1
EXHIBIT 1.3
EXECUTION COPY
Onyx Acceptance Owner Trust 2001-B
$78,000,000 4.02875% Auto Loan Backed Notes, Class A-1
$96,000,000 4.43% Auto Loan Backed Notes, Class A-2
$131,000,000 4.97% Auto Loan Backed Notes, Class A-3
$95,000,000 5.49% Auto Loan Backed Notes, Class A-4
UNDERWRITING AGREEMENT
May 11, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
as Representative of the Underwriters
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
1. Introductory. Onyx Acceptance Financial Corporation (the "Company")
proposes to cause Onyx Acceptance Owner Trust 2001-B (the "Trust") to sell to
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. (the "Representative") and Credit Suisse First Boston
Corporation (together with the Representative, the "Underwriters") $78,000,000
principal amount of 4.02875% Auto Loan Backed Notes, Class A-1 (the "Class A-1
Notes"), $96,000,000 aggregate principal amount of 4.43% Auto Loan Backed Notes,
Class A-2 (the "Class A-2 Notes"), $131,000,000 aggregate principal amount of
4.97% Auto Loan Backed Notes, Class A-3 (the "Class A-3 Notes"), and $95,000,000
aggregate principal amount of 5.49% Auto Loan Backed Notes, Class A-4 ("the
Class A-4 Notes" and together with the Class A-1 Notes, Class A-2 Notes and
Class A-3 Notes, the "Notes").
The Notes will be issued pursuant to an Indenture dated as of May 1, 2001
(the "Indenture"), between the Trust and The Chase Manhattan Bank as Indenture
Trustee (the "Indenture Trustee"). Certain securities representing the "Residual
Interest Instruments" of the Trust (as defined in the Servicing Agreement) will
be issued pursuant to a Trust Agreement dated as of May 1, 2001 (the "Trust
Agreement") among the Company, Bankers Trust (Delaware) as Owner Trustee (the
"Owner Trustee") and The Chase Manhattan Bank as Trust Agent (the "Trust
Agent").
Pursuant to a Sale and Servicing Agreement dated as of May 1, 2001 (the
"Servicing Agreement") among the Trust, the Company as Seller (the "Seller"),
Onyx Acceptance Corporation as Servicer and Custodian ("Onyx" or in such
capacity, the "Servicer" or the "Custodian"), The Chase Manhattan Bank in its
capacity as Indenture Trustee and the Trust Agent, the Seller will sell and
assign to the Trust, without recourse, the Seller's entire interest in the
Contracts (as hereinafter defined) and Onyx will act as Servicer of the
Contracts. Pursuant to an Administration Agreement dated as of May 1, 2001 (the
"Administration Agreement") among the Trust, Onyx, the Company, the Indenture
Trustee and the Trust Agent, Onyx will serve as
2
administrator of the Trust. Pursuant to an Amended and Restated Sale and
Servicing Agreement dated as of September 4, 1998 (the "Purchase Agreement"), as
amended, Onyx has sold or will sell the Funded Contracts (as hereinafter
defined) and may sell certain Prefunded Contracts (as hereinafter defined) to
the Company. Pursuant to an insurance and reimbursement agreement (the
"Insurance Agreement") among the Company, Onyx (in its individual capacity and
as Servicer) and MBIA Insurance Corporation (the "Insurer") and an insurer
indemnification agreement (the "MBIA Indemnification Agreement" and together
with the Insurance Agreement, the "Insurance Agreements") by and among Onyx, the
Company, the Representative and the Insurer, the Insurer will issue its
financial guarantee insurance policy (the "Guarantee") to the Indenture Trustee
for the benefit of the holders of the Notes (the "Noteholders")guaranteeing
timely payment of interest and ultimate payment of principal at maturity on the
Notes.
As of the Closing Date (as hereinafter defined), the Trust's assets (the
"Trust Property") will include: (i) a pool of fixed rate motor vehicle retail
installment sales contracts and installment loan agreements (the "Contract
Pool"), all of which were purchased from the Seller pursuant to the Servicing
Agreement and secured by new and used automobiles, light-duty trucks and vans
(the "Financed Vehicles"), (ii) certain documents relating to the Funded
Contracts, (iii) with respect to contracts (the "Initial Contracts") originated
as of May 1, 2001 (the "Initial Cut-Off Date") certain monies received with
respect to the Initial Contracts on or after the Initial Cut-off Date, (iv) with
respect to contracts (the "Subsequent Contracts" and together with the Initial
Contracts, the "Funded Contracts"), originated or purchased on or after the
Initial Cut-Off Date and on or about May 10, 2001 (the "Subsequent Cut-Off
Date"), certain monies received with respect to the Subsequent Contracts on or
after the Subsequent Cut-Off Date, (v) security interests in the Financed
Vehicles and the rights to receive proceeds from claims on certain insurance
policies covering the Financed Vehicles or the individual obligors under each
related Funded Contract, (vi) all amounts on deposit in the Collection Account,
the Payment Account, the Note Distribution Account, the Spread Account, the
Prefunding Account, the Capitalized Interest Account, and the Payahead Account
including all Eligible Investments credited thereto (but excluding any
investment income from Eligible Investments credited to the Collection Account,
which will be paid to the Servicer and any investment income from Eligible
Investments credited to the Capitalized Interest Account, which may be paid to
the Seller under certain circumstances), (vii) the right of the Company to cause
Onyx to repurchase certain Contracts under certain circumstances, and (viii) all
proceeds of the foregoing. After the Closing Date, the Trust will use the funds
in the Prefunding Account to purchase contracts (the "Prefunded Contracts", and
together with the Funded Contracts, the "Contracts") originated or purchased on
or after the Subsequent Cut-Off Date and on or before the end of the Funding
Period from the Company.
The Notes will be issued in an aggregate principal amount of $400,000,000
which is equal to the outstanding principal balance of the Initial Contracts as
of the Initial Cut-Off Date and the outstanding principal balance of the
Subsequent Contracts as of the Subsequent Cut-Off Date and the amount in the
Prefunding Account. The term "Cut-Off Date" as used herein refers to the Initial
Cut-Off Date for the Initial Contracts and the Subsequent Cut-Off Date for the
Subsequent Contracts and the related Prefunding Cut-Off Date for a Prefunded
Contract. Capitalized terms used herein and not otherwise herein defined shall
have the meanings assigned to such terms in the Servicing Agreement or if not
defined therein, in the Trust Agreement.
2
3
The Company hereby agrees with the Underwriters, as follows:
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with the Underwriters that:
(i) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933 (the "Act"), as amended, and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement (Registration No. 333-51636) on such form, including a prospectus
and forms of prospectus supplements, for registration under the Act of the
offering and sale of the Notes. The Company may have filed one or more
amendments thereto, each of which amendments has previously been furnished
to the Representative. The Company will also file with the Commission a
prospectus supplement in accordance with Rule 424(b) under the Act. The
Company has included in the Registration Statement (as hereinafter
defined), as amended at the Effective Date (as hereinafter defined), all
information required by the Act and the rules thereunder to be included in
the Prospectus (as hereinafter defined) with respect to the Notes and the
offering thereof. As filed, the registration statement as amended, the
forms of prospectus supplements, and any prospectuses or prospectus
supplements filed pursuant to Rule 424(b) under the Act relating to the
Notes shall, except to the extent that the Representative shall agree in
writing to a modification, be in all substantive respects in the form
furnished to the Representative prior to the Execution Time (as hereinafter
defined) or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes as the
Company has advised the Representative, prior to the Execution Time, will
be included or made therein.
For purposes of this Agreement, "Effective Time" means the date and
time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission, and "Effective Date" means the date of the Effective Time.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. Such registration statement,
as amended at the Effective Time, and including the exhibits thereto and
any material incorporated by reference therein (including any ABS Term
Sheets (as defined in Section 4 of this Agreement) filed on Form 8-K), is
hereinafter referred to as the "Registration Statement," and any prospectus
supplement (the "Prospectus Supplement") relating to the Notes, as filed
with the Commission pursuant to and in accordance with Rule 424(b) under
the Act is, together with the prospectus filed as part of the Registration
Statement (such prospectus, in the form it appears in the Registration
Statement or in the form most recently revised and filed with the
Commission pursuant to Rule 424(b) being hereinafter referred to as the
"Basic Prospectus"), hereinafter referred to as the "Prospectus". "Rule
424" refers to such rule under the Act. Any reference herein to the
Registration Statement, the Prospectus or any Prospectus Supplement shall
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed by the Company as
the originator of the Trust under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") , on or before the Effective Date of the
Registration Statement or the issue date of the Prospectus or any
Prospectus Supplement, as the case may be (but shall not be deemed to refer
to or include any Form T-1 filed with respect to the Indenture Trustee);
and any reference herein to the terms
3
4
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Prospectus or any Prospectus Supplement shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement, or the issue date
of the Prospectus or any Prospectus Supplement, as the case may be, deemed
to be incorporated therein by reference.
(ii) On the Effective Date and on the date of this Agreement, the
Registration Statement did or will, and, when the Prospectus was first
filed and on the Closing Date, the Prospectus and any Prospectus Supplement
did or will comply in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the respective rules and
regulations of the Commission thereunder (the "Rules and Regulations"). On
the Effective Date, the Registration Statement did not and will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and, on the Effective Date, the Prospectus, if not
filed pursuant to Rule 424(b), did not or will not, and on the date of any
filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus,
together with any Prospectus Supplement, did not or will not include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representation or warranty as to the
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with information furnished in
writing to the Company by any Underwriter through the Representative
specifically for use in connection with preparation of the Registration
Statement or the Prospectus.
(iii) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, (i) there has not been any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
management, financial condition, stockholders' equity, results of
operations, regulatory status or business prospects of the Company or Onyx,
and (ii) neither the Company nor Onyx has entered into any transaction or
agreement (whether or not in the ordinary course of business) material to
it that, in either case, would reasonably be expected to materially
adversely affect the interests of the holders of the Notes, other than as
set forth or contemplated in the Prospectus.
(iv) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of its jurisdiction of
incorporation, with full power and authority (corporate and other) to own
its properties and conduct its businesses as described in the Prospectus,
and is duly qualified to transact business as a foreign corporation in good
standing under the laws of each jurisdiction where the ownership or leasing
of its properties or the conduct of its business requires such
qualification.
(v) As of the Closing Date the representations and warranties of the
Company, as Seller, in the Servicing Agreement and Trust Agreement will be
true and correct, and each Funded Contract will satisfy the representations
and warranties set forth in Section 2.02(b) of the Servicing Agreement.
4
5
(vi) As of the related Prefunding Closing Date, the representations
and warranties of the Company in the Servicing Agreement and Trust
Agreement will be true and correct, and each related Prefunded Contract
will satisfy the representations and warranties set forth in Section
2.02(d) of the Servicing Agreement.
(vii) No consent, approval, authorization or order of, or filing with,
any court or governmental agency or body is required to be obtained or made
by the Company for the consummation of the transactions contemplated by
this Agreement, except such as have been obtained and made under the Act,
such as may be required under state securities laws and the filing of any
financing statements required to perfect the Trust's interest in the
Contracts.
(viii) The Company is not in violation of its Certificate of
Incorporation or By-Laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any agreement
or instrument to which it is a party or by which it or its properties are
bound which violation or default would have a material adverse effect on
the transactions contemplated herein or in the Indenture, the Trust
Agreement, the Servicing Agreement, the Purchase Agreement or the Insurance
Agreements. The execution, delivery and performance by the Company of this
Agreement, the Trust Agreement, the Servicing Agreement, the Purchase
Agreement or the Insurance Agreements and the issuance and sale of the
Notes and compliance with the terms and provisions thereof will not result
in a breach or violation of any of the terms and provisions of or
constitute a default under, any statute, rule, regulation or order of any
governmental agency or body or any court having jurisdiction over the
Company or any of its properties or any agreement or instrument to which
the Company is a party or by which the Company is bound or to which any of
the properties of the Company is subject, or the Certificate of
Incorporation or By-Laws of the Company and the Company has full corporate
power and authority to authorize, cause the Trust to issue, and sell the
Notes as contemplated by this Agreement, to enter into this Agreement, the
Trust Agreement, the Servicing Agreement, the Purchase Agreement and the
Insurance Agreements and to consummate the transactions contemplated herein
and therein.
(ix) This Agreement has been, and the Servicing Agreement, the Trust
Agreement, and the Insurance Agreements when executed and delivered as
contemplated hereby and thereby will have been, duly authorized, executed
and delivered by the Company, and this Agreement constitutes, and the
Servicing Agreement, the Trust Agreement and the Insurance Agreements, when
executed and delivered as contemplated herein, will constitute, legal,
valid and binding instruments enforceable against the Company in accordance
with their respective terms, subject as to enforceability to (x) applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws
affecting creditors' rights generally, (y) general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law), and (z) with respect to rights of indemnity under this Agreement
and the MBIA Indemnification Agreement limitations of public policy under
applicable securities laws.
5
6
(x) The Notes are duly and validly authorized by the Company and, when
executed, authenticated and delivered in accordance with the Indenture and
the Servicing Agreement, and issued and delivered to and paid for by the
Underwriters, as contemplated hereby, will be entitled to the benefits
provided by the Indenture and the Servicing Agreement.
(xi) The Company is not in violation of any provision of any existing
law or regulation or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan agreement, note, lease or other
instrument to which it is a party or by which it is bound or to which any
of its property is subject, which violations or defaults separately or in
the aggregate would have a material adverse effect on the Company or the
Trust.
3. Purchase, Sale, Payment and Delivery of Notes. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions set forth herein and any additional arrangements made
between the Underwriters and the Company, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company the aggregate principal amount of each class of Notes set forth
opposite such Underwriter's name on Schedule I hereto and at the price set forth
on such Schedule plus accrued interest, if any, from the Closing Date.
The Company will deliver the Notes to the Underwriters against payment of
the purchase price in immediately available funds by wire transfer to the order
of the Company at the offices of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ at 10:00 a.m., New York City time on May 18, 2001 or
at such other time not later than seven full business days thereafter as the
Underwriters and the Company determine, such time being herein referred to as
the "Closing Date". The Notes so to be delivered shall be represented by one or
more global notes as applicable registered in the name of Cede & Co., as nominee
for The Depository Trust Company, in such numbers as the Underwriters shall
reasonably request not later than 48 hours prior to the Closing Date. The
Company shall make such global notes, as applicable, representing the Notes
available for inspection by the Underwriters at the office at which the Notes
are to be delivered no later than 10:00 a.m., New York City time, on the
business day prior to the Closing Date.
4. Offering by the Underwriters. It is understood that, after the
Registration Statement becomes effective, the Underwriters propose to offer the
Notes for sale to the public (which may include selected brokers and dealers) as
set forth in the Prospectus.
The Underwriters may prepare and provide to prospective investors certain
ABS Term Sheets, in connection with its offering of the Notes, subject to the
following conditions:
(i) The Underwriters shall have complied with the requirements of the
no-action letter, dated February 17, 1995, issued by the Commission to the
Public Securities Association (the "No-Action Letter").
(ii) For purposes hereof, "ABS Term Sheets" shall have the meaning
given such term in the No-Action Letter but shall include only those ABS
Term Sheets that have been prepared or delivered to prospective investors
by or at the direction of each of the Underwriters.
6
7
(iii) All ABS Term Sheets provided to prospective investors that are
required to be filed pursuant to the No-Action Letter shall bear a legend
substantially in the form attached hereto as either Exhibit A-1 or Exhibit
A-2, as applicable. The Company shall have the right to require specific
legends or notations to appear on any ABS Term Sheets, the right to require
changes regarding the use of terminology and the right to determine the
types of information appearing therein. Notwithstanding the foregoing, this
subsection (iii) will be satisfied if all ABS Term Sheets referred to
herein bear a legend in a form previously approved in writing by the
Company.
(iv) Each of the Underwriters shall have provided the Company with
representative forms of all ABS Term Sheets prior to their first use, to
the extent such forms have not previously been approved in writing by the
Company for use by each of the Underwriters. The Underwriters shall have
provided to the Company, for filing as part of a current report on Form 8-K
as provided in Section 5(xii), copies (in such format as required by the
Company) of all ABS Term Sheets that are required to be filed with the
Commission pursuant to the No-Action Letter. Each of the Underwriters may
provide copies of the foregoing in a consolidated or aggregated form
including all information required to be filed. All ABS Term Sheets
described in this subsection (iv) shall have been provided to the Company
not later than 10:00 a.m. (New York City time) not less than one business
day before filing thereof is required to be made with the Commission
pursuant to the No-Action Letter. None of the Underwriters shall have
provided to any investor or prospective investor in the Notes any ABS Term
Sheets on or after the day on which ABS Term Sheets are required to be
provided to the Company pursuant to this subsection (iv) (other than copies
of ABS Term Sheets previously submitted to the company in accordance with
this subsection (iv) for filing pursuant to Section 5(xii)), unless such
ABS Term Sheets are preceded or accompanied by the delivery of a Prospectus
to such investor or prospective investor.
(v) All information included in the ABS Term Sheets shall have been
generated based on substantially the same methodology and assumptions that
are used to generate the information in the Prospectus as set forth
therein; provided that the ABS Term Sheets may have included information
based on alternative methodologies or assumptions if specified therein. If
any ABS Term Sheets that are required to be filed were based on assumptions
with respect to the Contract Pool that differ from the final Contract Pool
information in any material respect or on Notes structuring terms that were
revised in any material respect prior to the printing of the Prospectus,
each Underwriter shall have prepared revised ABS Term Sheets based on the
final Contract Pool information and structuring assumptions, shall have
circulated such revised ABS Term Sheets to all recipients of the
preliminary versions thereof that indicated orally to either of the
Underwriters they would purchase all or any portion of the Notes, and shall
have included such revised ABS Term Sheets (marked, "as revised") in the
materials delivered to the Company pursuant to subsection (iv) above.
(vi) The Company shall not be obligated to file any ABS Term Sheets
that have been determined to contain any material error or omission,
provided that, at the request of the Underwriters, the Company will file
ABS Term Sheets that contain a material error or omission if clearly marked
"superseded by materials dated _________"
7
8
and accompanied by corrected ABS Term Sheets that are marked, "supersedes
material previously dated _______, as corrected." If, within the period
during which the Prospectus relating to the Notes is required to be
delivered under the Act, any ABS Term Sheets are determined, in the
reasonable judgment of the Company or either of the Underwriters, to
contain a material error or omission, each Underwriter shall prepare a
corrected version of such ABS Term Sheets, shall circulate such corrected
ABS Term Sheets to all recipients of the prior versions thereof that either
indicated orally to either of the Underwriters they would purchase all or
any portion of the Notes, or actually purchased all or any portion thereof,
and shall deliver copies of such corrected ABS Term Sheets (marked, "as
corrected") to the Company for filing with the Commission in a subsequent
current report on Form 8-K (subject to the Company's obtaining an
accountant's comfort letter in respect of such corrected ABS Term Sheets).
(vii) The Underwriters shall be deemed to have represented as of the
Closing Date, that, except for ABS Term Sheets provided to the Company
pursuant to subsection (iv) above, the Underwriters did not provide any
prospective investors with any information in written or electronic form in
connection with the offering of the Notes that is required to be filed with
the Commission in accordance with the No-Action Letter.
(viii) In the event of any delay in the delivery by the Underwriters
to the Company of any ABS Term Sheets required to be delivered in
accordance with subsection (iv) above, or in the delivery of the
accountant's comfort letter in respect thereof pursuant to Section 5(xii),
the Company shall have the right to delay the release of the Prospectus to
investors or to the Underwriters, to delay the Closing Date and to take
other appropriate actions in each case as necessary in order to allow the
Company to comply with its agreement set forth in Section 5(xii) to file
the ABS Term Sheets by the time specified therein.
5. Certain Agreements of the Company. The Company agrees with the
Underwriters that:
(i) Immediately following the execution of this Agreement, the Company
will prepare a Prospectus Supplement setting forth the amount of Notes
covered thereby and the terms thereof not otherwise specified in the Basic
Prospectus, the price at which such Notes are to be purchased by the
Underwriters, the initial public offering price, the selling concessions
and allowances, and such other information as the Company deems appropriate
and shall furnish a copy to the Representative in accordance with Section
5(vii) of this Agreement. The Company will transmit the Prospectus
including such Prospectus Supplement to the Commission pursuant to Rule
424(b) by a means reasonably calculated to result in filing that complies
with all applicable provisions of Rule 424(b). The Company will advise the
Representative promptly of any such filing pursuant to Rule 424(b).
(ii) Prior to the termination of the offering of the Notes, the
Company will not file any amendment of the Registration Statement or
supplement to the Prospectus unless the Company has furnished the
Representative with a copy for its review prior to filing and will not file
any such proposed amendment or supplement without the
8
9
Representative's consent, which consent will not unreasonably be withheld.
Subject to the foregoing sentence, if filing of the Prospectus is otherwise
required under Rule 424(b), the Company will file the Prospectus, properly
completed, and any supplement thereto, with the Commission pursuant to and
in accordance with the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the
Representative of such timely filing.
(iii) The Company will advise the Representative promptly of any
proposal to amend or supplement the Registration Statement as filed or the
Prospectus, and will not effect such amendment or supplement without the
Representative's consent, which consent will not unreasonably be withheld.
The Company will also advise the Representative promptly of any request by
the Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for any additional information and the
Company will also advise the Representative promptly of any amendment or
supplement to the Registration Statement or the Prospectus and of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threat of any
proceeding for that purpose, and the Company will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible the lifting of any issued order.
(iv) The Company will use every reasonable effort to cause the
Registration Statement, and any amendment thereto, if not effective at the
Execution Time, to become effective.
(v) If, at any time when a Prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is necessary at any
time to amend the Prospectus to comply with the Act, the Company promptly
will prepare and file with the Commission (subject to the Representative's
prior review pursuant to paragraph (ii) of this Section 5) an amendment or
supplement which will correct such statement or omission or an amendment or
supplement which will effect such compliance.
(vi) As soon as practicable, the Company will cause the Trust to make
generally available to the Noteholders and the holders of the Residual
Interest Instruments of the Trust an earnings statement or statements of
the Trust covering a period of at least 12 months beginning after the
Closing Date which will satisfy the provisions of Section 11(a) of the Act
and Rule 158 of the Commission promulgated thereunder.
(vii) The Company will furnish to each Underwriter copies of the
Registration Statement, the Prospectus and any preliminary Prospectus
Supplement related thereto and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as each
Underwriter may reasonably request.
9
10
(viii) The Company will cooperate with each Underwriter in arranging
for the qualification of the Notes for sale and the determination of their
eligibility for investment under the laws of such jurisdictions as each
Underwriter designates and will continue such qualifications in effect so
long as required for the distribution of the Notes; provided, however, that
the Company shall not be obligated to qualify to do business in any
jurisdiction in which it is not currently so qualified or to take any
action which would subject it to general or unlimited service of process in
any jurisdiction where it is not now so subject. The Company will promptly
advise the Underwriters of the receipt by the Company of any notification
with respect to the suspension or the qualification of the Notes for sale
in any jurisdiction or the initiation or threat of any proceeding for such
purpose.
(ix) For a period from the date of this Agreement until the retirement
of the Notes, the Company will furnish to the Underwriters copies of the
annual statements of compliance delivered to the Indenture Trustee pursuant
to Section 3.09 of the Indenture and Section 3.10 of the Servicing
Agreement, and the annual independent public accountant's reports furnished
to the Indenture Trustee pursuant to Section 3.11 of the Servicing
Agreement, as soon as practicable after such statements and reports are
furnished to the Indenture Trustee and Owner Trustee respectively.
(x) So long as any of the Notes are outstanding, the Company will
furnish to you as soon as practicable, (A) all documents distributed, or
caused to be distributed, by the Servicer to the Noteholders, (B) all
documents filed, or caused to be filed, by the Company with the Commission
pursuant to the Exchange Act, any order of the Commission thereunder or
pursuant to a "no-action" letter from the staff of the Commission and (C)
from time to time, such other information in the possession of the Company
concerning the Trust and any other information concerning the Company filed
with any governmental or regulatory authority which is otherwise publicly
available as you may reasonably request.
(xi) (a) On or before the Closing Date the Company shall cause its
computer records relating to the Funded Contracts to be marked to show the
Trust's absolute ownership of the Funded Contracts and shall cause the
Servicer to mark its computer records relating to the Funded Contracts to
show the sale to the Company of the Funded Contracts and the subsequent
transfer of the Funded Contracts to the Trust, and from and after the
Closing Date the Company shall not, and shall instruct the Servicer not to,
take any action inconsistent with the Trust's ownership of such Funded
Contracts, other than as permitted by the Indenture and the Trust
Agreement.
(b) On or before the related Prefunding Closing Date, the Company
shall cause its computer records for the related Prefunded Contracts to be
marked to show the Trust's absolute ownership of the related Prefunded
Contracts and shall cause the Servicer to mark its computer records for the
related Prefunded Contracts to show the sale to the Company of the related
Prefunded Contracts and the subsequent transfer of the related Prefunded
Contracts to the Trust, and after the related Prefunding Closing Date, the
Company shall not, and shall instruct the Servicer not to, take any action
inconsistent with the Trust's ownership of such Prefunded Contracts, other
than as permitted by the Indenture and the Trust Agreement.
10
11
(xii) The Company will file with the Commission as part of a current
report on Form 8-K each ABS Term Sheet provided to the Company by each of
the Underwriters and identified by each of them as such within the time
period allotted for such filing pursuant to the No-Action Letter; provided,
however, that prior to such filing of an ABS Term Sheet (other than any ABS
Term Sheets that are not based on the Contract Pool information) by the
Company, each of the Underwriters must comply with their obligations
pursuant to Section 4 and the Company must receive a letter from
PricewaterhouseCoopers, certified public accountants, satisfactory in form
and substance to the Company, to the effect that such accountants have
performed certain specified procedures, all of which have been agreed to by
the Company, as a result of which PricewaterhouseCoopers have determined
that the information included in such ABS Term Sheet (if any), provided by
the Underwriters to the Company for filing on a current report on Form 8-K
pursuant to Section 4 and, if the Company then so specifies, this
subsection (xii), and that the accountants have examined in accordance with
such agreed upon procedures, is accurate except as to such matters that are
not deemed by the Company to be material. The Company shall file any
corrected ABS Term Sheets described in Section 4(vi) as soon as practicable
following receipt thereof.
(xiii) The Company will cause ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P. to deliver to the
Underwriters on or before the Prefunding Closing Date, the opinions
required to be furnished pursuant to Section 2.01(j) of the Servicing
Agreement, addressed to the Underwriters , with respect to the transfer of
the related Prefunded Contracts substantially in the form of the opinions
delivered by ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P. on the Closing Date with respect to the
Funded Contracts.
(xiv) The Company will deliver to the Underwriters (i) on or before
each Prefunding Closing Date, the Officer's Certificate and certificate
from each secured creditor required to be furnished pursuant to Section
2.01(j) of the Servicing Agreement and (ii) on or before each Prefunding
Transfer Date, the Transfer Certificate required to be furnished pursuant
to Section 2.01(c) of the Servicing Agreement.
6. Payment of Expenses. The Company will pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including (i) the printing and filing of the Registration Statement as
originally filed and of each amendment thereto and the Prospectus and Prospectus
Supplement, (ii) the Trust Agent's, the Indenture Trustee's and Owner Trustee's
fees and the fees and disbursements of the counsel to the Trust Agent, the
Indenture Trustee and to the Owner Trustee, (iii) any up-front fees and premiums
payable to the Insurer and the fees and disbursements of counsel to the Insurer,
(iv) the fees and disbursements of the accountants, (v) the fees of the rating
agencies and (vi) blue sky expenses.
11
12
7. Conditions to the obligations of the Underwriters. The obligation of the
Underwriters to purchase and pay for the Notes will be subject to the accuracy
of the representations and warranties on the part of the Company herein, to the
accuracy of the written statements of officers of the Company made pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions precedent:
(i) On or prior to the date of this Agreement, the Representative
shall have received a letter, dated the date of this Agreement, of
PricewaterhouseCoopers and substantially in the form heretofore agreed,
which letter shall be in form and substance agreed to by the
Representative.
(ii) The Registration Statement shall have become effective prior to
the Execution Time, and prior to the Closing Date, no stop order suspending
the effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representative, shall be contemplated by
the Commission or by any authority administering any state securities or
blue sky law; the Prospectus and any supplements thereto shall have been
filed (if required) with the Commission in accordance with the Rules and
Regulations and the applicable paragraphs of Section 5 hereof; if filing of
the Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Prospectus shall be filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or threatened.
(iii) Subsequent to the execution and delivery of this Agreement,
there shall have not occurred (a) any change, or any development involving
a prospective change, in or affecting particularly the business or
properties of the Company or Onyx which, in the reasonable judgment of each
of the Underwriters, materially impairs the investment quality of the
Notes; (b) any suspension or material limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices
for trading on such exchange, or any suspension of trading of any
securities of Onyx on any exchange or in the over-the-counter market by
such exchange or over-the-counter market or by the Commission; (c) any
banking moratorium declared by federal, New York or California authorities;
(d) any outbreak or material escalation of major hostilities or any other
substantial national or international calamity or emergency if, in the
reasonable judgment of each Underwriter, the effect of any such outbreak,
escalation, calamity or emergency on the United States financial markets
makes it impracticable or inadvisable to proceed with completion of the
sale of, and any payment for, the Notes.
(iv) The Underwriters shall have received an opinion, dated the
Closing Date, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., counsel of the Company,
substantially to the effect that:
(a) The Company (1) is duly incorporated and is validly existing and
in good standing under the laws of the State of Delaware, (2) has the
corporate power and corporate authority to own its properties and
conduct its business as described in the Prospectus and (3) had at all
relevant times, and now has, the power, authority and legal right to
acquire, own and sell the Contracts;
12
13
(b) The Company has, or at the time such agreement was executed and
delivered, had, the corporate power and corporate authority to execute
and deliver this Agreement, the Trust Agreement, the Servicing
Agreement, the Purchase Agreement and the Insurance Agreements and to
consummate the transactions contemplated herein and therein;
(c) No consent, approval, authorization or order of, or filing with,
any California, Delaware or federal governmental agency or body or any
court is or was required by the Company to perform the transactions
contemplated by this Agreement, the Trust Agreement, the Servicing
Agreement, the Purchase Agreement or the Insurance Agreements except
for (1) filing of a Uniform Commercial Code financing statement in the
State of California with respect to the transfer of the Contracts to
the Trust pursuant to the Trust Agreement and the Servicing Agreement,
and the sale of the Contracts to the Company pursuant to the Purchase
Agreement, (2) such consents, approvals, authorizations, orders or
filings as may be required under federal law which have been made or
obtained and (3) such consents, approvals, authorizations, orders or
filings as may be required under state securities laws;
(d) None of the execution, delivery and performance by the Company of
this Agreement, the Trust Agreement, the Servicing Agreement, the
Purchase Agreement or the Insurance Agreements, the transfer of the
Contracts to the Trust, the assignment of the security interests of
the Company in the Financed Vehicles, the issuance and sale of the
Notes or the consummation of any other of the transactions
contemplated herein or in the Trust Agreement, the Servicing
Agreement, the Purchase Agreement or the Insurance Agreements
conflicts or will conflict with, has resulted or will result in a
breach, violation or acceleration of any of the terms of, or has
constituted or will constitute a default under, the By-Laws or the
Certificate of Incorporation of the Company, as amended, or, to such
counsel's knowledge (i) any rule, order, statute or regulation known
to such counsel to be currently applicable to the Company of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over the Company or (ii) the terms of any material
indenture or other material agreement or instrument known to such
counsel to which the Company is a party or by which it or its
properties are bound;
(e) To such counsel's knowledge, there are no actions, proceedings or
investigations pending or threatened before any court, administrative
agency or other tribunal (1) asserting the invalidity of this
Agreement, the Trust Agreement, the Servicing Agreement, the Purchase
Agreement or the Insurance Agreements or the Notes, (2) seeking to
prevent the issuance of the Notes or the consummation of any of the
transactions contemplated by this Agreement, the Trust Agreement, the
Servicing Agreement, the Purchase Agreement or the Insurance
Agreements, (3) seeking adversely to affect the federal income tax
attributes of the Notes as described in the Base Prospectus under the
headings "SUMMARY OF TERMS -- Tax Status"; "CERTAIN FEDERAL INCOME TAX
CONSEQUENCES"; "TRUSTS FOR WHICH A PARTNERSHIP ELECTION IS MADE" and
"TRUSTS TREATED AS GRANTOR TRUSTS" and in the Prospectus Supplement
under the headings "SUMMARY OF TERMS -- Federal Income Tax Status" and
"CERTAIN FEDERAL INCOME TAX CONSEQUENCES";
13
14
(f) This Agreement, the Trust Agreement, the Servicing Agreement, the
Purchase Agreement and the Insurance Agreements have each been duly
authorized, executed and delivered by the Company;
(g) The Funded Contracts constitute "chattel paper" as defined in
Section 9105(a)(2) of the Uniform Commercial Code of the State of
California;
(h) The statements in the Prospectus under the caption "CERTAIN LEGAL
ASPECTS OF THE CONTRACTS," and "ERISA CONSIDERATIONS" to the extent
they constitute matters of California or federal law or legal
conclusions, are correct in all material respects;
(i) [Reserved]
(j) When the Notes have been duly executed by the Owner Trustee and
delivered by the Trust Agent on behalf of the Trust, authenticated by
the Indenture Trustee in accordance with the Indenture and delivered
and paid for pursuant to this Agreement, the Notes will be the valid,
legal and binding obligations of the Trust, enforceable against the
Trust in accordance with their terms, subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent or preferential
conveyance and other similar laws of general application relating to
or affecting creditors' rights generally, and general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(k) Assuming the authorization, execution and delivery thereof by each
party thereto other than the Company and Onyx, each of the Trust
Agreement, the Purchase Agreement, the Servicing Agreement and the
Insurance Agreements constitutes the legal, valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, subject, as to enforcement, to (1) the
effect of bankruptcy, insolvency, reorganization, moratorium,
fraudulent or preferential conveyance and other similar laws of
general application relating to or affecting creditors' rights
generally, and general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law); and (2) the unenforceability under certain circumstances of
provisions indemnifying a party against liability where such
indemnification is contrary to public policy;
(l) The Registration Statement became effective under the Act; after
due inquiry, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act; the Registration Statement, and
each amendment thereof or supplement
14
15
thereto as of its effective date and the Prospectus as of its date of
issuance appeared on its face to be appropriately responsive in all
material respects to the applicable requirements of the Securities Act
and the Rules and Regulations, and such counsel need not opine as to
the financial statements and related notes, schedules and other
financial and statistical data included therein; and any required
filing of the Prospectus and Prospectus Supplement pursuant to Rule
424(b) has been made;
(m) The Notes, the Indenture, the Trust Agreement, the Servicing
Agreement, the Purchase Agreement, and the Guarantee conform in all
material respects to the descriptions thereof contained in the
Registration Statement and the Prospectus;
(n) The Trust Agreement is not required to be qualified under the
Trust Indenture Act of 1939, as amended;
(o) The Indenture has been duly qualified under the Trust Indenture
Act;
(p) The Company is not, and after giving effect to the offering and
sale of the Notes as contemplated in the Prospectus and this Agreement
and the application of the proceeds thereof as described in the
Prospectus will not be, an "investment company" as defined in the
Investment Company Act of 1940, as amended (the "Investment Company
Act"). Onyx is not an "investment company" within the meaning of the
Investment Company Act;
(q) The Trust is not now, and immediately following the sale of the
Notes pursuant to this Agreement will not be, required to be
registered under the Investment Company Act;
(r) The Indenture, the Servicing Agreement and the Administration
Agreement, assuming that they have been duly authorized by, and when
duly executed and delivered by, the Owner Trustee on behalf of the
Trust, will constitute the legal, valid and binding obligations of the
Trust, enforceable against the Trust in accordance with their terms,
except the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent or other
preferential conveyance and other similar laws and other similar laws
of general application relating to or affecting the rights of
creditors generally and to general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at
law);
(s) all actions required to be taken, and all filings required to be
made, by the Company under the Act and the Exchange Act prior to the
sale of the Notes have been duly taken or made; and
(t) to such counsel's knowledge and information, there are no legal or
governmental proceedings pending or threatened that are required to be
disclosed in the Registration Statement, other than those disclosed
therein.
15
16
In addition, such counsel shall opine, in form and substance
satisfactory to you, (i) as to certain matters relating to the acquisition
by the Company of a perfected first priority security interest in the
vehicles financed by the Funded Contracts and (ii) as to the existence of a
valid, perfected, first priority security interest in the Funded Contracts
in favor of the Owner Trustee from the Company and in favor of the
Indenture Trustee from the Owner Trustee.
In rendering such opinion, such counsel may rely (i) as to matters of
fact, to the extent deemed proper and as stated therein, on certificates of
responsible officers of the Company and public officials and (ii) on other
opinions of counsel as specified therein. References to the Prospectus in
this paragraph (iv) include any supplements thereto.
(v) The Underwriters shall have received an opinion, dated the Closing
Date, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., counsel to Onyx, substantially to the
effect that:
(a) Onyx (1) is duly incorporated and is validly existing and in good
standing under the laws of the State of its incorporation, (2) has the
corporate power and corporate authority to own its properties and
conduct its business as described in the Prospectus and (3) had at all
relevant times, and now has, the power, authority and legal right to
acquire, own and sell the Funded Contracts;
(b) Onyx has the corporate power and corporate authority to execute
and deliver the Servicing Agreement, the Insurance Agreements and the
Administration Agreement, to the extent applicable, and at the time it
was executed and delivered, had the power and authority to execute and
deliver the Purchase Agreement, and to consummate the transactions
contemplated herein and therein;
(c) No consent, approval, authorization or order of, or filing with,
any California or federal governmental agency or body or any court is
required by Onyx to perform the transactions contemplated by the
Insurance Agreements, the Servicing Agreement, the Administration
Agreement or the Purchase Agreement, as applicable, except for (1)
filing of a Uniform Commercial Code financing statement in the State
of California with respect to the sales of the Contracts to the
Company pursuant to the Purchase Agreement and (2) such consents,
approvals, authorizations, orders or filings as may be required under
the federal and state securities laws; the opinion set forth in this
sentence is limited to such authorizations, approvals, consents and
orders which, in such counsel's experience, are normally applicable to
transactions of the type contemplated by the Insurance Agreements, the
Servicing Agreement, the Administration Agreement and the Purchase
Agreement, as applicable;
(d) None of the execution, delivery and performance by Onyx of the
Servicing Agreement, the Insurance Agreements, the Administration
Agreement or the Purchase Agreement, as applicable, or the transfer of
the Contracts to the Company, has conflicted with or will conflict
with, has resulted or will result in a breach, violation or
acceleration of any of the terms of, or has constituted or will
constitute a default under, the By-Laws or the Certificate of
Incorporation of
16
17
Onyx, as amended, or, to the best of such counsel's knowledge, any
rule, order, statute or regulation known to such counsel to be
currently applicable to Onyx of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
Onyx or the terms of any material indenture or other material
agreement or instrument known to such counsel to which Onyx is a party
or by which it or its properties are bound;
(e) The Servicing Agreement, the Insurance Agreements, the
Administration Agreement and the Purchase Agreement have each been
duly authorized, executed and delivered by Onyx;
(f) The indemnification agreement dated as of the date hereof, between
Onyx and the Representative has been duly authorized, executed and
delivered by ▇▇▇▇; and
(g) Assuming the authorization, execution and delivery thereof by the
Company with respect to the Servicing Agreement, the Insurance
Agreements, the Administration Agreement and the Purchase Agreement,
as applicable, each such agreement constitutes the legal, valid and
binding agreement of Onyx, enforceable against Onyx in accordance with
its terms, subject, as to enforcement, to (1) the effect of
bankruptcy, insolvency, reorganization, moratorium, fraudulent or
preferential conveyance and other similar laws of general application
relating to or affecting creditors' rights generally and general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and (2) the
unenforceability under certain circumstances of provisions
indemnifying a party against liability where such indemnification is
contrary to public policy.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent deemed proper and as stated therein, on certificates of
responsible officers of Onyx and public officials.
In addition, such counsel shall state that they have participated in
conferences with the officers and other representatives of the Company and
Onyx, representatives of the independent public accountants of the Company
and Onyx and representatives of the Underwriters and the Insurer at which
the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although such counsel has not independently
verified and are not passing upon and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus, on the basis of the foregoing,
no facts have come to such counsel's attention that lead them to believe
that the Registration Statement, as of the Effective Date, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus as of its date or as of the Closing
Date contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need make no
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).
17
18
(vi) The Underwriters shall have received opinions of ▇▇▇▇▇▇▇ & ▇▇▇▇▇
L.L.P., counsel to the Company, dated the Closing Date and satisfactory in
form and substance to you, with respect the characterization of the
transfer of the Funded Contracts by Onyx to the Company as a sale and with
respect to the perfection of the Trust's interests in the Funded Contracts
and with respect to the non-consolidation of the Company with Onyx in the
event of bankruptcy filing with respect to Onyx and with respect to certain
other matters.
(vii) The Underwriters shall have received an opinion of ▇▇▇▇▇▇▇ &
▇▇▇▇▇ L.L.P., tax counsel to the Company, dated the Closing Date and
satisfactory in form and substance to you substantially to the effect that:
(a) The Class A Notes will be characterized as debt and the Trust will
not be characterized as an association (or a publicly traded
partnership) taxable as a corporation;
(b) the Statements in the Base Prospectus under the heading "SUMMARY
OF TERMS -- Tax Status"; "CERTAIN FEDERAL INCOME TAX CONSEQUENCES";
"TRUSTS FOR WHICH A PARTNERSHIP ELECTION IS MADE" and "TRUSTS TREATED
AS GRANTOR TRUSTS" and in the Prospectus Supplement under the headings
"SUMMARY OF TERMS -- Federal Income Tax Status" and "CERTAIN FEDERAL
INCOME TAX CONSEQUENCES" to the extent that they constitute matters of
law or legal conclusions with respect thereto, have been prepared or
reviewed by such counsel and are correct in all material respects; and
(c) Such state tax opinions as are satisfactory to the Representative.
(viii) The Underwriters shall have received an opinion of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, in-house counsel to the Company and Onyx, dated the Closing Date
and satisfactory in form and substance to you.
(ix) The Underwriters shall have received an opinion, dated the
Closing Date, of ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, counsel to the Insurer,
substantially to the effect that:
(a) The Insurer is a corporation validly existing, in good standing
and licensed to transact the business of surety and financial guaranty
insurance under the laws of the State of New York;
(b) The Insurer has the corporate power to execute and deliver, and to
take all action required of it under the Guarantee, the Insurance
Agreements and the MBIA Indemnification Agreement;
18
19
(c) Except as have already been obtained, no authorization, consent,
approval, license, formal exemption or declaration from, nor any
registration or filing with, any court or governmental agency or body
of the United States of America or the State of New York, which if not
obtained would affect or impair the validity or enforceability of the
Guarantee, the Insurance Agreements or the MBIA Indemnification
Agreement against the Insurer, is required in connection with the
execution and delivery by the Insurer of the Guarantee, the Insurance
Agreements or the MBIA Indemnification Agreement or in connection with
the Insurer's performance of its obligations thereunder;
(d) The Guarantee, the Insurance Agreement and the MBIA
Indemnification Agreement have been duly authorized, executed and
delivered by the Insurer, and the Guarantee and, assuming due
authorization, execution and delivery of the Insurance Agreements by
the parties thereto (other than the Insurer), the Insurance Agreements
constitute the legally valid and binding obligations of the Insurer,
enforceable in accordance with their respective terms subject, as to
enforcement, to (1) bankruptcy, reorganization, insolvency, moratorium
and other similar laws relating to or affecting the enforcement of
creditors' rights generally, including, without limitation, laws
relating to fraudulent transfers or conveyances, preferential
transfers and equitable subordination, presently or from time to time
in effect and general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law), as
such laws may be applied in any such proceeding with respect to the
Insurer and (2) the qualification that the remedy of specific
performance may be subject to equitable defenses and to the discretion
of the court before which any proceedings with respect thereto may be
brought; and
(e) The Guarantee is not required to be registered under the
Securities Act of 1933, as amended.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent deemed proper and as stated therein, on certificates of
responsible officers of the Insurer and public officials. References to the
Prospectus in this paragraph (ix) include any supplements thereto.
(x) The Underwriters shall have received an opinion of ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & ▇▇▇▇, counsel to the Indenture Trustee and Trust Agent, dated
the Closing Date and satisfactory in form and substance to you.
(xi) The Underwriters shall have received an opinion of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, counsel to the Owner Trustee, dated the Closing Date and
satisfactory in form and substance to you.
(xii) The Underwriters shall have received an opinion of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger special Delaware counsel to the Trust, dated the Closing
Date and satisfactory in form and substance to you.
19
20
(xiii) The Representative shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
& Wood LLP, counsel to the Underwriters, such opinion or opinions, dated
the Closing Date and satisfactory in form and substance to you, with
respect to the validity of the Notes, the Registration Statement, the
Prospectus and other related matters as the Underwriters may require, and
the Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(xiv) The Underwriters shall have received a letter, dated the Closing
Date, of PricewaterhouseCoopers which meets the requirements of the
subsection (i) of this Section 7, except that the specified date referred
to in such subsection will be a date not more than five days prior to the
Closing Date for the purposes of this subsection.
(xv) The Underwriters shall have received evidence satisfactory to
them that the Notes have been rated in the highest rating category by
▇▇▇▇▇'▇ Investors Service, Inc. and by Standard & Poor's Ratings Services.
(xvi) The Underwriters shall have received a certificate, dated the
Closing Date, of a Vice President or more senior officer of the Company in
which such officer shall state that, to the best of his or her knowledge
after reasonable investigation, the representations and warranties of the
Company in this Agreement are true and correct on and as of the Closing
Date, that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior
to the Closing Date, that the representations and warranties of the
Company, as Seller, in the Servicing Agreement and the Trust Agreement are
true and correct as of the dates specified therein and the representations
and warranties set forth in Section 2.02(b) of the Servicing Agreement, are
true and correct as of the dates specified in the Servicing Agreement, that
no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted or
are threatened by the Commission and that, subsequent to the date of the
Prospectus, there has been no material adverse change in the financial
position or results of operations of the Company's motor vehicle
installment loan business except as set forth in or contemplated by the
Prospectus or as described in such certificate.
(xvii) The Underwriters shall have received a certificate, dated the
Closing Date, of a Vice President or more senior officer of Onyx in which
such officer shall state that, to the best of his or her knowledge after
reasonable investigation, the representations and warranties of Onyx in the
Purchase Agreement and Servicing Agreement are true and correct in all
material respects on and as of the Closing Date, that Onyx has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied thereunder at or prior to the Closing Date, that the
representations and warranties of Onyx, as Servicer, in the Servicing
Agreement are true and correct as of the dates specified in the Servicing
Agreement, there has been no material adverse change in the financial
position or results of operations of Onyx's motor vehicle installment loan
business except as set forth in or contemplated by the Prospectus or as
described in such certificate.
20
21
(xviii) The Guarantee shall have been duly authorized, executed,
issued and delivered by the Insurer; all fees due and payable to the
Insurer as of the Closing Date shall have been paid in full; and the
Guarantee shall conform to the description thereof in the Registration
Statement and the Prospectus.
(xix) The Underwriters shall have received a certificate from a senior
officer of the Insurer to the effect that such officer has no reason to
believe that the section of the Prospectus Supplement captioned
"DESCRIPTION OF THE INSURER" or any such amendment thereof or supplement
thereto as of its Effective Date or date of issuance, as the case may be,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
The Company will furnish or cause to be furnished to the Underwriters such
number of conformed copies of such opinions, certificates, letters and documents
as the Underwriters reasonably request.
8. Indemnification.
(i) The Company will indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of
Section 15 of the Act against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) (a) arise out of, or are based upon, any
untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, or arise out of, or are based upon, the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading or (b) arise out of, or are based upon, any untrue statement or
alleged untrue statement of any material fact contained in the Prospectus
or arise out of, or are based upon, the omission or alleged omission to
state therein a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred, as incurred, by each Underwriter in connection with investigating
or defending any such action or claim; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of, or is based upon, an untrue
statement or alleged untrue statement or omission or alleged omission (x)
made in the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by the Underwriters expressly for use therein, or
(y) contained in any ABS Term Sheet to the extent set forth in subsection
(ii) of this Section 8; provided, further, that the Company shall not be
liable under this subsection (i) to the extent that such losses, claims,
damages or liabilities arose out of or are based upon an untrue statement
or omission made in any preliminary prospectus that is corrected in the
final Prospectus (or any amendment or supplement thereto), and the Company
has previously furnished copies thereof in sufficient quantity to the
Underwriters, if the person asserting such loss, claim, damage or liability
was not given the final Prospectus (or any amendment or supplement thereto)
on or prior to the confirmation of the sale of the Notes.
21
22
(ii) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Company, its directors, each of its officers or
agents who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (i) of this Section 8, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, (A) made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by the Underwriters through
the Representative expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or (B) made in the ABS Term Sheets
distributed by the Underwriters and filed as a post-effective amendment to
the Registration Statement or the Prospectus or as a result of any filing
pursuant to Section 5(xii); provided, however -------- ------- that the
Underwriters will not be liable in any such case to the extent that any
such loss, claim or damage or liability arises out of, or is based upon, an
untrue statement or omission made in the ABS Term Sheet or any supplement
thereto in reliance upon and in conformity with (x) information furnished
to such Underwriter by the Company or (y) information contained in the
Registration Statement or any preliminary prospectus or the Prospectus
other than information described in clause (A) above.
(iii) Each indemnified party shall give prompt notice to the
indemnifying party of any action commenced against the indemnified party in
respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have hereunder or otherwise than on account of
this indemnity agreement except and to the extent of any prejudice to such
indemnifying party arising from such failure to provide such notice. In
case any such action shall be brought against an indemnified party and it
shall have notified the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, to assume the defense thereof, with counsel,
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party with
respect to such action), and it being understood that the indemnifying
party shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys,
and, after notice from the indemnifying party to the indemnified party of
its election so to assume the defense thereof, the indemnifying party shall
not be liable to the indemnified party under subsections (i) or (ii) of
this Section 8 for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by the indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation.
22
23
9. Contribution. In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 is for
any reason held to be unavailable other than in accordance with its terms, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnifying party as a result of the losses, claims, damages or liabilities
referred to in 8(i) and 8(ii) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and each
Underwriter on the other from the offering of the Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the related Underwriter on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and each Underwriter on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by each Underwriter.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the related Underwriter and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this Section 9 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
Section 9. Notwithstanding the provisions of this Section 9, no Underwriter
shall be required to contribute any amount in excess of the underwriting
discount or commission applicable to the Notes purchased by it hereunder. The
Company and each Underwriter agrees that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 9. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
10. Termination. The Underwriters may terminate this Agreement immediately
upon notice to the Company, if at any time, prior to the Closing Date, there has
occurred: (a) any change, or any development involving a prospective change, in
or affecting particularly the business or properties of the Company or Onyx
which, in the reasonable judgment of the Underwriters, materially impairs the
investment quality of the Notes; (b) any suspension or material limitation of
trading in securities generally on the New York Stock Exchange, or any setting
of minimum prices for trading on such exchange, or any suspension of trading of
any securities of the Company or of Onyx on any exchange or in the
over-the-counter market by such exchange or over-the-counter market or by the
Commission; (c) any banking moratorium declared by federal, New York or
California authorities; (d) any outbreak or material escalation of major
hostilities or any other substantial national or international calamity or
emergency if, in the reasonable judgment of the Underwriters, the effect of any
such outbreak, escalation, calamity or emergency on the United States financial
markets makes it impracticable or inadvisable to proceed with completion of the
sale of and any payment for the Notes; or (e) there shall have occurred such a
material adverse change in general economic, political or financial conditions
(or the effect of international conditions on the financial markets of the
United States shall be such) as to make it, in the judgment of the Underwriters,
impractical or inadvisable to proceed with the public offering or delivery of
the Notes on the terms and in the manner contemplated in the Prospectus.
23
24
11. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
the Underwriters, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Notes. If for any reason the purchase of the Notes by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 6 and the respective
obligations of the Company and the Underwriters pursuant to Sections 6, 8 and 9
shall remain in effect. If the purchase of the Notes by the Underwriters is not
consummated for any reason other than solely because of the occurrence of any
event specified in clauses (b), (c) or (d) of Section 7(iii) or clauses (b), (c)
or (d) of Section 10, and other than solely because the Underwriters fail to
perform their obligations hereunder, the Company will reimburse each Underwriter
for all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by it in connection with the offering of the Notes.
12. Notices. All communications hereunder will be in writing and, if sent
to the Representative, will be mailed, delivered or telegraphed and confirmed to
the Representative at ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or to such other address as the
Representative may designate in writing to the Company, or if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to the Company
at Onyx Acceptance Financial Corporation, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq., Senior Vice
President and General Counsel.
13. Successors. This Agreement will inure to the benefit of, and be binding
upon, the parties hereto and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Notes from the
Underwriters shall be deemed to be a successor by reason merely of such
purchase.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
24
25
15. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
16. Severability of Provisions. Any covenant, provisions, agreement or term
of this Agreement that is prohibited or is held to be void or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof.
17. Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties hereto with respect to the matters and transactions
contemplated hereby and supersedes all prior agreements and understandings
whatsoever relating to such matters and transactions.
18. Amendment. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against whom enforcement of the change, waiver, discharge or
termination is sought.
19. Heading. The headings in this Agreement are for the purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
20. The Representative. The Representative will act for the several
Underwriters in connection with the transactions described in this Agreement,
and any action taken by the Representative under this Agreement will be binding
upon all the Underwriters.
21. Defaults of Underwriters. If any Underwriter defaults in its obligation
to purchase the Notes hereunder on the Closing Date and the aggregate principal
amount of the Notes that such defaulting Underwriter agreed but failed to
purchase does not exceed 10% of the total principal amount of the Notes, the
Representative may make arrangements satisfactory to the Representative and the
Company for the purchase of such Notes by other persons, including either of the
Underwriters, but if no such arrangements are made by the Closing Date, the
nondefaulting Underwriter(s) shall be obligated, in proportion to its respective
commitment hereunder, to purchase the Notes that such defaulting Underwriter
agreed but failed to purchase. If an Underwriter so defaults and the aggregate
principal amount of the Notes with respect to such default exceeds 10% of the
total principal amount of the Notes and arrangements satisfactory to the
Representative and the Company for the purchase of such Notes by other persons
are not made within 24 hours after such default, this Agreement will terminate
without liability on the part of the nondefaulting Underwriter or the Company,
except as provided in Section 11. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
25
26
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate thereof, whereupon it will
become a binding agreement among the undersigned in accordance with its terms.
Very truly yours,
ONYX ACCEPTANCE FINANCIAL
CORPORATION
By:
------------------------------
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Credit Suisse First Boston Corporation
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.,
as Representative
-------------------------------
Name:
Title:
26
27
EXHIBIT A-1
The information herein is preliminary, and will be superseded by the
applicable prospectus and prospectus supplement and by any other information
subsequently filed with the Securities and Exchange Commission. The information
addresses only certain aspects of the applicable security's characteristics and
thus does not provide a complete assessment. As such, the information may not
reflect the impact of all structural characteristics of the security. The
assumptions underlying the information, including structure and collateral, may
be modified from time to time to reflect changed circumstances. The attached
term sheet is not intended to be a prospectus or prospectus supplement and any
investment decision with respect to the Notes should be made by you based solely
upon all of the information contained in the final prospectus and the final
prospectus supplement. Under no circumstances shall the information presented
constitute an offer to sell or the solicitation of an offer to buy nor shall
there be any sale of the securities in any jurisdiction in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of such jurisdiction. The securities may not be sold
nor may an offer to buy be accepted prior to the delivery of a final prospectus
and final prospectus supplement relating to the securities. All information
described herein is preliminary, limited in nature and subject to completion or
amendment. No representation is made that the above referenced securities will
actually perform as described in any scenario presented. A final prospectus and
final prospectus supplement may be obtained by contacting the ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Syndicate Desk at (▇▇▇) ▇▇▇-▇▇▇▇.
27
28
EXHIBIT A-2
The information herein is preliminary, and will be superseded by the
applicable prospectus and prospectus supplement and by any other information
subsequently filed with the Securities and Exchange Commission. The information
addresses only certain aspects of the applicable security's characteristics and
thus does not provide a complete assessment. As such, the information may not
reflect the impact of all structural characteristics of the security. The
assumptions underlying the information, including structure and collateral, may
be modified from time to time to reflect changed circumstances. The attached
term sheet is not intended to be a prospectus or prospectus supplement and any
investment decision with respect to the Notes should be made by you based solely
upon all of the information contained in the final prospectus and the final
prospectus supplement. Under no circumstances shall the information presented
constitute an offer to sell or the solicitation of an offer to buy nor shall
there be any sale of the securities in any jurisdiction in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of such jurisdiction. The securities may not be sold
nor may an offer to buy be accepted prior to the delivery of a final prospectus
and final prospectus supplement relating to the securities. All information
described herein is preliminary, limited in nature and subject to completion or
amendment. No representation is made that the above referenced securities will
actually perform as described in any scenario presented. A final prospectus and
final prospectus supplement may be obtained by contacting the Credit Suisse
First Boston Trading Desk at (▇▇▇) ▇▇▇-▇▇▇▇.
28
29
SCHEDULE I
OFFERED SECURITY PRINCIPAL AMOUNT
---------------- ----------------
Class A-1 Notes
Purchase Price: 99.85000%
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. $39,000,000
Credit Suisse First Boston Corporation $39,000,000
Class A-2 Notes
Purchase Price: 99.75152%
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. $48,000,000
Credit Suisse First Boston Corporation $48,000,000
Class A-3 Notes
Purchase Price: 99.72216%
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. $65,500,000
Credit Suisse First Boston Corporation $65,500,000
Class A-4 Notes
Purchase Price: 99.69481%
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. $47,500,000
Credit Suisse First Boston Corporation $47,500,000
29