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EXHIBIT 1.1
$_____________________
ACC CONSUMER FINANCE CORPORATION
% Automobile Receivables Backed Notes
UNDERWRITING AGREEMENT
__________ ___, 199__
[NAME AND ADDRESS OF UNDERWRITER]
Dear Sirs:
1. Introduction. ACC Consumer Finance Corporation, a Delaware
corporation ("ACC"), has authorized the issuance and sale of % Automobile
Receivables Backed Notes (the "Notes"), 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 Notes will be issued under a Pooling and Servicing
Agreement dated as of __________, 199_ (the "Pooling Agreement") between
____________, as seller, _________________________, as issuer, ACC Consumer
Finance Corporation, in its individual capacity,
______________________________________ as Back-up Servicer and
_______________________________________________ , as trustee (the "Trustee").
The Notes will evidence fractional undivided interests in the
Trust. [The Trustee, on behalf of the holders of the Notes (the "Noteholders"),
will have the benefit of a cash collateral account (the "Cash Collateral
Account")]. The Notes 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
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but not defined herein shall have the meanings given to them
in the Pooling Agreement.
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
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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 "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
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the Rules and Regulations which have not been so filed on or prior to the
Effective Date.
(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
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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 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 Notes has been duly
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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 Agreement, the Notes 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 Notes, 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 Notes 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 Notes 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 Notes and (ii)
will have the power and authority to sell the Receivables to the Trustee and to
sell the Notes 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 Notes the Underwriter will have good
and marketable title to the Notes.
(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 Notes 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.
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(p) ACC has authorized the conveyance of the Receivables to
the Trust, and ACC has authorized the Trust to issue the Notes.
(q) Each of the Notes, 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 Notes 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 Notes
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 Notes 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 Notes 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 Notes set forth opposite the names of the Underwriter
on Schedule 1 hereto, the respective principal amount of Notes set forth on
Schedule 1 hereto. Payment of the purchase price for, and delivery of, any Notes
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 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
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against delivery to the Trustee as custodian for The Depository Trust Company
("DTC") of the Notes 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 Notes 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 Notes 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 prepare and file with the Commission (subject
to the Underwriter's prior review), at its own expense, such
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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 Notes 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 Underwriter copies of any report on Form SR required by Rule 463 under the
Act.
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(f) ACC will make generally available to holders of the Notes
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 Notes 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 Notes. 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 Notes to the
public.
(i) For a period from the date of this agreement until the
retirement of the Notes, 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 Consumer
Finance Corporation or the Notes, as the Underwriter may from time to time
reasonably request.
(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 and its affairs as the Underwriter may from time to
time
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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 Noteholders, (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
Notes 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 Notes 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 Notes 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:
(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
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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 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
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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 Notes, 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
Notes 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 Notes 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 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.
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iv) The Notes 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 Notes and the sale of the Notes 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
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.
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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 Notes, (B) seeking to prevent the issuance of the
Notes 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 Notes, or (D) seeking to adversely affect the federal income tax
attributes of the Notes 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 Notes in the manner contemplated by the Pooling
Agreement and this Agreement, the Trust will not be required to be so
registered.
xii) The Notes, 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
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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
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 Notes have been duly executed and
countersigned by the Trustee.
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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 Notes, 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. ("Moody's") 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 (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
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Agreement by the Trustee and the due execution and delivery of the Notes by the
Trustee thereunder and such other matters as the Underwriter shall reasonably
request.
(j) The Notes 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 Notes 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
Notes 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 Notes 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
Notes or the ability of the Servicer to service the Receivables.
(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 Notes
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
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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 Notes.
(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.
(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
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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 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
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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 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
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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 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
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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 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
Notes 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
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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 Notes under securities and Blue Sky laws and the
determination of the eligibility of the Notes 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
Notes, (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 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
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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 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
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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 Notes or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of 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 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
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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 Notes, agrees that it
will not prepare or distribute to any proposed purchaser of any Notes 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 Notes 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 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.
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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 Notes 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 Notes hereunder on the Closing Date and the aggregate
principal amount of Notes that such defaulting Underwriter has agreed but failed
to purchase does not exceed 10% of the total principal amount of Notes that the
Underwriter is obligated to purchase on such Closing Date, the Underwriter may
make arrangements satisfactory to ACC for the purchase of such Notes by other
persons. If the Underwriter so defaults and the aggregate principal amount of
Notes with respect to which such default occurs exceeds % of the total principal
amount of Notes that the Underwriter is obligated to purchase on such Closing
Date and arrangements satisfactory to ACC for the purchase of such Notes 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
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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 Notes. If this Agreement is terminated or if for any reason the purchase
of the Notes 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 Notes 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 Notes 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 Notes.
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 ____________, attention: _______________________________________.
Notices to ACC shall be directed to ACC Consumer 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
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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 Notes 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.
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:
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Schedule 1
Underwriting
Class -
------------------------------------
Proceeds to
Purchase ACC (includes
Price Principal accrued Accrued
Underwriters Percentage Amount interest) Interest
------------ ---------- ------ --------- --------
$ $
