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EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT FOR NOTES AND CERTIFICATES
ONYX ACCEPTANCE [OWNER] [GRANTOR] TRUST 199_-_
$______ CLASS A-1 __% AUTO LOAN [BACKED NOTES] [PASS-THROUGH
CERTIFICATES] $______ CLASS A-2 __% AUTO LOAN [BACKED NOTES]
[PASS-THROUGH CERTIFICATES] $______ CLASS A-3 __% AUTO LOAN [BACKED
NOTES] [PASS-THROUGH CERTIFICATES]
[Date]
[Names of Investment Banks]
As Representatives of the
several Underwriters
c/o [Address]
Dear Sirs:
Section 1. Introductory. Onyx Acceptance Financial Corporation, a
Delaware corporation (the "Seller") and a wholly owned subsidiary of Onyx
Acceptance Corporation, a Delaware corporation ("Onyx"), proposes [to cause Onyx
Acceptance [Owner] [Grantor] Trust 199_-_ (the "Trust"), a business trust
organized under the laws of the State of Delaware,] to sell $_______ aggregate
principal amount of Class A-1 ___% Auto Loan [Backed Notes] [Pass-Through
Certificates] (the "Class A-1 Securities"), $__________ aggregate principal
amount of Class A-2 ____% Auto Loan [Backed Notes] [Pass-Through Certificates]
(the "Class A-2 Securities"), $_______ aggregate principal amount of Class A-3
____% Auto Loan [Backed Notes] [Pass-Through Certificates] (the "Class A-3
Securities", and together with the Class A-1 Securities and the Class A-2
Securities, the "Securities") [of the Onyx Acceptance Grantor Trust 199_-_ (the
"Trust")]. [The Trust will be governed by a [Trust Agreement] [Pooling and
Servicing Agreement] (the "Trust Agreement") to be dated as of _______, 199_
among the Seller, and ________ as owner trustee (the "Owner Trustee")]. The
assets of the Trust will include, among other things, a pool of retail
installment sale contracts (the "Contracts") secured by the new and used
automobiles and/or light duty trucks financed thereunder (the "Financed
Vehicles") and certain monies due or to become due thereunder on or
after________, 199_ (the "Cutoff Date"). The Contracts and other assets of the
Trust will be sold by Onyx to the Seller pursuant to a Sale and Servicing
Agreement (the "Purchase Agreement") dated as of September 8, 1994, as amended
between Onyx and the Seller; [such Contracts and other assets will be sold by
the Seller to the Trust pursuant to a Sale and Servicing Agreement (the "Sale
and Servicing Agreement") to be dated as _________, 199_ among Onyx, the Seller
and the Trust]. As of the Cutoff Date, the Contracts had an aggregate principal
balance of $_______. The Securities will be issued pursuant to the terms of [an
Indenture (the "Indenture") to be dated as of ________, 199_ among the Trust
and________as indenture trustee (the "Indenture Trustee"). Pursuant to the terms
of the Administration Agreement (the "Administration Agreement") to be dated as
of ________, 199_ among Onyx, the Trust and the Indenture Trustee, Onyx will
agree to perform certain administrative functions with respect to the
Securities] [a Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement") to be dated as of ______, 199_ among the Seller, Onyx, as Servicer
(in such capacity, the "Servicer"), and ________, as trustee (the "Trustee").
The [Trust Agreement,] the Purchase Agreement, [the Sale and Servicing
Agreement, the Indenture and the Administration Agreement] [and the Pooling and
Servicing Agreement], are herein referred to as, the "Basic Documents".
This Underwriting Agreement shall hereinafter be referred to as "this
Agreement". Capitalized terms used herein and not otherwise defined shall have
the meanings ascribed thereto in the Indenture.
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Section 2. Representations and Warranties of the Trust, the Seller and
Onyx.
(a) Each of [the Trust], the Seller and Onyx, jointly and severally,
represents and warrants to, and agrees with, each of the Underwriters named in
Schedule I hereto (the "Underwriters") that:
(i) A registration statement on Form S-3 (No. 333-_____),
including a form of prospectus, relating to the Securities has
been filed with the Securities and Exchange Commission (the
"Commission") and either (A) has been declared effective under
the Securities Act of 1933, as amended (the "Act"), and is not
proposed to be amended or (B) is proposed to be amended by
amendment or post-effective amendment. If such registration
statement (the "initial registration statement") has been
declared effective, either (i) any additional registration
statement (the "additional registration statement") relating to
the Securities has been filed with the Commission pursuant to
Rule 462(b) ("Rule 462(b)") under the Act and declared effective
upon filing pursuant to Rule 462(b) and the Securities have been
duly registered under the Act pursuant to the initial
registration statement and such additional registration statement
or (ii) any such additional registration statement proposed to be
filed with the Commission pursuant to Rule 462(b) will become
effective upon filing pursuant to Rule 462(b) and upon such
filing the Securities will have been duly registered under the
Act pursuant to the initial registration statement and such
additional registration statement. If the Seller does not propose
to amend the initial registration statement, any such additional
registration statement or any post-effective amendment to either
such registration statement filed with the Commission prior to
the execution and delivery of this Agreement, then the most
recent amendment (if any) to each such registration statement has
been declared effective by the Commission or has become effective
upon filing pursuant to Rule 462(c) under the Act ("Rule 462(c)")
or Rule 462(b).
For purposes of this Agreement, "Effective Time" with
respect to the initial registration statement or, if filed prior
to the execution and delivery of this Agreement, the additional
registration statement means (A) if the Seller has advised the
Representatives that it does not propose to amend such
registration statement, the date and time as of which such
registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule
462(c) or (B) if the Seller has advised the Representatives that
it proposes to file an amendment or post-effective amendment to
such registration statement, the date and time as of which such
registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared
effective by the Commission. If the Seller has advised the
Representatives that it proposes to file, but has not filed, an
additional registration statement prior to the execution and
delivery of this Agreement, "Effective Time" with respect to such
additional registration statement means the date and time as of
which such registration statement is filed and becomes effective
pursuant to Rule 462(b). "Effective Date" with respect to the
initial registration statement or the additional registration
statement (if any) means the date of the Effective Time thereof.
The initial registration statement, as amended at its
Effective Time, including all information (A) contained in the
additional registration statement (if any), (B) deemed to be a
part of the initial registration statement as of the Effective
Time of the additional registration statement (if any) pursuant
to the General Instructions of the Form on which it is filed and
(C) deemed to be a part of the initial registration statement as
of its Effective Time pursuant to Rule 430A(b) under the Act
("Rule 430A(b)"), is hereinafter referred to as the "Initial
Registration Statement". The additional registration statement,
as amended at its Effective Time, including (A) the contents of
the initial registration statement incorporated by reference
therein and (B) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "Additional
Registration Statement". The Initial Registration Statement and
the Additional Registration Statement are
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hereinafter referred to collectively as the "Registration
Statements" and individually as a "Registration Statement". The
form of prospectus relating to the Securities, as first filed
with the Commission pursuant to and in accordance with Rule
424(b) under the Act ("Rule 424(b)") or, if no such filing is
required, as included in a Registration Statement, including all
material incorporated by reference in such prospectus, is
hereinafter referred to as the "Prospectus". [No document has
been or will be prepared or distributed in reliance on Rule 434
under the Act.]
(ii) (A) On the Effective Date of any Registration
Statement whose Effective Time is prior to the execution and
delivery of this Agreement, each such Registration Statement
conformed, (B) on the date of this Agreement each such
Registration Statement conforms and (C) on any related Effective
Date subsequent to the date of this Agreement, each such
Registration Statement will conform, in all material respects
with the requirements of the Act and the rules and regulations of
the Commission promulgated under the Act (the "Rules and
Regulations"), and at such times did not and will not include any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading. At the time of the filing of
the Prospectus pursuant to Rule 424(b) or, if no such filing is
required, at the Effective Date of the Additional Registration
Statement that includes the Prospectus, on the date of this
Agreement and at the Closing Date (as such term is defined in
Section 3 hereof), the Prospectus will conform in all material
respects to the requirements of the Act and the Rules and
Regulations, and does not include, or will not include, any
untrue statement of a material fact, nor does the Prospectus
omit, nor will it omit, any material fact, necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. The two immediately
preceding sentences do not apply to statements in or omissions
from a Registration Statement or the Prospectus based upon
written information furnished to the Seller by any Underwriter
through o (the "Lead Underwriter") specifically for use therein.
If the Effective Time of the Initial Registration Statement is
subsequent to the date of this Agreement, no Additional
Registration Statement has been or will be filed.
(iii) The consummation of the transactions contemplated by
this Agreement and the Basic Documents, and the fulfillment of
the terms thereof, will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default
under, or result in the creation of any lien, charge, or
encumbrance upon any of the property or assets of [the Trust,]
the Seller or Onyx pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement, guarantee, lease
financing agreement or similar agreement or instrument under
which the any of them is a debtor or guarantor.
(iv) 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 Trust,] the Seller or Onyx for the
consummation of the transactions contemplated by this Agreement
except such as have been obtained and made under the Act or the
Rules and Regulations, such as may be required under state
securities laws and filing of any financing statements required
to perfect the transfer of the Contracts.
(v) Neither [the Trust,] the Seller nor Onyx is in
violation of its charter or by-laws or other organizational
documents 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 could have a material adverse
effect on the transactions contemplated herein or in the Basic
Documents. The execution, delivery and performance of this
Agreement and the Basic Documents and the issuance and sale of
the Securities and compliance with the terms and provisions of
the Securities will not, subject to obtaining any consents or
approvals as may be required under the state securities laws of
various jurisdictions, result in a breach or violation of any of
the
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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 Trust, the Seller
or Onyx or any of their respective properties or any agreement or
instrument to which any of them is a party or by which any of
them is bound or to which any of their respective properties is
subject, or with the charter or by-laws or other organizational
documents of [the Trust,] the Seller or Onyx, and each of them
has full corporate power and authority to enter into this
Agreement and the Basic Documents and to consummate the
transactions contemplated hereby and thereby.
(vi) This Agreement has been duly authorized, executed and
delivered by each of the Trust, the Seller and Onyx.
(b) As of the Closing Date, the representations and warranties of [the
Trust,] the Seller and of Onyx in the Basic Documents will be true and correct,
and the Underwriters may rely on such representations and warranties as if they
were set forth herein in full.
Section 3. Purchase, Sale and Delivery of the Securities. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the [Trust] [Seller] agrees to
sell to the Underwriters, and the Underwriters agree, severally and not jointly,
to purchase from the [Trust] [Seller], the respective principal amounts of
Securities set forth opposite the names of the Underwriters in Schedule I
hereto. The Securities are to be purchased at a purchase price equal to (i) in
the case of the Class A-1 Securities, ____% of the aggregate principal amount
thereof plus accrued interest at the Class A-1 Rate from (and including)
________, 199_, to (but excluding) the Closing Date (ii) in the case of the
Class A-2 Securities, ____% of the aggregate principal amount thereof plus
accrued interest at the Class A-2 Rate from (and including) _______, 199_, to
(but excluding) the Closing Date, and (iii) in the case of the Class A-3
Securities, ___% of the aggregate principal amount thereof plus accrued interest
at the Class A-3 Rate from (and including) ________, 199_, to (but excluding)
the Closing Date.
The Securities will initially be represented by (i) in the case of the
Class A-1 Securities, ______ certificates representing $________ aggregate
principal amount of Class A-1 Securities registered in the name of Cede & Co.,
the nominee of The Depository Trust Company, New York, New York ("DTC") (the
"Class A-1 DTC Securities"), and one fully registered certificate representing
$________ aggregate principal amount of Class A-1 Securities registered in the
name of the [Trust] [Seller], (ii) in the case of the Class A-2 Securities,
_____ certificates representing $________ aggregate principal amount of Class
A-2 Securities registered in the name of DTC (the "Class A-2 DTC Securities"),
and one fully registered certificate representing $________ aggregate principal
amount of Class A-2 Securities registered in the name of the [Trust,] [Seller]
and (iii) in the case of the Class A-3 Securities,________certificates
representing $________ aggregate principal amount of Class A-3 Securities
registered in the name of DTC (the "Class A-3 DTC Securities", and together with
the Class A-1 DTC Securities and the Class A-2 DTC Securities, the "DTC
Securities"), and one fully registered certificate representing $________
aggregate principal amount of Class A-3 Securities registered in the name of the
[Trust] [Seller]. The interests of beneficial owners of the DTC Securities will
be represented by book entries on the records of DTC and participating members
thereof. Definitive certificates evidencing the Securities will be available
only under the limited circumstances specified in the Prospectus.
The Trust will deliver the DTC Securities to the Representatives for the
respective securities accounts of the Underwriters at the office of DTC, 00
Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, against payment to the
[Trust] [Seller] of the purchase price for the Securities by wire transfer in
immediately available funds, at 10:00 A.M., New York time, on ______, 199_, or
at such other time not later than seven full business days thereafter as the
Trust, the Seller, Onyx and the Representatives determine, such time being
herein referred to as the "Closing Date". The certificates evidencing the DTC
Securities will be made available for checking and packaging at the office
of________in The City of New York at least 24 hours prior to the Closing Date.
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Section 4. Offering by the Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to the public as
set forth in the Prospectus.
Section 5. Certain Agreements of the Seller and Onyx. Each of the Seller
and Onyx, as the case may be, jointly and severally, covenants and agrees with
the several Underwriters that:
(a) If the Effective Time is prior to the execution and delivery of this
Agreement, the Seller will file the Prospectus with the Commission pursuant to
and in accordance with Rule 424(b)(1) (or, if applicable and if consented to by
the Underwriter, Rule 424(b)(4)) not later than the earlier of (i) the second
business day following the execution and delivery of this Agreement or (ii) the
fifteenth business day after the Effective Date of the Initial Registration
Statement. The Seller will advise the Underwriter promptly of any such filing
pursuant to Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and an
additional registration statement is necessary to register a portion of the
Securities under the Act but the Effective Time thereof has not occurred as of
such execution and delivery, the Seller will file the Additional Registration
Statement or a post-effective amendment thereto, as the case may be, with the
Commission pursuant to and in accordance with Rule 424(b) on or prior to 10:00
P.M., New York time, on the date of this Agreement or, if earlier, on or prior
to the time the Prospectus is printed and distributed to any Underwriter, or
will make such filing at such later date as shall have been consented to by the
Underwriter.
(b) The Seller will advise the Representatives promptly of any proposal
to amend or supplement the initial registration statement or any additional
registration statement as filed or the related prospectus or any Registration
Statement or the Prospectus and will not effect any such amendment or supplement
without the consent of the Representatives; and the Seller will also advise the
Representatives promptly of the effectiveness of each Registration Statement (if
the related Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplement of any Registration Statement or
the Prospectus and of the institution by the Commission of any stop order
proceedings in respect of any Registration Statement and will use its best
efforts to prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(c) 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 in order 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 or supplement
the Prospectus to comply with the Act, the Seller will promptly notify the
Representatives and will promptly prepare and file, or cause to be prepared and
filed, with the Commission an amendment or supplement which will correct such
statement or omission, or an amendment or supplement which will effect such
compliance. Neither the Representatives' consent to, nor the delivery by the
Representatives of, any such amendment or supplement shall constitute a waiver
of any of the conditions set forth in Section 6 hereof.
(d) As soon as practicable, but not later than the Availability Date (as
defined below), the [Trust] [Seller] will cause the [Indenture] Trustee to make
generally available to the holders of the Securities an earnings statement with
respect to the Trust covering a period of at least 12 months beginning after the
Effective Date of the Initial Registration Statement (or of any Additional
Registration Statement) that will satisfy the provisions of Section 11(a) of the
Act. For the purpose of the preceding sentence, "Availability Date" means the
45th day after the end of the Seller's fourth fiscal quarter following the
Seller's fiscal quarter that includes such Effective Date, except that, if such
fourth fiscal quarter is the last quarter of the Seller's fiscal year,
"Availability Date" means the 90th day after the end of such fourth fiscal
quarter.
(e) The Seller will furnish to the Underwriters copies of each
Registration Statement as originally filed and each amendment thereto (in each
case at least two of which will be signed and will include all exhibits), each
related preliminary prospectus, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in such
quantities as the Representatives may reasonably
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request. The Prospectus shall be so furnished no later than 3:00 P.M., New York
City time, on the second business day following the later of the execution and
delivery of this Agreement or the Effective Time of the Initial Registration
Statement. All other documents shall be furnished as soon as available. The
Seller will pay the expenses of printing and distributing to the Underwriters
all such documents.
(f) The Seller will arrange for the qualification of the Securities for
sale under the securities laws of such jurisdictions in the United States as the
Representatives may reasonably designate and will continue such qualifications
in effect so long as required for the distribution of the Securities, provided
that the Seller shall not be obligated to qualify to do business nor become
subject to service of process generally, but only to the extent required for
such qualification, in any jurisdiction in which it is not currently so
qualified.
(g) So long as any of the Securities are outstanding, [the Trust,] the
Seller or Onyx, as the case may be, will deliver or cause to be delivered to the
Representatives (i) copies of each report regarding the Securities mailed to
holders pursuant to [Section 5.09 of the Sale and Servicing Agreement] [Section
4.10 of the Pooling and Servicing Agreement], (ii) the annual statement as to
compliance and the annual statement of a firm of independent public accountants
furnished to the [Owner] Trustee pursuant to [Sections 4.10 and 4.11 of the Sale
and Servicing Agreement (as amended)] [Sections 3.11 and 3.12 of the Pooling and
Servicing Agreement (as amended)], as soon as such statements are furnished to
the [Owner] Trustee, (iii) the reports, if any, prepared and delivered by the
Trust and the Indenture Trustee pursuant to Sections 7.03 and 7.04 of the
Indenture,] (iv) copies of all documents required to be filed with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or any order of the Commission thereunder and (v) such other
information concerning the Seller, Onyx (relating to the Contracts, the
servicing thereof or the ability of Onyx to act as Servicer), the Securities or
the Trust as the Representatives may reasonably request from time to time.
(h) The [Trust, the ]Seller and Onyx will pay all expenses incident to
the performance of their respective obligations under this Agreement, including
without limitation, (i) expenses incident to the printing, reproduction and
distribution of the Registration Statement as originally filed and each
amendment thereto, preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto), (ii) the fees and disbursements of the
[Owner] Trustee [and the Indenture Trustee] and [its] [their] respective
counsel, (iii) the fees and disbursements of counsel to [the Trust], the Seller
and Onyx and the independent public accountants of the Seller, (iv) the fees
charged by Xxxxx'x Investors Service, Inc. ("Moody's") and Standard & Poor's
Ratings Services ("Standard & Poor's", and together with Moody's, the "Rating
Agencies") in connection with the rating of the Securities, (v) the fees of DTC
in connection with the book-entry registration of the DTC Securities and (vi)
expenses incurred in distributing preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto) to the Underwriters, and will
reimburse the Underwriters for any expenses (including reasonable fees and
disbursements of counsel) incurred by the Underwriters in connection with the
qualification of the Securities for sale under the securities laws of such
jurisdictions in the United States as the Representatives may designate pursuant
to Section 5(f) hereof.
(i) On or before the Closing Date, the Seller and Onyx shall cause their
respective books and records (including any computer records) relating to the
Contracts to be marked to show the Trust's absolute ownership of the Contracts,
and from and after the Closing Date neither the Seller nor Onyx, as Servicer,
shall take any action inconsistent with the Trust's ownership of such Contracts,
other than as permitted by [the Indenture or the Sale and Servicing Agreement]
[Pooling and Servicing Agreement] or as required by law.
(j) For a period of 14 days from the date hereof, none of [the Trust,]
the Seller, Onyx nor any of their respective affiliates will, without the prior
written consent of the Representatives, directly or indirectly, offer, sell or
contract to sell or announce the offering of, in a public or private transaction
in the United States, any other collateralized securities similar to the
Securities.
(k) So long as any Securities are outstanding, [the Trust,] the Seller
and Onyx will cause to be delivered to the Representatives a reliance letter
relating to each Opinion of Counsel delivered to either Rating Agency by counsel
to [the Trust,] the Seller or Onyx pursuant to any Basic Document.
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(l) To the extent, if any, that the rating at the Closing Date provided
with respect to the Securities by either Rating Agency is conditional upon the
furnishing of documents or the taking of any other actions by the Seller or
Onyx, the Seller or Onyx, as the case may be, shall furnish such documents and
take any such other actions as may be required.
Section 6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for any of the
Securities will be subject to the accuracy of the respective representations and
warranties on the part of [the Trust,] the Seller and Onyx herein, to the
accuracy of the statements of [the Trust,] the Seller and Onyx made in any
officers' certificates pursuant to the provisions hereof, to the performance by
[the Trust,] the Seller and Onyx of their respective obligations hereunder and
to the following additional conditions precedent:
(a) On (i) the date of this Agreement, the Representatives, [the Trust]
and the Seller shall have received a letter, dated the date of delivery thereof
(which, if the Effective Time of the Initial Registration Statement is prior to
the execution and delivery of this Agreement, shall be on or prior to the date
of this Agreement or, if such Effective Time is subsequent to the execution and
delivery of this Agreement, shall be prior to the filing of the amendment or
post-effective amendment to the registration statement to be filed shortly prior
to such Effective Time), of Price Waterhouse LLP confirming that they are
independent public accountants with respect to the Seller and Onyx within the
meaning of the Act and the Rules and Regulations, with respect to certain
information contained in the Registration Statements and substantially in the
form of the draft to which the Representatives previously have agreed and
otherwise in form and in substance satisfactory to the Representatives and
counsel for the Underwriters and (ii) the Closing Date, the Representatives,
[the Trust] and the Seller shall have received a letter, dated as of the Closing
Date, from Price Waterhouse LLP, updating the letter referred to in clause (i)
above, in form and substance satisfactory to the Representatives and counsel for
the Underwriters. As used in this subsection, (i) "Registration Statements"
shall mean (A) the Initial Registration Statement as proposed to be amended by
the amendment or post-effective amendment to be filed shortly prior to its
Effective Time, if the Effective Time of the Initial Registration Statement is
subsequent to the date of this Agreement, or (B) the Initial Registration
Statement and the additional registration statement as proposed to be filed or
as proposed to be amended by the post-effective amendment to be filed shortly
prior to its Effective Time, if the Effective Time is prior to the execution and
delivery of this Agreement but the Effective Time of the Additional Registration
Statement is subsequent to such execution and delivery, and (ii) "Prospectus"
shall mean the prospectus included in the Registration Statements.
(b) If the Effective Time of the Initial Registration Statement is not
prior to the execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of this
Agreement or such later date as shall have been consented to by the
Representatives. If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Prospectus shall have
been filed with the Commission in accordance with the Rules and Regulations and
Section 5(a) hereof. If the Effective Time of the Additional Registration
Statement (if any) is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New York
time, on the date of this Agreement or, if earlier, the time the Prospectus is
printed and distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by the Underwriter. Prior to the Closing
Date, no stop order suspending the effectiveness of any Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Seller or the Representatives, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any material adverse change in the condition,
financial or otherwise, or in the business affairs or business prospects of [the
Trust,] the Seller or Onyx which, in the reasonable judgment of a majority in
interest of the Underwriters including the Representatives, materially impairs
the investment quality of any of the Securities, or makes it impractical or
inadvisable to proceed with completion of the sale of and payment for any of the
Securities; (ii) any downgrading in the rating of any debt securities of Onyx or
any of its direct or indirect
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subsidiaries by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of any
such debt securities (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension or 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; (iv) any banking moratorium declared
by federal, California or New York authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by the United States Congress or any other substantial
national or international calamity or emergency if, in the reasonable judgment
of a majority in interest of the Underwriters including the Representatives, the
effect of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the sale of
and payment for any of the Securities.
(d) The Representatives shall have received:
(1) The favorable opinion, dated the Closing Date, of Xxxxxxx &
Xxxxx L.L.P., special counsel for [the Trust,] the Seller and Onyx, in
form and scope satisfactory to the Representatives, to the effect that:
(i) Each Basic Document has been duly authorized by all
necessary corporate action on the part of each of [the Trust,]
the Seller and Onyx, as the case may be, and has been executed
and delivered by each of [the Trust,] the Seller and Onyx, as the
case may be, and, assuming the due authorization, execution and
delivery thereof by the other parties thereto, constitutes a
legally valid and binding obligation of each of [the Trust,] the
Seller and Onyx, as the case may be, enforceable in accordance
with its respective terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating
to or affecting creditors' rights generally (including, without
limitation, fraudulent conveyance laws). Such counsel may state,
however, that enforceability of the Basic Documents is subject to
the effect of general principles of equity including, without
limitation, concepts of materiality, reasonableness, good faith
and fair dealing and the possible unavailability of specific
performance or injunctive relief, regardless of whether
considered in a proceeding in equity or at law.
(ii) The Securities have been duly and validly authorized
and, when executed and authenticated [by the Indenture Trustee as
specified in the Indenture,] [by the Trustee as specified in the
Pooling and Servicing Agreement] and delivered to the
Representatives for the respective accounts of the Underwriters
against payment of the consideration specified herein, will be
duly and validly issued and outstanding and entitled to the
benefits of [the Indenture] [the Pooling and Servicing
Agreement], except as the enforceability of the [Indenture]
[Pooling and Servicing Agreement] may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating
to or affecting creditors' rights generally (including, without
limitation, fraudulent conveyance laws), and general principles
of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific enforcement or injunctive
relief, regardless of whether considered in a proceeding in
equity or at law.
(iii) Neither the Seller nor the Trust is required to be
registered under the Investment Company Act.
(iv) With respect to Financed Vehicles in the State of
California, no filing or other action other than (A) the filing
of a UCC financing statement naming Onyx as transferor and the
Seller as the transferee, and (B) the filing of a UCC financing
statement naming the Seller as the transferor and the [Owner]
Trustee as transferee [and the filing of a UCC filing statement
naming the Owner Trustee as the transferor and the Indenture
Trustee as the
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transferee], which filings have been completed, is necessary to
perfect the transfer and assignment of Onyx's security interest
in such Financed Vehicles to the Seller, and the Seller's
security interest in such Financed Vehicles to the [Owner]
Trustee, [and the Owner Trustee's security interest in such
Financed Vehicles to the Indenture Trustee, respectively,] and as
a result of such transfer and assignment and filing of such
financing statements, the [Indenture] Trustee has a first
perfected security interest in such Financed Vehicles, except
that so long as Onyx is named as the legal owner and lien holder
on a certificate of title, Onyx has the ability to release the
security interest in the Financed Vehicle or to assign it to
another party.
(v) The Trust will not be classified as an association (or
a publicly traded partnership) taxable as a corporation for
federal or California income tax purposes.
(vi) The statements in the Prospectus under "Summary--Tax
Status" and "-- ERISA Considerations", "Certain Federal Income
Tax Considerations" and "ERISA Considerations", to the extent
that they constitute matters of law or legal conclusions with
respect thereto, have been reviewed by such counsel and are
correct in all material respects.
(vii) This Agreement and each Basic Document has been duly
authorized by all necessary corporate action on the part of each
of [the Trust], the Seller and Onyx, as the case may be, and has
been duly executed and delivered by each of them.
(viii) No authorization, approval, consent or order of any
court or governmental agency or body is required, under the
Federal law of the United States or the laws of the State of
California or the State of New York, for the consummation by any
of [the Trust,] the Seller or Onyx of the transactions
contemplated in this Agreement or the Basic Documents except such
as may be required under the Act, the Rules and Regulations or
state securities laws, and those authorizations, approvals,
consents, orders and filings which have previously been obtained
or made and are in full force and effect as of the Closing Date;
provided, that such counsel need express no opinion as to state
securities laws.
(ix) To such counsel's knowledge, there are no actions,
proceedings or investigations pending or threatened, to which
[the Trust,] the Seller or Onyx is a party or of which any
property of [the Trust,] the Seller or Onyx is the subject
required to be disclosed in the Registration Statements, other
than those disclosed therein, (A) asserting the invalidity of
this Agreement, any Basic Document or the Securities, (B) seeking
to prevent the issuance of the Securities or the consummation of
any of the transactions contemplated by this Agreement or the
Basic Documents, (C) that would, if determined adversely to [the
Trust,] Onyx or the Seller, materially and adversely affect the
performance by [the Trust,] the Seller or Onyx of their
respective obligations under, or the validity or enforceability
of, this Agreement, either Basic Document or the Securities or
(D) seeking adversely to affect the federal income tax attributes
of the Securities as described in the Prospectus under the
heading "Certain Federal Income Tax Considerations" or the
California income tax attributes of the Securities.
(x) At the time of execution and delivery of (A) the
Purchase Agreement, Onyx had the corporate power and corporate
authority to transfer the Contracts and such other property being
transferred to the Seller pursuant to the Purchase Agreement, (B)
the [Pooling] [Sale] and Servicing Agreement, the Seller had the
corporate power and corporate authority to transfer the Contracts
and such other property being transferred to the Owner Trustee
pursuant to the Pooling and Servicing Agreement, and (C) the
Indenture, the Owner Trustee had the corporate power and
corporate authority to transfer the interests in the Contracts
and such other property being transferred to the Indenture
Trustee pursuant to the Indenture and to cause the transfer of
the Securities to the Underwriters.
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(xi) The Securities and the Basic Documents each conform
in all material respects with the respective descriptions thereof
contained in the Registration Statements and the Prospectus.
(xii) The statements in the Registration Statements and
Prospectus under the heading "Certain Legal Aspects of the
Contracts", to the extent that they constitute matters of law or
legal conclusions are correct in all material respects.
(xiii) The [Pooling] [Sale] and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939,
as amended (the "1939 Act"); the Indenture has been duly
qualified under the 1939 Act.
(xiv) The Contracts constitute "chattel paper" as such
term is defined in the California Uniform Commercial Code.
(xv) The Initial Registration Statement and any Additional
Registration Statement filed with the Commission has been
declared effective under the Act, and, to such counsel's
knowledge upon due inquiry, no stop order suspending the
effectiveness of a Registration Statement has been issued under
the Act or proceedings therefor initiated or threatened by the
Commission, and each Registration Statement and the Prospectus,
and each amendment or supplement thereto, as of its respective
effective or issue date, complied or complies in all material
respects with the requirements as to form of the Act and the
Rules and Regulations.
In addition, such counsel shall state that such counsel has participated
in conferences with the officers and other representatives of [the Trust,] Onyx
and the Seller, representatives of the independent public accountants therefor
and the Underwriters, at which the contents of the Registration Statement and
the Prospectus and related matters were discussed and, although such counsel is
not passing upon, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained therein and have not made
any independent check or verification thereof, during the course of such
participation (relying as to factual matters as to materiality to a large extent
upon the statements of officers and other representatives of [the Trust,] Onyx
and the Seller), such counsel does not believe that any Registration Statement,
at the related Effective Time, or any such amendment or supplement, as of its
effective date, 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 not misleading, or that the Prospectus, at the date of this
Agreement (or any such amendment or supplement, as of its respective date) or at
the Closing Date included or includes 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 express no
opinion as to the Form T-1 filed as an exhibit to the Registration Statement or
any financial statements or other financial or statistical data contained in any
Registration Statement or the Prospectus.
(2) The favorable opinion, dated the Closing Date, of Xxxx X.
Xxxxx, Esq., General Counsel of Onyx, and counsel to the Trust and the
Seller, in form and substance scope to the Representatives and their
counsel, to the effect that:
(i) Each of the Seller and Onyx is a corporation duly
organized, existing and in good standing under the laws of the
State of Delaware.
(ii) To such counsel's knowledge, each of the Seller and
Onyx is duly incorporated or qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction
in which their respective ownership or lease of substantial
properties or the conduct of their respective businesses requires
such qualification and in which the failure
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to so qualify and be in good standing would materially adversely
affect their respective businesses or financial condition.
(iii) To such counsel's knowledge (A) there are no legal
or governmental proceedings pending or threatened which are
required to be disclosed in the Registration Statements, other
than those disclosed therein, (B) there are no legal or
governmental proceedings to which Onyx is a party or to which any
of its property is subject which are not described in Onyx's
Annual Report on Form 10-K for the year ended o, or its Quarterly
Reports for the quarters ended _____, 199_, _____, 199_, and
_____, 199_, which are required to be disclosed therein other
than those disclosed therein and (C) there are no pending legal
or governmental proceedings to which the Seller is a party or to
which any of its property is subject.
(iv) To such counsel's knowledge (A) no default exists in
the due performance or observance by Onyx of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it may be bound,
which default would have a material adverse effect on the
financial condition, earnings, business affairs, business
prospects, properties or results of operations of Onyx and its
subsidiaries considered as one enterprise, and (B) other than
this Agreement and the Basic Documents, the Seller is not a party
to any material contract, indenture, mortgage, loan agreement,
note, lease or other instrument.
(v) The transfer of the Contracts and the other property
of the Trust transferred by Onyx to the Seller pursuant to the
Purchase Agreement, the execution, delivery and performance of
the Basic Documents and this Agreement and the consummation of
the transactions herein and therein contemplated will not (A)
conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any Lien upon any
property or assets of Onyx or any of its subsidiaries pursuant
to, any material contract, indenture, mortgage, loan agreement,
note, lease or other instrument known to such counsel to which
Onyx or any of its subsidiaries is a party or by which it or any
of them may be bound, or to which any of the property or assets
of Onyx or any of its subsidiaries is subject, (B) result in any
violation of the provisions of the charter or bylaws of Onyx or
(C) to such counsel's knowledge, result in any violation of any
applicable law, administrative regulation or administrative or
court decree.
(vi) The transfer of the Contracts to the [Owner] Trustee
acting on behalf of the Trust, the assignment of the security
interest of the Seller in the Financed Vehicles, and the
execution and delivery of this Agreement and the Basic Documents,
and the consummation of the transactions contemplated herein and
therein will not (A) conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any
Lien upon any property or assets of the Seller pursuant to, any
material contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Seller is a party or by
which it may be bound, or to which any of the property or assets
of the Seller is subject, (B) result in any violation of the
provisions of the charter or bylaws of the Seller or (C) to such
counsel's knowledge, result in any violation of any applicable
law, administrative regulation or administrative or court decree.
(vii) Each of the Seller and Onyx has obtained all
necessary licenses and approvals under the federal law of the
United States and the laws of the State of California to conduct
their respective businesses in which the failure to obtain such
licenses and approvals would render any Receivable or any other
material part of the corpus of the Trust unenforceable or would
materially and adversely affect the ability of any of [the
Trust,] the Seller or Onyx to perform any of their respective
obligations under, or the enforceability of, any Basic Document.
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(viii) Such counsel is familiar with the standard
operating procedures of Onyx relating to the acquisition by Onyx
of a first perfected security interest in the automobiles or
light duty trucks financed by the retail installment sale
contracts purchased by Onyx in the ordinary course of its
business and relating to the sale to Onyx of such contracts and
such security interests in the automobiles or light duty trucks
financed thereby in the ordinary course of its business. Assuming
that such standard procedures are followed with respect to the
perfection of security interests in the Financed Vehicles (and
such counsel has no reason to believe that Onyx has not or will
not continue to follow its standard procedures in connection with
the perfection of first perfected security interests in the
Financed Vehicles), Onyx has acquired a first perfected security
interest in the Financed Vehicles.
(3) [The favorable opinion, dated the Closing Date, of _________,
special Delaware counsel to the Trust, in form and scope satisfactory to
the Representatives and their counsel, to the effect that
(i) The trust is duly organized, existing and in good
standing as a Delaware business trust under the laws of the State
of Delaware.
(ii) The transfer of the Contracts to the Indenture
Trustee pursuant to the terms of the Indenture, the assignment of
the security interest of the Trust in the Financed Vehicles, the
issuance and sale of the Securities, and the execution and
delivery of this Agreement, the Basic Documents and the
Securities, and the consummation of the transactions contemplated
herein and therein will not (A) conflict with or constitute a
breach of, or default under, or result in the creation or
imposition of any Lien upon any property or assets of the Trust
pursuant to, any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Seller is
a party or by which it may be bound, or to which any of the
property or assets of the Trust is subject, (B) result in any
violation of the provisions of the Trust Agreement or other
organizational documents of the Seller or (C) to such counsel's
knowledge, result in any violation of any applicable law,
administrative regulation or administrative or court decree.]
(4) The favorable opinion, dated the Closing Date, of _________,
special [name of state] counsel to [the Trust,] the Seller and Onyx, in
form and scope satisfactory to the Representatives and their counsel, to
the effect that the blank forms of Contracts identified and reviewed by
them and attached to such opinion comply, or complied when in use, with
all applicable provisions of the law of such state and the regulations
promulgated thereunder regarding retail installment sales of motor
vehicles.
(5) The favorable opinion, dated the Closing Date, of ________,
special [name of state] counsel to the Seller and Onyx, in form and
scope satisfactory to the Representatives and their counsel, to the
effect that, assuming the due authorization, execution and delivery
thereof by the parties thereto, each of the Contracts in the form
attached to such opinion constitutes the valid, binding and enforceable
agreement of the parties thereto; and such Contracts comply as to
content and form with all applicable state laws and federal disclosure
laws relating to consumer credit, including without limitation, consumer
protection laws.
(6) Reliance letters relating to each opinion rendered to either
Rating Agency by (A) Xxxxxxx & Xxxxx L.L.P and (B) ____________.
(7) The favorable opinion, dated the Closing Date, of counsel to
the [Indenture] Trustee, in form and scope satisfactory to the
Representatives and counsel for the Underwriters, to the effect that:
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(i) The [Indenture] Trustee is a New York banking
corporation duly organized and validly existing under the laws of
the State of New York, and is duly authorized and empowered to
exercise trust powers under applicable law.
(ii) The [Indenture] Trustee has full power and authority
to execute, deliver and perform its obligations under the
[Indenture and the Administration] [Pooling and Servicing]
Agreement and has taken all necessary action to authorize the
execution, delivery and performance of its obligations
thereunder.
(iii) The [Indenture and Administration Agreement have
each] [Pooling and Servicing Agreement has] been duly authorized,
executed and delivered by the [Indenture] Trustee, and
constitutes a legal, valid and binding obligation of the
[Indenture] Trustee, enforceable against the [Indenture] Trustee
in accordance with its terms, except that certain of such
obligations may be exercisable solely against the estate of the
Trust and except that such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, liquidation
or other similar laws applicable to New York banking corporations
affecting the enforcement of creditors' rights generally, and by
general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
(iv) The Securities have been duly executed, authenticated
and delivered by the [Indenture] Trustee in accordance with the
terms of the [Indenture] [Pooling and Servicing Agreement].
(v) The execution, delivery and performance by the
[Indenture] Trustee of the [Indenture and the Administration
Agreement] [Pooling and Servicing Agreement] shall not (a)
violate any provision of any law governing the banking or trust
powers of the [Indenture] Trustee or, to the best knowledge of
such counsel, any order, writ, judgment or decree of any court,
arbitrator or governmental authority applicable to the
[Indenture] Trustee or any of its assets, (b) shall not violate
any provision of the corporate charter or by-laws of the
[Indenture] Trustee and (c) to the best of such counsel's
knowledge, violate any material provision of, constitute, with or
without notice or lapse of time, a material default under, or
result in the creation or imposition of any lien on any
properties of the Trust pursuant to the provisions of any
mortgage, indenture, contract, agreement or other undertaking to
which the [Indenture] Trustee is a party.
(vi) The execution, delivery and performance by the
[Indenture] Trustee of [each of the Indenture and the
Administration Agreement] [the Pooling and Servicing Agreement]
shall not require the authorization, consent or approval of, the
giving of notice to, the filing or registration with or the
taking of any other action in respect of, any governmental
authority or agency regulating the banking or corporate trust
activities of the [Indenture] Trustee.
(8) [The favorable opinion, dated the Closing Date, of counsel to
the Owner Trustee, in form and scope satisfactory to the Representatives
and counsel for the Underwriters, to the effect that:
(i) The Owner Trustee is a________duly organized and
validly existing under the laws of ___________, and is duly
authorized and empowered to exercise trust powers under
applicable law.
(ii) The Owner Trustee has full power and authority to
execute, deliver and perform its obligations under the Trust
Agreement and has taken all necessary action to authorize the
execution, delivery and performance of its obligations under the
Trust Agreement.
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(iii) The Trust Agreement has been duly authorized,
executed and delivered by the Owner Trustee, and constitutes a
legal, valid and binding obligation of the Owner Trustee,
enforceable against the Owner Trustee in accordance with its
terms, except that certain of such obligations may be exercisable
solely against the estate of the Trust and except that such
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, liquidation or other similar laws
applicable to________affecting the enforcement of creditors'
rights generally, and by general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(iv) The execution, delivery and performance by the Owner
Trustee of the Trust Agreement shall not (a) violate any
provision of any law governing the banking or trust powers of the
Owner Trustee or, to the best knowledge of such counsel, any
order, writ, judgment or decree of any court, arbitrator or
governmental authority applicable to the Owner Trustee or any of
its assets, (b) shall not violate any provision of the corporate
charter or by-laws of the Owner Trustee and (c) to the best of
such counsel's knowledge, violate any material provision of,
constitute, with or without notice or lapse of time, a material
default under, or result in the creation or imposition of any
lien on any properties of the Trust pursuant to the provisions of
any mortgage, indenture, contract, agreement or other undertaking
to which the Owner Trustee is a party.
(v) The execution, delivery and performance by the Owner
Trustee of the Trust Agreement shall not require the
authorization, consent or approval of, the giving of notice to,
the filing or registration with or the taking of any other action
in respect of, any governmental authority or agency regulating
the banking or corporate trust activities of the Owner Trustee.
(9) The favorable opinion of Xxxxxxx & Xxxxx L.L.P., counsel for
the Underwriters, dated the Closing Date, with respect to the existence
of [the Trust,] the Seller and Onyx, the validity of the Securities and
such other related matters as the Representatives shall request and [the
Trust,] the Seller and Onyx shall have furnished or caused to be
furnished to such counsel such documents as they may reasonably request
for the purpose of enabling them to pass upon such matters.
(e) The Representatives shall have received a certificate, dated the
Closing Date, signed by the President or any Vice President and a principal
financial or accounting officer of (i) the Seller in which such officers shall
state that, (A) to the best of their knowledge after reasonable investigation,
the representations and warranties of the Seller in this Agreement are true and
correct, (B) the Seller 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, (C) no stop order suspending the effectiveness of any Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the best of their knowledge, are contemplated by the
Commission, (D) the Additional Registration Statement, if any, satisfying the
requirements of Rule 462(b)(1) and Rule 462(b)(3) was filed in accordance with
Rule 462(b) (including payment of the applicable filing fee in accordance with
Rule 111(a) or Rule 111(b) under the Act) prior to the time the Prospectus was
printed or distributed to the Underwriter and (E) subsequent to the date of this
Agreement, there has been no material adverse change in the condition, financial
or otherwise, or in the business affairs or business prospects of the Seller
except as set forth or contemplated in the Prospectus,(ii) Onyx in which such
officers shall state that, to the best of their knowledge after reasonable
investigation, the representations and warranties of Onyx in this Agreement are
true and correct, that Onyx has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder and that
subsequent to the date of this Agreement there has been no material adverse
change in the condition, financial or otherwise, or in the business affairs or
business prospects of Onyx which would materially and adversely affect the
performance by Onyx of its obligations under this Agreement or the Basic
Documents[, and (iii) the Trust in which such officers shall state that, to the
best of their knowledge after reasonable investigation, the representations and
warranties of the Trust in this Agreement are true and correct, that the Trust
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder and that subsequent to the date of this
Agreement there has
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been no material adverse change in the condition, financial or otherwise, or in
the business affairs or business prospects of the Trust which would materially
and adversely affect the performance by the Trust of its obligations under this
Agreement or the Basic Documents.]
(f) The Class A-1 Securities shall be rated "___" by Moody's and "___"
by Standard & Poor's.
(g) The Class A-2 Securities shall be rated at least "___" by Moody's
and at least "___" by Standard & Poor's.
(h) The Class A-3 Securities shall be rated at least "___" by Moody's
and at least "____" by Standard & Poor's.
Section 7. Indemnification and Contribution.
(a) The [Trust, the] Seller and Onyx will, jointly and severally,
indemnify and hold harmless each Underwriter 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) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus or any amendment or supplement
thereto, or any related preliminary prospectus, 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,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that none of [the Trust,] the Seller nor Onyx will 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
in or omission or alleged omission from any of such documents in reliance upon
and in conformity with written information furnished to the Seller by any
Underwriter through the Lead Underwriter specifically for use therein.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless each of [the Trust,] the Seller and Onyx against any losses, claims,
damages or liabilities to which the Seller or Onyx may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any Registration
Statement, the Prospectus or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Seller by any Underwriter
through the Lead Underwriter specifically for use therein, and will reimburse
any legal or other expenses reasonably incurred by [the Trust,] the Seller and
Onyx in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified
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party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by [the Trust,] the
Seller and Onyx on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of [the Trust,] the Seller and Onyx on the one hand and
the Underwriters 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
Trust,] the Seller and Onyx on the one hand and the Underwriters 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 [Trust] [Seller] bear to
the total underwriting discounts and commissions received by the Underwriters.
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 Trust,] the Seller or Onyx or the Underwriters 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 subsection (d) 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
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Certificates underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. 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. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of [the Trust,] the Seller and Onyx under this
Section shall be in addition to any liability that [the Trust,] the Seller or
Onyx may otherwise have and shall extend, upon the same terms and conditions, to
each person, if any, who controls any Underwriter within the meaning of the Act;
and the obligations of the Underwriters under this Section shall be in addition
to any liability that the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Seller, to
each officer of the Seller who has signed any Registration Statement and to each
person, if any, who controls [the Trust,] the Seller or Onyx within the meaning
of the Act.
Section 8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase any Securities hereunder and the
aggregate principal amount of the Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of the Securities, the Representatives may make arrangements
satisfactory to [the Trust,] the Seller and Onyx for the purchase of such
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters shall
be obligated severally, in proportion to their respective commitments hereunder,
to purchase the Securities that such defaulting Underwriters agreed but failed
to purchase. If any Underwriter or Underwriters so default and the aggregate
principal amount of the Securities with respect to which such default or
defaults occur exceeds 10% of the total principal amount of the Securities and
arrangements satisfactory to [the Trust,] the Seller and Onyx for the purchase
of such Securities by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, [the Trust,] the Seller or Onyx, except as provided
in Section 9 hereof. As used in this Agreement, the term "Underwriter" includes
any
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person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
Section 9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of [the Trust,] the Seller and Onyx or their respective officers and
of the several 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 any Underwriter, [the Trust,]
the Seller, Onyx or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Securities. If this Agreement is terminated pursuant to Section 8 hereof
or if for any reason the purchase of the Securities by the Underwriters is not
consummated, [the Trust,] the Seller and Onyx shall remain responsible for the
expenses to be paid or reimbursed by [the Trust,] the Seller and Onyx pursuant
to Section 5(h) hereof and the respective obligations of [the Trust,] the
Seller, Onyx and the Underwriters pursuant to Section 7 hereof 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 termination of this Agreement
pursuant to Section 8 hereof or the occurrence of any event specified in clause
(iii), (iv) or (v) of Section 6(c) hereof, [the Trust,] the Seller and Onyx will
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by it in connection with the
offering of the Securities.
Section 10. Notices. All communications hereunder will be in writing
and, if sent to the Representatives or the Underwriters, will be mailed,
delivered or telegraphed and confirmed to the Representatives c/o ___________,
Attention: o; if sent to [the Trust] or the Seller, will be mailed, delivered or
telegraphed and confirmed at Onyx Acceptance Financial Corporation, 0000 Xxxxxx
Xxxxxx Xxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000, Attention: ___________; or if
sent to Onyx, will be mailed, delivered or telegraphed and confirmed to it at
Onyx Acceptance Corporation, 0000 Xxxxxx Xxxxxx Xxxxx, 0xx Xxxxx, Xxxxxx,
Xxxxxxxxxx 00000, Attention: ___________. Notwithstanding the foregoing, any
notice to an Underwriter pursuant to Section 7 hereof will be mailed, delivered
or telegraphed and confirmed to such Underwriter.
Section 11. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
Section 12. Representation of Underwriters. The Representatives will act
for the several Underwriters in connection with the transactions described in
this Agreement, and any action taken by the Representatives under this
Agreement, jointly or by the Lead Underwriter, will be binding upon all the
Underwriters.
Section 13. Representations and Warranties of Underwriters. Each
Underwriter represents and agrees to the following selling restrictions with
respect to the Securities for purposes of the issue of Securities:
(a) Each Underwriter represents and agrees that it will comply with all
applicable laws and regulations in each jurisdiction in which it purchases,
offers or sells Securities or possesses or distributes the Prospectus or any
other offering material and will obtain any consent, approval or permission
required by it for the purchase, offer or sale by it of Securities under the
laws and regulations in force in any jurisdiction to which it is subject or in
which it makes such purchases, offers or sales and none of [the Trust], the
Seller or Onyx shall have any responsibility therefor;
(b) No action has been or will be taken by the Underwriters that would
permit a public offering of the Securities or possession or distribution of any
offering material in relation to the Securities in any jurisdiction where action
for that purpose is required unless [the Trust,] the Seller or Onyx has agreed
to such actions and such actions have been taken;
(c) Each Underwriter represents and agrees that it will not offer, sell
or deliver any of the Securities or distribute any such offering material in or
from any jurisdiction except under circumstances which
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will result in compliance with applicable laws and regulations and which will
not impose any obligation on [the Trust,] the Seller or Onyx or the
Underwriters;
(d) No Underwriter is authorized to give any information or make any
representations in relation to the Securities other than those contained or
incorporated by reference in the Prospectus for the Securities and such
additional information, if any, as [the Trust,] the Seller or Onyx shall, in
writing, provide to and authorize the Underwriter so to use and distribute to
actual and potential purchasers of Securities;
(e) Each Underwriter represents and agrees that it has not, directly or
indirectly, offered or sold and will not, directly or indirectly, offer or sell
in Hong Kong, by means of any document, any Securities other than to persons
whose ordinary business it is to buy or sell shares or debentures, whether as
principal or agent, or in circumstances which do not constitute an offer to the
public within the meaning of the Companies Ordinance (Cap. 32) of Hong Kong.
Each Underwriter further represents and agrees that, unless it is a person who
is permitted to do so under the securities laws of Hong Kong, it has not issued,
or had in its possession for the purposes of issuing, and it will not issue, or
have in its possession for the purposes of issuing, any advertisement,
invitation or document relating to Securities other than with respect to
Securities intended to be disposed of to persons outside Hong Kong or to persons
whose business involves the acquisition, or disposal or holding of securities,
whether as principal or agent; and
(f) Each Underwriter has not offered or sold and will not offer or sell
any Securities to persons in the United Kingdom prior to admission of such
Securities to listing in accordance with Part IV of the Financial Services Xxx
0000 ("FSA") except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995 or the
FSA;
(g) Each Underwriter has complied and will comply with all applicable
provisions of the FSA with respect to anything done by us in relation to the
Securities in, from or otherwise involving the United Kingdom; and
(h) Each Underwriter will have only issued or passed on and will only
issue or pass on in the United Kingdom any document received by us in connection
with the issue of the Securities, other than any document which consists of or
any part of listing particulars, supplementary listing particulars or any
document required or permitted to be published by listing rules under Part IV of
the FSA, to a person who is of a kind described in Article 11(3) of the FSA
(Investment Advertisements) (Exemptions) Order 1995 or is a person to whom such
document may otherwise lawfully be issued or passed on.
Section 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.
Section 15. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Seller and Onyx and the
Underwriters in accordance with its terms.
Very truly yours,
ONYX ACCEPTANCE FINANCIAL CORPORATION
By:______________________________________
Name:_________________________________
Title:________________________________
ONYX ACCEPTANCE CORPORATION
By:______________________________________
Name:_________________________________
Title:________________________________
The foregoing Underwriting
Agreement is hereby confirmed
and accepted, as of the
date first above written:
[Names of Investment Banks]
As Representatives of the
several Underwriters
By:____________________________
Name:_______________________
Title:______________________
Acting on behalf of themselves
and as the Representatives of
the several Underwriters.
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Schedule I
Principal Amount Principal Amount Principal Amount
of Class of Class of Class
Underwriter A-1 Securities A-2 Securities A-3 Securities
----------- -------------- -------------- --------------
_______________ $__________________ $_________________ $________________
_______________ $__________________ $_________________ $________________
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