EXHIBIT 5.1
[Letterhead of Xxxxxxx Xxxxxxxx & Xxxx LLP]
August 4, 2004
Bear, Xxxxxxx & Co. Inc. Financial Guaranty Insurance Company
as Representative of the several Underwriters 125 Park Avenue
000 Xxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
Federal National Mortgage Association
Mail Stop 2H-3S
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Opinion: Underwriting Agreement
New Century Home Equity Loan Trust, Series 2004-A
Asset Backed Pass-Through Certificates
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Ladies and Gentlemen:
We have acted as counsel to NC Capital Corporation (the "Seller") and
New Century Mortgage Securities, Inc. (the "Depositor") in connection with (i)
the Mortgage Loan Purchase Agreement, dated August 2, 2004 (the "Seller Sale
Agreement"), between the Seller and the Depositor, (ii) the Pooling and
Servicing Agreement, dated as of July 1, 2004 (the "Pooling and Servicing
Agreement"), among the Depositor, Countrywide Home Loans Servicing LP and GMAC
Mortgage Corporation (the "Servicers"), Federal National Mortgage Association
(the "Guarantor"or "Xxxxxx Xxx") and Deutsche Bank National Trust Company (the
"Trustee"), and the certificates issued pursuant thereto designated as Asset
Backed Pass-Through Certificates, Series 2004-A (the "Certificates"), (iii) the
Commitment Letter, dated August 2, 2004 (the "Commitment Letter"), among the
Depositor, the Seller, New Century Mortgage Corporation, Bear, Xxxxxxx & Co.
Inc. and Xxxxxx Xxx, pursuant to which certain Certificates were sold
(collectively the "Xxxxxx Xxx Certificates"), (iv) the Insurance and Indemnity
Agreement, dated as of August 4, 2004 (the "Insurance Agreement"), among the
Seller, the Depositor, New Century Home Equity Loan Trust 2004-A by the Trustee,
the Trustee and Financial Guaranty Insurance Company, (v) the Underwriting
Agreement, dated August 2, 2004 (the "Underwriting Agreement"), between the
Depositor and Bear, Xxxxxxx & Co. Inc. (the "Representative") pursuant to which
certain Certificates were sold (collectively, the "Underwritten Certificates"),
(vi) the Prospectus Supplement, dated August 2, 2004 (the "Prospectus
Supplement"), and the Prospectus to which it relates, dated April 19, 2004 (the
"Base Prospectus"together with the Prospectus Supplement, the "Prospectus"),
(vi) the Information Circular, dated August 2, 2004 (the "Information
Circular"), relating to the Xxxxxx Xxx Certificates, (vii) the Indemnification
Agreement, dated August 2, 2004 (the "Countrywide Indemnification Agreement"),
between Countrywide Home Loans Servicing LP and the Depositor
and (viii) the Indemnification Agreement, dated August 2, 2004 (the "GMAC
Indemnification Agreement"), between GMAC Mortgage Corporation and the
Depositor. The Seller Sale Agreement, the Pooling and Servicing Agreement, the
Commitment Letter, the Insurance Agreement, the Underwriting Agreement, the
Prospectus, the Information Circular, the Countrywide Indemnification Agreement
and the GMAC Indemnification 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
the opinions expressed below, with your permission we have assumed, and are
relying thereon without independent investigation, (i) the authenticity of all
documents submitted to us as originals or as copies thereof, and the conformity
to the originals of all documents submitted to us as copies, (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 authorization, execution, delivery and
enforceability of all documents, and the necessary entity power 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 and that renders any of the opinions expressed below inconsistent
with such document as so modified or supplemented. In rendering this opinion
letter, except for the matters that are specifically addressed in the opinions
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.
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) bankruptcy, insolvency, receivership,
reorganization, liquidation, voidable preference, fraudulent conveyance and
transfer, moratorium and other similar laws affecting the rights of creditors or
secured parties, (iii) the effect of certain laws, regulations and judicial and
other decisions upon (a) 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 judicial jurisdiction, venue
or forum and (b) the enforceability of any provision the violation of which
would not have any material adverse effect on the performance by any party of
its obligations under any agreement and (iv) public policy considerations
underlying United States federal 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 provisions
referred to in foregoing clause (iii) 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 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.
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 have no actual present
knowledge of the inaccuracy of any fact relied upon in rendering this opinion
letter. In addition, if we indicate herein that any opinion is based on our
knowledge, our opinion is based solely on the actual present knowledge of such
attorneys, and, with respect to the opinions in paragraphs 5(ii) and (iii) and 6
below, the Certificate of New Century Mortgage Corporation, a copy of which is
annexed as Exhibit A and the accuracy of which with your permission we are
relying on without independent investigation 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"). 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:
(d) The Depositor has been legally incorporated under the laws of
the State of Delaware and, based upon a certificate of good
standing issued by that State, is validly existing as a
corporation in good standing under the laws of that State, and
has the requisite entity power and authority to execute and
deliver each Agreement to which it is a party and to perform
its obligations thereunder.
(e) Each of the Agreements to which the Depositor is a party (to
the extent that the laws of the State of New York are
designated therein as the governing law thereof) has been duly
authorized, executed and delivered by such party. The
issuance, offer, sale and delivery of the Certificates have
been duly authorized by the Depositor.
(f) Each of the Agreements to which the Depositor or the Seller is
a party (to the extent that the laws of the State of New York
are designated therein as the governing law thereof), assuming
the necessary authorization, execution and delivery thereof by
the parties thereto (other than any party as to which we opine
to that effect herein) and the enforceability thereof against
the other parties thereto, is a valid and legally
binding agreement under the laws of the State of New York,
enforceable thereunder in accordance with its terms against
the Depositor or the Seller, as the case may be.
4. The Certificates, assuming the necessary authorization,
execution, authentication and delivery thereof and payment
therefor in accordance with the applicable Agreements, are
validly issued and outstanding and are entitled to the
benefits of the Pooling and Servicing Agreement.
5. With respect to the Depositor, the performance of its
obligations under each of the Agreements to which it is a
party and the consummation of the transactions contemplated
thereby will not result in (i) any breach or violation of its
certificate of incorporation or bylaws, (ii) to our knowledge,
any breach, violation or acceleration of or default under any
indenture or other material agreement or instrument to which
it is a party or by which it is bound or (iii) to our
knowledge, any order of any United States federal or State of
New York court, agency or other governmental body.
6. With respect to the Depositor, to our knowledge, there is no
legal action, suit, proceeding or investigation before any
court, agency or other governmental body pending or threatened
(by written communication to it of a present intention to
initiate such action, suit or proceeding) against it, which,
either in one instance or in the aggregate, draws into
question the validity of, seeks to prevent the consummation of
any of the transactions contemplated by or would impair
materially its ability to perform its obligations under any of
the Agreements to which it is a party.
7. With respect to the Depositor, the performance of its
obligations under each of the Agreements to which it is a
party and the consummation of the transactions contemplated
thereby do not require any consent, approval, authorization or
order of, filing with or notice to any United States federal
or State of New York court, agency or other governmental body
under any United States federal or State of New York statute
or regulation that in our experience is normally applicable to
transactions of the type contemplated by the Agreements,
except such as may be required under the securities laws of
any State of the United States or such as have been obtained,
effected or given.
8. With respect to the Depositor, the performance of its
obligations under each of the Agreements to which it is a
party and the consummation of the transactions contemplated
thereby will not result in any breach or violation of any
United States federal or State of New York statute or
regulation that in our experience is normally applicable to
transactions of the type contemplated by the Agreements.
9. The Registration Statement has become effective under the 1933
Act. In that regard, this is to inform you that, 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 1933 Act.
10. The Registration Statement as of the date of the Prospectus
Supplement and the date hereof, and the Prospectus as of the
date of the Prospectus Supplement and the date hereof, other
than any financial and statistical information and other
marketing materials, including without limitation those
generally described as term sheets and computational
materials, as to which we express no opinion herein, complied
as to form in all material respects with the requirements of
the 1933 Act and the applicable rules and regulations
thereunder.
11. To our knowledge, there are no material contracts, indentures
or other documents 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 any other marketing materials, including
without limitation those generally described as term sheets
and computational materials, as to which we express no opinion
herein, and those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
12. The statements made in the Base Prospectus under the heading
"Description of the Securities" and in the Prospectus
Supplement under the heading "Description of the
Certificates", insofar as such statements purport to summarize
certain provisions thereof, provide a fair summary of such
provisions. The statements made in the Base Prospectus under
the headings "Legal Aspects of Mortgage Loans--Applicability
of Usury Laws," and "--Alternative Mortgage Instruments" and
in the Base Prospectus and in the Prospectus Supplement under
the heading "Considerations for Benefit Plan Investors", to
the extent those statements they constitute matters of United
States federal or State of New York 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
13. The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
The Trust Fund created by the Pooling and Servicing Agreement
is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
This opinion letter is rendered for the sole benefit of each addressee
hereof with respect to the matters specifically addressed herein, and no other
person or entity is entitled to rely hereon. Copies of this opinion letter may
not be made available, and this opinion letter may not be quoted or referred to
in any other document made available, to any other person or entity except (i)
to any applicable rating agency, institution providing credit enhancement or
liquidity support or
governmental authority, (ii) to any accountant or attorney for any person or
entity entitled hereunder to rely hereon or to whom or which this opinion letter
may be made available as provided herein and (iii) as otherwise required by law;
provided that none of the foregoing is entitled to rely hereon unless an
addressee hereof. We assume no obligation to revise, supplement or withdraw this
opinion letter, or otherwise inform any addressee hereof or other person or
entity, with respect to any change occurring subsequent to the delivery hereof
in any applicable fact or law or any judicial or administrative interpretation
thereof, even though such change may affect a legal analysis or conclusion
contained herein. In addition, no attorney-client relationship exists or has
existed by reason of this opinion letter between our firm and any addressee
hereof or other person or entity except for any addressee that is identified in
the first paragraph hereof as a person or entity for which we have acted as
counsel in rendering this opinion letter. In permitting reliance hereon by any
person or entity other than such an addressee for which we have acted as
counsel, we are not acting as counsel for such other person or entity and have
not assumed and are not assuming any responsibility to advise such other person
or entity with respect to the adequacy of this opinion letter for its purposes.
Very truly yours,
By: /s/ Xxxxxxx Xxxxxxxx & Xxxx LLP
