LONG BEACH SECURITIES CORP. $2,442,492,000 (Approximate) Long Beach Mortgage Loan Trust 2006-1 Asset-Backed Certificates Series 2006-1 UNDERWRITING AGREEMENT January 24, 2006
$2,442,492,000
(Approximate)
Asset-Backed
Certificates
Series
2006-1
UNDERWRITING
AGREEMENT
January
24, 2006
|
Credit
Suisse Securities (USA) LLC
00
Xxxxxxx Xxxxxx
Xxx
Xxxx, XX 00000-0000
WaMu
Capital Corp.
0000
0xx
Xxxxxx, XXX 0000
Xxxxxxx,
Xxxxxxxxxx 00000
|
|
Ladies
and Gentlemen:
Long
Beach Securities Corp., a Delaware corporation (the “Depositor”),
has
authorized the issuance and sale of Long Beach Mortgage Loan Trust 2006-1,
Asset-Backed Certificates, Series 2006-1, Class I-A, Class II-A1, Class II-A2,
Class II-A3, Class II-A4, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5,
Class M-6, Class M-7, Class M-8, Class M-9, Class M-10 and Class M-11
Certificates (collectively, the “Underwritten
Certificates”)
and
the Class C, Class P, Class R, Class R-CX and Class R-PX Certificates
(collectively, the “Non-Offered
Certificates”
and,
together with the Underwritten Certificates, the “Certificates”).
Only
the
Underwritten Certificates are being purchased by the underwriters named in
Schedule A hereto (the “Underwriters”),
and
the Underwriters are purchasing, severally, only the Underwritten Certificates
set forth opposite their names in Schedule A, except that the amounts purchased
by the Underwriters may change in accordance with Section 11 of this Agreement.
The
Certificates will be issued pursuant to a pooling and servicing agreement (the
“Pooling
and Servicing Agreement”),
to be
dated as of February 1, 2006 among the Depositor as depositor, Long Beach
Mortgage Company as master servicer (in such capacity, the “Master
Servicer”),
and
Deutsche Bank National Trust Company as Trustee (in such capacity, the
“Trustee”).
The
Underwritten Certificates are more fully described in a Registration Statement
(as such term is defined in Section 1(i)(a)) which the Depositor has furnished
to the Underwriters.
The
Certificates will evidence fractional undivided interests in the trust formed
pursuant to the Pooling and Servicing Agreement (the “Trust”).
The
assets of the Trust will initially include, among other things, a pool (the
“Mortgage
Pool”)
of
first-lien, fixed-rate and adjustable-rate residential mortgage loans delivered
on the Closing Date (as defined below) (the “Mortgage
Loans”),
the
rights of the Trustee under all insurance policies relating to the Trust or
its
assets,
certain
rights of the Depositor under the Mortgage Loan Purchase Agreement (as defined
below), and such amounts as may be held by the Trustee in any other accounts
held by the Trustee for the Trust. A form of the Pooling and Servicing Agreement
has been filed as an exhibit to the Registration Statement. The Long Beach
Mortgage Loan Trust 2006-1, Asset-Backed Certificates, Series 2006-1 will,
to
the extent described in the Prospectus Supplement, also be entitled to payments
pursuant to a swap agreement between the Trust and the counterparties thereto
and the related novation (a “Swap
Agreement”).
Pursuant
to the Mortgage Loan Purchase Agreement, to be dated as of January 24, 2006
(the
“Mortgage
Loan Purchase Agreement”),
between Long Beach Mortgage Company, as seller (in such capacity, the
“Seller”)
and
the Depositor, the Seller will transfer to the Depositor all of its right,
title
and interest in and to the Mortgage Loans, all scheduled payments due on the
Mortgage Loans after the Cut-off Date and all unscheduled collections in respect
of the Mortgage Loans received after the Cut-off Date (other than the portion
of
such collections due on or before the Cut-off Date), the collateral securing
each Mortgage Loan. Pursuant to the Pooling and Servicing Agreement, the
Depositor will transfer to the Trust all of its right, title and interest in
and
to the Mortgage Loans, all scheduled payments due on the Mortgage Loans after
the Cut-off Date and all unscheduled collections in respect of the Mortgage
Loans received after the Cut-off Date (other than the portion of such
collections due on or before the Cut-off Date) and the collateral securing
each
Mortgage Loan.
At
or
prior to the time when sales to purchasers of the Underwritten Certificates
were
first made (the “Time
of Sale”),
the
Depositor had prepared the Long Beach Preliminary Prospectus dated January
24,
2006 (the “Time
of Sale Information”).
If,
subsequent to the date of this Agreement, the Depositor and the Underwriters
have determined that the Long Beach Preliminary Prospectus 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 have terminated their old purchase
contracts and entered into new purchase contracts with purchasers of the
Underwritten Certificates, then “Time
of Sale Information”
will
refer to the Long Beach Preliminary Prospectus, as amended or supplemented
(the
“Corrected
Long Beach Preliminary Prospectus”).
Capitalized
but undefined terms shall have the meanings set forth in the Pooling and
Servicing Agreement.
SECTION
1. Representations
and Warranties.
The
Depositor represents and warrants to, and agrees with the Underwriters that
as
of the date hereof and as of the Closing Date:
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(a) A
Registration Statement on Form S-3 (No. 333-109318), has (i) been prepared
by
the Depositor in conformity with the requirements of the Securities Act of
1933,
as amended (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 with the Commission under the Securities Act and (iii) become
effective and is still effective as of the date hereof under the Securities
Act.
Copies of such Registration Statement have been delivered by the Depositor
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; “Basic
Prospectus”
means
such base prospectus dated February 10, 2004; “Prospectus
Supplement”
means
the final prospectus supplement relating to the Underwritten Certificates,
to be
filed with the Commission pursuant to paragraphs (2), (3) or (5) of Rule 424(b)
of the Rules and Regulations and “Preliminary
Prospectus Supplement”
means
the preliminary prospectus supplement, as amended or supplemented, relating
to
the Underwritten Certificates to be filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations. “Long
Beach Preliminary Prospectus”
or
“Preliminary
Prospectus”
means
the Basic Prospectus together with the Preliminary Prospectus Supplement.
“Long
Beach Prospectus”
or
“Prospectus”
means
the Basic Prospectus together with the Prospectus Supplement. Reference made
herein to the Long Beach Preliminary Prospectus or the Long Beach 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 Preliminary Prospectus or the Prospectus, as applicable, and any
reference to any amendment or supplement to the Long Beach Preliminary
Prospectus or the Long Beach Prospectus shall be deemed to refer to and include
any document filed under the Securities Exchange Act of 1934 (the “Exchange
Act”)
after
the date of the Long Beach Preliminary Prospectus or the Long Beach Prospectus,
as applicable, and incorporated by reference in the Long Beach Preliminary
Prospectus or the Long Beach Prospectus, as applicable, and any reference to
any
amendment to the Registration Statement shall be deemed to include any report
of
the Depositor filed with the Commission pursuant to Section 13(a) or 15(d)
of
the Exchange Act after the Effective Time that is incorporated by reference
in
the Registration Statement. The Commission has not issued any order preventing
or suspending the use of the Long Beach Preliminary Prospectus or Long Beach
Prospectus or the effectiveness of the Registration Statement and no proceedings
for such purpose are pending or, to the Depositor’s knowledge, threatened by the
Commission. There are no contracts or documents of the Depositor 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.
3
(b) The
Registration Statement, the Long Beach Preliminary Prospectus and the Long
Beach
Prospectus, as applicable, conform, and any further amendments or supplements
to
the Registration Statement, the Long Beach Preliminary Prospectus or the Long
Beach Prospectus will conform, when they become effective or are filed with
the
Commission, as the case may be, 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 as of the date it became
effective, 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 Long Beach Prospectus, as of its date,
and as amended or supplemented as of the Closing Date, and the Time of Sale
Information as of the Time of Sale, do 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 (i) information contained in or omitted from the Registration
Statement, the Long Beach Preliminary Prospectus or the Long Beach Prospectus
in
reliance upon and in conformity with information furnished to the Depositor
in
writing by any Underwriter expressly for use therein as stated in Section 8(b)
hereof, or (ii) any information contained in any Underwriter Free Writing
Prospectus (as defined in Section 9(a) below), except, in the case of this
clause (ii), to the extent such information is Issuer Information (as defined
in
Section 9(e)(i)) or included in the Issuer Free Writing Prospectus (as defined
in Section 9(b)(ii)), the Long Beach Preliminary Prospectus or the Long Beach
Prospectus or contains such an untrue statement or omission as a result of
a
Pool Error (as defined in Section 8(a) below) or (iii) any information omitted
from the Long Beach Preliminary Prospectus pursuant to Rule 430B under the
Securities Act. It is understood and acknowledged, for purposes of this Section
2(b), that the only information furnished to the Depositor in writing by any
Underwriter expressly for use in the Registration Statement, the Long Beach
Preliminary Prospectus or the Long Beach Prospectus is the information relating
to such Underwriter under the caption “Method of Distribution” in the
Preliminary Prospectus Supplement or the Prospectus Supplement. The Issuer
Information (as defined in Section 9(e)(i)), the Issuer Free Writing Prospectus
(as defined in Section 9(b)(ii)) and any static pool information that is
provided in connection with the offering of the Underwritten Certificates but
that is deemed excluded from the registration statement and prospectus pursuant
to Regulation AB Item 1105(d) (“Static Pool Information”), each as of its date,
did not or will not contain any
untrue
statement of a material fact or
omit
to state
a
material fact
necessary to make the statements therein, in
light of
the circumstances under which they were made, not misleading.
(c) The
documents incorporated by reference in the Long Beach Preliminary Prospectus
or
the Long Beach 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; and any further documents so filed and incorporated
by
reference in the Long Beach Preliminary Prospectus or the Long Beach Prospectus,
when such documents become effective or are filed with the Commission, as the
case may be, will conform in all materials respects to the requirements of
the
Securities Act or the Exchange Act, as applicable, and the Rules and Regulations
thereunder.
4
(d) The
Depositor has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of its jurisdiction of incorporation and is in
good
standing as a foreign corporation in each jurisdiction in which its ownership
or
lease of property or the conduct of its business so requires such standing.
The
Depositor has all power and authority necessary to own or hold its properties,
to conduct the business in which it is engaged and to enter into and perform
its
obligations under this Agreement, the Mortgage Loan Purchase Agreement and
the
Pooling and Servicing Agreement (collectively, the “Agreements”)
and to
cause the Certificates to be issued.
(e) There
are
no actions, proceedings or investigations pending with respect to which the
Depositor has received service of process before or threatened by any court,
administrative agency or other tribunal to which the Depositor is a party or
of
which any of its properties is the subject (a) which if determined adversely
to
the Depositor would have a material adverse effect on the business or financial
condition of the Depositor, (b) asserting the invalidity of any of the
Agreements or the Certificates, (c) seeking to prevent the issuance of the
Certificates or the consummation by the Depositor of any of the transactions
contemplated by any of the Agreements or (d) which might materially and
adversely affect the performance by the Depositor of its obligations under,
or
the validity or enforceability of any of the Agreements or the Certificates.
(f) This
Agreement has been, and the other Agreements when executed and delivered as
contemplated hereby and thereby will have been, duly authorized, executed and
delivered by the Depositor, and this Agreement constitutes, and the other
Agreements when executed and delivered as contemplated herein will constitute,
legal, valid and binding instruments enforceable against the Depositor in
accordance with their respective terms, subject as to enforceability to (x)
applicable bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors’ rights generally, (y) general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law), and (z) with respect to rights of indemnity under any of the Agreements,
limitations of public policy under applicable securities laws.
(g) The
execution, delivery and performance of the Agreements by the Depositor and
the
consummation of the transactions contemplated hereby and thereby, and the
issuance and delivery of the Certificates do not and will not conflict with
or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Depositor is a party,
by
which the Depositor is bound or to which any of the properties or assets of
the
Depositor or any of its subsidiaries is subject, which breach or violation
would
have a material adverse effect on the business, operations or financial
condition of the Depositor or its ability to perform its obligations under
any
of the Agreements, nor will such actions result in any violation of the
provisions of the articles of incorporation or by-laws of the Depositor or
any
statute or any order, rule or regulation of any court or governmental agency
or
body having jurisdiction over the Depositor or any of its properties or assets,
which breach or violation would have a material adverse effect on the business,
operations or financial condition of the Depositor or its ability to perform
its
obligations under any of the Agreements.
5
(h) The
direction by the Depositor to the Trustee to execute, authenticate, issue and
deliver the Certificates has been duly authorized by the Depositor, and,
assuming the Trustee has been duly authorized to undertake such actions, when
executed, authenticated, issued and delivered by the Trustee, in accordance
with
the Pooling and Servicing Agreement, the Certificates will be validly issued
and
outstanding and the holders of the Certificates will be entitled to the rights
and benefits of the Certificates as provided by the Pooling and Servicing
Agreement.
(i) 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 Certificates and the sale of the Underwritten
Certificates to the Underwriters, or the consummation by the Depositor of the
other transactions contemplated by the 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 Underwritten Certificates by the Underwriters or as have
been obtained.
(j) At
the
time of the execution and delivery of the Pooling and Servicing Agreement,
the
Depositor will: (i) have equitable title to the interest in the Mortgage Loans
conveyed by the Seller, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively,
“Liens”);
(ii)
not have assigned to any person (other than the Trustee) any of its right,
title
or interest in the Mortgage Loans and (iii) have the power and authority to
sell
its interest in the Mortgage Loans to the Trustee and to sell the Underwritten
Certificates to the Underwriters. Upon execution and delivery of the Pooling
and
Servicing Agreement by the Trustee, the Trustee will have acquired beneficial
ownership of all of the Depositor’s right, title and interest in and to the
Mortgage Loans. Upon delivery to the Underwriters of the Underwritten
Certificates, the Underwriters will have good title to the Underwritten
Certificates free of any Liens.
(k) As
of the
Cut-off Date, each of the Mortgage Loans will meet the eligibility criteria
described in the Long Beach Preliminary Prospectus and the Long Beach Prospectus
and will conform to the descriptions thereof contained in the Long Beach
Preliminary Prospectus and the Long Beach Prospectus.
(l) Neither
the Depositor nor the Trust is an “investment company” within the meaning of
such term under the Investment Company Act of 1940 (the “1940
Act”)
and
the rules and regulations of the Commission thereunder.
(m) At
the
Closing Date, the Underwritten Certificates and the Pooling and Servicing
Agreement will conform in all material respects to the descriptions thereof
contained in the Long Beach Preliminary Prospectus and the Long Beach
Prospectus.
(n) Any
taxes, fees and other governmental charges in connection with the execution,
delivery and issuance of the Agreements and the Certificates have been paid
or
will be paid at or prior to the Closing Date.
6
(o) Since
the
date as of which information is given in the Long Beach Preliminary Prospectus,
there has not been any material adverse change in the general affairs,
management, financial condition, or results of operations of the Depositor
or
the Seller, otherwise than as set forth or contemplated in the Long Beach
Preliminary Prospectus or the Long Beach Prospectus, each as supplemented or
amended as of the Closing Date.
(p) Any
certificate signed by an officer of the Depositor and delivered to an
Underwriter or counsel for the Underwriters in connection with an offering
of
the Underwritten Certificates shall be deemed, and shall state that it is,
a
representation and warranty as to the matters covered thereby to each person
to
whom the representations and warranties in this Section 1 are made.
(q) The
Pooling and Servicing Agreement is not required to be qualified under the Trust
Indenture Act of 1939, as amended.
(r) The
Depositor is not, and on any date on or after which the first bona fide offer
of
the Certificates is made will not be, an “ineligible issuer,” as defined in Rule
405 under the Securities Act.
The
Depositor will in all material respects comply with all applicable laws and
regulations in connection with the use of the Issuer Free Writing Prospectus
(as
defined in Section 9(b)(ii).
SECTION
2. Purchase
and Sale.
The
commitment of the Underwriters to purchase the Underwritten Certificates
pursuant to this Agreement shall be deemed to have been made on the basis of
the
representations, warranties, agreements and covenants herein contained and
shall
be subject to the terms and conditions herein set forth. The Depositor agrees
to
instruct the Trustee to issue the Certificates and agrees to sell to the
Underwriters the Underwritten Certificates and the Underwriters agree (except
as
provided in Sections 11 and 12 hereof) severally and not jointly to purchase
from the Depositor the aggregate initial principal amounts or percentage
interests of the Underwritten Certificates of each Class, as set forth under
such Underwriter’s name on, or as otherwise described in, Schedule A, at the
purchase price or prices set forth on Schedule A.
SECTION
3. Delivery
and Payment.
Delivery of and payment for the Underwritten Certificates shall be made at
the
offices of Xxxxxx Xxxxxx LLP, Seattle,
Washington, or at such other place as shall be agreed upon by the Underwriters
and the Depositor at 10:00 A.M. New York time on February 7, 2006, or at such
other time or date as shall be agreed upon in writing by the Underwriters and
the Depositor (such date being referred to as the “Closing
Date”).
Payment shall be made to the Depositor by wire transfer of same day funds
payable to the account of the Depositor. Delivery of the Underwritten
Certificates shall be made to Credit Suisse Securities (USA) LLC for the
accounts of the several Underwriters against payment of the purchase price
thereof. The Underwritten Certificates so delivered will be initially
represented by one or more certificates registered in the name of Cede &
Co., the nominee of The Depository Trust Company (“DTC”).
The
interests of the beneficial owners of the Underwritten Certificates will be
represented by book entries on the records of DTC and participating members
thereof. Definitive Certificates will be available only under the limited
circumstances specified in the Pooling and Servicing Agreement.
7
SECTION
4. Offering
by the Underwriters.
It is
understood that, subject to the terms and conditions hereof, the several
Underwriters propose to offer the Underwritten Certificates for sale to the
public as set forth in the Long Beach Preliminary Prospectus and
that
the Underwriters will not offer, sell or otherwise distribute the Underwritten
Certificates (except for the sale thereof in exempt transactions) in any state
in which the Underwritten Certificates are not exempt from registration under
state securities laws or Blue Sky laws (except where the Underwritten
Certificates will have been qualified for offering and sale at the direction
of
the Underwriters under such state securities laws or Blue Sky laws). In
connection with such offering(s), the Underwriters agree to provide the
Depositor with information related to the offer and sale of the Underwritten
Certificates that is reasonably requested by the Depositor, from time to time
(but not after three
years from
the
Closing Date), and necessary for complying with its tax reporting obligations,
including, without limitation, the issue price of the Underwritten
Certificates.
Each
Underwriter agrees that it will not sell or transfer any Underwritten
Certificate or interest therein in the initial sale or transfer of such
Underwritten Certificate by the Underwriter in an amount less than the minimum
denomination for such Underwritten Certificate to be set forth in the Long
Beach
Preliminary Prospectus.
SECTION
5. Agreements.
(a) The
Depositor agrees as follows:
(i) To
prepare the Long Beach Preliminary Prospectus and the Long Beach Prospectus
in a
form approved by the Underwriters and to file such Long Beach Preliminary
Prospectus and Long Beach Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission’s close of business on the second
Business Day following the availability of the Long Beach Preliminary Prospectus
and the Long Beach Prospectus, as applicable, to the Underwriters; to make
no
further amendment or any supplement to the Registration Statement, the Long
Beach Preliminary Prospectus or the Long Beach Prospectus prior to the Closing
Date except as permitted herein; to advise the Underwriters, promptly after
it
receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective prior to the termination of the
offering of the Underwritten Certificates or any supplement to the Long Beach
Preliminary Prospectus or the Long Beach Prospectus or any amended Long Beach
Preliminary Prospectus or amended Long Beach Prospectus has been filed and
to
furnish the Underwriters or its counsel with copies thereof without charge;
to
file promptly all reports and any definitive proxy or information statements
required to be filed by the Depositor with the Commission pursuant to Section
13(a), 13(c), 14 or l5(d) of the Exchange Act subsequent to the date of the
Long
Beach Prospectus and, for so long as the delivery of a prospectus is required
in
connection with the offering or sale of the Underwritten Certificates; to
promptly advise the Underwriters of its receipt of notice of the issuance by
the
Commission of any stop order or the institution of or, to the knowledge of
the
Depositor, the threatening of any proceeding for such purpose, or of: (i) any
order preventing or suspending the use of the Long Beach Prospectus; (ii) the
suspension of the qualification of the Underwritten Certificates for offering
or
sale in any jurisdiction; (iii) the initiation of or threat of any proceeding
for any such purpose or (iv) any request by the Commission for the amending
or
supplementing of the Registration Statement or the Long Beach 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 Long Beach Prospectus or
suspending any such qualification, the Depositor promptly shall use its best
efforts to obtain the withdrawal of such order by the Commission.
8
(ii) [Reserved].
(iii) To
deliver promptly to the Underwriters without charge such number of the following
documents as the Underwriters shall reasonably request: (i) the Long Beach
Preliminary Prospectus, the Long Beach Prospectus and any amended or
supplemented Long Beach Preliminary Prospectus or Long Beach Prospectus; and
(ii) any document incorporated by reference in the Long Beach Preliminary
Prospectus or the Long Prospectus (including exhibits thereto). If the delivery
of a prospectus is required at any time prior to the expiration of ninety days
after the Closing Date in connection with the offering or sale of the
Underwritten Certificates, and if at such time any events shall have occurred
as
a result of which the Long Beach 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 Long Beach Prospectus
is
delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Long Beach Prospectus or
to
file under the Exchange Act any document incorporated by reference in the Long
Beach Prospectus in order to comply with the Securities Act or the Exchange
Act,
the Depositor shall notify the Underwriters and, upon any Underwriter’s request,
shall file such document and prepare an amended Long Beach Prospectus or a
supplement to the Long Beach Prospectus which corrects such statement or
omission or effects such compliance, and in case the Underwriters are required
to deliver a prospectus in connection with sales of any of the Underwritten
Certificates at any time ninety days or more after the Effective Time, upon
the
request of the Underwriters but at their expense, the Depositor shall prepare
and deliver to the Underwriters an amended or supplemented Long Beach Prospectus
complying with Section 10(a)(3) of the Securities Act.
(iv) To
file
promptly with the Commission any amendment to the Registration Statement, the
Long Beach Preliminary Prospectus or the Long Beach Prospectus or any supplement
to the Long Beach Prospectus that may, in the judgment of the Depositor or
the
Underwriters, be required by the Securities Act or requested by the Commission.
Neither the Underwriters’ consent to nor their distribution of any amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 6.
(v) To
furnish the Underwriters and counsel for the Underwriters, prior to filing
with
the Commission, and to obtain the consent of the Underwriters for the filing
of
the following documents relating to the Underwritten Certificates: (i) any
Post-Effective Amendment to the Registration Statement or supplement to the
Long
Beach Prospectus, or document incorporated by reference in the Long Beach
Prospectus or (ii) the Long Beach Preliminary Prospectus and the Long Beach
Prospectus pursuant to Rule 424 of the Rules and Regulations.
(vi) To
use
commercially reasonable efforts, in cooperation with the Underwriters, to
qualify the Underwritten Certificates for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States
or
elsewhere as the Underwriters may reasonably designate, and maintain or cause
to
be maintained such qualifications in effect for as long as may be required
for
the distribution of the Underwritten Certificates. The Depositor shall file
or
cause the filing of such statements and reports as may be required by the laws
of each jurisdiction in which the Underwritten Certificates have been so
qualified; provided, however, that the Depositor shall not be required to
qualify to do business in any jurisdiction where it is not now so qualified
or
to take any action which would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
9
(vii) [Reserved].
(viii) So
long
as the Underwritten Certificates shall be outstanding, the Depositor shall
cause
the Trustee, pursuant to the Pooling and Servicing Agreement, to deliver to
the
Underwriters as soon as such statements are furnished to the Trustee: (i) the
annual statement as to compliance delivered to the Trustee pursuant to Section
3.20 of the Pooling and Servicing Agreement; (ii) the annual statement of a
firm
of independent public accountants furnished to the Trustee pursuant to Section
3.21 of the Pooling and Servicing Agreement; (iii) the monthly servicing report
furnished to the Trustee pursuant to Section 4.03 of the Pooling and Servicing
Agreement and (iv) the monthly reports made available by the Trustee to the
Certificateholders pursuant to Section 4.08(a)(i) of the Pooling and Servicing
Agreement.
(b) Each
Underwriter hereby represents and agrees, severally and not jointly, that in
relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant
Member State”),
with
effect from and including the date on which the Prospectus Directive is
implemented in that Relevant Member State (the “Relevant
Implementation Date”)
it has
not made and will not make an offer of the Certificates to the public in that
Relevant Member State prior to the publication of a prospectus in relation
to
the Certificates which has been approved by the competent authority in that
Relevant Member State or, where appropriate, approved in another Relevant Member
State and notified to the competent authority in that Relevant Member State,
all
in accordance with the Prospectus Directive, except that it may, with effect
from and including the Relevant Implementation Date, make an offer of the
Certificates to the public in that Relevant Member State at any
time:
(i) to
legal
entities which are authorized or regulated to operate in the financial markets
or, if not so authorized or regulated, whose corporate purpose is solely to
invest in securities;
(ii) to
any
legal entity which has two or more of (1) an average of at least 250 employees
during the last financial year; (2) a total balance sheet of more than
€43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in
its last annual or consolidated accounts; or
(iii) in
any
other circumstances which do not require the publication by the Depositor of
a
prospectus pursuant to Article 3 of the Prospectus Directive.
For
the
purposes of this representation, the expression an “offer of the Certificates to
the public” in relation to any Certificates in any Relevant Member State means
the communication in any form and by any means of sufficient information on
the
terms of the offer and the Certificates to be offered so as to enable an
investor to decide to purchase or subscribe the Certificates, as the same may
be
varied in that Member State by any measure implementing the Prospectus Directive
in that Member State, and the expression “Prospectus Directive” means Directive
2003/71/EC and includes any relevant implementing measure in each Relevant
Member State.
10
Each
Underwriter, severally and not jointly, hereby further represents and agrees,
with respect to the United Kingdom, that:
(i) it
has
only communicated or caused to be communicated and will only communicate or
cause to be communicated an invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the Financial Services and Markets
Act) received by it in connection with the issue or sale of the Notes in
circumstances in which Section 21(1) of the Financial Services and Markets
Act
does not apply to the Issuer; and
(ii) it
has
complied and will comply with all applicable provisions of the Financial
Services and Markets Act with respect to anything done by it in relation to
the
Certificates in, from or otherwise involving the United Kingdom.
(c) The
Depositor and the Underwriters acknowledge and agree that:
(i) the
transaction contemplated by this Agreement is an arm's length commercial
transaction between the Depositor and the Underwriters,
(ii) in
connection therewith with respect to all aspects of the transaction contemplated
herein, each Underwriter is acting as a principal and not the agent or fiduciary
of the Depositor, and
(iii) none
of
the Underwriters has assumed an advisory responsibility in favor of the
Depositor with respect to the transaction contemplated hereby or the process
leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Depositor on other matters) or any other obligation
to
the Depositor except the obligations expressly set forth in this
Agreement.
SECTION
6. Conditions
to the Underwriters’ Obligation.
The
obligations of the Underwriters hereunder to purchase the Underwritten
Certificates pursuant to this Agreement are subject to the following conditions
as of the Closing Date:
(a) Each
of
the obligations of the Depositor and the Seller required to be performed by
the
Depositor and Seller, respectively, on or prior to the Closing Date pursuant
to
the terms of the Agreements shall have been duly performed and complied with
and
all of the representations and warranties of the Depositor and the Seller under
any of the Agreements and statements made by either the Depositor or Seller
in
any certificate delivered pursuant to any of the Agreements shall be true and
correct as of the Closing Date and no event shall have occurred which, with
notice or the passage of time or both, would constitute a default under any
of
the Agreements, and the Underwriters shall have received certificates to the
effect of the foregoing and certificates as to the accuracy of the written
statements made pursuant to the provisions of this Section, each signed by
an
authorized officer of the Depositor and the Seller, respectively.
11
(b) Prior
to
the Closing Date, (i) the Depositor shall have received confirmation of the
effectiveness of the Registration Statement and (ii) no stop order suspending
the effectiveness of the Registration Statement shall have been issued and
no
proceedings for that purpose shall have been instituted or, to the knowledge
of
the Depositor, shall be contemplated by the Commission. Any request of the
Commission for inclusion of additional information in the Registration Statement
or the Long Beach Prospectus shall have been complied with.
(c) The
Underwriters shall have received (i) a copy of a letter from Deloitte &
Touche LLP, dated on or before the date of the Issuer Free Writing Prospectus
(as defined in Section 9(b)(ii)) reflecting the performance of the procedures
previously agreed to by the Depositor and Deloitte & Touche LLP with respect
to the Mortgage Loans, and (ii) a copy of a letter from Deloitte & Touche
LLP, dated on or before the date of the Long Beach Preliminary Prospectus (a)
regarding certain numerical information contained or incorporated by reference
in the Long Beach Preliminary Prospectus and (b) reflecting the performance
of
the procedures previously agreed to by the Depositor and Deloitte & Touche
LLP with respect to the Mortgage Loans and (iii) a bring down letter relating
to
the Long Beach Prospectus, dated on or before the date of the Long Beach
Prospectus, from Deloitte & Touche LLP with respect to the letter described
in (ii).
(d) The
Mortgage Loans will be acceptable to Xxxxx’x Investors Service, Inc.
(“Moody’s”)
and
Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc.
(“S&P”),
in
their sole discretion.
(e) The
Underwriters shall have received the following additional closing documents,
in
form and substance satisfactory to the Underwriters and their
counsel:
(i) the
Agreements and all documents required thereunder, duly executed and delivered
by
each of the parties thereto other than the Underwriters and their
affiliates;
(ii) an
officer’s certificate of an officer of the Seller and an officer’s certificate
of an officer of the Depositor, in each case, dated as of the Closing Date
and
reasonably satisfactory in form and substance to the Underwriters and counsel
for the Underwriters with resolutions of the applicable board of directors
and a
copy of the charter and by-laws of the Seller and the Depositor, as applicable;
(iii) an
opinion of in-house counsel to the Seller and the Depositor, reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, dated the Closing Date, as to various matters;
(iv) an
opinion of Xxxxxx Xxxxxx LLP, counsel to the Seller and the Depositor, dated
the
Closing Date, reasonably satisfactory in form and substance to the Underwriters
and counsel for the Underwriters, as to various matters including a negative
assurance letter regarding the Long Beach Preliminary Prospectus and the Long
Beach Prospectus;
12
(v) an
opinion of Xxxxxxx Xxxxxxxx & Xxxx LLP, counsel to the Underwriters, dated
the Closing Date, reasonably satisfactory in form and substance to the
Underwriters, as to various matters including a negative assurance letter
regarding the Long Beach Preliminary Prospectus and the Long Beach
Prospectus;
(vi) such
opinions of Xxxxxx Xxxxxx LLP, counsel to the Seller and the Depositor, in
forms
reasonably satisfactory to the Underwriters, counsel for the Underwriters,
Moody’s and S&P as to such additional matters not opined to in the opinion
delivered pursuant to clause (iv) above as shall be required for the assignment
by Moody’s and S&P of such ratings to the Underwritten Certificates as
described below;
(vii) a
letter
from Xxxxx’x and S&P that they have assigned the following
ratings:
|
|
S&P
|
|
Moody’s
|
|
|
I-A
|
|
AAA
|
|
Aaa
|
|
II-A1
|
|
AAA
|
|
Aaa
|
|
II-A2
|
|
AAA
|
|
Aaa
|
|
II-A3
|
|
AAA
|
|
Aaa
|
|
II-A4
|
|
AAA
|
|
Aaa
|
|
M-1
|
|
AA+
|
|
Aa1
|
|
M-2
|
|
AA+
|
|
Aa2
|
|
M-3
|
|
AA
|
|
Aa3
|
|
M-4
|
|
AA
|
|
A1
|
|
M-5
|
|
AA-
|
|
A2
|
|
M-6
|
|
A+
|
|
A3
|
|
M-7
|
|
A
|
|
Baa1
|
|
M-8
|
|
A-
|
|
Baa2
|
|
M-9
|
|
BBB+
|
|
Baa3
|
|
M-10
|
|
BBB
|
|
Ba1
|
|
M-11
|
|
BBB-
|
|
Ba2
|
(viii) an
opinion of counsel of the Trustee, dated the Closing Date, in form and substance
reasonably satisfactory to the Underwriters, counsel for the Underwriters,
Moody’s and S&P; and
(ix) an
officer’s certificate of an officer of the Trustee, dated as of the Closing
Date, reasonably satisfactory in form and substance to the Underwriters and
counsel for the Underwriters.
(f) All
proceedings in connection with the transactions contemplated by this Agreement
and all documents incident hereto shall be reasonably satisfactory in form
and
substance to the Underwriters and counsel for the Underwriters.
13
(g) The
Seller and the Depositor shall have furnished the Underwriters with such other
certificates of its officers or others and such other documents or opinions
as
the Underwriters or counsel for the Underwriters may reasonably
request.
(h) 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 New York state authorities;
(iii) the engagement of the United States in hostilities, or the escalation
of
such hostilities or declaration by the United States of a national emergency
or
war or other calamity or crisis; (iv) any downgrading in the rating of any
debt
securities of the Seller, if any, by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance or
review its rating of any such debt securities (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading of such rating) shall have occurred, (v) 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) which is material and adverse, and in the
case of any of the events specified in clauses (iii) and (v), such event makes
it in the judgment of the Underwriters, impractical or inadvisable to proceed
with the public offering or the delivery of the Underwritten Certificates on
the
terms and in the manner contemplated in the Long Beach Preliminary Prospectus
and the Long Beach Prospectus or (vi) any downgrading in the rating of the
counterparty under the Swap Agreement by any “nationally recognized statistical
rating organization” (as defined for purposes of Rule 436(g) under the
Securities Act), or any public announcement that any such organization has
under
surveillance or review its rating (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating).
(i) The
Depositor shall have furnished to the Underwriters copies of any certificates,
opinions or other closing documents delivered to any of Moody’s or S&P.
(j) The
Swap
Agreement shall have been issued, and the other documents and opinions of
counsel relating thereto shall be satisfactory in form and substance to the
Underwriters and counsel for the Underwriters.
(k) The
Underwriters shall have received (i) a copy of a letter from Deloitte &
Touche LLP, addressed to the Depositor, dated as of a date not more than 135
days prior to the date of first use of the Long Beach Preliminary Prospectus,
reflecting the performance of the procedures previously agreed to by the
Depositor and Deloitte & Touche LLP with respect to the static pool
information contained on the Depositor’s static pool website and/or filed with
the Commission for securitized mortgage pools issued on or after January 1,
2006
and/or vintage origination years commencing on or after January 1, 2006, as
applicable, which is incorporated into the Long Beach Preliminary Prospectus
and
the Long Beach Prospectus and (ii) a bring down letter, dated the Closing Date,
from Deloitte & Touche LLP with respect to the letter described in (i),
which shall be addressed to the Underwriters provided that the Underwriters
shall have complied with any reasonable requests of Deloitte & Touche LLP as
a condition thereto.
14
If
any
condition, specified in this Section 6 shall have not been fulfilled when and
as
required to be fulfilled, this Agreement may be terminated by the Underwriters
by notice to the Depositor at any time at or prior to the Closing Date, and
such
termination shall be without liability of any party to any other party except
as
provided in Sections 7, 8, 9, 10 and 15.
SECTION
7. Payment
of Expenses.
The
Depositor and the Seller agree to pay: (i) the costs incident to the
authorization, issuance, sale and delivery of the Certificates and any taxes
payable in connection therewith; (ii) the costs incident to the preparation
and
filing under the Securities Act of the Registration Statement and any amendments
and exhibits thereto; (iii) 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 Long Beach Preliminary
Prospectus, the Long Beach Prospectus and any amendment or supplement to the
Long Beach Preliminary Prospectus or the Long Beach Prospectus, any Issuer
Free
Writing Prospectus (as defined in Section 9(b)(ii)) or any document incorporated
by reference therein, all as provided in this Agreement; (iv) the costs of
reproducing and distributing this Agreement and any other related agreements;
(v) any fees charged by securities rating services for rating the Certificates;
(vi) the cost of accountants’ comfort letters relating to the Long Beach
Preliminary Prospectus, the Long Beach Prospectus and any Issuer Free Writing
Prospectus prepared by or on behalf of the Depositor and the bring down letter
to be delivered pursuant to Section 6(c) hereof; (vii) the cost of the
accountants’ comfort letter relating to static pool information prepared by or
on behalf of the Depositor and the bring down letter to be delivered pursuant
to
Section 6(k); (viii) any expenses incurred in connection with the filing, if
required, of any Underwriter Free Writing Prospectus prepared by or on behalf
of
the Underwriters with the Commission; (ix) the reasonable fees and expenses
of
its counsel, accountants and any other experts or advisors retained by the
Depositor; (x) commercially reasonable expenses related to the qualification
of
the Underwritten Certificates under the state securities or Blue Sky laws,
including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation
of
any Blue Sky memoranda; (xi) the fees and expenses of the Trustee and its
counsel (other than such ongoing fees or expenses which are provided for
pursuant to the terms of the Pooling and Servicing Agreement); and (xii) all
other costs and expenses incidental to the performance of the obligations of
the
Depositor and the Seller; provided that, except as provided in this Section
7,
the Underwriters shall pay their own costs and expenses, including (x) the
costs
and expenses of their counsel, except as otherwise mutually agreed, (y) any
transfer taxes on the Underwritten Certificates which they may sell, and (z)
the
expenses of advertising any offering of the Underwritten Certificates made
by
the Underwriters.
If
this
Agreement is terminated because of a breach by the Depositor of any covenant
or
agreement hereunder or the failure of any closing condition set forth in Section
6 (other than the failure of the closing condition set forth in Section 6(h)(i),
6(h)(ii), 6(h)(iii) or 6(h)(v) to be met), the Depositor shall cause the
Underwriters to be reimbursed for all reasonable out-of-pocket expenses,
including fees and disbursements of Xxxxxxx Xxxxxxxx & Xxxx LLP, counsel for
the Underwriters.
15
SECTION
8. Indemnification
and Contribution.
(a) The
Depositor indemnifies and holds harmless each Underwriter, each Underwriter’s
respective officers and directors and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Securities Act or Section
20
of the Exchange Act as follows:
(i) against
any and all losses, claims, expenses, damages or liabilities, joint or several,
to which such Underwriter or such controlling person may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof including, but not limited to, any
loss, claim, expense, damage or liability related to purchases and sales of
the
Underwritten Certificates) arise out of or are based upon (A) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Long Beach Preliminary Prospectus, the Long Beach
Prospectus, or any amendment or supplement thereto, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading or (B) any untrue statement or alleged
untrue statement of a material fact contained in any Issuer Information (as
defined in Section 9(e)(i)), Issuer Free Writing Prospectus (as defined in
Section 9(b)(ii)) or Static Pool Information, as of its date, or any error
in
the information concerning the characteristics of the Mortgage Loans furnished
by the Depositor to the Underwriters (any such information, the “Pool
Information”),
or,
in the case of an Issuer Free Writing Prospectus, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; and the Depositor will reimburse, as
incurred, each Underwriter and each such controlling person for any legal or
other expenses reasonably incurred by such Underwriter or such controlling
person in connection with investigating, defending against or appearing as
a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the Depositor
will not be liable in any such case to the extent that any such loss, claim,
damage or liability (x) arises out of or is based upon an untrue statement
or
omission, or alleged untrue statement or omission, made in any of such documents
in reliance upon and in conformity with any Underwriters’ Information or (y) is
directly related to any Underwriter’s failure to comply with its obligation
under Section 9(p);
For
purposes hereof, as to each Underwriter, the term “Underwriters’
Information”
with
respect to the Depositor, shall mean the information relating to such
Underwriter in the Long Beach Preliminary Prospectus or the Long Beach
Prospectus Supplement under the caption “Method of Distribution”.
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, to the extent
of the aggregate amount paid in settlement of any litigation, or investigation
or proceeding by any governmental agency or body, commenced or threatened,
or of
any claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is effected with
the written consent of the Depositor; and
16
(iii) against
any and all expense whatsoever (including the fees and disbursements of counsel
chosen by any such Underwriter, subject to Section 8(c) below), reasonably
incurred in investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under clause (i) or clause (ii) above.
This
indemnity agreement will be in addition to any liability which the Depositor
and
the Seller may otherwise have.
(b) Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
the Depositor, each of its directors, each of its officers who have signed
the
Registration Statement and each person, if any, who controls the Depositor
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, against any and all losses, claims, expenses, damages or
liabilities to which the Depositor or any such director, officer or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
(i)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Underwriter
Free Writing Prospectus, as of its date, or any
omission
or alleged omission to state in such Underwriter
Free Writing Prospectus
a
material fact or
necessary to make the statements therein,
in the
light of the circumstances under which they were made, not misleading; except
to
the extent that such misstatements are the result of (x) a Pool Error that
was
not corrected by information subsequently supplied by the Depositor to the
Underwriters at any time prior to the Time
of
Sale to the applicable investor
of the
Underwritten Certificates,
(y) any
information that is contained in Issuer Information (as defined in Section
9(e)(i), any Issuer Free Writing Prospectus (as defined in Section 9(b)(ii)),
any Static Pool Information, the Long Beach Preliminary Prospectus or the Long
Beach Prospectus, including any information incorporated therein by reference
(other than information incorporated by reference from the Underwriter Free
Writing Prospectus) or (z) any information that is contained in Pool
Information, (ii) are directly related to any Underwriter’s failure to comply
with its obligation under Section 9(p), and (iii) arise out of or are based
upon
any untrue statement or alleged untrue statement of a material fact contained
in
the
Registration Statement, the Long Beach Preliminary Prospectus, the Long Beach
Prospectus, or any amendment or supplement thereto, or arise out of, or are
based upon, the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, but with respect to clause (b)(iii) above only
to
the extent that such untrue statement or alleged untrue statement or omission
or
alleged omission was made in reliance upon and in conformity with the related
Underwriters’ Information of such Underwriter, and the Depositor will reimburse
any legal or other expenses reasonably incurred by the Depositor or any such
director, officer or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which such Underwriter may
otherwise have.
17
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action described therein, such indemnified party will,
if a
claim in respect thereof is to be made against the indemnifying party under
this
Section 8, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve the indemnifying
party from any liability that it may have to any indemnified party under this
Section 8(a) or (b) unless the indemnifying party is materially prejudiced
by
such omission to notify and in any event the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to the
indemnified party otherwise than under Section 8(a) or (b) of this Agreement.
In
case any such action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying party
will
be entitled to participate therein, and, to the extent that it may wish to
do
so, jointly with any other indemnifying party similarly notified, to assume
the
defense thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party (such consent not to
be
unreasonably withheld, conditioned or delayed), be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
under this Section 8, such indemnifying party shall not be liable for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation and
preparation for a defense.
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) a conflict or potential conflict exists (based on advice
of counsel to the indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not have the
right
to direct the defense of such action on behalf of the indemnified party) 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 (i) by the related Underwriter, if the
indemnified parties under this Section 8 consist of one Underwriter or any
of
its controlling persons, (ii) by the Underwriters, if the indemnified parties
under this Section 8 consist of more than one Underwriter or their controlling
persons or (iii) the Depositor if the indemnified parties under this Section
8
consist of the Depositor or any of the Depositor’s directors, officers or
controlling persons.
18
Each
indemnified party, as a condition of the indemnity agreements contained in
Section 8(a) and Section 8(b), shall use its reasonable 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, conditioned or delayed), 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 (to the extent set forth in Section 8(a) or
Section 8(b) as applicable) by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect
of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement
(i)
includes an unconditional release of such indemnified party from all liability
on any claims that are the subject of such action and (ii) does not include
a
statement as to, or an admission of, fault, culpability or failure to act by
or
on behalf of an indemnified party.
Notwithstanding
the foregoing paragraph, 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 30 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) If
the
indemnification provided for in Section 8(a) or 8(b)(iii) is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or
(b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages
or
liabilities referred to in subsection (a) or (b) above (i) in such proportion
as
is appropriate to reflect the relative benefits received by the Depositor on
the
one hand and the Underwriters on the other from the offering of the related
Underwritten Certificates or (ii) if the allocation provided by clause (i)
above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also
the relative fault of the Depositor on the one hand and the Underwriters on
the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. If the indemnification provided for in Section 8(b)(i) or (ii)
is unavailable or insufficient to hold harmless the indemnified party under
Section 8(b)(i) or (ii), then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in Section 8(b)(i) or (ii) in such
proportion as appropriate to reflect the relative fault of the Depositor on
one
hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as
well
as any other relevant equitable considerations. The relative benefits received
by the Depositor on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Depositor bear to the total
underwriting discounts and commissions received by the Underwriters with respect
to the related Underwritten Certificates. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Depositor by the
Underwriters and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to above in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred
by
such indemnified party in connection with investigating or defending any action
or claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of underwriting discounts and commissions
received by such Underwriter with respect to the related Underwritten
Certificates, which amounts are set forth in Schedule A hereto. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters’ obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
19
SECTION
9. Offering
Communications; Free Writing Prospectuses.
(a) Unless
preceded or accompanied by the Long Beach Preliminary Prospectus, the
Underwriters have not conveyed or delivered, and shall not convey or deliver,
any written communication, as defined in Rule 405 under the Act (a “Written
Communication”),
to
any person in connection with the initial offering of the Underwritten
Certificates, unless such Written Communication (i) has been, or is, made in
reliance on and in conformity with Rule 134 under the Securities Act, (ii)
constitutes a prospectus satisfying the requirements of Rule 430B under the
Securities Act or (iii) constituted or constitutes a “free writing prospectus,”
as defined in Rule 405 under the Securities Act (a “Free
Writing Prospectus”).
Notwithstanding anything to the contrary contained in this Agreement, without
the prior written consent of the Depositor, which may be withheld in its sole
discretion, the Underwriters have not conveyed or delivered, and shall not
convey or deliver, in connection with the initial offering of the Underwritten
Certificates, any Free Writing Prospectus unless such Free Writing Prospectus
contains only ABS Informational and Computational Material, as defined in Item
1101(a) of Regulation AB under the Act (“ABS
Informational and Computational Material”);
provided however, that any such Free Writing Prospectus may also contain a
column showing the status of subscriptions for the Underwritten Certificates.
The Underwriters have not conveyed or delivered, and shall not convey or
deliver, any ABS Informational and Computational Material in reliance on Rules
167 and 426 under the Act. Any Free Writing Prospectus prepared by or on behalf
of any Underwriter is referred to as an “Underwriter
Free Writing Prospectus.”
(b) (i) [Reserved].
(ii) The
Underwriters have not conveyed or delivered, and shall not convey or deliver,
a
Free Writing Prospectus that contains general information about the offering,
the expected parameters of the Mortgage Pool, transaction parties known to
the
Depositor and the tax and SMMEA treatment of the Certificates (the “Issuer
Free Writing Prospectus”)
to any
person or entity until the Depositor has notified the Underwriters that it
has
filed or will subsequently file the Issuer Free Writing Prospectus with the
Commission. Thereafter, an Issuer Free Writing Prospectus may be used by the
Underwriters solely in connection with the marketing of the Underwritten
Certificates to institutional investors; provided however, the Underwriters
shall not enter into any “contract of sale” with any investor, within the
meaning of Rule 159 under the Securities Act (a “Contract
of Sale”)
except
as provided in Section 9(p).
(c) [Reserved].
(d) [Reserved].
(e) (i) The
Underwriters shall deliver to the Depositor, no later than the date of first
use
thereof, each Underwriter Free Writing Prospectus that contains any “issuer
information,” as defined in Rule 433(h) under the Securities Act and footnote
271 of Securities Act Release No. 33-8591 (“Issuer
Information”)
unless
an Underwriter Free Writing Prospectus including such Issuer Information was
previously delivered to the Depositor pursuant to this Section 9(e)(i) or was
included in any Issuer Free Writing Prospectus or in the Long Beach Preliminary
Prospectus.
20
(ii) Subject
to Section 9(e)(i), to facilitate the filing thereof by the Depositor, the
Underwriters have provided, or shall provide, the Issuer Information contained
in any Underwriter Free Writing Prospectus in a separate document from the
portion of such Free Writing Prospectus which contains information other than
Issuer Information.
(iii) Notwithstanding
the provisions of Section 9(e)(i), any Free Writing Prospectus described therein
that contains only ABS Informational and Computational Materials may be
delivered by the Underwriters to the Depositor not later than the later of
(a)
four Business Days prior to the due date for filing of the Long Beach Prospectus
pursuant to Rule 424(b) under the Securities Act or (b) the date of first use
of
such Free Writing Prospectus.
(f) The
Underwriters represent and warrant to the Depositor that the Underwriter Free
Writing Prospectuses furnished, or to be furnished, to the Depositor by the
Underwriters pursuant to Section 9(e) constitute, or will constitute, all
Underwriter Free Writing Prospectuses of the type described therein that were
furnished to prospective investors by the Underwriters in connection with its
offer and sale of the Underwritten Certificates.
(g) The
Underwriters severally and not jointly represent and warrant to the Depositor
that each Underwriter Free Writing Prospectus provided by any of them to an
investor in the Underwritten Certificates did not, as of its date, include
any
untrue statement of a material fact or omit any material fact necessary to
make
the statements contained therein, in light of the circumstances under which
they
were made, not misleading; provided however, that such Underwriter makes no
representation to the extent such misstatements were the result of (i) any
Pool
Error that was not corrected by information subsequently supplied by the
Depositor to the Underwriters prior to the Time of Sale to the applicable
investor, (ii)
any
information that is Issuer Information or contained in an Issuer Free Writing
Prospectus, the Long Beach Preliminary Prospectus or the Long Beach Prospectus,
including any information incorporated therein by reference (other than
information incorporated by reference from the Underwriter Free Writing
Prospectus) or (iii) any information that is contained in Pool
Information.
(h) The
Depositor has filed, or agrees to file, with the Commission the following:
(i) Any
Issuer Free Writing Prospectus; and
(ii) Any
Underwriter Free Writing Prospectus delivered by the Underwriters to the
Depositor pursuant to Section 9(e) or, at the election of the Depositor, the
portion of such Underwriter Free Writing Prospectus which consists of Issuer
Information.
(i) Any
Free
Writing Prospectus required to be filed pursuant to Section 9(h) by the
Depositor shall be filed with the Commission not later than the date of first
use of the Free Writing Prospectus, except that:
21
(i) any
Free
Writing Prospectus or portion thereof required to be filed that contains only
the description of the final terms of the Certificates may be filed by the
Depositor within two days of the later of the date such final terms have been
established for all classes of Certificates and the date of first use; and
(ii) any
Free
Writing Prospectus or portion thereof required to be filed that consists of
only
ABS Informational and Computational Material may be filed by the Depositor
with
the Commission not later than the later of the due date for filing the Long
Beach Prospectus relating to the Certificates pursuant to Rule 424(b) under
the
Securities Act or two Business Days after the first use of such Free Writing
Prospectus.
(j) Notwithstanding
the provisions of Section 9(h), the Depositor shall not be required to file
(A)
Issuer Information contained in any Underwriter Free Writing Prospectus if
such
information is included or incorporated by reference in a prospectus or Free
Writing Prospectus previously filed with the Commission that relates to the
offering of the Underwritten Certificates, or (B) any Free Writing Prospectus
or
portion thereof that contains a description of the Underwritten Certificates
or
the offering of the Underwritten Certificates which does not reflect the final
terms thereof.
(k) The
Underwriters have filed, or shall file, with the Commission any Underwriter
Free
Writing Prospectus that was or is distributed by or on behalf of any of the
Underwriters in a manner reasonably designed to lead to its broad, unrestricted
dissemination not later than the date of the first use of such Underwriter
Free
Writing Prospectus.
(l) Notwithstanding
the provisions of Sections 9(h) and 9(k), neither the Depositor nor the
Underwriters shall be required to file any Free Writing Prospectus that does
not
contain substantive changes from or additions to a Free Writing Prospectus
previously filed with the Commission.
(m) The
Depositor and the Underwriters agree that any Free Writing Prospectuses prepared
by it
shall
contain the following legend:
The
depositor has filed a registration statement (including a prospectus) with
the
SEC for the offering to which this communication relates. Before you invest,
you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the
depositor and this offering. You may get these documents for free by visiting
XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, any
underwriter or any dealer participating in the offering will arrange to send
you
the prospectus if you request it by calling toll-free
1-8[xx-xxx-xxxx]
(n)
Each
Underwriter will
comply with the record retention requirements of Rule 433(g) under the
Securities Act relating to Free Writing Prospectuses.
22
(o)
(i) Each
Underwriter agrees to keep and maintain, for a period of not less that three
years following the date of initial issuance of the Underwritten Certificates,
written records documenting, as to each investor in Underwritten Certificates,
the Time of Sale and the date on which each Issuer Free Writing Prospectus
and
each Underwriter Free Writing Prospectus was conveyed to such
investor.
(ii) In
the
event of any litigation or threatened litigation in connection with the
marketing or sale of the Certificates, that in the good faith judgment of the
Depositor is not based on a frivolous claim, against the Depositor or any of
its
affiliates with respect to the Certificates, each Underwriter shall, upon the
reasonable request of the Depositor, make available to the Depositor copies
of
all records required to be maintained by it pursuant to Section 9(o)(i) and
any
Free Writing Prospectus required to be retained by it pursuant to Section
9(n).
(p) The
Underwriters have not entered into, and will not enter into, any Contract of
Sale with respect to the Underwritten Certificates with any investor, unless
the
Underwriters have delivered to such investor a copy of the Long Beach
Preliminary Prospectus (which delivery may be made by electronic
delivery).
(q) (i) In
the
event that the Depositor becomes aware that the Long Beach Preliminary
Prospectus contains any untrue statement of a material fact or omits to state
a
material fact required to be stated therein or necessary in order to make the
statements contained therein, in light of the circumstances under which they
were made, not misleading (such Long Beach Preliminary Prospectus, a
“Defective
Long Beach Preliminary Prospectus”),
the
Depositor shall notify the Underwriters thereof within one Business Day after
discovery and the Depositor shall, if requested by the Underwriters, prepare
and
deliver to the Underwriters a Corrected Long Beach Preliminary
Prospectus.
(ii) [Reserved].
(iii) The
Underwriters shall, if requested by the Depositor:
(A) [Reserved];
(B) deliver
the Corrected Long Beach Preliminary Prospectus to each investor which received
the Defective Long Beach Preliminary Prospectus prior to entering into a
Contract of Sale; and
(C) [Reserved];
(D) [Reserved];
(E) comply
with the requirements for reformation of the original Contract of Sale described
in Section IV.2.c of Securities Act Release 33-8591.
23
(iv) If
the
Underwriters shall in good faith incur any costs in connection with the
reformation process described in this Section 9(q) as a result of a Defective
Long Beach Preliminary Prospectus, the Depositor agrees to reimburse the
Underwriters for such costs; provided that the Underwriters shall use diligent
efforts to mitigate such costs..
(r) Each
Underwriter covenants with the Depositor that after the Long Beach Prospectus
is
available,
the
Underwriter shall not distribute any Written
Communication
concerning the Underwritten Certificates to a prospective investor unless such
communication
is
preceded or accompanied by the Long Beach Prospectus.
SECTION
10. Representations,
Warranties, Indemnities and Agreements to Survive Delivery.
All
representations, warranties, indemnities and agreements contained in this
Agreement or contained in certificates of officers of the Depositor or the
Seller 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 the Depositor or the
Seller, and shall survive delivery of any Underwritten Certificates to the
Underwriters.
SECTION
11. Default
by One or More of the Underwriters.
If one
or more of the Underwriters participating in the public offering of the
Underwritten Certificates shall fail at the Closing Date to purchase the
Underwritten Certificates which it is (or they are) obligated to purchase
hereunder (the “Defaulted
Certificates”),
then
the non-defaulting Underwriters shall have the right, within one Business Day
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all,
of the Defaulted Certificates in such amounts as may be agreed upon and upon
the
terms herein set forth. If, however, the Underwriters have not completed such
arrangements within such 24-hour period, then
(a) if
the
aggregate principal amount of Defaulted Certificates does not exceed 10% of
the
aggregate principal amount of the Underwritten Certificates to be purchased
pursuant to this Agreement, the non-defaulting Underwriters named in this
Agreement shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to
the
underwriting obligations of all such non-defaulting Underwriters,
or
(b) if
the
aggregate principal amount of Defaulted Certificates exceeds 10% of the
aggregate principal amount of the Underwritten Certificates to be purchased
pursuant to this Agreement, this Agreement shall terminate, without any
liability on the part of any non-defaulting Underwriters.
No
action
taken pursuant to this Section 11 shall relieve any defaulting Underwriter
from
any liability with respect to any default of such Underwriter under this
Agreement.
24
In
the
event of a default by any Underwriter as set forth in this Section 11, each
of
the non-defaulting Underwriters, the Depositor and the Seller shall have the
right to postpone the Closing Date for a period not exceeding five Business
Days
in order that any required changes in the Registration Statement, the Long
Beach
Preliminary Prospectus or the Long Beach Prospectus or in any other documents
or
arrangements may be effected.
SECTION
12. Termination
of Agreement.
The
Underwriters may terminate this Agreement immediately upon notice to the
Depositor at any time at or prior to the Closing Date if the events set forth
in
Section 6(h) of this Agreement shall occur and be continuing, or if any other
closing condition set forth in Section 6 shall not have been fulfilled when
required to be fulfilled. In the event of any such termination, the provisions
of Section 7, the indemnity and contribution agreements set forth in Section
8,
and the provisions of Sections 10 and 15 shall remain in effect.
SECTION
13. Notices.
All
statements, requests, notices and agreements hereunder shall be in writing,
and:
(a) if
to the
Underwriters, shall be delivered or sent to the Underwriters by mail, telex
or
facsimile transmission to Credit Suisse Securities (USA) LLC, 00 Xxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000-0000, and to WaMu Capital Corp., 0000 0xx Xxxxxx, XXX 0000,
Xxxxxxx, Xxxxxxxxxx 00000;
(b) if
to the
Depositor, shall be delivered or sent by mail, telex or facsimile transmission
in care of Long Beach Securities Corp., c/o Long Beach Mortgage Company, 0000
Xxxxx Xxxxxx, XXX0000, Xxxxxxx, Xxxxxxxxxx 00000, Attention: General Counsel;
and
(c) if
to the
Seller, shall be delivered or sent by mail, telex or facsimile transmission
in
care of Long Beach Mortgage Company, 0000 Xxxxx Xxxxxx, XXX0000, Xxxxxxx,
Xxxxxxxxxx 00000, Attention: General Counsel.
SECTION
14. Persons
Entitled to the Benefit of this Agreement.
This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Seller and the Depositor, 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 of the Underwriters within the
meaning of Section 15 of the Securities Act, and for the benefit of each
Underwriter’s respective officers and directors, for the benefit of directors of
the Depositor, officers of the Depositor who have signed the Registration
Statement and any person controlling the Depositor within the meaning of Section
15 of the Securities Act and for the benefit of directors of the Seller,
officers of the Seller and any person controlling the Seller within the meaning
of Section 15 of the Securities Act. Nothing in this Agreement is intended
or
shall be construed to give any person, other than the persons referred to in
this Section 14, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
25
SECTION
15. Survival.
The
respective indemnities, representations, warranties and agreements of the
Depositor, the Seller and the Underwriters contained in this Agreement, or
made
by or on behalf of them, respectively, pursuant to this Agreement, shall survive
the delivery of and payment for the Underwritten Certificates and shall remain
in full force and effect, regardless of any investigation made by or on behalf
of any of them or any person controlling any of them.
SECTION
16. Definition
of the Term “Business Day”.
For
purposes of this Agreement, “Business Day” means any day on which the New York
Stock Exchange, Inc. is open for trading.
SECTION
17. Governing
Law: Submission to Jurisdiction; Waiver of Jury Trial.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York without giving effect to the principles of conflicts of law
thereof.
The
parties hereto hereby submit to the jurisdiction of the United States District
Court for the Southern District of New York and any state trial court having
general jurisdiction in the State of New York located in the City and County
of
New York, and appeals from any thereof, in any action, suit or proceeding
brought against it or in connection with this Agreement or any of the related
documents or the transactions contemplated hereunder or for recognition or
enforcement of any judgment, and the parties hereto hereby agree that all claims
in respect of any such action or proceeding may be heard or determined in such
New York State court or, to the extent permitted by law, in such federal
court.
The
parties hereto hereby irrevocably waive, to the fullest extent permitted by
law,
any and all rights to trial by jury in any legal proceeding arising out of
or
relating to this Agreement or the transactions contemplated hereby.
SECTION
18. 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.
SECTION
19. 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.
SECTION
20. Representations,
Warranties and Obligations of the Seller.
(a) The
Seller represents and warrants to the Underwriters that as of the Closing Date,
the representations and warranties of the Seller in the Agreements will be
true
and correct in all material respects and the execution, delivery and performance
of this Agreement by the Seller does not and will not conflict with or result
in
a breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Seller is a party, by which the Seller
is
bound or to which any of the properties or assets of the Seller or any of its
subsidiaries is subject, which breach or violation would have a material adverse
effect on the business, operations or financial condition of the Seller or
its
ability to perform its obligations under any of the Agreements, nor will such
actions result in any violation of the provisions of the articles of
incorporation or by-laws of the Seller or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over
the Seller or any of its properties or assets, which breach or violation would
have a material adverse effect on the business, operations or financial
condition of the Seller or its ability to perform its obligations under this
Agreement.
(b) The
Seller agrees with the Underwriters, for the sole and exclusive benefit of
each
such Underwriter, each such Underwriter’s officers and directors and each person
controlling such Underwriter within the meaning of the Securities Act, and
not
for the benefit of any assignee thereof or any other person or persons dealing
with such Underwriter as follows: in consideration of and as an inducement
to
their agreement to purchase the Underwritten Certificates from the Depositor,
to
unconditionally and irrevocably indemnify and hold harmless each Underwriter
against any failure by the Depositor to perform its obligations to the
Underwriters hereunder, including, without limitation, any failure by the
Depositor to honor any obligation to any Underwriter pursuant to Sections 7,
8
and/or 15 (with respect to the survival of indemnities) hereof. In the case
of
any claim against the Seller by any Underwriter, any officer or director of
any
Underwriter or any person controlling any Underwriter, it shall not be necessary
for such claimant to first pursue any remedy from or exhaust any procedures
against the Depositor.
26
If
the
foregoing correctly sets forth the agreement among the Depositor, the Seller
and
the Underwriters, please indicate your acceptance in the space provided for
the
purpose below.
| Very truly yours, | ||
| LONG BEACH MORTGAGE COMPANY | ||
| |
|
|
| By: | /s/ | |
|
Name: |
||
| Title | ||
| LONG BEACH SECURITIES CORP. | ||
| |
|
|
| By: | /s/ | |
|
Name: |
||
| Title | ||
CONFIRMED
AND ACCEPTED, as of the date first above written:
CREDIT
SUISSE SECURITIES (USA) LLC
By:
Name:
Title:
WAMU
CAPITAL CORP.
By:
Name:
Title:
27
SCHEDULE
A
|
Underwriters
|
Original
Certificate Principal Balance of the Class I-A
Certificates
|
Original
Certificate Principal Balance of the Class II-A1
Certificates
|
Original
Certificate Principal Balance of the Class II-A2
Certificates
|
Original
Certificate Principal Balance of the Class II-A3
Certificates
|
Original
Certificate Principal Balance of the Class II-A4
Certificates
|
Original
Certificate Principal Balance of the Class M-1
Certificates
|
Original
Certificate Principal Balance of the Class M-2
Certificates
|
|||||||||||||||
|
Credit
Suisse Securities (USA) LLC
|
$
|
488,831,190
|
$
|
283,482,860
|
$
|
112,435,508
|
$
|
184,732,038
|
$
|
44,191,162
|
$
|
47,719,000
|
$
|
43,508,500
|
||||||||
|
WaMu
Capital Corp.
|
$
|
381,904,810
|
$
|
221,474,140
|
$
|
87,841,492
|
$
|
144,323,962
|
$
|
34,524,838
|
$
|
37,281,000
|
$
|
33,991,500
|
||||||||
|
Underwriters
|
Original
Certificate Principal Balance of the Class M-3
Certificates
|
Original
Certificate Principal Balance of the Class M-4
Certificates
|
Original
Certificate Principal Balance of the Class M-5
Certificates
|
Original
Certificate Principal Balance of the Class M-6
Certificates
|
Original
Certificate Principal Balance of the Class M-7
Certificates
|
Original
Certificate Principal Balance of the Class M-8
Certificates
|
Original
Certificate Principal Balance of the Class M-9
Certificates
|
|||||||||||||||
|
Credit
Suisse Securities (USA) LLC
|
$
|
27,368,250
|
$
|
23,859,500
|
$
|
22,456,000
|
$
|
21,052,500
|
$
|
20,350,750
|
$
|
14,035,000
|
$
|
11,228,000
|
||||||||
|
WaMu
Capital Corp.
|
$
|
21,381,750
|
$
|
18,640,500
|
$
|
17,544,000
|
$
|
16,447,500
|
$
|
15,899,250
|
$
|
10,965,000
|
$
|
8,772,000
|
||||||||
|
Underwriters
|
Original
Certificate Principal Balance of the Class M-10
Certificates
|
Original
Certificate Principal Balance of the Class M-11
Certificates
|
|||||
|
Credit
Suisse Securities (USA) LLC
|
$
|
11,929,750
|
$
|
14,035,000
|
|||
|
WaMu
Capital Corp.
|
$
|
9,320,250
|
$
|
10,965,000
|
|||
Each
of
the Underwriters will purchase the principal amount of each class set forth
opposite its name above. The Underwritten Certificates will be offered by the
Underwriters at the prices set forth below as the price to public. Total
underwriting discounts and commissions to be received by the Underwriters in
respect of each class of Underwritten Certificates will be the percentage set
forth in the table below as the underwriting discount for such class of the
original certificate principal balance set forth below of each such class.
The
underwriting discount and commissions to be received by each Underwriter in
respect of a class of Underwritten Certificates will be the product of (i)
the
percentage obtained by dividing the principal amount of such class set forth
opposite its name above by the original certificate principal balance of such
class set forth below and (ii) the total underwriting discount and commissions
received by the Underwriters for such class. Net proceeds to the Depositor
from
the sale of the Underwritten Certificates will be the percentage set forth
in
the table below as proceeds to the Depositor of the initial principal amount
of
each such class.
28
|
Class
|
Original
Certificate Principal Balance
|
Pass-Through
Rate
|
Price
to Public
|
Underwriting
Discount
|
Proceeds
to the Depositor
|
|||||||||||
|
Class
I-A
|
$
|
870,736,000
|
Variable
|
100.00000
|
%
|
0.1800
|
%
|
99.82000
|
%
|
|||||||
|
Class
II-A1
|
$
|
504,957,000
|
Variable
|
100.00000
|
%
|
0.2500
|
%
|
99.75000
|
%
|
|||||||
|
Class
II-A2
|
$
|
200,277,000
|
Variable
|
100.00000
|
%
|
0.2500
|
%
|
99.75000
|
%
|
|||||||
|
Class
II-A3
|
$
|
329,056,000
|
Variable
|
100.00000
|
%
|
0.2500
|
%
|
99.75000
|
%
|
|||||||
|
Class
II-A4
|
$
|
78,716,000
|
Variable
|
100.00000
|
%
|
0.2500
|
%
|
99.75000
|
%
|
|||||||
|
Class
M-1
|
$
|
85,000,000
|
Variable
|
100.00000
|
%
|
0.2500
|
%
|
99.75000
|
%
|
|||||||
|
Class
M-2
|
$
|
77,500,000
|
Variable
|
100.00000
|
%
|
0.2500
|
%
|
99.75000
|
%
|
|||||||
|
Class
M-3
|
$
|
48,750,000
|
Variable
|
100.00000
|
%
|
0.2500
|
%
|
99.75000
|
%
|
|||||||
|
Class
M-4
|
$
|
42,500,000
|
Variable
|
100.00000
|
%
|
0.2500
|
%
|
99.75000
|
%
|
|||||||
|
Class
M-5
|
$
|
40,000,000
|
Variable
|
100.00000
|
%
|
0.2500
|
%
|
99.75000
|
%
|
|||||||
|
Class
M-6
|
$
|
37,500,000
|
Variable
|
100.00000
|
%
|
0.2500
|
%
|
99.75000
|
%
|
|||||||
|
Class
M-7
|
$
|
36,250,000
|
Variable
|
100.00000
|
%
|
0.2500
|
%
|
99.75000
|
%
|
|||||||
|
Class
M-8
|
$
|
25,000,000
|
Variable
|
100.00000
|
%
|
0.2500
|
%
|
99.75000
|
%
|
|||||||
|
Class
M-9
|
$
|
20,000,000
|
Variable
|
100.00000
|
%
|
0.2500
|
%
|
99.75000
|
%
|
|||||||
|
Class
M-10
|
$
|
21,250,000
|
Variable
|
81.89733
|
%
|
0.2500
|
%
|
81.64733
|
%
|
|||||||
|
Class
M-11
|
$
|
25,000,000
|
Variable
|
76.47163
|
%
|
0.2500
|
%
|
76.22163
|
%
|
|||||||
29
