EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
LONG BEACH SECURITIES CORP.
1. The name of the corporation incorporated hereby is Long
Beach Securities Corp. (the "Corporation").
2. The name and address of the Corporation's registered agent
in the State of Delaware is National Registered Agents Inc., 9 East Loockerman
Street in the City of Dover, County of Kent.
3. The Corporation exists only for the purposes specified in
this paragraph 3. The Corporation has been formed for the sole purpose of
conducting the following activities:
(a) Acquiring as purchaser and/or by contribution to the capital
of the Corporation or otherwise, owning, holding,
transferring, assigning, selling, contributing to capital,
pledging and otherwise dealing with (i) mortgage notes and
similar such instruments, related real property mortgages and
deeds of trust and other related agreements, documents, books
and records, (ii) related rights to payment, whether
constituting cash, account, chattel paper, instrument, general
intangible or otherwise, and any other related assets,
property and rights, including without limitation security
interests, (iii) related collection, deposit, custodial, trust
and other accounts, lock boxes and post office boxes and any
amounts and other items from time to time on deposit therein,
(iv) real property and any improvements thereon and personal
property acquired by foreclosure, deed-in-lieu thereof or
otherwise in respect of any of the foregoing, (v)
certificates, notes, bonds or other securities, instruments
and documents evidencing ownership interests in or obligations
secured by all or any of the foregoing and (vi) proceeds and
other payments and distributions of any kind of, on or in
respect of any of the foregoing;
(b) Authorizing, issuing, selling and delivering, directly or
indirectly through business trusts, common law trusts or other
entities established solely for such purpose, certificates,
notes, bonds and other securities, instruments and documents
evidencing ownership interests in or obligations secured by
all or any portion of the assets described in foregoing
paragraph (a), and in connection therewith entering into
servicing, insurance, credit enhancement, reimbursement and
other agreements related thereto; and
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(c) Taking any action necessary or reasonable to enable the
Corporation to engage in any lawful act or activity and to
exercise any powers permitted to corporations organized under
the laws of the State of Delaware that are related or
incidental to and necessary, convenient or advisable to
accomplish any of the foregoing.
4. The total number of shares of stock which the Corporation shall have
authority to issue is one thousand (1,000) shares of common stock, each of which
shall have a par value of $0.01.
5. The election of directors of the Corporation need not be by ballot
unless the by-laws of the Corporation so provide. The books of the Corporation
may, subject to any statutory requirements, be kept at such place within or
outside the State under the laws of Delaware as may be designated by the board
of directors or the by-laws of the Corporation.
6. As used herein, (i) "person" means any individual, proprietorship,
trust, estate, partnership, joint venture, association, company, corporation,
limited liability company or other entity, (ii) "affiliate" means any person
that directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with the person specified and (iii)
"control", including the terms "controlling," "controlled by" and "under common
control with", means the direct or indirect possession of the power to direct or
cause the direction of the management and policies of a person, whether through
the ownership of at least 10% of the voting securities, by contract or
otherwise.
7. The Corporation shall at all times have at least one (1) Independent
Director. As used in this Certificate of Incorporation, "Independent Director"
means a director (i) who is not a current or former director, officer, partner,
member, shareholder, employee, creditor or customer of the Corporation or of any
affiliate of the Corporation, and is not a spouse, parent, brother, sister,
child, aunt, uncle or cousin of any such person, and (ii) who has not received,
and was not a director, officer, director, partner, member, shareholder or
employee of any person that has received any fees or other income other than
fees for serving as such Independent Director from any affiliate of the
Corporation in any year within the five (5) years immediately preceding, or any
year during, such director's incumbency as an Independent Director. However, an
Independent Director may serve, or may have served previously, with compensation
therefor in such a capacity for any other special purpose entity formed by any
affiliate of the Corporation. No resignation or removal of an Independent
Director shall be effective until a successor Independent Director has been
elected to replace such Independent Director.
8. A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the General Corporation Law of the
State of Delaware or (iv) for any transaction from which the director derived
any improper personal benefit. If the General Corporation Law of the State of
Delaware is amended after the filing of this Certificate of Incorporation to
authorize corporate action eliminating or further limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the General
Corporation Law of the State of Delaware as so amended. Any
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repeal or modification of the foregoing portion of this paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
9. (a) The affirmative votes or written consents of the holders of all
of the outstanding common stock of the Corporation and of all of the directors
of the Corporation shall be necessary for (i) any amendment of this Certificate
of Incorporation of the Corporation, (ii) any consolidation or merger with or
into any other person or dissolution or liquidation in whole or in part, (iii)
any purchase or other acquisition, or any sale, pledge or other transfer, of any
assets, or any creation, incurring or guarantee of, or other assumption of
liability for, any indebtedness, by the Corporation, other than in a transaction
within the scope of paragraph 3 above, (iv) any institution by the Corporation
of any action to have itself adjudicated as bankrupt or insolvent, any consent
to the institution of bankruptcy or insolvency proceedings against it, any
request or consent to the entry of any order for relief or the appointment of a
receiver, trustee or other similar official for it or for any substantial part
of its property, any liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, any
making of any general assignment for the benefit of creditors, or any admission
in writing that it is unable to pay its debts generally as they become due or
(v) the taking of any corporate action in furtherance of any of the actions set
forth above in this paragraph. In such voting each Independent Director shall
owe a fiduciary duty to the Corporation itself, including the stockholders and
the creditors of the Corporation.
(b) If any outstanding certificates, notes, bonds or other
securities are then rated at the request of the Corporation by any nationally
recognized statistical rating organization (each, a "Rating Agency"), the
Corporation shall not amend or repeal any provision of this Certificate of
Incorporation unless either (a) the Corporation shall have received written
confirmation from each Rating Agency that such amendment or repeal will not
cause such Rating Agency to reduce or withdraw any rating then so assigned to
any such securities or (b) the Corporation shall have received written consent
to any such amendment or repeal from the other parties to each agreement
pursuant to which such securities were issued.
10. The Corporation shall be operated in such a manner that its assets
and liabilities shall not be substantively consolidated with those of any other
person in the event of the bankruptcy or insolvency of the Corporation or such
other person. Without limiting the foregoing, the Corporation shall maintain
adequate capital in light of its contemplated business operations, conduct its
business in its own name and through its duly authorized officers or agents,
maintain and hold itself out as a separate entity and observe all appropriate
corporate and other organizational formalities, maintain its assets separate
from those of any other person or entity, maintain its books, records and bank
accounts separate from those of any other person, maintain separate financial
statements showing its assets and liabilities separate and apart from those of
any other person, pay its own liabilities and expenses only out of its own
funds, enter into a transaction with an affiliate only if such transaction is
intrinsically fair, commercially reasonable and on the same terms as would be
available in an arm's length transaction with a person or entity that is not an
affiliate, allocate fairly and reasonably any overhead expenses that are shared
with an affiliate, not hold itself out as being liable for the debts of any
other person and not take any other action or engage in any other activity that
would be inconsistent with maintaining the separate legal identity of the
Corporation.
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THE UNDERSIGNED hereby certifies that the Corporation has not received
any payment for any of its stock and has hereby signed this Amended and Restated
Certificate of Incorporation as the sole incorporator of the Corporation in
accordance with Sections 241 and 245 of the General Corporation Law of the State
of Delaware as of July 13, 2000.
/s/ Susan A.T. Tice
--------------------------------
Susan A.T. Tice
c/o Thacher Proffitt & Wood
Two World Trade Center
New York, New York 10048
