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EXHIBIT 1.3
Onyx Acceptance Owner Trust 2000-B
$77,800,000 6.4125% Auto Loan Backed Notes, Class A-1
$120,000,000 7.02% Auto Loan Backed Notes, Class A-2
$131,000,000 7.29% Auto Loan Backed Notes, Class A-3
$94,200,000 7.38% Auto Loan Backed Notes, Class A-4
$27,000,000 7.56% Auto Loan Backed Notes, Class B
UNDERWRITING AGREEMENT
April 26, 2000
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
as Representative
of the Underwriters
World Financial Center
North Tower, 10th Floor
New York, New York 10281
Ladies and Gentlemen:
1. Introductory. Onyx Acceptance Financial Corporation (the "Company")
proposes to cause Onyx Acceptance Owner Trust 2000-B (the "Trust") to sell to
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated (the "Representative"), Chase
Securities Inc. and Xxxxxxx Xxxxx Xxxxxx Inc. (together with the Representative,
the "Underwriters") $77,800,000 aggregate principal amount of 6.4125% Auto Loan
Backed Notes, Class A-1 (the "Class A-1 Notes"), $120,000,000 aggregate
principal amount of 7.02% Auto Loan Backed Notes, Class A-2 (the "Class A-2
Notes"), $131,000,000 aggregate principal amount of 7.29% Auto Loan Backed
Notes, Class A-3 (the "Class A-3 Notes"), $94,200,000 aggregate principal amount
of 7.38% Auto Loan Backed Notes, Class A-4 ("the Class A-4 Notes"), and
$27,000,000 aggregate principal amount of 7.56% Auto Loan Backed Class B Notes
(the "Class B Notes", the Class B Notes and together with the Class A-1 Notes,
Class A-2 Notes, Class A-3 Notes and Class A-4 Notes, the "Notes").
The Notes will be issued pursuant to an Indenture dated as of April 1,
2000 (the "Indenture"), between the Trust and The Chase Manhattan Bank 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 April 1,
2000 (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 April 1, 2000 (the
"Servicing Agreement") among the Trust, the Company as Seller (the "Seller"),
Onyx Acceptance
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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 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 April 1, 2000 (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"), 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
prior to April 1, 2000 (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 before April 27, 2000 (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 $450,000,000
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
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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.
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. 333-92245) 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 "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
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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 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
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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.
(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)
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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 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 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 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 Xxxxxxx & Xxxxx L.L.P., 0000 Xxxx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxx 00000 at 10:00 a.m., New York City time on April 28, 2000 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:
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(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 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
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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 _________" 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
Basic 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
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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
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
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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 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.
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(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 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 Xxxxxxx & Xxxxx 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 Xxxxxxx & Xxxxx 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
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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 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 Xxxxxxx & Xxxxx L.L.P., counsel of the Company,
substantially to the effect that:
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(a) The Company (1) is duly incorporated and is validly
existing and in good standing under the laws of the State of
Delaware, (2) has the corporate power and corporate authority to own
its properties and conduct its business as described in the
Prospectus and (3) had at all relevant times, and now has, the
power, authority and legal right to acquire, own and sell the
Contracts;
(b) The Company has, or at the time such agreement was
executed and delivered, had, the corporate power and corporate
authority to execute and deliver this Agreement, the Trust
Agreement, the Servicing Agreement, the Purchase Agreement and the
Insurance 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 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 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
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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 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 "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
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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 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 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 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
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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.
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 Xxxxxxx & Xxxxx L.L.P., counsel to Onyx, substantially to
the effect that:
(a) Onyx (1) is duly incorporated and is validly existing and
in good standing under the laws of the State of 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 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 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
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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 Xxxx; 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
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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 Xxxxxxx &
Xxxxx L.L.P., counsel to the Company, dated the Closing Date and
satisfactory in form and substance to you, with respect the
characterization of the transfer of the 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 Xxxxxxx &
Xxxxx L.L.P., tax counsel to the Company, dated the Closing Date and
satisfactory in form and substance to you substantially to the effect
that:
(a) The 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 Xxxxxxx
Xxxxxxxxx, in-house counsel to the Company and Onyx, dated the Closing
Date and satisfactory in form and substance to you.
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(ix) The Underwriters shall have received an opinion, dated the
Closing Date, of Xxxx, Xxxxxxx, Xxxxx & Xxxxxxxxxx, counsel to the
Insurer, substantially to the effect that:
(a) The Insurer is a corporation validly existing, in good
standing and licensed to transact the business of surety and
financial guaranty insurance under the laws of the State of New
York;
(b) The Insurer has the corporate power to execute and
deliver, and to take all action required of it under the Guarantee,
the Insurance Agreements 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 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.
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(x) The Underwriters shall have received an opinion of Xxxxxxx,
Xxxxxxxx & Xxxx, counsel to the Indenture Trustee and Trust Agent, dated
the Closing Date and satisfactory in form and substance to you.
(xi) The Underwriters shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger, counsel to the Owner Trustee, dated the Closing Date and
satisfactory in form and substance to you.
(xii) The Underwriters shall have received an opinion of Xxxxxxxx,
Xxxxxx & Finger special Delaware counsel to the Trust, dated the Closing
Date and satisfactory in form and substance to you.
(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 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 Xxxxx'x 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,
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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 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
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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
Notes.
(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
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with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys, and, after notice
from the indemnifying party to the indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to
the indemnified party under subsections (i) or (ii) of this Section 8 for
any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by the indemnified party, in connection with the
defense thereof other than reasonable costs of investigation.
9. Contribution. In order to provide for just and equitable contribution
in circumstances in which the indemnity agreement provided for in Section 8 is
for any reason held to be unavailable other than in accordance with its terms,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnifying party as a result of the losses, claims, damages or
liabilities referred to in 8(i) and 8(ii) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and each 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 any amount 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.
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 Notes; (b) any suspension or material limitation of
trading in securities generally on the New York Stock Exchange, or any
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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; (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 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, World
Financial Center, North Tower, 10th Floor, New York, New York 10281 Attention:
Asset-Backed 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, 00000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx Xxxxx, XX 00000,
Attention: Xxxxxxx X. Xxxxxxxxx, 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
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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 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, this Agreement will terminate
without liability on the part of the nondefaulting Underwriter or the Company,
except as provided in Section 11. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate thereof,
whereupon it will become a binding agreement among the undersigned in accordance
with its terms.
Very truly yours,
ONYX ACCEPTANCE FINANCIAL CORPORATION
By: /s/ XXX X. XXXXX
----------------------------------------
Name: Xxx X. Xxxxx
Title: Chief Financial Officer
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Chase Securities Inc.
Xxxxxxx Xxxxx Xxxxxx Inc.
By: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
as Representative
/s/ XXXXXXXX X. XXXXX
---------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Authorized Signatory
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Exhibit A-1
The information herein is preliminary, and will be superseded by the
applicable prospectus supplement and by any other information subsequently filed
with the Securities and Exchange Commission. The information addresses only
certain aspects of the applicable security's characteristics and thus does not
provide a complete assessment. As such, the information may not reflect the
impact of all structural characteristics of the security. The assumptions
underlying the information, including structure and collateral, may be modified
from time to time to reflect changed circumstances. The attached term sheet is
not intended to be a prospectus and any investment decision with respect to the
Notes 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 Xxxxxxx Xxxxx Xxxxxx Syndicate Desk at (212)
723-6171.
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Exhibit A-2
The attached information (the "Term Sheet") is privileged and confidential
and is intended for use by the addressee only. The Term Sheet is furnished to
you solely by Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx
Xxxxx") and not by the issuer of the securities or any of its affiliates.
Neither Xxxxxxx Xxxxx, the issuer of the securities nor any of its affiliates
makes any representation as to the accuracy or completeness of the information
herein. The information herein is preliminary, and will be superseded by the
applicable prospectus supplement and by any other information subsequently filed
with the Securities and Exchange Commission. The information herein may not be
provided by the addressee to any third party other than the addressee's legal,
tax, financial and/or accounting advisors for the purposes of evaluating said
material.
Although a registration statement (including the prospectus) relating to
the securities discussed in this communication has been filed with the
Securities and Exchange Commission and is effective, the final prospectus
supplement relating to the securities discussed in this communication has not
been filed with the Securities and Exchange Commission. This communication shall
not constitute an offer to sell or the solicitation of any offer to buy nor
shall there be any sale of the securities discussed in this communication in any
state in which such offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any such state.
Prospective purchasers are referred to the final prospectus and prospectus
supplement relating to the securities discussed in this communication for
definitive information on any matter discussed in this communication. A final
prospectus and prospectus supplement may be obtained by contacting the Xxxxxxx
Xxxxx Trading Desk at (000) 000-0000.
Please be advised that asset-backed securities may not be appropriate for
all investors. Potential investors must be willing to assume, among other
things, market price volatility, prepayments, yield curve and interest rate
risk. Investors should fully consider the risk of any investment in these
securities.
If you have received this communication in error, please notify the
sending party immediately by telephone and return the original to such party by
mail.
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Exhibit A-3
The information herein is preliminary, and will be superseded by the
applicable prospectus supplement and by any other information subsequently filed
with the Securities and Exchange Commission. The information addresses only
certain aspects of the applicable security's characteristics and thus does not
provide a complete assessment. As such, the information may not reflect the
impact of all structural characteristics of the security. The assumptions
underlying the information, including structure and collateral, may be modified
from time to time to reflect changed circumstances. The attached term sheet is
not intended to be a prospectus and any investment decision with respect to the
Notes should be made by you based solely upon all of the information contained
in the final prospectus and 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 Chase Securities Trading Desk at (000) 000-0000.
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SCHEDULE I
OFFERED SECURITY PRINCIPAL AMOUNT PRICE(%)
---------------- ---------------- ---------
Class A-1 Notes
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx $25,934,000 99.87000%
Incorporated
Chase Securities Inc. $25,933,000 99.87000%
Xxxxxxx Xxxxx Xxxxxx Inc. $25,933,000 99.87000%
Class A-2 Notes
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx $40,000,000 99.79282%
Incorporated
Chase Securities Inc. $40,000,000 99.79282%
Xxxxxxx Xxxxx Xxxxxx Inc. $40,000,000 99.79282%
Class A-3 Notes
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx $43,668,000 99.75951%
Incorporated
Chase Securities Inc. $43,666,000 99.75951%
Xxxxxxx Xxxxx Xxxxxx Inc. $43,666,000 99.75951%
Class A-4 Notes
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx $31,400,000 99.71258%
Incorporated
Chase Securities Inc. $31,400,000 99.71258%
Xxxxxxx Xxxxx Xxxxxx Inc. $31,400,000 99.71258%
Class B Notes
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx $ 9,000,000 99.55248%
Incorporated
Chase Securities Inc. $ 9,000,000 99.55248%
Xxxxxxx Xxxxx Xxxxxx Inc. $ 9,000,000 99.55248%
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