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As filed with the Securities and Exchange Commission on April 30, 1998
REGISTRATION NO. 333-51239
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ONYX ACCEPTANCE AUTO LOAN TRUSTS
(Issuer with respect to the Securities)
ONYX ACCEPTANCE FINANCIAL CORPORATION
(Originator of the Trusts described herein)
(Exact name of Registrant as specified in its charter)
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DELAWARE 9999 33-0639768
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
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8001 IRVINE CENTER DRIVE, 6TH FLOOR
IRVINE, CALIFORNIA 92618
(949) 450-5500
(Address, including zip code, and telephone number,
including area code, of Originator's principal executive offices)
REGAN E. KELLY
EXECUTIVE VICE PRESIDENT
8001 IRVINE CENTER DRIVE, 5TH FLOOR
IRVINE, CALIFORNIA 92618
(949) 450-5509
(Name, address, including zip code, and telephone number,
including area code, of agent for service with respect to
the Registrant)
COPIES TO:
DAVID A. ALLEN, ESQ.
ANDREWS & KURTH L.L.P.
1717 MAIN STREET, SUITE 3700
DALLAS, TEXAS 75201
(214) 659-4433
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.[X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] __________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. [ ] ________________
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Amount of
Proposed Title of Securities to Offering Price Per Maximum Aggregate Registration
be Registered Amount to Be Registered Unit(1) Offering Price(1) Fee(2)
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Auto Loan Backed Notes and
Auto Loan Pass-Through
Certificates $1,000,000 100% $1,000,000 $295
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(1) Estimated solely for the purpose of calculating the registration fee on the
basis of the proposed maximum offering price per unit.
(2) Previously paid to the Commission on April 28, 1998 in connection with the
filing of the Registration Statement.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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PART II - INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION*
The following is an itemized list of the estimated expenses to be
incurred in connection with the offering of the securities being offered
hereunder other than underwriting discounts and commissions.
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Registration Fee....................................................... $ 295
Blue Sky Fees and Expenses............................................. **
Printing Expenses...................................................... **
Trustee Fees and Expenses.............................................. **
Legal Fees and Expenses................................................ **
Accounting Fees and Expenses........................................... **
Rating Agencies' Fees.................................................. **
Miscellaneous.......................................................... **
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Total........................................................ $ **
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* All amounts except registration fee are estimates.
** To be provided by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law ("DELAWARE
LAW") Onyx Acceptance Financial Corporation (the "COMPANY") has broad powers to
indemnify its directors and officers against liabilities they may incur in such
capacities, including liabilities under the Securities Act of 1933, as amended
(the "SECURITIES ACT"). The Company's Bylaws (the "BYLAWS") provide that the
Company shall indemnify its directors and officers to the fullest extent
permitted by law and requires the Company to advance litigation expenses upon
receipt by the Company of an undertaking by the director or officer to repay
such advances if it is ultimately determined that the director is not entitled
to indemnification. The Bylaws further provide that rights conferred under such
Bylaws shall not be deemed to be exclusive of any other right such persons may
have or acquire under any bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
The Certificate of Incorporation (the "CERTIFICATE OF INCORPORATION")
provides that, pursuant to Delaware Law, its directors shall not be liable for
monetary damages for breach of the directors' fiduciary duty of care to the
Company and its stockholders. This provision in the Certificate of Incorporation
does not eliminate the duty of care, and in appropriate circumstances equitable
remedies such as injunctive or other forms of non-monetary relief will remain
available under Delaware Law. In addition, each director will continue to be
subject to liability for breach of the director's duty of loyalty to the Company
for acts or omissions not in good faith or involving intentional misconduct, for
knowing violations of law, for actions leading to improper personal benefits to
the director, and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware Law. The provision also does not
affect a director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws. The Certificate of
Incorporation further provides that the Company shall indemnify its directors
and officers to the fullest extent permitted by law, and requires the Company to
advance litigation expenses in the case of stockholder derivative actions or
other actions, against an undertaking by the director to repay such advances if
it is ultimately determined that the director is not entitled to
indemnification. The Certificate of Incorporation also provides that rights
conferred under such Certificate of Incorporation shall not be deemed to be
exclusive of any other right such persons may have or acquire under any statute,
the Certificate of Incorporation, the Bylaws, agreement, vote of stockholders or
disinterested directors, or otherwise.
The Company has acquired a directors' and officers' liability
insurance policy that, subject to the terms and conditions of the policy,
insures the directors and officers of the Company against losses arising from
any wrongful act (as defined by the policy) in his or her capacity as a director
or officer. The policy reimburses the Company for amounts
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which the Company lawfully indemnifies or for which it is required or permitted
by law to indemnify its directors and officers.
In addition, the Company has entered into agreements to indemnify its
directors and certain of its officers in addition to indemnification provided
for in the Certificate of Incorporation and Bylaws. These agreements will, among
other things, indemnify the Company's directors and certain of its officers for
certain expenses (including attorneys' fees), judgments, fines and settlement
amounts incurred by such person in any action or proceeding, including any
action by or in the right of the Company, on account of services as a director
or officer of the Company or as a director or officer of any subsidiary of the
Company, or as a director or officer of any other company or enterprise that the
person provides services to at the request of the Company.
The Underwriting Agreement provides for indemnification by the
Company of the Underwriter, for certain liabilities rising under the Securities
Act or otherwise. It also provides, in certain limited instances, for
indemnification by the Underwriter of the Company with respect to information
furnished by or on behalf of the Underwriter that are contained in this
prospectus or included as part of this Registration Statement.
[Remainder of Page Intentionally Left Blank]
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ITEM 16. EXHIBITS AND FINANCIAL STATEMENTS
a. Exhibits:
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**1.1 Form of Underwriting Agreement
**4.1 Form of Trust Agreement between the Registrant, the
Servicer and the Owner Trustee
**4.2 Form of Indenture between the Trust and the Indenture
Trustee
***4.3 Form of Sale and Servicing Agreement among the
Registrant, the Servicer and the Owner Trustee
**4.4 Form of Pooling and Servicing Agreement among the
Registrant, the Servicer and the Trustee
**4.5 Form of Administration Agreement among the Trust, the
Administrator and the Indenture Trustee
**5.1(a) Opinion of Andrews & Kurth L.L.P. with respect to
legality of Notes
**5.1(b) Opinion of Andrews & Kurth L.L.P. with respect to
legality of Certificates
*8.1 Opinion of Andrews & Kurth L.L.P. with respect to tax
matters
**23.1 Consent of Andrews & Kurth L.L.P. (included as part of
Exhibits 5.1(a) and 5.1(b))
*23.2 Consent of Andrews & Kurth L.L.P. (included as part of
Exhibit 8.1)
**24.1 Power of Attorney of Directors and Officers of the
Registrant.
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* Filed herewith.
** Previously filed.
*** To be filed by amendment.
ITEM 17. UNDERTAKINGS
(a) As to Rule 415:
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made of the securities registered
hereby, a post-effective amendment to this registration
statement:
(i) to include any prospectus required
by Section 10(a)(3) of the Securities Act of
1933, as amended;
(ii) to reflect in the prospectus any
facts or events arising after the effective date
of this registration statement (or the most
recent post-effective amendment hereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in this registration statement; and
(iii) to include any material
information with respect to the plan of
distribution not previously disclosed in this
registration statement or any material change to
such information in this registration statement.
Provided, however, that the undertakings set
forth in clauses (i) and (ii) above do not apply if the
information required to be included in a post-effective
amendment by those clauses is contained in periodic
reports filed by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934,
as amended, that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, as amended,
each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities
offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
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(b) As to documents subsequently filed that are incorporated by
reference:
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, as amended, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange
Act of 1934, as amended, that is incorporated by reference in this
registration statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering
of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) As to indemnification:
Insofar as indemnification for liabilities arising under
the Securities Act of 1933, as amended, may be permitted to
directors, officers and controlling persons of the registrant
pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act of 1933, as amended,
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in such
Securities Act of 1933, as amended, and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment
No. 1 to Registration Statement No. 333-51239 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Irvine, State of
California, on April 30, 1998.
Onyx Acceptance Financial Corporation
By: JOHN W. HALL*
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John W. Hall
Director, President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to Registration Statement No. 333-51239 has been signed by the
following persons in the capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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JOHN W. HALL* President and Chief April 30, 1998
- -------------------------------------- Executive Officer, Director
John W. Hall (Principal Executive Officer)
DON P. DUFFY* Executive Vice President April 30, 1998
- -------------------------------------- and Chief Financial Officer,
Don P. Duffy Director (Principal Financial
and Accounting Officer)
/s/ REGAN E. KELLY Executive Vice President, April 30, 1998
- -------------------------------------- Director
Regan E. Kelly
KURT C. BICKNELL* Director April 30, 1998
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Kurt C. Bicknell
STEVE M. BOND* Director April 30, 1998
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Steve M. Bond
* By: /s/ REGAN E. KELLY
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Regan E. Kelly
Attorney-in-fact
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
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**1.1 Form of Underwriting Agreement
**4.1 Form of Trust Agreement between the Registrant, the
Servicer and the Owner Trustee
**4.2 Form of Indenture between the Trust and the Indenture
Trustee
***4.3 Form of Sale and Servicing Agreement among the
Registrant, the Servicer and the Owner Trustee
**4.4 Form of Pooling and Servicing Agreement among the
Registrant, the Servicer and the Trustee
**4.5 Form of Administration Agreement among the Trust, the
Administrator and the Indenture Trustee
**5.1(a) Opinion of Andrews & Kurth L.L.P. with respect to
legality of Notes
**5.1(b) Opinion of Andrews & Kurth L.L.P. with respect to
legality of Certificates
*8.1 Opinion of Andrews & Kurth L.L.P. with respect to tax
matters
**23.1 Consent of Andrews & Kurth L.L.P. (included as part of
Exhibits 5.1(a) and 5.1(b))
*23.2 Consent of Andrews & Kurth L.L.P. (included as part of
Exhibit 8.1)
**24.1 Power of Attorney of Directors and Officers of the
Registrant.
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* Filed herewith.
** Previously filed.
*** To be filed by amendment.
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EXHIBIT 8.1
[LETTERHEAD OF ANDREWS & KURTH L.L.P.]
April 28, 1998
Onyx Acceptance Financial Corporation
8001 Irvine Center Drive, 6th Floor
Irvine, California 92618
Re: Onyx Acceptance Financial Corporation
Registration Statement on Form S-3 (the "Registration Statement")
Ladies and Gentlemen:
We have acted as counsel for Onyx Acceptance Financial Corporation, a
corporation organized under the laws of the State of Delaware (the "Company"),
and certain trusts, all of the beneficial ownership of which will be initially
owned by the Company (together with the Company, each an "Issuer"), in
connection with the proposed issuance by the Issuer of its Auto Loan Pass-
Through Certificates (the "Pass-Through Certificates") or its Auto Loan Backed
Notes (the "Notes"). The Pass-Through Certificates of a series are to be issued
pursuant to a Pooling and Servicing Agreement or a Sale and Servicing Agreement,
between the Issuer, the administrator (the "Administrator") and the trustee (the
"Trustee") authorizing such series. The Pooling and Servicing Agreement and the
Sale and Servicing Agreement, each in the form filed with the Securities and
Exchange Commission as an exhibit to the Registration Statement, are herein
referred to as the "Agreement." The Notes are to be issued pursuant to the
Indenture for each series, each between the applicable Issuer and the Indenture
Trustee (as defined therein). The form of the Indenture filed as an exhibit to
the Registration Statement is herein referred to as the "Indenture."
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of the Issuer's organizational documents, the form of
Agreement and the form of Pass-Through Certificates included therein, the form
of Indenture and form of Notes included therein and such other documents,
records, certificates of the Issuer and public officials and other instruments
as we have deemed necessary for the purposes of rendering this opinion. In
addition, we have assumed that the Agreement as completed for each series will
be duly executed and delivered by each of the parties thereto; that the
Pass-Through Certificates as completed for each series will be duly executed and
delivered substantially in the forms contemplated by the Agreement; and that the
Pass-Through Certificates for each series will be sold as described in the
Registration Statement. We have also assumed that the Indenture as completed for
each series will be duly executed and delivered by each of the parties thereto;
that the Notes as completed for each series will be duly executed and delivered
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Onyx Acceptance Financial Corporation
April 28, 1998
Page 2
substantially in the forms contemplated by the Indenture; and that the Notes for
each series will be sold as described in the Registration Statement.
On the basis of the foregoing and subject to the limitations and
qualifications set forth below, we are of the opinion that the description of
federal income tax consequences appearing under the heading "Certain Federal
Income Tax Consequences" in the prospectus contained in the Registration
Statement accurately describes the material federal income tax consequences to
holders of Pass-Through Certificates or Notes, as applicable, under existing
law and subject to the qualifications and assumptions stated therein.
The opinion herein is based upon our interpretations of current law,
including court authority and existing Final and Temporary Regulations, which
are subject to change both prospectively and retroactively, and upon the facts
and assumptions discussed herein. This opinion letter is limited to the matters
set forth herein, and no opinions are intended to be implied or may be inferred
beyond those expressly stated herein. Our opinion is rendered as of the date
hereof and we assume no obligation to update or supplement this opinion or any
matter related to this opinion to reflect any change of fact, circumstances, or
law after the date hereof. In addition, our opinion is based on the assumption
that the matter will be properly presented to the applicable court. Furthermore,
our opinion is not binding on the Internal Revenue Service or a court. In
addition, we must note that our opinion represents merely our best legal
judgment on the matters presented and that others may disagree with our
conclusion. There can be no assurance that the Internal Revenue Service will not
take a contrary position or that a court would agree with our opinion if
litigated.
We consent to the use and filing of this opinion as Exhibit 8.1 to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus Supplement and Prospectus contained therein. In
giving such consent we do not imply or admit that we are within the category of
persons whose consent is required under Section 7 of the 1933 Act or the rules
and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ ANDREWS & KURTH L.L.P.
