EXHIBIT 1.1
LONG BEACH SECURITIES CORP.
$____________ (Approximately)
[__] Mortgage Pass-Through Certificates, Series ____-_
Class A $____________ _____%
Class R $____________ _____%
UNDERWRITING AGREEMENT
______________, ______
[Name of Underwriter]
______________________
______________________
______________________
Ladies and Gentlemen:
Long Beach Securities Corp., a Delaware corporation (the "Company"),
proposes to sell to you (also referred to herein as the "Underwriter") [__]
Mortgage Pass-Through Certificates, Series ____-__, Class A and Class R
Certificates other than a de minimis portion thereof (collectively, the
"Certificates"), having the aggregate principal amounts and Pass-Through Rates
set forth above. The Certificates, together with the Class M and Class B
Certificates of the same series, will evidence the entire beneficial interest in
the Trust Fund (as defined in the Pooling and Servicing Agreement referred to
below) consisting primarily of a pool (the "Pool") of conventional, fixed-rate,
one- to four-family residential mortgage loans (the "Mortgage Loans") as
described in the Prospectus Supplement (as hereinafter defined) to be sold by
the Company. A de minimis portion of the Class R Certificates will not be sold
hereunder and will be held by the Trustee.
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The Certificates will be issued pursuant to a pooling and servicing
agreement (the "Pooling and Servicing Agreement") to be dated as of
__________________, ____ (the "Cut-off Date") among the Company, as seller,
[Name of Master Servicer], as master servicer (the "Master Servicer"), and [Name
of Trustee], as trustee (the "Trustee"). The Certificates are described more
fully in the Basic Prospectus and the Prospectus Supplement (each as hereinafter
defined) which the Company has furnished to you.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS.
1.1 The Company represents and warrants to, and agrees with you that:
(a) A registration statement on Form S-3 (Reg. No. 333-_______),
containing a form of prospectus and a form of prospectus supplement
(together with certain exhibits), has heretofore been delivered to the
Underwriter, has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") under the Act, and has been filed
with and declared effective by the Commission under the Act. Such
registration statement, as of its effective date, and each amendment
thereto to the date of this Agreement, as of its effective date, including
all exhibits thereto, is hereinafter called the "Registration Statement."
The Company proposes to prepare and file with the Commission pursuant to
Rule 424 under the Act ("Rule 424"), a final prospectus (the "Basic
Prospectus") and a prospectus supplement (the "Prospectus Supplement")
relating to the Offered Certificates. The Basic Prospectus and the
Prospectus Supplement relating to the Offered Certificates in the form to
be filed with the Commission pursuant to Rule 424 are hereinafter together
called the "Prospectus." [Reference made herein to the Prospectus shall be
deemed to refer to and include any documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act, as of the date of
the Prospectus and any reference to any amendment or supplement to the
Prospectus shall be deemed to refer to and include any document filed under
the Securities Exchange Act of 1934 (the "Exchange Act") after the date of
the Prospectus and incorporated by reference in the Prospectus; and any
reference to any amendment to the Registration Statement shall be deemed to
include any report filed with the Commission with respect to the Trust
pursuant to Section 13(a) or Section 5(d) of the Exchange Act after the
date of the Prospectus that is incorporated by reference in the
Registration Statement.]
(b) At the time the Registration Statement became effective it
contained all material statements and information required to be included
therein by the Act and the Rules and Regulations and conformed in all
material respects to the requirements of the Act and the Rules and
Regulations, and did not include any untrue statement of any material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. On the date the
Prospectus is filed with the Commission, the Prospectus will conform in all
material respects with the requirements of the Act and the Rules and
Regulations and will not include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
and as of the Closing Date (as defined in Section 3 below), the
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Registration Statement, the Prospectus and any amendment thereof or
supplement thereto will contain all material statements and information
required to be included therein by the Act and the Rules and Regulations
and will conform in all material respects to the requirements of the Act
and the Rules and Regulations, and as of the Closing Date, the Registration
Statement will not include any untrue statement of any material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading and neither the Prospectus
nor any amendment thereof or supplement thereto will include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the foregoing
representations, warranties and agreements shall not apply to information
(including, without limitation, Computational Materials and ABS Term
Sheets, if any (other than Company Provided Information, as defined below),
each as defined in Section 4.2(b) below) contained in or omitted from the
Registration Statement or the Prospectus or any such amendment thereof or
supplement thereto in reliance upon, and in conformity with, written
information furnished to the Company by the Underwriter or any of its
affiliates, or information electronically transmitted to the Company by the
Underwriter or any of its affiliates, specifically for use in the
preparation thereof. Notwithstanding the foregoing proviso, the
representations, warranties and agreements made by the Company pursuant to
this Section 1(b) shall apply to the Company Provided Information, as
defined below, included in the Computational Materials or ABS Term Sheets,
if any, filed by the Company with the Commission pursuant to Section 5
hereof but only in so far as such Company Provided Information included an
untrue statement of a material fact or omitted to state a material fact
which in turn caused a material misstatement or omission in the
calculations and computations included by the Underwriters in such
Computational Materials or ABS Term Sheets. "Company Provided Information"
is defined as all information regarding the Mortgage Loans specifically
requested by the Underwriters and provided to the Underwriter by the
Company in writing or electronically in connection with the Underwriter's
preparation of Computational Materials or ABS Term Sheet,[ provided that
the term "Company Provided Information" shall not include any such
information which was based on information received by the Company from the
Underwriter or any of its affiliates which, in turn, was received by the
Underwriter or any of its affiliates from the Seller, if such information
was modified by the Underwriter or any of its affiliates without the
express written consent of the Company and such modification resulted in a
material misstatement or material omission in the Prospectus Supplement or
Computational Materials or ABS Term Sheets, if any].
(c) The performance of this Agreement and the Pooling and
Servicing Agreement, and the consummation of the transactions herein and
therein contemplated, will not result in a material breach or violation of
any of the terms or provisions of or constitute a material default under
any statute, any indenture, mortgage, deed of trust, note agreement or
other agreement or instrument to which the Company is a party or by which
it is bound, the Company's Certificate of Incorporation or By-laws, or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its properties.
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(d) At the time of issuance and delivery of the Certificates, the
Pooling and Servicing Agreement (in the form approved by the Underwriter)
will have been duly authorized, executed and delivered by the Company and,
assuming the due authorization, execution and delivery thereof by the other
parties thereto, will constitute a valid and legally binding obligation of
the Company enforceable against the Company in accordance with its terms
except as the same may be limited by bankruptcy, insolvency, reorganization
or other laws relating to or affecting the enforcement of creditors' rights
generally or by general equity principles.
(e) With respect to the Mortgage Loans, which will be sold to the
Trust by the Company under the Pooling and Servicing Agreement, at the time
of such assignment, the Trust will have good and marketable title to such
Mortgage Loans, free and clear of all liens and encumbrances.
(f) The direction by the Company to the Trustee to execute, issue
and deliver the Certificates has been duly authorized by the Company, and,
assuming the Trustee has been duly authorized to do so, when executed,
issued and delivered by the Trustee in accordance with the Pooling
Agreement, the Certificates will be validly issued and outstanding and will
be entitled to the benefits provided by the Pooling Agreement, and
immediately prior to the delivery thereof to the Underwriter, the Company
will own the Certificates, and upon such transfer the Underwriter will
receive good and marketable title thereto, free and clear of any lien,
pledge, encumbrance or other security interest.
(g) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the Company
of the transactions contemplated by this Agreement, the Pooling and
Servicing Agreement and the Certificates, except such as may be required
under the securities or blue sky laws of any jurisdiction, and except for
such as will have been obtained prior to the Closing Date.
(h) The Certificates and the Pooling and Servicing Agreement will
conform in all material respects to the descriptions thereof contained in
the Prospectus.
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Delaware and
has the corporate and legal authority to own its properties and conduct its
business as described in the Prospectus.
(j) This Agreement has been duly authorized, executed and
delivered by the Company.
(k) At the time of their issuance, the Certificates (other than
the Class [___] Certificates) will constitute "mortgage related securities"
for purposes of the Secondary Mortgage Market Enhancement Act of 1984
("SMMEA"), as in effect as of the date of their issuance.
(l) There is no action, suit or proceeding before or by any court
or governmental agency or body now pending, or to the best knowledge of the
Company, threatened, against the Company which separately or in the
aggregate could reasonably
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be expected to have a material adverse effect on the ability of the Company
to perform its obligations hereunder, or on the validity or enforceability
of this Agreement or the Certificates. [There are no contracts or documents
of the Company which are required to be filed as exhibits to the
Registration Statement pursuant to the Securities Act or the Rules and
Regulations which have not been so filed or incorporated by reference
therein on or prior to the effective date of the Registration Statement.
The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.]
1.2 The Underwriter represents and warrants to and agrees with the
Company that:
(a) No purpose of the Underwriter relating to the purchase of any
of the Class R Certificates by the Underwriter is or will be to enable the
Company to impede the assessment or collection of any tax.
(b) The Underwriter has no present knowledge or expectation that
it will be unable to pay any United States taxes owed by it so long as any
of the Certificates remain outstanding.
(c) The Underwriter has no present knowledge or expectation that
it will become insolvent or subject to a bankruptcy proceeding for so long
as any of the Certificates remain outstanding.
(d) No purpose of the Underwriter relating to any sale of any of
the Class R Certificates by the Underwriter will be to enable it to impede
the assessment or collection of tax. In this regard, the Underwriter hereby
represents to and for the benefit of the Company that the Underwriter
intends to pay taxes associated with holding the Class R Certificates, as
they become due, fully understanding that it may incur tax liabilities in
excess of any cash flows generated by the Class R Certificates (other than
with respect to the portion of the Class R Certificates retained by the
Company).
(e) [The Underwriter will, in connection with any transfer it
makes of any of the Class R Certificates, obtain from its transferee the
affidavit required by Section [5.02(g)(i)(B)(I)] of the Pooling and
Servicing Agreement, will not consummate any such transfer if it knows or
believes that any representation contained in such affidavit is false and
will provide the Trustee with the Certificate required by Section
[5.02(g)(i)(B)(II)] of the Pooling and Servicing Agreement.]
(f) [The Underwriter hereby certifies that (i) with respect to
any classes of Certificates issued in authorized denominations or
Percentage Interests of less than $______ or __%, as the case may be, the
fair market value of each such Certificate sold to any person on the date
of initial sale thereof by the Underwriter will not be less than $_______,
and (ii) with respect to each class of Certificates to be maintained on the
book-entry records of The Depository Trust Company ("DTC"), the interest
in each such class of Certificates sold to any person on the date of
initial sale thereof by the Underwriter will not be less than an initial
Certificate Principal Balance of $______.]
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(g) [The Underwriter will use its best reasonable efforts to
cause [▇▇▇▇▇ & Co.] to issue a commitment letter, prior to the Closing
Date, to DTC stating that [▇▇▇▇▇ & Co.] will value the DTC Registered
Certificates (hereinafter defined) on an ongoing basis subsequent to the
Closing Date.]
(h) [The Underwriter will have funds available at ______________
_______________, in the Underwriter's account at such bank at the time all
documents are executed and the closing of the sale of the Certificates is
completed, except for the transfer of funds and the delivery of the
Certificates. Such funds will be available for immediate transfer into the
account of the Company maintained at such bank.]
(i) [As of the date hereof and as of the Closing Date, the
Underwriter has complied with all of its obligations hereunder including
Section 4.2, and, with respect to all Computational Materials and ABS Term
Sheets provided by the Underwriter to the Company pursuant to Section 4.2,
if any, such Computational Materials and ABS Term Sheets are accurate in
all material respects when read in conjunction with the Prospectus
Supplement (taking into account the assumptions explicitly set forth in the
Computational Materials, except to the extent of any errors therein that
are caused by errors in the Pool Information). The Computational Materials
and ABS Term Sheets provided by the Underwriter to the Company constitute a
complete set of all Computational Materials and ABS Term Sheets that are
required to be filed with the Commission.]
1.3 The Underwriter covenants and agrees to pay directly, or reimburse
the Company upon demand for (i) any and all taxes (including penalties and
interest) owed or asserted to be owed by the Company as a result of a claim by
the Internal Revenue Service that the transfer of any of the Class R
Certificates to the Underwriter hereunder or any transfer thereof by the
Underwriter may be disregarded for federal tax purposes and (ii) any and all
losses, claims, damages and liabilities, including attorney's fees and expenses,
arising out of any failure of the Underwriter to make payment or reimbursement
in connection with any such assertion as required in (i) above. In addition, the
Underwriter acknowledges that on the Closing Date immediately after the
transactions described herein it will be the owner of the Class R Certificates
for federal tax purposes, and the Underwriter covenants that it will not assert
in any proceeding that the transfer of the Class R Certificates from the Company
to the Underwriter should be disregarded for any purpose.
2. PURCHASE AND SALE. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to you, and you agree to purchase from the Company, the Certificates (other
than for a de minimis portion of the Class R Certificates, which shall be
transferred by the Company to the Trustee) at a price equal to __________% of
the aggregate principal balance of the Certificates as of the Closing Date.
There will be added to the purchase price of the Certificates an amount equal to
interest accrued thereon from the Cut-off Date to but not including the Closing
Date. The purchase price for the Certificates was agreed to by the Company in
reliance upon the transfer from the Company to the Underwriter of the tax
liabilities associated with the ownership of the Class R Certificates.
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3. DELIVERY AND PAYMENT. Delivery of and payment for the Certificates shall
be made at the office of _______________________ at ___________________ time, on
______________, ____ or such later date as you shall designate, which date and
time may be postponed by agreement between you and the Company (such date and
time of delivery and payment for the Certificates being herein called the
"Closing Date"). Delivery of the Certificates (except for the Class R
Certificates (the "Definitive Certificates")) shall be made to you through the
Depository Trust Company ("DTC") (such Certificates, the "DTC Registered
Certificates"), and delivery of the Definitive Certificates shall be made in
registered, certified form, in each case against payment by you of the purchase
price thereof to or upon the order of the Company by wire transfer in
immediately available funds. The Definitive Certificates shall be registered in
such names and in such denominations as you may request not less than two
business days in advance of the Closing Date. The Company agrees to have the
Definitive Certificates available for inspection, checking and packaging by you
in New York, New York not later than ___________ on the business day prior to
the Closing Date.
4. OFFERING BY UNDERWRITER.
4.1 It is understood that you propose to offer the Certificates for
sale to the public as set forth in the Prospectus and you agree that all such
offers and sales by you shall be made in compliance with all applicable laws and
regulations.
4.2 It is understood that you may prepare and provide to prospective
investors certain Computational Materials (as defined below) in connection with
your offering of the Certificates, subject to the following conditions:
(a) The Underwriter shall comply with all applicable laws and
regulations in connection with the use of Computational Materials,
including the No-Action Letter of May 20, 1994 issued by the Commission to
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co.
Incorporated and ▇▇▇▇▇▇ Structured Asset Corporation, as made applicable to
other issuers and underwriters by the Commission in response to the request
of the Public Securities Association dated May 24, 1994 (collectively, the
"▇▇▇▇▇▇/PSA Letter") as well as the PSA Letter referred to below. The
Underwriter shall comply with all applicable laws and regulations in
connection with the use of ABS Term Sheets, including the No-Action Letter
of February 17, 1995 issued by the Commission to the Public Securities
Association (the "PSA Letter" and, together with the ▇▇▇▇▇▇/PSA Letter, the
"No-Action Letters").
(b) For purposes hereof, "Computational Materials" as used herein
shall have the meaning given such term in the No-Action Letters, but shall
include only those Computational Materials that have been prepared or
delivered to prospective investors by or at the direction of the
Underwriter. For purposes hereof, "ABS Term Sheets" and "Collateral Term
Sheets" as used herein shall have the meanings given such terms in the PSA
Letter but shall include only those ABS Term Sheets or Collateral Term
Sheets that have been prepared or delivered to prospective investors by or
at the direction of the Underwriter.
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(c) All Computational Materials and ABS Term Sheets provided to
prospective investors that are required to be filed pursuant to the
No-Action Letters shall bear a legend on each page including the following
statement:
"THE INFORMATION HEREIN HAS BEEN PROVIDED SOLELY BY [Name of
Underwriter]. NEITHER THE ISSUER OF THE CERTIFICATES NOR ANY OF ITS
AFFILIATES MAKES ANY REPRESENTATION AS TO THE ACCURACY OR COMPLETENESS
OF THE INFORMATION HEREIN. THE INFORMATION HEREIN IS PRELIMINARY, AND
WILL BE SUPERSEDED BY THE APPLICABLE PROSPECTUS SUPPLEMENT AND BY ANY
OTHER INFORMATION SUBSEQUENTLY FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION.
In the case of Collateral Term Sheets, such legend shall also include
the following statement:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE
DESCRIPTION OF THE MORTGAGE POOL CONTAINED IN THE PROSPECTUS
SUPPLEMENT RELATING TO THE CERTIFICATES AND [Except with respect to
the initial Collateral Term Sheet prepared by [Name of Underwriter]]
SUPERSEDES ALL INFORMATION CONTAINED IN ANY COLLATERAL TERM SHEETS
RELATING TO THE MORTGAGE POOL PREVIOUSLY PROVIDED BY [Name of
Underwriter]."
The Company shall have the right to require additional specific legends or
notations to appear on any Computational Materials or ABS Term Sheets, the right
to require changes regarding the use of terminology and the right to determine
the types of information appearing therein. Notwithstanding the foregoing, this
subsection (c) will be satisfied if all such Computational Materials and ABS
Term Sheets bear a legend in the form set forth in Exhibit G hereto.
(d) The Underwriter shall provide the Company with representative
forms of all Computational Materials and ABS Term Sheets prior to their
first use, to the extent such forms have not previously been approved by
the Company for use by the Underwriter. The Underwriter shall provide to
the Company, for filing on Form 8-K as provided in Section 5.9, copies (in
such format as required by the Company) of all Computational Materials that
are required to be filed with the Commission pursuant to the No-Action
Letters. The Underwriter may provide copies of the foregoing in a
consolidated or aggregated form including all information required to be
filed. All Computational Materials and ABS Term Sheets described in this
subsection (d) must be provided to the Company not later than 10:00 a.m.
New York time one business day before filing thereof is required pursuant
to the terms of this Agreement. The Underwriter agrees that it will not
provide to any investor or prospective investor in the Certificates any
Computational Materials or ABS Term Sheets on or after the day on which
Computational Materials and ABS Term Sheets are required to be provided to
the Company pursuant to this Section 4.2(d) (other than copies of
Computational Materials or ABS Term Sheets previously submitted to the
Company in accordance with this Section 4.2(d) for filing pursuant to
Section 5.9), unless such Computational Materials or
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ABS Term Sheets are preceded or accompanied by the delivery of a Prospectus
to such investor or prospective investor.
(e) All information included in the Computational Materials shall
be generated based on substantially the same methodology and assumptions
that are used to generate the information in the Prospectus Supplement as
set forth therein; provided that the Computational Materials and ABS Term
Sheets or ABS Term Sheets, as the case may be, may include information
based on alternative assumptions if specified therein. If any Computational
Materials or ABS Term Sheets that are required to be filed were based on
assumptions with respect to the Pool that differ from the final Pool
Information in any material respect or on Certificate structuring terms
that were revised prior to the printing of the Prospectus, the Underwriter
shall prepare revised Computational Materials or ABS Term Sheets, as the
case may be, based on the final Pool Information and structuring
assumptions, circulate such revised Computational Materials and ABS Term
Sheets to all recipients of the preliminary versions thereof that indicated
orally to the Underwriter they would purchase all or any portion of the
Certificates and include such revised Computational Materials and ABS Term
Sheets (marked, "as revised") in the materials delivered to the Company
pursuant to subsection (d) above.
(f) The Company shall not be obligated to file any Computational
Materials that have been determined to contain any material error or
omission. In the event that any Computational Materials or ABS Terms Sheets
are determined, within the period which the Prospectus relating to the
Certificates is required to be delivered under the Act, to contain a
material error or omission, the Underwriter shall prepare a corrected
version of such Computational Materials or ABS Term Sheets, shall circulate
such corrected Computational Materials to all recipients of the prior
versions thereof that indicated orally to the Underwriter they would
purchase all or any portion of the Certificates and shall deliver copies of
such corrected Computational Materials and ABS Term Sheets (marked, "as
corrected") to the Company for filing with the Commission in a subsequent
Form 8-K submission (subject to the Company's obtaining an accountant's
comfort letter in respect of such corrected Computational Materials, which
shall be at the expense of the Underwriter), provided that if any such
letter is required to be revised solely because of a change in the Pool
Information, fifty percent of any additional expenses for such letter
resulting from the change in Pool Information shall be paid by each of the
Underwriter and the Company.
(g) If the Underwriter does not provide any Computational
Materials or ABS Term Sheets to the Company pursuant to subsection (d)
above, the Underwriter shall be deemed to have represented, as of the
Closing Date, that it did not provide any prospective investors with any
information in written or electronic form in connection with the offering
of the Certificates that is required to be filed with the Commission in
accordance with the No-Action Letters, and the Underwriter shall provide
the Company with a certification to that effect on the Closing Date.
(h) In the event of any delay in the delivery by the Underwriter
to the Company of all Computational Materials and ABS Term Sheets required
to be delivered in accordance with subsection (d) above, or in the delivery
of the accountant's comfort
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letter in respect thereof pursuant to Section 5.9, the Company shall have
the right to delay the release of the Prospectus to investors or to the
Underwriter, to delay the Closing Date and to take other appropriate
actions in each case as necessary in order to allow the Company to comply
with its agreement set forth in Section 5.9 to file the Computational
Materials and ABS Term Sheets by the time specified therein.
(i) The Underwriter represents that it has in place, and
covenants that it shall maintain internal controls and procedures which it
reasonably believes to be sufficient to ensure full compliance with all
applicable legal requirements of the No-Action Letters with respect to the
generation and use of Computational Materials and ABS Term Sheets in
connection with the offering of the Certificates.
4.3 You further agree that on or prior to the sixth day after the
Closing Date, you shall provide the Company with a certificate, substantially in
the form of Exhibit E attached hereto, setting forth (i) in the case of each
class of Certificates, (a) if less than 10% of the aggregate principal balance
of such class of Certificates has been sold to the public as of such date, the
value calculated pursuant to clause (b)(iii) of Exhibit E hereto, or, (b) if __%
or more of such class of Certificates has been sold to the public as of such
date but no single price is paid for at least __% of the aggregate principal
balance of such class of Certificates, then the weighted average price at which
the Certificates of such class were sold expressed as a percentage of the
principal balance of such class of Certificates sold, or (c) the first single
price at which at least __% of the aggregate principal balance of such class of
Certificates was sold to the public, (ii) the prepayment assumption used in
pricing each class of Certificates, and (iii) such other information as to
matters of fact as the Company may reasonably request to enable it to comply
with its reporting requirements with respect to each class of Certificates to
the extent such information can in the good faith judgment of the Underwriter be
determined by it.
5. AGREEMENTS. The Company agrees with you that:
5.1 Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Certificates, the Company will furnish you with a
copy of each such proposed amendment or supplement.
5.2 The Company will cause the Prospectus Supplement to be transmitted
to the Commission for filing pursuant to Rule 424(b) under the Act by means
reasonably calculated to result in filing with the Commission pursuant to said
rule.
5.3 If, during the period after the first date of the public offering
of the Certificates in which a prospectus relating to the Certificates is
required to be delivered under the Act, any event occurs as a result of which it
is necessary to amend or supplement the Prospectus, as then amended or
supplemented, in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if it shall be necessary to amend or supplement the Prospectus to comply with
the Act or the 1933 Act Regulations, the Company promptly will prepare and
furnish, at its own expense, to you, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will comply
with law.
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5.4 The Company will furnish to you, without charge, a copy of the
Registration Statement (including exhibits thereto) and, so long as delivery of
a prospectus by an underwriter or dealer may be required by the Act, as many
copies of the Prospectus, any documents incorporated by reference therein and
any amendments and supplements thereto as you may reasonably request.
5.5 The Company agrees, so long as the Certificates shall be
outstanding, or until such time as you shall cease to maintain a secondary
market in the Certificates, whichever first occurs, to deliver to you the annual
statement as to compliance delivered to the Trustee pursuant to Section 3.18 of
the Pooling and Servicing Agreement and the annual statement of a firm of
independent public accountants furnished to the Trustee pursuant to Section 3.19
of the Pooling and Servicing Agreement, as soon as such statements are furnished
to the Company.
5.6 The Company will endeavor to arrange for the qualification of the
Certificates for sale under the laws of such jurisdictions as you may reasonably
designate and will maintain such qualification in effect so long as required for
the initial distribution of the Certificates; provided, however, that the
Company shall not be required to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would subject it to
general or unlimited service of process in any jurisdiction where it is not now
so subject.
5.7 If the transactions contemplated by this Agreement are
consummated, the Company will pay or cause to be paid all expenses incident to
the performance of the obligations of the Company under this Agreement, and will
reimburse you for any reasonable expenses (including reasonable fees and
disbursements of counsel) reasonably incurred by you in connection with
qualification of the Certificates for sale and determination of their
eligibility for investment under the laws of such jurisdictions as you have
reasonably requested pursuant to Section 5.6 above and the printing of memoranda
relating thereto, for any fees charged by investment rating agencies for the
rating of the Certificates, and for expenses incurred in distributing the
Prospectus (including any amendments and supplements thereto) to the
Underwriter. Except as herein provided, you shall be responsible for paying all
costs and expenses incurred by you, including the fees and disbursements of your
counsel, in connection with the purchase and sale of the Certificates.
5.8 If, during the period after the Closing Date in which a prospectus
relating to the Certificates is required to be delivered under the Act, the
Company receives notice that a stop order suspending the effectiveness of the
Registration Statement or preventing the offer and sale of the Certificates is
in effect, the Company will advise you of the issuance of such stop order.
5.9 The Company shall file the Computational Materials and ABS Term
Sheets (if any) provided to it by the Underwriter under Section 4.2(d) with the
Commission pursuant to a Current Report on Form 8-K by ___________ on the
morning the Prospectus is delivered to the Underwriter or, in the case of any
Collateral Term Sheet required to be filed prior to such date, by ____________
on the second business day following the first day on which such Collateral Term
Sheet has been sent to a prospective investor; provided, however, that prior to
such filing of the Computational Materials and ABS Term Sheets (other than any
Collateral Term Sheets that are not based on the Pool Information) by the
Company, the Underwriter must
11
comply with its obligations pursuant to Section 4.2 and the Company must receive
a letter from _______________, certified public accountants, satisfactory in
form and substance to the Company and its counsel, to the effect that such
accountants have performed certain specified procedures, all of which have been
agreed to by the Company, as a result of which they determined that all
information that is included in the Computational Materials (if any) provided by
the Underwriter to the Company for filing on Form 8-K, as provided in Section
4.2 and this Section 5.9, is accurate without exception. The foregoing letter
shall be at the sole expense of the Underwriter. The Company shall file any
corrected Computational Materials described in Section 4.2(f) as soon as
practicable following receipt thereof. The Company also will file with the
Commission within fifteen days of the issuance of the Certificates a Current
Report on Form 8-K (for purposes of filing the Pooling and Servicing Agreement).
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITER. The Underwriter's
obligation to purchase the Certificates shall be subject to the following
conditions:
6.1 No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for that purpose shall be
pending or, to the knowledge of the Company, threatened by the Commission; and
the Prospectus Supplement shall have been filed or transmitted for filing, by
means reasonably calculated to result in a filing with the Commission pursuant
to Rule 424(b) under the Act.
6.2 Since _________ 1, ____ there shall have been no material adverse
change (not in the ordinary course of business) in the condition of the Company.
6.3 The Company shall have delivered to you a certificate, dated the
Closing Date, of the President, a Senior Vice President or a Vice President of
the Company to the effect that the signer of such certificate has examined this
Agreement, the Prospectus, the Pooling and Servicing Agreement and various other
closing documents, and that, to the best of his or her knowledge after
reasonable investigation:
(a) the representations and warranties of the Company in this
Agreement and in the Pooling and Servicing Agreement are true and correct
in all material respects; and
(b) the Company has, in all material respects, complied with all
the agreements and satisfied all the conditions on its part to be performed
or satisfied hereunder at or prior to the Closing Date.
6.4 You shall have received the opinions of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date and substantially
to the effect set forth in Exhibit A, and the opinion of [Name of Counsel to
Master Servicer], dated the Closing Date and substantially to the effect set
forth in Exhibit B.
6.5 You shall have received from [Name of Counsel to Underwriter],
counsel for the Underwriter, an opinion dated the Closing Date in form and
substance satisfactory to the Underwriter.
12
6.6 The Underwriter shall have received from [Name of Company's
Accountant], certified public accountants, a letter dated the date hereof and
satisfactory in form and substance to the Underwriter and the Underwriter's
counsel, to the effect that they have performed certain specified procedures,
all of which have been agreed to by the Underwriter, as a result of which they
determined that certain information of an accounting, financial or statistical
nature set forth in the Prospectus Supplement under the captions "Description of
the Mortgage Pool", "Pooling and Servicing Agreement", "Description of the
Certificates" and "Certain Yield and Prepayment Considerations" agrees with the
records of the Company excluding any questions of legal interpretation.
6.7 The Certificates shall have been rated "[AAA]" by [Standard &
Poor's] and [Fitch Ratings].
6.8 You shall have received the opinion of [Name of Trustee's
Counsel], dated the Closing Date, substantially to the effect set forth in
Exhibit C.
6.9 You shall have received from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP,
counsel to the Company, reliance letters with respect to any opinions delivered
to [Standard & Poor's] and [Fitch Ratings].
The Company will furnish you with conformed copies of the above opinions,
certificates, letters and documents as you reasonably request.
7. INDEMNIFICATION AND CONTRIBUTION.
7.1 The Company agrees to indemnify and hold harmless you and your
officers and directors, and each person, if any, who controls you within the
meaning of Section 15 of the Act (a "Controlling Person"), against any losses,
claims, damages, liabilities or expenses (including the reasonable cost of
investigating and defending against any claims therefor and counsel fees
incurred in connection therewith, except as otherwise provided herein), joint or
several (each, a "Claim"), which may be based upon the Act, or any other statute
or at common law, on the ground or alleged ground that the Registration
Statement, as from time to time amended or supplemented (including, without
limitation, any information incorporated by reference therein), contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus, as from time to time amended or supplemented
(including, without limitation, any information incorporated by reference
therein), included any untrue statement of a material fact or omitted to state
any 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, unless [(i) such statement or omission concerned the Indemnified
Certificates in connection with a Claim arising out of a demand, action or
threatened action by or on behalf of one or more persons who were neither (x)
"qualified institutional buyers" as defined in Rule 144A adopted by the
Commission pursuant to the Act nor (y) "accredited investors" as defined in Rule
501(a)(1)-(4) adopted by the Commission pursuant to the Act (each such person, a
"Retail Investor") or (ii)] such statement or omission was made in reliance
upon, and in conformity with, written information furnished to the Company by
you or any of your affiliates, or information electronically transmitted to the
Company by you or any of your affiliates,
13
specifically for use in the preparation thereof (including, without limitation,
any information in any Computational Materials or ABS Term Sheets, but excluding
Company Provided Information and any untrue statement of material fact in any
Computational Materials or ABS Term Sheets resulting from an untrue statement in
the Company Provided Information, required to be provided by you pursuant to
Section [4.2] hereof); provided that in no case is the Company to be liable with
respect to any Claims made against you or any Controlling Person unless you or
Controlling Person shall have notified the Company in writing, giving notice of
the nature of the Claim, within a reasonable time after service of a summons or
other first legal process that shall have been served upon you or Controlling
Person, but failure to notify the Company of any such Claim shall not relieve
the Company from any liability which it may have to you or Controlling Person,
except to the extent it has been materially prejudiced by such failure and
provided further that the failure to notify the Company of such Claim shall not
relieve it from any liability which it may have to you or Controlling Person
otherwise than on account of the indemnity agreement contained in this
paragraph. The Company will be entitled to participate at its own expense in the
defense, or, if the Company so elects, to assume the defense of any suit brought
to enforce any such liability, but, if the Company elects to assume the defense,
such defense shall be conducted by counsel chosen by it. In the event the
Company elects to assume the defense of any such suit and retain such counsel,
you or Controlling Person or persons, defendant or defendants in the suit, may
retain additional counsel but shall bear the fees and expenses of such counsel
unless (i) the Company and you or Controlling Person shall have mutually agreed
to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the Company and you or
Controlling Person and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the Company shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one counsel for you and Controlling Persons requesting
indemnification and that all such fees and expenses shall be reimbursed as they
are incurred. The Company shall not be liable to indemnify any person for any
settlement of any Claim effected without the Company's consent, which consent
shall not be unreasonably withheld. The Company shall not, without your prior
written consent or the prior written consent of Controlling Person (as
applicable), which consent will not be unreasonably withheld, effect any
settlement of any pending or threatened proceeding in respect of which you or
Controlling Person is or could have been a party and indemnity is or could have
been sought hereunder by you or Controlling Person unless such settlement
includes an unconditional release of you or Controlling Person from all
liability on claims that are the subject matter of such proceeding. This
indemnity agreement will be in addition to any liability which the Company might
otherwise have. [The foregoing indemnity by the Company to you and your
Controlling Persons shall apply to any untrue statement of a material fact or
omission of a material fact in the Prospectus Supplement or Computational
Materials or ABS Term Sheets relating to information regarding the Covered
Mortgage Loans including any such information which was based on information
received by the Company from you or any of your affiliates which, in turn, was
received by you or any of your affiliates from the Seller, unless such
information was modified by you or any of your affiliates without the express
written consent of the Company and such modification resulted in such material
misstatement or material omission contained in the Prospectus Supplement,
Computational Materials or ABS Term Sheets.]
14
7.2 You agreee to indemnify and hold harmless the Company, each of its
directors, each of its officers and each person, if any, who controls the
Company within the meaning of Section 15 of the Act ("Company Controlling
Person") against any Claim which may be based upon the Act, or any other statute
or at common law, on the ground or alleged ground that the Registration
Statement, as from time to time amended or supplemented (including, without
limitation, any information incorporated by reference therein), contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus, as from time to time amended or supplemented
(including, without limitation, any information incorporated by reference
therein), included any untrue statement of a material fact or omitted to state
any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, but only insofar as
[(i) any such statement or omission concerned the Indemnified Certificates in
connection with a Claim arising out of a demand, action or threatened action by
or on behalf of one or more Retail Investors or (ii)] any such statement or
omission was made in reliance upon, and in conformity with, written information
furnished to the Company by you or any of your affiliates, or information
electronically transmitted to the Company by you or any of your affiliates,
specifically for use in the preparation thereof (including, without limitation,
any Computational Materials or ABS Term Sheets, but excluding Company Provided
Information and any untrue statement of a material fact in any Computational
Materials or ABS Term Sheets resulting from an untrue statement in the Company
Provided Information, required to be provided by you pursuant to Section [4.2]
hereof); provided, however, that in no case are you to be liable with respect to
any claims made against the Company or any such person against whom the action
is brought unless the Company or such person shall have notified you in writing,
giving notice of the nature of the claim, within a reasonable time after service
of a summons or other first legal process that shall have been served upon the
Company or any such person, but failure to notify you of such Claim shall not
relieve you from any liability which you may have to the Company or any such
person, except to the extent that you have been materially prejudiced by such
failure and provided further that the failure to notify you of such Claim shall
not relieve it from any liability which it may have to the Company or
Controlling Person otherwise than on account of their indemnity agreement
contained in this paragraph. You shall be entitled to participate at its own
expense in the defense, or, if they so elect, to assume the defense of any suit
brought to enforce any such liability, but, if you elects to assume the defense,
such defense shall be conducted by counsel chosen by you. In the event that you
elect to assume the defense of any such suit and retain such counsel, the
Company, said officers and directors or any Company Controlling Person or
persons, defendant or defendants in the suit, shall bear the fees and expenses
of any additional counsel retained by them, respectively unless (i) the Company,
said officers and directors or any Company Controlling Person or persons and you
or Controlling Person shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the Company, said officers and directors or any
Company Controlling Person or persons and you or Controlling Person and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that you
or Controlling Person shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one counsel for the Company, said officers and directors or any
Company Controlling Person or persons requesting indemnification and that all
such fees and expenses
15
shall be reimbursed as they are incurred. You shall not be liable to indemnify
any person for any settlement of any such Claim effected without your
consent, which consent shall not be unreasonably withheld. You shall not,
without the prior written consent of the Company, said officers and directors or
any Company Controlling Person or persons, effect any settlement of any pending
or threatened proceeding in respect of which the Company, said officers and
directors or any Company Controlling Person or persons is or could have been a
party and indemnity is or could have been sought hereunder by the Company, said
officers and directors or any Company Controlling Person or persons unless such
settlement includes an unconditional release of the Company, said officers and
directors or any Company Controlling Person or persons from all liability on
Claims that are the subject matter of such proceeding. This indemnity agreement
will be in addition to any liability which you might otherwise have. [With
respect to any information regarding the Covered Mortgage Loans provided by you
or any of its affiliates to the Company which was received by you or any of its
affiliates from the Seller, the foregoing indemnity by you to the Company shall
only apply to any untrue statement of a material fact or omission of a material
fact in the Prospectus Supplement, Computational Materials or ABS Term Sheets to
the extent such information was modified by you or any of your affiliates
without the express written consent of the Company and such modification
resulted in such material misstatement or material omission.]
7.3 If the indemnification provided for in Section 7 is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any Claims (or actions in respect thereof) referred to
herein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such Claims (or actions in
respect thereof) in such proportion as is appropriate to reflect the relative
benefits, as defined below, received by the Company on the one hand and the
Underwriter on the other from the offering of the Certificates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
Company on the one hand and you on the other in connection with the statements
or omissions which resulted in such Claims (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or the Underwriter
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
you agree that it would not be just and equitable if contribution were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above. The
amount paid or payable by an indemnified party as a result of the Claims (or
actions in respect thereof) referred to above shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such Claim. Notwithstanding the
provisions of this Section 7.3 you shall not be required to contribute any
amount in excess of the amount by which the total price at which the
Certificates underwritten by it and distributed to the public were offered to
the public exceeds the amount of damages which you would have otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent
16
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.
8. TERMINATION. This Agreement shall be subject to termination by notice
given to the Company, if the sale of the Certificates provided for herein is not
consummated because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform their respective
obligations under this Agreement. If you terminate this Agreement in accordance
with this Section 8, the Company will reimburse you for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been reasonably incurred by the Underwriter in connection with
the proposed purchase and sale of the Certificates.
9. CERTAIN REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or the officers of the Company, and you set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by you or on your
behalf or made by or on behalf of the Company or any of its officers, directors
or controlling persons, and will survive delivery of and payment for the
Certificates.
10. NOTICES. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Underwriter will be mailed, delivered or
telegraphed and confirmed to you at ____________________________________________
____________________________, Attention: ____________________________ or if sent
to the Company, will be mailed, delivered or telegraphed and confirmed to it at
Long Beach Securities Corp., ____________________.
11. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
12. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
17
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
LONG BEACH SECURITIES CORP.
By:____________________________
Name:
Title:
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
___________________________________
By:________________________________
Name:
Title:
EXHIBIT A-1
[▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LETTERHEAD]
___________________, 200__
To the persons listed
on Schedule A hereto
Re: Long Beach Securities Corp.
Mortgage Pass-Through Certificates,Series [________]
Ladies and Gentlemen:
We have acted as special counsel to Long Beach Securities Corp. (the
"Company") in connection with the issuance and sale by the Company of Long Beach
Securities Corp. Mortgage Pass-Through Certificates, Series [______] (the
"Certificates") pursuant to the Pooling and Servicing Agreement, dated as of
_______________________ (the "Pooling and Servicing Agreement"), among the
Company, [Name of Master Servicer], as master servicer (the "Master Servicer"),
and [Name of Trustee], as trustee (the "Trustee"). The Certificates consist of
_____________ classes designated as Class A-[__], Class R-I and Class R-II
(collectively, the "Senior Certificates"); and _________ classes designated as
Class M-[___], (collectively, the "Class M Certificates") and Class B-[__]
(collectively, the "Class B Certificates"). Only the Senior Certificates and the
Class M (the "Offered Certificates") are offered pursuant to the Prospectus.
The Certificates will evidence the entire undivided interest in a
trust fund (the "Trust Fund") consisting primarily of a pool of conventional,
fixed rate, one- to four-family first mortgage loans (the "Mortgage Loans") held
by [Name of Custodian], as custodian (the "Custodian"), pursuant to a Custodial
Agreement, dated as of _____________________, among the Servicer, the Custodian
and the Trustee (the "Custodial Agreement"). The Offered Certificates are
included in a Registration Statement on Form S-3 (File No. 333-_______) filed by
the Company with the Securities and Exchange Commission (the "Commission") on
_________________ and declared effective on _______________ (as amended as of
the date hereof, the "Registration Statement"), and were offered by the
prospectus dated ______________, as supplemented by the prospectus supplement
dated _____________ (collectively, the "Prospectus"), filed with the Commission
pursuant to Rule 424(b) of the rules and regulations of the Commission under the
Securities Act of 1933, as amended (the "Act").
The Company acquired the Mortgage Loans from ___________________
pursuant to a Mortgage Loan Purchase Agreement, dated as of
____________________________ (the "Mortgage Loan Purchase Agreement"), in
exchange for immediately available funds, the Class M Certificates, the Class B
Certificates and de minimis portions of each of the Class R-I Certificates and
the Class R-II Certificates. The Company will
A-1-1
Long Beach Securities Corp.
[Underwriter]
[Name of Master Servicer]
[Trustee]
_______________ __, ____
Page 2
sell to [Name of Underwriter]. ("Underwriter"), the Class A-[__], Class R-I and
Class R-II Certificates (other than de minimis portions of each of the Class R-I
Certificates and the Class R-II Certificates) (together, the "Underwritten
Certificates") pursuant to an Underwriting Agreement, dated
________________________, among the Company and Underwriter (the "Underwriting
Agreement"). The Pooling and Servicing Agreement, Custodial Agreement, Mortgage
Loan Purchase Agreement and Underwriting Agreement are referred to herein
collectively as the "Agreements." Capitalized terms used but not defined herein
shall have the meanings set forth in the Agreements. This opinion letter is
rendered pursuant to Section ___ of the Underwriting Agreement.
In arriving at the opinions expressed below, we have examined and
relied on the following documents:
(a) executed copies of the Agreements;
(b) the articles of incorporation and bylaws of the Company;
(c) a good standing certificate from the Secretary of State of the
State of Delaware concerning the Company;
(d) resolutions adopted by the Board of Directors of the Company as
of _____________________, authorizing, among other things, the
issuance of series of certificates registered under the
Registration Statement;
(e) a Certificate of Secretary executed by the Secretary of the
Company, certifying, among other things, as to the resolutions
described in clause (d);
(f) the Registration Statement;
(g) the Prospectus;
(h) the forms of the Certificates; and
(i) the documents delivered by the Company on the Closing Date
pursuant to the Underwriting Agreement, the Mortgage Loan
Purchase Agreement and the Pooling and Servicing Agreement.
In addition, we have examined and relied, as to factual matters, on
the representations of the Company, Master Servicer and Underwriter in the
Agreements and on originals or copies certified or otherwise identified to our
satisfaction of all such corporate records of the Company and such other
instruments and other certificates of public officials, officers and
representatives of the Company, Master Servicer, Underwriter and the Trustee,
and
A-2
Long Beach Securities Corp.
[Underwriter]
[Name of Master Servicer]
[Trustee]
_______________ __, ____
Page 3
we have made such investigations of law, as we have deemed appropriate as a
basis for the opinions expressed below.
Based upon such examination and having regard for legal considerations
which we deem relevant, we are of the following opinions:
1. The Registration Statement has become effective under the Act, and,
to our knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued and not withdrawn, and no proceedings for that purpose
have been instituted or threatened under Section 8(d) of the Act.
2. The Registration Statement, as of the date it became effective, and
the Prospectus, as of the date of the Prospectus Supplement, other than any
financial or statistical information or Computational Materials or ABS Term
Sheets contained therein as to which we express no opinion, complied as to form
in all material respects with the requirements of the Act and the applicable
rules and regulations thereunder.
3. To our knowledge, there are no material contracts, indentures, or
other documents (not including Computational Materials and ABS Term Sheets) of a
character required to be described or referred to in either the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or filed as exhibits
thereto.
4. The Certificates, when duly and validly executed and authenticated
in accordance with the Pooling and Servicing Agreement and paid for and
delivered in accordance with the Underwriting Agreement or the Mortgage Loan
Purchase Agreement, as the case may be, will be entitled to the benefits of the
Pooling and Servicing Agreement.
5. The statements set forth in the Prospectus under the heading
"Description of the Certificates," insofar as such statements purport to
summarize certain provisions of the Certificates and the Pooling and Servicing
Agreement, are correct in all material respects. The statements set forth in the
Basic Prospectus under the headings "Material Federal Income Tax Consequences"
and "ERISA Considerations" and in the Prospectus Supplement under the headings
"Material Federal Income Tax Consequences" and "ERISA Considerations," to the
extent that they constitute matters of federal law or legal conclusions with
respect thereto, are correct in all material respects.
6. The Senior Certificates and Class M-[___] Certificates will be
"mortgage related securities," as defined in Section 3(a)(41) of the Securities
Exchange Act of 1934, as amended, so long as such Certificates are rated in one
of the two highest rating categories by at least one nationally recognized
statistical rating organization.
A-3
Long Beach Securities Crop.
[Underwriter]
[Name of Master Servicer]
[Trustee]
______________ __,_______
Page 4
7. The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended, and the Trust Fund created by
the Pooling and Servicing Agreement is not required to be registered under the
Investment Company Act of 1940, as amended.
8. No consent, approval, authorization or order of any federal or
State of New York court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by the terms of the
Agreements, except (a) such as have been obtained under the Act and (b) such as
may be required under the blue sky laws of any jurisdiction in connection with
the offer and sale of the Certificates, as to which we express no opinion.
9. The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, and has
the requisite power and authority, corporate or other, to own its own properties
and conduct its own business, as presently conducted by it, and to enter into
and perform its obligations under the Agreements.
10. Each of the Agreements to which the Company is a party has been
duly and validly authorized, executed and delivered by the Company.
11. The consummation of the transactions contemplated by, and the
performance by the Company of any other of the terms of, any of the Agreements
to which it is a party will not result in a breach of any term or provision of
the articles of incorporation or bylaws of the Company or any State of New York
or federal statute or regulation, to our knowledge, result in a breach,
violation or acceleration of, or constitute a default under, the terms of any
indenture or other material agreement or instrument to which the Company is a
party or by which it is bound or any order or regulation of the State of New
York or federal court, regulatory body, administrative agency or governmental
body having jurisdiction over the Company.
12. Each of the Agreements to which the Company is a party constitutes
a valid, legal and binding agreement of the Company, enforceable against the
Company in accordance with its terms.
13. Assuming compliance with all provisions of the Pooling and
Servicing Agreement, under existing law, (a) REMIC I and REMIC II (as such terms
are defined in the Pooling and Servicing Agreement) will be treated as "real
estate mortgage investment conduits" ("REMICs") as defined by Section 860D of
the Internal Revenue Code of 1986 (the "Code"), (b) each of the Class A-[__],
Class M-[__], Class B-[__] Certificates will be treated as (or will be comprised
of) "regular interests" in REMIC II as the term "regular interest" is defined in
the Code, and (c) the Class R-I Certificates will be treated as the sole class
of "residual interests" in REMIC I and the Class R-II Certificates will be
treated as the sole class of "residual interests" in
A-4
Long Beach Securities Crop.
[Underwriter]
[Name of Master Servicer]
[Trustee]
______________ __,_______
Page 5
▇▇▇▇▇ ▇▇, as the term "residual interest" is defined in the Code. However,
continuation of the status of REMIC I and REMIC II as REMICs may entail
compliance with statutory changes in the future and with regulations not yet
issued.
We have participated in conferences with your representatives
concerning the Registration Statement and the Prospectus and have considered the
matters required to be stated therein and the statements contained therein,
although we have not independently verified the accuracy, completeness or
fairness of such statements (except as described in paragraph 5 above). Based
upon and subject to the foregoing, nothing has come to our attention to cause us
to believe that the Registration Statement (excluding any exhibits filed
therewith), as of the date it became effective, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Prospectus Supplement or as of the Closing
Date, contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading (it being understood that we have not been requested to and
we do not make any comment in this paragraph with respect to the financial
statements, schedules and other financial and statistical information contained
in or incorporated by reference into the Registration Statement or the
Prospectus or any Computational Materials or ABS Term Sheets or any information
contained in the Prospectus Supplement under the heading "The Credit Enhancer").
With your permission we have assumed the following: (a) the
authenticity of original documents and the genuineness of all signatures; (b)
the conformity to the originals of all documents submitted to us as copies; (c)
the truth, accuracy and completeness of the information, factual matters,
representations and warranties contained in the records, documents, instruments
and certificates we have reviewed; and (d) except as specifically covered in the
opinions set forth above, the due authorization, execution and delivery on
behalf of the respective parties thereto of documents referred to herein and the
legal, valid and binding effect thereof on such parties.
Whenever a statement herein is qualified by the phrase "to our
knowledge" or "to our attention," it is intended to indicate that, during the
course of our representation of the Company, no information that would give us
current actual knowledge of the inaccuracy of such statement has come to the
attention of those attorneys currently in this firm who have rendered legal
services in connection with the Certificates. However, we have not undertaken
any independent investigation to determine the accuracy of any such statement,
and any limited inquiry undertaken by us during the preparation of this opinion
letter should not be regarded as such an investigation; no inference as to our
knowledge of any matters bearing on the accuracy of any such statement should be
drawn from the fact of our representation of the Company.
A-5
Long Beach Securities Crop.
[Underwriter]
[Name of Master Servicer]
[Trustee]
______________ __,_______
Page 6
Our opinion that any document is valid, legal and binding or
enforceable in accordance with its terms is subject to: (1) limitations imposed
by bankruptcy, insolvency, fraudulent conveyance, reorganization, arrangement,
moratorium or other laws relating to or affecting the enforcement of creditors'
rights generally; (2) general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law; and (3) rights
to indemnification which may be limited by applicable law or equitable
principles or otherwise unenforceable as against public policy.
With respect to our opinion set forth in paragraph 2, in passing on
the form of Registration Statement and the Prospectus, we have necessarily
assumed the correctness and completeness of the statements made therein.
We express no opinion as to matters of law other than the law of the
State of New York and the United States of America, except to the extent
necessary to render the opinions in paragraphs 9 and 10 above with respect to
Delaware corporate law. As you know, we are not licensed to practice law in the
State of Delaware, and our opinions with respect to Delaware corporate law are
based solely on a review of a standard compilation of the Delaware General
Corporation Law.
This opinion letter is solely for your benefit and may not be relied
upon or used by, circulated, quoted or referred to, nor may copies hereof be
delivered to, any other person without our prior written approval. We disclaim
any obligation to update this opinion letter for events occurring or coming to
our attention after the date hereof.
Very truly yours,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
A-6
EXHIBIT B
[COUNSEL TO MASTER SERVICER LETTERHEAD]
________________,_____
[Name of Trustee]
_____________________
_____________________
_____________________
[Name of Underwriter]
_____________________
_____________________
_____________________
Long Beach Securities Corp.
[__] Mortgage Pass-Through Certificates, Series -
Ladies and Gentlemen:
We have acted as counsel to Long Beach Securities Corp. (the
"Company") and [Name of Master Servicer] (the "Master Servicer") in connection
with the issuance and sale by the Company of [__] Mortgage Pass-Through
Certificates, Series ____- ____ (the "Certificates"), pursuant to the Pooling
and Servicing Agreement, dated as of _______________ 1, ____ (the "Pooling and
Servicing Agreement"), among the Company, the Master Servicer and
___________________, as trustee (the "Trustee"). The Certificates consist of
____________ classes designated as Class A and Class R (collectively, the
"Senior Certificates") and ____________ classes of subordinated certificates
designated as Class M and Class B. Only the Senior Certificates and the Class M
Certificates (collectively, the "Offered Certificates") are being offered under
the Prospectus, ________, and the Prospectus Supplement, the Prospectus
Supplement together with the Prospectus, the "Prospectus")
The Senior Certificates in the aggregate and the Class M Certificates
will evidence initial undivided ownership interests, in a trust fund (the "Trust
Fund") consisting
B-1
[Name of Trustee]
[Name of Underwriter]
____________ ___,____
Page 2
primarily of a pool of one- to four-family first mortgage loans (the "Mortgage
Loans") held by ______________________________ ______________, as custodian (the
"Custodian"), pursuant to the Custodial Agreement, dated as of _______________
1, ____, among the Company, the Master Servicer, the Custodian and the Trustee
(the "Custodial Agreement"). ____________________________________ (the
"Purchaser") acquired the Mortgage Loans through its mortgage loan purchase
program from various seller/servicers. The Purchaser transferred the Mortgage
Loans to the Company pursuant to the Assignment and Assumption Agreement, dated
_________ __, ____ (the "Assignment and Assumption Agreement"), in exchange for
immediately available funds, and the Class M and Class B Certificates. The
Company will sell the Class A and the Class R Certificates other than a de
minimis portion thereof (the "Underwritten Certificates") to
_______________________ (the "Underwriter"), pursuant to the Underwriting
Agreement, dated _____________ __, ____, between the Company and the Underwriter
(the "Underwriting Agreement"; the Pooling and Servicing Agreement, the
Custodial Agreement, the Underwriting Agreement and the Assignment and
Assumption Agreement, collectively, the "Agreements"). Capitalized terms not
defined herein have the meanings ascribed to them in the Agreements. This
opinion letter is rendered pursuant to Section 6.4 of the Underwriting
Agreement.
Based upon and stated in the foregoing, we are of the opinion that:
1. The Company and the Master Servicer are duly incorporated and are
validly existing as corporations in good standing under the laws of the State of
Delaware and the State of __________, respectively, and each has the requisite
power and authority, corporate or other, to own its properties and conduct its
business, as presently conducted by it, and to enter into and perform its
obligations under the Agreements.
2. Each of the Agreements has been duly and validly authorized,
executed and delivered by the Company and the Master Servicer and, upon due
authorization, execution and delivery by other parties thereto, will constitute
the valid, legal and binding agreements of the Company and the Master Servicer,
enforceable against the Company and the Master Servicer in accordance with its
terms.
3. No consent, approval, authorization or order of the State of
__________ or federal court or governmental agency or body is required for the
consummation by the Company or the Master Servicer of the transactions
contemplated by the terms of the Agreements, except for those consents,
approvals,authorizations or orders which previously have been obtained.
4. Neither the sale, issuance and delivery of the Underwritten
Certificates as provided in the Agreements, nor the consummation of any other of
the transactions contemplated by, or the fulfillment of any other of the terms
of, the Agreements, will result in a breach of any term or provision of the
charter or bylaws of the Company or the Master Servicer or any State of
Minnesota or federal statute or regulation or conflict with, result in a breach,
violation or acceleration of or constitute a default under the terms of any
indenture or other material agreement or instrument to which the Company or the
Master Servicer is a party or by which it is bound or any order or regulation of
any State of Minnesota or federal court, regulatory body,
B-2
[Name of Trustee]
[Name of Underwriter]
____________ ___,____
Page 3
administrative agency or governmental body having jurisdiction over the Company
or the Master Servicer.
Very truly yours,
[NAME OF COUNSEL TO MASTER SERVICER]
B-3
EXHIBIT C
[TRUSTEE'S COUNSEL'S LETTERHEAD]
_________________,_______
[Name of Underwriter] [Name of Master Servicer]
_____________________ _________________________
_____________________ _________________________
_____________________ _________________________
Long Beach Securities Corp. Trustee
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ _________________________
_________________________
_________________________
Re: Long Beach Securities Corp.
[__] Mortgage Pass-Through Certificates, Series -
Ladies and Gentlemen:
In connection with the issuance of the above-referenced Certificates
pursuant to the Pooling and Servicing Agreement, dated as of ____________ 1,
_____ (the "Pooling and Servicing Agreement"), among Long Beach Securities
Corp., as Company, [Name of Master Servicer], as Master Servicer and
_____________________, as Trustee (the "Trustee"), we have been asked to furnish
this opinion. Capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Pooling and Servicing Agreement.
In arriving at the opinions expressed below, we have examined and
relied upon the originals or copies, certified or otherwise identified to our
satisfaction, of the Pooling and Servicing Agreement and of such documents,
instruments and certificates, and we have made such investigations of law, as we
have deemed appropriate as the basis for the opinions expressed below. We have
assumed but have not verified that the signatures on all documents that we have
examined are genuine and that each person signing each such document was duly
authorized to sign such document on behalf of the person or entity purported to
be bound thereby.
C-1
[Name of Trustee]
[Name of Underwriter]
_____________ ___,___
Page 2
Based on the foregoing, we are of the opinion that:
1. The Trustee has full corporate power and authority to execute and
deliver the Pooling and Servicing Agreement, the Custodial Agreement and the
Certificates and to perform its obligations under the Pooling and Servicing
Agreement and the Custodial Agreement.
2. Each of the Pooling and Servicing Agreement and the Custodial
Agreement has been duly authorized, executed and delivered by the Trustee, and
the Trustee has duly executed and delivered the Certificates as provided in the
Pooling and Servicing Agreement.
3. The Pooling and Servicing Agreement is a legal, valid and binding
obligation of the Trustee, enforceable against the Trustee in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium, receivership and similar laws affecting the rights of creditors
generally, and subject, as to enforceability, to general principles of equity,
regardless of whether such enforcement is considered in a proceeding at law or
in equity.
4. In the event that the Master Servicer defaults in its obligation to
make Advances pursuant to Section [4.03(b)] of the Pooling and Servicing
Agreement, the Trustee is not, as of the date hereof, prohibited by any
provision of its Restated Organization Certificate or By-Laws or by any
provision of the banking and trust laws of the State of New York from assuming,
pursuant to Section [7.02] of the Pooling and Servicing Agreement, the
obligation to make such Advances.
We express no opinion as to the laws of any jurisdiction other than
the laws of the State of New York.
We are furnishing this opinion to you solely for your benefit. This
opinion may not be used, circulated, quoted or otherwise referred to for any
other purpose.
Very truly yours,
[NAME OF COUNSEL TO TRUSTEE]
C-2
EXHIBIT D
Underwriter Information
D-1
EXHIBIT E
_______________,_____
Long Beach Securities Corp.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Long Beach Securities Corp.
[__] Mortgage Pass-Through Certificates,
Series - , Class A and Class R
Pursuant to Section 4.3 of the Underwriting Agreement, dated
_______________, ____, between Long Beach Securities Corp. and [Name of
Underwriter] (the "Underwriter") relating to the Certificates referenced above
(the "Underwriting Agreement"), the undersigned does hereby certify that:
(a) The prepayment assumption used in pricing the Certificates was
______% SPA.
(b) Set forth below is (i), the first price, as a percentage of the
principal balance of each class of Certificates, at which 10% of the aggregate
principal balance of each such class of Certificates was sold to the public at a
single price, if applicable, or (ii) if more than 10% of a class of Certificates
have been sold to the public but no single price is paid for at least 10% of the
aggregate principal balance of such class of Certificates, then the weighted
average price at which the Certificates of such class were sold expressed as a
percentage of the principal balance of such class of Certificates, or (iii) if
less than 10% of the aggregate principal balance of a class of Certificates has
been sold to the public, the purchase price for each such class of Certificates
paid by the Underwriter expressed as a percentage of the principal balance of
such class of Certificates calculated by: (1) estimating the fair market value
of each such class of Certificates as of __________________, _____; (2) adding
such estimated fair market value to the aggregate purchase price of each class
of Certificates described in clause (i) or (ii) above; (3) dividing each of the
fair market values determined in clause (1) by the sum obtained in clause (2);
(4) multiplying the quotient obtained for each class of Certificates in clause
(3) by the purchase price paid by the Underwriter for all the Certificates; and
(5) for each class of Certificates, dividing the product obtained from such
class of Certificates in clause (4) by the original principal balance of such
class of Certificates:
E-1
Long Beach Securities Crop.
_______________ ______,____
Page 2
Class A: __________________
Class R: __________________
[* less than 10% has been sold to the public]
The prices set forth above do not include accrued interest with respect to
periods before closing.
[NAME OF UNDERWRITER]
By:_________________________
Name:_______________________
Title:______________________
E-2
EXHIBIT G
[Form of Legend]
F-1
