1
EXHIBIT 1.2
$________________
ACC CONSUMER FINANCE CORPORATION
____% Automobile Receivables Backed Certificates
UNDERWRITING AGREEMENT
_________ __ , 19__
[NAME AND ADDRESS OF UNDERWRITER]
Dear Sirs:
1. Introduction. ACC Auto Finance Corporation, a Delaware
corporation ("ACC"), has authorized the issuance and sale of______% Automobile
Receivables Backed Certificates, (the "Certificates"), evidencing interests in a
trust (the "Trust") consisting of a combination of retail installment sales
contracts (the "Receivables") secured by new and used automobiles and light duty
trucks (the "Vehicles") financed thereby, amounts due or received thereunder on
or after _____ __, 199__, (the "Cut-Off Date"), and security interests in the
Vehicles financed thereby. The Certificates will be issued under a Pooling and
Servicing Agreement dated as of ______ __, 199__ (the "Pooling Agreement")
between ________________________________________, as seller,
_____________________________________, as issuer, ACC Auto Finance Corporation,
in its individual capacity, _________________________ as Back-up Servicer and
______________________________________ , as trustee (the "Trustee").
The Certificates will evidence fractional undivided interests
in the Trust. [The Trustee, on behalf of the holders of the Certificates (the
"Certificateholders"), will have the benefit of a cash collateral account (the
"Cash Collateral Account")]. The Certificates will be issued in an aggregate
principal amount of $_______, which is equal to the original pool balance of the
Receivables, exclusive of accrued interest, as of the opening of business on the
Cut-Off Date. The forms of the Pooling Agreement and the Cash Collateral Trust
Agreement (as such term is hereinafter defined) have been timely filed as
exhibits to the Registration Statement (as such term is hereinafter defined).
Capitalized terms used but not defined herein shall have the meanings given to
them in the Pooling Agreement.
2
The Trustee, _________________________________, as cash
collateral trustee (the "Cash Collateral Trustee"), ______________, and a
financial institution as cash collateral depositor (the "Cash Collateral
Depositor"), will enter into a cash collateral trust agreement to be dated as of
_____ __, 199__ (the "Cash Collateral Trust Agreement") pursuant to which the
Cash Collateral Account will be established for the benefit of the Trustee and
the Cash Collateral Depositor, as secured parties. In addition, _____________,
the Cash Collateral Trustee, the lenders named therein and the Cash Collateral
Depositor will enter into a loan agreement to be dated as of the Closing Date
(the "Loan Agreement"), pursuant to which the Cash Collateral Depositor and the
Bank will deposit the Initial Cash Collateral Amount (as defined in the Cash
Collateral Trust Agreement) into the Cash Collateral Account.
ACC hereby agrees with the Underwriter named in Schedule 1
hereto (the "Underwriter") as follows:
2. Representations and Warranties of ACC. ACC represents and
warrants to, and agrees with, each of the Underwriters that:
(a) A Registration Statement on Form S-3 (No. 33- _______)
relating to the Certificates, including a form of Prospectus, has been filed
with the Securities and Exchange Commission (the "Commission") and either (i)
has been declared effective under the Act of 1933 (the "Act") and is not
proposed to be amended or (ii) is proposed to be amended by amendment or
post-effective amendment. If ACC does not propose to amend such Registration
Statement or if any post-effective amendment to such Registration Statement has
been filed with the Commission prior to the execution and delivery of this
Agreement, such Registration Statement or such post-effective amendment, as the
case may be, has been declared effective by the Commission. For purposes of this
Agreement, "Effective Time" means (i) if ACC has advised the Underwriter that it
does not propose to amend such Registration Statement, the date and time as of
which such Registration Statement, or the most recent post-effective amendment
thereto (if any) filed prior to the execution and delivery of this Agreement,
was declared effective by the Commission, or (ii) if ACC has advised the
Underwriter that it proposes to file an amendment or post-effective amendment to
such Registration Statement, the date and time as of which such Registration
Statement, as amended by such amendment or post-effective amendment, as the case
may be, is declared effective by the Commission. "Effective Date" means the date
of the Effective Time. Such Registration Statement, as amended at the Effective
Time, including all material incorporated by reference therein and including all
information, if any, deemed to be a part of such Registration Statement as of
the Effective Time pursuant to Rule 430A(b) under the Act, is referred to herein
as the
2
3
"Registration Statement", and the form of prospectus relating to the
Certificates, as first filed with the Commission pursuant to and in accordance
with Rule 424(b) under the Act or, if no such filing is required, as included in
the Registration Statement, including all material incorporated by reference in
such prospectus, is hereinafter referred to as the "Prospectus".
(b) If the Effective Time is prior to the execution and
delivery of this Agreement: (i) on the Effective Date, the Registration
Statement conformed, and on the date of this Agreement the Registration
Statement conforms, in all material respects with the requirements of the Act
and the rules and regulations of the Commission ("Rules and Regulations") and
did not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and (ii) on the date of this Agreement, the Prospectus
conforms, and at the time of filing of the Prospectus pursuant to Rule 424(b)
and at the Closing Date, the Prospectus will conform, in all material respects
to the requirements of the Act and the Rules and Regulations, and the Prospectus
does not include and does not omit, and will not include, any untrue statement
of a material fact, and does not omit, to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. If the Effective Time is subsequent to the
execution and delivery of this Agreement: on the Effective Date, the
Registration Statement and the Prospectus will conform in all material respects
to the requirements of the Act and the Rules and Regulations, and (i) the
Registration Statement will not include any untrue statement of a material fact
or will not omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and (ii) the Prospectus
will not include an untrue statement of a material fact or will not 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. The two
preceding sentences do not apply to statements in or omissions from the
Registration Statement or Prospectus based upon written information furnished to
ACC by the Underwriter specifically for use therein, it being understood the
only such information is that described as such in Section 8(b). The conditions
to the use by ACC of a Registration Statement on Form S-3 under the Act, as set
forth in the General Instructions to Form S-3, have been satisfied with respect
to the Registration Statement and the Prospectus. There are no contracts or
documents which are required to be filed as exhibits to the Registration
Statement pursuant to the Act or the Rules and Regulations which have not been
so filed on or prior to the Effective Date.
3
4
(c) Since the respective dates as of which information is
given in the Prospectus, or the Prospectus as amended and supplemented, there
has not been any material adverse change in the general affairs, management, or
results of operations of ACC or of its subsidiaries otherwise than as set forth
or contemplated in the Prospectus or the Prospectus as amended and supplemented,
nor has there been any adverse change in the general affairs, management, or
results of operations of any other affiliate of ACC which could have a material
adverse effect on the general affairs, management or results of operations of
ACC or its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus or the Prospectus as amended and supplemented.
(d) ACC is a corporation duly organized and validly existing
under the laws of the State of Delaware, and has full corporate power, authority
and legal right to own its properties and conduct its business as such
properties are presently owned and such business is presently conducted, and to
execute, deliver and perform its obligations under this Agreement, the Pooling
Agreement, the Cash Collateral Trust Agreement, and the Loan Agreement, and to
cause the Certificates to be issued. ACC has conducted and is conducting its
business so as to comply in all material respects with all applicable statutes
and regulations. ACC is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification.
(e) (i) There are no legal, governmental or regulatory
proceedings pending to which ACC is a party or to which any of its property is
the subject, which, if determined adversely to ACC, would individually or in the
aggregate have a material adverse effect on the performance by ACC of this
Agreement, the Pooling Agreement, the Loan Agreement or the Cash Collateral
Trust Agreement or the consummation of the transactions contemplated hereunder
or thereunder and (ii) to the best of its knowledge, no such proceedings are
threatened or contemplated by governmental or regulatory authorities or
threatened by others.
(f) This Agreement has been duly authorized and validly
executed and delivered by ACC and constitutes a valid and binding agreement of
ACC, enforceable against ACC in accordance with its terms, except to the extent
that (i) the enforceability hereof may be subject to insolvency, reorganization,
moratorium, receivership, conservatorship, or other similar laws, regulations or
procedures of general applicability now or hereafter in effect, (ii) the remedy
of specific performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought and (iii) rights to indemnification
4
5
and contribution under this Agreement may be limited by state or federal
securities laws or the policies underlying such laws.
(g) The Pooling Agreement, the Loan Agreement and the Cash
Collateral Trust Agreement have been duly authorized by ACC and, when executed
and delivered by ACC and assuming the due authorization, execution and delivery
of the Pooling Agreement, the Loan Agreement and the Cash Collateral Trust
Agreement by the other parties thereto, will constitute valid and binding
obligations of ACC enforceable against ACC in accordance with their respective
terms, except to the extent that (i) the enforceability thereof may be subject
to insolvency, reorganization, moratorium, receivership, conservatorship, or
other similar laws, regulations or procedures of general applicability now or
hereafter in effect, and (ii) the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding therefor may be brought.
(h) The issuance and delivery of the Certificates, the
consummation of any other of the transactions contemplated herein, in the
Pooling Agreement, the Loan Agreement, or in the Cash Collateral Trust
Agreement, or the fulfillment of the terms of this Agreement, the Pooling
Agreement, the Loan Agreement or the Cash Collateral Trust Agreement, do not and
will not conflict with or violate any term or provision of the Certificate of
Incorporation By-Laws of ACC, any statute, order or regulation applicable to ACC
of any court, regulatory body, administrative agency or governmental body having
jurisdiction over ACC and do not and will not conflict with, result in a breach
or violation or the acceleration of or constitute a default under or result in
the creation or imposition of any lien, charge or encumbrance upon any of the
property or assets of ACC pursuant to the terms of, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which ACC is a
party or by which ACC may be bound or to which any of the property or assets of
ACC may be subject except for conflicts, violations, breaches, accelerations and
defaults which would not, individually or in the aggregate, be materially
adverse to ACC or materially adverse to the transactions contemplated by this
Agreement.
(i) _______________________________________________ is an
independent public accountant with respect to ACC as required by the Act and the
Rules and Regulations.
(j) The direction by ACC to the Trustee to execute,
countersign, issue and deliver the Certificates has been duly authorized by ACC,
and, assuming the Trustee has been duly authorized to do so, when executed,
countersigned, issued and delivered by the Trustee in accordance with the
Pooling
5
6
Agreement, the Certificates will be validly issued and outstanding and will be
entitled to the benefits of the Pooling Agreement.
(k) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body of the
United States is required for the issuance and sale of the Certificates, or the
consummation by ACC of the other transactions contemplated by this Agreement,
the Pooling Agreement, the Loan Agreement or the Cash Collateral Trust
Agreement, except the registration under the Act of the Certificates and such
consents, approvals, authorizations, registrations or qualifications as may have
been obtained or effected or as may be required under securities or Blue Sky
laws in connection with the purchase and distribution of the Certificates by the
Underwriter.
(l) ACC possesses all material licenses, certificates,
authorizations or permits issued by the appropriate state, Federal or foreign
regulatory agencies or bodies necessary to conduct the business now conducted by
it and as described in the Prospectus and ACC has not received notice of
proceedings relating to the revocation or modification of any such license,
certificate, authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would materially and
adversely affect the conduct of its business, operations, financial condition or
income.
(m) At the time of execution and delivery of the Pooling
Agreement, ACC (i) will not have assigned to any person any of its right, title
or interest in the Receivables or in the Pooling Agreement or the Certificates
and (ii) will have the power and authority to sell the Receivables to the
Trustee and to sell the Certificates to the Underwriter, and upon execution and
delivery of the Pooling Agreement by the Trustee, the Trustee will have acquired
beneficial ownership of all of ACC's right, title and interest in and to the
Receivables, and upon delivery to the Underwriter of the Certificates the
Underwriter will have good and marketable title to the Certificates.
(n) As of the Cut-Off Date, the Receivables will meet the
eligibility criteria described in the Prospectus.
(o) The Trust created by the Pooling Agreement is not, and
immediately following the issuance and sale of the Certificates will not be,
required to be registered as an "investment company" under the Investment
Company Act of 1940, as amended (the "1940 Act"), as in effect on the date
hereof.
6
7
(p) ACC has authorized the conveyance of the Receivables to
the Trust, and ACC has authorized the Trust to issue the Certificates.
(q) Each of the Certificates, the Pooling Agreement and the
Cash Collateral Account conforms in all material respects to the descriptions
thereof contained in the Prospectus.
(r) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this Agreement, the
Pooling Agreement, the Cash Collateral Trust Agreement, the Loan Agreement, the
Cash Collateral Account and the Certificates that are required to be paid by ACC
at or prior to the Closing Date have been paid or will be paid at or prior to
the Closing Date.
(s) ACC will not apply the proceeds of the sale of the
Certificates pursuant to this Agreement to purchase securities (which term does
not include the Receivables) within the meaning of Regulation T promulgated by
the Federal Reserve Board.
(t) As of the Closing Date, the representations and warranties
of ACC in the Pooling Agreement will be true and correct.
Any certificate signed by an officer of ACC and delivered to
the Underwriter or the Underwriter's counsel in connection with an offering of
the Certificates shall be deemed, and shall state that it is, a representation
and warranty as to the matters covered thereby to each person to whom the
representations and warranties in this Section 2 are made.
3. Purchase, Sale, Delivery and Payments. The Underwriter's
commitment to purchase the Certificates pursuant to this Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth. ACC agrees to instruct the Trustee to issue and agrees to sell to the
Underwriter, and the Underwriter, severally and not jointly, agree, to purchase
from ACC at the purchase price for the Certificates set forth opposite the names
of the Underwriter on Schedule 1 hereto, the respective principal amount of
Certificates set forth on Schedule 1 hereto. Payment of the purchase price for,
and delivery of, any Certificates to be purchased by the Underwriter shall be
made at the office of Xxxxx Xxxxxxxxxx, 1301 Avenue of the Americas, New York,
New York, or at such other place as shall be agreed upon by the Underwriter and
ACC, at 10:00 a.m. New York City time on ______ __, 199__ (the "Closing Date"),
or at such other time or date or time as shall be agreed upon in
7
8
writing by the Underwriter and ACC. On the Closing Date, payment shall be made
to ACC by wire transfer of same day funds payable to the account of ACC against
delivery to the Trustee as custodian for The Depository Trust Company ("DTC") of
the Certificates in the form of one or more global securities in definitive form
(the "Global Certificates") and registered in the name of Cede & Co., as nominee
for DTC. The Global Certificates will be made available for checking at Xxxxx
Xxxxxxxxxx at least 24 hours prior to the Closing Date.
4. Offering by Underwriters. It is understood that the
Underwriter propose to offer the Certificates for sale to the public (which may
include selected dealers) as set forth in the Prospectus.
5. Covenants of ACC. ACC covenants with the Underwriter as
follows:
(a) To prepare a Prospectus setting forth any price related
information previously omitted from the effective Registration Statement
pursuant to Rule 430A under the Act within the time period prescribed by Rule
430A, and to transmit such Prospectus to the Commission for filing pursuant to
Rule 424(b) under the Act within the prescribed time period, and prior to the
Closing Date to provide evidence satisfactory to the Underwriter of such timely
filing, or to prepare and timely file a post-effective amendment to the
Registration Statement providing such information, which post-effective
amendment shall have been declared effective in accordance with the requirements
of Rule 430A under the Act and to provide evidence satisfactory to the
Underwriter of the effectiveness thereof.
(b) If at any time when the Prospectus as amended or
supplemented is required by the Act to be delivered in connection with sales of
the Certificates by the Underwriter, any event shall occur or condition exist as
a result of which it is necessary, in the opinion of the Underwriter's counsel
or counsel for ACC, further to amend or supplement the Prospectus as then
amended or supplemented in order that the Prospectus as amended or supplemented
will not 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
circumstances existing at the time it is delivered to a purchaser, not
misleading or if it shall be necessary, in the opinion of any such counsel, at
any such time to amend or supplement the Registration Statement or the
Prospectus as then amended or supplemented in order to comply with the
requirements of the Act or the Rules and Regulations, or if required by such
Rules and Regulations, including Rule 430A thereunder, to file a post-effective
amendment to such Registration Statement (including an amended Prospectus), ACC
will promptly notify the Underwriter of such event and will
8
9
prepare and file with the Commission (subject to the Underwriter's prior
review), at its own expense, such amendment or supplement as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
comply with such requirements, and within two Business Days will furnish to the
Underwriter as many copies of the Prospectus, as amended or supplemented, as the
Underwriter shall reasonably request. Neither the Underwriter's consent to, nor
the Underwriter's delivery of, any such amendment or supplement shall constitute
a waiver of any of the conditions set forth in Section 6 of this Agreement.
(c) ACC will give the Underwriter reasonable notice of its
intention to file any amendment to the Registration Statement, the Prospectus or
the Prospectus as amended or supplemented, pursuant to the Act, and will furnish
the Underwriter with copies of any such amendment or supplement proposed to be
filed a reasonable time in advance of filing, and will not file any such
amendment or supplement to which the Underwriter or the Underwriter's counsel
shall object.
(d) ACC will notify the Underwriter immediately, and confirm
the notice in writing, (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the Commission
for filing of any supplement to the Prospectus or the Prospectus as amended or
supplemented, (iii) of the receipt and contents of any comments from the
Commission with respect to the Registration Statement or the Prospectus or the
Prospectus as amended or supplemented, (iv) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information and (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. ACC will make
every reasonable effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(e) ACC will deliver to the Underwriter as many signed and as
many conformed copies of the Registration Statement (as originally filed) and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference in the Prospectus),
each related preliminary prospectus, and so long as delivery of a Prospectus
relating to the Certificates is required to be delivered under the Act in
connection with sales by the Underwriter or dealer, the Prospectus and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as the Underwriter may reasonably request. ACC will also
furnish to the
9
10
Underwriter copies of any report on Form SR required by Rule 463 under the Act.
(f) ACC will make generally available to holders of the
Certificates as soon as practicable, but in any event not later than the
Availability Date (as defined below), earning statements of the Trust (which
need not be audited) complying with Section 11(a) of the Act and the Rules and
Regulations (including Rule 158) and covering a period of at least twelve
consecutive months beginning after the Effective Date which will satisfy the
provisions of Section 11(a) of the Act. For the purposes of the preceding
sentence, the "Availability Date" means the 45th day after the end of the
Trust's fourth fiscal quarter following the fiscal quarter that includes the
Effective Date, except that, if such fourth fiscal quarter is the last quarter
of the Trust's fiscal year, "Availability Date" means the 90th day after the end
of such fourth fiscal quarter.
(g) ACC will endeavor, in cooperation with the Underwriter, to
qualify the Certificates for sale and the determination of their eligibility for
investment under the applicable securities laws of such states and other
jurisdictions of the United States as the Underwriter may designate, and will
maintain or cause to be maintained such qualifications in effect for as long as
may be required for the distribution of the Certificates. ACC will file or cause
the filing of such statements and reports as may be required by the laws of each
jurisdiction in which the Certificates have been qualified as above provided.
(h) ACC will not, directly or indirectly, without the
Underwriter's prior consent, publicly offer or sell or contract to sell or
attempt to offer, sell or dispose of any certificates or other similar
securities representing interests in or secured by the Receivables for a period
of 30 days following the commencement of the offering of the Certificates to the
public.
(i) For a period from the date of this agreement until the
retirement of the Certificates, ACC Consumer Finance Corporation, as Servicer,
will deliver to the Underwriter, as soon as practicable, copies of each
certificate, report or notice and the annual statements of compliance delivered
by ACC Consumer Finance Corporation, as Servicer, to the Trustee pursuant to
Section ______ of the Pooling Agreement, the annual statement of a firm of
independent public accountants furnished to the Trustee pursuant to Section
__________ of the Pooling Agreement; and such other information concerning the
Receivables, ACC Financial Services, Inc. or the Certificates, as the
Underwriter may from time to time reasonably request.
10
11
(j) On or before the Closing Date, ACC shall furnish or make
available to the Underwriter or its counsel such additional documents and
information regarding ACC Financial Services, Inc. and its affairs as the
Underwriter may from time to time reasonably request, including any and all
documentation reasonably requested in connection with their due diligence
efforts regarding information in the Prospectus and in order to evidence the
accuracy or completeness of any of the conditions contained in this Agreement.
(k) So long as any Note is outstanding, ACC shall furnish to
the Underwriter by first-class mail as soon as practicable, all documents (A)
distributed, or caused to be distributed, by ACC to Certificateholders, (B)
filed, or caused to be filed, by ACC with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), (C) any order
of the Commission under the Exchange Act or pursuant to a "no-action" letter
from the staff of the Commission and (D) from time to time, such other
information in the possession of ACC concerning the Trust as the Underwriter may
reasonably request.
(l) ACC shall apply the net proceeds from the sale of the
Certificates in the manner set forth in the Prospectus.
(m) If, between the date hereof or, if earlier, the dates as
of which information is given in the Prospectus and the Closing Date, to the
knowledge of ACC there shall have been any material change, or any development
involving a prospective material change in or affecting the general affairs,
management, financial position, shareholders' equity or results of operations of
ACC, ACC will give prompt written notice thereof to the Underwriter.
(n) To the extent, if any, that any rating provided with
respect to the Certificates set forth in Section 6(j) hereof is conditional upon
the furnishing of documents reasonably available to ACC or the taking of any
other reasonable actions by ACC, ACC shall furnish such documents or take any
such other actions.
6. Conditions of the Obligations of the Underwriter. The
obligations of the Underwriter to purchase the Certificates pursuant to this
Agreement are subject to the accuracy on and as of the Closing Date of the
representations and warranties on the part of ACC herein contained, to the
accuracy of the statements of officers of ACC made pursuant hereto, to the
performance by ACC of all of its obligations hereunder and to the following
conditions at the Closing Date:
11
12
(a) The Underwriter shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time is prior to the execution
and delivery of this Agreement, shall be on or prior to the date of this
Agreement or, if the Effective Time is subsequent to the execution and delivery
of this Agreement, shall be prior to the filing of the amendment or
post-effective amendment to the Registration Statement to be filed shortly prior
to the Effective Time), from ______________________________________, in form
and substance satisfactory to the Underwriter and counsel for the Underwriter,
confirming that they are independent public accountants within the meaning of
the Act and the applicable published Rules and Regulations thereunder and
stating in effect that (i) they have performed certain specified procedures as a
result of which they have determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial or
statistical information derived from the general accounting records of the Trust
and ACC set forth in the Registration Statement and the Prospectus), agrees with
the accounting records of the Trust and ACC, excluding any questions of legal
interpretation, and (ii) they have performed certain specified procedures with
respect to the computer programs used to select the Receivables and to generate
information with respect to the Receivables set forth in the Registration
Statement and the Prospectus.
For purposes of this subsection (a), if the Effective Time is
subsequent to the execution and delivery of this Agreement, "Registration
Statement" shall mean the registration statement as proposed to be amended by
the amendment or post-effective amendment to be filed shortly prior to the
Effective Time, and "Prospectus" shall mean the prospectus included in such
Registration Statement. All financial statements included in material
incorporated by reference into the Prospectus shall be deemed included in the
Registration Statement for purposes of this subsection (a).
(b) If the Effective Time is not prior to the execution and
delivery of this Agreement, the Effective Time shall have occurred not later
than 10:00 p.m., New York time, on the date of this Agreement or such later date
as shall have been consented to by the Underwriter. If the Effective Time is
prior to the execution and delivery of this Agreement, the Prospectus shall have
been filed with the Commission in accordance with the Rules and Regulations and
Section 5(a) of this Agreement.
(c) The Registration Statement shall have been declared
effective by the Commission and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the Act or proceedings
therefor initiated or threatened by the Commission, any price-related
information previously omitted from the effective Registration
12
13
Statement pursuant to Rule 430A under the Act shall have been included in the
Prospectus and transmitted to the Commission for filing pursuant to Rule 424
under the Act within the prescribed time period, and ACC shall have provided
evidence satisfactory to the Underwriter of such timely filing, or a
post-effective amendment to the Registration Statement providing such
information shall have been promptly filed with the Commission and declared
effective in accordance with the requirements of Rule 430A under the Act, and
prior to the Closing Date, ACC shall have provided evidence satisfactory to the
Underwriter of such effectiveness and there shall not have come to the attention
of the Underwriter facts that would cause the Underwriter to believe that the
Prospectus, at the time it was required to be delivered to a purchaser of the
Certificates, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing at such time, not misleading.
(d) The Underwriter shall have received the favorable opinion,
dated the Closing Date, of __________________________________, counsel to ACC,
or other counsel to ACC, acceptable to the Underwriter and its counsel,
addressed to the Underwriter and in form and scope satisfactory to the
Underwriter's counsel, to the effect that:
i) ACC has been duly incorporated and is
validly existing as a corporation under the laws of the State of
Delaware and has full corporate power and authority to own its
properties and conduct its business as described in the Prospectus; ACC
has full corporate power and authority to execute, deliver, and perform
its obligations under this Agreement, the Pooling Agreement, the Loan
Agreement, and the Cash Collateral Trust Agreement and to cause the
Certificates to be issued and to consummate the transactions
contemplated hereby and thereby.
ii) ACC has duly authorized and executed
this Agreement, the Pooling Agreement, the Loan Agreement and the Cash
Collateral Trust Agreement and each such agreement constitutes the
valid, legal and binding obligation of ACC enforceable against ACC in
accordance with its terms.
iii) The execution and delivery, and
performance of the Pooling Agreement, the Cash Collateral Trust
Agreement, this Agreement, the transfer of the Receivables to the
Trust, the issuance and sale of the Certificates and consummation of
any other of the transactions contemplated herein or in the Pooling
Agreement do not conflict with or result in a violation of (a) any law
or regulation of the United States of
13
14
America or the State of New York or Delaware, (b) the Certificate of
Incorporation or By-laws of ACC, (c) any order, writ, judgment or
decree known to such counsel to which ACC is a party or is subject, or
(d) result in any lien, charge or encumbrance upon any of the
properties or assets of ACC.
iv) The Certificates have been duly
authorized and, when executed and authenticated in accordance with the
terms of the Pooling Agreement and delivered to and paid for by the
Underwriter pursuant to this Agreement, will be duly and validly issued
and outstanding and will be entitled to the benefits of the Pooling
Agreement.
v) No consent, approval or authorization
of, or registration, declaration or filing with, any court or
governmental agency or body of the United States of America is required
for the issuance of the Certificates and the sale of the Certificates
to the Underwriter or the consummation of the other transactions
contemplated by this Agreement, the Pooling Agreement, the Loan
Agreement, or the Cash Collateral Trust Agreement except for (x) the
filing of a Uniform Commercial Code financing statement in the State of
_________ with respect to the transfer of the Receivables to the Trust,
(y) such as have been obtained and made under the Act and (z) such as
may be required under state securities laws.
vi) The Registration Statement was declared
effective under the Act as of the date and time specified in such
opinion, the Prospectus either was filed with the Commission pursuant
to the subparagraph of Rule 424(b) specified in such opinion on the
date specified therein or was included in the Registration Statement
(as the case may be), and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been instituted or is pending or
contemplated under the Act, and the Registration Statement and the
Prospectus, and each amendment or supplement thereof, as of their
respective effective or issue dates, complies as to form in all
material respects with the requirements of the Act and the Rules and
Regulations; such counsel have no reason to believe that the
Registration Statement or any amendment thereto, as of its Effective
Date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Registration
Statement as of the Closing Date, or the Prospectus, as of its issue
date or as of such Closing Date, contained any untrue statement of a
14
15
material fact or omitted to state any material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; it being understood that such
counsel need express no opinion as to the financial statements or other
financial data contained in the Registration Statement or the
Prospectus.
vii) The conditions to the use by ACC of a
registration statement on Form S-3 under the Act, as set forth in the
General Instructions to Form S-3, have been satisfied with respect to
the Registration Statement and the Prospectus. There are no contracts
or documents of ACC which are required to be filed as exhibits to the
Registration Statement pursuant to the Act or the Rules and Regulations
thereunder which have not been so filed.
viii) There are no actions, proceedings or
investigations pending or threatened before any court, administrative
agency or other tribunal to which ACC is a named party or to which its
assets are subject (A) asserting the invalidity of the Pooling
Agreement, the Loan Agreement, the Cash Collateral Trust Agreement,
this Agreement or the Certificates, (B) seeking to prevent the issuance
of the Certificates or the consummation by ACC of any of the
transactions contemplated by the Pooling Agreement, the Loan Agreement,
the Cash Collateral Trust Agreement or this Agreement, (C) that might
adversely affect the validity or enforceability of the Pooling
Agreement, the Loan Agreement, the Cash Collateral Trust Agreement,
this Agreement or the Certificates, or (D) seeking to adversely affect
the federal income tax attributes of the Certificates as described in
the Prospectus under the heading "Certain Federal Income Tax
Consequences."
ix) The Registration Statement at the time
it became effective, and any amendment thereto at the time such
amendment became effective, complied as to form in all material
respects with the applicable requirements of the Act and the Rules and
Regulations.
x) The Pooling Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as
amended.
xi) The Trust is not required to be
registered under the 1940 Act, and immediately following the issuance
and sale of the Certificates in the manner contemplated by the Pooling
Agreement and this Agreement, the Trust will not be required to be so
registered.
15
16
xii) The Certificates, this Agreement, the
Pooling Agreement and the Cash Collateral Account conform in all
material respects to the respective descriptions thereof in the
Registration Statement and the Prospectus.
xiii) The statements in the Prospectus under
the heading "Certain Legal Aspects of the Receivables," "SUMMARY OF
TERMS -- Certain Legal Aspects of the Receivables," "SUMMARY OF TERMS
-- Certain Federal Tax Considerations," "Certain Federal Income Tax
Consequences," "ERISA Considerations," and "SPECIAL CONSIDERATIONS --
Certain Legal Aspects," 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.
xiv) No filing or other action, except the
filing of a Uniform Commercial Code financing statement on Form UCC-1
with the ______________ [State Department of Assessments and Taxation]
naming ACC as "debtor" and the Trustee as "secured party," is necessary
to perfect the transfer of the Receivables and proceeds (as defined in
Section 9-306 of the ________________ Uniform Commercial Code) thereof
against the claims of creditors of, and transferees from, ACC.
xv) The Receivables constitute "chattel paper"
as defined in Section 9-105 of the Uniform Commercial Code as in effect
in the State of _______.
In addition, such counsel shall state that nothing has come to
their attention that would lead them to believe that the Registration Statement,
at the time it became effective, 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 and as of the Closing Date, contains an untrue statement of a
material fact 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.
(e) The Underwriter shall have received the favorable opinion
of counsel to the Trustee, dated the Closing Date, addressed to the Underwriter
and in form and scope satisfactory to the Underwriter's counsel, to the effect
that:
i) The Trustee has duly authorized, executed and
delivered the Pooling Agreement and the Cash Collateral Trust
Agreement.
ii) The Trustee has been duly organized and is validly
existing as a _____________________________________ in
16
17
good standing under the laws of _______________ of _____________ and
has full power and authority to execute and deliver the Pooling
Agreement and the Cash Collateral Trust Agreement and to perform its
obligations thereunder and each such Agreement constitutes the valid,
legal and binding obligation of the Trustee, enforceable against the
Trustee in accordance with its terms.
iii) The Certificates have been duly executed and
countersigned by the Trustee.
iv) The execution and delivery by the Trustee of the
Pooling Agreement and the Cash Collateral Trust Agreement and the
performance by the Trustee of its duties thereunder do not conflict
with or result in a violation of (a) any law or regulation of the
United States of America or the State of ___________, (b) the charter
or by-laws of the Trustee, (c) any order, writ, judgment or decree or
(d) any agreement, instrument, order, writ, judgment or decree known to
such counsel to which the Trustee is a party or is subject.
v) No consent, approval or authorization of, or
registration, declaration or filing with, any court or governmental
agency or body of the United States of America or any state thereof is
required for the execution, delivery or performance by the Trustee of
the Pooling Agreement and the Cash Collateral Trust Agreement.
(f) The Underwriters shall have received the favorable opinion
or opinions, dated the Closing Date, of the Underwriter's counsel,
__________________, with respect to the issuance and sale of the Certificates,
the Registration Statement, this Agreement, the Prospectus and such other
related matters as the Underwriter may require.
(g) The Underwriter shall have received an opinion, dated the
Closing Date, of Xxxxx Xxxxxxxxxx, special counsel to ACC, addressed to, and
satisfactory to, Standard & Poor's Corporation ("S&P"), Xxxxx'x Investors
Service, Inc. ("Xxxxx'x") and the Underwriter's counsel, relating to the sale of
the Receivables to the Trustee, and such counsel to ACC shall have consented to
reliance by the Underwriter on such opinion as though such opinion had been
addressed to the Underwriter.
(h) ACC shall have furnished to the Underwriter a certificate
signed on behalf of ACC by any two of the chairman of the board, the president,
any vice-chairman of the board, any executive vice president, any senior vice
president, any vice president, the treasurer, or the controller of the Seller or
the Servicer, as appropriate, dated the Closing Date, as to
17
18
(i) the accuracy of the representations and warranties of ACC herein and in the
Pooling Agreement at and as of the Closing Date, (ii) the performance by ACC of
all of its obligations hereunder to be performed at or prior to the Closing Date
and (iii) such other matters as the Underwriter may reasonably request.
(i) The Trustee shall have furnished to the Underwriter a
certificate of the Trustee, signed by one or more duly authorized officers of
the Trustee, dated the Closing Date, as to the due acceptance of the Pooling
Agreement by the Trustee and the due execution and delivery of the Certificates
by the Trustee thereunder and such other matters as the Underwriter shall
reasonably request.
(j) The Certificates shall have been rated "___" by S&P and
"___" by Xxxxx'x, and such ratings shall not have been rescinded.
(k) The Underwriter shall have received from
__________________________________________, or other independent certified
public accountants acceptable to the Underwriter, a letter, dated as of the date
of the Closing Date, delivered at such time in form satisfactory to the
Underwriter.
(l) Prior to the Closing Date the Underwriter's counsel,
_______________, shall have been furnished with such documents and opinions as
they may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Certificates as herein contemplated and related
proceedings or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by ACC in connection with the
issuance and sale of the Certificates as herein contemplated shall be
satisfactory in form and substance to the Underwriter and ____________________.
(m) Since the respective dates as of which information is
given in the Prospectus, there shall not have been any change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of operations of
ACC otherwise than as set forth in the Prospectus, the effect of which is in the
Underwriter's judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Certificates on the terms and in the manner contemplated in the Prospectus or
which, in the judgment of the Underwriter, materially impairs the investment
quality of the Certificates or the ability of the Servicer to service the
Receivables.
18
19
(n) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, development or event
involving a prospective change, in the condition (financial or other), business,
properties or results of operations of ACC or its automobile loan business or
the Cash Collateral Depositor which, in the judgment of the Underwriter, is
material and adverse and makes it impracticable or inadvisable to proceed with
the completion of the public offering or the sale of and payment for the
Certificates or (ii) any downgrading in the rating of any securities of ACC or
the Cash Collateral Depositor by any nationally recognized statistical rating
organization (as defined for purposes of Rule 436(g) under the Act) or any
public announcement that any such organization has under surveillance or review
its rating of any securities of ACC or the Cash Collateral Depositor (other than
an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); or (iv) any suspension
or limitation of trading in securities generally on the New York Stock Exchange,
or any setting of minimum prices for trading on such exchange; or (v) any
outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial national
or international calamity, emergency or change in financial markets if, in the
Representative's judgment, the effect of any such outbreak, escalation,
declaration, calamity, emergency or change makes it impractical or inadvisable
to proceed with completion of the sale of and payment for the Certificates.
(o) The Cash Collateral Trust Agreement and the Loan Agreement
shall have been duly authorized, executed and delivered by each party thereto;
on or prior to the Closing Date, the Cash Collateral Trustee shall have
established the Cash Collateral Account pursuant to the Cash Collateral Trust
Agreement and the Cash Collateral Depositor and ACC shall have deposited the
Initial Cash Collateral Amount in the Cash Collateral Account pursuant to the
Loan Agreement; and all fees due and payable to the Cash Collateral Depositor as
of the Closing Date shall have been paid in full by ACC on or prior to the
Closing Date.
(p) The Underwriter shall have received evidence satisfactory
to the Underwriter and its counsel that (i) on or before the Closing Date, UCC-1
financing statements have been filed in the offices of the _______________
[State Department of Assessments and Taxation], reflecting the interest of the
Trust in the Receivables and the proceeds thereof and (ii) the Trust will have a
first priority perfected security interest in the amounts on deposit from time
to time in the Cash Collateral Account.
19
20
(q) The Underwriter shall have received an opinion from _____
counsel for the Cash Collateral Depositor, addressed to the Underwriter, dated
the Closing Date and reasonably satisfactory in form and substance to the
Underwriter and its counsel, to the effect that:
i) the Cash Collateral Depositor is a corporation duly
organized and validly existing under the laws of _________________ and
has the corporate power and authority under the laws of ______________
to execute, deliver and perform its obligations under the Cash
Collateral Trust Agreement and the Loan Agreement through its New York
branch (the "Branch"), including the obligation of the Cash Collateral
Depositor to deposit the Initial Cash Collateral Amount in the Cash
Collateral Account in accordance with the terms of the Loan Agreement;
ii) each of the Cash Collateral Trust Agreement and the
Loan Agreement have been duly authorized and, when executed and
delivered by the Cash Collateral Depositor through the Branch, each as
the Cash Collateral Trust Agreement and the Loan Agreement, including
the obligation of the Cash Collateral Depositor, acting through the
Branch, to deposit the Initial Cash Collateral Amount in the Cash
Collateral Account in accordance with the terms of the Loan Agreement,
will constitute the valid and legally binding obligation of the Cash
Collateral Depositor enforceable against the Branch in accordance with
its terms subject, as to enforcement, to (A) bankruptcy, insolvency,
reorganization, liquidation, readjustment of debt and other laws and
equitable principles relating to or affecting the enforcement of
creditors' rights generally as they may be applied in the event of the
bankruptcy, insolvency, reorganization, liquidation or readjustment of
debt of, or the appointment of a receiver with respect to the property
of, or a similar event applicable to, the Branch, and (B) the effect of
any moratorium or similar occurrence affecting the Branch;
iii) each of the Cash Collateral Trust Agreement and the
Loan Agreement, including the obligation of the Cash Collateral
Depositor, acting through the Branch, to deposit the Initial Cash
Collateral Amount in the Cash Collateral Account in accordance with the
terms of the Loan Agreement, is enforceable in accordance with its
terms against the Cash Collateral Depositor's head office in
__________________________ if the Branch defaults in its obligations
thereunder, subject, as to enforcement, to (A) bankruptcy, insolvency,
reorganization, liquidation, readjustment of debt and other laws and
equitable principles relating to or affecting the enforcement of
20
21
creditors' rights generally as they may be applied in the event of the
bankruptcy, insolvency, reorganization, liquidation or readjustment of
debt of, or the appointment of a receiver with respect to the property
of, or a similar event applicable to, the Cash Collateral Depositor,
and (B) the effect of any moratorium or similar occurrence affecting
the Cash Collateral Depositor; and
iv) any judgment for a fixed and definite sum of money
rendered by the courts of the State of New York or the United States of
America located in the State of New York, in respect of any suit,
action or other proceeding against the Cash Collateral Depositor for
the enforcement of the Cash Collateral Trust Agreement or the Loan
Agreement will, upon request, be declared valid and enforceable against
the Cash Collateral Depositor by the competent courts of ___________,
usually without reexamination of the matters adjudicated upon, if such
judgment is not subject to appeal and is enforceable according to the
laws of the State of New York or United States Federal law. However,
such judgment will not be enforced if its contents are in violation of
fundamental principles of the ______________ legal system (order
public) or if it has been rendered in violation of such principles. In
addition, enforcement may be refused if the foreign state does not
observe reciprocity. According to the approach of _________ courts,
reciprocity is affirmed with regard to judgments of United States
Federal courts and courts of the State of New York. As a general rule
it can be stated that judgments of United States Federal courts and
courts of the State of New York are enforceable in , and such counsel
knows of no reason why such judgments would be a violation of the
fundamental principles of the __________ legal system.
(r) The Underwriter shall have received an opinion from
_______________, special United States counsel for the Cash Collateral
Depositor, addressed to the Underwriter, dated the Closing Date and reasonably
satisfactory in form and substance to the Underwriter and its counsel, to the
effect that:
i) the Cash Collateral Depositor is licensed by the
Superintendent of Banks of the State of ____________ to maintain a
branch for the conduct of a banking business at
_____________________________________,
ii) no authorization, consent or approval of or by any
governmental authority of the United States or the State of New York is
necessary for the execution, delivery and performance by the Branch as
the Cash
21
22
Collateral Depositor of the Cash Collateral Trust Agreement and the
Loan Agreement, including the obligation of the Cash Collateral
Depositor, acting through the Branch, to deposit the Initial Cash
Collateral Amount in the Cash Collateral Account in accordance with the
terms of the Loan Agreement, except such authorizations, consents and
approvals as are in full force and effect;
iii) each of the Cash Collateral Trust Agreement and the
Loan Agreement has been duly authorized, executed and delivered by the
Branch; and
iv) each of the Cash Collateral Trust Agreement and the
Loan Agreement, including the obligation of the Cash Collateral
Depositor, acting through the Branch, to deposit the Initial Cash
Collateral Account in the Cash Collateral Account in accordance with
the terms of the Loan Agreement, constitutes the legal, valid and
binding obligation of the Cash Collateral Depositor and the Branch,
enforceable against the Cash Collateral Depositor and the Branch in
accordance with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, liquidation,
moratorium, readjustment of debt or other similar laws affecting the
enforcement of creditors' rights generally, as such laws may be applied
in the event of a bankruptcy, insolvency, reorganization, liquidation,
moratorium, readjustment of debt or other similar proceedings of or
affecting the Cash Collateral Depositor or the Branch, and subject to
the application of general principles of equity regardless of whether
such enforceability is considered in a proceeding at law or in equity.
(s) The Underwriter shall have received the favorable opinion
of counsel to the Cash Collateral Trustee, addressed to the Underwriter, dated
the Closing Date and reasonably satisfactory in form and substance to the
Underwriter and its counsel, to the effect that:
i) the Cash Collateral Trustee is an association duly
organized, validly existing and in good standing as a licensed national
banking association under the laws of the United States, and has the
power and authority (corporate and other) to enter into, and to take
all action required of it under the Cash Collateral Trust Agreement and
the Loan Agreement; and
ii) the Cash Collateral Trust Agreement and the Loan
Agreement have each been duly authorized, executed and delivered by the
Cash Collateral Trustee and each constitutes a legal, valid and binding
agreement of the Cash Collateral Trustee, enforceable in accordance
with
22
23
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, liquidation, reorganization, moratorium or other similar
laws affecting the enforcement of rights of creditors against the Cash
Collateral Trustee generally, and the application of general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(t) The Underwriter shall have received from the Cash
Collateral Trustee a certificate dated the Closing Date of an authorized officer
of the Cash Collateral Trustee reasonably acceptable to the Underwriter in which
such officer shall state that, to the best of such officer's knowledge:
i) the execution and delivery of the Cash Collateral
Trust Agreement and the Loan Agreement by the Cash Collateral Trust and
the performance by the Cash Collateral Trustee of the terms thereof do
not conflict with or result in a violation of (A) the charter or
by-laws of the Cash Collateral Trustee or (B) any law of the United
States of America or the State of New York or any regulation governing
the banking or trust powers of the Cash Collateral Trustee; and
ii) no approval, authorization or other action by, or
filing with, any governmental authority of the United States of America
or the State of New York having jurisdiction over the banking or trust
powers of the Cash Collateral Trustee is required in connection with
its execution and delivery of the Cash Collateral Trust Agreement and
the Loan Agreement or the performance by the Cash Collateral Trustee of
the terms of the Cash Collateral Trust Agreement and the Loan
Agreement.
(u) ACC will provide or cause to be provided to the
Representative such conformed copies of such opinions, certificates, letters and
documents being provided pursuant hereto and such further information,
certificates and documents as the Underwriter may reasonably request. The
Underwriter may in its sole discretion waive compliance with any conditions to
the obligations of the Underwriter hereunder.
If any condition specified in this Section 6 shall not have
been fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriter by notice to ACC at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party except as provided in Section 7.
7. Payment of Expenses. ACC agrees to pay all expenses
incident to the performance of its obligations under
23
24
this Agreement, and will reimburse the Underwriter (if and to the extent
incurred by them) for any filing fees and other expenses (including fees and
disbursements of counsel), including without limitation those related to (i) the
filing of the Registration Statement and all amendments thereto, (ii) the
duplication and delivery to the Underwriter, in such quantities as the
Underwriter may reasonably request, of copies of this Agreement, (iii) the
preparation, issuance and delivery of the Certificates and the determination of
their eligibility for investment under the laws of such jurisdictions as the
Underwriter designates, (iv) the fees and disbursements of ________________,
counsel for ACC, 50% of the fees of __________, special counsel for ACC, and the
fees and disbursements of ___________, accountants of ACC, (v) the qualification
of the Certificates under securities and Blue Sky laws and the determination of
the eligibility of the Certificates for investment in accordance with the
provisions of Section 5(g), including filing fees and disbursements and the fees
of _____________________________ , the Underwriter's counsel, in connection
therewith and in connection with the preparation of any Blue Sky Survey, (vi)
the printing and delivery to the Underwriter, in such quantities as the
Underwriter may reasonably request, hereinabove stated, of copies of the
Registration Statement and Prospectus and all amendments and supplements
thereto, and of any Blue Sky Survey, (vii) for the filing fee of the National
Association of Securities Dealers, Inc., (viii) the duplication and delivery to
the Underwriter in such quantities as the Underwriter may reasonably request, of
copies of the Pooling Agreement and the Collateral Trust Agreement, (ix) the
fees charged by nationally recognized statistical rating agencies for rating the
Certificates, (x) the fees and expenses of the Trustee and its counsel, (xi) the
fees and expenses of the Cash Collateral Trustee and its counsel, (xii) the fees
and expenses of the Cash Collateral Depositor and its counsel.
8. Indemnification. ACC agrees to indemnify and hold harmless
the Underwriter and each person, if any, who controls the Underwriter within the
meaning of the Act or the Exchange Act, as follows:
(a) ACC will indemnify and hold harmless the Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be
24
25
stated therein or necessary to make the statements therein not misleading (in
the case of the Prospectus or any amendment or supplement thereto, in the light
of the circumstances under which they were made) and will reimburse the
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that ACC will 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 in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to ACC by the Underwriter specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in subsection (b) below.
(b) The Underwriter will indemnify and hold harmless ACC
against any losses, claims, damages or liabilities to which ACC may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading (in the case of the Prospectus, in the light of the circumstances
under which they were made), in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to ACC by the Underwriter specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by ACC in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that the
only such information furnished by the Underwriter consists of (i) the following
information in the Prospectus furnished on behalf of the Underwriter: [the last
paragraph at the bottom of the cover page concerning the terms of the offering
by the Underwriter, the legend concerning overallotments and stabilizing on the
inside front cover page and the concession and reallowance figures appearing in
the third paragraph under the caption "Underwriting."]
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under
25
26
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action.
9. Contribution. (a) If the indemnification provided for in
Section 8 is unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) of Section 8 above, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in such
subsection (a) or (b) (i) in such proportion as is appropriate to reflect the
relative benefits received by ACC on the one hand and the Underwriter on the
other from the offering of the Certificates 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 ACC on the one hand and the 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 ACC on the one hand and the
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 ACC
bear to the total underwriting discounts and commissions received by the
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
26
27
alleged omission to state a material fact relates to information supplied by ACC
or the 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. 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.
(b) The obligations of ACC under this Section 9 shall be in
addition to any liability which ACC may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls the
Underwriter within the meaning of the Act; and the obligations of the
Underwriter under this Section 9 shall be in addition to any liability which the
Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each director of ACC, to each officer of ACC who has signed the
Registration Statement and to each person, if any, who controls ACC within the
meaning of the Act.
The Underwriter, with respect to the Certificates, agrees that
it will not prepare or distribute to any proposed purchaser of any Certificates
any Derived Information (as such term is hereinafter defined), unless it shall
have provided to the Servicer a copy of such Derived Information a sufficient
time prior to its proposed distribution to permit the Servicer to review and
comment upon such Derived Information, and the Underwriter shall have obtained
the prior written consent of the Servicer thereto following its review. In
addition, the Underwriter agrees to provide the Servicer, no later than the date
on which the Prospectus is required to be filed pursuant to Rule 424, with a
definitive copy of its Derived Information with respect to such Certificates
provided by the Underwriter for filing with the Commission on Form 8-K.
The Underwriter agrees, assuming all Companies-Provided
Information (as such term is hereinafter defined) provided by ACC is accurate
and complete in all material respects, to indemnify and hold harmless ACC, each
of ACC's officers and directors and each person who controls ACC within the
meaning of the Act against any and all losses, claims, damages or liabilities,
joint or several, to which they may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement of a material fact
contained in the Derived Information
27
28
provided by the Underwriter, 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, in the light of the circumstances
under which they were made, not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by him,
her or it in connection with investigating or defending or preparing to defend
any such loss, claim, damage, liability or action as such expenses are incurred.
The obligations of the Underwriter under this Section 8 shall be in addition to
any liability which the Underwriter may otherwise have.
For purposes of this Section 9, the term "Derived Information"
means such portion, if any, of the information delivered to ACC for filing with
the Commission on Form 8-K as:
i) is not contained in the Prospectus without taking
into account information incorporated therein by reference;
ii) does not constitute Companies-Provided Information;
and
iii) is not information provided by the Cash Collateral
Depositor or the Cash Collateral Trustee.
"Companies-Provided Information" means any computer tape furnished to the
Underwriter by ACC concerning the Receivables assigned to the Trust.
Notwithstanding the provisions of Sections 8 and 9, the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Certificates underwritten by the
Underwriter and distributed to the public were offered to the public exceeds the
amount of any damages which the Underwriter has otherwise been required to pay
in respect of such losses, liabilities, claims, damages and expenses. For
purposes of this Section 9, each person, if any, who controls the Underwriter
within the meaning of the Act or the Exchange Act shall have the same rights to
contribution as the Underwriter and each director of ACC, each officer of ACC
who signed the Registration Statement, and each person, if any, who controls ACC
within the meaning of the Act or the Exchange Act shall have the same rights to
contribution as ACC.
10. Default of Underwriter. If the Underwriter defaults
in its obligations to purchase Certificates hereunder on the Closing Date and
the aggregate principal amount of Certificates that such defaulting Underwriter
has agreed but failed to purchase does not exceed 10% of the total principal
28
29
amount of Certificates that the Underwriter is obligated to purchase on such
Closing Date, the Underwriter may make arrangements satisfactory to ACC for the
purchase of such Certificates by other persons. If the Underwriter so defaults
and the aggregate principal amount of Certificates with respect to which such
default occurs exceeds ___% of the total principal amount of Certificates that
the Underwriter is obligated to purchase on such Closing Date and arrangements
satisfactory to ACC for the purchase of such Certificates by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of ACC, except as provided in Section 11. As used
in this Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 10. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
11. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of ACC or its officers and of the Underwriter 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 Underwriter, ACC or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Certificates. If this Agreement is terminated or if for any reason the
purchase of the Certificates by the Underwriter is not consummated, ACC shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 7 and the respective obligations of ACC and the Underwriter pursuant to
Section 8 and 9 shall remain in effect, and if any Certificates have been
purchased hereunder the representations and warranties in Section 2 and all
obligations under Section 5 and 6 shall also remain in effect. If the purchase
of the Certificates by the Underwriter is not consummated for any reason other
than solely because of the termination of this Agreement pursuant to Section 10
or the occurrence of any event specified in clause (ii), (iv) or (v) of Section
6(n), ACC will reimburse the Underwriter for all out-of-pocket expenses
(including fees and disbursements of ___________________________, Underwriter's
counsel) reasonably incurred by them in connection with the offering of the
Certificates.
12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriter shall be directed to the address set forth on the first page hereof,
or sent by facsimile machine which produces an electronic confirmation of
receipt to 212/318-0532, attention: Investment Banking Department, Transactions
Advisory Group. Notices to
29
30
ACC shall be directed to ACC Receivables Finance Corporation, 00000 Xxxx Xxxxx
Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, or sent by facsimile machine
which produces an electronic confirmation of receipt to _____________,
attention: ______________________________.
13. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriter and ACC, and their respective successors.
Nothing expressed or mentioned in this Agreement is intended nor shall it be
construed to give any person, firm or corporation, other than the parties hereto
or thereto 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 with
respect to 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 and their respective successors and such
controlling persons and officers and directors and their heirs and legal
representatives (to the extent of their rights as specified herein and therein)
and except as provided above for the benefit of no other person, firm or
corporation. No purchaser of Certificates from the Underwriter shall be deemed
to be a successor by reason merely of such purchase.
14. GOVERNING LAW AND TIME; CONSENT TO JURISDICTION. THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND SHALL BE
CONSTRUED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAWS. ACC HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE FEDERAL AND
STATE COURTS IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN ANY SUIT OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
15. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but together they
shall constitute but one instrument.
30
31
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and ACC in accordance with its terms.
Very truly yours,
ACC CONSUMER FINANCE CORPORATION
By: _______________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
___________________________,
as the Underwriter.
By: __________________________________
Name:
Title:
31
32
Schedule 1
Underwriting
Class -
--------------------------------------
Proceeds to
Purchase ACC (includes
Price Principal accrued Accrued
Underwriters Percentage Amount interest) Interest
------------ ---------- ------ --------- --------
% $ $
