EXHIBIT 1.5
EXECUTION COPY
Onyx Acceptance Owner Trust 2002-D
$80,000,000 1.74% Auto Loan Backed Notes, Class A-1
$119,000,000 1.95% Auto Loan Backed Notes, Class A-2
$128,000,000 2.47% Auto Loan Backed Notes, Class A-3
$123,000,000 3.10% Auto Loan Backed Notes, Class A-4
UNDERWRITING AGREEMENT
October 10, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.
as Representative of the Underwriters
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
1. Introductory. Onyx Acceptance Financial Corporation (the "Company")
proposes to cause Onyx Acceptance Owner Trust 2002-D (the "Trust") to sell to
Xxxxxxx Xxxxx Xxxxxx Inc. (the "Representative") and Credit Suisse First Boston
Corporation (together with the Representative, the "Underwriters") $80,000,000
aggregate principal amount of 1.74% Auto Loan Backed Notes, Class A-1 (the
"Class A-1 Notes"), $119,000,000 aggregate principal amount of 1.95% Auto Loan
Backed Notes, Class A-2 (the "Class A-2 Notes"), $128,000,000 aggregate
principal amount of 2.47% Auto Loan Backed Notes, Class A-3 (the "Class A-3
Notes"), and $123,000,000 aggregate principal amount of 3.10% 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 October 1,
2002 (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 October 1, 2002 (the "Trust
Agreement") among the Company, Deutsche Bank Trust Company 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 October 1, 2002
(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 October 1, 2002
(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 October 1, 2002 (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 October 21, 2002 (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 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.
2
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
3
"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.
4
(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
5
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 Xxxxxxx & Xxxxx L.L.P., 0000 Xxxx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxx 00000 at 10:00 a.m., New York City time on October 22,
2002 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.
6
(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 _________"
7
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
8
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.
9
(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 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 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 Xxxxxxx & Xxxxx L.L.P., counsel of the Company,
substantially to the effect that:
(a) The Company (1) is duly incorporated and is validly existing
and in good standing under the laws of the State of Delaware, (2)
has the corporate power and corporate authority to own its
properties and conduct its business as described in the
Prospectus and (3) had at all relevant times, and now has, the
power, authority and legal right to acquire, own and sell the
Contracts;
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 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 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 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, 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 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 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 Xxxxxxx &
Xxxxx 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 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.
(ix) The Underwriters shall have received an opinion, dated the
Closing Date, of Xxxxxx & 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 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.
19
(xiii) The Representative shall have received from Xxxxxx Xxxxxx
Xxxxx & Xxxx LLP, counsel to the Underwriters, such opinion or opinions,
dated the Closing Date and satisfactory in form and substance to you,
with respect to the validity of the 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, 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
21
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
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.
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 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
23
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 Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxxxx Xxxxx, 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 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.
24
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.
Xxxxxxx Xxxxx Xxxxxx Inc.
Credit Suisse First Boston Corporation
By: XXXXXXX XXXXX XXXXXX INC.,
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 Credit Suisse
First Boston Trading Desk at (000) 000-0000.
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 Xxxxxxx Xxxxx
Xxxxxx Syndicate Desk at (000) 000-0000.
28
SCHEDULE I
OFFERED SECURITY PRINCIPAL AMOUNT
Class A-1 Notes
Purchase Price: 99.85000%
Xxxxxxx Xxxxx Xxxxxx Inc. $40,000,000
Credit Suisse First Boston Corporation $40,000,000
Class A-2 Notes
Purchase Price: 99.75209%
Xxxxxxx Xxxxx Xxxxxx Inc. $59,500,000
Credit Suisse First Boston Corporation $59,500,000
Class A-3 Notes
Purchase Price: 99.72182%
Xxxxxxx Xxxxx Xxxxxx Inc. $64,000,000
Credit Suisse First Boston Corporation $64,000,000
Class A-4 Notes
Purchase Price: 99.69106%
Xxxxxxx Xxxxx Xxxxxx Inc. $61,500,000
Credit Suisse First Boston Corporation $61,500,000
29
