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EXHIBIT 1.2
Onyx Acceptance Owner Trust 1998-B
$165,000,000 5.60% Auto Loan Backed Notes, Class A-1
$72,500,000 5.85% Auto Loan Backed Notes, Class A-2
$12,500,285 6.07% Auto Loan Backed Certificates
Onyx Acceptance Financial Corporation
as Seller
Onyx Acceptance Corporation
as Servicer
UNDERWRITING AGREEMENT
September 8, 1998
Xxxxxxx Xxxxx Xxxxxx Inc.,
as representative of
the several Underwriters
0 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. Onyx Acceptance Financial Corporation (the "Company")
proposes to cause Onyx Acceptance Owner Trust 1998-B (the "Trust") to sell to
Xxxxxxx Xxxxx Xxxxxx Inc. (the "Representative") and Xxxxxxx, Xxxxx, Xxxxxx
Xxxxxx & Xxxxx Incorporated (together with the Representative, the
"Underwriters") $165,000,000 aggregate principal amount of 5.60% Auto Loan
Backed Notes, Class A-1 (the "Class A-1 Notes"), $72,500,000 aggregate principal
amount of 5.85% Auto Loan Backed Notes, Class A-2 (the "Class A-2 Notes" and
together with the Class A-1 Notes the "Notes"), and $12,500,285 aggregate
principal amount of 6.07% Auto Loan Backed Certificates (the "Certificates," and
together with the Notes, the "Securities"). The Notes will be issued pursuant to
an Indenture dated as of September 1, 1998 (the "Indenture"), between the Trust
and The Chase Manhattan Bank as Indenture Trustee (the "Indenture Trustee"). The
Certificates will be issued pursuant to a Trust Agreement dated as of September
1, 1998 (the "Trust Agreement")among the Company, Bankers Trust (Delaware) as
Owner Trustee (the "Owner Trustee") and The Chase Manhattan Bank as Trust Agent
(the
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"Trust Agent"). Pursuant to a Sale and Servicing Agreement dated as of September
1, 1998 (the "Servicing Agreement") among the Trust, the Company as Seller (the
"Seller"), Onyx Acceptance Corporation as Servicer ("Onyx" or in such capacity,
the "Servicer"), the The Chase Manhattan Bank in it's 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 and Onyx will
act as servicer of the Contracts. Pursuant to an Administration Agreement dated
as of September 1, 1998 (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 Purchase Agreement dated as of
September 8, 1994 (the "Onyx Purchase Agreement"), Onyx has sold the Contracts
to the Company. Pursuant to a purchase agreement dated as of the Closing Date
(the "Fundco Purchase Agreement" and together with the Onyx Purchase Agreement
the "Purchase Agreements"), Onyx Acceptance Funding Corporation ("Fundco") sold
certain of the Contracts to Onyx prior to the sale of the Contracts by Onyx to
the Company. Pursuant to an insurance and reimbursement agreement (the
"Insurance Agreement") among the Trust, the Company, Onyx, the Indenture Trustee
and MBIA Insurance Corporation (the "Insurer"), the Insurer has issued its
financial guarantee insurance policy (the "Guarantee") to the Indenture Trustee
for the benefit of the Securityholders guaranteeing timely payment of interest
and payment of principal at maturity on the Securities. The Trust's assets (the
"Trust Property") will include: (i) a pool of fixed rate motor vehicle retail
installment sales contracts (the "Contracts"), all of which were purchased from
the Seller and secured by new and used automobiles and light-duty trucks (the
"Financed Vehicles"), (ii) certain documents relating to the Contracts, (iii)
certain monies received with respect to the Contracts on or after September 1,
1998 (the "Cut-Off Date") (iv) security interests in the Financed Vehicles and
the rights to receive proceeds from claims on certain insurance policies
covering the Financed Vehicles or the individual obligors under each related
Contract, (v) all amounts on deposit in the Collection Account, the Payment
Account, the Note Distribution Account, the Certificate Distribution Account,
and the Spread Account, including all Eligible Investments credited thereto (but
excluding any investment income from Eligible Investments, credited to the
Collection Account, which will be paid to the Servicer),(vi) the right of the
Company to cause Onyx to repurchase certain Contracts under certain circum-
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stances, and (vii) all proceeds of the foregoing. The aggregate principal
balance of the Contracts as of the Cut-Off Date is approximately $250,000,285.
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, as amended (the "Act"), and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement (Registration No. 333-51239) on such Form,
including a prospectus and forms of prospectus supplements, for
registration under the Act of the offering and sale of the Notes and
Certificates. The Company may have filed one or more amendments
thereto, each of which amendments has previously been furnished to the
Representative. The Company will also file with the Commission a
prospectus supplement in accordance with Rule 424(b) under the Act. The
Company has included in the Registration Statement, as amended at the
Effective Date (as hereinafter defined), all information required by
the Act and the rules thereunder to be included in the Prospectus (as
hereinafter defined) with respect to the Notes and Certificates and the
offering thereof. As filed, the registration statement as amended, the
forms of prospectus supplements, and any prospectuses or prospectus
supplements filed pursuant to Rule 424(b) under the Act relating to the
Notes and Certificates shall, except to the extent that the
Representative shall agree in writing to a modification, be in all
substantive respects in the form furnished to the Representative prior
to the Execution Time (as hereinafter defined) or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes as the Company has advised the
Representative, prior to
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the Execution Time, will be included or made therein.
For purposes of this Agreement, "Effective Time" means the date and
time as of which such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission, and
"Effective Date" means the date of the Effective Time. "Execution Time" shall
mean the date and time that this Agreement is executed and delivered by the
parties hereto. Such registration statement, as amended at the Effective Time,
and including the exhibits thereto and any material incorporated by reference
therein (including any ABS Term Sheets (as defined in Section 4(b) of this
Agreement) filed on Form 8-K), is hereinafter referred to as the "Registration
Statement," and any prospectus supplement (the "Prospectus Supplement") relating
to the Notes and Certificates, as filed with the Commission pursuant to and in
accordance with Rule 424(b) under the Act is, together with the prospectus filed
as part of the Registration Statement (such prospectus, in the form it appears
in the Registration Statement or in the form most recently revised and filed
with the Commission pursuant to Rule 424(b) being hereinafter referred to as the
"Basic Prospectus"), hereinafter referred to as the "Prospectus". "Rule 424"
refers to such rule under the Act. Any reference herein to the Registration
Statement, the Prospectus or any Prospectus Supplement shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 which were filed by the Company as the originator of the Trust
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on
or before the Effective Date of the Registration Statement or the issue date of
the Prospectus or any Prospectus Supplement, as the case may be (but shall not
be deemed to refer to or include any Form T-1 filed with respect to the
Indenture Trustee); and any reference herein to the terms "amend", "amendment"
or "supplement" with respect to the Registration Statement, the Prospectus or
any Prospectus Supplement shall be deemed to refer to and include the filing of
any document under the Exchange Act after the Effective Date of the 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
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Closing Date (as defined below), the Prospectus and any Prospectus
Supplement did or will comply in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
respective rules and regulations of the Commission thereunder (the
"Rules and Regulations"). On the Effective Date, the Registration
Statement did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus,
together with any Prospectus Supplement, did not or will not include
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representation or warranty as to the
information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by any Underwriter through the
Representative specifically for use in connection with preparation of
the Registration Statement or the Prospectus.
(iii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) there has
not been any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, business, management, financial condition, stockholders'
equity, results of operations, regulatory status or business prospects
of the Company or Onyx, and (ii) neither the Company nor Onyx has
entered into any transaction or agreement (whether or not in the
ordinary course of business) material to it that, in either case, would
reasonably be expected to materially adversely affect the interests of
the holders of the Notes or Certificates, other than as set forth or
contemplated in the Prospectus.
(iv) The Company has been duly incorporated and is validly
existing as a corpora-
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tion in good standing under the laws of its jurisdiction of
incorporation, with full power and authority (corporate and other) to
own its properties and conduct its businesses as described in the
Prospectus, and is duly qualified to transact business as a foreign
corporation in good standing under the laws of each jurisdiction where
the ownership or leasing of its properties or the conduct of its
business requires such qualification.
(v) As of the Closing Date the representations and warranties
of the Company, as Seller, in the Servicing Agreement and Trust
Agreement will be true and correct, and each Contract will satisfy the
representations and warranties set forth in Section 2.02(b) of the
Servicing Agreement.
(vi) No consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required to be
obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement, except such as have been
obtained and made under the Act, such as may be required under state
securities laws and the filing of any financing statements required to
perfect the Trust's interest in the Contracts.
(vii) The Company is not in violation of its Certificate of
Incorporation or By-Laws or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
agreement or instrument to which it is a party or by which it or its
properties are bound which violation or default would have a material
adverse effect on the transactions contemplated herein or in the
Indenture, the Trust Agreement, the Servicing Agreement, the Purchase
Agreements or the Insurance Agreement. The execution, delivery and
performance by the Company of this Agreement, the Trust Agreement, the
Servicing Agreement, the Purchase Agreements or the Insurance Agreement
and the issuance and sale of the Securities and compliance with the
terms and provisions thereof will not result in a breach or
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violation of any of the terms and provisions of or constitute a default
under, any statute, rule, regulation or order of any governmental
agency or body or any court having jurisdiction over the Company or any
of its properties or any agreement or instrument to which the Company
is a party or by which the Company is bound or to which any of the
properties of the Company is subject, or the Certificate of
Incorporation or By-Laws of the Company and the Company has full
corporate power and authority to authorize, cause the Trust to issue,
and sell the Securities as contemplated by this Agreement, to enter
into this Agreement, the Trust Agreement, the Servicing Agreement, the
Purchase Agreements and the Insurance Agreement and to consummate the
transactions contemplated herein and therein.
(viii) This Agreement has been duly authorized, executed and
delivered by the Company.
3. Purchase, Sale, Payment and Delivery of Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company the aggregate principal amount of each class of Securities set
forth opposite such Underwriter's name on Schedule I hereto and at the price set
forth on such Schedule plus accrued interest, if any, from the Closing Date.
The Company will deliver the Securities to the Underwriters against
payment of the purchase price in immediately available funds by wire transfer to
the order of the Company at the offices of Xxxxxxx & Xxxxx L.L.P., 0000 Xxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000 at 10:00 a.m., New York City time on
September 11, 1998 or at such other time not later than seven full business days
thereafter as the Underwriters and the Company determine, such time being herein
referred to as the "Closing Date". The Securities so to be delivered shall be
represented by one or more global notes or certificates as applicable registered
in the name of Cede & Co., as nominee for The Depository Trust Company, in such
numbers as the Underwriters shall reasonably request not later than 48 hours
prior to the Closing Date. The
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Company shall make such global notes or certificates, as applicable,
representing the Securities available for inspection by the Underwriters at the
office at which the Securities are to be delivered no later than 10:00 a.m., New
York City time, on the business day prior to the Closing Date.
4. Offering by the Underwriters. (a) It is understood that, after the
Registration Statement becomes effective, the Underwriters propose to offer the
Securities for sale to the public (which may include selected brokers and
dealers) as set forth in the Prospectus.
(b) The Underwriters may prepare and provide to prospective investors
certain ABS Term Sheets, in connection with its offering of the Securities,
subject to the following conditions:
(i) The Underwriters shall have complied with the requirements
of the no-action letter, dated February 17, 1995, issued by the
Commission to the Public Securities Association (the "No-Action
Letter").
(ii) For purposes hereof, "ABS Term Sheets" shall have the
meaning given such term in the No-Action Letter but shall include only
those ABS Term Sheets that have been prepared or delivered to
prospective investors by or at the direction of 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 Exhibit A.
The Company shall have the right to require specific legends or
notations to appear on any ABS Term Sheets, the right to require
changes regarding the use of terminology and the right to determine the
types of information appearing therein. Notwithstanding the foregoing,
this subsection (iii) will be satisfied if all ABS Term Sheets referred
to herein bear a legend in a form previously approved in writing by the
Company.
(iv) The Underwriters shall have provided the Company with
representative forms of all
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ABS Term Sheets prior to their first use, to the extent such forms have
not previously been approved in writing by the Company for use by the
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. 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. The Underwriters shall have not provided to any
investor or prospective investor in the Securities any ABS Term Sheets
on or after the day on which ABS Term Sheets are required to be
provided to the Company pursuant to this subsection (iv) (other than
copies of ABS Term Sheets previously submitted to the Company in
accordance with this subsection (iv) for filing pursuant to Section
5(xii)), unless such ABS Term Sheets are preceded or accompanied by the
delivery of a Prospectus to such investor or prospective investor.
(v) All information included in the ABS Term Sheets shall have
been generated based on substantially the same methodology and
assumptions that are used to generate the information in the Prospectus
as set forth therein; provided that the ABS Term Sheets may have
included information based on alternative methodologies or assumptions
if specified therein. If any ABS Term Sheets that are required to be
filed were based on assumptions with respect to the Contract Pool that
differ from the final Contract Pool information in any material respect
or on Securities structuring terms that were revised in any material
respect prior to the printing of the Prospectus, the Underwriters shall
have prepared revised ABS Term Sheets based on the final Contract Pool
information and structuring assumptions, shall have circulated such
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revised ABS Term Sheets to all recipients of the preliminary versions
thereof that indicated orally to the Underwriters they would purchase
all or any portion of the Securities, and shall have included such
revised ABS Term Sheets (marked, "as revised") in the materials
delivered to the Company pursuant to subsection (iv) above.
(vi) The Company shall not be obligated to file any ABS Term
Sheets that have been determined to contain any material error or
omission, provided that, at the request of the Underwriters, the
Company will file ABS Term Sheets that contain a material error or
omission if clearly marked "superseded by materials dated _______" and
accompanied by corrected ABS Term Sheets that are marked, "supersedes
material previously dated _______, as corrected." If, within the period
during which the Prospectus relating to the Securities is required to
be delivered under the Act, any ABS Term Sheets are determined, in the
reasonable judgment of the Company or the Underwriters, to contain a
material error or omission, the Underwriters shall prepare a corrected
version of such ABS Term Sheets, shall circulate such corrected ABS
Term Sheets to all recipients of the prior versions thereof that either
indicated orally to the Underwriters they would purchase all or any
portion of the Securities, or actually purchased all or any portion
thereof, and shall deliver copies of such corrected ABS Term Sheets
(marked, "as corrected") to the Company for filing with the Commission
in a subsequent current report on Form 8-K (subject to the Company's
obtaining an accountant's comfort letter in respect of such corrected
ABS Term Sheets, which shall be at the expense of the Underwriters).
(vii) The Underwriters shall be deemed to have represented as
of the Closing Date, that, except for ABS Term Sheets provided to the
Company pursuant to subsection (iv) above, the Underwriters did not
provide any prospective investors with any information in written or
electronic form in connection with the offering of the Securities
that is required to be filed with the Commission in accordance with the
No-Action Letter.
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(viii) In the event of any delay in the delivery by the
Underwriters to the Company of any ABS Term Sheets required to be
delivered in accordance with subsection (iv) above, or in the delivery
of the accountant's comfort letter in respect thereof pursuant to
Section 5(xii), the Company shall have the right to delay the release
of the Prospectus to investors or to the Underwriters, to delay the
Closing Date and to take other appropriate actions in each case as
necessary in order to allow the Company to comply with its agreement
set forth in Section 5(xii) to file the ABS Term Sheets by the time
specified therein.
5. Certain Agreements of the Company. The Company agrees with the
Underwriters that:
(i) Immediately following the execution of this Agreement, the
Company will prepare a Prospectus Supplement setting forth the amount
of Securities covered thereby and the terms thereof not otherwise
specified in the Basic Prospectus, the price at which such Securities
are to be purchased by the Underwrit ers, 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(b) of this
Agreement. The Company will transmit the Prospectus including such
Prospectus Supplement to the Commission pursuant to Rule 424(b) by a
means rea sonably 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 to which the
Representative reasonably objects. 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
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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 to order.
(iv) The Company will use every reasonable effort to cause the
Registration Statement, and any amendment thereto, if not effective at
the Execution Time, to become effective.
(v) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
or if it is necessary at any time to amend the Prospectus to comply
with the Act, the Company promptly will prepare and file with the
Commission (subject to the Underwriter'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.
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(vi) As soon as practicable, the Company will cause the Trust
to make generally available to the Securityholders of the Trust an
earnings statement or statements of the Trust covering a period of at
least 12 months beginning after the Effective Date of the Registration
Statement which will satisfy the provisions of Section 11(a) of the Act
and Rule 158 of the Commission promulgated thereunder.
(vii) The Company will furnish to each Underwriter copies of
the Registration Statement, the Prospectus and any preliminary
Prospectus 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 the Underwriters in
arranging for the qualification of the Securities for sale and the
determination of their eligibility for investment under the laws of
such jurisdictions as each Underwriter designates and will continue
such qualifications in effect so long as required for the distribution
of the Securities; provided, however, that the Company shall not be
obligated to qualify to do business in any jurisdiction in which it is
not currently so qualified or to take any action which would subject it
to general or unlimited service of process in any jurisdiction where it
is not now so subject.
(ix) For a period from the date of this Agreement until the
retirement of the Securities, the Company will furnish to the
Underwriters copies of the annual statements of compliance delivered to
the Indenture Trustee pursuant to Section 3.09 of the Indenture and
Section 3.10 of the Servicing Agreement, and the annual independent
public accountant's reports furnished to the Indenture Trustee pursuant
to Section 3.11 of the Servicing Agreement, as soon as practicable
after such statements and reports are furnished to the Indenture
Trustee and Owner Trustee respectively.
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(x) So long as any of the Securities are outstanding, the
Company will furnish to you as soon as practicable, (A) all documents
distributed, or caused to be distributed, by the Servicer to the
Securityholders, (B) all documents filed, or caused to be filed, by the
Company with the Commission pursuant to the Securities Act of 1934, as
amended, any order of the Commission thereunder or pursuant to a
"no-action" letter from the staff of the Commission and (C) from time
to time, such other information in the possession of the Company
concerning the Trust and any other information concerning the Company
filed with any governmental or regulatory authority which is otherwise
publicly available as you may reasonably request.
(xi) On or before the Closing Date the Company shall cause its
computer records relating to the Contracts to be marked to show the
Trust's absolute ownership of the Contracts and shall cause the
Servicer to mark its computer records relating to the Contracts to show
the sale to the Company of the Contracts and the subsequent transfer of
the Contracts to the Trust, and from and after the Closing Date the
Company shall not and shall instruct the Servicer not to, take any
action inconsistent with the Trust's ownership of such Contracts, other
than as permitted by the Indenture and Trust Agreement.
(xii) The Company will file with the Commission as part of a
current report on Form 8-K each ABS Terms Sheet provided to the Company
by the Underwriters and identified by it as such within the time period
allotted for such filing pursuant to the No-Action Letter; provided,
however, that prior to such filing of an ABS Term Sheet (other than any
ABS Term Sheets that are not based on the Contract Pool information) by
the Company, 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
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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 foregoing letter shall be at the
expense of the Underwriters. The Company shall file any corrected ABS
Term Sheets described in Section 4(b)(vi) as soon as practicable
following receipt thereof.
6. Payment of Expenses. Except as provided in Sections 4(b) and 5(xii)
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
Indenture Trustee's and Owner Trustee's fees and the fees and disbursements of
the counsel to the Indenture Trustee and to the Owner Trustee, (iii) any
up-front fees and premiums payable to the Insurer and the fees and disbursements
of counsel to the Insurer, (iv) the fees and disbursements of the accountants,
(v) the fees of the rating agencies and (vi) blue sky expenses.
7. Conditions to the Obligations of the Underwriters. The obligation of
the Underwriters to purchase and pay for the Securities will be subject to the
accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the written statements of officers of the Company
made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(i) On or prior to the date of this Agreement, the
Representative shall have received a letter, dated the date of this
Agreement, of PricewaterhouseCoopers and substantially in the form
heretofore agreed, which letter shall be in form and substance agreed
to by the Representative.
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(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 the Underwriters, materially impairs the
investment quality of the Securities; (b) any suspension or material
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of Onyx on any
exchange or in the over-the-counter market by such exchange or
over-the-counter market or by the Commission; (c) any banking
moratorium declared by Federal, New York or 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 Representative, the effect of any such
outbreak, escalation, calamity or emergency on the United States
financial markets makes it impracticable or
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inadvisable to proceed with completion of the sale of, and any payment
for, the Securities.
(iv) The Underwriters shall have received an opinion, dated
the Closing Date, of Xxxxxxx & Xxxxx L.L. P., counsel of the Company,
substantially to the effect that:
(a) The Company (1) is duly incorporated and is
validly existing and in good standing under the laws of the
State of Delaware, (2) has the corporate power and corporate
authority to own its properties and conduct its business as
described in the Prospectus and (3) had at all relevant times,
and now has, the power, authority and legal right to acquire,
own and sell the Contracts;
(b) The Company has, or at the time such agreement
was executed and delivered, had, the corporate power and
corporate authority to execute and deliver this Agreement, the
Trust Agreement, the Servicing Agreement, the Purchase
Agreement and the Insurance Agreement 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 and the Servicing Agreement,
the Purchase Agreement or the Insurance Agreement except for
(1) filing of a Uniform Commercial Code financing statement in
the State of California with respect to the transfer of the
Contracts to the Trust pursuant to the 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 the federal which have been made or obtained
and (3) such consents, approvals,
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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
Agreement, the transfer of the Contracts to the Trust, the
assignment of the security interests of the Company in the
Financed Vehicles, the issuance and sale of the Securities 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 Agreement conflicts or
will conflict with, has resulted or will result in a breach,
violation or acceleration of any of the terms of, or has
constituted or will constitute a default under, the By-Laws or
the Certificate of Incorporation of the Company, as amended,
or, to 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, after due inquiry,
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 Agreement or the Securities, (2)
seeking to prevent the issuance of the Securities or the
consummation of any of the transactions contemplated by this
Agreement, the Trust Agreement, the Servicing Agreement, the
Purchase Agreement or the Insurance Agreement (3) seeking
ad-
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versely to affect the federal income tax attributes of the
Securities as described in the Base Prospectus under the
headings "SUMMARY OF TERMS -- Tax Status"; "CERTAIN FEDERAL
INCOME TAX CONSEQUENCES"; "TRUSTS FOR WHICH A PARTNERSHIP
ELECTION IS MADE" and "TRUSTS TREATED AS GRANTOR TRUSTS" and
in the Prospectus Supplement under the headings "SUMMARY OF
TERMS -- Federal Income Tax Status" and "CERTAIN FEDERAL
INCOME TAX CONSEQUENCES";
(f) This Agreement, the Trust Agreement, the
Servicing Agreement, the Purchase Agreement and the Insurance
Agreement have each been duly authorized, executed and
delivered by the Company;
(g) The Contracts constitute "chattel paper" as
defined in Section 9-105(a)(2) of the Uniform Commercial Code
of the State of California;
(h) The statements in the Prospectus under the
caption "Certain Legal Aspects of the Contracts," and "ERISA
Considerations" to the extent they constitute matters of
California or federal law or legal conclusions, are correct in
all material respects;
(i) The direction by the Company to the Trust Agent
to authenticate the Certificates has been duly authorized by
the Company and, when the Certificates have been duly executed
by the Owner Trustee and authenticated and delivered by the
Trust Agent in accordance with the Trust Agreement and
delivered and paid for pursuant to this Agreement, will be
duly and validly issued and outstanding, and will be entitled
to the benefits of the Trust Agreement.
(j) When the Notes have been duly executed by the
Owner Trustee and delivered by the Trust Agent on behalf of
the Trust, authenticated by the Indenture Trustee in
accordance with the Indenture and delivered and paid for
pursuant to this
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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,
Fundco and Onyx, each of the Trust Agreement, the Purchase
Agreements, the Servicing Agreement and the Insurance
Agreement constitutes the legal, valid and binding agreement
of the Company, enforceable against the Company in accordance
with its terms, subject, as to enforcement, to (1) the effect
of bankruptcy, insolvency, reorganization, moratorium,
fraudulent or preferential conveyance and other similar laws
of general application relating to or affecting creditors'
rights generally, and general principles of equity (regardless
of whether such enforceability is considered in a proceeding
in equity or at law); and (2) the unenforceability under
certain circumstances of provisions indemnifying a party
against liability where such indemnification is contrary to
public policy;
(l) The Registration Statement became effective under
the Act as of the date and time specified in such opinion;
after due inquiry, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Act; the Registration Statement, and each amendment thereof or
supplement thereto as of its Effective Date and the Prospectus
as of its date of issuance appeared on its face to be
appropriately responsive in all material respects to the
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21
applicable requirements of the Securities Act and the Rules
and Regulations, and such counsel need not opine as to the
financial statements and related notes, schedules and other
financial and statistical data included therein; and any
required filing of the Prospectus and Prospectus Supplement
pursuant to Rule 424(b) has been made;
(m) The Securities, the Indenture, the Trust
Agreement, the Servicing Agreement, the Purchase Agreement,
and the Guarantee conform in all material respects to the
descriptions thereof contained in the Registration Statement
and the Prospectus;
(n) The Trust Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended;
(o) The Indenture has been duly qualified under the
Trust Indenture Act; and
(p) The Company is not, and after giving effect to
the offering and sale of the Securities as contemplated in the
Prospectus and this Agreement and the application of the
proceeds thereof as described in the Prospectus will not be,
an "investment company" as defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act"). Onyx
is not an "investment company" within the meaning of the
Investment Company Act.
(q) The Trust is not now, and immediately following
the sale of the Securities pursuant to this Agreement will not
be, required to be registered under the Investment Company
Act.
(r) The Indenture, the Sale and Servicing Agreement
and the Administration Agreement, assuming that they have been
duly authorized by, and when duly executed and delivered by,
the Owner Trustee on behalf of the Trust, will constitute the
legal, valid and binding obligations of the Trust, enforceable
against the Trust in accordance
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with their terms, except (x) the enforceability thereof may be
subject to bankruptcy, insolvency, reorganization, moratorium,
fraudulent or other preferential conveyance and other similar
laws and other similar laws of general application relating to
or affecting the rights of creditors generally and to general
principles of equity (regardless of whether such enforcement
is considered in a proceeding in equity or at law).
In addition, such counsel shall opine (i) as to certain
matters relating to the acquisition by the Company of a perfected first
priority security interest in the vehicles financed by the Contracts
and (ii) as to the existence of a valid, perfected, first priority
security interest in the Contacts in favor of the Owner Trustee from
the Company and in favor of the Indenture Trustee from the Owner
Trustee.
In rendering such opinion, such counsel may rely (i) as to
matters of fact, to the extent deemed proper and as stated therein, on
certificates of responsible officers of the Company and public
officials and (ii) on other opinions of counsel as specified therein.
References to the Prospectus in this paragraph (iv) include any
supplements thereto.
(v) The Underwriters shall have received an opinion, dated the
Closing Date, of Xxxxxxx & Xxxxx L.L.P., counsel to Onyx and Fundco,
substantially to the effect that:
(a) Each of Onyx and Fundco (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 Contracts;
(b) Each of Onyx and Fundco has the corporate power
and corporate authority
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23
to execute and deliver the Servicing Agreement, the
Administration Agreement and the Purchase Agreements, to the
extent applicable, and at the time it was executed and
delivered, had the power and authority to execute and deliver
the Purchase Agreement, the Servicing Agreement and the
Administration Agreement to the extent applicable, and to
consummate the transactions contemplated herein and therein;
(c) No consent, approval, authorization or order of,
or filing with, any California or federal governmental agency
or body or any court is required by Onyx or Fundco to perform
the transactions contemplated by the Servicing Agreement, the
Administration Agreement or the Purchase Agreements, as
applicable, except for (1) filing of a Uniform Commercial Code
financing statement in the State of California with respect to
the sale of the Contracts to the Company pursuant to the
Purchase Agreements 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 Servicing Agreement, the Administration Agreement and
the Purchase Agreements, as applicable;
(d) None of the execution, delivery and performance
by Onyx or Fundco of the Servicing Agreement, the
Administration Agreement or the Purchase Agreements, 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
or Fundco, as amended, or, to the best of such counsel's
knowledge, any rule, order, statute
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24
or regulation known to such counsel to be currently applicable
to Onyx or Fundco of any court, regulatory body,
administrative agency or governmental body having jurisdiction
over Onyx or Fundco or the terms of any material indenture or
other material agreement or instrument known to such counsel
to which Onyx or Fundco is a party or by which it or its
properties are bound;
(e) The Servicing Agreement, the Administration
Agreement and the Purchase Agreements have each been duly
authorized, executed and delivered by Onyx and Fundco, as
applicable;
(f) The indemnification agreement dated as of the
date hereof, between Onyx and the Underwriters has been duly
authorized, executed and delivered by Onyx; and
(g) Assuming the authorization, execution and
delivery thereof by the Company with respect to the Servicing
Agreement, the Administration Agreement and the Purchase
Agreements, each such agreement constitutes the legal, valid
and binding agreement of Onyx and Fundco, as applicable,
enforceable against Onyx and Fundco 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
certifi-
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xxxxx of responsible officers of Onyx, Fundco and public officials.
In addition, such counsel shall state that they have
participated in conferences with the officers and other representatives
of the Company and Onyx, representatives of the independent public
accountants of the Company and Onyx and representatives of the
Underwriters and the Insurer at which the contents of the Registration
Statement and the Prospectus and related matters were discussed and,
although such counsel has not independently verified and are not
passing upon and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the
Registration Statement and the Prospectus, on the basis of the
foregoing, no facts have come to such counsel's attention that lead
them to believe that the Registration Statement, as of the Effective
Date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus as
of its date or as of the Closing Date contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (it being
understood that such counsel need make no comment and express no belief
with respect to (i) any information incorporated by reference in the
Registration Statement or the Prospectus or (ii) the financial
statements and related notes, schedules and the other financial and
statistical data included in the Registration Statement or the
Prospectus).
(vi) The Underwriters shall have received opinions of Xxxxxxx
& Xxxxx L.L. P., counsel to the Company, dated the Closing Date and
satisfactory in form and substance to you, with respect the
characterization of the transfer of the Contracts by Onyx to the
Company as a sale and with respect to the perfection of the Trust's
interests in the Contracts and with respect to the non-consolidation of
the Company with Onyx in the event of bankruptcy filing with respect to
Onyx and with respect to certain other matters.
(vii) The Underwriters shall have received an opinion of
Xxxxxxx & Xxxxx L.L.P., tax
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26
counsel to the Company, dated the Closing Date and satisfactory in form
and substance to you substantially to the effect that:
(a) The Notes will be characterized as debt and the
Trust will not be characterized as an association (or a
publicly traded partnership) taxable as a corporation;
(b) the Statements in the Base Prospectus under the
heading "SUMMARY OF TERMS -- Tax Status"; "CERTAIN FEDERAL
INCOME TAX CONSEQUENCES"; "TRUSTS FOR WHICH A PARTNERSHIP
ELECTION IS MADE" and "TRUSTS TREATED AS GRANTOR TRUSTS" and
in the Prospectus Supplement under the headings "SUMMARY OF
TERMS -- Federal Income Tax Status" and "CERTAIN FEDERAL
INCOME TAX CONSEQUENCES" to the extent that they constitute
matters of law or legal conclusions with respect thereto, have
been prepared or reviewed by such counsel and are correct in
all material respects; and
(c) Such state tax opinions as are satisfactory to
the Representative.
(viii) The Underwriters shall have received an opinion, 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 Agreement and the Indemnification
Agreement;
(c) Except as have already been obtained, no
authorization, consent, approval, license, formal exemption or
declaration from, nor any registration or filing
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27
with, any court or governmental agency or body of the United
States of America or the State of New York, which if not
obtained would affect or impair the validity or enforceability
of the Guarantee, the Insurance Agreement or the
Indemnification Agreement dated as of the Closing Date among
the Underwriters, Onyx and the Insurer (the "Indemnification
Agreement") against the Insurer, is required in connection
with the execution and delivery by the Insurer of the
Guarantee, the Insurance Agreement or the Indemnification
Agreement or in connection with the Insurer's performance of
its obligations thereunder;
(d) The Guarantee, the Insurance Agreement and the
Indemnification Agreement have been duly authorized, executed
and delivered by the Insurer, and the Guarantee and, assuming
due authorization, execution and delivery of the Insurance
Agreement by the parties thereto (other than the Insurer), the
Insurance Agreement constitute the legally valid and binding
obligations of the Insurer, enforceable in accordance with
their respective terms subject, as to enforcement, to (1)
bankruptcy, reorganization, insolvency, moratorium and other
similar laws relating to or affecting the enforcement of
creditors' rights generally, including, without limitation,
laws relating to fraudulent transfers or conveyances,
preferential transfers and equitable subordination, presently
or from time to time in effect and general principles of
equity (regardless of whether such enforcement is considered
in a proceeding in equity or at law), as such laws may be
applied in any such proceeding with respect to the Insurer and
(2) the qualification that the remedy of specific performance
may be subject to equitable defenses and to the discretion of
the court before which any proceedings with respect thereto
may be brought; and
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(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 (viii)
include any supplements thereto.
(ix) 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, substantially in the form of Exhibit B hereto.
(x) 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,
substantially in the form of Exhibit C hereto.
(xi) 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,
substantially in the form of Exhibit D hereto.
(xii) The Representative shall have received from Skadden,
Arps, Slate, Xxxxxxx & 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 Securities,
the Registration Statement, the Prospectus and other related matters as
the Underwriters may require, and the Company shall have furnished to
such counsel such documents as they reasonably request for the purpose
of enabling them to pass upon such matters.
(xiii) The Underwriters shall have received a letter, dated
the Closing Date, of
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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.
(xiv) The Underwriters shall have received evidence
satisfactory to them that the Securities have been rated in the highest
rating category by Xxxxx'x Investors Service, Inc. and by Standard &
Poor's Ratings Services.
(xv) 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.
(xvi) 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
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30
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.
(xvii) 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.
(xviii) The Underwriters shall have received a certificate
from a senior officer of the Insurer to the effect that such officer
has no reason to believe that the section of the Prospectus captioned
"Description of the Insurer" or any such amendment thereof or
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.
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8. Indemnification.
(i) The Company will indemnify and hold harmless each
Underwriter and each person, if any, who controls such
Underwriter with 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 the Underwriters for any legal
or other expenses reasonably incurred by the Underwriters in
connection with investigating or defending any such action or
claim; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim,
damage or liability arises out of, or is based upon, an untrue
statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement or the Prospectus
or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company
by the 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
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has previously furnished copies thereof in sufficient quantity
to the Underwriters, if the person asserting such loss, claim,
damage or liability was not given the final Prospectus (or any
amendment or supplement thereto) on or prior to the
confirmation of the sale of the Securities.
(ii) Each Underwriter severally and 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 Xxxxxxx Xxxxx Xxxxxx Inc. expressly for
use in the Registration Statement (or any amendment thereto)
or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or (B) made in the ABS Term
Sheets distributed by the Underwriters and filed as a
post-effective amendment to the Registration Statement or the
Prospectus as a result of any filing pursuant to Section
5(xii); provided however that the Underwriters will not be
liable in any such case to the extent that any such loss,
claim or damage or liability arises out of, or is based upon,
an untrue statement or omission made in the ABS Term Sheet or
any supplement thereto in reliance upon and in conformity with
(x) information furnished to such Underwriter by the Company
or (y) information contained in the Registration Statement or
any preliminary prospectus or the Prospectus other than
information described in clause (A) above.
(iii) Each indemnified party shall give prompt notice
to the indemnifying party of any action commenced against the
indemnified party
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in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve
such indemnifying party from any liability which it may have
hereunder or otherwise than on account of this indemnity
agreement except and to the extent of any prejudice to such
indemnifying party arising from such failure to provide such
notice. In case any such action shall be brought against an
indemnified party and it shall have notified the indemnifying
party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent
that it shall wish, to assume the defense thereof, with
counsel, satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be
counsel to the indemnifying party with respect to such
action), and it being understood that the indemnifying party
shall not, in connection with any one such action or separate
but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses
of more than one separate firm of attorneys, and, after notice
from the indemnifying party to the indemnified party of its
election so to assume the defense thereof, the indemnifying
party shall not be liable to the indemnified party under
subsections (i) or (ii) of this Section 8 for any legal
expenses of other counsel or any other expenses, in each case
subsequently incurred by the indemnified party, in connection
with the defense thereof other than reasonable costs of
investigation.
9. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 8 is for any reason held to be unavailable other than in accordance with
its terms, then each indemnifying party shall contribute to the amount paid or
payable by such indemnifying party as a result of the losses, claims, damages or
liabilities referred to in 8(i) and 8(ii) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and each Underwriter on the other from the offering of the Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
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34
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 such 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 such
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 such Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this Section 9 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
Section 9. Notwithstanding the provisions of this Section 9, no Underwriter
shall be required to contribute any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by it hereunder.
The Company and each Underwriter agrees that it would not be just and equitable
if contribution pursuant to this Section 9 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 9. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
10. Termination. The Underwriters may terminate this Agreement
immediately upon notice to the Company, if at any time, prior to the Closing
Date, there has occurred: (a) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Company or Onyx which, in the reasonable judgment of the Underwriters,
materially impairs the investment quality of the Securities; (b) any suspension
or material
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limitation of trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company or of Onyx on any exchange or in the
over-the-counter market by such exchange or over-the-counter market or by the
Commission; (c) any banking moratorium declared by Federal, New York or
California authorities; or (d) any outbreak or material escalation of major
hostilities or any other substantial national or international calamity or
emergency if, in the reasonable judgment of the Underwriters, the effect of any
such outbreak, escalation, calamity or emergency on the United States financial
markets makes it impracticable or inadvisable to proceed with completion of the
sale of and any payment for the Securities.
11. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
the Underwriters, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Securities. If for any reason the purchase of the Securities
by the Underwriters is not consummated, the Company shall remain responsible for
the expenses to be paid or reimbursed by it pursuant to Section 6 and the
respective obligations of the Company and the Underwriters pursuant to Sections
6, 8 and 9 shall remain in effect. If the purchase of the Securities by the
Underwriters is not consummated for any reason other than solely because of the
occurrence of any event specified in clauses (b), (c) or (d) of Section 7(iii)
or clauses (b), (c) or (d) of Section 10, and other than solely because the
Underwriters fail to perform their obligations hereunder, the Company will
reimburse the Underwriter for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by it in connection with the
offering of the Securities.
12. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Underwriters at c/o Xxxxxxx Xxxxx Xxxxxx Inc., 0 Xxxxx Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention:
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Xxxx XxXxxxxxxx, or to such other address as the Underwriters may designate in
writing to the Company, or if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to the Company at Onyx Acceptance Financial
Corporation, 0000 Xxxxxx Xxxxxx Xxxxx, 0xx Xxxxx, Xxxxxx XX 00000, Attention:
Xxxxx X. Xxxxx, Esq., Executive Vice President.
13. Successors. This Agreement will inure to the benefit of, and be
binding upon, the parties hereto and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 8 and 9 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
the Underwriters shall be deemed to be a successor by reason merely of such
purchase.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
16. Severability of Provisions. Any covenant, provisions, agreement or
term of this Agreement that is prohibited or is held to be void or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof.
17. Entire Agreement. This Agreement constitutes the entire agreement
and understanding of the parties hereto with respect to the matters and
transactions contemplated
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hereby and supersedes all prior agreements and understandings whatsoever
relating to such matters and transactions.
18. Amendment. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
19. Heading. The headings in this Agreement are for the purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
20. The Representative. The Representative will act for the several
Underwriters in connection with the transactions described in this Agreement,
and any action taken by the Representative under this Agreement will be binding
upon all the Underwriters.
21. Defaults of Underwriters. If any Underwriter defaults in its
obligation to purchase the Certificates hereunder on the Closing Date and the
aggregate principal amount of the Securities that such defaulting Underwriter
agreed but failed to purchase does not exceed 10% of the total principal amount
of the Certificates, the Representative may make arrangements satisfactory to
the Representative and the Seller for the purchase of such Securities by other
persons, including either of the Underwriters, but if no such arrangements are
made by the Closing Date, the nondefaulting Underwriter shall be obligated, in
proportion to its respective commitment hereunder, to purchase the Securities
that such defaulting Underwriter agreed but failed to purchase. If an
Underwriter so defaults and the aggregate principal amount of the Securities
with respect to such default exceeds 10% of the total principal amount of the
Securities and arrangements satisfactory to the Representative and the Company
for the purchase of such Securities by other persons are not made within 24
hours after such default, this Agreement will terminate without liability on the
part of the nondefaulting Underwriter or the Company, except as provided in
Section 11. Nothing herein will relieve a defaulting Underwriter from liability
for its default.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate thereof,
whereupon it will become a binding agreement among the undersigned in accordance
with its terms.
Very truly yours,
ONYX ACCEPTANCE FINANCIAL
CORPORATION
By: /s/ XXXXX X. XXXXX
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: Xxxxxxx Xxxxx Xxxxxx Inc.
/s/ XXXX X. XxXXXXXXXX
-----------------------------------
Name: Xxxx X. XxXxxxxxxx, XX
Title: Associate
For themselves and the other several underwriters
named in Schedule I attached hereto.
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Exhibit A
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 or Certificates should be made by you based solely upon all of the
information contained in the final prospectus. Under no circumstances shall the
information presented constitute an offer to sell or the solicitation of any
offer to buy nor shall there by any sale of the securities in any jurisdic tion
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 relating to the securities. All information
described herein is preliminary, limited in nature and subject to completion or
amendment. No represen tation is made that the above referenced securities will
actually perform as described in any scenario presented. A final prospectus and
prospectus supplement may be obtained by contacting the Salomon Brothers
Syndicate Desk at (000) 000-0000.
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Schedule I
Purchase
Price as a
percentage of
the aggregate
Initial principal
Principal amount
Amount thereof
----------------------------------- --------------------------------------------------- ----------
Xxxxxxx Xxxxx Xxxxxx Inc. ......... $82,500,000 5.60% Auto Loan Backed Notes, Class A-1 99.995585%
$36,250,000 5.85% Auto Loan Backed Notes, Class A-2 99.978197%
$6,250,285 6.07% Auto Loan Backed Certificates 99.968370%
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx and
Xxxxx Incorporated .............. $82,500,000 5.60% Auto Loan Backed Notes, Class A-1 99.995585%
$36,250,000 5.85% Auto Loan Backed Notes, Class A-2 99.978197%
$6,250,000 6.07% Auto Loan Backed Certificates 99.968370%
