhibit A-2 in the case of Xxxxxxx Xxxxx Xxxxxx
Inc. 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 Underwriters 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 Underwriters. The Underwriters shall have provided
to the Company, for filing as part of a current report on Form 8-K as
provided in Section 5(xii), 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 Underwriters may
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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 Underwriters shall have not provided
to any investor or prospective investor in the Securities 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(xii)), 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 Securities structuring terms that
were revised in any material respect prior to the printing of the
Prospectus, the Underwriters 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 Underwriters they
would purchase all or any portion of the Securities, 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 Underwriters, 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 Securities is required to be delivered under the Act, any ABS Term
Sheets are determined, in the reasonable judgment of the Company or the
Underwriters, to contain a material error or omission, the Underwriters
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 Underwriters they would
purchase all or any portion of the Securities, 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 current report on Form 8-K
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(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 Underwriters).
(vii) The Underwriters 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 Underwriters did not provide any
prospective investors with any information in written or electronic form in
connection with the offering of the Securities 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
Underwriters to the Company of any 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(xii),
the Company shall have the right to delay the release of the Prospectus to
investors or to the Underwriters, 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(xii) to file
the ABS Term Sheets by the time specified therein.
5. Certain Agreements of the Company. The Company agrees with the
Underwriters that:
(i) Immediately following the execution of this Agreement, the
Company will prepare a Prospectus Supplement setting forth the amount of
Securities covered thereby and the terms thereof not otherwise specified in
the Basic Prospectus, the price at which such Securities are to be
purchased by the Underwriters, the initial public offering price, the
selling concessions and allowances, and such other information as the
Company deems appropriate and shall furnish a copy to the Representative in
accordance with Section 5(ii) of this Agreement. The Company will transmit
the Prospectus including such Prospectus Supplement to the Commission
pursuant to Rule 424(b) by a means reasonably calculated to result in
filing that complies with all applicable provisions of Rule 424(b). The
Company will advise the Representative promptly of any such filing pursuant
to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the
Company will not file any amendment of the Registration Statement or
supplement to the Prospectus unless the Company has furnished the
Representative with a copy for its review prior to filing and will not file
any such proposed amendment or supplement to which the Representative
reasonably objects. Subject to the foregoing sentence, if filing of the
Prospectus is otherwise required under Rule 424(b), the Company will file
the Prospectus, properly completed, and any supplement thereto, with the
Commission pursuant to and in accordance with the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Representative of such timely filing.
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(iii) The Company will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement as filed or the
Prospectus, and will not effect such amendment or supplement without the
Representative's consent, which consent will not unreasonably be withheld.
The Company will also advise the Representative promptly of any request by
the Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for any additional information and the
Company will also advise the Representative promptly of any amendment or
supplement to the Registration Statement or the Prospectus and of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threat of any
proceeding for that purpose, and the Company will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the
Registration Statement, and any amendment thereto, if not effective at the
Execution Time, to become effective.
(v) If, at any time when a Prospectus relating to the Securities
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 (ii) 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.
(vi) As soon as practicable, the Company will cause the Trust to
make generally available to the Securityholders 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.
(vii) The Company will furnish to each Underwriter copies of the
Registration Statement, the Prospectus and any preliminary Prospectus
Supplement related thereto and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as each
Underwriter may reasonably request.
(viii) The Company will cooperate with the Underwriters in
arranging for the qualification of the Securities for sale and the
determination of their eligibility for investment under the laws of such
jurisdictions as each Underwriter designates and will continue such
qualifications in effect so long as required for the distribution
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of the Securities; 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.
(ix) For a period from the date of this Agreement until the
retirement of the Securities, the Company will furnish to the Underwriters
copies of the annual statements of compliance delivered to the Indenture
Trustee pursuant to Section 3.09 of the Indenture and Section 3.10 of the
Servicing Agreement, and the annual independent public accountant's reports
furnished to the Indenture Trustee pursuant to Section 3.11 of the
Servicing Agreement, as soon as practicable after such statements and
reports are furnished to the Indenture Trustee and Owner Trustee
respectively.
(x) So long as any of the Securities 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 Securityholders, (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.
(xi) 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 the subsequent transfer of the Contracts 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
Indenture and Trust Agreement.
(xii) The Company will file with the Commission as part of a
current report on Form 8-K each ABS Term Sheet provided to the Company by
the Underwriters 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 an ABS Term Sheet (other than any ABS
Term Sheets that are not based on the Contract Pool information) by the
Company, the Underwriters must comply with their obligations pursuant to
Section 4 and the Company must receive a letter from
PricewaterhouseCoopers, 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 PricewaterhouseCoopers have determined
that the information included in
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such ABS Term Sheet (if any), provided by the Underwriters to the Company
for filing on a current report on Form 8-K pursuant to Section 4 and, if
the Company then so specifies, this subsection (xii), 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
Underwriters. 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(xii)
the Company will pay or cause to be paid 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 and the Prospectus and Prospectus Supplement, (ii) the
Indenture Trustee's and Owner Trustee's fees and the fees and disbursements of
the counsel to the Indenture Trustee and to the Owner 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 Underwriters. The obligation
of the Underwriters to purchase and pay for the Securities 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 Representative
shall have received a letter, dated the date of this Agreement, of
PricewaterhouseCoopers and substantially in the form heretofore agreed,
which letter shall be in form and substance agreed to by the
Representative.
(ii) The Registration Statement shall have become effective prior
to the Execution Time, and prior to the Closing Date, 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,
to the knowledge of the Company or the Representative, shall be
contemplated by the Commission or by any authority administering any state
securities or blue sky law; the Prospectus and any supplements thereto
shall have been filed (if required) with the Commission in accordance with
the Rules and Regulations and the applicable paragraphs of Section 5
hereof; 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
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prospective change, in or affecting particularly the business or properties
of the Company or Onyx which, in the reasonable judgment of the
Underwriters, materially impairs the investment quality of the Securities;
(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 Representative, 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 Securities.
(iv) The Underwriters 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 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 Trust Agreement,
the Servicing 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, the Trust Agreement, the
Servicing Agreement, the Purchase 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 Trust Agreement and the
Servicing Agreement, and the sale of the Contracts to the Company
pursuant to the Purchase Agreement (2) such consents, approvals,
authorizations, orders or filings as may be required under federal law
which have been made or obtained and (3) such consents, approvals,
authorizations, orders or filings as may be required under state
securities laws;
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(d) None of the execution, delivery and performance by the
Company of this Agreement, the Trust Agreement, the Servicing
Agreement, the Purchase 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 Securities or the consummation of any other of the
transactions contemplated herein or in the Trust Agreement, the
Servicing Agreement, the Purchase 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 such
counsel's knowledge (i) 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 (ii) 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 such counsel's knowledge, 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 Trust Agreement, the
Servicing Agreement, the Purchase Agreement or the Insurance Agreement
or the Securities, (2) seeking to prevent the issuance of the
Securities or the consummation of any of the transactions contemplated
by this Agreement, the Trust Agreement, the Servicing Agreement, the
Purchase Agreement or the Insurance Agreement (3) seeking adversely to
affect the federal income tax attributes of the Securities as
described in the Base Prospectus under the headings "SUMMARY OF TERMS
-- Tax Status"; "CERTAIN FEDERAL INCOME TAX CONSEQUENCES"; "TRUSTS FOR
WHICH A PARTNERSHIP ELECTION IS MADE" and "TRUSTS TREATED AS GRANTOR
TRUSTS" and in the Prospectus Supplement under the headings "SUMMARY
OF TERMS -- Federal Income Tax Status" and "CERTAIN FEDERAL INCOME TAX
CONSEQUENCES";
(f) This Agreement, the Trust Agreement, the Servicing
Agreement, the Purchase Agreements 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;
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(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 direction by the Company to the Trust Agent to
authenticate the Certificates has been duly authorized by the Company
and, when the Certificates have been duly executed by the Owner
Trustee and authenticated and delivered by the Trust Agent in
accordance with the Trust Agreement and delivered and paid for
pursuant to this Agreement, will be duly and validly issued and
outstanding, and will be entitled to the benefits of the Trust
Agreement.
(j) When the Notes have been duly executed by the Owner
Trustee and delivered by the Trust Agent on behalf of the Trust,
authenticated by the Indenture Trustee in accordance with the
Indenture and delivered and paid for pursuant to this Agreement, the
Notes will be the valid, legal and binding obligations of the Trust,
enforceable against the Trust in accordance with their terms, subject
to bankruptcy, insolvency, reorganization, moratorium, fraudulent or
preferential conveyance and other similar laws of general application
relating to or affecting creditors' rights generally, and general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(k) Assuming the authorization, execution and delivery
thereof by each party thereto other than the Company, Fundco and Onyx,
each of the Trust Agreement, the Purchase Agreement, the Servicing
Agreement and the Insurance 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,
fraudulent or preferential conveyance and other similar laws of
general application relating to or affecting creditors' rights
generally, and general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law); and (2) the unenforceability under certain circumstances of
provisions indemnifying a party against liability where such
indemnification is contrary to public policy;
(l) 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
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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; and any required filing of the
Prospectus and Prospectus Supplement pursuant to Rule 424(b) has been
made;
(m) The Securities, the Indenture, the Trust Agreement, the
Servicing Agreement, the Purchase Agreement, and the Guarantee conform
in all material respects to the descriptions thereof contained in the
Registration Statement and the Prospectus;
(n) The Trust Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended;
(o) The Indenture has been duly qualified under the Trust
Indenture Act;
(p) The Company is not, and after giving effect to the
offering and sale of the Securities as contemplated in the Prospectus
and this Agreement and the application of the proceeds thereof as
described in the Prospectus will not be, an "investment company" as
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act"). Onyx is not an "investment company" within
the meaning of the Investment Company Act;
(q) The Trust is not now, and immediately following the sale
of the Securities pursuant to this Agreement will not be, required to
be registered under the Investment Company Act; and
(r) The Indenture, the Sale and Servicing Agreement and the
Administration Agreement, assuming that they have been duly authorized
by, and when duly executed and delivered by, the Owner Trustee on
behalf of the Trust, will constitute the legal, valid and binding
obligations of the Trust, enforceable against the Trust in accordance
with their terms, except (x) the enforceability thereof may be subject
to bankruptcy, insolvency, reorganization, moratorium, fraudulent or
other preferential conveyance and other similar laws and other similar
laws of general application relating to or affecting the rights of
creditors generally and to general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at
law).
In addition, such counsel shall opine (i) as to certain matters
relating to the acquisition by the Company of a perfected first priority
security interest in the vehicles financed by the Contracts and (ii) as to
the existence of a valid, perfected,
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first priority security interest in the Contacts in favor of the Owner
Trustee from the Company and in favor of the Indenture Trustee from the
Owner Trustee.
In rendering such opinion, such counsel may rely (i) 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
and (ii) on other opinions of counsel as specified therein. References to
the Prospectus in this paragraph (iv) include any supplements thereto.
(v) The Underwriters shall have received an opinion, dated the
Closing Date, of Xxxxxxx & Xxxxx L.L.P., counsel to Onyx and Fundco,
substantially to the effect that:
(a) Each of Onyx and Fundco (1) is duly incorporated and is
validly existing and in good standing under the laws of the State of
its incorporation, (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) Each of Onyx and Fundco has the corporate power and
corporate authority to execute and deliver the Servicing Agreement,
the Administration Agreement and the Purchase Agreement, to the extent
applicable, and at the time it was executed and delivered, had the
power and authority to execute and deliver the Purchase Agreement, the
Servicing Agreement and the Administration Agreement to the extent
applicable, 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 or Fundco to perform the transactions
contemplated by the Servicing Agreement, the Administration Agreement
or the Purchase Agreement, as applicable, except for (1) filing of a
Uniform Commercial Code financing statement in the State of California
with respect to the sales 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; 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 Servicing Agreement, the
Administration Agreement and the Purchase Agreement, as applicable;
(d) None of the execution, delivery and performance by Onyx
or Fundco of the Servicing Agreement, the Administration Agreement or
the
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Purchase Agreement, as applicable, 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 or Fundco, 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 or Fundco of any court, regulatory body, administrative agency
or governmental body having jurisdiction over Onyx or Fundco or the
terms of any material indenture or other material agreement or
instrument known to such counsel to which Onyx or Fundco is a party or
by which it or its properties are bound;
(e) The Servicing Agreement, the Administration Agreement
and the Purchase Agreement have each been duly authorized, executed
and delivered by Onyx and Fundco, as applicable;
(f) The indemnification agreement dated as of the date
hereof, between Onyx and the Underwriters has been duly authorized,
executed and delivered by Onyx; and
(g) Assuming the authorization, execution and delivery
thereof by the Company with respect to the Servicing Agreement, the
Administration Agreement and the Purchase Agreement, as applicable,
each such agreement constitutes the legal, valid and binding agreement
of Onyx and Fundco, as applicable, enforceable against Onyx and Fundco
in accordance with its terms, subject, as to enforcement, to (1) the
effect of bankruptcy, insolvency, reorganization, moratorium,
fraudulent or preferential conveyance and other similar laws of
general application relating to or affecting creditors' rights
generally and general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and
(2) 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, Fundco 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 Underwriters 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
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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 (i) any information incorporated by reference in the
Registration Statement or the Prospectus or (ii) the financial statements and
related notes, schedules and the other financial and statistical data included
in the Registration Statement or the Prospectus).
(vi) The Underwriters shall have received 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 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 Underwriters 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 Notes will be characterized as debt and the Trust
will not be characterized as an association (or a publicly traded
partnership) taxable as a corporation;
(b) the Statements in the Base Prospectus under the heading
"SUMMARY OF TERMS -- Tax Status"; "CERTAIN FEDERAL INCOME TAX
CONSEQUENCES"; "TRUSTS FOR WHICH A PARTNERSHIP ELECTION IS MADE" and
"TRUSTS TREATED AS GRANTOR TRUSTS" and in the Prospectus Supplement
under the headings "SUMMARY OF TERMS -- 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 counsel and are correct in all
material respects; and
(c) Such state tax opinions as are satisfactory to the
Representative.
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(viii) The Underwriters 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 Guarantee,
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 Guarantee, the Insurance Agreement or the Indemnification
Agreement dated as of the Closing Date between the Underwriters and
Onyx (the "Indemnification Agreement") against the Insurer, is
required in connection with the execution and delivery by the Insurer
of the Guarantee, the Insurance Agreement or the Indemnification
Agreement or in connection with the Insurer's performance of its
obligations thereunder;
(d) The Guarantee, the Insurance Agreement and the
Indemnification Agreement have been duly authorized, executed and
delivered by the Insurer, and the Guarantee 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 Guarantee 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 Underwriters shall have received an opinion of Xxxxxxx,
Xxxxxxxx & Xxxx, counsel to the Indenture Trustee and Trust Agent, dated
the Closing Date and satisfactory in form and substance to you,
substantially in the form of Exhibit B hereto.
(x) The Underwriters shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, counsel to the Owner Trustee, dated the Closing Date and
satisfactory in form and substance to you, substantially in the form of
Exhibit C hereto.
(xi) The Underwriters shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, special Delaware counsel to the Trust, dated the Closing
Date and satisfactory in form and substance to you, substantially in the
form of Exhibit D hereto.
(xii) The Representative shall have received from Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, counsel to the Underwriters, such opinion or
opinions, dated the Closing Date and satisfactory in form and substance to
you, with respect to the validity of the Securities, the Registration
Statement, the Prospectus and other related matters as the Underwriters 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.
(xiii) The Underwriters shall have received a letter, dated the
Closing Date, of PricewaterhouseCoopers 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.
(xiv) The Underwriters shall have received evidence satisfactory
to them that the Securities have been rated in the highest rating category
by Xxxxx'x Investors Service, Inc. and by Standard & Poor's Ratings
Services.
(xv) The Underwriters 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
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hereunder at or prior to the Closing Date, that the representations and
warranties of the Company, as Seller, in the Servicing Agreement and the
Trust Agreement are true and correct as of the dates specified therein and
the representations and warranties set forth in Section 2.02(b) of the
Servicing Agreement, are true and correct as of the dates specified in the
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.
(xvi) The Underwriters 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 and Servicing 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 Servicing
Agreement are true and correct as of the dates specified in the 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.
(xvii) The Guarantee 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
Guarantee shall conform to the description thereof in the Registration
Statement and the Prospectus.
(xviii) The Underwriters 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 Underwriters
such number of conformed copies of such opinions, certificates, letters and
documents as the Underwriters reasonably request.
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8. Indemnification.
(i) The Company will indemnify and hold harmless each Underwriter
and each person, if any, who controls such Underwriter within the meaning
of Section 15 of the Act against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (a) arise out of, or
are based upon, any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, 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 or (b) arise out of, or are based upon,
any untrue statement or alleged untrue statement of any material fact
contained in the Prospectus or arise out of, or are based upon, the
omission or alleged omission to state therein a material fact necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading; and will reimburse the Underwriters for any
legal or other expenses reasonably incurred by the Underwriters 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 Underwriters 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 Underwriters, 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
Securities.
(ii) Each Underwriter severally and jointly 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 Underwriters through
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated expressly for use in the
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Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or
(B) made in the ABS Term Sheets distributed by the Underwriters and filed
as a post-effective amendment to the Registration Statement or the
Prospectus as a result of any filing pursuant to Section 5(xii); provided
however that the Underwriters 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 such 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 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 each
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Underwriter on the other from the offering of the Securities 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 such 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 each 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 each such
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 such 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, no Underwriter
shall be required to contribute any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by it hereunder.
The Company and each 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 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 Underwriters 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 Underwriters,
materially impairs the investment quality of the Securities; (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 Underwriters, 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 Securities.
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 Underwriters 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 Underwriters, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Securities. If for any reason the
purchase of the Securities by the Underwriters is not consummated, the Company
shall remain
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responsible for the expenses to be paid or reimbursed by it pursuant to Section
6 and the respective obligations of the Company and the Underwriters pursuant to
Sections 6, 8 and 9 shall remain in effect. If the purchase of the Securities by
the Underwriters 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 clauses (b), (c) or (d) of Section 10, and other than solely because
the Underwriters fail to perform their obligations hereunder, 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 Securities.
12. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Underwriters at c/x Xxxxxxx Lynch, Pierce, Xxxxxx and Xxxxx Incorporated,
World Financial Center, North Tower, 15th Floor, New York, New York 10281-1315
Attention: Managing Director, Asset-Backed Securities Department, or to such
other address as the Underwriters 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 Securities from
the Underwriters 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 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
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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.
20. The Representative. The Representative will act for the several
Underwriters in connection with the transactions described in this Agreement,
and any action taken by the Representative under this Agreement will be binding
upon all the Underwriters.
21. Defaults of Underwriters. If any Underwriter defaults in its
obligation to purchase the Certificates hereunder on the Closing Date and the
aggregate principal amount of the Securities that such defaulting Underwriter
agreed but failed to purchase does not exceed 10% of the total principal amount
of the Securities, the Representative may make arrangements satisfactory to the
Representative and the Seller for the purchase of such Securities by other
persons, including either of the Underwriters, but if no such arrangements are
made by the Closing Date, the nondefaulting Underwriter shall be obligated, in
proportion to its respective commitment hereunder, to purchase the Securities
that such defaulting Underwriter agreed but failed to purchase. If an
Underwriter so defaults and the aggregate principal amount of the Securities
with respect to such default exceeds 10% of the total principal amount of the
Securities and arrangements satisfactory to the Representative and the Company
for the purchase of such Securities by other persons are not made within 24
hours after such default, this Agreement will terminate without liability on the
part of the nondefaulting Underwriter or the Company, except as provided in
Section 11. Nothing herein will relieve a defaulting Underwriter from liability
for its default.
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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: /s/ XXX X. XXXXX
---------------------------------
Name: Xxx X. Xxxxx
Title: Chief Financial Officer
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx Xxxxxx Inc.
By: Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
/s/ XXXXX XXXXXX
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
For themselves and the other several
underwriters named in Schedule I
attached hereto.
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Exhibit A-1
The attached information(the "Term Sheet") is privileged and
confidential and is intended for use by the addressee only. The Term Sheet is
furnished to you solely by Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx") and not by the issuer of the securities or any of its
affiliates. The issuer of these securities has not prepared or taken part in the
preparation of these materials. Neither Xxxxxxx Xxxxx, the issuer of the
securities nor any of its affiliates makes any representation as to the accuracy
or completeness of the information herein. The information herein is
preliminary, and will be superseded by the applicable prospectus supplement and
by any other information subsequently filed with the Securities and Exchange
Commission. The information herein may not be provided by the addressee to any
third party other than the addressee's legal, tax, financial and/or accounting
advisors for the purposes of evaluating said material.
Although a registration statement (including the prospectus) relating
to the securities discussed in this communication has been filed with the
Securities and Exchange Commission and is effective, the final prospectus
supplement relating to the securities discussed in this communication has not
been filed with the Securities and Exchange Commission. This communication shall
not constitute an offer to sell or the solicitation of any offer to buy nor
shall there be any sale of the securities discussed in this communication in any
state in which such offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any such state.
Prospective purchasers are referred to the final prospectus and prospectus
supplement relating to the securities discussed in this communication for
definitive information on any matter discussed in this communication. A final
prospectus and prospectus supplement may be obtained by contacting the Xxxxxxx
Xxxxx Trading Desk at (000) 000-0000.
Please be advised that asset-backed securities may not be appropriate
for all investors. Potential investors must be willing to assume, among other
things, market price volatility, prepayments, yield curve and interest rate
risk. Investors should fully consider the risk of any investment in these
securities.
If you have received this communication in error, please notify the
sending party immediately by telephone and return the original to such party by
mail.
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Exhibit A-2
The information herein is preliminary, and will be superseded by the
applicable prospectus supplement and by any other information subsequently filed
with the Securities and Exchange Commission. The information addresses only
certain aspects of the applicable security's characteristics and thus does not
provide a complete assessment. As such, the information may not reflect the
impact of all structural characteristics of the security. The assumptions
underlying the information, including structure and collateral, may be modified
from time to time to reflect changed circumstances. The attached term sheet is
not intended to be a prospectus and any investment decision with respect to the
Notes or Certificates should be made by you based solely upon all of the
information contained in the final prospectus and the final prospectus
supplement. Under no circumstances shall the information presented constitute an
offer to sell or the solicitation of any offer to buy nor shall there be any
sale of the securities in any jurisdiction in which such offer, solicitation or
sale would be unlawful prior to registration or qualification under the
securities laws of such jurisdiction. The securities may not be sold nor may an
offer to buy be accepted prior to the delivery of a final prospectus and final
prospectus supplement relating to the securities. All information described
herein is preliminary, limited in nature and subject to completion or amendment.
No representation is made that the above referenced securities will actually
perform as described in any scenario presented. A final prospectus and final
prospectus supplement may be obtained by contacting the Xxxxxxx Xxxxx Xxxxxx
Syndicate Desk at (000) 000-0000.
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Schedule I
Purchase
Price as a
percentage of
the aggregate
Initial principal
Principal amount
Amount thereof
--------------------------------------------------------------- -----------------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx $26,500,000 5.261% Auto Loan Backed Notes, Class A-1
and ................................ $35,000,000 5.55% Auto Loan Backed Notes, Class A-2
Xxxxx Incorporated $44,500,000 5.65% Auto Loan Backed Notes, Class A-3 99.77008%
$27,000,000 5.76% Auto Loan Backed Notes, Class A-4 99.74273%
$7,000,000 6.09% Auto Loan Backed Certificates 99.67601%
99.53495%
Xxxxxxx Xxxxx Xxxxxx Inc $26,500,000 5.261% Auto Loan Backed Notes, Class A-1 99.825%
$35,000,000 5.55% Auto Loan Backed Notes, Class A-2 99.77008%
$44,500,000 5.65% Auto Loan Backed Notes, Class A-3 99.74273%
$27,000,000 5.76% Auto Loan Backed Notes, Class A-4 99.67601%
$ 7,000,000 6.09% Auto Loan Backed Certificates 99.53495%
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