EXHIBIT 5.1
[LETTERHEAD OF XXXXXXX XXXXXXXX & XXXX LLP]
December 28, 2005
Xxxxxx Xxxxxxx & Co. Incorporated
as Representative of the several Underwriters
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Opinion: Underwriting Agreement
New Century Home Equity Loan Trust, Series 2005-D
Asset Backed Pass-Through Certificates
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Ladies and Gentlemen:
We have acted as counsel to New Century Mortgage Corporation (the
"Originator"), NC Capital Corporation (the "Seller") and New Century Mortgage
Securities, Inc. (the "Depositor") in connection with (i) the Mortgage Loan
Purchase and Sale Agreement, dated as of October 1, 2004 (the "Originator Sale
Agreement"), between the Originator and the Seller, (ii) the Mortgage Loan
Purchase Agreement, dated as of December 22, 2005 (the "Seller Sale Agreement"),
between the Seller and the Depositor, (iii) the Pooling and Servicing Agreement,
dated as of December 1, 2005 (the "Pooling and Servicing Agreement"), among the
Depositor, JPMorgan Chase Bank, National Association (the "Servicer") and
Deutsche Bank National Trust Company (the "Trustee"), (iv) the Underwriting
Agreement, dated December 22, 2005 (the "Underwriting Agreement"), among the
Depositor, the Originator and Xxxxxx Xxxxxxx & Co. Incorporated as
Representative of the Underwriters (the "Underwriters"), (v) the Swap
Administration Agreement, dated as of December 28, 2005 (the "Swap
Administration Agreement") among Deutsche Bank National Trust Company, as swap
administrator (in such capacity, the "Swap Administrator"), and the Seller, (vi)
the Preliminary Prospectus Supplement, dated as of December 14, 2005 (the
"Preliminary Prospectus Supplement"), and the Prospectus to which it relates,
dated as of September 27, 2005 (the "Base Prospectus"; together with the
Preliminary Prospectus Supplement, the "Preliminary Prospectus") and (vii) the
Prospectus Supplement, dated as of December 22, 2005 (the "Prospectus
Supplement"), and the Base Prospectus (together, the "Prospectus"). The
Originator Sale Agreement, the Seller Sale Agreement, the Pooling and Servicing
Agreement, the Underwriting Agreement, the Indemnification Agreement and the
Swap Administration Agreement are collectively referred to herein as the
"Agreements." Capitalized terms not defined herein have the meanings assigned to
them in the Agreements.
In rendering this opinion letter, as to relevant factual matters we
have examined the documents described above and such other documents as we have
deemed necessary including, where we have deemed appropriate, representations or
certifications of officers of parties thereto or public officials. In rendering
this opinion letter, except for the matters that are specifically addressed in
any opinion expressed below, we have assumed (i) the authenticity of all
documents submitted to us as originals or as copies thereof, the conformity to
the originals of all documents submitted to us as copies, the genuineness of all
signatures and the legal capacity of natural persons, (ii) the necessary entity
formation and continuing existence in the jurisdiction of formation, and the
necessary licensing and qualification in all jurisdictions, of all parties to
all documents, (iii) the necessary entity authorization, execution,
authentication, payment, delivery and enforceability (as limited by bankruptcy
and other insolvency laws) of and under all documents, and the necessary entity
power and authority with respect thereto, and (iv) that there is not any other
agreement that modifies or supplements the agreements expressed in any document
to which this opinion letter relates in a manner that affects the correctness of
any opinion expressed below. In rendering this opinion letter, except for any
matter that is specifically addressed in any opinion expressed below, we have
made no inquiry, have conducted no investigation and assume no responsibility
with respect to (a) the accuracy of and compliance by the parties thereto with
the representations, warranties and covenants as to factual matters contained in
any document or (b) the conformity of the underlying assets and related
documents to the requirements of any agreement to which this opinion letter
relates. Each assumption herein is made and relied upon with your permission and
without independent investigation.
In rendering this opinion letter, any opinion expressed herein with
respect to the enforceability of any right or obligation is subject to (i)
general principles of equity, including concepts of materiality, reasonableness,
good faith and fair dealing and the possible unavailability of specific
performance and injunctive relief, regardless of whether considered in a
proceeding in equity or at law, (ii) the effect of certain laws, regulations and
judicial and other decisions upon the availability and enforceability of certain
remedies including the remedies of specific performance and self-help and
provisions purporting to waive the obligation of good faith, materiality, fair
dealing, diligence, reasonableness or objection to venue or forum, to confer
subject matter jurisdiction on a federal court located within the State of New
York to adjudicate any controversy in any situation in which such court would
not otherwise have subject matter jurisdiction, to waive the right to jury
trial, to impose a penalty or forfeiture, to release, exculpate or exempt a
party from or require indemnification of a party for liability for its own
action or inaction to the extent that the action or inaction includes
negligence, recklessness or willful or unlawful conduct, to sever any provision
of any agreement, to restrict access to legal or equitable remedies, to
establish evidentiary standards, to appoint any person or entity as the
attorney-in-fact of any other person or entity, to require that any agreement
may only be amended, modified or waived in writing, to provide that all rights
or remedies of any party are cumulative and may be enforced in addition to any
other right or remedy, to provide that the election of a particular remedy does
not preclude recourse to one or more remedies, to provide that the failure to
exercise or the delay in exercising rights or remedies will not operate as a
waiver of any such rights or remedies, to waive rights or remedies which can not
be waived as a matter of law, to provide for set-off unless there is mutuality
between the parties or to provide that any agreement is to be governed by or
construed in accordance with the laws of any jurisdiction other than the State
of New York, (iii) bankruptcy, insolvency, receivership, reorganization,
liquidation, voidable preference, fraudulent conveyance and transfer, moratorium
and other similar laws affecting the rights of creditors or secured parties and
(iv) public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of any provision
of any agreement which purports or is construed to provide indemnification with
respect to securities law violations. However, the non-enforceability of any of
the provisions referred to in foregoing clause (ii) will not, taken as a whole,
materially interfere with the practical realization of the benefits of the
rights and remedies included in any such agreement which is the subject of any
opinion expressed below, except for the considerations referred to in foregoing
clause (iv) and the consequences of any judicial, administrative, procedural or
other delay which may be imposed by, relate to or arise from applicable laws,
equitable principles and interpretations thereof. We do not express any opinion
herein with respect to any law the violation of which would not have any
material adverse effect on the ability of any party to perform its obligations
under any agreement.
This opinion letter is based upon our review of the documents referred
to herein. We have conducted no independent investigation with respect to the
facts contained in such documents and relied upon in rendering this opinion
letter. We also note that we do not represent any of the parties to the
transactions to which this opinion letter relates or any of their affiliates in
connection with matters other than certain transactions. However, the attorneys
in this firm who are directly involved in the representation of parties to the
transactions to which this opinion letter relates, after such consultation with
such other attorneys in this firm as they deemed appropriate, have no actual
present knowledge of the inaccuracy of any fact relied upon in rendering this
opinion letter.
In rendering this opinion letter, we do not express any opinion
concerning any law other than the laws of the State of New York, the General
Corporation Law of the State of Delaware and the federal laws of the United
States including without limitation the Securities Act of 1933, as amended (the
"1933 Act") and Sections 860A through 860G (the "REMIC Provisions") of the
Internal Revenue Code of 1986 (the "Code") applicable to a real estate mortgage
investment conduit ("REMIC") and applicable regulations thereunder and current
judicial and administrative authority with respect thereto. We do not express
any opinion herein with respect to any matter not specifically addressed in the
opinions expressed below, including without limitation (i) any statute,
regulation or provision of law of any county, municipality or other political
subdivision or any agency or instrumentality thereof or (ii) the securities or
tax laws of any jurisdiction.
Based upon and subject to the foregoing, it is our opinion that:
1. The Pooling and Servicing Agreement, assuming the necessary
authorization, execution and delivery thereof by the parties
thereto, will be a valid and legally binding agreement under
the laws of the State of New York, enforceable thereunder
against the parties thereto in accordance with its terms.
2. The statements made in the Base Prospectus and the Prospectus
Supplement under the heading "Federal Income Tax
Consequences", to the extent that those statements constitute
matters of law or legal conclusions with respect thereto,
while not purporting to discuss all possible consequences of
investment in the securities to which they relate, are correct
in all material respects with respect to those consequences or
matters that are discussed therein.
3. Assuming the accuracy of and compliance with the factual
representations, covenants and other provisions of the
Agreements without any waiver or modification thereof, for
United States federal income tax purposes within the meaning
of the Code in effect on the date hereof, (i) each of REMIC I,
REMIC II, REMIC III, REMIC IV, REMIC V, REMIC VI and REMIC VII
will qualify as a REMIC, (ii) the REMIC I Regular Interests
will represent ownership of the "regular interests" in REMIC
I, and the Class R-I Interest will constitute the sole class
of "residual interests" in REMIC I, (iii) the REMIC II Regular
Interests will represent ownership of the "regular interests"
in REMIC II, and the Class R-II Interest will constitute the
sole class of "residual interests" in REMIC II, (iv) each
class of Class A Certificates and Mezzanine Certificates
(exclusive of any right to receive payments from the Net WAC
Rate Carryover Reserve Account or the Swap Account, or the
obligation to make payments to the Swap Account), the Class
CE-1 Interest and the Class CE-2 Interest, Class P Interest
(exclusive of the right to receive any Servicer Prepayment
Charge Payment Amounts) and the Class Swap-IO Interest will
represent ownership of "regular interests" in REMIC III and
will generally be treated as debt instruments of REMIC III,
and the Class R-III Interest will constitute the sole class of
"residual interests" in REMIC III, (v) the Class CE-1
Certificates will represent ownership of the "regular
interests" in REMIC IV, and the Class R-IV Interest will
constitute the sole class of "residual interests" in REMIC IV,
(vi) the Class P Certificates will represent ownership of the
"regular interests" in REMIC V, and the Class R-V Interest
will constitute the sole class of "residual interests" in
REMIC V, (vii) REMIC VI Regular Interest Swap-IO will
represent ownership of the "regular interests" in REMIC VI,
and the Class R-VI Interest will constitute the sole class of
"residual interests" in REMIC VI and (viii) the Class CE-2
Certificates will represent ownership of the "regular
interests" in REMIC VII, and the Class R-VII Interest will
constitute the sole class of "residual interests" in REMIC
VII.
To ensure compliance with requirements imposed by the U.S. Internal
Revenue Service, any U.S. federal tax advice contained herein, as to which each
taxpayer should seek advice based on the taxpayer's particular circumstances
from an independent tax advisor, (i) is not intended or written to be used, and
cannot be used, for the purpose of avoiding penalties under the Internal Revenue
Code and (ii) is written in connection with the promotion or marketing of the
transaction or matters addressed herein.
We hereby consent to the filing of this opinion letter as an Exhibit to
the Registration Statement, and to the use of our name in the prospectus and
prospectus supplement included in the Registration Statement under the headings
"Federal Income Tax Consequences" and "Legal Matters," without admitting that we
are "persons" within the meaning of Section 7(a) or 11(a)(4) of the 1933 Act, or
"experts" within the meaning of Section 11 thereof, with respect to any portion
of the Registration Statement.
Very truly yours,
By: /s/ XXXXXXX XXXXXXXX & XXXX LLP
