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EXHIBIT 1.3
EXECUTION COPY
Onyx Acceptance Owner Trust 1999-B
$52,000,000 4.93% Auto Loan Backed Notes, Class A-1
$100,000,000 5.39% Auto Loan Backed Notes, Class A-2
$105,000,000 5.78% Auto Loan Backed Notes, Class A-3
$72,000,000 6.02% Auto Loan Backed Notes, Class A-4
$21,000,000 6.30% Auto Loan Backed Certificates
UNDERWRITING AGREEMENT
May 12, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
as representative of
the several Underwriters
World Financial Center
North Tower, 10th Floor
New York, NY 10281
Ladies and Gentlemen:
1. Introductory. Onyx Acceptance Financial Corporation (the "Company")
proposes to cause Onyx Acceptance Owner Trust 1999-B (the "Trust") to sell to
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Representative"),
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and Chase Securities Inc. (together with the
Representative, the "Underwriters") $52,000,000 aggregate principal amount of
4.93% Auto Loan Backed Notes, Class A-1 (the "Class A-1 Notes"), $100,000,000
aggregate principal amount of 5.39% Auto Loan Backed Notes, Class A-2 (the
"Class A-2 Notes"), $105,000,000 aggregate principal amount of 5.78% Auto Loan
Backed Notes, Class A-3 (the "Class A-3 Notes"), $72,000,000 aggregate principal
amount of 6.02% Auto Loan Backed Notes, Class A-4 (the "Class A-4 Notes" and
together with the Class A-1 Notes, Class A-2 Notes and Class A-3 Notes, the
"Notes"), and $21,000,000 aggregate principal amount of 6.30% Auto Loan Backed
Certificates (the "Certificates," and together with the Notes, the
"Securities"). The Notes will be issued pursuant to an Indenture dated as of May
1, 1999 (the "Indenture"), between the Trust and The Chase Manhattan Bank as
Indenture Trustee (the "Indenture Trustee"). The Certificates will be issued
pursuant to a Trust Agreement dated as of May 1, 1999 (the "Trust Agreement")
among the Company, Bankers Trust (Delaware) as Owner Trustee (the "Owner
Trustee") and The Chase Manhattan Bank as Trust Agent (the "Trust Agent").
Pursuant to a Sale and Servicing Agreement dated as of May 1, 1999 (the
"Servicing Agreement") among the Trust, the Company as Seller (the "Seller"),
Onyx Acceptance Corporation as Servicer and Custodian ("Onyx" or in such
capacity, the "Servicer" or the "Custodian"), The Chase Manhattan Bank in its
capacity as Indenture Trustee and the Trust
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Agent, the Seller will sell and assign to the Trust, without recourse, the
Seller's entire interest in the Contracts and Onyx will act as Servicer of the
Contracts. Pursuant to an Administration Agreement dated as of May 1, 1999 (the
"Administration Agreement") among the Trust, Onyx, the Company, the Indenture
Trustee and the Trust Agent, Onyx will serve as administrator of the Trust.
Pursuant to an Amended and Restated Sale and Servicing Agreement dated as of
September 4, 1998 (the "Purchase Agreement"), Onyx has sold the Contracts to the
Company. Pursuant to an insurance and reimbursement agreement (the "Insurance
Agreement") among the Company, Onyx, (in its individual capacity and as
Servicer) and MBIA Insurance Corporation (the "Insurer") and an insurer
indemnification agreement (the "MBIA Indemnification Agreement" and together
with the Insurance Agreement, the "Insurance Agreements") by and among Onyx, the
Company, the Representative and the Insurer, the Insurer will issue its
financial guarantee insurance policy (the "Guarantee") to the Indenture Trustee
for the benefit of the Securityholders guaranteeing timely payment of interest
and ultimate payment of principal at maturity on the Securities.
The Trust's assets (the "Trust Property") will include: (i) a pool of
fixed rate motor vehicle retail installment sales contracts and installment loan
agreements (the "Contract Pool"), all of which were purchased from the Seller
and secured by new and used automobiles, light-duty trucks and vans (the
"Financed Vehicles"), (ii) certain documents relating to the Contracts, (iii)
with respect to contracts (the "Initial Contracts") originated prior to May 1,
1999 (the "Initial Cut-Off Date") certain monies received with respect to the
Initial Contracts on or after the Initial Cut-off Date, (iv) with respect to
contracts (the "Subsequent Contracts" and together with the Initial Contracts,
the "Contracts"), originated on or after the Initial Cut-Off Date and prior to
May 17, 1999 (the "Final Cut-Off Date"), certain monies received with respect to
the Subsequent Contracts on or after the Final Cut-Off Date,(v) security
interests in the Financed Vehicles and the rights to receive proceeds from
claims on certain insurance policies covering the Financed Vehicles or the
individual obligors under each related Contract, (vi) all amounts on deposit in
the Collection Account, the Payment Account, the Note Distribution Account, the
Certificate Distribution Account, and the Spread Account, including all Eligible
Investments credited thereto (but excluding any investment income from Eligible
Investments, credited to the Collection Account, which will be paid to the
Servicer),(vii) the right of the Company to cause Onyx to repurchase certain
Contracts under certain circumstances, and (viii) all proceeds of the foregoing.
The Securities will be issued in an aggregate principal amount of $350,000,000
which is approximately equal to the outstanding principal balance of the Initial
Contracts as of the Initial Cut-Off Date and the outstanding principal balance
of the Subsequent Contracts as of the Final Cut-Off Date. The term "Cut-Off
Date" as used herein refers to the Initial Cut-Off Date for the Initial
Contracts and the Final Cut-Off Date for the Subsequent Contracts. Capitalized
terms used herein and not otherwise herein defined shall have the meanings
assigned to such terms in the Servicing Agreement or if not defined therein, in
the Trust Agreement.
The Company hereby agrees with the Underwriters, as follows:
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with the Underwriters that:
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(i) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933 (the "Act"), as amended, and has filed with
the Securities and Exchange Commission (the "Commission") a registration
statement (Registration No. 333-71045) on such Form, including a
prospectus and forms of prospectus supplements, for registration under
the Act of the offering and sale of the Notes and Certificates. The
Company may have filed one or more amendments thereto, each of which
amendments has previously been furnished to the Representative. The
Company will also file with the Commission a prospectus supplement in
accordance with Rule 424(b) under the Act. The Company has included in
the Registration Statement, as amended at the Effective Date (as
hereinafter defined), all information required by the Act and the rules
thereunder to be included in the Prospectus (as hereinafter defined)
with respect to the Notes and Certificates and the offering thereof. As
filed, the registration statement as amended, the forms of prospectus
supplements, and any prospectuses or prospectus supplements filed
pursuant to Rule 424(b) under the Act relating to the Notes and
Certificates shall, except to the extent that the Representative shall
agree in writing to a modification, be in all substantive respects in
the form furnished to the Representative prior to the Execution Time (as
hereinafter defined) or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other
changes as the Company has advised the Representative, prior to the
Execution Time, will be included or made therein.
For purposes of this Agreement, "Effective Time" means the date
and time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission, and "Effective Date" means the date of the Effective Time.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. Such registration
statement, as amended at the Effective Time, and including the exhibits
thereto and any material incorporated by reference therein (including
any ABS Term Sheets (as defined in Section 4(b) of this Agreement) filed
on Form 8-K), is hereinafter referred to as the "Registration
Statement," and any prospectus supplement (the "Prospectus Supplement")
relating to the Notes and Certificates, as filed with the Commission
pursuant to and in accordance with Rule 424(b) under the Act is,
together with the prospectus filed as part of the Registration Statement
(such prospectus, in the form it appears in the Registration Statement
or in the form most recently revised and filed with the Commission
pursuant to Rule 424(b) being hereinafter referred to as the "Basic
Prospectus"), hereinafter referred to as the "Prospectus". "Rule 424"
refers to such rule under the Act. Any reference herein to the
Registration Statement, the Prospectus or any Prospectus Supplement
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed by
the Company as the originator of the Trust under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") , on or before the
Effective Date of the Registration Statement or the issue date of the
Prospectus or any Prospectus Supplement, as the case may be (but shall
not be deemed to refer to or include any Form T-1 filed with respect to
the Indenture Trustee); and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement,
the Prospectus or any Prospectus Supplement shall be deemed to refer to
and include the filing of any document under the Exchange Act after the
Effective Date of the
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Registration Statement, or the issue date of the Prospectus or any
Prospectus Supplement, as the case may be, deemed to be incorporated
therein by reference.
(ii) On the Effective Date and on the date of this Agreement,
the Registration Statement did or will, and, when the Prospectus was
first filed and on the Closing Date (as defined below), the Prospectus
and any Prospectus Supplement did or will comply in all material
respects with the applicable requirements of the Act, the Exchange Act
and the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the respective rules and regulations of the Commission
thereunder (the "Rules and Regulations"). On the Effective Date, the
Registration Statement did not and will not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus,
together with any Prospectus Supplement, did not or will not include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representation or warranty as to the
information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by any Underwriter through the
Representative specifically for use in connection with preparation of
the Registration Statement or the Prospectus.
(iii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) there has
not been any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, business, management, financial condition, stockholders'
equity, results of operations, regulatory status or business prospects
of the Company or Onyx, and (ii) neither the Company nor Onyx has
entered into any transaction or agreement (whether or not in the
ordinary course of business) material to it that, in either case, would
reasonably be expected to materially adversely affect the interests of
the holders of the Notes or Certificates, other than as set forth or
contemplated in the Prospectus.
(iv) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with full power and authority (corporate
and other) to own its properties and conduct its businesses as described
in the Prospectus, and is duly qualified to transact business as a
foreign corporation in good standing under the laws of each jurisdiction
where the ownership or leasing of its properties or the conduct of its
business requires such qualification.
(v) As of the Closing Date the representations and warranties of
the Company, as Seller, in the Servicing Agreement and Trust Agreement
will be true and correct, and each Contract will satisfy the
representations and warranties set forth in Section 2.02(b) of the
Servicing Agreement.
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(vi) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required to be
obtained or made by the Company for the consummation of the transactions
contemplated by this Agreement, except such as have been obtained and
made under the Act, such as may be required under state securities laws
and the filing of any financing statements required to perfect the
Trust's interest in the Contracts.
(vii) The Company is not in violation of its certificate of
Incorporation or By-Laws or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
agreement or instrument to which it is a party or by which it or its
properties are bound which violation or default would have a material
adverse effect on the transactions contemplated herein or in the
Indenture, the Trust Agreement, the Servicing Agreement, the Purchase
Agreement or the Insurance Agreements. The execution, delivery and
performance by the Company of this Agreement, the Trust Agreement, the
Servicing Agreement, the Purchase Agreement or the Insurance Agreements
and the issuance and sale of the Securities and compliance with the
terms and provisions thereof will not result in a breach or violation of
any of the terms and provisions of or constitute a default under, any
statute, rule, regulation or order of any governmental agency or body or
any court having jurisdiction over the Company or any of its properties
or any agreement or instrument to which the Company is a party or by
which the Company is bound or to which any of the properties of the
Company is subject, or the Certificate of Incorporation or By-Laws of
the Company and the Company has full corporate power and authority to
authorize, cause the Trust to issue, and sell the Securities as
contemplated by this Agreement, to enter into this Agreement, the Trust
Agreement, the Servicing Agreement, the Purchase Agreement and the
Insurance Agreements and to consummate the transactions contemplated
herein and therein.
(viii) This Agreement has been duly authorized, executed and
delivered by the Company.
(ix) The Company is not in violation of any provision of any
existing law or regulation or in default in the performance or
observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, deed of trust, loan agreement,
note, lease or other instrument to which it is a party or by which it is
bound or to which any of its property is subject, which violations or
defaults separately or in the aggregate would have a material adverse
effect on the Company or the Trust.
3. Purchase, Sale, Payment and Delivery of Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company the aggregate principal amount of each class of Securities set
forth opposite such Underwriter's name on Schedule I hereto and at the price set
forth on such Schedule plus accrued interest, if any, from the Closing Date.
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The Company will deliver the Securities to the Underwriters against
payment of the purchase price in immediately available funds by wire transfer to
the order of the Company at the offices of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m., New York City time on May
18, 1999 or at such other time not later than seven full business days
thereafter as the Underwriters and the Company determine, such time being herein
referred to as the "Closing Date". The Securities so to be delivered shall be
represented by one or more global notes or certificates as applicable registered
in the name of Cede & Co., as nominee for The Depository Trust Company, in such
numbers as the Underwriters shall reasonably request not later than 48 hours
prior to the Closing Date. The Company shall make such global notes or
certificates, as applicable, representing the Securities available for
inspection by the Underwriters at the office at which the Securities are to be
delivered no later than 10:00 a.m., New York City time, on the business day
prior to the Closing Date.
4. Offering by the Underwriters. It is understood that, after the
Registration Statement becomes effective, the Underwriters propose to offer the
Securities for sale to the public (which may include selected brokers and
dealers) as set forth in the Prospectus.
(a)The Underwriters may prepare and provide to prospective investors
certain ABS Term Sheets, in connection with its offering of the Securities,
subject to the following conditions:
(i) The Underwriters shall have complied with the requirements
of the no-action letter, dated February 17, 1995, issued by the
Commission to the Public Securities Association (the "No-Action
Letter").
(ii) For purposes hereof, "ABS Term Sheets" shall have the
meaning given such term in the No-Action Letter but shall include only
those ABS Term Sheets that have been prepared or delivered to
prospective investors by or at the direction of each of the
Underwriters.
(iii) All ABS Term Sheets provided to prospective investors that
are required to be filed pursuant to the No-Action Letter shall bear a
legend substantially in the form attached hereto as either Exhibit A-1,
Exhibit A-2 or Exhibit A-3, as applicable. 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) Each of 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 each of the Underwriters. The
Underwriters shall have provided to the Company, for filing as part of a
current report on Form 8-K as provided in Section 5(xii), copies (in
such format as required by the Company) of all ABS Term Sheets that are
required to be filed with the Commission pursuant to the No-Action
Letter. Each of the Underwriters may provide
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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. Neither Underwriter shall have
provided to any investor or prospective investor in the Securities any
ABS Term Sheets on or after the day on which ABS Term Sheets are
required to be provided to the Company pursuant to this subsection (iv)
(other than copies of ABS Term Sheets previously submitted to the
company in accordance with this subsection (iv) for filing pursuant to
Section 5(xii)), unless such ABS Term Sheets are preceded or accompanied
by the delivery of a Prospectus to such investor or prospective
investor.
(v) All information included in the ABS Term Sheets shall have
been generated based on substantially the same methodology and
assumptions that are used to generate the information in the Prospectus
as set forth therein; provided that the ABS Term Sheets may have
included information based on alternative methodologies or assumptions
if specified therein. If any ABS Term Sheets that are required to be
filed were based on assumptions with respect to the Contract Pool that
differ from the final Contract Pool information in any material respect
or on Securities structuring terms that were revised in any material
respect prior to the printing of the Prospectus, each 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 either of the Underwriters they would
purchase all or any portion of the Securities, and shall have included
such revised ABS Term Sheets (marked, "as revised") in the materials
delivered to the Company pursuant to subsection (iv) above.
(vi) The Company shall not be obligated to file any ABS Term
Sheets that have been determined to contain any material error or
omission, provided that, at the request of the Underwriters, the Company
will file ABS Term Sheets that contain a material error or omission if
clearly marked "superseded by materials dated _________" and accompanied
by corrected ABS Term Sheets that are marked, "supersedes material
previously dated _______, as corrected." If, within the period during
which the Prospectus relating to the Securities is required to be
delivered under the Act, any ABS Term Sheets are determined, in the
reasonable judgment of the Company or either of the Underwriters, to
contain a material error or omission, each 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 either of the Underwriters they
would purchase all or any portion of the Securities, or actually
purchased all or any portion thereof, and shall deliver copies of such
corrected ABS Term Sheets (marked, "as corrected") to the Company for
filing with the Commission in a subsequent current report on Form 8-K
(subject to the Company's obtaining an accountant's comfort letter in
respect of such corrected ABS Term Sheets).
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(vii) The Underwriters shall be deemed to have represented as of
the Closing Date, that, except for ABS Term Sheets provided to the
Company pursuant to subsection (iv) above, the Underwriters did not
provide any prospective investors with any information in written or
electronic form in connection with the offering of the Securities that
is required to be filed with the Commission in accordance with the
No-Action Letter.
(viii) In the event of any delay in the delivery by the
Underwriters to the Company of any ABS Term Sheets required to be
delivered in accordance with subsection (iv) above, or in the delivery
of the accountant's comfort letter in respect thereof pursuant to
Section 5(xii), the Company shall have the right to delay the release of
the Prospectus to investors or to the Underwriters, to delay the Closing
Date and to take other appropriate actions in each case as necessary in
order to allow the Company to comply with its agreement set forth in
Section 5(xii) to file the ABS Term Sheets by the time specified
therein.
5. Certain Agreements of the Company. The Company agrees with the
Underwriters that:
(i) Immediately following the execution of this Agreement, the
Company will prepare a Prospectus Supplement setting forth the amount of
Securities covered thereby and the terms thereof not otherwise specified
in the Basic Prospectus, the price at which such Securities are to be
purchased by the Underwriters, the initial public offering price, the
selling concessions and allowances, and such other information as the
Company deems appropriate and shall furnish a copy to the Representative
in accordance with Section 5(vii) of this Agreement. The Company will
transmit the Prospectus including such Prospectus Supplement to the
Commission pursuant to Rule 424(b) by a means reasonably calculated to
result in filing that complies with all applicable provisions of Rule
424(b). The Company will advise the Representative promptly of any such
filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the Registration
Statement or supplement to the Prospectus unless the Company has
furnished the Representative with a copy for its review prior to filing
and will not file any such proposed amendment or supplement without the
Representative's consent, which consent will not unreasonably be
withheld. Subject to the foregoing sentence, if filing of the Prospectus
is otherwise required under Rule 424(b), the Company will file the
Prospectus, properly completed, and any supplement thereto, with the
Commission pursuant to and in accordance with the applicable paragraph
of Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Representative of such timely filing.
(iii) The Company will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement as filed or
the Prospectus, and will not effect such amendment or supplement without
the Representative's consent, which consent will not unreasonably be
withheld. The Company will also advise the
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Representative promptly of any request by the Commission for any
amendment of or supplement to the Registration Statement or the
Prospectus or for any additional information and the Company will also
advise the Representative promptly of any amendment or supplement to the
Registration Statement or the Prospectus and of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threat of any proceeding
for that purpose, and the Company will use its best efforts to prevent
the issuance of any such stop order and to obtain as soon as possible
the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the
Registration Statement, and any amendment thereto, if not effective at
the Execution Time, to become effective.
(v) If, at any time when a Prospectus relating to the Securities
is required to be delivered under the Act, any event occurs as a result
of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company promptly will prepare and file with the Commission (subject
to the Representative's prior review pursuant to paragraph (ii) of this
Section 5) an amendment or supplement which will correct such statement
or omission or an amendment or supplement which will effect such
compliance.
(vi) As soon as practicable, the Company will cause the Trust to
make generally available to the Securityholders of the Trust an earnings
statement or statements of the Trust covering a period of at least 12
months beginning after the Closing Date which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 of the Commission
promulgated thereunder.
(vii) The Company will furnish to each Underwriter copies of the
Registration Statement, the Prospectus and any preliminary Prospectus
Supplement related thereto and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as
each Underwriter may reasonably request.
(viii) The Company will cooperate with each Underwriter in
arranging for the qualification of the Securities for sale and the
determination of their eligibility for investment under the laws of such
jurisdictions as each Underwriter designates and will continue such
qualifications in effect so long as required for the distribution of the
Securities; provided, however, that the Company shall not be obligated
to qualify to do business in any jurisdiction in which it is not
currently so qualified or to take any action which would subject it to
general or unlimited service of process in any jurisdiction where it is
not now so subject. The Company will promptly advise the Underwriters of
the receipt by the Company of any notification with respect to the
suspension or the
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qualification of the Securities for sale in any jurisdiction or the
initiation or threat of any proceeding for such purpose.
(ix) For a period from the date of this Agreement until the
retirement of the Securities, the Company will furnish to the
Underwriters copies of the annual statements of compliance delivered to
the Indenture Trustee pursuant to Section 3.09 of the Indenture and
Section 3.10 of the Servicing Agreement, and the annual independent
public accountant's reports furnished to the Indenture Trustee pursuant
to Section 3.11 of the Servicing Agreement, as soon as practicable after
such statements and reports are furnished to the Indenture Trustee and
Owner Trustee respectively.
(x) So long as any of the Securities are outstanding, the
Company will furnish to you as soon as practicable, (A) all documents
distributed, or caused to be distributed, by the Servicer to the
Securityholders, (B) all documents filed, or caused to be filed, by the
Company with the Commission pursuant to the Securities Act of 1934, as
amended, any order of the Commission thereunder or pursuant to a
"no-action" letter from the staff of the Commission and (C) from time to
time, such other information in the possession of the Company concerning
the Trust and any other information concerning the Company filed with
any governmental or regulatory authority which is otherwise publicly
available as you may reasonably request.
(xi) On or before the Closing Date the Company shall cause its
computer records relating to the Contracts to be marked to show the
Trust's absolute ownership of the Contracts and shall cause the Servicer
to mark its computer records relating to the Contracts to show the sale
to the Company of the Contracts and the subsequent transfer of the
Contracts to the Trust, and from and after the Closing Date the Company
shall not, and shall instruct the Servicer not to, take any action
inconsistent with the Trust's ownership of such Contracts, other than as
permitted by the Indenture and the Trust Agreement.
(xii) The Company will file with the Commission as part of a
current report on Form 8-K each ABS Term Sheet provided to the Company
by each of the Underwriters and identified by each of them 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, each of the Underwriters must
comply with their obligations pursuant to Section 4 and the Company must
receive a letter from PricewaterhouseCoopers, certified public
accountants, satisfactory in form and substance to the Company, to the
effect that such accountants have performed certain specified
procedures, all of which have been agreed to by the Company, as a result
of which PricewaterhouseCoopers have determined that the information
included in such ABS Term Sheet (if any), provided by the Underwriters
to the Company for filing on a current report on Form 8-K pursuant to
Section 4 and, if the Company then so specifies, this subsection (xii),
and that the accountants have examined in accordance with such agreed
upon procedures, is accurate except as to such matters that are not
deemed by the
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Company to be material. 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. The Company will pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including (i) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto and the Prospectus and Prospectus
Supplement, (ii) the Trust Agent's, the Indenture Trustee's and Owner Trustee's
fees and the fees and disbursements of the counsel to the Trust Agent, the
Indenture Trustee and to the Owner Trustee, (iii) any up-front fees and premiums
payable to the Insurer and the fees and disbursements of counsel to the Insurer,
(iv) the fees and disbursements of the accountants, (v) the fees of the rating
agencies and (vi) blue sky expenses.
7. Conditions to the obligations of the Underwriters. The obligation of
the Underwriters to purchase and pay for the Securities will be subject to the
accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the written statements of officers of the Company
made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(i) On or prior to the date of this Agreement, the
Representative shall have received a letter, dated the date of this
Agreement, of PricewaterhouseCoopers and substantially in the form
heretofore agreed, which letter shall be in form and substance agreed to
by the Representative.
(ii) The Registration Statement shall have become effective
prior to the Execution Time, and prior to the Closing Date, no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or the Representative,
shall be contemplated by the Commission or by any authority
administering any state securities or blue sky law; the Prospectus and
any supplements thereto shall have been filed (if required) with the
Commission in accordance with the Rules and Regulations and the
applicable paragraphs of Section 5 hereof; if filing of the Prospectus,
or any supplement thereto, is required pursuant to Rule 424(b), the
Prospectus shall be filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or threatened.
(iii) Subsequent to the execution and delivery of this
Agreement, there shall have not occurred (a) any change, or any
development involving a prospective change, in or affecting particularly
the business or properties of the Company or Onyx which, in the
reasonable judgment of each of the Underwriters, materially impairs the
investment quality of the Securities; (b) any suspension or material
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange,
or any suspension of trading of any securities of Onyx on any exchange
or in the over-the-counter market by such exchange or over-the-counter
market or by the Commission; (c) any banking moratorium declared by
Federal, New York or
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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 each 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
Securities.
(iv) The Underwriters shall have received an opinion, dated the
Closing Date, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., counsel of the Company,
substantially to the effect that:
(a) The Company (1) is duly incorporated and is validly
existing and in good standing under the laws of the State of
Delaware, (2) has the corporate power and corporate authority to
own its properties and conduct its business as described in the
Prospectus and (3) had at all relevant times, and now has, the
power, authority and legal right to acquire, own and sell the
Contracts;
(b) The Company has, or at the time such agreement was
executed and delivered, had, the corporate power and corporate
authority to execute and deliver this Agreement, the Trust
Agreement, the Servicing Agreement, the Purchase Agreement, the
Administration Agreement and the Insurance Agreements and to
consummate the transactions contemplated herein and therein;
(c) No consent, approval, authorization or order of, or
filing with, any California, Delaware or federal governmental
agency or body or any court is or was required by the Company to
perform the transactions contemplated by this Agreement, the
Trust Agreement, the Servicing Agreement, the Purchase
Agreement, the Administration Agreement or the Insurance
Agreements except for (1) filing of a Uniform Commercial Code
financing statement in the State of California with respect, to
the transfer of the Contracts to the Trust pursuant to the Trust
Agreement and the Servicing Agreement, and the sale of the
Contracts to the Company pursuant to the Purchase Agreement, (2)
such consents, approvals, authorizations, orders or filings as
may be required under federal law which have been made or
obtained and (3) such consents, approvals, authorizations,
orders or filings as may be required under state securities
laws;
(d) None of the execution, delivery and performance by
the Company of this Agreement, the Trust Agreement, the
Servicing Agreement, the Purchase Agreement, the Administration
Agreement or the Insurance Agreements, the transfer of the
Contracts to the Trust, the assignment of the security interests
of the Company in the Financed Vehicles, the issuance and sale
of the Securities or the consummation of any other of the
transactions contemplated herein or in the Trust Agreement, the
Servicing Agreement, the Purchase Agreement, the Administration
Agreement or the Insurance Agreements 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
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Certificate of Incorporation of the Company, as amended, or, to
such counsel's knowledge (i) any rule, order, statute or
regulation known to such counsel to be currently applicable to
the Company of any court, regulatory body, administrative agency
or governmental body having jurisdiction over the Company or
(ii) the terms of any material indenture or other material
agreement or instrument known to such counsel to which the
Company is a party or by which it or its properties are bound;
(e) To such counsel's knowledge, there are no actions,
proceedings or investigations pending or threatened before any
court, administrative agency or other tribunal (1) asserting the
invalidity of this Agreement, the Trust Agreement, the Servicing
Agreement, the Purchase Agreement, the Administration Agreement
or the Insurance Agreements or the Securities, (2) seeking to
prevent the issuance of the Securities or the consummation of
any of the transactions contemplated by this Agreement, the
Trust Agreement, the Servicing Agreement, the Purchase
Agreement, the Administration Agreement or the Insurance
Agreements, (3) seeking adversely to affect the federal income
tax attributes of the Securities as described in the Base
Prospectus under the headings "SUMMARY OF TERMS -- Tax Status";
"CERTAIN FEDERAL INCOME TAX CONSEQUENCES"; "TRUSTS FOR WHICH A
PARTNERSHIP ELECTION IS MADE" and TRUSTS TREATED AS GRANTOR
TRUSTS" and in the Prospectus Supplement under the headings
"SUMMARY OF TERMS -- Federal Income Tax Status" and "CERTAIN
FEDERAL INCOME TAX CONSEQUENCES";
(f) This Agreement, the Trust Agreement, the Servicing
Agreement, the Purchase Agreement, the Administration Agreement
and the Insurance Agreements have each been duly authorized,
executed and delivered by the Company;
(g) The Contracts constitute "chattel paper" as defined
in Section 9105(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 direction by the Company to the Trust Agent to
authenticate the Certificates has been duly authorized by the
Company and, when the Certificates have been duly executed by
the Owner Trustee and authenticated and delivered by the Trust
Agent in accordance with the Trust Agreement and delivered and
paid for pursuant to this Agreement, will be duly and validly
issued and outstanding, and will be entitled to the benefits of
the Trust Agreement.
(j) When the Notes have been duly executed by the Owner
Trustee and delivered by the Trust Agent on behalf of the Trust,
authenticated by the Indenture
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Trustee in accordance with the Indenture and delivered and paid
for pursuant to this Agreement, the Notes will be the valid,
legal and binding obligations of the Trust, enforceable against
the Trust in accordance with their terms, subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent or
preferential conveyance and other similar laws of general
application relating to or affecting creditors, rights
generally, and general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law);
(k) Assuming the authorization, execution and delivery
thereof by each party thereto other than the Company and Onyx,
each of the Trust Agreement, the Purchase Agreement, the
Servicing Agreement, the Administration Agreement and the
Insurance Agreement constitutes the legal, valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, subject, as to enforcement, to (1)
the effect of bankruptcy, insolvency, reorganization,
moratorium, fraudulent or preferential conveyance and other
similar laws of general application relating to or affecting
creditors' rights generally, and general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law); and (2) the unenforceability
under certain circumstances of provisions indemnifying a party
against liability where such indemnification is contrary to
public policy;
(l) The Registration Statement became effective under
the Act as of the date and time specified in such opinion; after
due inquiry, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act; the
Registration Statement, and each amendment thereof or supplement
thereto as of its Effective Date and the Prospectus as of its
date of issuance appeared on its face to be appropriately
responsive in all material respects to the applicable
requirements of the Securities Act and the Rules and
Regulations, and such counsel need not opine as to the financial
statements and related notes, schedules and other financial and
statistical data included therein; and any required filing of
the Prospectus and Prospectus Supplement pursuant to Rule 424(b)
has been made;
(m) The Securities, the Indenture, the Trust Agreement,
the Servicing Agreement, the Purchase Agreement, and the
Guarantee conform in all material respects to the descriptions
thereof contained in the Registration Statement and the
Prospectus;
(n) The Trust Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended;
(o) The Indenture has been duly qualified under the
Trust Indenture Act;
(p) The Company is not, and after giving effect to the
offering and sale of the Securities as contemplated in the
Prospectus and this Agreement and the
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application of the proceeds thereof as described in the
Prospectus will not be, an "investment company" as defined in
the Investment Company Act of 1940, as amended (the "Investment
Company Act"). Onyx is not an "investment company" within the
meaning of the Investment Company Act;
(q) The Trust is not now, and immediately following the
sale of the Securities pursuant to this Agreement will not be,
required to be registered under the Investment Company Act;
(r) The Indenture, the Sale and Servicing Agreement and
the Administration Agreement, assuming that they have been duly
authorized by, and when duly executed and delivered by, the
Owner Trustee on behalf of the Trust, will constitute the legal,
valid and binding obligations of the Trust, enforceable against
the Trust in accordance with their terms, except (x) the
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent or other preferential
conveyance and other similar laws and other similar laws of
general application relating to or affecting the rights of
creditors generally and to general principles of equity
(regardless of whether such enforcement is considered in a
proceeding in equity or at law);
(s) all actions required to be taken, and all filings
required to be made, by the Company under the Act and the
Exchange Act prior to the sale of the Securities have been duly
taken or made; and
(t) to such counsel's knowledge and information, there
are no legal or governmental proceedings pending or threatened
that are required to be disclosed in the Registration Statement,
other than those disclosed therein.
In addition, such counsel shall opine, in form and substance
satisfactory to you, (i) as to certain matters relating to the
acquisition by the Company of a perfected first priority security
interest in the vehicles financed by the Contracts and (ii) as to the
existence of a valid, perfected, first priority security interest in the
Contacts in favor of the Owner Trustee from the Company and in favor of
the Indenture Trustee from the Owner Trustee.
In rendering such opinion, such counsel may rely (i) as to
matters of fact, to the extent deemed proper and as stated therein, on
certificates of responsible officers of the Company and public officials
and (ii) on other opinions of counsel as specified therein. References
to the Prospectus in this paragraph (iv) include any supplements
thereto.
(v) The Underwriters shall have received an opinion, dated the
Closing Date, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ 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 its
incorporation, (2) has the corporate power and corporate
authority to own its properties and conduct its business as
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described in the Prospectus and (3) had at all relevant times,
and now has, the power, authority and legal right to acquire,
own and sell the Contracts;
(b) Onyx has the corporate power and corporate authority
to execute and deliver the Servicing Agreement, the Insurance
Agreements, the Administration Agreement and the Purchase
Agreement, to the extent applicable, and at the time it was
executed and delivered, had the power and authority to execute
and deliver the Purchase Agreement, the Insurance Agreements,
the Servicing Agreement and the Administration Agreement to the
extent applicable, and to consummate the transactions
contemplated herein and therein;
(c) No consent, approval, authorization or order of, or
filing with, any California or federal governmental agency or
body or any court is required by Onyx to perform the
transactions contemplated by the Insurance Agreements, the
Servicing Agreement, the Administration Agreement or the
Purchase Agreement, as applicable, except for (1) filing of a
Uniform Commercial Code financing statement in the State of
California with respect to the sales of the Contracts to the
Company pursuant to the Purchase Agreement and (2) such
consents, approvals, authorizations, orders or filings as may be
required under the federal and state securities laws; the
opinion set forth in this sentence is limited to such
authorizations, approvals, consents and orders which, in such
counsel's experience, are normally applicable to transactions of
the type contemplated by the Insurance Agreements, the Servicing
Agreement, the Administration Agreement and the Purchase
Agreement, as applicable;
(d) None of the execution, delivery and performance by
Onyx of the Servicing Agreement, the Insurance Agreements, the
Administration Agreement or the Purchase Agreement, as
applicable, or the transfer of the Contracts to the Company, has
conflicted with or will conflict with, has resulted or will
result in a breach, violation or acceleration of any of the
terms of, or has constituted or will constitute a default under,
the By-Laws or the Certificate of Incorporation of Onyx, 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 Servicing Agreement, the Insurance Agreements,
the Administration Agreement and the Purchase Agreement have
each been duly authorized, executed and delivered by Onyx;
(f) The indemnification agreement dated as of the date
hereof, between Onyx and the Representative has been duly
authorized, executed and delivered by ▇▇▇▇; and
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(g) Assuming the authorization, execution and delivery
thereof by the Company with respect to the Servicing Agreement,
the Insurance Agreement, the Administration Agreement and the
Purchase Agreement, as applicable, 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, fraudulent or preferential
conveyance and other similar laws of general application
relating to or affecting creditors' rights generally and general
principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law); and (2) the
unenforceability under certain circumstances of provisions
indemnifying a party against liability where such
indemnification is contrary to public policy.
In rendering such opinion, such counsel may rely as to matters
of fact, to the extent deemed proper and as stated therein, on
certificates of responsible officers of Onyx and public officials.
In addition, such counsel shall state that they have participated in
conferences with the officers and other representatives of the Company and Onyx,
representatives of the independent public accountants of the Company and Onyx
and representatives of the Underwriters and the Insurer at which the contents of
the Registration Statement and the Prospectus and related matters were discussed
and, although such counsel has not independently verified and are not passing
upon and do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement and the
Prospectus, on the basis of the foregoing, no facts have come to such counsel's
attention that lead them to believe that the Registration Statement, as of the
Effective Date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus as of its date or as
of the Closing Date contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need make no comment
and express no belief with respect to (i) any information incorporated by
reference in the Registration Statement or the Prospectus or (ii) the financial
statements and related notes, schedules and the other financial and statistical
data included in the Registration Statement or the Prospectus).
(vi) The Underwriters shall have received opinions of ▇▇▇▇▇▇▇ &
▇▇▇▇▇ 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.
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(vii) The Underwriters shall have received an opinion of ▇▇▇▇▇▇▇
& ▇▇▇▇▇ L.L.P., tax counsel to the Company, dated the Closing Date and
satisfactory in form and substance to you substantially to the effect
that:
(a) The Notes will be characterized as debt and the
Trust will not be characterized as an association (or a publicly
traded partnership) taxable as a corporation;
(b) the Statements in the Base Prospectus under the
heading "SUMMARY OF TERMS -- Tax Status"; "CERTAIN FEDERAL
INCOME TAX CONSEQUENCES"; "TRUSTS FOR WHICH A PARTNERSHIP
ELECTION IS MADE" and "TRUSTS TREATED AS GRANTOR TRUSTS" and in
the Prospectus Supplement under the headings "SUMMARY OF TERMS
--Federal Income Tax Status" and "CERTAIN FEDERAL INCOME TAX
CONSEQUENCES" to the extent that they constitute matters of law
or legal conclusions with respect thereto, have been prepared or
reviewed by such counsel and are correct in all material
respects; and
(c) Such state tax opinions as are satisfactory to the
Representative.
(viii) The Underwriters shall have received an opinion of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, in-house counsel to the Company and Onyx, dated the
Closing Date and satisfactory in form and substance to you.
(ix) The Underwriters shall have received an opinion, dated the
Closing Date, of ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, counsel to the
Insurer, substantially to the effect that:
(a) The Insurer is a corporation validly existing, in
good standing and licensed to transact the business of surety
and financial guaranty insurance under the laws of the State of
New York;
(b) The Insurer has the corporate power to execute and
deliver, and to take all action required of it under the
Guarantee, the Insurance Agreement and the MBIA 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 MBIA 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 MBIA Indemnification Agreement or in
connection with the Insurer's performance of its obligations
thereunder;
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(d) The Guarantee, the Insurance Agreement and the MBIA
Indemnification Agreement have been duly authorized, executed
and delivered by the Insurer, and the Guarantee and, assuming
due authorization, execution and delivery of the Insurance
Agreement by the parties thereto (other than the Insurer), the
Insurance Agreement constitute the legally valid and binding
obligations of the Insurer, enforceable in accordance with their
respective terms subject, as to enforcement, to (1) bankruptcy,
reorganization, insolvency, moratorium and other similar laws
relating to or affecting the enforcement of creditors' rights
generally, including, without limitation, laws relating to
fraudulent transfers or conveyances, preferential transfers and
equitable subordination, presently or from time to time in
effect and general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at
law), as such laws may be applied in any such proceeding with
respect to the Insurer and (2) the qualification that the remedy
of specific performance may be subject to equitable defenses and
to the discretion of the court before which any proceedings with
respect thereto may be brought; and
(e) The Guarantee is not required to be registered under
the Securities Act of 1933, as amended.
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 (ix) include
any supplements thereto.
(x) The Underwriters shall have received an opinion of ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & ▇▇▇▇, counsel to the Indenture Trustee and Trust Agent, dated
the Closing Date and satisfactory in form and substance to you,
substantially in the form of Exhibit B hereto.
(xi) The Underwriters shall have received an opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel to the Owner Trustee, dated the
Closing Date and satisfactory in form and substance to you,
substantially in the form of Exhibit C hereto.
(xii) The Underwriters shall have received an opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger special Delaware counsel to the Trust, dated
the Closing Date and satisfactory in form and substance to you,
substantially in the form of Exhibit D hereto.
(xiii) The Representative shall have received from Brown & Wood
LLP, counsel to the Underwriters, such opinion or opinions, dated the
Closing Date and satisfactory in form and substance to you, with respect
to the validity of the Securities, the Registration Statement, the
Prospectus and other related matters as the Underwriters may require,
and the Company shall have furnished to such counsel such documents as
they reasonably request for the purpose of enabling them to pass upon
such matters.
(xiv) The Underwriters shall have received a letter, dated the
Closing Date, of PricewaterhouseCoopers which meets the requirements of
the subsection (i) of this
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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.
(xv) The Underwriters shall have received evidence satisfactory
to them that the Securities have been rated in the highest rating
category by ▇▇▇▇▇'▇ Investors Service, Inc. and by Standard & Poor's
Ratings Services.
(xvi) 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
Servicing Agreement and the Trust Agreement are true and correct as of
the dates specified therein and the representations and warranties set
forth in Section 2.02(b) of the Servicing Agreement, are true and
correct as of the dates specified in the Servicing Agreement, that no
stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted
or are threatened by the Commission and that, subsequent to the date of
the Prospectus, there has been no material adverse change in the
financial position or results of operations of the Company's motor
vehicle installment loan business except as set forth in or contemplated
by the Prospectus or as described in such certificate.
(xvii) The Underwriters shall have received a certificate, dated
the Closing Date, of a Vice President or more senior officer of Onyx in
which such officer shall state that, to the best of his or her knowledge
after reasonable investigation, the representations and warranties of
Onyx in the Purchase Agreement and Servicing Agreement are true and
correct in all material respects on and as of the Closing Date, that
Onyx has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied thereunder at or prior to the
Closing Date, that the representations and warranties of Onyx, as
Servicer, in the Servicing Agreement are true and correct as of the
dates specified in the Servicing Agreement, there has been no material
adverse change in the financial position or results of operations of
Onyx's motor vehicle installment loan business except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(xviii) 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.
(xix) The Underwriters shall have received a certificate from a
senior officer of the Insurer to the effect that such officer has no
reason to believe that the section of the Prospectus captioned
"Description of the Insurer" or any such amendment thereof or
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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 each
Underwriter and each person, if any, who controls such Underwriter
within the meaning of Section 15 of the Act against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) (a) arise
out of, or are based upon, any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement,
or arise out of, or are based upon, the omission or alleged omission to
state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading or (b) arise out of, or
are based upon, any untrue statement or alleged untrue statement of any
material fact contained in the Prospectus or arise out of, or are based
upon, the omission or alleged omission to state therein a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; and will reimburse each
Underwriter for any legal or other expenses reasonably incurred, as
incurred, by each 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
(x) made in the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by the Underwriters expressly for
use therein, or (y) contained in any ABS Term Sheet to the extent set
forth in subsection (ii) of this Section 8; provided, further, that the
Company shall not be liable under this subsection (i) to the extent that
such losses, claims, damages or liabilities arose out of or are based
upon an untrue statement or omission made in any preliminary prospectus
that is corrected in the final Prospectus (or any amendment or
supplement thereto), and the Company has previously furnished copies
thereof in sufficient quantity to the Underwriters, if the person
asserting such loss, claim, damage or liability was not given the final
Prospectus (or any amendment or supplement thereto) on or prior to the
confirmation of the sale of the Securities.
(ii) Each Underwriter, severally and not 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
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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 the Representative expressly for
use in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) or (B) made in the ABS Term Sheets distributed by the
Underwriters and filed as a post-effective amendment to the Registration
Statement or the Prospectus as a result of any filing pursuant to
Section 5(xii); provided however that the Underwriters will not be
liable in any such case to the extent that any such loss, claim or
damage or liability arises out of, or is based upon, an untrue statement
or omission made in the ABS Term Sheet or any supplement thereto in
reliance upon and in conformity with (x) information furnished to such
Underwriter by the Company or (y) information contained in the
Registration Statement or any preliminary prospectus or the Prospectus
other than information described in clause (A) above.
(iii) Each indemnified party shall give prompt notice to the
indemnifying party of any action commenced against the indemnified party
in respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have hereunder or otherwise than on
account of this indemnity agreement except and to the extent of any
prejudice to such indemnifying party arising from such failure to
provide such notice. In case any such action shall be brought against an
indemnified party and it shall have notified the indemnifying party of
the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, to assume the
defense thereof, with counsel, satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party with respect to such action), and it
being understood that the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys, and, after notice
from the indemnifying party to the indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not be
liable to the indemnified party under subsections (i) or (ii) of this
Section 8 for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by the indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation.
9. Contribution. In order to provide for just and equitable contribution
in circumstances in which the indemnity agreement provided for in Section 8 is
for any reason held to be unavailable other than in accordance with its terms,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnifying party as a result of the losses, claims, damages or
liabilities referred to in 8(i) and 8(ii) above (i) in such proportion as is
appropriate to
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reflect the relative benefits received by the Company on the one hand and each
Underwriter on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the related Underwriter on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and each Underwriter on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by each 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 related Underwriter and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this Section 9 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
Section 9. Notwithstanding the provisions of this Section 9, no Underwriter
shall be required to contribute any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by it hereunder.
The Company and each Underwriter agrees that it would not be just and equitable
if contribution pursuant to this Section 9 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 9. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
10. Termination. The Underwriters may terminate this Agreement
immediately upon notice to the Company, if at any time, prior to the Closing
Date, there has occurred: (a) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Company or Onyx which, in the reasonable judgment of the Underwriters,
materially impairs the investment quality of the Securities; (b) any suspension
or material limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company or of Onyx on any
exchange or in the over-the-counter market by such exchange or over-the-counter
market or by the Commission; (c) any banking moratorium declared by Federal, New
York or California authorities; or (d) any outbreak or material escalation of
major hostilities or any other substantial national or international calamity or
emergency if, in the reasonable judgment of the Underwriters, the effect of any
such outbreak, escalation, calamity or emergency on the United States financial
markets makes it impracticable or inadvisable to proceed with completion of the
sale of and any payment for the Securities.
11. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and
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effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of the Underwriters, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Securities. If for any reason the
purchase of the Securities by the Underwriters is not consummated, the Company
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 6 and the respective obligations of the Company and the
Underwriters pursuant to Sections 6, 8 and 9 shall remain in effect. If the
purchase of the Securities by the Underwriters is not consummated for any reason
other than solely because of the occurrence of any event specified in clauses
(b), (c) or (d) of Section 7(iii) or clauses (b), (c) or (d) of Section 10, and
other than solely because the Underwriters fail to perform their obligations
hereunder, the Company will reimburse the Underwriter for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by it
in connection with the offering of the Securities.
12. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Underwriters at c/▇ ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
World Financial Center, North Tower, 10th Floor, New York, NY 10281 Attention:
Asset Backed Securities Group, or to such other address as the Representative
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, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Executive Vice President.
13. Successors. This Agreement will inure to the benefit of, and be
binding upon, the parties hereto and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 8 and 9 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
the Underwriters shall be deemed to be a successor by reason merely of such
purchase.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
16. Severability of Provisions. Any covenant, provisions, agreement or
term of this Agreement that is prohibited or is held to be void or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof.
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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. The Representative will act for the several
Underwriters in connection with the transactions described in this Agreement,
and any action taken by the Representative under this Agreement will be binding
upon all the Underwriters.
21. Defaults of Underwriters. If any Underwriter defaults in its
obligation to purchase the Certificates hereunder on the Closing Date and the
aggregate principal amount of the Securities that such defaulting Underwriter
agreed but failed to purchase does not exceed 10% of the total principal amount
of the Securities, the Representative may make arrangements satisfactory to the
Representative and the Company for the purchase of such Securities by other
persons, including either of the Underwriters, but if no such arrangements are
made by the Closing Date, the nondefaulting Underwriter shall be obligated, in
proportion to its respective commitment hereunder, to purchase the Securities
that such defaulting Underwriter agreed but failed to purchase. If an
Underwriter so defaults and the aggregate principal amount of the Securities
with respect to such default exceeds 10% of the total principal amount of the
Securities and arrangements satisfactory to the Representative and the Company
for the purchase of such Securities by other persons are not made within 24
hours after such default, this Agreement will terminate without liability on the
part of the nondefaulting Underwriter or the Company, except as provided in
Section 11. Nothing herein will relieve a defaulting Underwriter from liability
for its default.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate thereof,
whereupon it will become a binding agreement among the undersigned in accordance
with its terms.
Very truly yours,
ONYX ACCEPTANCE FINANCIAL
CORPORATION
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial officer
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Chase Securities Inc.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
For themselves and the other several
underwriters named in Schedule I
attached hereto.
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