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EXHIBIT 1.1
Onyx Acceptance Grantor Trust 1998-1
____% Auto Loan Pass-Through Certificates, Series 1998-1
Onyx Acceptance Financial Corporation
as Seller
Onyx Acceptance Corporation
as Servicer
UNDERWRITING AGREEMENT
March __, 1998
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated as representative of
the several Underwriters
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 1998-1 (the "Trust") to sell to
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated (the "Representative") and
Solomon Brothers Inc. (together with the Representative the "Underwriters")
____% Auto Loan Pass-Through Certificates, Series 1998-1 (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 March 1, 1998 (the "Pooling and Servicing Agreement"). Pursuant to an
insurance and reimbursement agreement (the "Insurance Agreement") among the
Company, Onyx Acceptance Corporation, the Trustee and MBIA Insurance Corporation
(the "Insurer"), the Insurer has issued its financial guarantee insurance policy
(the "Guarantee") to the Trustee for the benefit of the Certificateholders
guaranteeing timely payment of interest and principal on the Certificates. The
assets of the Trust will include, among other things, (i) a pool (the "Contract
Pool")
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of fixed rate Rule of 78's and Simple Interest Method motor vehicle retail
installment sales contracts (the "Contracts") secured by new and used
automobiles and light-duty trucks (the "Financed Vehicles"), certain monies due
or to become due thereunder on or after the Cutoff Date (as hereinafter
defined), such Contracts to be sold to the Trust by the Seller and serviced by
the Servicer, (ii) the Guarantee, (iii) security interests in the Financed
Vehicles and the rights to receive proceeds from claims on certain insurance
policies covering the Financed Vehicles or the individual obligors under each
related Contract and the right to proceeds under a blanket insurance policy,
(iv) all amounts on deposit in the Collection Account, (v) the right of the
Company to cause Onyx to repurchase certain Contracts under certain
circumstances, and (vi) all proceeds of the foregoing. The Certificates will be
issued in an aggregate principal amount of $___________ which is equal to the
outstanding principal balance of Contracts as of March 1, 1998 (the "Cut-Off
Date"). Capitalized terms used herein and not otherwise herein defined shall
have the meanings assigned to such terms in the Pooling and Servicing Agreement.
The Company hereby agrees with the Underwriters, as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with the Underwriters that:
(i) A registration statement on Form S-1 (No. 333-46357),
including a prospectus and such amendments thereto as may have been
required on or prior to 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 effectiveness of such registration statement, a
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further amendment thereto (including the form of final prospectus) or
(B) after effectiveness of such registration statement, a final
prospectus in accordance with Rules 430A and 424(b) (each, as
hereinafter defined). In the case of clause (B), the Company has
included in such registration statement, as amended at the Effective
Date (as hereinafter defined), all information (other than Rule 430A
Information (as hereinafter defined)) required by the Act and the rules
and regulations thereunder (the "Rules and Regulations") to be included
in the prospectus with respect to the Certificates and the offering
thereof. As filed, such amendment and form of final prospectus, or such
final prospectus, shall include all Rule 430A Information and, except
to the extent the Underwriters shall agree in writing to a
modification, shall be in all substantive respects in the form
furnished to the Underwriters 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
Underwriters) as the Company has advised the Underwriters, 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
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mean the form of final prospectus included in the Registration
Statement at the Effective Date. "Registration Statement" shall mean
the registration statement referred to in the preceding paragraph and
any registration statement required to be filed under the Act or the
Rules and Regulations, including incorporated documents, exhibits and
financial statements, in the form in which it has, or shall, become
effective and, in the event that any post-effective amendment thereto
becomes effective prior to the Closing Date (as hereinafter defined),
shall also mean such registration statement as so amended. Such term
shall include Rule 430A Information deemed to be included therein at
the Effective Date as provided by Rule 430A. "Rule 424" and "Rule 430A"
refer to such rules and regulations under the Act. "Rule 430A
Information" means information with respect to the Certificates and the
offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A.
(iii) On the Effective Date, the Registration Statement did,
or will, comply in all material respects with the applicable
requirements of the Act and the Rules and Regulations; on the Effective
Date and when the Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Prospectus (and any
supplements thereto) will comply in all material respects with the
applicable requirements of the Act and the Rules and Regulations; on
the Effective Date, the Registration Statement did not, or will not,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and, on the Effective Date,
the Prospectus, if not filed pursuant to Rule 424(b), did not, or will
not, and on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Com-
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pany 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
Underwriters'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 the representations and warranties
of the Company, as Seller, in the Pooling and Servicing Agreement will
be true and correct, and each Contract will satisfy the conditions set
forth in Sections 2.2(b) thereof.
(vi) No consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required to be
obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement, except such as have been
obtained and made under the Act, such as may be required under state
securities laws and the filing of any financing statements required to
perfect the Trust's interest in the Contracts.
(vii) The Company is not in violation of its Certificate of
Incorporation or By-Laws or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
agreement or instrument to which it is a party or by which it or its
prop-
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erties are bound which violation or default would have a material
adverse effect on the transactions contemplated herein or in the
Pooling and Servicing Agreement, the Purchase Agreement or the
Insurance Agreement. The execution, delivery and performance of this
Agreement, the Pooling and Servicing Agreement, the Purchase 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
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 Certificates as contemplated by this
Agreement, to enter into this Agreement, the Pooling and 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 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 each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company the aggregate principal amount of Certificates set forth
opposite such Underwriter's name on Schedule I hereto. The Certificates are to
be purchased at a purchase price of _________% of the aggregate principal amount
thereof plus accrued interest, if any, from March __, 1998.
The Company will deliver the Certificates to the Underwriters against
payment of the purchase price in immediately available funds by wire transfer
to the order of the
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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 March __, 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 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 Underwriters, each in such numbers as the
Underwriters 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 Underwriters 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 Underwriters. (a) It is understood that, after the
Registration Statement becomes effective, the Underwriters propose to offer the
Certificates 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, Structural Term Sheets and Collateral Term Sheets in
connection with its offering of the Certificates, 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", "Structural 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, Structural Term Sheets or Collateral Term Sheets that have been
prepared or delivered to prospective investors by or at the direction
of the Underwriters.
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(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 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 a post-effective amendment to
the Registration Statement as provided in Section 5(ix), 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 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 Certificates any ABS Term Sheets on or
after the day on which ABS Term Sheets are required to be provided to
the Company pursuant to this subsection (iv) (other than copies of ABS
Term Sheets previously submitted to the Company in accordance with this
subsection (iv) for filing pursuant to Section 5(ix)), unless such ABS
Term Sheets are preceded or accompanied by the delivery of a Prospectus
to such investor or prospective investor.
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(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 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 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 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 Certificates 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 Certificates, or actually purchased all or any portion
thereof, and shall deliver copies of such corrected
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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 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 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
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(ix), 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(ix) 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) 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. 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 Underwriters of such timely filing. The Company will advise the
Underwriters promptly
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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 Underwriters shall reasonably object. The
Company will also advise you promptly of the effectiveness of any
amendment or supplementation of the Registration Statement or
Prospectus, of any request by the Commission for any amendment or
supplementation of the Registration Statement or the Prospectus or for
any additional information, of the receipt by the Company of any
notification with respect to the suspension of qualification of the
Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and of the institution
by the Commission of any stop order proceeding in respect of the
Registration Statement, and will use 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.
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(iv) The Company will furnish to each 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 each
Underwriter may reasonably request.
(v) The Company will cooperate with the Underwriters 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 each Underwriter designates and will continue
such qualifications in effect so long as required for the distribution
of the Certificates; provided, however, that the Company shall not be
obligated to qualify to do business in any jurisdiction in which it is
not currently so qualified or to take any action which would subject it
to general or unlimited service of process in any jurisdiction where it
is not now so subject.
(vi) For a period from the date of this Agreement until the
retirement of the Certificates, the Company will furnish to the
Underwriters 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 con-
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cerning the Company filed with any governmental or regulatory authority
which is otherwise publicly available as you may reasonably request.
(viii) On or before the Closing Date the Company shall cause
its computer records relating to the Contracts to be marked to show
the Trust's absolute ownership of the Contracts and shall cause the
Servicer to mark its computer records relating to the Contracts to
show the sale to the Company of the Contracts and 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 Pooling and Servicing Agreement.
(ix) The Company will file with the Commission a
post-effective amendment setting forth each ABS Terms 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 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 Coopers & Xxxxxxx have
determined that the information included in such ABS Term Sheet (if
any), provided by the Underwriters to the Company for filing on a
post-effective amendment pursuant to Section 4 and, if the Company then
so specifies, this subsection (ix), 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.
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6. Payment of Expenses. Except as provided in Sections 4(b) and 5(ix)
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, (ii) the Trustee's fees and the fees and disbursements of the
counsel to the Trustee, (iii) any up-front fees and premiums payable to the
Insurer and the fees and disbursements of counsel to the Insurer, (iv) the fees
and disbursements of the accountants, (v) the fees of the rating agencies and
(vi) blue sky expenses.
7. Conditions to the Obligations of the Underwriters. The obligation
of the Underwriters 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
Representative 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 Representative.
(ii) If the Registration Statement has not become effective
prior to the date of this Agreement, unless the Representative 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 determined, if such determination
occurred after 12:00 noon, New York City time, on such date; if filing
of the Prospectus, or any supplement thereto, is required pursuant to
Rule 424(b), the Prospectus shall be filed in the manner and within the
time period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued
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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 Underwriters, materially impairs the
investment quality of the Certificates; (b) any suspension or material
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of Onyx on any
exchange or in the over-the-counter market by such exchange or
over-the-counter market or by the Commission; (c) any banking
moratorium declared by Federal, New York or California authorities; (d)
any outbreak or material escalation of major hostilities or any other
substantial national or international calamity or emergency if, in the
reasonable judgment of the 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 Certificates.
(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
author-
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ity to execute and deliver this Agreement, the Pooling and
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,
Pooling and 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 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 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 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
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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 or the Insurance Agreement or the Certificates, (2)
seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this
Agreement, the Pooling and Servicing Agreement, the Purchase
Agreement or the Insurance Agreement (3) seeking adversely to
affect the federal income tax attributes of the Certificates
as described in the Prospectus under the headings "Prospectus
Summary -- Tax Status" and "Certain Tax Consequences";
(f) This Agreement, the Pooling and Servicing Agreement,
the Purchase Agreement 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 Agree-
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ment, and delivered to and paid for by the Underwriters
pursuant to this Agreement, will be duly and validly issued
and outstanding and will be entitled to the benefits of the
Pooling and Servicing Agreement;
(j) Assuming the authorization, execution and delivery
thereof by the Trustee and the Servicer with respect to the
Pooling and Servicing Agreement, and by Onyx with respect to
Purchase Agreement and the Insurer with respect to the
Insurance Agreement, each such agreement constitutes the
legal, valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, subject, as
to enforcement, to (1) the effect of bankruptcy, insolvency,
reorganization, moratorium, conservatorship, receivership or
other similar laws of general application relating to or
affecting creditors' rights generally (2) the application of
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and (3) the unenforceability under certain circumstances
of provisions indemnifying a party against liability where
such indemnification is contrary to public policy;
(k) The Registration Statement became effective under
the Act as of the date and time specified in such opinion;
after due inquiry, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Act; the Registration Statement, and each amendment thereof
or supplement thereto as of its Effective Date and the
Prospectus as of its date of 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
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related notes, schedules and other financial and statistical
data included therein;
(l) The Certificates, the Pooling and Servicing
Agreement, the Purchase Agreement, and the Insurance
Agreement conform in all material respects to the descriptions
thereof contained in the Registration Statement and the
Prospectus;
(m) The Pooling and Servicing Agreement is not required
to be qualified under the Trust Indenture Act of 1939, as
amended; and
(n) The Trust is not now, and immediately following the
sale of the Certificates pursuant to this Agreement will not
be, required to be registered under the Investment Company
Act of 1940, as amended.
In addition, such counsel shall opine as to certain matters
relating to the acquisition by the Company of a perfected first
priority security interest in the vehicles financed by motor vehicle
installment loans made by the Company.
In rendering such opinion, such counsel may rely as to matters
of fact, to the extent deemed proper and as stated therein, on
certificates of responsible officers of the Company and public
officials. References to the Prospectus in this paragraph (iv) include
any supplements thereto.
(v) The Underwriters shall have received an opinion, dated the
Closing Date, of Xxxxxxx & Xxxxx L.L.P., counsel to Onyx, substantially
to the effect that:
(a) Onyx (1) is duly incorporated and is validly
existing and in good standing under the laws of the State of
California, (2) has the corporate power and corporate
authority to own its properties and conduct its business as
described in the Prospectus and (3) had at all relevant times,
and now has, the
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20
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 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 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 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 and the Purchase
Agreement;
(d) None of the execution, delivery and performance by
Onyx of the Pooling and Servicing 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,
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21
any rule, order, statute or regulation known to such counsel
to be currently applicable to Onyx of any court, regulatory
body, administrative agency or governmental body having
jurisdiction over Onyx or the terms of any material indenture
or other material agreement or instrument known to such
counsel to which Onyx is a party or by which it or its
properties are bound;
(e) The Pooling and Servicing Agreement and the Purchase
Agreement have each been duly authorized, executed and
delivered by Xxxx; and
(f) The indemnification agreement dated as of the date
hereof, between Onyx and the Underwriters has been duly
authorized, executed and delivered by Xxxx.
(g) Assuming the authorization, execution and delivery
thereof by the Trustee and the Company with respect to the
Pooling and Servicing Agreement and by the Company with
respect to Purchase Agreement, each such agreement constitutes
the legal, valid and binding agreement of Onyx, enforceable
against Onyx in accordance with its terms, subject, as to
enforcement, to (1) the effect of bankruptcy, insolvency,
reorganization, moratorium, conservatorship, receivership or
other similar laws of general application relating to or
affecting creditors' rights generally (2) the application of
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and (3) the unenforceability under certain
circumstances of provisions indemnifying a party against
liability where such indemnification is contrary to public
policy;
In rendering such opinion, such counsel may rely as to matters
of fact, to the extent deemed proper and as stated therein, on
certificates of responsible officers of Onyx and public officials.
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In addition, such counsel shall state that they have participated in
conferences with the officers and other representatives of the Company and Onyx,
representatives of the independent public accountants of the Company and Onyx
and representatives of the 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 statements contained in the Registration Statement and the
Prospectus, on the basis of the foregoing, no facts have come to such counsel's
attention that lead them to believe that the Registration Statement, as of the
Effective Date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus as of its date or as
of the Closing Date contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need make no comment
and express no belief with respect to the financial statements and related
notes, schedules and the other financial and statistical data included in the
Registration Statements or the Prospectus).
(vi) The Underwriters shall have received an opinion or
opinions of Xxxxxxx & Xxxxx L.L.P., counsel to the Company, dated the
Closing Date and satisfactory in form and substance to you, with
respect the characterization of the transfer of the Contracts by 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 Trust created by the Pooling and Servicing
Agreement will not be clas-
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23
sified 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 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 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;
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24
(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 March , 1998 among 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)
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25
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.
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
counsel to the Trustee, dated the Closing Date and satisfactory in form
and substance to you, substantially to the effect that:
(a) The Trustee is a banking corporation validly
existing under the laws of the State of New York;
(b) The Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Pooling
and Servicing Agreement, and has taken all necessary action
to authorize the execution, delivery and performance by it of
the Pooling and Servicing Agreement; and
(c) The Pooling and Servicing Agreement has been duly
executed and delivered by the Trustee and constitutes a legal,
valid and binding obligation of the Trustee, enforceable
against the Trustee in accordance with its terms, except that
certain of such obligations may be enforceable solely against
the Trust Estate and except that such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium,
liquidation, or other similar laws applicable to banking
corporations affecting the enforcement of
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26
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 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 Certificates,
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.
(xi) The Underwriters shall have received a letter, dated the
Closing Date, of Xxxxxxx & Xxxxxxx which meets the requirements of the
subsection (i) of this Section 7, except that the specified date
referred to in such subsection will be a date not more than five days
prior to the Closing Date for the purposes of this subsection.
(xii) The Underwriters 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 Services.
(xiii) 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 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 Sec-
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tion 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 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 are true and correct in
all material respects on and as of the Closing Date, that Onyx has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied thereunder at or prior to the Closing
Date, that the representations and warranties of Onyx, as Servicer, in
the Pooling and Servicing Agreement are true and correct as of the
dates specified in the Pooling and Servicing Agreement, there has been
no material adverse change in the financial position or results of
operations of Onyx's motor vehicle installment loan business except as
set forth in or contemplated by the Prospectus or as described in such
certificate.
(xv) The 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.
(xvi) 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
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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.
8. Indemnification.
(i) The Company will indemnify and hold harmless the
Underwriters and each person, if any, who controls the Underwriters
with the meaning of Section 15 of the Act against any losses, claims,
damages or liabilities, joint or several, to which the Underwriters 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
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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 Certificates.
(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 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 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(ix);
provided however that the Underwriters will not be
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30
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 Underwriters 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.
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31
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 Underwriters 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 Underwriters 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 Underwriters
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
Underwriters. 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 Underwriters 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 Underwriters
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 Underwriters agree 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
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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 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
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 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 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 Certificates. If for any reason the purchase of the
Certificates by the Underwriters 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 Underwriters pursuant to
Sections 6, 8 and 9 shall remain in effect. If the purchase of the Certificates
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 Underwriter fails to perform its obligations hereunder, the
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33
Company will reimburse the Underwriter for all out-of-pocket expenses (including
fees and disbursements of counsel) reasonably incurred by it in connection with
the offering of the Certificates.
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 Xxxxx & Co., World Financial Center,
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 Certificates
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
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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.
20. 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.
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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
Salomon Brothers Inc
By: Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
-----------------------------------
Name:
Title:
For themselves and the other several
underwriters named in Schedule I
attached hereto.
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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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Schedule I
Initial
Principal
Amount
------------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx and Xxxxx
Incorporated........................................ $
Salomon Brothers Inc........................................ $
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