LONG BEACH ACCEPTANCE CORP.
LONG BEACH ACCEPTANCE AUTO RECEIVABLES TRUST 2004-C
ASSET-BACKED NOTES, CLASS A-1, CLASS A-2, CLASS A-3 AND CLASS A-4
UNDERWRITING AGREEMENT
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November 19, 2004
Greenwich Capital Markets, Inc.
As Representative for the several Underwriters
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Long Beach Acceptance Receivables Corp., a Delaware corporation (the
"Transferor") and a wholly owned subsidiary of Long Beach Acceptance Corp., a
Delaware corporation ("LBAC"), proposes to cause Long Beach Acceptance Auto
Receivables Trust 2004-C, a Delaware statutory trust (the "Trust"), to sell to
the Underwriters named in Schedule I hereto (the "Underwriters"), for which
Greenwich Capital Markets, Inc. ("RBS GC") is acting as representative (the
"Representative"), 2.390% Asset-Backed Notes, Class A-1, in the original
principal amount of $63,000,000 (the "Class A-1 Notes"), 3.040% Asset-Backed
Notes, Class A-2, in the original principal amount of $106,000,000 (the "Class
A-2 Notes"), 3.402% Asset-Backed Notes, Class A-3, in the original principal
amount of $74,000,000 (the "Class A-3 Notes") and 3.777% Asset-Backed Notes,
Class A-4, in the original principal amount of $107,000,000 (the "Class A-4
Notes" and, together with the Class A-1 Notes, the Class A-2 Notes and the Class
A-3 Notes, the "Offered Notes").
The assets of the Trust will include primarily a pool (the "Pool") of
retail installment sale contracts (the "Receivables") secured by the new and
used automobiles, vans, sport utility vehicles and light duty trucks financed
thereby. The Receivables will be serviced for the Trust by LBAC. The Offered
Notes will be issued pursuant to an Indenture, dated as of December 1, 2004 (the
"Indenture"), between the Trust and JPMorgan Chase Bank, National Association
("JPMorgan Chase"), as indenture trustee (in such capacity, the "Indenture
Trustee"). The Offered Notes will be secured by the assets of the Trust, which
will be pledged by the Trust to the Indenture Trustee pursuant to the Indenture.
Holders of the Offered Notes will have the benefit of a financial guarantee
insurance policy issued by Financial Security Assurance Inc. ("FSA"). In
addition, simultaneously with the issuance and sale of the Offered Notes, the
Trust will also issue two classes of certificates (the "Certificates") in the
manner set forth in the Trust Agreement described below. The Certificates will
be issued pursuant to the Amended and Restated Trust Agreement, dated as of
December 1, 2004 (the "Trust Agreement"), between the Transferor and Wilmington
Trust Company, as owner trustee (in such capacity, the "Owner Trustee"). Only
the Offered Notes are being purchased by the several Underwriters hereunder.
The Certificates will be issued to the Transferor. The Class R Certificate will
be retained by the Transferor and the Class C Certificate will be sold by the
Transferor to RBS GC or an affiliate thereof. Capitalized terms used but not
otherwise defined herein shall have the respective meanings assigned to them in
Annex A to the Sale and Servicing Agreement (as defined herein).
The Offered Notes are more fully described in a Registration Statement (as
defined herein) which the Transferor and LBAC have furnished to the
Underwriters.
The Trust will acquire the Initial Receivables from the Transferor pursuant
to a Sale and Servicing Agreement, dated as of December 1, 2004 (the "Sale and
Servicing Agreement"), among the Trust, the Transferor, LBAC, as originator and
servicer, and JPMorgan Chase, as back-up servicer and trust collateral agent.
The Transferor will acquire the Initial Receivables from LBAC and Long Beach
Acceptance Receivables Corp. Warehouse I, a Delaware corporation ("LBARCWI")
pursuant to the assignment by each of LBAC and LBARCWI to the Transferor (the
"Initial Assignments") on the Closing Date (as defined herein) and a Purchase
Agreement, dated as of December 1, 2004 (the "Purchase Agreement"), among the
Transferor, LBARCWI and LBAC.
From time to time during the Funding Period pursuant to the Purchase
Agreement, LBAC and LBARCWI will be obligated to sell, and the Transferor will
be obligated to purchase, additional retail installment sale contracts (the
"Subsequent Receivables") secured by the new and used automobiles, vans, sport
utility vehicles and light duty trucks financed thereby, which Subsequent
Receivables will be described in the schedules to one or more assignments by
each of LBAC and LBARCWI to the Transferor (each, a "Subsequent Assignment"),
dated as of the cut-off date specified therein (such date, a "Subsequent Cut-off
Date"). The Subsequent Receivables will in turn be sold by the Transferor to the
Trust pursuant to the Sale and Servicing Agreement and one or more agreements
among LBAC, LBARCWI, the Transferor, the Trust and JPMorgan Chase (each, a
"Transfer Agreement" and each date of transfer, a "Subsequent Transfer Date"),
each dated as of the related Subsequent Cut-off Date. The maximum aggregate
principal amount of Subsequent Receivables to be sold to the Trust during the
Funding Period is $123,308,088.
Section I. Representations and Warranties of Transferor and LBAC. The
Transferor and LBAC jointly and severally represent and warrant to, and agree
with the several Underwriters that:
A. A Registration Statement on Form S-3 (No. 333-108506) has (i) been
prepared by LBAC 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, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities Act. Copies of
such Registration Statement have been delivered by the Transferor and LBAC to
the Underwriters. As used in this Agreement, "Effective Time" means the date and
the time as of which such Registration Statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission; "Effective Date" means the date of the Effective Time; "Registration
Statement" means such registration statement, at the Effective Time, including
any documents incorporated by reference therein at such time; and "Prospectus"
means
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such final prospectus, as first supplemented by a prospectus supplement (the
"Prospectus Supplement") relating to the Offered Notes, as first filed with the
Commission pursuant to paragraph (1), (4) or (5) of Rule 424(b) of the Rules and
Regulations. Reference made herein to the Prospectus shall be deemed to refer to
and include any documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Securities Act, as of the date of the Prospectus, and any
reference to any amendment or supplement to the Prospectus shall be deemed to
refer to and include any document filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), after the date of the Prospectus and
incorporated by reference in the Prospectus; and any reference to any amendment
to the Registration Statement shall be deemed to include any report filed with
the Commission with respect to the Trust pursuant to Section 13(a) or 15(d) of
the Exchange Act after the date of the Prospectus that is incorporated by
reference in the Registration Statement. There are no contracts or documents of
the Transferor or LBAC which are required to be filed as exhibits to the
Registration Statement pursuant to the Securities Act or the Rules and
Regulations which have not been so filed or incorporated by reference therein on
or prior to the Effective Date of the Registration Statement. The conditions for
use of Form S-3, as set forth in the General Instructions thereto, have been
satisfied.
B. The Registration Statement conforms, and the Prospectus 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 Registration Statement, as of the Effective Date thereof
and of any amendment thereto, did 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. The Prospectus as of its date and
as amended or supplemented as of the Closing Date does not and will not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that no
representation or warranty is made as to information contained in or omitted
from the Registration Statement or the Prospectus in reliance upon and in
conformity with the Underwriters Information (as defined herein).
C. The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or
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 necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material respects
to the requirements of the Securities Act or the Exchange Act, as applicable,
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
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that no
representation or warranty is made as to information contained in or omitted
from the Registration Statement or the Prospectus in reliance upon and in
conformity with the Underwriters Information.
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D. Since the respective dates as of which information is given in the
Prospectus, there has not been any material adverse change in the general
affairs, management, financial condition, or results of operations of the
Transferor, LBARCWI or LBAC, otherwise than as set forth or contemplated in the
Prospectus as supplemented or amended as of the Closing Date.
E. Each of the Transferor, LBARCWI and LBAC has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, has full power and authority (corporate and other) necessary to own
or hold its properties and to conduct its business as now conducted by it and to
enter into and perform its obligations under this Agreement, the Sale and
Servicing Agreement, the Purchase Agreement, the Initial Assignments, each
Subsequent Assignment, each Transfer Agreement, the Trust Agreement, the
Insurance and Indemnity Agreement, dated as of December 1, 2004, among FSA, LBAC
and the Transferor (the "Insurance Agreement") and the Indemnification
Agreement, dated as of December 1, 2004, among FSA, the Underwriters and the
Transferor (the "Indemnification Agreement") (all such agreements, with the
exception of this Agreement, are collectively referred to herein as the "Other
Agreements"), as applicable, and, with respect to the Transferor, to cause the
Trust to authorize, issue and sell the Offered Notes as contemplated by this
Agreement.
F. This Agreement has been duly authorized, executed and delivered by each
of the Transferor and LBAC.
G. The Sale and Servicing Agreement, when executed and delivered as
contemplated hereby and thereby, will have been duly authorized, executed and
delivered by each of the Transferor and LBAC, and when so executed and
delivered, will constitute a legal, valid, binding and enforceable agreement of
each of the Transferor and LBAC, subject, as to enforceability, to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and to general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or at law.
H. The Purchase Agreement, when executed and delivered as contemplated
hereby and thereby, will have been duly authorized, executed and delivered by
each of LBAC, LBARCWI and the Transferor, and when so executed and delivered,
will constitute a legal, valid, binding and enforceable agreement of each of
LBAC, LBARCWI and the Transferor, subject, as to enforceability, to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and to general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or at law.
I. The Trust Agreement, when executed and delivered as contemplated hereby
and thereby, will have been duly authorized, executed and delivered by the
Transferor, and when so executed and delivered, will constitute a legal, valid,
binding and enforceable agreement of the Transferor, subject, as to
enforceability, to bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and to general principles of
equity regardless of whether enforcement is sought in a proceeding in equity or
at law.
J. The Initial Assignments and each Subsequent Assignment, when executed
and delivered as contemplated hereby and thereby, will have been duly
authorized, executed and
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delivered by LBAC and XXXXXXX, as the case may be, and when so executed and
delivered, will be legal, valid, binding and enforceable against LBAC and
LBARCWI, as the case may be, subject, as to enforceability, to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and to general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or at law.
K. Each Transfer Agreement, when executed and delivered as contemplated
hereby and thereby, will have been duly authorized, executed and delivered by
each of LBAC, LBARCWI and the Transferor, and when so executed and delivered,
will constitute a legal, valid, binding and enforceable agreement of each of
LBAC, LBARCWI and the Transferor, subject, as to enforceability, to bankruptcy,
insolvency, reorganization, moratorium or the similar laws affecting creditors'
rights generally and to general principles of equity regardless of whether
enforcement is sought in a proceeding in equity or at law.
L. Each Other Agreement to which LBAC, LBARCWI or the Transferor is party,
when executed and delivered as contemplated hereby and thereby, will have been
duly authorized, executed and delivered by the Transferor, LBARCWI and/or LBAC,
as the case may be, and when so executed and delivered by the Transferor,
LBARCWI and/or LBAC, as the case may be, will constitute legal, valid, binding
and enforceable agreements of the Transferor, LBARCWI and/or LBAC, as the case
may be, subject, as to enforceability, to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and to general principles of equity regardless of whether enforcement
is sought in a proceeding in equity or at law, and except insofar as the
indemnification provisions therein may be limited by applicable law.
M. The execution, delivery and performance of this Agreement, the Sale and
Servicing Agreement, the Indemnification Agreement, the Insurance Agreement, the
Purchase Agreement, the Initial Assignments, each Subsequent Assignment, each
Transfer Agreement and the Trust Agreement, and the issuance and sale of the
Offered Notes and the Certificates and compliance with the terms and provisions
hereof and thereof, will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any agreement or instrument to
which the Transferor, LBARCWI or LBAC is a party or by which the Transferor,
LBARCWI or LBAC is bound or to which any of the properties of the Transferor,
LBARCWI or LBAC is subject or of any statute, order or regulation applicable to
the Transferor, LBARCWI or LBAC of any court, regulatory body, administrative
agency or governmental body having jurisdiction over the Transferor, LBARCWI or
LBAC or any of their respective properties, in each case which could reasonably
be expected to have a material adverse effect on the transactions contemplated
herein.
N. As of the Closing Date, the Offered Notes, the Indenture, the
Certificates, the Sale and Servicing Agreement, the Trust Agreement, the Initial
Assignments and the Purchase Agreement, and as of the related Subsequent
Transfer Dates, each Subsequent Assignment and each Transfer Agreement, will
conform in all material respects to the respective descriptions thereof
contained in the Prospectus. As of the Closing Date, the Offered Notes will be
duly and validly authorized and, when duly and validly executed, authenticated
and delivered in accordance with the Indenture and delivered to the
Representative for the respective accounts of the Underwriters against payment
therefor as provided herein, will be duly and validly issued
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and outstanding and entitled to the benefits of Indenture and will constitute
legal, valid and binding obligations of the Trust, enforceable against the Trust
in accordance with their terms, subject, as to enforceability, to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and to general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or at law. As of the
Closing Date, the Indenture will be duly and validly authorized and, when duly
and validly executed and delivered, will constitute a legal, valid, binding and
enforceable agreement of the Trust, subject, as to enforceability, to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and to general principles of equity
regardless of whether enforcement is sought in a proceeding in equity or at law.
As of the Closing Date, the Certificates will be duly and validly authorized
and, when duly and validly executed, authenticated and delivered in accordance
with the Trust Agreement and delivered to the Transferor (in the case of the
Class R Certificate) and to RBS GC or an affiliate thereof (in the case of the
Class C Certificate), will be duly and validly issued and outstanding and
entitled to the benefits of the Trust Agreement.
O. The Transferor's, XXXXXXX's and LBAC's respective representations and
warranties (i) in the Sale and Servicing Agreement, the Purchase Agreement, the
Trust Agreement, the Insurance Agreement and the Indemnification Agreement, as
applicable, will be true and correct in all material respects as of the Closing
Date and (ii) in each Transfer Agreement will be true and correct as of the
related Subsequent Transfer Date.
P. None of the Transferor, LBARCWI or LBAC is in violation of its
certificate of incorporation or by-laws or in default under any agreement,
indenture or instrument to which it is a party, the effect of which violation or
default would be material to it. Neither the issuance and sale of the Offered
Notes, nor the issuance of the Certificates, nor the sale of the Class C
Certificate to RBS GC (or an affiliate thereof), nor the execution and delivery
by the Transferor, LBARCWI or LBAC of this Agreement or any Other Agreement to
which it is a party, nor the consummation by the Transferor, LBARCWI or LBAC of
any of the transactions herein or therein contemplated, nor the compliance by
the Transferor, LBARCWI or LBAC with the provisions hereof or thereof, does or
will conflict with or result in a breach of any term or provision of the
certificate of incorporation or by-laws of the Transferor, LBARCWI or LBAC or
conflict with, result in a breach, violation or acceleration of, or constitute a
default under, the terms of any indenture or other agreement or instrument to
which the Transferor, LBARCWI or LBAC is a party or by which either of them is
bound, or any statute, order or regulation applicable to the Transferor, LBARCWI
or LBAC of any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Transferor, LBARCWI or LBAC. None of the
Transferor, LBARCWI or LBAC is a party to, bound by or in breach or violation of
any indenture or other agreement or instrument to which it is a party, or
subject to or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over it that materially and adversely affects, or may in the future materially
and adversely affect, (i) the ability of the Transferor, LBARCWI or LBAC to
perform its obligations under this Agreement or any Other Agreement or (ii) the
business, operations, financial condition, properties, assets or prospects of
the Transferor, LBARCWI or LBAC.
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Q. There are no actions or proceedings against, or investigations of, the
Transferor, LBARCWI or LBAC pending, or, to the knowledge of the Transferor or
LBAC, threatened, before any court, arbitrator, administrative agency or other
tribunal (i) asserting the invalidity of this Agreement, any Other Agreement,
the Offered Notes or the Certificates, (ii) seeking to prevent the issuance of
the Offered Notes or the Certificates or the consummation of any of the
transactions contemplated by this Agreement or any Other Agreement, (iii) that
are reasonably likely to be adversely determined and that might materially and
adversely affect the Receivables or the business, operations, financial
condition, properties, assets or prospects of the Transferor, LBARCWI or LBAC or
the validity or enforceability of, or the performance by the Transferor, LBARCWI
or LBAC of its obligations under, this Agreement, any Other Agreement, the
Offered Notes or the Certificates or (iv) seeking to affect adversely the
federal income tax attributes of the Offered Notes as described in the
Prospectus.
R. Immediately prior to the assignment of the Initial Receivables to the
Trust as contemplated by the Sale and Servicing Agreement, the Transferor (i)
had good title to, and was the sole owner of, each Initial Receivable and the
property purported to be transferred by it to the Trust pursuant to the Sale and
Servicing Agreement free and clear of any pledge, mortgage, lien, security
interest or other encumbrance (collectively, "Liens") (except for the Lien of
the Indenture) and (ii) had not assigned to any person any of its right, title
or interest in such Receivables or property or in the Purchase Agreement. Upon
delivery of the Offered Notes to the Representative for the respective accounts
of the Underwriters, the Offered Notes will be free of any Liens.
S. Immediately prior to each assignment of Subsequent Receivables to the
Trust as contemplated by the Sale and Servicing Agreement and the related
Transfer Agreement, the Transferor (i) will have good title to, and will be the
sole owner of, each Subsequent Receivable and the other property purported to be
transferred by it to the Trust pursuant to the Sale and Servicing Agreement and
the related Transfer Agreement free and clear of any Lien (except for the Lien
of the Indenture) and (ii) will not have assigned to any person any of its
right, title or interest in such Subsequent Receivables or property or in the
Purchase Agreement.
T. Neither the Transferor nor the Trust is, and neither the issuance and
sale of the Offered Notes or the Certificates and the application of proceeds
therefrom nor the activities of the Trust pursuant to the Indenture or the Trust
Agreement will cause the Transferor or the Trust to be, an "investment company"
or under the "control" of an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "Investment Company Act").
U. It is not necessary to qualify the Trust Agreement under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"). The Indenture has
been duly qualified under the Trust Indenture Act.
V. None of the Transferor, LBARCWI, LBAC or any affiliate thereof has paid
or agreed to pay to any person any compensation for soliciting another to
purchase any Offered Notes or the Certificates (except as contemplated herein).
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W. Any taxes, fees and other governmental charges in connection with the
execution and delivery of this Agreement and the Other Agreements or the
execution, delivery and sale of the Offered Notes and the Certificates have been
or will be paid on or prior to the Closing Date.
X. Deloitte & Touche LLP is an independent public accountant with respect
to the Transferor, LBARCWI and LBAC, as required by the Securities Act and the
Rules and Regulations.
Y. 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 of the Offered Notes and the Certificates
and the sale of the Offered Notes to the Underwriters, or the consummation by
the Transferor, LBARCWI or LBAC of the other transactions contemplated by this
Agreement or the Other Agreements, except such consents, approvals,
authorizations, registrations or qualifications as may be required under State
securities or blue sky laws in connection with the purchase and distribution of
the Offered Notes by the Underwriters or as have been obtained.
Any certificates signed by officers of the Transferor, XXXXXXX and LBAC and
delivered to the Representative or counsel for the Representative in connection
with an offering of the Offered Notes shall be deemed a representation and
warranty as to the matters covered thereby to each person to whom the
representations and warranties in this Section I are made.
Section II. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties set forth herein, the
Transferor agrees to sell to the Underwriters and the Underwriters agree,
severally and not jointly, to purchase the Offered Notes in the respective
principal amounts of the Classes of Offered Notes set forth opposite their
respective names in Schedule I hereto at the respective purchase prices set
forth therein.
Section III. Delivery and Payment. Delivery of and payment for the Offered
Notes to be purchased by the several Underwriters shall be made at the offices
of Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or at such other place as shall be agreed upon by the Representative and LBAC at
10:00 a.m. New York City time on December 9, 2004, or at such other time or date
as shall be agreed upon in writing by the Representative and LBAC (such date
being referred to as the "Closing Date"). Delivery of the Offered Notes shall be
made to, or at the direction of, the Representative, for the respective accounts
of the Underwriters, against payment by the Underwriters of the purchase price
therefor in immediately available funds. Each of the Offered Notes to be so
delivered shall be represented by one or more global notes registered in the
name of Cede & Co., as nominee for The Depository Trust Company.
The Transferor agrees to have the Offered Notes available for inspection,
checking and packaging by the Representative in New York, New York, not later
than 10:00 a.m. on the Business Day prior to the Closing Date.
Section IV. Offering of the Offered Notes. It is understood that, subject
to the terms and conditions hereof, the several Underwriters propose to offer
the Offered Notes for sale to the public as set forth in the Prospectus.
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Section V. Covenants of the Transferor and LBAC. The Transferor and LBAC
jointly and severally covenant and agree as follows:
A. To prepare the Prospectus in a form approved by the Representative and
to file such Prospectus pursuant to Rule 424(b) under the Securities Act not
later than the time required thereby; to make no further amendment or any
supplement to the Registration Statement or to the Prospectus prior to the
Closing Date except as permitted herein; to advise the Representative, promptly
after it receives notice thereof, of the time, during the period that a
Prospectus is required to be delivered in connection with the offer and sale of
the Offered Notes, when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Underwriters with copies thereof;
to file promptly all reports and any definitive proxy or information statements
required to be filed by LBAC 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, for so long as the delivery of a prospectus is required under the
Securities Act or the Rules and Regulations thereunder in connection with the
offering or sale of the Offered Notes, to promptly advise the Representative 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 Offered 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, LBAC
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, including all consents and exhibits filed therewith.
C. To deliver promptly to each Underwriter such number of the following
documents as such Underwriter 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 filed by LBAC and
incorporated by reference in the Prospectus (including exhibits thereto). If the
delivery of a prospectus is required at any time prior to the expiration of nine
months after the Effective Time in connection with the offering or sale of the
Offered 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, LBAC shall notify the Representative and,
upon the request of the Representative based on advice of counsel (which may
consist of oral advice of internal or outside counsel), shall file such document
and prepare and furnish without charge to the Representative and to any other
Underwriter or dealer in securities as many copies as the Representative may
from time to time reasonably request of
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an amended Prospectus or a supplement to the Prospectus which corrects such
statement or omission or effects such compliance, and in case an Underwriter is
required to deliver a Prospectus in connection with sales of any of the Offered
Notes at any time nine months or more after the Effective Time, upon the request
of the Representative but at LBAC's expense, LBAC shall prepare and deliver to
the each Underwriter as many copies as such Underwriter may reasonably request
of an amended or supplemented Prospectus complying with Section 10(a)(3) of the
Securities Act.
Neither any Underwriter's consent to, nor any Underwriter's delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section VII.
D. To file 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 LBAC or the Representative, be required by the Securities Act or
requested by the Commission.
X. Xxxxx to filing with the Commission any (i) supplement to the Prospectus
or (ii) Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish
a copy thereof to the Representative and counsel for the Representative and
obtain the consent of the Representative to the filing, which consent shall not
be unreasonably delayed.
F. To use its best efforts, in cooperation with the Representative, to
qualify the Offered Notes for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States as the
Representative may designate, and maintain or cause to be maintained such
qualifications in effect for as long as may be required for the distribution of
the Offered Notes; provided that the Transferor and LBAC shall not be required
to become subject to any general consent to service of process or jurisdiction
in any jurisdiction in which it is not subject as of the date of this Agreement.
LBAC will file or cause the filing of such statements and reports as may be
required by the laws of each jurisdiction in which the Offered Notes have been
so qualified.
G. The Transferor and LBAC jointly and severally agree to pay all costs and
expenses in connection with the transactions herein contemplated, including, but
not limited to, the fees and disbursements of its counsel; the costs incident to
the Underwriters' due diligence exercises; the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto; the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereof (including, in each case, exhibits), the
preliminary prospectus, if any, the Prospectus and any amendment or supplement
to the Prospectus or any document incorporated by reference therein, all as
provided in this Agreement; the costs and expenses of printing (or otherwise
reproducing) and delivering the Sale and Servicing Agreement, the Indenture, the
Trust Agreement, the Other Agreements, the Offered Notes and the Certificates;
the fees, costs and expenses of JPMorgan Chase and the Owner Trustee (to the
extent permitted under the Sale and Servicing Agreement and the Trust Agreement,
and except to the extent that another party is obligated to pay such amounts
thereunder); any fees and expenses of any rating agency issuing a rating in
respect of the Offered Notes; the fees and disbursements of accountants for the
Transferor and LBAC; the costs and expenses in connection with the qualification
of the Offered
10
Notes under state securities or blue sky laws, including filing fees and
reasonable fees and disbursements of counsel in connection therewith, in
connection with the preparation of any blue sky survey and the preparation of
any legal investment survey; the expenses of printing any such blue sky survey
and legal investment survey; provided that except as provided in this Section
VI, each Underwriter shall pay its own costs. If this Agreement is terminated by
any Underwriter in accordance with the provisions of Section VII or Section X,
LBAC and the Transferor shall jointly and severally reimburse the Underwriters
for all reasonable out-of-pocket expenses, including the costs and expenses of
its counsel, any transfer taxes on the Offered Notes which they may sell and the
expenses of advertising any offering of the Offered Notes.
H. For a period from the date of this Agreement until the payment in full
of all amounts in respect of the Offered Notes, the Transferor and LBAC will
deliver to the Representative the monthly servicing reports, the annual
statements of compliance and the annual independent certified public accountants
reports furnished to the Indenture Trustee or the Trust Collateral Agent
pursuant to the Sale and Servicing Agreement or the Indenture as soon as such
statements are furnished to the Indenture Trustee or the Trust Collateral Agent.
I. To apply the net proceeds from the sale of the Offered Notes in the
manner set forth in the Prospectus.
J. To file with the Commission within four days of each of the issuance of
the Offered Notes and the end of the Funding Period a current report on Form 8-K
setting forth specific information concerning the Offered Notes and the Initial
Receivables or the Receivables (as the case may be) to the extent that such
information is not set forth in the Prospectus and also to file with the
Commission a current report on Form 8-K setting forth all Computational
Materials, ABS Term Sheets and Collateral Term Sheets (each as defined in
Section VI hereof) provided to LBAC by any Underwriter within the applicable
time periods allotted for such filing pursuant to the No-Action Letters (as
defined in Section VI hereof); provided that LBAC's obligation to file such
Computational Materials, ABS Term Sheets and Collateral Term Sheets within such
time shall be subject to the related Underwriter's timely performance of its
obligations under Section VI.
K. In connection with any Computational Materials, ABS Term Sheets or
Collateral Term Sheets provided by any Underwriter pursuant to Section VI, to
receive a letter from Deloitte & Touche LLP, certified public accountants,
satisfactory in form and substance to LBAC, to the effect that such accountants
have performed certain specified procedures, all of which have been agreed to by
LBAC, as a result of which they have determined that the information included in
the Computational Materials, ABS Term Sheets or Collateral Term Sheets (if any),
provided by such Underwriter to LBAC for filing on Form 8-K pursuant to Section
VI and subsection J, is accurate except as to such matters that are not deemed
by LBAC to be material. The foregoing letter shall be obtained at the expense of
the Underwriter providing such Computational Materials, ABS Term Sheets or
Collateral Term Sheets.
L. In the event that an Underwriter must prepare corrected Computational
Materials, ABS Term Sheets or Collateral Term Sheets pursuant to Section VI(D),
to file any corrected Computational Materials, ABS Term Sheets or Collateral
Term Sheets no later than two days following receipt thereof.
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M. Unless the Representative shall otherwise have given its written
consent, no pass-through certificates or debt securities backed by retail
installment sale contracts secured by the new and used automobiles, vans, sport
utility vehicles and light duty trucks financed thereby or other similar
securities representing interest in or secured by other auto receivable-related
assets originated or owned by LBAC or LBARCWI shall be offered or sold nor shall
LBAC or LBARCWI enter into any contractual arrangements that contemplate the
offering or sale of such securities for a period of thirty (30) days following
the commencement of the offering of the Offered Notes to the public.
N. If, at any time prior to 90 days after the Closing Date or such earlier
date as each Underwriter shall have resold all of the Offered Notes underwritten
by it, any event occurs as a result of which the Prospectus (as then amended or
supplemented) would include an untrue statement of a material fact, or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if it should
be necessary to amend or supplement the Prospectus to comply with applicable
law, the Transferor and LBAC will promptly prepare and furnish to the
Underwriters an amendment or supplement to the Prospectus satisfactory to the
Representative that will correct such statement or omission.
O. To the extent, if any, that any rating provided with respect to the
Offered Notes by the applicable rating agency is conditional upon the furnishing
of documents or the taking of any actions by the Transferor, LBARCWI or LBAC,
the Transferor, LBARCWI or LBAC, as the case may be, shall furnish, or cause to
be furnished, such documents and take, or cause to be taken, any such other
actions.
P. On the date of the Prospectus and on the Closing Date, Deloitte & Touche
LLP shall furnish to the Underwriters a letter or letters, dated respectively as
of the date of the Prospectus and as of the Closing Date substantially in the
forms of the drafts to which the Representative will have previously agreed and
otherwise in form and substance satisfactory to the Representative and to
counsel to the Underwriters and on each Subsequent Transfer Date, Deloitte &
Touche LLP shall furnish to the Underwriters a letter or letters, dated as of
such Subsequent Transfer Date, in each case substantially in the forms of the
drafts to which the Representative will have previously agreed and otherwise in
form and substance satisfactory the Representative and to counsel to the
Underwriters.
Q. On the Closing Date, the Transferor and LBAC shall furnish to the
Underwriters a letter from Xxxxx Xxxxxxxxxx LLP, dated the Closing Date, to the
effect that (i) such counsel has no reason to believe that (a) the Registration
Statement, as of the Effective Date, and as amended or supplemented, if
applicable, as of the Closing Date, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or (b) the Prospectus as
of its date and as of the Closing Date contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and (ii) and that the descriptions in Registration
Statement and the Prospectus, as the case may be, of the Offered Notes, the Sale
and Servicing Agreement, the Trust Agreement, the Indenture, the Purchase
Agreement and the Transfer Agreements are accurate in all material respects; it
being understood that such counsel need express no opinion
12
or belief as to the financial and statistical statements or other financial data
contained in or incorporated by reference in the Registration Statement or the
Prospectus, as applicable.
Section VI. Investor Information. Each Underwriter may prepare and provide
to prospective investors certain Computational Materials, ABS Term Sheets or
Collateral Term Sheets (collectively, "Investor Materials") in connection with
its offering of the Offered Notes, subject to the following conditions:
A. Each Underwriter shall comply with the requirements of the No-Action
Letter of May 20, 1994, issued by the Commission to Xxxxxx, Xxxxxxx Acceptance
Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx Structured Asset
Corporation, as made applicable to other issuers and underwriters by the
Commission in response to the request of the Public Securities Association dated
May 24, 1994 (collectively, the "Xxxxxx/PSA Letter"), and the requirements of
the No-Action Letter of February 17, 1995, issued by the Commission to the
Public Securities Association (the "PSA Letter" and, together with the
Xxxxxx/PSA Letter, the "No-Action Letters").
B. For purposes hereof, "Computational Materials" shall have the meaning
given such term in the No-Action Letters, but shall include only those
Computational Materials that have been prepared or delivered to prospective
investors by any Underwriter. For purposes hereof, "ABS Term Sheets" and
"Collateral Term Sheets" shall have the meanings given such terms in the PSA
Letter but shall include only those ABS Term Sheets or Collateral Term Sheets
that have been prepared or delivered to prospective investors by any
Underwriter.
C. Each Underwriter shall provide to LBAC any Computational Materials, ABS
Term Sheets or Collateral Term Sheets which are provided by such Underwriter to
investors, together with a letter, reasonably acceptable to such Underwriter and
LBAC, from Deloitte & Touche LLP, with regard to such Computational Materials,
ABS Term Sheets or Collateral Term Sheets, no later than the two Business Days
preceding the date such Computational Materials, ABS Term Sheets or Collateral
Term Sheets are required to be filed pursuant to the applicable No-Action
Letters. Each Underwriter may provide copies of the foregoing in a consolidated
or aggregated form including all information required to be filed. The materials
so furnished shall be furnished to LBAC in hard copy and on computer disk.
D. In the event that LBAC or any Underwriter discovers an error in the
Computational Materials, ABS Term Sheets or Collateral Term Sheets, such
Underwriter shall promptly prepare corrected Computational Materials, ABS Term
Sheets or Collateral Term Sheets and deliver them to LBAC for filing pursuant to
Section V(L).
E. Each Underwriter, severally and not jointly, represents to the
Transferor and LBAC as follows:
1. The Investor Materials delivered to prospective investors by such
Underwriter do not contain an untrue statement of a material fact or, when read
in conjunction with the Prospectus as an integral document, omit to state a
material fact necessary to make such statements, in light of the circumstances
under which they were made, not misleading; provided, however, that no
representation is made (x) with respect to any untrue statements or omissions
13
that are the result of untrue statements or omissions in LBAC-Provided
Information (as defined herein) or (y) that the Prospectus (exclusive of such
Investor Materials) does not include any untrue statements of a material fact
and does not omit to state any material facts necessary to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading.
2. The Investor Materials delivered to prospective investors by such
Underwriter contain customary legends referring to the assumptions on which they
are based and the absence of assurances or representations as to the actual rate
or timing of payments on any of the Receivables or the performance
characteristics of the Offered Notes, and a statement to the effect that the
Investor Materials were prepared by such Underwriter based on information
regarding the Receivables furnished by LBAC.
3. Neither the Transferor, LBAC nor any of their respective affiliates
participated in the preparation of the Investor Materials other than by
supplying LBAC-Provided Information (as defined herein) to each Underwriter.
Section VII. Conditions to Purchase of the Offered Notes. The obligations
of the several Underwriters hereunder to purchase the Offered Notes pursuant to
this Agreement shall be subject: (i) to the accuracy of the representations and
warranties on the part of the Transferor, LBARCWI and LBAC contained herein and
in the Other Agreements as of the date hereof and as of the Closing Date; (ii)
to the accuracy of the statements of the Transferor, LBARCWI and LBAC made in
any certificate delivered pursuant to the provisions hereof; (iii) to the
performance by the Transferor, XXXXXXX and LBAC of all of their respective
obligations hereunder and in the Other Agreements; and (iv) to the following
additional conditions:
A. The Representative shall have received confirmation of the effectiveness
of the Registration Statement. No stop order suspending the effectiveness of the
Registration Statement or any part thereof 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. No Underwriter shall have discovered and disclosed to LBAC on or prior
to the Closing Date that the Registration Statement or the Prospectus or any
amendment or supplement thereto contains an untrue statement of a fact or omits
to state a fact which, in the opinion of Xxxxxx Xxxxxx Xxxxx & Xxxx LLP, counsel
for the Underwriters, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
C. All corporate proceedings and other legal matters relating to the
authorization, form and validity of this Agreement, the Other Agreements, the
Offered Notes, the Certificates, the Registration Statement and the Prospectus,
and all other legal matters relating to this Agreement, the Other Agreements and
the transactions contemplated hereby and thereby shall be satisfactory in all
respects to counsel for the Underwriters, and LBAC, LBARCWI and the Transferor
shall have furnished or cause to be furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon such
matters.
14
D. Each of the Transferor and LBAC shall have delivered to the Underwriters
an Officer's Certificate dated the Closing Date, to the effect that the signer
of such certificate has carefully examined this Agreement and the Prospectus and
that, to the best of such signer's knowledge: (i) the representations and
warranties of the Transferor or LBAC, as the case may be, in this 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) it has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date; and (iii) such person has carefully
examined the Registration Statement and the Prospectus and, in such person's
opinion (w) as of the Effective Date, the Registration Statement did not include
an untrue statement of material fact and did not omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (x) as of its date and as of the Closing Date the Prospectus did not
include an untrue statement of material fact and did not omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, (y) since the
Effective Date no event has occurred which should have been set forth in a
supplement or amendment to the Registration Statement or (z) since the date of
the Prospectus, no event has occurred which should have been set forth in a
supplement or amendment to the Prospectus.
E. The Underwriters shall have received a favorable opinion addressed to
the Underwriters of Xxxxxx Xxxxxx Xxxxx & Xxxx LLP, counsel for the
Underwriters, dated the Closing Date, with respect to the validity of the
Offered Notes, the Registration Statement, the Prospectus and such other related
matters as the Representative shall require, and LBAC and the Transferor shall
have furnished or cause to be furnished to such counsel such documents as such
counsel may reasonably request for the purpose of enabling them to pass upon
such matters.
F. The Underwriters shall have received a favorable opinion addressed to
them, dated the Closing Date, from Xxxxx Xxxxxxxxxx LLP, special counsel for the
Transferor, LBAC, LBARCWI and ACC Capital Holdings Corporation ("ACC"), in form
and substance satisfactory to the Representative and counsel to the
Underwriters.
G. The Underwriters shall have received a favorable opinion addressed to
them, dated the Closing Date, from Xxxxxx X. Xxxxxxxx, Esq., General Counsel of
LBAC and Counsel of the Transferor and LBARCWI, in form and substance
satisfactory to the Representative and counsel to the Underwriters.
H. The Underwriters shall have received a favorable opinion addressed to
them, dated the Closing Date, from Corporate Counsel of ACC, in form and
substance satisfactory to the Representative and counsel to the Underwriters.
I. The Underwriters shall have received a favorable opinion addressed to
them, dated the Closing Date, from Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to
the Trust, in form and substance satisfactory to the Representative and counsel
to the Underwriters.
J. The Underwriters shall have received a favorable opinion addressed to
them, dated the Closing Date, from Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., counsel to
the Owner Trustee, in form and substance satisfactory to the Representative and
counsel to the Underwriters.
15
K. The Underwriters have received a favorable opinion addressed to them,
dated the Closing Date, from Xxxxxxx Xxxxxxxx Xxxx LLP, special counsel to
JPMorgan Chase, in form and substance satisfactory to the Representative and
counsel to the Underwriters, to the effect that each of the Indenture and the
Sale and Servicing Agreement has been duly authorized, executed and delivered by
JPMorgan Chase and constitutes the legal, valid, binding and enforceable
agreement of JPMorgan Chase, subject, as to enforceability, to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights in general and by general principles of equity regardless of
whether enforcement is considered in a proceeding in equity or at law, and as to
such other matters as may be agreed upon by the Representative and JPMorgan
Chase.
L. The Underwriters shall have received from in-house counsel for FSA a
favorable opinion addressed to them, dated the Closing Date, in form and
substance satisfactory to the Representative and counsel to the Underwriters.
M. The Underwriters shall have received evidence satisfactory to the
Representative and counsel to the Underwriters that, on or before the Closing
Date, UCC-1 financing statements have been or are being filed (a) in the office
of the Secretary of State of the State of the State of Delaware reflecting the
transfer of the interest of LBAC and LBARCWI in the Receivables and the proceeds
thereof to the Transferor and the transfer of the interest of the Transferor in
the Receivables and the proceeds thereof to the Trust, respectively, and (b) in
the office of the Secretary of the State of Delaware reflecting the pledge of
such interest to the Indenture Trustee.
N. On the date of the Prospectus, and on the Closing Date, Deloitte &
Touche LLP shall furnish to the Underwriters a letter or letters, dated
respectively as of the date of the Prospectus, and as of the Closing Date,
substantially in the forms of the drafts to which the Representative has
previously agreed and otherwise in form and substance satisfactory to the
Representative.
O. The Underwriters shall have received from Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc., a rating letter
assigning a rating of "A-1+" to the Class A-1 Notes, "AAA" to the Class A-2
Notes, "AAA" to the Class A-3 Notes and "AAA" to the Class A-4 Notes, which
ratings shall not have been modified, lowered or withdrawn.
P. The Underwriters shall have received from Xxxxx'x Investors Service,
Inc., a rating letter or letters assigning a rating of "P-1" to the Class A-1
Notes, "Aaa" to the Class A-2 Notes, "Aaa" to the Class A-3 Notes and "Aaa" to
the Class A-4 Notes, which ratings shall not have been modified, lowered or
withdrawn.
Q. ACC shall have executed and delivered its guaranty of LBAC's and the
Transferor's obligations hereunder.
R. The Class R Certificate and the Class C Certificate shall have been
issued and delivered to the Transferor and RBS GC or an affiliate thereof,
respectively.
S. The financial guaranty insurance policy relating to the Offered Notes
shall have been issued and delivered by FSA.
16
T. The Owner Trustee shall have furnished to the Underwriters a certificate
of the Owner Trustee, signed by one or more duly authorized officers of the
Owner Trustee, dated the Closing Date, as to the due authorization, execution
and delivery of the Trust Agreement by the Owner Trustee and the acceptance by
the Owner Trustee of the trust created by the Trust Agreement and such other
matters as the Representative shall reasonably request.
U. The Indenture Trustee shall have furnished to the Underwriters a
certificate of the Indenture Trustee, signed by one or more duly authorized
officers of the Indenture Trustee, dated the Closing Date, as to the due
authorization, execution and delivery of the Indenture by the Indenture Trustee
and the due execution, authentication and delivery of the Offered Notes by the
Indenture Trustee under the Indenture and such other matters as the
Representative shall reasonably request.
V. Prior to the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the Offered
Notes as herein contemplated and related proceedings or in order to evidence the
accuracy and completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained, and all proceedings
taken by LBAC, LBARCWI and the Transferor in connection with the issuance and
sale of the Offered Notes as herein contemplated shall be satisfactory in form
and substance to the Representative and counsel for the Underwriters.
W. Subsequent to the execution and delivery of this Agreement none of the
following shall have occurred: (i) trading in securities generally on the New
York Stock Exchange, the American Stock Exchange or the over-the-counter market
shall have been suspended or minimum prices shall have been established on
either of such exchanges or such market by the Commission, by such exchange or
by any other regulatory body or governmental authority having jurisdiction; (ii)
a banking moratorium shall have been declared by Federal or state authorities;
(iii) the United States shall have become engaged in hostilities, there shall
have been an escalation of hostilities involving the United States or there
shall have been a declaration of a national emergency or war by the United
States; or (iv) there shall have occurred such a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets of the United States shall be
such) as to make it, in the judgment of any Underwriter, impractical or
inadvisable to proceed with the public offering or delivery of the Offered Notes
on the terms and in the manner contemplated in the Prospectus.
X. All proceedings in connection with the transactions contemplated by this
Agreement and all documents incident hereto shall be satisfactory in form and
substance to the Representative and counsel to the Underwriters, and the
Representative and counsel to the Underwriters shall have received such
information, certificates and documents as the Representative or such counsel
may have reasonably requested.
If any of the conditions specified in this Section VII shall not have been
fulfilled in all material respects when and as provided in this Agreement, if
any of the Transferor or LBAC is in breach of any covenants or agreements
contained herein, if LBARCWI has breached any covenant or agreements made by the
Transferor or LBAC herein with respect to LBARCWI, or
17
if any of the opinions and certificates referred to above or elsewhere in this
Agreement shall not be in all material respects satisfactory in form and
substance to the Representative and counsel to the Underwriters, this Agreement
and all the obligations of the several Underwriters hereunder may be canceled by
the Representative at, or at any time on or prior to, the Closing Date. Notice
of such cancellation shall be given to the Transferor and LBAC in writing, or by
telephone or facsimile transmission confirmed in writing, and such cancellation
shall be without liability of any party to any other party, except as provided
in Section V(G).
Section VIII. Indemnification and Contribution. LBAC and the Transferor
agree with the several Underwriters that:
A. LBAC and the Transferor, jointly and severally, agree to indemnify and
hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of 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 Offered Notes), to which such Underwriter or any such
controlling person may become subject, under the Securities Act, the Exchange
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon: (a)(i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (iii) any untrue statement or alleged untrue statement
of a material fact contained in the Prospectus or any amendment or supplement
thereto or (iv) the omission or alleged omission to state therein a material
fact necessary in order 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
legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that neither LBAC nor the Transferor
shall be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made (i)
in the Prospectus (or any amendment thereof or supplement thereto) or the
Registration Statement (or any amendment thereof) in reliance upon and in
conformity with written information furnished to either LBAC or the Transferor
by or on behalf of any Underwriter through the Representative specifically for
inclusion therein and (ii) to the extent that such misstatement or omission was
corrected reasonably prior to the written confirmation of such sale and such
Underwriter did not deliver, at or prior to the written confirmation of such
sale, a copy of the Prospectus as then revised, amended or supplemented in any
case where such delivery is required by the Securities Act or the Exchange Act,
if either LBAC or the Transferor has previously furnished copies thereof to such
Underwriter in accordance with the terms of this Agreement or (iii) in the
Derived Information except to the extent such misstatement or omission arises
from a misstatement or omission in LBAC-Provided Information; or (b) the breach
of any representation or warranty by the Transferor, LBARCWI or LBAC in this
Agreement or any Other Agreement to which it is a party, or in any document
executed in connection herewith or therewith or which is related to or arises
out of the transactions contemplated hereby or thereby, and the Transferor and
LBAC will jointly and severally reimburse each Underwriter and any
18
other indemnified party for any reasonable legal or other expenses incurred by
such Underwriter or such indemnified party (including, without limitation,
reasonable fees and disbursements of counsel incurred by such Underwriter or
such other indemnified party in any action or proceeding between such
Underwriter or such indemnified party and LBAC, the Transferor and/or any third
party, or otherwise), as incurred, in connection with investigating or defending
such loss, claim, damage, liability or action. The foregoing indemnity agreement
is in addition to any liability which LBAC and the Transferor may otherwise have
to any Underwriter or any controlling person of such Underwriter.
B. Each Underwriter severally, and not jointly, agrees to indemnify and
hold harmless LBAC and the Transferor, each of their respective directors, each
of their respective officers who signed the Registration Statement, and each
person, if any, who controls LBAC or the Transferor, respectively, within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
against any and all loss, claim, damage or liability, or any action in respect
thereof, to which LBAC, the Transferor or any such director, officer or
controlling person may become subject, under the Securities Act, 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 any material fact contained in the Registration Statement (or any
amendment thereof), (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (iii) any untrue statement or alleged untrue statement
of a material fact contained in the Prospectus (or any amendment thereof or
supplement thereto) or (iv) the omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, but in each case
to the extent, and only to the extent, that the untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with the Underwriters Information supplied by such Underwriter,
other than a misstatement or omission arising from a misstatement or omission in
LBAC-Provided Information, and shall reimburse LBAC, the Transferor and any such
director, officer or controlling person for any legal or other expenses
reasonably incurred by LBAC, the Transferor or any director, officer or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which each Underwriter may
otherwise have to LBAC, the Transferor or any such director, officer or
controlling person.
C. Promptly after receipt by any indemnified party under this Section VIII
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 VIII 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 VIII 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 VIII.
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
19
xxxxxxx 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. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section VIII for any legal or other expenses
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; (iii) the use
of counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest; or (iv) 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 VIII consist of any Underwriter or any of such
Underwriter's controlling persons, or by LBAC or the Transferor, if the
indemnified parties under this Section VIII consist of LBAC or the Transferor or
any of LBAC's or the Transferor's respective directors, officers or controlling
persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section VIII(A) 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 the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (a) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (b) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party in connection therewith.
20
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 60 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement.
D. For purposes of this Agreement, as to the Underwriters, "Derived
Information" means such portion, if any, of the information delivered to LBAC or
the Transferor by any Underwriter pursuant to Section V for filing with the
Commission on Form 8-K which information (i) is not contained in the Prospectus
without taking into account information incorporated therein by reference, and
(ii) does not constitute LBAC-Provided Information. "LBAC-Provided Information"
means any computer tape (or other information) furnished to the Underwriters
through the Representative by or on behalf of LBAC, LBARCWI or the Transferor
concerning the Transferor, LBARCWI, LBAC or the Receivables.
E. If the indemnification provided for in this Section VIII shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section VIII(A) 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 (a) if
such loss, claim, damage or liability does not arise from the Underwriters
Information supplied by such Underwriter, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by LBAC, LBARCWI and the
Transferor on the one hand and such Underwriter on the other from the offering
of the Offered Notes or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law or if the indemnified party failed to give the
notice required under Section VIII(C), 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 LBAC, LBARCWI and the Transferor on the one hand and such
Underwriter on the other with respect to the statements or omissions which
resulted if such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations and (b) if such loss,
claim, damage or liability arises from Underwriters Information supplied by such
Underwriter, in such proportion as is appropriate to reflect the relative
benefits received by LBAC, LBARCWI and the Transferor on the one hand and such
Underwriter on the other from the offering of the Offered Notes and the relative
fault of LBAC, LBARCWI and the Transferor on the one hand and such Underwriter
on the other with respect to the statements or omissions which resulted in such
loss, claims, damages or liability, or actions in respect thereof, as well as
any other relevant equitable consideration.
The relative benefits of any Underwriter on the one hand and LBAC, LBARCWI
and the Transferor on the other hand shall be deemed to be in such proportions
that such Underwriter is responsible for that portion of such losses,
liabilities, claims, damages and expenses equal to the product of the
underwriting discount percentage set forth on the cover of the Prospectus as
amended or supplemented multiplied by the initial public offering price of the
Offered Notes underwritten by such Underwriter as set forth thereon, and LBAC
and the Transferor shall be jointly and severally responsible for the balance.
21
The relative fault of any Underwriter on the one hand and LBAC, LBARCWI and
the Transferor on the other hand shall be determined by reference to whether the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
LBAC, LBARCWI, the Transferor or by such Underwriter, 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.
LBAC, the Transferor and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section VIII(E) 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 VIII(E) shall be deemed to include, for purposes of this Section
VIII(E), any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
In no case shall any Underwriter be responsible, in the aggregate, for any
amount in excess of (x) the amount received by such Underwriter in connection
with its resale of the Offered Notes over (y) the amount paid by such
Underwriter to the Transferor for the Offered Notes 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.
F. The several Underwriters hereby confirm, and each of the Transferor and
LBAC hereby acknowledge, that the information set forth (i) in the first, second
and last paragraphs under the caption "Underwriting" in the Prospectus
Supplement and (ii) the Derived Information (collectively, the "Underwriters
Information") constitutes the only information furnished in writing to LBAC and
the Transferor by or on behalf of the Underwriters through the Representative
specifically for inclusion in the Registration Statement and the Prospectus.
Section IX. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of LBAC, LBARCWI and the Transferor
submitted pursuant hereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Underwriters or
controlling persons thereof, or by or on behalf of LBAC, LBARCWI or the
Transferor or controlling persons thereof and shall survive delivery of any
Offered Notes to the Representative.
Section X. Termination of Agreement; Default of the Underwriters. The
Representative may terminate this Agreement immediately upon notice to LBAC and
the Transferor, at any time at or prior to the Closing Date if any of the events
or conditions described in Section VII(W) of this Agreement shall occur and be
continuing. In the event of any such termination, the provisions of Section
V(G), the indemnity and contribution agreement set forth in Section VIII, and
the provisions of Sections IX and XIII shall remain in effect.
If any Underwriter participating in the offering of the Offered Notes
defaults in its obligation hereunder to purchase the aggregate amounts of the
Offered Notes set forth in
22
Schedule I hereto and the aggregate principal amount of such Offered Notes that
such defaulting Underwriter agreed, but failed, to purchase does not exceed 10%
of the total original principal amount of the Offered Notes, the Representative
may make arrangements satisfactory to the Transferor and LBAC for the purchase
of such Offered Notes by other Persons, but if no such arrangements are made
within a period of 36 hours after the Closing Date, the non-defaulting
Underwriter shall have the right, but not the obligation, to purchase the
Offered Notes which such defaulting Underwriter agreed but failed to purchase.
If any Underwriter so defaults and the aggregate principal amount of Offered
Notes with respect to which such default occurs is more than 10% of the total
original principal amount of the Offered Notes and arrangements satisfactory to
the Representative, the Transferor and LBAC for the purchase of such Offered
Notes by other persons are not made within 36 hours after such default, this
Agreement will terminate without liability on the part of the non-defaulting
Underwriter, the Transferor or LBAC. As used in this Agreement, the term
"Underwriter" includes any person substituted for any Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
Section XI. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representative will be mailed,
delivered or transmitted by facsimile and confirmed to it at Greenwich Capital
Markets, Inc., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention:
Asset-Backed Finance, Fax: (000) 000-0000; or, if sent to the Transferor or LBAC
will be mailed, delivered or transmitted by facsimile and confirmed to it at
Long Beach Acceptance Corp., Xxx Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxx Xxxxxx 00000,
Attention: General Counsel.
Section XII. Persons Entitled to the Benefit of this Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
LBAC and the Transferor, and their respective successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except that the representations, warranties, indemnities and agreements
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, and for the
benefit of directors of LBAC or the Transferor, officers of LBAC or the
Transferor who have signed the Registration Statement and any person controlling
LBAC or the Transferor within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act. Nothing in this Agreement is intended or shall
be construed to give any person, other than the persons referred to in this
Section XII, any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision contained herein.
Section XIII. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Section XIV. Counterparts. This Agreement may be executed in counterparts
and, if executed in more than one counterpart, the executed counterparts shall
each be deemed to be an original but all such counterparts shall together
constitute one and the same instrument.
23
Section XV. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
24
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this letter and
your acceptance shall represent a binding agreement between you, the Transferor
and LBAC.
Very truly yours,
LONG BEACH ACCEPTANCE
RECEIVABLES CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
LONG BEACH ACCEPTANCE CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
GREENWICH CAPITAL MARKETS, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxx Xxxx
-------------------------------
Name: Xxxx Xxxx
Title: Vice President
SCHEDULE I
Underwriting Agreement dated November 19, 2004.
As used in the Underwriting Agreement, the term "Registration Statement"
refers to the Registration Statement on Form S-3 (File No. 333-108506) filed on
September 4, 2003, as amended, and declared effective by the Commission on
September 11, 2003.
Closing Date: December 9, 2004.
Approximate Aggregate Principal Balance of the Initial Receivables:
$230,227,266.
Initial Cut-Off Date: November 30, 2004.
Title, Purchase Price and Description of Offered Notes:
The Underwriters' discounts and commissions, expressed as a percentage of
the principal amount of the Offered Notes, shall be as follows:
--------------------------------------------------------------------------------
Original Principal Purchase Underwriting Net Proceeds to the
Class Amount Price Discount Transferor
---------- ------------------ -------- ------------ -------------------
Class A-1 $ 63,000,000 99.75% 0.25% $ 62,685,000
Class A-2 $ 106,000,000 99.75% 0.25% $ 105,470,000
Class A-3 $ 74,000,000 99.75% 0.25% $ 73,630,000
Class A-4 $ 107,000,000 99.75% 0.25% $ 106,465,000
--------------------------------------------------------------------------------
The purchase price payable by each Underwriter for each Class of Offered
Notes covered by this Underwriting Agreement shall be the percentages set forth
in the table above of the principal amount of the Notes purchased by such
Underwriter set forth below:
-------------------------------------------------------------------------------------------------------------------
Original Class Original Class Original Class Original Class
Principal Amount of Principal Amount of Principal Amount of Principal Amount of
Underwriter Class A-1 Notes Class A-2 Notes Class A-3 Notes Class A-4 Notes
------------------------- ------------------- ------------------- ------------------- -------------------
Greenwich Capital
Markets, Inc............. $53,550,000 $ 90,100,000 $62,900,000 $90,950,000
Citigroup Global
Markets Inc.............. $ 9,450,000 $ 15,900,000 $11,100,000 $16,050,000
----------- ------------ ----------- -----------
Total.................. $63,000,000 $106,000,000 $74,000,000 $107,000,000
=========== ============ =========== ============
-------------------------------------------------------------------------------------------------------------------
I-1
