Exhibit 1.1
LONG BEACH ACCEPTANCE CORP.
LONG BEACH ACCEPTANCE AUTO RECEIVABLES TRUST 2006-B
Asset-Backed Notes, Class A-1, Class A-2, Class A-3 and Class
A-4
UNDERWRITING AGREEMENT
September 20, 2006
Citigroup Global Markets Inc.
As Representative for
the several Underwriters
390 Greenwich Street
New York, NY 10013
Greenwich Capital Markets, Inc.
600 Steamboat Road
Greenwich, CT 06830
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 2006-B, a Delaware statutory trust (the "Trust"),
to sell to
the Underwriters named in Schedule I hereto (the "Underwriters"),
for which
Citigroup Global Markets Inc is acting as representative (the
"Representative"),
5.37% Asset-Backed Notes, Class A-1, in the original principal
amount of
$100,000,000 (the "Class A-1 Notes"), 5.34% Asset-Backed Notes,
Class A-2, in
the original principal amount of $137,000,000 (the "Class A-2
Notes"), 5.17%
Asset-Backed Notes, Class A-3, in the original principal amount of
$147,000,000
(the "Class A-3 Notes") and 5.18% Asset-Backed Notes, Class A-4, in
the original
principal amount of $116,000,000 (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
September 1, 2006
(the "Indenture"), between the Trust and Deutsche Bank National
Trust Company
("Deutsche Bank"), 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 a certificate (the "Certificate") in the
manner set forth
in the Trust Agreement described below. The Certificate will be
issued pursuant
to the Amended and Restated Trust Agreement, dated as of September
1, 2006 (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
Certificate will
be issued
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to and retained by the Transferor. 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 September
1, 2006 (the
"Sale and Servicing Agreement"), among the Trust, the Transferor,
LBAC, as
originator and servicer, and Deutsche Bank, 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 September 1, 2006 (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 Deutsche Bank
(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 $143,813,829.84.
At or
prior to the time when sales to purchasers of the Offered Notes
were
first made by the Underwriters, which was approximately2:10 p.m. on
September
20, 2006 (the "Time of Sale"), the Transferor has prepared the
following
information (collectively, the "Time of Sale Information"): (i) the
Free Writing
Prospectus dated September 18, 2006, including the prospectus dated
March 31,
2006 and the information referred to under the caption "Sponsor's
Static Pool
Information" therein (the "Original FWP") and (ii) the Free Writing
Prospectus
dated September 19, 2006, including the prospectus dated March 31,
2006 (the
"Static Pool FWP"). If, at or subsequent to the Time of Sale and
prior to the
Closing Date (as defined below), such information included an
untrue statement
of 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 as a result investors in the Offered
Notes may
terminate their old "Contracts of Sale" (within the meaning of Rule
159 under
the Securities Act of 1933, as amended (the "Securities Act")) for
any Offered
Notes and the Underwriters enter into new Contracts of Sale with
investors in
the Offered Notes, then "Time of Sale Information" will refer to
the information
conveyed to investors at the time of entry into the first such new
Contract of
Sale, in an amended Original FWP or a final Prospectus (as defined
below)
approved by the
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Transferor and the Representative that corrects such material
misstatements or
omissions (a "Corrected Prospectus") and "Time of Sale" will refer
to the time
and date on which such new Contracts of Sale were first entered
into.
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. 333-132202) relating to
automobile contract-backed securities, including the Offered Notes,
has (i) been
prepared by LBAC in conformity with the requirements of the
Securities Act, and
the rules and regulations of the United States Securities and
Exchange
Commission (the "Commission") thereunder (the "Rules and
Regulations"), (ii)
been filed by the Transferor with the Commission under the
Securities Act and
(iii) become effective under the Securities Act and is still
effective as of the
date hereof. No stop order suspending the effectiveness of the
Registration
Statement has been issued by the Commission and no proceeding for
that purpose
has been instituted or, to the knowledge of the Transferor or LBAC,
threatened
by the Commission. Copies of such Registration Statement have been
delivered by
the Transferor and LBAC to the Underwriters. "Registration
Statement" means such
registration statement, at the date and time as of which such
registration
statement, or the most recent post-effective amendment thereto, if
any, was
declared effective by the Commission, including any exhibits
thereto and any
documents incorporated by reference therein at such time. The
Depositor proposes
to file with the Commission pursuant to Rule 424(b) of the Rules
and Regulations
a prospectus supplement dated September 25, 2006 (together with
information
referred to under the caption "Sponsor's Static Pool Information"
therein
regardless of whether it is deemed a part of the Registration
Statement or
Prospectus, the "Prospectus Supplement") to the prospectus dated
March 31, 2006
(the "Base Prospectus"), relating to the Offered Notes and the
method of
distribution thereof. "Prospectus" means the Base Prospectus, as
amended or
supplemented to the date hereof, as further supplemented by the
Prospectus
Supplement. 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 complied, as of the effective date
thereof,
and any post-effective amendment thereto, at the time it became
effective, and
the Prospectus, as of the date of the Prospectus Supplement, and
any further
amendments or supplements to the Registration Statement or the
Prospectus will,
when they become effective or are filed with the
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Commission, as the case may be, comply in all respects with the
requirements of
the Securities Act and the Rules and Regulations and the Trust
Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules and
regulations of
the Commission thereunder. The Registration Statement, as of the
applicable
effective date as to each part of the Registration Statement
pursuant to Rule
430B(f)(2) and 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
Original FWP (when
read together with the Static Pool FWP), as of its date and as of
the Time of
Sale, did 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. The
Prospectus, as
of the date of the Prospectus Supplement and 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, the Time of Sale Information or
the Prospectus
in reliance upon and in conformity with the Underwriters
Information (as defined
herein).
C. The
documents incorporated by reference in the Registration
Statement
or the Prospectus, when they became effective or were filed with
the Commission,
as the case may be, complied in all material respects with 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
Registration Statement
or the Prospectus, when such documents become effective or are
filed with the
Commission, as the case may be, will comply in all material
respects with 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.
D. The
Original FWP (when read together with the Static Pool FWP), at
the
Time of Sale, did not, and at the Closing Date 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 Time of
Sale Information
in reliance upon and in conformity with the Underwriters
Information. Other than
the Time of Sale Information and the Prospectus, the Transferor
(including its
agents and representatives other than the Underwriters in their
capacity as
such) has not prepared or authorized, and will not prepare or
authorize any
"written communication" (as defined in Rule 405 under the
Securities Act) that
constitutes an offer to sell or solicitation or an offer to buy the
Offered
Notes other than the documents, if any, listed under "Time of Sale
Information"
in Schedule I hereto and other written communication approved by
the
Representative. Each Free Writing Prospectus (as defined herein)
complied in all
material respects with the Securities Act and the Rules and
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Regulations, and has been filed in accordance with Section VI (to
the extent
required by Rule 433 under the Act).
E. Since
the respective dates as of which information is given in the
Original FWP and the Static Pool FWP, 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 Time of Sale Information as supplemented or
amended as of
the Time of Sale. 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.
F. 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 September 1, 2006,
among FSA,
LBAC and the Transferor (the "Insurance Agreement") and the
Indemnification
Agreement, dated as of September 20, 2006, 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.
G. This
Agreement has been duly authorized, executed and delivered by
each
of the Transferor and LBAC.
H. 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.
I. 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.
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J. 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.
K. The
Initial Assignments and each Subsequent Assignment, when
executed
and delivered as contemplated hereby and thereby, will have been
duly
authorized, executed and delivered by LBAC and LBARCWI, 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.
L. 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.
M. 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.
N. 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 Certificate 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.
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O. The
Offered Notes, the Indenture, the Certificate, 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
Original FWP.
As of the Closing Date, the Offered Notes, the Indenture, the
Certificate, 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 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 Certificate 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, will be duly
and validly
issued and outstanding and entitled to the benefits of the Trust
Agreement.
P. The
Transferor's, LBARCWI'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.
Q. 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 Certificate, 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
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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.
R. 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 Certificate, (ii) seeking to prevent the
issuance of
the Offered Notes or the Certificate 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 Certificate or (iv) seeking to affect
adversely the federal
income tax attributes of the Offered Notes as described in the
Original FWP or
the Prospectus.
S.
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.
T.
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.
U. Neither
the Transferor nor the Trust is, and neither the issuance and
sale of the Offered Notes or the Certificate 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").
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V. It is
not necessary to qualify the Trust Agreement under the Trust
Indenture Act. The Indenture has been duly qualified under the
Trust Indenture
Act.
W. 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 Certificate (except as
contemplated herein).
X. 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
Certificate have been
or will be paid on or prior to the Closing Date.
Y. Ernst
& Young 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.
Z. 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
Certificate 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.
AA. The
Transferor is not, and on the date on which the first bona fide
offer of the Offered Notes was made was not, and as of the Closing
Date will not
be, an "ineligible issuer", as defined in Rule 405 under the
Securities Act.
Any
certificates signed by officers of the Transferor, LBARCWI 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 Dewey Ballantine LLP, 1301 Avenue of the Americas, New York, New
York 10019,
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 September 28, 2006, 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
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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.
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 and, subject to Section VI,
file any Free
Writing Prospectuses to the extent required by Rule 433 under the
Securities Act
and the Rules and Regulations; to make no further amendment or any
supplement to
the Registration Statement, any Time of Sale Information 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
any Time of
Sale Information or the Prospectus or any amended Time of Sale
Information or
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, the Time of Sale Information 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 Time of Sale
Information or
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
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exhibits); (ii) the Time of Sale Information and any amended or
supplemented
Time of Sale Information, (iii) the Prospectus and any amended or
supplemented
Prospectus; and (iv) 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 Closing
Date 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 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
Closing Date,
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, the Time of Sale Information or the Prospectus or any
supplement to
any Time of Sale Information or the Prospectus that may, in the
judgment of LBAC
or the Representative, be required by the Securities Act or by the
Rules and
Regulations, or requested by the Commission.
E. Prior
to filing with the Commission any (i) supplement to any Time of
Sale Information or the Prospectus, (ii) Prospectus pursuant to
Rule 424 of the
Rules and Regulations or (iii) any Free Writing Prospectus pursuant
to Rule 433
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 subj
