EXHIBIT 1.1
LONG BEACH ACCEPTANCE AUTO RECEIVABLES TRUST 20__-_
Class A ___% Asset Backed Notes
UNDERWRITING AGREEMENT
[Name of underwriter],
As Representative of the Underwriters
_________________________
___________, ____________
_____________, 20__
Ladies and Gentlemen:
Long Beach Acceptance Corp., a corporation organized and existing under
the laws of Delaware (the "Sponsor"), and Long Beach Acceptance Receivables
Corp., a corporation organized and existing under the laws of Delaware (the
"Seller") (the Sponsor and the Seller, collectively, the "Companies"), agree
with you as follows:
Section 1. Issuance and Sale of Notes. The Sponsor has authorized the
issuance and sale of $____________ Class A ___% Asset Backed Notes (the
"Notes"). The Notes are to be issued by Long Beach Acceptance Auto Receivables
Trust 20__-_ (the "Trust") pursuant to an Indenture, to be dated as of
_____________, 20__ (the "Indenture"), between the Trust and [Name of
indenture trustee], a ________________, as indenture trustee (the "Trustee")
and as Trust Collateral Agent. In addition to the Notes, the Trust will also
issue an Asset Backed Certificate representing the beneficial ownership
interests in the Trust (the "Certificate") (the Notes and the Certificate,
collectively, the "Securities") pursuant to a Trust Agreement, dated as of
____________, 20__, as amended and restated as of ___________, 2001 between
the Seller and [Name of owner trustee], as owner trustee (the "Owner
Trustee"). The assets of the Trust will initially include a pool of retail
installment sale contracts secured by new or used automobiles, light duty
trucks and vans (the "[Initial] Receivables") and certain monies due
thereunder on or after ________________, 20__ (the "[Initial] Cutoff Date").
[Additional retail installment sale contracts secured by new or used
automobiles, light duty trucks and vans (the "Subsequent Receivables") and
certain monies due thereunder on or after the applicable Subsequent Cutoff
Date are intended to be purchased by the Trust from the Seller from time to
time on or before the end of the Funding Period, from funds available under
the Pre-Funded Amount. The [Initial] Receivables and the Subsequent
Receivables are hereinafter referred to as the "Receivables."]
[The 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 ______________, 2001 (the "Insurance
Agreement") and (ii) the Seller, the Underwriters and the Note Insurer will
execute and deliver an Indemnification Agreement dated as of ____________,
2001 (the "Indemnification Agreement").]
As used herein, the term "Sponsor Agreements" means the Sale and
Servicing Agreement dated as of ___________, 2001 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 ______________, 2001 (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
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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.
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
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misleading; any further documents so filed and incorporated by reference in
the Company Offering Materials, when such documents are filed with the
Commission will conform in all material respects to the requirements of the
Exchange Act and the Rules and Regulations of the Commission thereunder and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(iv) Since the respective dates as of which information is given in the
Company Offering Materials, or the Company Offering Materials as amended and
supplemented, (x) there has not been any material adverse change, or any
development involving a prospective material adverse change, in or affecting
the general affairs, business, management, financial condition, stockholders'
equity, results of operations, regulatory situation or business prospects of
the Sponsor and (y) the Sponsor has not entered into any transaction or
agreement (whether or not in the ordinary course of business) material to the
Sponsor that, in either case, would reasonably be expected to materially
adversely affect the interests of the holders of the 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
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Agreement constitutes, a valid and binding agreement of the Sponsor,
enforceable against the Sponsor in accordance with its respective terms,
except to the extent that the enforceability hereof may be subject (x) to
insolvency, reorganization, moratorium, receivership, conservatorship, or
other similar laws, regulations or procedures of general applicability now or
hereafter in effect relating to or affecting creditors' rights generally, (y)
to general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law), and (z) with respect to rights of
indemnity under this Agreement, to limitations of public policy under
applicable securities laws.
(ix) The issuance and delivery of the Securities, and the execution,
delivery and performance of each Sponsor Agreement and the consummation of the
transactions contemplated hereby and thereby, do not and will not conflict
with or result in a breach of or violate any term or provision of or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement, or other agreement or instrument to which the Sponsor is a party,
by which the Sponsor may be bound or to which any of the property or assets of
the Sponsor or any of its subsidiaries may be subject, nor will such actions
result in any violation of the provisions of the articles of incorporation or
by-laws of the Sponsor or any law, statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Sponsor
or any of its respective properties or assets.
(x) [Name of accountant] is an independent public accountant with respect
to the Sponsor as required by the Securities Act and the Rules and
Regulations.
(xi) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the
United States is required for the issuance and sale of the 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
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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.
(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.
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(v) The Seller has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification, except
where the failure to be so qualified would not have a material adverse effect
on the business or financial condition of the Seller and has all power and
authority necessary to own or hold its properties, to conduct the business in
which it is engaged and to enter into and perform its obligations under each
Seller Agreement.
(vi) There are no actions, proceedings or investigations pending before
or threatened by any court, administrative agency or other tribunal to which
the Seller is a party or of which any of its properties is the subject (i)
which if determined adversely to it is likely to have a material adverse
effect individually, or in the aggregate, on the business or financial
condition of the Seller, (ii) asserting the invalidity of any Seller Agreement
in whole or in part, (iii) seeking to prevent the issuance of the Securities
or the consummation by the Seller of any of the transactions contemplated by
any Seller Agreement in whole or in part, or (iv) which if determined
adversely is likely to materially and adversely affect the performance by the
Seller of its obligations under, or the validity or enforceability of, any
Seller Agreement in whole or in part or the Securities.
(vii) Each Seller Agreement has been, or, when executed and delivered
will have been, duly authorized, validly executed and delivered by the Seller
and each Seller Agreement constitutes, a valid and binding agreement of the
Seller, enforceable against the Seller in accordance with their respective
terms, except to the extent that the enforceability hereof may be subject (x)
to insolvency, reorganization, moratorium, receivership, conservatorship, or
other similar laws, regulations or procedures of general applicability now or
hereafter in effect relating to or affecting creditors' rights generally, (y)
to general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law), and (z) with respect to rights of
indemnity under this Agreement, to limitations of public policy under
applicable securities laws.
(viii) The execution, delivery and performance of each Seller Agreement
by the Seller and the consummation of the transactions contemplated hereby and
thereby, do not and will not conflict with or result in a breach of or violate
any term or provision of or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, or other agreement or instrument to
which the Seller is a party, by which the Seller may be bound or to which any
of the property or assets of the Seller or any of its subsidiaries may be
subject, nor will such actions result in any violation of the provisions of
the articles of incorporation or by-laws of the Seller or any law, statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Seller or any of its respective properties or
assets.
(ix) [Name of accountant] is an independent public accountant with
respect to the Seller as required by the Securities Act and the Rules and
Regulations.
(x) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the
United States is required for the issuance and sale of the Notes, or the
consummation by the Seller of the transactions
7
contemplated by each Seller Agreement except the registration under the
Securities Act of the Securities and such consents, approvals, authorizations,
registrations or qualifications as may have been obtained or effected or as
may be required under securities or Blue Sky laws in connection with the
purchase and distribution of the Notes by the Underwriters.
(xi) The Seller possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now conducted
by it and as described in the Company Offering Materials (or each is exempt
therefrom) and the Seller has not received notice of any proceedings relating
to the revocation or modification of such license, certificate, authority or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, is likely to materially and adversely affect the
conduct of its business, operations, financial condition or income.
(xii) The Seller will have the power and authority to sell the
Receivables to the Trust. Following the conveyance of the Receivables to the
Trust pursuant to the 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.
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Any certificate signed by an officer of the Seller and delivered to the
Representative or the Representative's counsel in connection with an offering
of the 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
9
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.
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
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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.
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
11
obligations hereunder, and the performance by the Companies of all of their
respective obligations under the Sponsor Agreements and the Seller Agreements
and (iv) the following conditions as of the Closing Date:
A. No stop order suspending the effectiveness of the Registration
Statement shall have been issued, and no proceeding for that purpose shall
have been initiated or threatened by the Commission. Any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus shall have been complied with.
B. The Underwriters shall have received the 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
12
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.
(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.
13
(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
14
Date, (ii) the Seller has complied in all material respects with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied in all material respects at or prior to the Closing Date, (iii)
there has been no material adverse change in the condition (financial or
other), earnings, business, properties or prospects of the Seller whether or
not arising from transactions in the ordinary course of business, except as
set forth or contemplated in the Prospectus, and (iv) nothing has come to such
officers' attention that would lead such officer to believe that the Company
Offering Materials contain any untrue statement of a material fact or omit to
state any material facts required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
The Seller shall attach to such certificate a true and correct copy of
its certificate of incorporation, as appropriate, and bylaws which are in full
force and effect on the date of such certificate and a certified true copy of
the resolutions of its Board of Directors with respect to the transactions
contemplated herein.
F. The Underwriters shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.,
general counsel of the Companies, a favorable opinion, dated the Closing Date
and satisfactory in form and substance to the Underwriters and counsel for the
Underwriters to the effect that:
(i) The Sponsor has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware. The
Seller has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Delaware. Each of the
Sponsor and the Seller has full corporate power to own its property or
assets and to conduct its business as presently conducted by it and as
described in the Prospectus, and is in good standing in each jurisdiction
in which the conduct of its business or the ownership of its property or
assets requires such qualification or where the failure to be so qualified
would have a material adverse effect on its condition (financial or
otherwise).
(ii) Each Sponsor Agreement and each Seller Agreement has been duly
authorized, executed and delivered by authorized officers or signers of the
Sponsor or the Seller, as appropriate.
(iii) The direction by the Seller to the Trustee to execute, issue,
countersign and deliver the 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.
15
(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
16
_________, (b) has the corporate power and authority to own its assets and
to carry on the business in which it is currently engaged, and (c) is duly
qualified and in good standing as a foreign corporation under the laws of
each jurisdiction where failure so to qualify or to be in good standing
would have a material and adverse effect on its business or operations.
(ii) No litigation or administrative proceedings of or before any court,
tribunal or governmental body are currently pending or, to the best of such
counsel's knowledge, threatened against the 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.]
17
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.
18
(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.
19
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
20
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.
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
21
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).
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.
22
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.
23
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.
E. (i) Each Underwriter agrees, assuming all Company-Provided
Information (defined below) is accurate and complete in all material respects,
to severally and not jointly indemnify and hold harmless the Sponsor, each of
the Sponsor's officers and directors and each person who controls the Sponsor
within the meaning of Section 15 of the Securities Act against any and all
losses, claims, damages or liabilities, joint or several, to which they may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement of a material fact contained in the
Derived Information provided by such Underwriter, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and
agrees to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by him, her or it in connection with
investigating or defending or preparing to defend any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that in no case shall any Underwriter be responsible for any amount in excess
of the underwriting discount applicable to the 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.
24
F. For purposes of this Section 9, the term "Derived Information" means
such portion, if any, of the information delivered to the Sponsor or the
Seller pursuant to Section 9D for filing with the Commission on Form 8-K as:
(i) is not contained in the Prospectus without taking into account
information incorporated therein by reference;
(ii) does not constitute Company-Provided Information; and
(iii) is of the type of information defined as Collateral term sheets,
Structural term sheets or Computational Materials (as such terms are
interpreted in the No-Action Letters).
"Company-Provided Information" means (i) any computer tape furnished to
the Underwriters by the Sponsor or the Seller concerning the Receivables
comprising the Trust and (ii) any textual information contained in any
Collateral term sheet, Structural term sheet or Computational Materials as
well as any statistical information contained therein furnished directly by
the Sponsor or the Seller for inclusion therein.
The terms "Collateral term sheet" and "Structural term sheet" shall have
the respective meanings assigned to them in the February 13, 1995 letter (the
"PSA Letter") of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ on behalf of the Public
Securities Association (which letter, and the SEC staff's response thereto,
were publicly available February 17, 1995). The term "Collateral term sheet"
as used herein includes any subsequent Collateral term sheet that reflects a
substantive change in the information presented. The term "Computational
Materials" has the meaning assigned to it in the May 17, 1994 letter (the
"▇▇▇▇▇▇ letter" and together with the PSA Letter, the "No-Action Letters") of
▇▇▇▇▇ & ▇▇▇▇ on behalf of ▇▇▇▇▇▇, Peabody & Co., Inc. (which letter, and the
SEC staff's response thereto, were publicly available May 20, 1994).
G. If the indemnification provided for in this Section 9 shall for any
reason be unavailable to hold harmless an indemnified party under Section 9A
or B in respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Sponsor on the
one hand and the Underwriters on the other from the offering of the 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.
25
The relative fault of the Underwriters and the Sponsor shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Sponsor or by one of the Underwriters, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission and other
equitable considerations.
The Sponsor and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 9G were to be determined
by pro rata allocation or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section
9G shall be deemed to include, for purposes of this Section 9G, any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Each person, if any, who controls each Underwriter within the meaning of
the Securities Act or the Exchange Act shall have the same rights to
contribution as each of the Underwriters and each director of the Sponsor
and/or the Seller, each officer of the Sponsor who signed the Registration
Statement, and each person, if any, who controls the Sponsor and/or the Seller
within the meaning of the Securities Act or the Exchange Act shall have the
same rights to contribution as the Sponsor.
In no case shall any Underwriter be responsible for any amount in excess
of the underwriting discount applicable to the 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-
26
defaulting Underwriters agree among themselves to a different allocation) to
purchase the full amount thereof, or
(ii) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of the 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.
27
Section 13. Notices. All notices and other communications hereunder shall
be in writing and shall be ------- deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication to:
The Underwriters: [Name of representative]
-----------------------
--------, ---------------
Attention: ______________
Fax: _________________
The Sponsor: Long Beach Acceptance Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Seller: Long Beach Acceptance Receivables Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Section 14. Parties. This Agreement shall inure to the benefit of and be
binding upon the Representative and the Companies, and their respective
successors or assigns. Nothing expressed or mentioned in this Agreement is
intended nor shall it be construed to give any person, firm or corporation,
other than the parties hereto or thereto and their respective successors and
the controlling persons and officers and directors referred to in Section 9
and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or with respect to this Agreement or any provision
herein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the parties and their
respective successors and said controlling persons and officers and directors
and their heirs and legal representatives (to the extent of their rights as
specified herein and therein) and except as provided above for the benefit of
no other person, firm or corporation. No purchaser of 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.
28
Section 17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of or affect the meaning or
interpretation of, this Agreement.
29
If the foregoing is in accordance with the Representative's understanding
of our agreement, please sign and return to us a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between the Representative, the Sponsor and the Seller in accordance with its
terms.
Very truly yours,
LONG BEACH ACCEPTANCE CORP.
By:____________________________________
Name:
Title:
LONG BEACH ACCEPTANCE RECEIVABLES CORP.
By:____________________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
[NAME OF UNDERWRITER],
Acting on its own behalf and as Representative of the
Underwriters referred to in the foregoing Agreement
By:________________________________
Name:
Title:
[Underwriting Agreement]
Schedule 1
Underwriting
