LONG BEACH ACCEPTANCE AUTO RECEIVABLES TRUST 20__-_ Class A ___% Asset Backed Notes UNDERWRITING AGREEMENT
Exhibit
1.1
LONG
BEACH ACCEPTANCE AUTO RECEIVABLES TRUST 20__-_
Class
A
___% Asset Backed Notes
[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:
[The
Notes will have the benefit of a note insurance policy (the "Note
Insurance Policy"),
issued by ________________, a __________________ organized under the laws of
_____________ (the "Note
Insurer").]
[In
connection with the issuance of the Note Insurance Policy (i) the Companies,
the
Trust and the Note Insurer will execute and deliver an Insurance Agreement
dated
as of ______________, 20__ (the "Insurance
Agreement")
and
(ii) the Seller, the Underwriters and the Note Insurer will execute and deliver
an Indemnification Agreement dated as of ____________, 20__ (the "Indemnification
Agreement").]
As
used
herein, the term "Sponsor
Agreements"
means
the Sale and Servicing Agreement dated as of ___________, 20__ among the Trust,
the Sponsor, as servicer, the Seller and [Name of trust collateral agent],
a
________________, as trust collateral agent (the "Sale
and Servicing Agreement"),
the
Purchase Agreement between the Sponsor and the Seller dated as of
______________, 20__ (the "Purchase
Agreement"),
[the
Insurance Agreement, the Indemnification Agreement] and this Agreement; the
term
"Seller
Agreements"
means
the Sale and Servicing Agreement, the Purchase Agreement, the Trust Agreement,
[the Insurance Agreement, the Indemnification Agreement] and this
Agreement.
The
Notes
are being purchased by the Underwriters named in Schedule 1 hereto, and the
Underwriters are purchasing, severally, only the Notes 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 Notes will be made by the Underwriters and the Companies
understand that the Underwriters propose to make a public offering of the Notes
for settlement on _____________, 20__ as the Underwriters deem
advisable.
The
Certificate will be retained by the Seller.
Defined
terms used herein shall have their respective meanings as set forth in the
Sale
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 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.
1
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 Notes. 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
Notes, 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 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.
2
(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 Notes, 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 Notes 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
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.
3
(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 Notes, 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 Notes 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 Note Insurance Policy]
and
the Securities that 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.
4
(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 Notes shall be deemed, and shall state that it is, a representation and
warranty as to the matters covered thereby to each person to whom the
representations and warranties in this Section 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 Notes for the sale in any jurisdiction
or
the initiation or threatening of any proceeding for such purpose.
5
(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 Notes, or the consummation by the Seller of
the
transactions 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 Notes by the
Underwriters.
6
(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 Sale
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 Sale 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 Trust 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 Sale and Servicing Agreement, the Purchase Agreement, the
Trust Agreement, [the Indemnification Agreement and the Note Insurance 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 Note Insurance 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 Owner Trustee to execute, authenticate, issue
and
deliver the Certificate will be duly authorized by the Seller and, assuming
the
Owner Trustee has been duly authorized to do so, when executed, authenticated,
issued and delivered by the Owner Trustee in accordance with the Trust
Agreement, the Certificate will be validly issued and outstanding and will
be
entitled to the benefits of the Trust Agreement.
7
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 Notes shall be deemed, and shall state that it is, a representation and
warranty as to the matters covered thereby to each person to whom the
representations and warranties in this Section 2B are made.
Section
3. Purchase
and Sale.
The
Underwriters' commitment to purchase the Notes 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 Notes to the Underwriters, and the Underwriters agree to purchase on the
date of issuance thereof. The purchase prices for the Notes shall be as set
forth on Schedule 1 hereto.
Section
4. Delivery
and Payment.
Payment
of the purchase price for, and delivery of, any Notes to be purchased by the
Underwriters shall be made at the office of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, 1301 Avenue
of
the Americas, New York, New York, 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 Notes 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 Notes 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 Notes 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 Notes 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.
8
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 Notes 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 Notes: (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 Notes 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 maintain or cause to be maintained such qualifications in effect
for as long as may be required for the distribution of the Notes. The Seller
will cause the filing of such statements and reports as may be required by
the
laws of each jurisdiction in which the Notes have been so
qualified.
9
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 Notes 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 [4.10(a)] of the Sale and Servicing Agreement; (ii) the annual statement
of a firm of independent public accountants furnished to the Trustee pursuant
to
Section [4.11] of the Sale and Servicing Agreement with respect to the Servicer;
and (iii) the monthly reports furnished to the Noteholders pursuant to Section
[5.7] of the Sale and Servicing Agreement.
I.
So
long
as any of the Notes 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 Noteholders 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 Notes 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 Notes 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 Notes by the
rating agency or agencies that initially rate the Notes 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 Notes pursuant to this Agreement
are subject to (i) the 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:
10
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 Sale and Servicing Agreement, the Purchase
Agreement, the Indenture, the Trust Agreement, [the Indemnification Agreement]
and the Notes 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 Notes have been duly authorized and, when executed,
authenticated, countersigned and delivered by the Trustee in accordance with
the
Indenture and delivered and paid for pursuant to this Agreement, will be validly
issued and outstanding and will be entitled to the benefits of the Trust
Agreement and the Indenture, respectively.
(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 Sale 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.
(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 Owner Trustee to execute, issue, countersign
and
deliver the Certificate has been duly authorized and, when the Certificate
is
executed and authenticated by the Trustee in accordance with the Trust Agreement
and delivered and paid for, they will be validly issued and outstanding and
entitled to the benefits provided by the Trust Agreement.
11
(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
Securities, the Sale 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), 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.
12
(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 Note 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 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.
13
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 Notes 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 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.
14
(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 Sale
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 Sale 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 Note Insurer, reasonably acceptable to the 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 Note
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 Note 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.
15
(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 Note Insurer, which, if adversely determined,
would have a material and adverse effect on the ability of the Note Insurer
to
perform its obligations under the Note Insurance Policy.
(iii) The
Note
Insurance Policy and the Indemnification Agreement constitute the irrevocable,
valid, legal and binding obligations of the Note Insurer in accordance with
their respective terms to the extent provided therein, enforceable against
the
Note 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 Note Insurer may be limited by
applicable laws affecting the rights of creditors of the Note Insurer and by
the
application of general principles of equity.
(iv) The
Note
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 Note 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 Note Insurer and, insofar as such statements
constitute a summary of the Note Insurance Policy, accurately and fairly
summarize the terms of the Note Insurance Policy.
(vi) The
Note
Insurance 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 Note Insurer of the Note Insurance Policy
or
the Indemnification Agreement, nor the performance by the Note Insurer of its
obligations thereunder, will conflict with any provision of the certificate
of
incorporation or the amended by-laws of the Note 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 Note Insurer is a party or by
which any of its property is bound nor, to the best of such counsel's knowledge,
violate any judgment, order or decree applicable to the Note Insurer of any
governmental regulatory body, administrative agency, court or arbitrator located
in any jurisdiction in which the Note Insurer is licensed or authorized to
do
business.]
16
H.
The
Underwriters shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, 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.
I.
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 Indenture, 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
Notes.
(iii) The
Indenture 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
Notes
have been duly authorized, executed and authenticated by the Trustee on the
date
hereof on behalf of the Trust in accordance with the Indenture.
(v) The
execution, delivery and performance of the Indenture and the Notes 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 Indenture and the Notes, as applicable.
J.
The
Underwriters shall have received from counsel to the Owner 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
Owner
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.
17
(ii) The
Owner
Trustee has full corporate trust power and authority to enter into and perform
its obligations under the Trust Agreement, as the case may be, including, but
not limited to, its obligation to serve in the capacity of Owner Trustee and
to
execute, issue, countersign and deliver the Certificate.
(iii) The
Trust
Agreement has been duly authorized, executed and delivered by the Owner Trustee
and constitutes a legal, valid and binding obligation of the Owner Trustee
enforceable against the Owner 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
Certificate has been duly authorized, executed and authenticated by the Owner
Trustee on the date hereof on behalf of the Trust in accordance with the Trust
Agreement.
(v) The
execution, delivery and performance of the Trust Agreement and the Certificate
by the Owner 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 Owner Trustee pursuant to the terms of the articles of association
or the by-laws of the Owner Trustee or any statute, rule, regulation or order
of
any governmental agency or body, or any court having jurisdiction over the
Owner
Trustee or its property or assets or any agreement or instrument known to such
counsel, to which the Owner Trustee is a party or by which the Owner 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 Owner Trustee of the Trust
Agreement and the Certificate, as applicable.
K.
[Name
or
indenture 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 Indenture and the Sale and Servicing Agreement by [____] and the acceptance
by the Trustee of the trust created thereby and the due execution and delivery
of the Notes by the Trustee thereunder and such other matters as the
Underwriters shall reasonably request.
L.
[Name
of
owner 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 Trust
Agreement by [____] and the acceptance by the Owner Trustee of the trust created
thereby and the due execution and delivery of the Certificate by the Owner
Trustee thereunder and such other matters as the Underwriters shall reasonably
request.
18
M.
[The
Indemnification Agreement shall have been executed and delivered, in which
the
Note Insurer shall represent, among other representations, that (i) the
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 Note 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
Note Insurer since _______, ____, which would have a material adverse effect
on
the Note Insurer's ability to meet its obligations under the Note Insurance
Policy.]
N.
[The
Note
Insurance Policy shall have been issued by the Note Insurer and shall have
been
duly countersigned by an authorized agent of the Note Insurer, if so required
under applicable state law or regulation.]
O.
The
Notes
shall have been rated ["___"] by __________.
P.
The
Underwriters shall have received copies of letters dated as of the Closing
Date,
from the rating agencies stating the current ratings of the Notes as set forth
in Section O above.
Q.
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 Notes.
R.
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.
S.
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.
T.
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.
U.
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 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.
19
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
Notes, (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 Notes under
securities and Blue Sky laws and the determination of the eligibility of the
Notes 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
Sale and Servicing Agreement, the Indenture, the Trust Agreement and the other
transaction documents, (ix) the fees charged by nationally recognized
statistical rating agencies for rating the Notes, (x) the fees and expenses
of
the Trustee and its counsel, (xi) the fees and expenses of the Owner Trustee
and
its counsel and [(xii) the fees and expenses of the Note 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 Notes), 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 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 Notes 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 Notes 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).
20
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.
21
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 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.
22
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
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.
(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 Notes 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.
23
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 Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the 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.
24
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 Notes 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 Notes
shall fail at the Closing Date to purchase the Notes 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 Notes 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-defaulting Underwriters agree among themselves to a different
allocation) to purchase the full amount thereof, or
25
(ii) if
the
aggregate principal amount of Defaulted Securities exceeds 10% of the aggregate
principal amount of the Notes to be purchased pursuant to this Agreement, (a)
no
non-defaulting Underwriters shall be required to purchase any Notes 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 Notes, 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 Notes 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 Notes or makes it impractical or inadvisable to market the Notes;
(ii) the Notes 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 Notes. 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 Notes to
the
Representative or any controlling person.
26
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 Notes 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.
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.
27
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.
28
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:
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:
Schedule
1
Underwriting