EXHIBIT 1.2
LONG BEACH ACCEPTANCE AUTO RECEIVABLES TRUST 20__-_
Class A ___% Asset Backed Certificates
UNDERWRITING AGREEMENT
[Name of underwriter],
As Representative of the Underwriters
------------------------
-----------, ------------
_____________, 20__
Ladies and Gentlemen:
Long Beach Acceptance Corp., a corporation organized and existing under
the laws of Delaware (the "Sponsor"), and Long Beach Acceptance Receivables
Corp., a corporation organized and existing under the laws of Delaware (the
"Seller") (the Sponsor and the Seller, collectively, the "Companies"), agree
with you as follows:
Section 1. Issuance and Sale of Certificates. The Sponsor has authorized
the issuance and sale of $____________ Class A ___% Asset Backed Certificates
(the "Certificates"). The Certificates are to be issued by Long Beach
Acceptance Auto Receivables Trust 20__-_ (the "Trust") pursuant to a Pooling
and Servicing Agreement, to be dated as of _____________, 20__ (the "Pooling
and Servicing Agreement"), between the Sponsor, the Seller and [name of
trustee], a ________________, as trustee, back-up servicer, custodian [and
collateral agent] (the "Trustee" and "Back-up Servicer", respectively). In
addition to the Certificates, the Trust will also issue an Excess Cash Flow
Certificate representing the beneficial ownership interests in the Trust (the
"Excess Cash Flow Certificate") (the Certificates and the Excess Cash Flow
Certificate, collectively, the "Securities") pursuant to the Pooling and
Servicing Agreement. The assets of the Trust will initially include a pool of
retail installment sale contracts secured by new or used automobiles, light
duty trucks and vans (the "[Initial] Receivables") and certain monies due
thereunder on or after ________________, 20__ (the "[Initial] Cutoff Date").
[Additional retail installment sale contracts secured by new or used
automobiles, light duty trucks and vans (the "Subsequent Receivables") and
certain monies due thereunder on or after the applicable Subsequent Cutoff
Date are intended to be purchased by the Trust from the Seller from time to
time on or before the end of the Funding Period, from funds available under
the Pre-Funded Amount. The [Initial] Receivables and the Subsequent
Receivables are hereinafter referred to as the "Receivables."]
[The Certificates will have the benefit of a financial guaranty insurance
policy (the "Policy"), issued by ________________, a __________________
organized under the laws of _____________ (the "Certificate Insurer").]
[In connection with the issuance of the Policy (i) the Companies, the
Trust and the Certificate Insurer will execute and deliver an Insurance
Agreement dated as of ______________, 2001 (the "Insurance Agreement") and
(ii) the Seller, the Underwriters and the Certificate Insurer will execute and
deliver an Indemnification Agreement dated as of ____________, 2001 (the
"Indemnification Agreement").]
As used herein, the term "Sponsor Agreements" means the Pooling and
Servicing, the Purchase Agreement between the Sponsor and the Seller dated as
of ______________, 2001 (the "Purchase Agreement"), [the Insurance Agreement,
the Indemnification Agreement] and this Agreement; the term "Seller
Agreements" means the Pooling and Servicing Agreement, the Purchase Agreement,
[the Insurance Agreement, the Indemnification Agreement] and this Agreement.
The Certificates are being purchased by the Underwriters named in
Schedule 1 hereto, and the Underwriters are purchasing, severally, only the
Certificates set forth opposite their names in Schedule 1, except that the
amounts purchased by the Underwriters may change in accordance with Section 10
of this Agreement. [Name of representative of underwriters] is acting as
representative of the Underwriters and in such capacity, is hereinafter
referred to as the "Representative."
The offering of the Certificates will be made by the Underwriters and the
Companies understand that the Underwriters propose to make a public offering
of the Certificates for settlement on _____________, 20__ as the Underwriters
deem advisable.
The Excess Cash Flow Certificate will be retained by the Seller.
Defined terms used herein shall have their respective meanings as set
forth in the Pooling and Servicing Agreement.
Section 2. Representations and Warranties. A. The Sponsor represents,
warrants and agrees with the Underwriters, that:
(i) A Registration Statement on Form S-3 (No. ___________) has (a) been
prepared by the Sponsor on such Form in conformity with the requirements of
the Securities Act of 1933, as amended (the "Securities Act") and the rules
and regulations (the "Rules and Regulations") of the United States Securities
and Exchange Commission (the "Commission") thereunder, (b) been filed with the
Commission and (c) been declared effective by the Commission, and no stop
order suspending the effectiveness of the Registration Statement has been
issued, and no proceeding for that purpose has been initiated or threatened,
by the Commission. Copies of such Registration Statement have been delivered
by the Sponsor to the Underwriters. There are no contracts or documents of the
Sponsor which are required to be filed as exhibits to the Registration
Statement pursuant to the Securities Act or the Rules and Regulations which
have not been so filed or incorporated by reference therein on or prior to the
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Effective Date of the Registration Statement. The conditions for use of Form
S-3, as set forth in the General Instructions thereto, have been satisfied.
As used herein, the term "Effective Date" means the date on and time at
which the Registration Statement became effective, or the date on and the time
at which the most recent post-effective amendment to such Registration
Statement, if any, was declared effective by the Commission. The term
"Registration Statement" means (i) the registration statement referred to in
the preceding paragraph, including the exhibits thereto, (ii) all documents
incorporated by reference therein pursuant to Item 12 of Form S-3 and (iii)
any post-effective amendment filed and declared effective prior to the date of
issuance of the Certificates. The term "Base Prospectus" means the prospectus
included in the Registration Statement. The term "Prospectus Supplement" means
the prospectus supplement dated the date hereof, specifically relating to the
Certificates, as filed with the Commission pursuant to Rule 424 of the Rules
and Regulations (the "Prospectus Supplement"). The term "Company Offering
Materials" means, collectively, the Registration Statement, the Base
Prospectus and the Prospectus Supplement except for [(x) the information set
forth under the caption "The Insurer" and (y)] the Underwriter Information.
The term "Underwriter Information" means the information set forth under the
caption "Underwriting" in the Prospectus Supplement and any information in the
Prospectus Supplement relating to any potential market-making, over-allotment
or price stabilization activities of the Underwriters. The term "Prospectus"
means, together, the Base Prospectus and the Prospectus Supplement.
To the extent that the Underwriter either (i) has provided to the Sponsor
Collateral term sheets (as hereinafter defined) that such Underwriter has
provided to a prospective investor, the Sponsor has filed such Collateral term
sheets as an exhibit to a report on Form 8-K within two business days of its
receipt thereof, or (ii) has provided to the Sponsor Structural term sheets or
Computational Materials (each as defined below) that such Underwriter has
provided to a prospective investor, the Sponsor will file or cause to be filed
with the Commission a report on Form 8-K containing such Structural term sheet
and Computational Materials, as soon as reasonably practicable after the date
of this Agreement, but in any event, not later than the date on which the
Prospectus is made available to the Underwriter in final form.
(ii) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the Commission,
as the case may be, conform in all respects to the requirements of the
Securities Act and the Rules and Regulations. The Company Offering Materials
do not and will not, as of the Effective Date or filing date thereof and of
any amendment thereto, as appropriate, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading.
(iii) The documents incorporated by reference in the Company Offering
Materials, when they were filed with the Commission conformed in all material
respects to the requirements of the Securities Act or the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), as applicable, and the Rules and
Regulations of the Commission thereunder, and none of such documents 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
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misleading; any further documents so filed and incorporated by reference in
the Company Offering Materials, when such documents are filed with the
Commission will conform in all material respects to the requirements of the
Exchange Act and the Rules and Regulations of the Commission thereunder and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(iv) Since the respective dates as of which information is given in the
Company Offering Materials, or the Company Offering Materials as amended and
supplemented, (x) there has not been any material adverse change, or any
development involving a prospective material adverse change, in or affecting
the general affairs, business, management, financial condition, stockholders'
equity, results of operations, regulatory situation or business prospects of
the Sponsor and (y) the Sponsor has not entered into any transaction or
agreement (whether or not in the ordinary course of business) material to the
Sponsor that, in either case, would reasonably be expected to materially
adversely affect the interests of the holders of the Certificates, otherwise
than as set forth or contemplated in the Company Offering Materials, as so
amended or supplemented.
(v) The Sponsor is not aware of (x) any request by the Commission for any
further amendment of the Registration Statement or the Prospectus or for any
additional information, (y) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution
or threatening of any proceeding for that purpose or (z) any notification with
respect to the suspension of the qualification of the Certificates for the
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose.
(vi) The Sponsor has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification, except
where the failure to be so qualified would not have a material adverse effect
on the business or financial condition of the Sponsor and has all power and
authority necessary to own or hold its properties, to conduct the business in
which it is engaged and to enter into and perform its obligations under each
Sponsor Agreement and to cause the Securities to be issued.
(vii) There are no actions, proceedings or investigations pending before
or threatened by any court, administrative agency or other tribunal to which
the Sponsor is a party or of which any of its properties is the subject (i)
which if determined adversely to it is likely to have a material adverse
effect individually, or in the aggregate, on the business or financial
condition of the Sponsor, (ii) asserting the invalidity of any Sponsor
Agreement, in whole or in part or the Securities, (iii) seeking to prevent the
issuance of the Securities or the consummation by the Companies of any of the
transactions contemplated by any Sponsor Agreement, in whole or in part, or
(iv) which if determined adversely is likely to materially and adversely
affect the performance by the Sponsor of its obligations under, or the
validity or enforceability of, any Sponsor Agreement, in whole or in part or
the Securities.
(viii) Each Sponsor Agreement has been, or, when executed and delivered
will have been, duly authorized, validly executed and delivered by the Sponsor
and each Sponsor
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Agreement constitutes, a valid and binding agreement of the Sponsor,
enforceable against the Sponsor in accordance with its respective terms,
except to the extent that the enforceability hereof may be subject (x) to
insolvency, reorganization, moratorium, receivership, conservatorship, or
other similar laws, regulations or procedures of general applicability now or
hereafter in effect relating to or affecting creditors' rights generally, (y)
to general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law), and (z) with respect to rights of
indemnity under this Agreement, to limitations of public policy under
applicable securities laws.
(ix) The issuance and delivery of the Securities, and the execution,
delivery and performance of each Sponsor Agreement and the consummation of the
transactions contemplated hereby and thereby, do not and will not conflict
with or result in a breach of or violate any term or provision of or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement, or other agreement or instrument to which the Sponsor is a party,
by which the Sponsor may be bound or to which any of the property or assets of
the Sponsor or any of its subsidiaries may be subject, nor will such actions
result in any violation of the provisions of the articles of incorporation or
by-laws of the Sponsor or any law, statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Sponsor
or any of its respective properties or assets.
(x) [Name of accountant] is an independent public accountant with respect
to the Sponsor as required by the Securities Act and the Rules and
Regulations.
(xi) 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 the Sponsor of the other transactions contemplated by this
Agreement, except the registration under the Securities Act of the Securities
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 Underwriters.
(xii) The Sponsor possesses all material licenses, certificates,
authorities 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 Company Offering Materials (or is exempt
therefrom) and the Sponsor has not received notice of any proceedings relating
to the revocation or modification of such license, certificate, authority or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, is likely to materially and adversely affect the
conduct of its business, operations, financial condition or income.
(xiii) The Sponsor will not conduct its operations while any of the
Securities are outstanding in a manner that would require the Sponsor or the
Trust 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.
(xiv) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of any Sponsor Agreement, [the Policy]
and the Securities that
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are required to be paid by the Sponsor at or prior to the Closing Date have
been paid or will be paid at or prior to the Closing Date.
(xv) At the Closing Date, each of the representations and warranties of
the Sponsor set forth in any Sponsor Agreement will be true and correct in all
material respects.
(xvi) Any certificate signed by an officer of the Sponsor and delivered
to the Representative or the Representative'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 2A are made.
B. The Seller represents, warrants and agrees with the Underwriters,
that:
(i) The Company Offering Materials do not and will not, as of the
applicable filing date therefor and any amendment or supplement thereto,
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading.
(ii) The documents incorporated by reference in the Company Offering
Materials, when they were filed with the Commission conformed in all material
respects to the requirements of the Securities Act or the Exchange Act and the
Rules and Regulations of the Commission thereunder, and none of such documents
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; any further documents so filed and
incorporated by reference in the Company Offering Materials, when such
documents are filed with the Commission will conform in all material respects
to the requirements of the Exchange Act and the Rules and Regulations of the
Commission thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(iii) Since the respective dates as of which information is given in the
Company Offering Materials, (x) there has not been any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the general affairs, business, management, financial condition,
stockholders' equity, results of operations, regulatory situation or business
prospects of the Seller and (y) the Seller has not entered into any
transaction or agreement (whether or not in the ordinary course of business)
material to the Seller that, in either case, would reasonably be expected to
materially adversely affect the interests of the holders of the Securities,
otherwise than as set forth or contemplated in the Company Offering Materials,
as so amended or supplemented.
(iv) The Seller is not aware of (x) any request by the Commission for any
further amendment of the Registration Statement or the Prospectus or for any
additional information, (y) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution
or threatening of any proceeding for that purpose or (z) any notification with
respect to the suspension of the qualification of the Certificates for the
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose.
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(v) The Seller has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification, except
where the failure to be so qualified would not have a material adverse effect
on the business or financial condition of the Seller and has all power and
authority necessary to own or hold its properties, to conduct the business in
which it is engaged and to enter into and perform its obligations under each
Seller Agreement.
(vi) There are no actions, proceedings or investigations pending before
or threatened by any court, administrative agency or other tribunal to which
the Seller is a party or of which any of its properties is the subject (i)
which if determined adversely to it is likely to have a material adverse
effect individually, or in the aggregate, on the business or financial
condition of the Seller, (ii) asserting the invalidity of any Seller Agreement
in whole or in part, (iii) seeking to prevent the issuance of the Securities
or the consummation by the Seller of any of the transactions contemplated by
any Seller Agreement in whole or in part, or (iv) which if determined
adversely is likely to materially and adversely affect the performance by the
Seller of its obligations under, or the validity or enforceability of, any
Seller Agreement in whole or in part or the Securities.
(vii) Each Seller Agreement has been, or, when executed and delivered
will have been, duly authorized, validly executed and delivered by the Seller
and each Seller Agreement constitutes, a valid and binding agreement of the
Seller, enforceable against the Seller in accordance with their respective
terms, except to the extent that the enforceability hereof may be subject (x)
to insolvency, reorganization, moratorium, receivership, conservatorship, or
other similar laws, regulations or procedures of general applicability now or
hereafter in effect relating to or affecting creditors' rights generally, (y)
to general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law), and (z) with respect to rights of
indemnity under this Agreement, to limitations of public policy under
applicable securities laws.
(viii) The execution, delivery and performance of each Seller Agreement
by the Seller and the consummation of the transactions contemplated hereby and
thereby, do not and will not conflict with or result in a breach of or violate
any term or provision of or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, or other agreement or instrument to
which the Seller is a party, by which the Seller may be bound or to which any
of the property or assets of the Seller or any of its subsidiaries may be
subject, nor will such actions result in any violation of the provisions of
the articles of incorporation or by-laws of the Seller or any law, statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Seller or any of its respective properties or
assets.
(ix) [Name of accountant] is an independent public accountant with
respect to the Seller as required by the Securities Act and the Rules and
Regulations.
(x) 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 the Seller of the transactions
7
contemplated by each Seller Agreement except the registration under the
Securities Act of the Securities 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 Underwriters.
(xi) The Seller possesses all material licenses, certificates,
authorities 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 Company Offering Materials (or each is exempt
therefrom) and the Seller has not received notice of any proceedings relating
to the revocation or modification of such license, certificate, authority or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, is likely to materially and adversely affect the
conduct of its business, operations, financial condition or income.
(xii) The Seller will have the power and authority to sell the
Receivables to the Trust. Following the conveyance of the Receivables to the
Trust pursuant to the Pooling and Servicing Agreement, the Trust will own the
Receivables free and clear of any lien, mortgage, pledge, charge, encumbrance,
adverse claim or other security interest (collectively, "Liens") other than
Liens created by the Pooling and Servicing Agreement.
(xiii) As of the [Initial] Cutoff Date each of the [Initial] Receivables
will meet the eligibility criteria described in the Prospectus [and as of the
applicable Subsequent Cutoff Date each of the related Subsequent Receivables
will meet the eligibility criteria described in the Prospectus].
(xiv) Neither the Seller nor the Trust created by the Pooling and
Servicing Agreement will conduct their operations while any of the Securities
are outstanding in a manner that would require the Seller or the Trust to be
registered as an "investment company" under the 1940 Act, as in effect on the
date hereof.
(xv) Each of the Securities, the Pooling and Servicing Agreement, the
Purchase Agreement, [the Indemnification Agreement and the Policy] conforms in
all material respects to the descriptions thereof contained in the Prospectus.
(xvi) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of any Seller Agreement, [the Policy] and
the Securities that are required to be paid by either the Seller at or prior
to the Closing Date have been paid or will be paid at or prior to the Closing
Date.
(xvii) At the Closing Date, each of the representations and warranties of
the Seller set forth in any Seller Agreement will be true and correct in all
material respects.
(xviii) The direction by the Seller to the Trustee to execute,
authenticate, issue and deliver the Excess Cash Flow Certificate will be duly
authorized by the Seller and, assuming the Trustee has been duly authorized to
do so, when executed, authenticated, issued and delivered by the Trustee in
accordance with the Pooling and Servicing Agreement, the Excess Cash Flow
Certificate will be validly issued and outstanding and will be entitled to the
benefits of the Pooling and Servicing Agreement.
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Any certificate signed by an officer of the Seller and delivered to the
Representative or the Representative'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 2B are made.
Section 3. Purchase and Sale. The Underwriters' commitment to purchase
the Certificates pursuant to this Agreement shall be deemed to have been made
on the basis of the representations and warranties of the Companies herein
contained and shall be subject to the terms and conditions herein set forth.
The Sponsor agrees to instruct the Trust to issue the Certificates to the
Underwriters, and the Underwriters agree to purchase on the date of issuance
thereof. The purchase prices for the Certificates shall be as set forth on
Schedule 1 hereto.
Section 4. Delivery and Payment. Payment of the purchase price for, and
delivery of, any Certificates to be purchased by the Underwriters shall be
made at the office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, or at such other place as shall be
agreed upon by the Representative and the Companies, at 10:00 a.m. New York
City time on ______________, 20__ (the "Closing Date"), or at such other time
or date as shall be agreed upon in writing by the Representative and the
Companies. Payment shall be made by wire transfer of same day funds payable to
the account designated by the Sponsor. Each of the Certificates so to be
delivered shall be represented by one or more global certificates registered
in the name of Cede & Co., as nominee for The Depository Trust Company.
The Companies agree to have the Certificates available for inspection,
checking and packaging by the Representative in New York, New York, not later
than 12:00 P.M. New York City time on the business day prior to the Closing
Date.
Section 5. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Certificates for sale to the public as set
forth in the Prospectus.
Section 6. Covenants of the Companies. Each of the Companies covenants
with the Underwriters as follows:
A. To cause to be prepared a Prospectus in a form approved by the
Underwriters, to file such Prospectus pursuant to Rule 424(b) under the
Securities Act within the time period prescribed by Rule 424(b) and to provide
the Underwriters with evidence satisfactory to the Underwriters of such timely
filing; to cause to be made no further amendment or any supplement to the
Registration Statement or to the Prospectus prior to the 91st day following
the Closing Date except as permitted herein; to give notice to the
Underwriters of the filing of any amendment to the Registration Statement
which is filed or becomes effective prior to the 91st day following the
Closing Date or any supplement to the Prospectus or any amended Prospectus
which is filed prior to the 91st day following the Closing Date and to furnish
the Underwriters with copies thereof; to file promptly all reports and any
global proxy or information statements required to be filed by the Sponsor
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and, until the 91st day
following the Closing Date; to promptly advise the Underwriters of its receipt
of notice of the issuance by the Commission of any stop order or of: (i) any
order preventing or suspending the use of the Prospectus; (ii) the suspension
of the qualification of the
9
Certificates for offering or sale in any jurisdiction; (iii) the initiation of
or threat of any proceeding for any such purpose; (iv) any request by the
Commission for the amending or supplementing of the Registration Statement or
the Prospectus or for additional information. In the event of the issuance of
any stop order or of any order preventing or suspending the use of the
Prospectus or suspending any such qualification, the Sponsor promptly shall
use its best efforts to obtain the withdrawal of such order by the Commission.
B. To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally filed
with the Commission, and of each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith.
C. To deliver promptly to the Underwriters such number of the following
documents as the Underwriters shall reasonably request: (i) conformed copies
of the Registration Statement as originally filed with the Commission and each
amendment thereto (in each case including exhibits); (ii) the Prospectus and
any amended or supplemented Prospectus; and (iii) any document incorporated by
reference in the Prospectus (including exhibits thereto). If the delivery of a
prospectus is required at any time in connection with the offering or sale of
the Certificates and if at such time any events shall have occurred as a
result of which the Prospectus, as then amended or supplemented, would include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in order
to comply with the Securities Act or the Exchange Act, the Sponsor shall
notify the Underwriters and, upon the Underwriters' request based upon the
advice of counsel, shall file such document and prepare and furnish without
charge to the Underwriters and to any dealer in securities as many copies as
the Underwriters may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which corrects such statement or
omission or effects such compliance.
D. To cause to be filed promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Seller or the Underwriters, be required by
the Securities Act or requested by the Commission. Neither the Underwriters'
consent to nor their delivery of any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 7 hereof.
E. To cause to be furnished to the Underwriters and counsel for the
Underwriters, prior to filing with the Commission, and to obtain the consent
of the Underwriters, which consent will not unreasonably be withheld, for the
filing of the following documents relating to the Certificates: (i) any
amendment to the Registration Statement or supplement to the Prospectus, or
document incorporated by reference in the Prospectus, or (ii) the Prospectus
filed pursuant to Rule 424 of the Rules and Regulations.
F. To use its best efforts, in cooperating with the Sponsor and the
Underwriters, to qualify the Certificates for offering and sale under the
applicable securities laws of such states and other jurisdictions of the
United States as the Underwriters may designate, and
10
maintain or cause to be maintained such qualifications in effect for as long
as may be required for the distribution of the Certificates. The Seller will
cause the filing of such statements and reports as may be required by the laws
of each jurisdiction in which the Certificates have been so qualified.
G. The Seller will not, without the prior written consent of the
Representative, contract to sell any automobile receivables-backed
certificates, automobile receivables-backed notes or other similar securities
either directly or indirectly (as through the Sponsor) for a period of five
(5) business days after the later of the termination of the syndicate or the
Closing Date.
H. So long as the Certificates shall be outstanding, the Seller shall
deliver to the Underwriters as soon as such statements are furnished to the
Trustee: (i) the annual statement as to compliance of the Servicer delivered
to the Trustee pursuant to Section 3.10 of the Pooling and Servicing
Agreement; (ii) the annual statement of a firm of independent public
accountants furnished to the Trustee pursuant to Section 3.11 of the Pooling
and Servicing Agreement with respect to the Servicer; and (iii) the monthly
reports furnished to the Certificateholders pursuant to Section 3.9 of the
Pooling and Servicing Agreement.
I. So long as any of the Certificates are outstanding, the Seller will
furnish to the Underwriters (i) as soon as practicable after the end of the
fiscal year of the Trust, all documents required to be distributed to
Certificateholders and other filings with the Commission pursuant to the
Exchange Act, or any order of the Commission thereunder with respect to any
securities issued by the Sponsor or the Seller that are (A) non-structured
equity or debt offering of the Sponsor or the Seller or (B) the Certificates
and (ii) from time to time, any other information concerning the Sponsor or
the Seller filed with any government or regulatory authority which is
otherwise publicly available, as the Underwriters shall reasonably request in
writing.
J. To apply the net proceeds from the sale of the Certificates in the
manner set forth in the Prospectus.
K. 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 the Seller, 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 the Sponsor or the Seller, the Seller will give prompt written notice
thereof to the Underwriters.
L. To the extent, if any, that the ratings provided with respect to the
Certificates by the rating agency or agencies that initially rate the
Certificates are conditional upon the furnishing of documents or the taking of
any other actions by the Sponsor or the Seller, the Seller shall use its best
efforts to furnish or cause to be furnished such documents and take any such
other actions.
Section 7. Conditions of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Certificates pursuant to this
Agreement are subject to (i) the
11
accuracy on and as of the Closing Date of the representations and warranties
on the part of the Companies herein contained, (ii) the accuracy of the
statements of officers of the Companies made pursuant hereto, (iii) the
performance by the Companies of all of their respective obligations hereunder,
and the performance by the Companies of all of their respective obligations
under the Sponsor Agreements and the Seller Agreements and (iv) the following
conditions as of the Closing Date:
A. No stop order suspending the effectiveness of the Registration
Statement shall have been issued, and no proceeding for that purpose shall
have been initiated or threatened by the Commission. Any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus shall have been complied with.
B. The Underwriters shall have received the Pooling and Servicing
Agreement, the Purchase Agreement, [the Indemnification Agreement] and the
Certificates in form and substance satisfactory to the Underwriters and duly
executed by the signatories required pursuant to the respective terms thereof.
C. The Underwriters shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP,
counsel for the Companies, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters to the effect that:
(i) The issuance and sale of the Certificates have been duly
authorized and, when executed, authenticated, countersigned and delivered
by the Trustee in accordance with the Pooling and Servicing Agreement and
delivered and paid for pursuant to this Agreement, will be validly issued
and outstanding and will be entitled to the benefits of the Pooling and
Servicing Agreement.
(ii) No authorization, approval, consent or order of, or filing
with, any court or governmental agency or authority is necessary under
the federal law of the United States or the laws of the State of New York
in connection with the execution, delivery and performance by the Sponsor
of the Sponsor Agreements and by the Seller of the Seller Agreements,
except such as may be required under the Act or the Rules and Regulations
and Blue Sky or other state securities laws, filings with respect to the
transfer of the Receivables to the Trust pursuant to the Pooling and
Servicing Agreement and such other approvals or consents as have been
obtained.
(iii) Each Sponsor Agreement and each Seller Agreement constitutes
the legal, valid and binding obligation of the Sponsor or the Seller, as
appropriate, enforceable against each of the Sponsor or the Seller, as
appropriate, in accordance with their respective terms, except that as to
enforceability such enforcement may (A) be subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the rights of creditors generally, (B) be limited by general
principles of equity (whether considered in a proceeding at law or in
equity) and (C) the enforceability as to rights to indemnification may be
subject to limitations of public policy under applicable laws.
12
(iv) None of the Sponsor, the Seller nor the Trust is required to be
registered as an "investment company" under the 1940 Act, as amended.
(v) The direction by the Seller to the Trustee to execute, issue,
countersign and deliver the Excess Cash Flow Certificate has been duly
authorized and, when the Excess Cash Flow Certificate is executed and
authenticated by the Trustee in accordance with the Pooling and Servicing
Agreement and delivered and paid for, they will be validly issued and
outstanding and entitled to the benefits provided by the Pooling and
Servicing Agreement.
(vi) The Seller has full power and authority to sell and assign the
property to be sold and assigned to and deposited with the Trustee as
part of the Trust Estate and has duly authorized such sale and assignment
to the Trustee by all necessary corporate action.
(vii) The Certificates, the Pooling and Servicing Agreement, the
Purchase Agreement and this Agreement each conform in all material
respects with the respective descriptions thereof contained in the
Registration Statement and the Prospectus.
(viii) The statements in the Base Prospectus under the captions
"Summary of Prospectus - Material Federal Income Tax Consequences",
"Summary of Prospectus - ERISA Considerations", "ERISA Considerations"
and "Material Federal Income Tax Consequences" and the statements in the
Prospectus Supplement under the captions "Material Federal Income Tax
Consequences" and "ERISA Considerations", to the extent that they
constitute matters of law or legal conclusions with respect thereto, have
been reviewed by counsel and represent a fair and accurate summary of the
matters addressed therein, under existing law and the assumptions stated
therein.
(ix) The statements in the Base Prospectus under the caption
"Material Legal Aspects of the Automobile Loans" to the extent they
constitute matters of law or legal conclusions, are correct in all
material respects.
(x) The Registration Statement is effective under the Act and no
stop order suspending the effectiveness of the Registration Statement has
been issued, and to the best of such counsel's knowledge no proceeding
for that purpose has been instituted or threatened by the Commission
under the Act.
(xi) The conditions to the use by the Sponsor of a registration
statement on Form S-3 under the Securities 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 Securities Act or the Rules and Regulations
thereunder which have not been so filed.
(xii) The Registration Statement at the time it became effective,
and any amendments thereto at the time such amendment becomes effective
(other than the information set forth in the financial statements and
other financial and statistical information contained therein, as to
which such counsel need express no opinion),
13
complied as to form in all material respects with the applicable
requirements of the Act and the Rules and Regulations thereunder.
(xiii) The execution, delivery and performance of each Sponsor
Agreement by the Sponsor will not conflict with or violate any federal
statute, rule, regulation or order of any federal governmental agency or
body, or any federal court having jurisdiction over the Sponsor or its
properties or assets.
(xiv) The execution, delivery and performance of each Seller
Agreement by the Seller will not conflict with or violate any federal
statute, rule, regulation or order of any federal governmental agency or
body, or any federal court having jurisdiction over the Seller or its
properties or assets.
In addition, counsel shall state that such counsel has participated in
conferences with officers and other representatives of each of the Seller, the
Sponsor, the Servicer, [the Certificate Insurer,] the Trustee and the
Underwriters at which the contents of the Registration Statement and the
Prospectus and related matters were discussed and on the basis of the
foregoing, no facts have come to such counsel's attention that have led such
counsel to believe the Registration Statement, at the time it became effective
and as of the date of such counsel's opinion, contained or contains an untrue
statement of a material fact or omitted or omits 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 date of such
counsel's opinion, contained or contains an untrue statement of material fact
or omitted or omits to state a material fact necessary to make the statements
therein not misleading; it being understood that such counsel need express no
belief with respect to the financial statements, schedules and other financial
and statistical data included in the Registration Statement or the Prospectus.
D. The Sponsor shall have delivered to the Underwriters a certificate,
dated the Closing Date, of an authorized officer of the Sponsor to the effect
that the signer of such certificate has carefully examined this Agreement and
the Prospectus and that: (i) the representations and warranties of the Sponsor
in each Sponsor Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on the Closing Date,
(ii) the Sponsor has complied in all material respects with all the agreements
and satisfied in all material respects all the conditions on its part to be
performed or satisfied at or prior to the Closing Date, (iii) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or, to such officer's
knowledge, threatened, (iv) there has been no material adverse change in the
condition (financial or other), earnings, business, properties or prospects of
the Sponsor, whether or not arising from transactions in the ordinary course
of business, except as set forth or contemplated in the Prospectus and (v)
nothing has come to such officer's attention that would lead such officer to
believe that the Company Offering Materials contain any untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
The Sponsor shall attach to such certificate a true and correct copy of
its certificate of incorporation, as appropriate, and bylaws which are in full
force and effect on the
14
date of such certificate and a certified true copy of the resolutions of its
Board of Directors with respect to the transactions contemplated herein.
E. The Underwriters shall have received from the Seller a certificate
dated the Closing Date, of an authorized officer of the Seller to the effect
that the signer of such certificate has carefully examined this Agreement and
the Prospectus and that: (i) the representations and warranties of the Seller
in each Seller Agreement are true and correct in all material respects at and
as of the Closing Date with the same effect as if made on the Closing Date,
(ii) the Seller has complied in all material respects with all the agreements
and satisfied all the conditions on its part to be performed or satisfied in
all material respects at or prior to the Closing Date, (iii) there has been no
material adverse change in the condition (financial or other), earnings,
business, properties or prospects of the Seller whether or not arising from
transactions in the ordinary course of business, except as set forth or
contemplated in the Prospectus, and (iv) nothing has come to such officers'
attention that would lead such officer to believe that the Company Offering
Materials contain any untrue statement of a material fact or omit to state any
material facts required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
The Seller shall attach to such certificate a true and correct copy of
its certificate of incorporation, as appropriate, and bylaws which are in full
force and effect on the date of such certificate and a certified true copy of
the resolutions of its Board of Directors with respect to the transactions
contemplated herein.
F. The Underwriters shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.,
general counsel of the Companies, a favorable opinion, dated the Closing Date
and satisfactory in form and substance to the Underwriters and counsel for the
Underwriters to the effect that:
(i) The Sponsor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware. The Seller has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
Delaware. Each of the Sponsor and the Seller has full corporate power to
own its property or assets and to conduct its business as presently
conducted by it and as described in the Prospectus, and is in good
standing in each jurisdiction in which the conduct of its business or the
ownership of its property or assets requires such qualification or where
the failure to be so qualified would have a material adverse effect on
its condition (financial or otherwise).
(ii) Each Sponsor Agreement and each Seller Agreement has been duly
authorized, executed and delivered by authorized officers or signers of
the Sponsor or the Seller, as appropriate.
(iii) The direction by the Seller to the Trustee to execute, issue,
countersign and deliver the Certificates has been duly authorized by the
Seller.
(iv) The execution, delivery and performance of each Sponsor
Agreement by the Sponsor will not conflict with or result in a material
breach of any of the terms or provisions of, or constitute a material
default under, or result in the creation or imposition
15
of any Lien upon any of the property or assets of the Sponsor pursuant to
the terms of the certificate of incorporation or the by-laws of the
Sponsor or any statute, rule, regulation or order of any governmental
agency or body of the State of Delaware, or any Delaware state court
having jurisdiction over the Sponsor or its property or assets or any
material agreement or instrument known to such counsel to which the
Sponsor is a party or by which the Sponsor or any of its property or
assets is bound.
(v) The execution, delivery and performance of each Seller Agreement
by the Seller will not conflict with or result in a material breach of
any of the terms or provisions of, or constitute a material default
under, or result in the creation or imposition of any Lien upon any of
the property or assets of the Seller pursuant to the terms of the
certificate of incorporation or the by-laws of the Seller or any statute,
rule, regulation or order of any governmental agency or body of the State
of Delaware, or any Delaware state court having jurisdiction over the
Seller or its property or assets or any material agreement or instrument
known to such counsel, to which the Seller is a party or by which the
Seller or any of its property or assets is bound.
(vi) No authorization, approval, consent or order of, or filing
with, any court or governmental agency or authority of the State of
Delaware is necessary in connection with the execution, delivery and
performance by the Sponsor of any Sponsor Agreement except such as may be
required under the Securities Act or the Rules and Regulations and Blue
Sky or other state securities laws filings with respect to the transfer
of the Receivables to the Trust pursuant to the Pooling and Servicing
Agreement and such other approvals or consents as have been obtained.
(vii) No authorization, approval, consent or order of, or filing
with, any court or governmental agency or authority of the State of
Delaware is necessary in connection with the execution, delivery and
performance by the Seller of any Seller Agreement, except such as may be
required under the Act or the Rules and Regulations and Blue Sky or other
state securities laws, filings with respect to the transfer of the
Receivables to the Trust pursuant to the Pooling and Servicing Agreement
and such other approvals or consents as have been obtained.
(viii) There are no legal or governmental proceedings pending to
which the Sponsor or the Seller is a party or of which any property or
assets of the Sponsor or the Seller is the subject, and no such
proceedings are to the best of such counsel's knowledge threatened or
contemplated by governmental authorities against the Sponsor, the Seller
or the Trust, that, (A) are required to be disclosed in the Registration
Statement or (B) (i) assert the invalidity against the Sponsor of all or
any part of any Sponsor Agreement or against the Seller of all or any
part of any Seller Agreement, (ii) seek to prevent the issuance of the
Securities, (iii) could materially adversely affect the Sponsor's or the
Seller's obligations under any Sponsor Agreement or any Seller Agreement,
as appropriate, or (iv) seek to affect adversely the federal or state
income tax attributes of the Securities.
G. [INSURED TRANSACTIONS ONLY] [The Underwriters shall have received from
special counsel to the Certificate Insurer, reasonably acceptable to the
16
Underwriters, a favorable opinion dated the Closing Date and satisfactory in
form and substance to the Underwriters and counsel for the Underwriters, to
the effect that:
(i) The Certificate Insurer is a __________________ licensed and
authorized to transact insurance business and to issue, deliver and
perform its obligations under its surety bonds under the laws of the
State of ____________. The Certificate Insurer (a) is a ______________
validly existing and in good standing under the laws of the State of
_________, (b) has the corporate power and authority to own its assets
and to carry on the business in which it is currently engaged, and (c) is
duly qualified and in good standing as a foreign corporation under the
laws of each jurisdiction where failure so to qualify or to be in good
standing would have a material and adverse effect on its business or
operations.
(ii) No litigation or administrative proceedings of or before any
court, tribunal or governmental body are currently pending or, to the
best of such counsel's knowledge, threatened against the Certificate
Insurer, which, if adversely determined, would have a material and
adverse effect on the ability of the Certificate Insurer to perform its
obligations under the Policy.
(iii) The Policy and the Indemnification Agreement constitute the
irrevocable, valid, legal and binding obligations of the Certificate
Insurer in accordance with their respective terms to the extent provided
therein, enforceable against the Certificate Insurer in accordance with
their respective terms, except as the enforceability thereof and the
availability of particular remedies to enforce the respective terms
thereof against the Certificate Insurer may be limited by applicable laws
affecting the rights of creditors of the Certificate Insurer and by the
application of general principles of equity.
(iv) The Certificate Insurer, as an insurance company, is not
eligible for relief under the United States Bankruptcy Code. Any
proceedings for the liquidation, conservation or rehabilitation of the
Certificate Insurer would be governed by the provisions of the Insurance
Law of the State of New York.
(v) The statements set forth in the Prospectus Supplement under the
captions "The Insurer" and "The Policy" are true and correct, except that
no opinion is expressed as to financial statements or other financial
information included in the Prospectus relating to the Certificate
Insurer and, insofar as such statements constitute a summary of the
Policy, accurately and fairly summarize the terms of the Policy.
(vi) The Policy constitutes an insurance policy within the meaning
of Section 3(a)(8) of the Securities Act.
(vii) Neither the execution or delivery by the Certificate Insurer
of the Policy or the Indemnification Agreement, nor the performance by
the Certificate Insurer of its obligations thereunder, will conflict with
any provision of the certificate of incorporation or the amended by-laws
of the Certificate Insurer nor, to the best of such counsel's knowledge,
result in a breach of, or constitute a default under, any agreement or
other instrument to which the Certificate Insurer is a party or by which
any of its property is
17
bound nor, to the best of such counsel's knowledge, violate any judgment,
order or decree applicable to the Certificate Insurer of any governmental
regulatory body, administrative agency, court or arbitrator located in
any jurisdiction in which the Certificate Insurer is licensed or
authorized to do business. The Underwriters shall have received from
________________, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the validity of the Securities
and such other related matters as the Underwriters may require.
H. The Underwriters shall have received from counsel to the Trustee and
the Back-Up Servicer, a favorable opinion dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, to the effect that:
(i) The Trustee has been duly incorporated and is validly existing
as a banking corporation in good standing under the laws of the State of
__________.
(ii) The Trustee and the Back-Up Servicer each have full corporate
trust power and authority to enter into and perform its obligations under
the Pooling and Servicing Agreement, as the case may be, including, but
not limited to, its obligation to serve in the capacity of Trustee and to
execute, issue, countersign and deliver the Certificates.
(iii) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Trustee and constitutes a legal, valid and
binding obligation of the Trustee enforceable against the Trustee, in
accordance with its terms, except that as to enforceability such
enforcement may (A) be subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights of
creditors generally and (B) be limited by general principles of equity
(whether considered in a proceeding at law or in equity).
(iv) The Securities have been duly authorized, executed and
authenticated by the Trustee on the date hereof on behalf of the Trust in
accordance with the Pooling and Servicing Agreement.
(v) The execution, delivery and performance of the Pooling and
Servicing Agreement and the Certificates by the Trustee will not conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any of the property or assets of the
Trustee pursuant to the terms of the articles of association or the
by-laws of the Trustee or any statute, rule, regulation or order of any
governmental agency or body, or any court having jurisdiction over the
Trustee or its property or assets or any agreement or instrument known to
such counsel, to which the Trustee is a party or by which the Trustee or
any of its respective property or assets is bound.
(vi) No authorization, approval, consent or order of, or filing
with, any state or federal court or governmental agency or authority is
necessary in connection with the execution, delivery and performance by
the Trustee or the Back-Up Servicer of the Pooling and Servicing
Agreement and the Securities, as applicable.
18
I. The Underwriters shall have received from counsel to the Trustee a
favorable opinion dated the Closing Date and satisfactory in form and
substance to the Underwriters and counsel for the Underwriters, to the effect
that:
(i) The Trustee has been duly incorporated and is validly existing
as a banking corporation in good standing under the laws of the United
States of America.
(ii) The Trustee has full corporate trust power and authority to
enter into and perform its obligations under the Pooling and Servicing
Agreement, as the case may be, including, but not limited to, its
obligation to serve in the capacity of Trustee and to execute, issue,
countersign and deliver the Excess Cash Flow Certificate.
(iii) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Trustee and constitutes a legal, valid and
binding obligation of the Trustee enforceable against the Trustee, in
accordance with its terms, except that as to enforceability such
enforcement may (A) be subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the rights of
creditors generally and (B) be limited by general principles of equity
(whether considered in a proceeding at law or in equity).
(iv) The Excess Cash Flow Certificate has been duly authorized,
executed and authenticated by the Trustee on the date hereof on behalf of
the Trust in accordance with the Pooling and Servicing Agreement.
(v) The execution, delivery and performance of the Pooling and
Servicing Agreement and the Excess Cash Flow Certificate by the Trustee
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any of the property
or assets of the Trustee pursuant to the terms of the articles of
association or the by-laws of the Trustee or any statute, rule,
regulation or order of any governmental agency or body, or any court
having jurisdiction over the Trustee or its property or assets or any
agreement or instrument known to such counsel, to which the Trustee is a
party or by which the Trustee or any of its respective property or assets
is bound.
(vi) No authorization, approval, consent or order of, or filing
with, any state or federal court or governmental agency or authority is
necessary in connection with the execution, delivery and performance by
the Trustee of the Pooling and Servicing Agreement and the Excess Cash
Flow Certificate, as applicable.
J. [Name of trustee] ("[____]") shall have furnished to the Underwriters
a certificate of [____], signed by one or more duly authorized officers of
[____], dated the Closing Date, as to the due authorization, execution and
delivery of the Pooling and Servicing Agreement by [____] and the acceptance
by the Trustee of the trust created thereby and the due execution and delivery
of the Excess Cash Flow Certificate by the Trustee thereunder and such other
matters as the Underwriters shall reasonably request.
K. [The Indemnification Agreement shall have been executed and delivered,
in which the Certificate Insurer shall represent, among other representations,
that (i) the
19
information under the captions, "The Insurance Policy" in the section entitled
"Summary", "The Policy" and "The Insurer" in the Prospectus Supplement was
approved by the Certificate Insurer and does not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and (ii) there has been no change in the financial
condition of the Certificate Insurer since _______, ____, which would have a
material adverse effect on the Certificate Insurer's ability to meet its
obligations under the Policy.]
L. [The Policy shall have been issued by the Certificate Insurer and
shall have been duly countersigned by an authorized agent of the Certificate
Insurer, if so required under applicable state law or regulation.]
M. The Certificates shall have been rated ["___"] by __________.
N. The Underwriters shall have received copies of letters dated as of the
Closing Date, from the rating agencies stating the current ratings of the
Certificates as set forth in Section O above.
O. The Underwriters shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP,
counsel to the Companies, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, as to true sale matters relating to the transaction, and the
Underwriters shall be addressees of any opinions of counsel supplied to the
rating organizations relating to the Certificates.
P. All proceedings in connection with the transactions contemplated by
this Agreement, and all documents incident hereto, shall be reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, and the Underwriters and counsel for the Underwriters shall have
received such other information, opinions, certificates and documents as they
may reasonably request in writing.
Q. The Prospectus and any supplements thereto shall have been filed (if
required) with the Commission in accordance with the rules and regulations
under the Act and Section 2 hereof, and prior to the Closing Date, no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted or
shall be contemplated by the Commission or by any authority administering any
state securities or Blue Sky law.
R. On the Closing Date the Underwriters shall have received from [Name of
accountants] a letter dated as of the Closing Date, in the form heretofore
agreed to.
S. The Underwriters shall have received from local counsel, in the states
where there is a concentration of 10% or more of the Receivables, an opinion
dated the Closing Date as to the perfection of security interests in
automobiles in such states.
If any condition specified in this Section 7 shall not have been
fulfilled when and as required to be fulfilled, (i) this Agreement may be
terminated by the Representative by notice to both of the Companies 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 8 and
(ii) the
20
provisions of Section 8, the indemnity set forth in Section 9, the
contribution provisions set forth in Section 9 and the provisions of Sections
12 and 15 shall remain in effect.
Section 8. Payment of Expenses. The Seller agrees to pay the following
expenses incident to the performance of the Companies' obligations under this
Agreement, (i) the filing of the Registration Statement and all amendments
thereto, (ii) the duplication and delivery to the Underwriters, in such
quantities as the Underwriters may reasonably request, of copies of this
Agreement, (iii) the preparation, issuance and delivery of the Certificates,
(iv) the fees and disbursements of ___________________, counsel for the
Underwriters, (v) the fees and disbursements of [Name of accountants],
accountants of the Companies, (vi) 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 hereof,
including filing fees and the fees and disbursements of __________, counsel to
the Underwriters, in connection therewith and in connection with the
preparation of any Blue Sky survey, (vii) the printing and delivery to the
Underwriters in such quantities as the Underwriters may reasonably request, of
copies of the Registration Statement and Prospectus and all amendments and
supplements thereto, and of any Blue Sky survey, (viii) the duplication and
delivery to the Underwriters, in such quantities as the Underwriters may
reasonably request, of copies of the Pooling and Servicing Agreement and the
other transaction documents, (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
Trustee and its counsel and [(xii) the fees and expenses of the Certificate
Insurer and its counsel.]
If this Agreement is terminated by the Representative in accordance with
the provisions of Section 7, the Companies shall reimburse the Representative
for all reasonable third-party out-of-pocket expenses, including the
reasonable fees and disbursements of __________, the Representative's counsel.
Section 9. Indemnification. A. The Sponsor agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls such
Underwriters within the meaning of the Securities Act or the Exchange Act,
from and against any and all loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
the Certificates), to which such Underwriters or any such controlling person
may become subject, under the Securities Act or the Exchange Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Company Offering Materials, (ii) the omission or alleged
omission to state in the Registration Statement a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(iii) the omission or alleged omission to state in the Company Offering
Materials other than the Registration Statement a material fact required to be
stated or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and shall reimburse
each Underwriter and each such controlling person promptly upon demand for any
documented legal or documented other expenses reasonably incurred by such
Underwriter or such controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
foregoing indemnity with respect to any untrue statement contained in or
omission from the Prospectus shall not inure to
21
the benefit of any Underwriter if the Sponsor shall sustain the burden of
proving that the person asserting against such Underwriter the loss,
liability, claim, damage or expense purchased any of the Certificates which
are the subject thereof and was not sent or given a copy of the appropriate
Prospectus (or the appropriate Prospectus as amended or supplemented) (the
term Prospectus as used in this clause shall not include documents
incorporated by reference thereto), if required by law, at or prior to the
written confirmation of the sale of such Certificates and prior to delivery of
such confirmation the Sponsor had furnished such Underwriter with a supplement
to such Prospectus (or Prospectus as amended or supplemented) correcting the
untrue statement in or omission from such Prospectus (or Prospectus as amended
or supplemented).
The foregoing indemnity agreement is in addition to any liability which
the Sponsor may otherwise have to the Underwriters or any controlling person
of any of the Underwriters.
B. Each of the Underwriters agrees to severally and not jointly indemnify
and hold harmless the Sponsor, the directors and the officers of the Sponsor
who signed the Registration Statement, and each person, if any, who controls
the Sponsor within the meaning of the Securities Act or the Exchange Act
against any and all loss, claim, damage or liability, or any action in respect
thereof, to which the Sponsor, or any such director, officer or controlling
person may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of
a material fact relating to such Underwriter contained in the Underwriter
Information or (ii) 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 shall reimburse the Sponsor, promptly on demand, and
any such director, officer or controlling person for any documented legal or
other documented expenses reasonably incurred by the Sponsor, or any director,
officer or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action
as such expenses are incurred.
The foregoing indemnity agreement is in addition to any liability which
the Underwriters may otherwise have to the Sponsor or any such director,
officer or controlling person.
C. Promptly after receipt by any indemnified party under this Section 9
of notice of any claim or the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 9, promptly notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify an indemnifying party shall not relieve it
from any liability which it may have under this Section 9 except to the extent
it has been materially prejudiced by such failure; and provided, further, that
the failure to notify any indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 9.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying
22
party, to assume the defense thereof with counsel reasonably satisfactory to
the indemnified party, unless such indemnified party reasonably objects to
such assumption on the ground that there may be legal defenses available to it
which are different from or in addition to those available to such
indemnifying party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, except to the extent provided in the next following paragraph, the
indemnifying party shall not be liable to the indemnified party under this
Section 9 for any fees and expenses of counsel subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
Any indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if
such indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party,
the indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm of attorneys
(in addition to local counsel) at any time for all such indemnified parties,
which firm shall be designated in writing by the Representative, if the
indemnified parties under this Section 9 consist of the Underwriters or any of
their controlling persons, or by the Companies, if the indemnified parties
under this Section 9 consist of either of the Companies or any of the
Companies' directors, officers or controlling persons, but in either case
reasonably satisfactory to the indemnified party.
Each indemnified party, as a condition of the indemnity agreements
contained in Sections 9A and B, shall use its best efforts to cooperate with
the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees
to indemnify and hold harmless any indemnified party from and against any loss
or liability by reason of such settlement or judgment. No indemnifying party
shall, without prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which such
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.
Notwithstanding the foregoing, if (x) the indemnified party has made a
proper request to the indemnifying party for the payment of the indemnified
party's legal fees and
23
expenses, as permitted hereby, and (y) such request for payment has not been
honored within thirty days, then, for so long as such request thereafter
remains unhonored, the indemnifying party shall be liable for any settlement
entered into by the indemnified party whether or not the indemnifying party
consents thereto.
D. Each Underwriter agrees to deliver to the Companies no later than the
date prior to the date on which the Form 8-K is required to be filed pursuant
to Section 2A (i) hereof with a copy of its Derived Information (defined
below) for filing with the Commission on Form 8-K.
E. (i) Each Underwriter agrees, assuming all Company-Provided
Information (defined below) is accurate and complete in all material respects,
to severally and not jointly indemnify and hold harmless the Sponsor, each of
the Sponsor's officers and directors and each person who controls the Sponsor
within the meaning of Section 15 of the Securities Act against any and all
losses, claims, damages or liabilities, joint or several, to which they may
become subject under the Securities 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 such 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; provided, however,
that in no case shall any Underwriter be responsible for any amount in excess
of the underwriting discount applicable to the Certificates purchased by such
Underwriter. The obligations of each of the Underwriters under this Section
9E(i) shall be in addition to any liability which such Underwriter may
otherwise have.
(ii) The Sponsor agrees to indemnify and hold harmless each Underwriter,
each of such Underwriter's officers and directors and each person who controls
such Underwriter within the meaning of Section 15 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 Company-Provided
Information, 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 Sponsor's
obligation under this Section 9E(ii) shall be in addition to any liability which
they may otherwise have to the Underwriters.
The procedures set forth in Section 9C shall be equally applicable to
this Section 9E.
24
F. For purposes of this Section 9, the term "Derived Information" means
such portion, if any, of the information delivered to the Sponsor or the
Seller pursuant to Section 9D 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 Company-Provided Information; and
(iii) is of the type of information defined as Collateral term sheets,
Structural term sheets or Computational Materials (as such terms are
interpreted in the No-Action Letters).
"Company-Provided Information" means (i) any computer tape furnished to
the Underwriters by the Sponsor or the Seller concerning the Receivables
comprising the Trust and (ii) any textual information contained in any
Collateral term sheet, Structural term sheet or Computational Materials as
well as any statistical information contained therein furnished directly by
the Sponsor or the Seller for inclusion therein.
The terms "Collateral term sheet" and "Structural term sheet" shall have
the respective meanings assigned to them in the February 13, 1995 letter (the
"PSA Letter") of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ on behalf of the Public
Securities Association (which letter, and the SEC staff's response thereto,
were publicly available February 17, 1995). The term "Collateral term sheet"
as used herein includes any subsequent Collateral term sheet that reflects a
substantive change in the information presented. The term "Computational
Materials" has the meaning assigned to it in the May 17, 1994 letter (the
"▇▇▇▇▇▇ letter" and together with the PSA Letter, the "No-Action Letters") of
▇▇▇▇▇ & ▇▇▇▇ on behalf of ▇▇▇▇▇▇, Peabody & Co., Inc. (which letter, and the
SEC staff's response thereto, were publicly available May 20, 1994).
G. If the indemnification provided for in this Section 9 shall for any
reason be unavailable to hold harmless an indemnified party under Section 9A
or B in respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Sponsor on the
one hand and the Underwriters 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 the Sponsor on the one hand and the Underwriters on the
other with respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations.
The relative benefits of the Underwriters and the Sponsor shall be deemed
to be in such proportion so that the Underwriters are responsible for that
portion represented by the percentage that the underwriting discount appearing
on the cover page of the Prospectus bears to the public offering price
appearing on the cover page of the Prospectus.
25
The relative fault of the Underwriters and the Sponsor shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Sponsor or by one of the Underwriters, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission and other
equitable considerations.
The Sponsor and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 9G were to be determined
by pro rata allocation or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section
9G shall be deemed to include, for purposes of this Section 9G, any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Each person, if any, who controls each Underwriter within the meaning of
the Securities Act or the Exchange Act shall have the same rights to
contribution as each of the Underwriters and each director of the Sponsor
and/or the Seller, each officer of the Sponsor who signed the Registration
Statement, and each person, if any, who controls the Sponsor and/or the Seller
within the meaning of the Securities Act or the Exchange Act shall have the
same rights to contribution as the Sponsor.
In no case shall any Underwriter be responsible for any amount in excess
of the underwriting discount applicable to the Certificates purchased by such
Underwriter hereunder. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation.
H. The Underwriters severally confirm that the information set forth (i)
in the Prospectus Supplement relating to market making and (ii) under the
caption "Underwriting" in the Prospectus Supplement, together with the Derived
Information, is correct and constitutes the only information furnished in
writing to the Sponsor or the Seller by or on behalf of the Underwriters
specifically for inclusion in the Registration Statement and the Prospectus.
Section 10. Default by One or More of the Underwriters. If one or more of
the Underwriters participating in the public offering of the Certificates
shall fail at the Closing Date to purchase the Certificates which it is
obligated to purchase hereunder (the "Defaulted Securities"), then the
non-defaulting Underwriters shall have the right, within 24 hours thereafter,
to make arrangements to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth. If, however, the Underwriters have not completed such arrangements
within such 24-hour period, then:
(i) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of the Certificates to be
purchased pursuant to this Agreement, the non-defaulting Underwriters
shall be obligated, pro rata in the proportion shown in the attached
Schedule 1 as to each non-defaulting Underwriter ("Pro Rata") (unless
the non-
26
defaulting Underwriters agree among themselves to a different
allocation) to purchase the full amount thereof, or
(ii) if the aggregate principal amount of Defaulted Securities exceeds 10%
of the aggregate principal amount of the Certificates to be purchased
pursuant to this Agreement, (a) no non-defaulting Underwriters shall
be required to purchase any Certificates which were to be purchased by
the defaulting Underwriter, (b) the non-defaulting Underwriters may
elect to purchase the remaining amount Pro Rata (unless the
non-defaulting Underwriters agree among themselves to a different
allocation) provided that if the non-defaulting Underwriters have not
agreed to purchase the entire aggregate principal amount of the
Certificates, then this Agreement shall terminate, without any
liability on the party of the non-defaulting Underwriters.
No action taken pursuant to this Section shall relieve the defaulting
Underwriter from the liability with respect to any default of such Underwriter
under this Agreement.
In the event of a default by any Underwriter as set forth in this
Section, each of the Underwriters and the Seller shall have the right to
postpone the Closing Date for a period not exceeding five Business Days in
order that any required changes in the Registration Statement or Prospectus or
in any other documents or arrangements may be effected.
Section 11. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Representative, by notice given to the
Sponsor and the Seller prior to delivery of and payment for the Certificates
if prior to such time (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Trust, the Sponsor or the Seller which, in the reasonable judgment of the
Representative, materially impairs the investment quality of the Certificates
or makes it impractical or inadvisable to market the Certificates; (ii) the
Certificates have been placed on credit watch by S&P or ▇▇▇▇▇'▇ with negative
implications; (iii) trading in securities generally on the New York Stock
Exchange or the National Association of Securities Dealers National Market
System shall have been suspended or limited, or minimum prices shall have been
established on such exchange or market system; (iv) a banking moratorium shall
have been declared by either Federal or New York State authorities; or (v)
there shall have occurred any outbreak or material escalation of hostilities
or other calamity or crisis, the effect of which makes it, in the reasonable
judgment of the Representative, impractical or inadvisable to proceed with the
completion of the sale and payment for the Certificates. Upon such notice
being given, the parties to this Agreement shall (except for any liability
arising before or in relation to such termination) be released and discharged
from their respective obligations under this Agreement.
Section 12. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Companies submitted
pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Representative or
controlling person of the Representative, or by or on behalf of the Companies
or any officers, directors or controlling persons and shall survive delivery
of any Certificates to the Representative or any controlling person.
27
Section 13. 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 to:
The Underwriters: [Name of representative]
_________________________
__________,_______________
Attention: ______________
Fax: _________________
The Sponsor: Long Beach Acceptance Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Seller: Long Beach Acceptance Receivables Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Section 14. Parties. This Agreement shall inure to the benefit of and be
binding upon the Representative and the Companies, and their respective
successors or assigns. 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 Section 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 said 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 Representative shall be
deemed to be a successor by reason merely of such purchase.
SECTION 15. GOVERNING LAW AND TIME. 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 THE CONFLICT OF LAWS PROVISIONS THEREOF. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
28
Section 16. 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.
Section 17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of or affect the meaning or
interpretation of, this Agreement.
29
If the foregoing is in accordance with the Representative's 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 the Representative, the Sponsor and the Seller in accordance with its
terms.
Very truly yours,
LONG BEACH ACCEPTANCE CORP.
By:_________________________
Name:
Title:
LONG BEACH ACCEPTANCE RECEIVABLES CORP.
By:_________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
[NAME OF UNDERWRITER],
Acting on its own behalf and as Representative of the
Underwriters referred to in the foregoing Agreement
By:________________________
Name:
Title:
[Underwriting Agreement]
Schedule 1
Underwriting