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Exhibit 4.3
(Multicurrency—Cross Border)
ISDA
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of November 9, 2006
ABN AMRO BANK N.V.(“Party A”) |
and |
Deutsche Bank National Trust Company, not in its individual capacity but solely as Supplemental Interest Trust Trustee on behalf of Long Beach Mortgage Loan Supplemental Interest Trust 2006-10(“Party B”) |
have
entered and/or anticipate entering into one or more transactions (each a
“Transaction”) that are or will
be governed by this Master Agreement, which includes the schedule (the
“Schedule”), and the documents
and other confirming evidence (each a “Confirmation”) exchanged
between the parties confirming those Transactions.
Accordingly, the parties agree as follows:—
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will have the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of the Schedule and the other provisions of this Master Agreement, the Schedule will prevail. In the event of any inconsistency between the provisions of any Confirmation and this Master Agreement (including the Schedule), such Confirmation will prevail for the purpose of the relevant Transaction.
(c)
Single Agreement. All Transactions are entered into in reliance
on the fact that this Master Agreement and all Confirmations form a single
agreement between the parties (collectively referred to as
this “Agreement”), and the parties would not otherwise enter into
any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each Confirmation to be made by it, subject to the other provisions of this Agreement.
(ii)
Payments under this Agreement will be made on the due date for value on that
date in the place
of the account specified in the relevant Confirmation or otherwise pursuant to
this Agreement, in freely transferable funds and in the manner customary for
payments in the required currency. Where settlement is by delivery (that is,
other than by payment), such delivery will be made for receipt on the due date
in the manner customary for the relevant obligation unless otherwise specified
in the relevant Confirmation or elsewhere in this Agreement.
(iii) Each
obligation of each party under Section 2(a)(i) is subject to (1) the condition
precedent
that no Event of Default or Potential Event of Default with respect to the
other party has occurred
and is continuing, (2) the condition precedent that no Early Termination Date
in respect of the relevant Transaction has occurred or been effectively
designated and (3) each other applicable condition precedent specified in this
Agreement.
value of that which was
(or would have been) required to be delivered as of the originally scheduled
date
for delivery, in each case together with (to the extent permitted under
applicable law) interest, in the currency,
of such amounts, from (and including) the date such amounts or obligations were
or would have been required
to have been paid or performed to (but excluding) such Early Termination Date,
at the Applicable Rate. Such
amounts of interest will be calculated on the basis of daily compounding and
the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b)
above shall be reasonably
determined by the party obliged to make the determination under Section 6(e)
or, if each party is so obliged,
it shall be the average of the Termination Currency Equivalents of the fair
market values reasonably
determined by both parties.
IN WITNESS WHEREOF the
parties have executed this document on the respective dates specified below
with effect from the date specified on the first page of this document.
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ABN AMRO BANK N.V. |
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Deutsche Bank National Trust Company, not in its individual capacity but solely as Supplemental Interest Trust Trustee on behalf of Long Beach Mortgage Loan Supplemental Interest Trust 2006-10 |
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By: /s/ Frederick P. Engler
Name: Frederick P. Engler |
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By: /s/ Ronaldo Reyes
Name: Ronaldo Reyes |
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By: /s/ Sylvie Trudel
Name: Sylvie Trudel |
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By: /s/ Melissa Wilman
Name:
Melissa Wilman
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Rate Swap Schedule
SCHEDULE
to the
Master Agreement
dated as of November 9, 2006
between
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ABN AMRO BANK, N.V. |
and |
Deutsche Bank National Trust Company, not in its individual capacity but solely as Supplemental Interest Trust Trustee on behalf of Long Beach Mortgage Loan Supplemental Interest Trust 2006‑10 (the “Supplemental Interest Trust”) |
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_______________________________________ (“Party A”) |
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_________________________________________ (“Party B”) |
Part 1.
Termination Provisions.
(a) “Specified Entity” means in relation to Party A for the purpose of:
Section 5(a)(v), Not applicable
Section 5(a)(vi), Not applicable
Section 5(a)(vii), Not applicable
Section 5(b)(iv), Not applicable
and in relation to Party B for the purpose of:
Section 5(a)(v), Not applicable
Section 5(a)(vi), Not applicable
Section 5(a)(vii), Not applicable
Section 5(b)(iv), Not applicable
(b) “Specified Transaction” will not apply to Party A or Party B.
(c) Certain Events of Default. The following Events of Default will apply to the parties as specified below, and the definition of “Event of Default” in Section 14 is deemed to be modified accordingly:
Section 5(a)(i) (Failure to Pay or Deliver) will apply to Party A and Party B.
Section 5(a)(ii) (Breach of Agreement) will not apply to Party A or Party B.
Section 5(a)(iii) (Credit Support Default) will apply to Party A at any time Party A is posting collateral or is providing a guarantee or other contingent agreement pursuant to Part 5(b) and will not apply to Party B.
Section 5(a)(iv) (Misrepresentation) will not apply to Party A or Party B.
Section 5(a)(v) (Default under Specified Transaction) will not apply to Party A or Party B.
Section 5(a)(vi) (Cross Default) will not apply to Party A or Party B.
Section 5(a)(vii) (Bankruptcy) will apply to Party A and Party B; provided that clause (2) thereof shall not apply to Party B.
Section 5(a)(viii) (Merger without Assumption) will apply to Party A and will not apply to Party B.
(d) Termination Events. The following Termination Events will apply to the parties as specified below:
Section 5(b)(i) (Illegality) will apply to Party A and Party B.
Section 5(b)(ii) (Tax Event) will apply to Party A and Party B.
Section 5(b)(iii) (Tax Event upon Merger) will apply to Party A and will not apply to Party B.
Section 5(b)(iv) (Credit Event upon Merger) will not apply to Party A or Party B.
(e) The “Automatic Early Termination” provision of Section 6(a) of this Agreement will not apply to Party A or Party B.
(f) Payments on Early Termination. For the purpose of Section 6(e) of this Agreement:
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(g) “Termination Currency” means United States Dollars.
(h) Gross Up. The provisions of Section 2(d)(i)(4) of this Agreement shall not apply to Party B as “X” and the provisions of Section 2(d)(ii) of this Agreement shall not apply to Party B as “Y,” such that Party B shall not be required to pay any additional amounts referred to therein.
(i) Additional Termination Events. The following Additional Termination Events will apply, in each case with respect to Party B as the sole Affected Party (unless otherwise provided below):
(i) Party A fails to comply with the Downgrade Provisions as set forth in Part 5(b). For all purposes of this Agreement, Party A shall be the sole Affected Party with respect to the occurrence of a Termination Event described in this Part 1(i)(i).
(ii) The Pooling and Servicing Agreement dated as of November 1, 2006 among Long Beach Securities Corp. as Depositor, Washington Mutual Bank as Seller and Servicer and Deutsche Bank National Trust Company as Trustee for the trust (the “Trust”) and Supplemental Interest Trust Trustee (the “Supplemental Interest Trust Trustee”) for the Supplemental Interest Trust (the “Supplemental Interest Trust”) and Deutsche Bank Trust Company Delaware as Delaware Trustee as amended and supplemented from time to time (the “PSA”) or other transaction document is amended or modified without the prior written consent of Party A, where such consent is required under the terms of the PSA.
(iii) The Trust is terminated pursuant to the PSA.
(iv) Notice has been given by the Terminator of its intention to terminate the Trust pursuant to Section 9.01(b) of the PSA; provided that the Early Termination Date may not be earlier than the date on which the Certificates will be retired pursuant to Section 9.01(a) of the PSA.
(v) Party A fails to satisfy its obligations under Section 2 of that certain Indemnification and Disclosure Agreement dated as of November 9, 2006 between Party A and Washington Mutual Bank. For all purposes of this Agreement, Party A shall be the sole Affected Party with respect to the occurrence of a Termination Event described in this Part 1(i)(v).
Notwithstanding anything in Section 6 of the Master Agreement to the contrary, any amounts due as result of the occurrence of an Additional Termination Event described in Part 1(i)(iii) and Part 1(i)(iv) of this Schedule may be calculated prior to the Early Termination Date and shall be payable on the Early Termination Date.
Part 2.
Tax Representations.
(a) Payer Representations. For the purpose of Section 3(e) of this Agreement, Party A will make the following representation and Party B will make the following representation:
It is not required by any applicable law, as modified by the practice of any relevant governmental revenue authority, of any Relevant Jurisdiction to make any deduction or withholding for or on account of any Tax from any payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to be made by it to the other party under this Agreement. In making this representation, it may rely on (i) the accuracy of any representations made by the other party pursuant to Section 3(f) of this Agreement, (ii) the satisfaction of the agreement contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and effectiveness of any document provided by the other party pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement and (iii) the satisfaction of the agreement of the other party contained in Section 4(d) of this Agreement, provided that it shall not be a breach of this representation where reliance is placed on clause (ii) and the other party does not deliver a form or document under Section 4(a)(iii) of this Agreement by reason of material prejudice to its legal or commercial position.
(b) Payee Representations. For the purpose of Section 3(f) of this Agreement, Party A and Party B make the representations specified below, if any:
(i) Party A makes the following representation to Party B:
(1) It is a resident of The Netherlands for the purpose of the application of the existing tax treaties between The Netherlands and those countries where offices of Party B are located.
(2) With respect to its non-U.S. branches, it is fully eligible for the benefits of the “Business Profits” or “Industrial and Commercial Profits” provision, as the case may be, the “Interest” provision or the “Other Income” provision (if any) of the Specified Treaty with respect to any payment described in such provisions and received or to be received by it in connection with this Agreement and no such payment is attributable to a trade or business carried on by it through a permanent establishment in the Specified Jurisdiction. With respect to Party A, Specified Treaty means the income tax treaty between the United States and The Netherlands; Specified Jurisdiction means the United States.
(3) With respect to its U.S. branches, each payment received or to be received by it in connection with this Agreement will be effectively connected with its conduct of a trade or business in the United States.
(ii) Party B makes no representations for the purpose of Section 3(f) of this Agreement.
Part 3.
Agreement to Deliver Documents.
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party agrees to deliver the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:— None
(b) Other documents to be delivered are:—
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Party required to deliver document |
Form/Document/Certificate |
Date by which to be delivered |
Covered by Section 3(d) Representation |
|
Party A |
Certified copy of the power of attorney (or equivalent authorizing documentation) which sets forth the authority of each signatory to this Agreement and each Credit Support Document (if any) signing on its behalf and the authority of such party to enter into Transactions contemplated and performance of its obligations hereunder. |
Concurrently with the execution and delivery of this Agreement. |
Yes |
|
Party A and Party B |
Incumbency certificate (or, if available the current authorized signature book or equivalent authorizing documentation) specifying the names, titles, authority and specimen signatures of the persons authorized to execute this Agreement which sets forth the specimen signatures of each signatory to this Agreement, each Confirmation and each Credit Support Document (if any) signing on its behalf. |
Concurrently with the execution and delivery of this Agreement unless previously delivered and still in full force and effect. |
Yes |
|
Party A and B |
An opinion of counsel to such party reasonably satisfactory in form and substance to the other party. |
Concurrently with the execution and delivery of the Confirmation unless previously delivered and still in full force and effect. |
No |
|
Party B |
An executed copy of the PSA. |
Within 30 days after the date of this Agreement. |
Yes |
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Party B |
Each material amendment, supplement or waiver of the PSA, as proposed from time to time, or any other amendment or modification of the PSA that requires the consent of Party under the terms of the PSA or otherwise adversely affects Party A’s interests under this Agreement or the ability of Party B to fully and timely perform its obligations under this Agreement. |
Promptly upon learning of any proposed amendment, supplement or waiver |
Yes |
Part 4.
Miscellaneous.
(a) Addresses for Notices. For the purposes of Section 12(a) of this Agreement:
Party A:
(1) Address for notices or communications to Party A:‑
(i) For all purposes under this Agreement:
ABN AMRO Bank N.V., Chicago Branch
Global Documentation Unit
540 W. Madison Street, 22nd Floor
Chicago, IL 60661
Attention: Treasury Documentation
Telephone: 312-904-5214
Fax: 312-904-0392
(ii) With a copy to the Office through which Party A is acting for the purposes of the relevant Transactions:
ABN AMRO Bank N.V., Amsterdam Head Office
P.O. Box 283
1000 AE Amsterdam
The Netherlands
Attention: Operations Derivatives Markets
Forex Options
Telephone: 31-20-6292654
Telefax: 31-20-6284832
Swaps
Telephone: 31-20-6284448
Telefax: 31-20-6281679
Interest Related Products
Telephone 31-20-3831226
Telefax: 31-20-6282462
Credit Derivatives
Telephone: 31-20-3831230
Telefax: 31-20-3832299
Telex: 16021 Answerback: ABAM NL
Electronic Messaging System Details: Swift ABNA NL 2A
ABN AMRO Bank N.V., Chicago Branch
540 West Madison Avenue, Suite 2132
Chicago, IL 60661
Attention: Treasury Operations
Telefax: 312-855-5852
Telephone: 312-992-5816
Electronic Messaging System Details: ABNA US 33a XXX
ABN AMRO Bank N.V., London Branch
199 Bishopsgate,
London EC2M 3XW,
United Kingdom
Attention: Fixed Income Derivatives Documentation
Telex: 887366 Answerback: ABNALN G
Telefax: 44 20 7857 9428
Telephone: 44 20 7678 3311
Electronic Messaging System Details: Swift ABNA GB 2L
Party B:
Deutsche Bank National Trust Company, not in its individual capacity but solely as Supplemental Interest Trust Trustee on behalf of Long Beach Mortgage Loan Supplemental Interest Trust 2006‑10
1761 East St. Andrew Place,
Santa Ana,
California 92705-4934
Attention: Long Beach Mortgage Loan Trust 2006‑10
Telephone: 714-247-6000
Facsimile: 714-247-6478
(b) Process Agent. For the purposes of Section 13(c) of this Agreement:
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
(c) Offices. With respect to Party A, the provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c) of this Agreement:
Party A is a Multibranch Party and may act through the following Offices: Amsterdam, Chicago and London.
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party A.
(f) Credit Support Document. Credit Support Document means
With respect to Party A: Any Credit Support Annex that may be entered into by Party A and Party B in connection with the occurrence of a Collateralization Event or Rating Event, each as defined under Part 5(b).
With respect to Party B: The PSA.
(g) Credit Support Provider.
Credit Support Provider means in relation to Party A: Any guarantor or other provider of credit support obtained pursuant to Part 5(b).
Credit Support Provider means in relation to Party B: Not applicable.
(h) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York (without reference to choice of law doctrine other than New York General Obligation Law Sections 5-1401 and 5-1402).
(i) Netting of Payments. Subparagraph (ii) of Section 2(c) of this Agreement will apply to all Transactions.
(j) “Affiliate.” Each of Party A and Party B shall be deemed to have no Affiliates.
(k) The word “third” shall be replaced by the word “first” in the third line of Section 5(a)(i) of this Agreement.
(l) For the avoidance of doubt, it is expressly understood and agreed by the parties hereto that, to the extent that any Event of Default described in Section 5(a) of this Agreement is applicable to the Supplemental Interest Trust, such Event of Default is applicable only to the Supplemental Interest Trust and not to the Supplemental Interest Trust Trustee individually or personally.
Part 5.
Other Provisions.
(a) Definitions.
Any capitalized terms used but not otherwise defined in this Agreement shall have the meanings assigned to them (or incorporated by reference) in the PSA. In
