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EXHIBIT 1.1
Onyx Acceptance Grantor Trust 1997-3
____% Auto Loan Pass-Through Certificates
Onyx Acceptance Financial Corporation
as Seller
Onyx Acceptance Corporation
as Servicer
UNDERWRITING AGREEMENT
September __, 1997
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
1. Introductory. Onyx Acceptance Financial Corporation (the
"Company") proposes to cause Onyx Acceptance Grantor Trust 1997-3 (the "Trust")
to sell to Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the
"Underwriter") ____% Auto Loan Pass-Through Certificates, Series 1997-3 (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 September 1, 1997 (the "Pooling and Servicing
Agreement"). Pursuant to an insurance and reimbursement agreement (the
"Insurance Agreement") among the Company, Onyx Acceptance Corporation, the
Trustee and Capital Markets Assurance Corporation ("the Insurer"), the Insurer
has issued its surety bond (the "Surety Bond") to the Trustee for the benefit of
the Certificateholders guaranteeing timely payment of interest and principal on
the Certificates. The assets of the Trust will include, among other things, (i)
a pool (the "Contract Pool") of fixed rate Rule of 78's and Simple Interest
Method motor vehicle retail installment sales contracts (the "Contracts")
secured by new and used automobiles and light-
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duty trucks (the "Financed Vehicles"), certain monies due or to become due
thereunder on or after the Cutoff Date (as hereinafter defined), such Contracts
to be sold to the Trust by the Seller and serviced by the Servicer, (ii) the
Surety Bond, (iii) security interests in the Financed Vehicles and the rights to
receive proceeds from claims on certain insurance policies covering the Financed
Vehicles or the individual obligors under each related Contract and the right to
proceeds under a blanket insurance policy, (iv) all amounts on deposit in the
Collection Account, (v) the right of the Company to cause Onyx to repurchase
certain Contracts under certain circumstances, and (vi) all proceeds of the
foregoing. The Certificates will be issued in an aggregate principal amount of
$___________ which is equal to the sum of $___________ outstanding principal
balance of Contracts as of September 1, 1997 (the "Cut-Off Date"). Capitalized
terms used herein and not otherwise herein defined shall have the meanings
assigned to such terms in the Pooling and Servicing Agreement.
The Company hereby agrees with the Underwriter, as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with the Underwriter that:
(i) A registration statement on Form S-1 (No.
333-_____), including a prospectus and such amendments thereto as
may have been required on the date hereof, relating to the
Certificates, has been filed with the Securities and Exchange
Commission (the "Commission"). The conditions to the use of a
registration statement on Form S-1 under the Securities Act of 1933,
as amended (the "Act"), as set forth in the General Instructions to
Form S-1, have been, or will prior to the effective date of the
Registration Statement be, satisfied in all material respects with
respect to the Company and the Registration Statement.
(ii) The Company will next file with the Commission
either, (A) prior to the effectiveness of such registration
statement, a further amendment thereto (including the form of final
prospectus) or (B) after effectiveness of such registration
statement, a final prospectus in accordance with Rules 430A and
424(b) (each, as hereinafter de-
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fined). In the case of clause (B), the Company has included in such
registration statement, as amended at the Effective Date (as
hereinafter defined), all information (other than Rule 430A
Information (as hereinafter defined)) required by the Act and the
rules and regulations thereunder (the "Rules and Regulations") to be
included in the prospectus with respect to the Certificates and the
offering thereof. As filed, such amendment and form of final
prospectus, or such final prospectus, shall include all Rule 430A
Information and, except to the extent the Underwriter shall agree in
writing to a modification, shall be in all substantive respects in
the form furnished to the Underwriter prior to the Execution Time
(as hereinafter defined) or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the latest
Preliminary Prospectus (as hereinafter defined) which has previously
been furnished to the Underwriter) as the Company has advised the
Underwriter, prior to the Execution Time, will be included or made
therein.
The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "Effective Date" shall
mean each date that the Registration Statement and any
post-effective amendment or amendments thereto became or become
effective under the Act. "Execution Time" shall mean the date and
time that this Agreement is executed and delivered by the parties
hereto. "Preliminary Prospectus" shall mean any preliminary
prospectus referred to in the preceding paragraph and any
preliminary prospectus included in the Registration Statement which,
as of the Effective Date, omits Rule 430A Information. "Prospectus"
shall mean the prospectus relating to the Certificates that is first
filed with the Commission pursuant to Rule 424(b) and any prospectus
subsequently filed pursuant to Rule 424 or, if no filing pursuant to
Rule 424(b) is required, shall mean the form of final prospectus
included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in the preceding paragraph and any registration
statement required to be filed under the Act or the Rules and
Regulations,
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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 Company makes no representations or
warranties as to the information contained in, or omitted from, the
Registration Statement or the Prospectus (or any supplements
thereto) in reliance upon, and in conformity with, information
furnished in writing to the Company on the Underwriter's behalf
specifically for use in connection with the preparation of the
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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 properties are bound which would have a
material adverse effect on the transactions contemplated herein or
in the Pooling and Servicing Agreement, the Purchase Agreement 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
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constitute a default under, any statute, rule, regulation or order
of any governmental agency or body or any court having jurisdiction
over the Company or any of its properties or any agreement or
instrument to which the Company is a party or by which the Company
is bound or to which any of the properties of the Company is
subject, or By-Laws of the Company and the Company has full
corporate power and authority to authorize, cause the Trust to
issue, and sell the Certificates as contemplated by this Agreement,
to enter into this Agreement, the Pooling and Servicing Agreement,
the Purchase Agreement 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 Com- pany.
3. Purchase, Sale, Payment and Delivery of Certificates. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to sell
to the Underwriter, and the Underwriter agrees to purchase from the Company
$___________ aggregate principal amount of the Certificates. The Certificates
are to be purchased at a purchase price of ________% of the aggregate principal
amount thereof plus accrued interest, if any, from September ___, 1997.
The Company will deliver the Certificates to the Underwriter against
payment of the purchase price in immediately available funds by wire transfer to
the order of the Company at the offices of the Company at 0000, Xxxxxx Xxxxxx
Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000 at 10:00 a.m., New York City time on
September ___, 1997 or at such other time not later than seven full business
days thereafter as the Underwriter and the Company determine, such time being
herein referred to as the "Closing Date". The Certificates so to be delivered
shall be represented by one or more global certificates registered in the name
of Cede & Co., as nominee for The Depository Trust Company and definitive
certificate(s) registered in the name(s) provided by the Underwriter, each in
such numbers as the Underwriter shall reasonably request not later than 48 hours
prior to the Closing Date. The Company shall make such definitive certificates
representing the Certificates available for inspection by the Underwriter at the
office at which the Certificates are to be delivered no later
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than 10:00 a.m., New York City time, on the business day prior to the Closing
Date.
4. Offering by the Underwriter. (a) It is understood that, after
the Registration Statement becomes effective, the Underwriter proposes to offer
the Certificates for sale to the public (which may include selected brokers and
dealers) as set forth in the Prospectus.
(b) The Underwriter may prepare and provide to prospective investors
certain ABS Term Sheets, Structural Term Sheets and Collateral Term Sheets in
connection with its offering of the Certificates, subject to the following
conditions:
(i) The Underwriter shall have complied with the
requirements of the no-action letter, dated February 17, 1995, issued by the
Commission to the Public Securities Association (the "No-Action Letter").
(ii) For purposes hereof, "ABS Term Sheets", "Structured
Term Sheets" and "Collateral Term Sheets" shall have the meanings given such
terms in the No-Action Letter but shall include only those ABS Term Sheets,
Structured Term Sheets or Collateral Term Sheets that have been prepared or
delivered to prospective investors by or at the direction of the Underwriter.
(iii) All ABS Term Sheets provided to prospective
investors that are required to be filed pursuant to the No-Action Letter shall
bear a legend substantially in the form attached hereto as Exhibit A. The
Company shall have the right to require specific legends or notations to appear
on any ABS Term Sheets, the right to require changes regarding the use of
terminology and the right to determine the types of information appearing
therein. Notwithstanding the foregoing, this subsection (iii) will be satisfied
if all ABS Term Sheets referred to herein bear a legend in a form previously
approved in writing by the Company.
(iv) The Underwriter shall have provided the Company with
representative forms of all ABS Term Sheets prior to their first use, to the
extent such forms have not previously been approved in writing by the Company
for use by the Underwriter. The Underwriter shall have provided to the Company,
for filing as a post-effective amendment to the Registration Statement as
provided in Section 5(i), copies (in such format as required by the Company) of
all ABS Term Sheets that are required to be
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filed with the Commission pursuant to the No-Action Letter. The Underwriter may
provide copies of the foregoing in a consolidated or aggregated form including
all information required to be filed. All ABS Term Sheets described in this
subsection (iv) shall have been provided to the Company not later than 10:00
a.m. (New York City time) not less than one business day before filing thereof
is required to be made with the Commission pursuant to the No-Action Letter. The
Underwriter shall have not provided to any investor or prospective investor in
the Certificates any ABS Term Sheets on or after the day on which ABS Term
Sheets are required to be provided to the Company pursuant to this subsection
(iv) (other than copies of ABS Term Sheets previously submitted to the Company
in accordance with this subsection (iv) for filing pursuant to Section 5(i)),
unless such ABS Term Sheets are preceded or accompanied by the delivery of a
Prospectus to such investor or prospective investor.
(v) All information included in the ABS Term Sheets shall
have been generated based on substantially the same methodology and assumptions
that are used to generate the information in the Prospectus as set forth
therein; provided that the ABS Term Sheets may have included information based
on alternative methodologies or assumptions if specified therein. If any ABS
Term Sheets that are required to be filed were based on assumptions with respect
to the Contract Pool that differ from the final Contract Pool information in any
material respect or on Certificate structuring terms that were revised in any
material respect prior to the printing of the Prospectus, the Underwriter shall
have prepared revised ABS Term Sheets based on the final Contract Pool
information and structuring assumptions, shall have circulated such revised ABS
Term Sheets to all recipients of the preliminary versions thereof that indicated
orally to the Underwriter they would purchase all or any portion of the
Certificates, and shall have included such revised ABS Term Sheets (marked, "as
revised") in the materials delivered to the Company pursuant to subsection (iv)
above.
(vi) The Company shall not be obligated to file any ABS
Term Sheets that have been determined to contain any material error or omission,
provided that, at the request of the Underwriter, the Company will file ABS Term
Sheets that contain a material error or omission if clearly marked "superseded
by materials dated _______" and accompanied by corrected ABS Term Sheets that
are marked, "supersedes material previously dated _______, as corrected." If,
within the period during which the Prospectus relating to the Certificates is
required to be
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delivered under the Act, any ABS Term Sheets are determined, in the reasonable
judgment of the Company or the Underwriter, to contain a material error or
omission, the Underwriter shall prepare a corrected version of such ABS Term
Sheets, shall circulate such corrected ABS Term Sheets to all recipients of the
prior versions thereof that either indicated orally to the Underwriter they
would purchase all or any portion of the Certificates, or actually purchased all
or any portion thereof, and shall deliver copies of such corrected ABS Term
Sheets (marked, "as corrected") to the Company for filing with the Commission in
a subsequent post-effective amendment to the Registration Statement (subject to
the Company's obtaining an accountant's comfort letter in respect of such
corrected ABS Term Sheets, which shall be at the expense of the Underwriter).
(vii) The Underwriter shall be deemed to have represented
as of the Closing Date, that, except for ABS Term Sheets provided to the Company
pursuant to subsection (iv) above, the Underwriter did not provide any
prospective investors with any information in written or electronic form in
connection with the offering of the Certificates that is required to be filed
with the Commission in accordance with the No-Action Letter.
(viii) In the event of any delay in the delivery by the
Underwriter to the Company of all ABS Term Sheets required to be delivered in
accordance with subsection (iv) above, or in the delivery of the accountant's
comfort letter in respect thereof pursuant to Section 5(x), the Company shall
have the right to delay the release of the Prospectus to investors or to the
Underwriter, to delay the Closing Date and to take other appropriate actions in
each case as necessary in order to allow the Company to comply with its
agreement set forth in Section 5(x) to file the ABS Term Sheets by the time
specified therein.
5. Certain Agreements of the Company. The Company agrees with the
Underwriter 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
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provide evidence satisfactory to the Underwriter of such timely filing. The
Company will advise the Underwriter promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus, and will not
effect any such amendment or supplementation to which the Underwriter
shall reasonably object. The Company will also advise you promptly of the
effectiveness of any amendment or supplementation of the Registration
Statement or Prospectus, of any request by the Commission for any amendment
or supplementation of the Registration Statement or the Prospectus or for
any additional information, of the receipt by the Company of any
notification with respect to the suspension of qualification of the
Certificates for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose and of the institution by the Commission
of any stop order proceeding in respect of the Registration Statement, and
will use 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 the Underwriter copies of the
Registration Statement, each related preliminary prospectus, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as the Underwriter may reasonably
request.
(v) The Company will cooperate with the Underwriter in arranging for
the qualification of the Certificates for sale and the determination of
their eligibility for investment under the laws of such jurisdictions as
the Underwriter designates and will continue such qualifications in effect
so long as required for the distribution of the Certificates; provided,
however, that the Company shall not be obligated to qualify to do business
in any jurisdiction in which it is not currently so qualified or to take
any action which would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
(vi) For a period from the date of this Agreement until the
retirement of the Certificates, the Company will furnish to the Underwriter
copies of each certificate and the annual statements of compliance
delivered to the Trustee pursuant to Article III of the Pooling and
Servicing Agreement and the annual independent public accountant's reports
furnished to the Trustee pursuant to Article III of the Pooling and
Servicing Agreement, as soon as practicable after such statements and
reports are furnished to the Trustee.
(vii) So long as any of the Certificates are outstanding, the
Company will furnish to you as soon as practicable, (A) all documents
distributed, or caused to be distributed, by the Servicer to the
Certificateholders, (B) all documents filed, or caused to be filed, by the
Company with the Commission pursuant to the Securities Act of 1934, as
amended, any order of the Commission thereunder or pursuant to a
"no-action" letter from the staff of the Commission and (C) from time to
time, such other information in the possession of the Company concerning
the Trust and any other information concerning the Company filed with any
governmental or regulatory authority which is
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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 xxxx
its computer records relating to the Contracts to show the sale to the
Company of the Contracts and its subsequent transfer to the Trust, and from
and after the Closing Date the Company shall not and shall instruct the
Servicer not to take any action inconsistent with the Trust's ownership of
such Contracts, other than as permitted by the Pooling and Servicing
Agreement.
(ix) The Company will file with the Commission a post-effective
amendment setting forth all ABS Terms Sheet provided to the Company by the
Underwriter and identified by it as such within the time period allotted
for such filing pursuant to the No-Action Letter; provided, however, that
prior to such filing of the ABS Term Sheets (other than any ABS Term Sheets
that are not based on the Contract Pool information) by the Company, the
Underwriter must comply with its obligations pursuant to Section 4 and the
Company must receive a letter from Coopers & Xxxxxxx, certified public
accountants, satisfactory in form and substance to the Company, to the
effect that such accountants have performed certain specified procedures,
all of which have been agreed to by the Company, as a result of which they
have determined that the information included in the ABS Term Sheets (if
any), provided by the Underwriter to the Company for filing on a
post-effective amendment pursuant to Section 4 and, if the Company then so
specifies, this subsection (i), and that the accountants have examined in
accordance with such agreed upon procedures, is accurate except as to such
matters that are not deemed by the Company to be material. The foregoing
letter shall be at the expense of the Underwriter. The Company shall file
any corrected ABS Term Sheets described in Section 4(b)(vi) as soon as
practicable following receipt thereof.
6. Payment of Expenses. Except as provided in Sections 4(b) and
5(ix) the Company will pay all expenses
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incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement as originally filed
and of each amendment thereto, (ii) the Trustee's fees and the fees and
disbursements of the counsel to the Trustee, (iii) any up-front fees and
premiums payable to the Insurer and the fees and disbursements of counsel to the
Insurer, (iv) the fees and disbursements of the accountants, (v) the fees of the
rating agencies and (vi) blue sky expenses.
7. Conditions to the Obligations of the Underwriter. The obligation
of the Underwriter to purchase and pay for the Certificates will be subject to
the accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the written statements of officers of the Company
made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(i) On or prior to the date of this Agreement, the Underwriter shall
have received a letter, dated the date of this Agreement, of Coopers &
Xxxxxxx and substantially in the form heretofore agreed, which letter shall
be in form and substance agreed to by the Underwriter.
(ii) If the Registration Statement has not become effective prior to
the date of this Agreement, unless the Underwriter agrees in writing to a
later time, the Registration Statement shall have become effective not
later than (A) 6:00 p.m., New York City time, on the date of determination
of the public offering price, if such determination occurred at or prior to
12:00 noon, New York City time, on such date or (B) 3:00 p.m. on the
business day following the day on which the public offering price was
determined, if such determination occurred after 12:00 noon, New York City
time, on such date; if filing of the Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Prospectus shall be filed in the
manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted
or threatened.
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(iii) Subsequent to the execution and delivery of this Agreement,
there shall have not occurred (a) any change, or any development involving
a prospective change, in or affecting particularly the business or
properties of the Company or Onyx which, in the reasonable judgment of the
Underwriter materially impairs the investment quality of the Certificates;
(b) any suspension or material limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices
for trading on such exchange, or any suspension of trading of any
securities of Onyx on any exchange or in the over-the-counter market by
such exchange or over-the-counter market or by the Commission; (c) any
banking moratorium declared by Federal, New York or California authorities;
(d) any outbreak or material escalation of major hostilities or any other
substantial national or international calamity or emergency if, in the
reasonable judgment of the Underwriter, the effect of any such outbreak,
escalation, calamity or emergency on the United States financial markets
makes it impracticable or inadvisable to proceed with completion of the
sale of, and any payment for, the Certificates.
(iv) The Underwriter shall have received an opinion, dated the
Closing Date, of Xxxxxxx & Xxxxx L.L. P., counsel of the Company,
substantially to the effect that:
(a) The Company (1) is duly incorporated and is
validly existing and in good standing under the laws of
the State of Delaware, (2) has the corporate power and
corporate authority to own its properties and conduct
its business as described in the Prospectus and (3)
had at all relevant times, and now has, the power,
authority and legal right to acquire, own and sell the
Contracts;
(b) The Company has, or at the time such agreement
was executed and delivered, had, the corporate power and
corporate authority to execute and deliver this
Agreement, the Pooling and Servicing Agreement, the
Purchase Agreement and the Insurance Agreement and to
consummate the transactions contemplated herein and
therein;
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(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 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,
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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 Agreement, and delivered to and paid for by
the Underwriter pursuant to this Agreement, will be duly
and validly issued and outstanding and will be entitled
to the benefits of the Pooling and Servicing Agreement;
(j) Assuming the authorization, execution and
delivery thereof by the Trustee and the Servicer with
respect to the Pooling and Ser-
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vicing 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 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;
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(m) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act
of 1939, as amended; and
(n) The Trust is not now, and immediately
following the sale of the Certificates pursuant to this
Agreement will not be, required to be registered under
the Investment Company Act of 1940, as amended.
In addition, such counsel shall opine as to certain matters relating
to the acquisition by the Company of a perfected first priority security
interest in the vehicles financed by motor vehicle installment loans made
by the Company.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent deemed proper and as stated therein, on certificates of
responsible officers of the Company and public officials. References to the
Prospectus in this paragraph (iv) include any supplements thereto.
(v) The Underwriter shall have received an opinion, dated the
Closing Date, of Xxxxxxx & Xxxxx L.L.P., counsel to Onyx, substantially to
the effect that:
(a) Onyx (1) is duly incorporated and is validly
existing and in good standing under the laws of the
State of California, (2) has the corporate power and
corporate authority to own its properties and conduct
its business as described in the Prospectus and (3) had
at all relevant times, and now has, the power, authority
and legal right to acquire, own and sell the Contracts;
(b) Onyx has the corporate power and corporate
authority to execute and deliver the Pooling and
Servicing Agreement 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;
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(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, 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 Onyx; and
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(f) The indemnification agreement dated as of the
date hereof, between Onyx and the Underwriter has been
duly authorized, executed and delivered by Onyx.
(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.
In addition, such counsel shall state that they have participated in
conferences with the officers and other representatives of the Company and Onyx,
representatives of the independent public accountants of the Company and Onyx
and representatives of the Underwriter and the Insurer at which the contents of
the Registration Statement and the Prospectus and related matters were discussed
and, although such counsel has not independently verified and are not passing
upon and do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement and the
Prospectus, on the basis of the foregoing, no facts have come to such counsel's
attention that lead them to believe that the Registration Statement, as of the
Effective Date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus as of its date or as
of the Closing Date
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21
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading (it
being understood that such counsel need make no comment and express no belief
with respect to the financial statements and related notes, schedules and the
other financial and statistical data included in the Registration Statements or
the Prospectus).
(vi) The Underwriter shall have received an opinion or opinions of
Xxxxxxx & Xxxxx L.L. P., counsel to the Company, dated the Closing Date and
satisfactory in form and substance to you, with respect the
characterization of the transfer of the Contracts by Onyx to the Company as
a sale and with respect to the perfection of the Trust's interests in the
Contracts and with respect to the non-consolidation of the Company with
Onyx in the event of bankruptcy filing with respect to Onyx and with
respect to certain other matters.
(vii) The Underwriter shall have received an opinion of Xxxxxxx &
Xxxxx L.L.P., tax counsel to the Company, dated the Closing Date and
satisfactory in form and substance to you substantially to the effect that:
(a) the Trust created by the Pooling and Servicing
Agreement will not be classified as an association
taxable as a corporation for federal income tax purposes
and, instead, under subpart E, part I of subchapter J of
the Internal Revenue Code of 1986, as amended, the Trust
will be treated as a grantor trust, and subject to
possible recharacterization of certain amounts paid by
the Trust to the Servicer, the holders of the
Certificates will be treated as owning an undivided
pro-rata interest in the income and corpus attributable
to the Trust;
(b) The statements in the Registration Statement
and Prospectus under the headings "Prospectus Summary --
Federal Income Tax Status" and "Certain Federal Income
Tax Consequences" to the extent that they constitute
matters of law or legal conclusions with respect
thereto, have been prepared or reviewed by such
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counsel and are correct in all material respects; and
(c) For California franchise and income tax
purposes, the Trust created by the Pooling and Servicing
Agreement will not be subject to California franchise or
income taxes, and Certificateholders who are not
residents of or otherwise subject to tax in California
will not be subject to California franchise or income
taxes with respect to interest or other amounts
allocable to such Certificateholder as a result of such
Certificateholder's beneficial ownership of
Certificates.
(viii) The Underwriter shall have received an opinion, dated the
Closing Date, of Shaw, Pittman, Xxxxx & Xxxxxxxxxx, counsel to the Insurer,
substantially to the effect that:
(a) The Insurer is a corporation validly existing,
in good standing and licensed to transact the business
of surety and financial guaranty insurance under the
laws of the State of New York;
(b) The Insurer has the corporate power to execute
and deliver, and to take all action required of it under
the Surety Bond, the Insurance Agreement and the
Indemnification Agreement;
(c) Except as have already been obtained, no
authorization, consent, approval, license, formal
exemption or declaration from, nor any registration or
filing with, any court or governmental agency or body of
the United States of America or the State of New York,
which if not obtained would affect or impair the
validity or enforceability of the Surety Bond, the
Insurance Agreement or the Indemnification Agreement
against the Insurer, is required in connection with the
execution and delivery by the Insurer of the Surety
Bond, the Insurance Agreement or the Indemnification
Agreement or in connection with the Insurer's
performance of its obligations thereunder;
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23
(d) The Surety Bond, the Insurance Agreement and
the Indemnification Agreement have been duly authorized,
executed and delivered by the Insurer, and the Surety
Bond and, assuming due authorization, execution and
delivery of the Insurance Agreement by the parties
thereto (other than the Insurer), the Insurance
Agreement constitute the legally valid and binding
obligations of the Insurer, enforceable in accordance
with their respective terms subject, as to enforcement,
to (1) bankruptcy, reorganization, insolvency,
moratorium and other similar laws relating to or
affecting the enforcement of creditors' rights
generally, including, without limitation, laws relating
to fraudulent transfers or conveyances, preferential
transfers and equitable subordination, presently or from
time to time in effect and general principles of equity
(regardless of whether such enforcement is considered in
a proceeding in equity or at law), as such laws may be
applied in any such proceeding with respect to the
Insurer and (2) the qualification that the remedy of
specific performance may be subject to equitable
defenses and to the discretion of the court before which
any proceedings with respect thereto may be brought; and
(e) The Surety Bond is not required to be
registered under the Securities Act of 1933, as amended.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent deemed proper and as stated therein, on certificates of
responsible officers of the Insurer and public officials. References to the
Prospectus in this paragraph (viii) include any supplements thereto.
(ix) The Underwriter shall have received an opinion of counsel to
the Trustee, dated the Closing Date and satisfactory in form and substance
to you, substantially to the effect that:
(a) The Trustee is a banking corporation validly
existing under the laws of the State of New York;
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24
(b) The Trustee has the requisite power and
authority to execute, deliver and perform its
obligations under the Pooling and Servicing Agreement,
and has taken all necessary action to authorize the
execution, delivery and performance by it of the Pooling
and Servicing Agreement; and
(c) The Pooling and Servicing Agreement has been
duly executed and delivered by the Trustee and
constitutes a legal, valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance
with its terms, except that certain of such obligations
may be enforceable solely against the Trust Estate and
except that such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium,
liquidation, or other similar laws applicable to banking
corporations affecting the enforcement of creditors'
rights generally, and by general principles of equity ,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless
of whether such enforceability is considered in a
proceeding in equity or at law).
(x) The Underwriter shall have received from Skadden, Arps, Slate,
Xxxxxxx & Xxxx, counsel to the Underwriter, such opinion or opinions, dated
the Closing Date and satisfactory in form and substance to you, with
respect to the validity of the Certificates, the Registration Statement,
the Prospectus and other related matters as the Underwriter may require,
and the Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(xi) The Underwriter shall have received a letter, dated the Closing
Date, of Coopers & Xxxxxxx which meets the requirements of the subsection
(i) of this Section 7, except that the specified date referred to in such
subsection will be a date not more than five days prior to the Closing Date
for the purposes of this subsection.
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(xii) The Underwriter shall have received evidence satisfactory to
them that the Certificates have been rated in the highest rating category
by Xxxxx'x Investors Service, Inc. and by Standard & Poor's Ratings
Service.
(xiii) The Underwriter shall have received a certificate, dated
the Closing Date, of a Vice President or more senior officer of the Company
in which such officer shall state that, to the best of his or her knowledge
after reasonable investigation, the representations and warranties of the
Company in this Agreement are true and correct on and as of the Closing
Date, that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior
to the Closing Date, that the representations and warranties of the
Company, as Seller, in the Pooling and Servicing Agreement and the
conditions set forth in Section 2.2(b) of the Pooling and Servicing
Agreement, are true and correct as of the dates specified in the Pooling
and Servicing Agreement, that no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are threatened by the Commission and that,
subsequent to the date of the Prospectus, there has been no material
adverse change in the financial position or results of operations of the
Company's motor vehicle installment loan business except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(xiv) The Underwriter shall have received a certificate, dated the
Closing Date, of a Vice President or more senior officer of Onyx in which
such officer shall state that, to the best of his or her knowledge after
reasonable investigation, the representations and warranties of Onyx in the
Purchase Agreement are true and correct in all material respects on and as
of the Closing Date, that Onyx has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
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
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26
in the financial position or results of operations of Onyx's motor vehicle
installment loan business except as set forth in or contemplated by the
Prospectus or as described in such certificate.
(xv) The Surety Bond shall have been duly authorized, executed,
issued and delivered by the Insurer; all fees due and payable to the
Insurer as of the Closing Date shall have been paid in full; and the Surety
Bond shall conform to the description thereof in the Registration Statement
and the Prospectus.
(xvi) The Underwriter shall have received a Certificate from a
senior officer of the Insurer to the effect that such officer has no reason
to believe that the section of the Prospectus captioned "Description of the
Insurer" or any such amendment thereof or supplement thereto as of its
Effective Date or date of issuance, as the case may be, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
The Company will furnish or cause to be furnished to the Underwriter
such number of conformed copies of such opinions, certificates, letters and
documents as the Underwriter reasonably requests.
8. Indemnification.
(i) The Company will indemnify and hold harmless the Underwriter and
each person, if any, who controls the Underwriter with the meaning of
Section 15 of the Act against any losses, claims, damages or liabilities,
joint or several, to which the Underwriter may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of, or are based upon, any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not
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misleading; and will reimburse the Underwriter for any legal or other
expenses reasonably incurred by the Underwriter in connection with
investigating or defending any such action or claim; provided, however,
that the Company shall not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of, or is based upon,
an untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by the Underwriter expressly for use
therein, or (y) contained in any ABS Term Sheet to the extent set forth in
subsection (ii) of this Section 8; provided, further, that the Company
shall not be liable under this subsection (i) to the extent that such
losses, claims, damages or liabilities arose out of or are based upon an
untrue statement or omission made in any preliminary prospectus that is
corrected in the final Prospectus (or any amendment or supplement thereto),
and the Company has previously furnished copies thereof in sufficient
quantity to the Underwriter, if the person asserting such loss, claim,
damage or liability was not given the final Prospectus (or any amendment or
supplement thereto) on or prior to the confirmation of the sale of the
Certificates.
(ii) The Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers or agents who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained
in subsection (i) of this Section 8, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions,
(A) made in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information
furnished to the Company by the Underwriter through Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated expressly for use in the Registration Statement
(or any amendment thereto) or such preliminary prospectus or the Prospectus
(or any amendment or supple-
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28
ment thereto) or (B) made in the ABS Term Sheets distributed by the
Underwriter and filed as a post-effective amendment to the Registration
Statement or the Prospectus as a result of any filing pursuant to Section
5(x); provided however that the Underwriter will not be liable in any such
case to the extent that any such loss, claim or damage or liability arises
out of, or is based upon, an untrue statement or omission made in the ABS
Term Sheet or any supplement thereto in reliance upon and in conformity
with (x) information furnished to the Underwriter by the Company or (y)
information contained in the Registration Statement or any preliminary
prospectus or the Prospectus other than information described in clause (A)
above.
(iii) Each indemnified party shall give prompt notice to the
indemnifying party of any action commenced against the indemnified party in
respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have hereunder or otherwise than on account of
this indemnity agreement except and to the extent of any prejudice to such
indemnifying party arising from such failure to provide such notice. In
case any such action shall be brought against an indemnified party and it
shall have notified the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, to assume the defense thereof, with counsel,
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party with
respect to such action), and it being understood that the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys,
and, after notice from the indemnifying party to the indemnified party of
its election so to assume the defense thereof, the indemnifying party shall
not be liable to the indemnified party under subsections (i) or (ii) of
this Section 8 for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by the
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indemnified party, in connection with the defense thereof other than
reasonable costs of investigation.
9. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 8 is for any reason held to be unavailable other than in accordance with
its terms, then each indemnifying party shall contribute to the amount paid or
payable by such indemnifying party as a result of the losses, claims, damages or
liabilities referred to in 8(i) and 8(ii) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriter on the other from the offering of the Certificates or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and of the Underwriter on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriter on
the other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriter.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this Section 9 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
Section 9. Notwithstanding the provisions of this Section 9, the Underwriter
shall not be required to contribute any amount in excess of the underwriting
discount or commission applicable to the Certificates purchased by it hereunder.
The Company and the Underwriter agrees that it would not be just and equitable
if contribution pursuant to this Section 9 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 9. No person
guilty of fraudulent misrepresenta-
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tion (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
10. Termination. The Underwriter may terminate this Agreement
immediately upon notice to the Company, if at any time, prior to the Closing
Date, there has occurred: (a) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Company or Onyx which, in the reasonable judgment of the Underwriter,
materially impairs the investment quality of the Certificates; (b) any
suspension or material limitation of trading in securities generally on the New
York Stock Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company or of
Onyx on any exchange or in the over-the-counter market by such exchange or
over-the-counter market or by the Commission; (c) any banking moratorium
declared by Federal, New York or California authorities; or (d) any outbreak or
material escalation of major hostilities or any other substantial national or
international calamity or emergency if, in the reasonable judgment of the
Underwriter, the effect of any such outbreak, escalation, calamity or emergency
on the United States financial markets makes it impracticable or inadvisable to
proceed with completion of the sale of and any payment for the Certificates.
11. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the Underwriter set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation, or statement as to the results thereof, made by or on
behalf of the Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Certificates. If for any reason the
purchase of the Certificates by the Underwriter is not consummated, the Company
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 6 and the respective obligations of the Company and the
Underwriter pursuant to Sections 6, 8 and 9 shall remain in effect. If the
purchase of the Certificates by the Underwriter is not consummated for any
reason other than solely because of the occurrence of any event specified in
clauses (b), (c) or (d) of Section 7(iii) or Section 10, the Company will
reimburse the Underwriter for all out-of-pocket expenses (including fees and
disbursements of counsel) reason-
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31
ably incurred by it in connection with the offering of the Certificates.
12. Notices. All communications hereunder will be in writing and, if
sent to the Underwriter, will be mailed, delivered or telegraphed and confirmed
to the Underwriter at c/o Merrill Xxxxx & Co., World Financial Center,
Attention: Managing Director, Asset-Backed Securities Department, or to such
other address as the Underwriter may designate in writing to the Company, or if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to
the Company at Onyx Acceptance Financial Corporation, 0000 Xxxxxx Xxxxxx Xxxxx,
0xx Xxxxx, Xxxxxx XX 00000, Attention: Xxxxx X. Xxxxx, Esq., Executive Vice
President.
13. Successors. This Agreement will inure to the benefit of, and be
binding upon, the parties hereto and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 8 and 9 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Certificates
from the Underwriter shall be deemed to be a successor by reason merely of such
purchase.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
16. Severability of Provisions. Any covenant, provisions, agreement
or term of this Agreement that is prohibited or is held to be void or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the
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extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
17. Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the matters
and transactions contemplated hereby and supersedes all prior agreements and
understandings whatsoever relating to such matters and transactions.
18. Amendment. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
19. Heading. The headings in this Agreement are for the purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
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If the foregoing is in accordance with your
understanding of our agreement, kindly sign and return to us the enclosed
duplicate thereof, whereupon it will become a binding agreement among the
undersigned in accordance with its terms.
Very truly yours,
ONYX ACCEPTANCE FINANCIAL
CORPORATION
By:_________________________________
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
-----------------------------------
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Exhibit A
The information herein has been provided solely by
Xxxxxxx Lynch, Pierce, 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.
34