EXHIBIT 1.2
EXECUTION COPY
Onyx Acceptance Owner Trust 2003-B
$74,800,000 1.25% Auto Loan Backed Notes, Class A-1
$99,000,000 1.37% Auto Loan Backed Notes, Class A-2
$122,000,000 1.77% Auto Loan Backed Notes, Class A-3
$104,200,000 2.45% Auto Loan Backed Notes, Class A-4
UNDERWRITING AGREEMENT
May 9, 2003
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated,
as Representative of the Underwriters
4 World Financial Center
New York, New York 10080
Ladies and Gentlemen:
1. Introductory. Onyx Acceptance Financial Corporation (the "Company")
proposes to cause Onyx Acceptance Owner Trust 2003-B (the "Trust") to sell to
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Representative") and
Credit Suisse First Boston LLC (together with the Representative, the
"Underwriters") $74,800,000 aggregate principal amount of 1.25% Auto Loan Backed
Notes, Class A-1 (the "Class A-1 Notes"), $99,000,000 aggregate principal amount
of 1.37% Auto Loan Backed Notes, Class A-2 (the "Class A-2 Notes"), $122,000,000
aggregate principal amount of 1.77% Auto Loan Backed Notes, Class A-3 (the
"Class A-3 Notes"), and $104,200,000 aggregate principal amount of 2.45% 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").
The Notes will be issued pursuant to an Indenture dated as of May 1, 2003
(the "Indenture"), between the Trust and Citibank, N.A., as Indenture Trustee
(the "Indenture Trustee"). Certain securities representing the "Residual
Interest Instruments" of the Trust (as defined in the Servicing Agreement) will
be issued pursuant to a Trust Agreement dated as of May 1, 2003 (the "Trust
Agreement") among the Company, The Bank of New York (Delaware) as Owner Trustee
(the "Owner Trustee") and Citibank, N.A. as Trust Agent (the "Trust Agent").
Pursuant to a Sale and Servicing Agreement dated as of May 1, 2003 (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"), Citibank, N.A., in its capacity as
Indenture Trustee and the Trust Agent, the Seller will sell and assign to the
Trust, without recourse, the Seller's entire interest in the Contracts (as
hereinafter defined) and Onyx will act as Servicer of the Contracts. Pursuant to
an Administration Agreement dated as of May 1, 2003 (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 a Second Amended and Restated Sale and
Servicing Agreement dated as of November 30, 2001 (the "Purchase Agreement"), as
amended, Onyx has sold or will sell the Funded Contracts (as hereinafter
defined) and may sell certain Prefunded Contracts (as hereinafter defined) 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 holders of the Notes (the "Noteholders") guaranteeing
timely payment of interest and ultimate payment of principal at maturity on the
Notes.
As of the Closing Date (as hereinafter defined), 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 pursuant to the Servicing
Agreement and secured by new and used automobiles, light-duty trucks and vans
(the "Financed Vehicles"), (ii) certain documents relating to the Funded
Contracts, (iii) with respect to contracts (the "Initial Contracts") originated
as of May 1, 2003 (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 "Funded Contracts"), originated or purchased on or after the
Initial Cut-Off Date and on or about May 12, 2003 (the "Subsequent Cut-Off
Date"), certain monies received with respect to the Subsequent Contracts on or
after the Subsequent 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 Funded Contract, (vi) all amounts on deposit in the Collection Account,
the Payment Account, the Note Distribution Account, the Spread Account, the
Prefunding Account, the Capitalized Interest Account, and the Payahead 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 and any investment income from Eligible
Investments credited to the Capitalized Interest Account, which may be paid to
the Seller under certain circumstances), (vii) the right of the Company to cause
Onyx to repurchase certain Contracts under certain circumstances, and (viii) all
proceeds of the foregoing. After the Closing Date, the Trust will use the funds
in the Prefunding Account to purchase contracts (the "Prefunded Contracts", and
together with the Funded Contracts, the "Contracts") originated or purchased on
or after the Subsequent Cut-Off Date and on or before the end of the Funding
Period from the Company.
The Notes will be issued in an aggregate principal amount of $400,000,000
which is 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 Subsequent Cut-Off Date and the amount in the
Prefunding Account. The term "Cut-Off Date" as used herein refers to the Initial
Cut-Off Date for the Initial Contracts and the Subsequent Cut-Off Date for the
Subsequent Contracts and the related Prefunding Cut-Off Date for a Prefunded
Contract. 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.
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The Company hereby agrees with the Underwriters, as follows:
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with the Underwriters that:
(i) 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. 333-83626) on such form, including a
prospectus and forms of prospectus supplements, for registration under the
Act of the offering and sale of the Notes. 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
hereinafter defined), 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 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 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 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,
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 "Base 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
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"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 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, 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, 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 Funded Contract will satisfy the
representations and warranties set forth in Section 2.02(b) of the
Servicing Agreement.
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(vi) As of the related Prefunding Closing Date, the representations
and warranties of the Company in the Servicing Agreement and Trust
Agreement will be true and correct, and each related Prefunded Contract
will satisfy the representations and warranties set forth in Section
2.02(d) of the Servicing Agreement.
(vii) 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.
(viii) 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 Notes 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 Notes 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.
(ix) This Agreement has been, and the Servicing Agreement, the Trust
Agreement, and the Insurance Agreements when executed and delivered as
contemplated hereby and thereby will have been, duly authorized, executed
and delivered by the Company, and this Agreement constitutes, and the
Servicing Agreement, the Trust Agreement and the Insurance Agreements,
when executed and delivered as contemplated herein, will constitute,
legal, valid and binding instruments enforceable against the Company in
accordance with their respective terms, subject as to enforceability to
(x) applicable bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting creditors' rights generally, (y) general principles
of equity (regardless of whether enforcement is sought in a proceeding in
equity or at law), and (z) with respect to rights of indemnity under this
Agreement and the MBIA Indemnification Agreement limitations of public
policy under applicable securities laws.
(x) The Notes are duly and validly authorized by the Company and,
when executed, authenticated and delivered in accordance with the
Indenture and the Servicing
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Agreement, and issued and delivered to and paid for by the Underwriters,
as contemplated hereby, will be entitled to the benefits provided by the
Indenture and the Servicing Agreement.
(xi) 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 Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions set forth herein and any additional arrangements made
between the Underwriters and the Company, 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 Notes set forth
opposite such Underwriter's name on Schedule I hereto and at the price set forth
on such Schedule plus accrued interest, if any, from the Closing Date.
The Company will deliver the Notes 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 16, 2003 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 Notes so to be delivered shall be represented by one or
more global notes 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, as applicable, representing the Notes
available for inspection by the Underwriters at the office at which the Notes
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
Notes for sale to the public (which may include selected brokers and dealers) as
set forth in the Prospectus.
The Underwriters may prepare and provide to prospective investors certain
ABS Term Sheets, in connection with its offering of the Notes, 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.
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(iii) All ABS Term Sheets provided to prospective investors that are
required to be filed pursuant to the No-Action Letter shall bear a legend
substantially in the form attached hereto as either Exhibit A-1 or Exhibit
A-2, 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 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. None of the Underwriters shall have
provided to any investor or prospective investor in the Notes 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 Notes 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
Notes, 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 _________"
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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 Notes 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 Notes, 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).
(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 Notes 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
Notes covered thereby and the terms thereof not otherwise specified in the
Base Prospectus, the price at which such Notes 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 Notes, the
Company will not file any amendment of the Registration Statement or
supplement to the Prospectus unless the Company has furnished the
Representative with a copy for its review prior to filing and will not
file any such proposed amendment or supplement without the
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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 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 Notes 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 Noteholders and the holders of the
Residual Interest Instruments 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.
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(viii) The Company will cooperate with each Underwriter in arranging
for the qualification of the Notes 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 Notes; 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 qualification of the
Notes 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 Notes, 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 Notes 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 Noteholders, (B) all
documents filed, or caused to be filed, by the Company with the Commission
pursuant to the Exchange Act, 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) (a) On or before the Closing Date the Company shall cause its
computer records relating to the Funded Contracts to be marked to show the
Trust's absolute ownership of the Funded Contracts and shall cause the
Servicer to mark its computer records relating to the Funded Contracts to
show the sale to the Company of the Funded Contracts and the subsequent
transfer of the Funded 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 Funded
Contracts, other than as permitted by the Indenture and the Trust
Agreement.
(b) On or before the related Prefunding Closing Date, the Company
shall cause its computer records for the related Prefunded Contracts to be
marked to show the Trust's absolute ownership of the related Prefunded
Contracts and shall cause the Servicer to mark its computer records for
the related Prefunded Contracts to show the sale to the Company of the
related Prefunded Contracts and the subsequent transfer of the related
Prefunded Contracts to the Trust, and after the related Prefunding Closing
Date, the Company shall not, and shall instruct the Servicer not to, take
any action inconsistent
10
with the Trust's ownership of such Prefunded 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 Company to be material. The
Company shall file any corrected ABS Term Sheets described in Section
4(vi) as soon as practicable following receipt thereof.
(xiii) The Company will cause ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P. to deliver to
the Underwriters on or before the Prefunding Closing Date, the opinions
required to be furnished pursuant to Section 2.01(j) of the Servicing
Agreement, addressed to the Underwriters, with respect to the transfer of
the related Prefunded Contracts substantially in the form of the opinions
delivered by ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P. on the Closing Date with respect to
the Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before
each Prefunding Closing Date, the Officer's Certificate and certificate
from each secured creditor required to be furnished pursuant to Section
2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding
Transfer Date, the Transfer Certificate required to be furnished pursuant
to Section 2.01(c) of the Servicing Agreement.
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 Notes 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
11
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
Notes; (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 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 Notes.
(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;
12
(b) The Company has, or at the time such agreement was executed and
delivered, had, the corporate power and corporate authority to
execute and deliver this Agreement, the Trust Agreement, the
Servicing Agreement, the Purchase Agreement and the Insurance
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 or the Insurance
Agreements except for (1) filing of a Uniform Commercial Code
financing statement in the State of Delaware 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 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
Notes or the consummation of any other of the transactions
contemplated herein or in the Trust Agreement, the Servicing
Agreement, the Purchase Agreement or the Insurance 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
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 or the Insurance Agreements or the Notes, (2)
seeking to prevent the issuance of the Notes or the consummation of
any of the transactions contemplated by this Agreement, the Trust
Agreement, the Servicing Agreement, the Purchase Agreement or the
Insurance Agreements, (3) seeking adversely to affect the federal
income tax attributes of the Notes as described in the Base
Prospectus under the headings "SUMMARY OF TERMS -- Tax Status";
"CERTAIN FEDERAL INCOME TAX CONSEQUENCES"; "TRUSTS FOR WHICH A
PARTNERSHIP
13
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 and the Insurance Agreements have each been
duly authorized, executed and delivered by the Company;
(g) The Funded Contracts constitute "tangible 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) [Reserved]
(j) When the Notes have been duly executed by the Owner Trustee and
delivered by the Trust Agent on behalf of the Trust, authenticated
by the Indenture Trustee in accordance with the Indenture and
delivered and paid for pursuant to this Agreement, the Notes will be
the valid, legal and binding obligations of the Trust, enforceable
against the Trust in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, moratorium, fraudulent or
preferential conveyance and other similar laws of general
application relating to or affecting creditors' rights generally,
and general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(k) Assuming the authorization, execution and delivery thereof by
each party thereto other than the Company and Onyx, each of the
Trust Agreement, the Purchase Agreement, the Servicing Agreement and
the Insurance Agreements 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; 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
14
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 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 Notes, 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 Notes as contemplated in the Prospectus and this
Agreement and the application of the proceeds thereof as described
in the Prospectus will not be, an "investment company" as defined in
the Investment Company Act of 1940, as amended (the "Investment
Company Act"). Onyx is not an "investment company" within the
meaning of the Investment Company Act;
(q) The Trust is not now, and immediately following the sale of the
Notes pursuant to this Agreement will not be, required to be
registered under the Investment Company Act;
(r) The Indenture, the 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 that 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 Notes 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.
15
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 Funded Contracts and (ii) as to the existence of
a valid, perfected, first priority security interest in the Funded
Contracts 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 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 Funded Contracts;
(b) Onyx has the corporate power and corporate authority to execute
and deliver the Servicing Agreement, the Insurance Agreements,
Indemnification Agreement and the Administration 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, 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, Indemnification Agreement or the Purchase Agreement, as
applicable, except for (1) filing of a Uniform Commercial Code
financing statement in the State of Delaware 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, Indemnification 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
16
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
(g) Assuming the authorization, execution and delivery thereof by
the Company with respect to the Servicing Agreement, the Insurance
Agreements, 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
17
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 to the
characterization of the transfer of the Funded Contracts by Onyx to the
Company as a sale and with respect to the perfection of the Trust's
interests in the Funded Contracts and with respect to the
non-consolidation of the Company with Onyx in the event of bankruptcy
filing with respect to Onyx and with respect to certain other matters.
(vii) The Underwriters shall have received an opinion of ▇▇▇▇▇▇▇ &
▇▇▇▇▇ 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 Class A 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 ▇▇▇▇▇▇ & Bird LLP, 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
Agreements and the MBIA Indemnification Agreement;
18
(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 Agreements 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 Agreements or the MBIA Indemnification
Agreement or in connection with the Insurer's performance of its
obligations thereunder;
(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 Agreements by
the parties thereto (other than the Insurer), the Insurance
Agreements 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.
(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.
(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.
19
(xiii) The Representative shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ 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 Notes, 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 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 Notes 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.
20
(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 Supplement captioned
"DESCRIPTION OF THE INSURER" or any such amendment thereof or supplement
thereto as of its Effective Date or date of issuance, as the case may be,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
The Company will furnish or cause to be furnished to the Underwriters such
number of conformed copies of such opinions, certificates, letters and documents
as the Underwriters reasonably request.
8. Indemnification.
(i) The Company will indemnify and hold harmless 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 a timely manner and 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
21
to the confirmation of the sale of the Notes and such delivery of the
final Prospectus was required under applicable securities laws.
(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 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 or 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 and the appointment of counsel satisfactory to the indemnified
party, 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.
22
9. Contribution. In order to provide for just and equitable contribution
in circumstances in which the indemnity agreement provided for in Section 8 is
for any reason held to be unavailable other than in accordance with its terms,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnifying party as a result of the losses, claims, damages or
liabilities referred to in 8(i) and 8(ii) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and each Underwriter on the other from the offering of the Notes 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 under this agreement and any related
indemnification agreement considered as one agreement any amount in the
aggregate in excess of the underwriting discount or commission applicable to the
Notes 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. For purposes of this
Section 9, each person who controls either Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of such Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company or Onyx within the meaning
of either the Act or the Exchange Act and each officer and director of the
Company or Onyx shall have the same rights to contribution as the Company or
Onyx, subject in each case to the applicable terms and conditions of this
Section 9.
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, Onyx or the
Insurer which, in the reasonable judgment of the Underwriters, materially
impairs the investment quality of the Notes; (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
23
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; (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 Notes; or (e) there shall have occurred such a material
adverse change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets of the United States
shall be such) as to make it, in the judgment of the Underwriters, impractical
or inadvisable to proceed with the public offering or delivery of the Notes on
the terms and in the manner contemplated in the Prospectus.
11. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
the Underwriters, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Notes. If for any reason the purchase of the Notes 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 Notes 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 each Underwriter
for all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by it in connection with the offering of the Notes.
12. Notices. All communications hereunder will be in writing and, if sent
to the Representative, will be mailed, delivered or telegraphed and confirmed to
the Representative at ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, 4
World Financial Center, 10th Floor, New York, New York 10080, Attention: Asset
Backed Finance 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., Senior Vice President and General
Counsel.
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
24
the benefit of no other person, firm or corporation. No purchaser of Notes from
the Underwriters shall be deemed to be a successor by reason merely of such
purchase.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
16. Severability of Provisions. Any covenant, provisions, agreement or
term of this Agreement that is prohibited or is held to be void or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof.
17. Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties hereto with respect to the matters and transactions
contemplated hereby 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 Notes hereunder on the Closing Date and the aggregate
principal amount of the Notes that such defaulting Underwriter agreed but failed
to purchase does not exceed 10% of the total principal amount of the Notes, the
Representative may make arrangements satisfactory to the Representative and the
Company for the purchase of such Notes by other persons, including either of the
Underwriters, but if no such arrangements are made by the Closing Date, the
nondefaulting Underwriter(s) shall be obligated, in proportion to its respective
commitment hereunder, to purchase the Notes that such defaulting Underwriter
agreed but failed to purchase. If an Underwriter so defaults and the aggregate
principal amount of the Notes with respect to such default exceeds 10% of the
total principal amount of the Notes and arrangements satisfactory to the
Representative and the Company for the purchase of such Notes by other persons
are not made within 24 hours after such default or such other period of time as
is agreed upon in writing by the Company and the Representative, 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.
25
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.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Credit Suisse First Boston LLC
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED,
as Representative
-------------------------------------
Name:
Title:
26
Exhibit A-1
The information herein is preliminary, and will be superseded by the
applicable prospectus and prospectus supplement and by any other information
subsequently filed with the Securities and Exchange Commission. The information
addresses only certain aspects of the applicable security's characteristics and
thus does not provide a complete assessment. As such, the information may not
reflect the impact of all structural characteristics of the security. The
assumptions underlying the information, including structure and collateral, may
be modified from time to time to reflect changed circumstances. The attached
term sheet is not intended to be a prospectus or prospectus supplement and any
investment decision with respect to the Notes should be made by you based solely
upon all of the information contained in the final prospectus and the final
prospectus supplement. Under no circumstances shall the information presented
constitute an offer to sell or the solicitation of an offer to buy nor shall
there be any sale of the securities in any jurisdiction in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of such jurisdiction. The securities may not be sold
nor may an offer to buy be accepted prior to the delivery of a final prospectus
and final prospectus supplement relating to the securities. All information
described herein is preliminary, limited in nature and subject to completion or
amendment. No representation is made that the above referenced securities will
actually perform as described in any scenario presented. A final prospectus and
final prospectus supplement may be obtained by contacting the ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Co. Syndicate Desk at (▇▇▇) ▇▇▇-▇▇▇▇.
27
Exhibit A-2
The information herein is preliminary, and will be superseded by the
applicable prospectus and prospectus supplement and by any other information
subsequently filed with the Securities and Exchange Commission. The information
addresses only certain aspects of the applicable security's characteristics and
thus does not provide a complete assessment. As such, the information may not
reflect the impact of all structural characteristics of the security. The
assumptions underlying the information, including structure and collateral, may
be modified from time to time to reflect changed circumstances. The attached
term sheet is not intended to be a prospectus or prospectus supplement and any
investment decision with respect to the Notes should be made by you based solely
upon all of the information contained in the final prospectus and the final
prospectus supplement. Under no circumstances shall the information presented
constitute an offer to sell or the solicitation of an offer to buy nor shall
there be any sale of the securities in any jurisdiction in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of such jurisdiction. The securities may not be sold
nor may an offer to buy be accepted prior to the delivery of a final prospectus
and final prospectus supplement relating to the securities. All information
described herein is preliminary, limited in nature and subject to completion or
amendment. No representation is made that the above referenced securities will
actually perform as described in any scenario presented. A final prospectus and
final prospectus supplement may be obtained by contacting the Credit Suisse
First Boston Trading Desk at (▇▇▇) ▇▇▇-▇▇▇▇.
28
SCHEDULE I
OFFERED SECURITY PRINCIPAL AMOUNT
Class A-1 Notes
---------------
Purchase Price: 99.85000%
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ $37,400,000
Incorporated
Credit Suisse First Boston LLC $37,400,000
Class A-2 Notes
---------------
Purchase Price: 99.75302%
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ $49,500,000
Incorporated
Credit Suisse First Boston LLC $49,500,000
Class A-3 Notes
---------------
Purchase Price: 99.71355%
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ $61,000,000
Incorporated
Credit Suisse First Boston LLC $61,000,000
Class A-4 Notes
---------------
Purchase Price: 99.68912%
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ $52,100,000
Incorporated
Credit Suisse First Boston LLC $52,100,000
29