EXHIBIT 1.1
NEW CENTURY MORTGAGE SECURITIES LLC
$[_________________] (Approximate)
New Century Home Equity Loan Trust, Series 200_-_
Asset Backed Pass-Through Certificates
UNDERWRITING AGREEMENT
New York, New York
[_________, __] 200_
[___________________]
as Representative
[___________________]
[___________________]
Dear Sir or Madam:
New Century Mortgage Securities LLC (the "Company"), a Delaware limited
liability company, proposes to issue New Century Home Equity Loan Trust, Series
200_-_, Asset Backed Pass-Through Certificates (the "Certificates"), under a
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of [___________], among the Company, [_______________], as servicer (the
"Servicer") and [_____________], as trustee (the "Trustee"), and proposes to
sell the Underwritten Certificates to the underwriters named in Schedule II
hereto (the "Underwriters"), for whom you are acting as representative (the
"Representative"). The Certificates are designated as (i) the Class A-[_]
Certificates (collectively, the "Class A Certificates"); and (ii) the Class
M-[__] Certificates (collectively, the "Mezzanine Certificates"); and the Class
CE-1, Class CE-2, Class P, Class R, and Class R-X Certificates (collectively,
(except for the Class CE-2 Certificates, which are not being retained) the
"Retained Certificates"). All classes of Certificates, other than the Retained
Certificates, collectively, are the "Underwritten Certificates."
The Certificates will represent in the aggregate the entire beneficial
ownership interest in a trust fund (the "Trust Fund") consisting primarily of a
segregated pool (the "Mortgage Pool") of one- to four-family, adjustable-and
fixed-rate, first lien and second lien mortgage loans (the "Mortgage Loans")
originated or acquired by [_____________] (the "Originator"). Each Mortgage Loan
provides for an original term to maturity of not greater than 30 years. The
Mortgage Loans will be acquired by the Company from [_____________] ("[______]"
or the "Seller") in exchange for immediately available funds in an amount equal
to the net sale proceeds of the Underwritten Certificates and the delivery of
the Retained Certificates to the Seller or its designee. The Certificates are
described more fully in Schedule I hereto and in a registration statement which
the Company has furnished to you.
This is to confirm the arrangements with respect to your purchase of
the Underwritten Certificates.
Capitalized terms used but not defined herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
1. REPRESENTATIONS AND WARRANTIES: The Company represents and
warrants to, and agrees with, each Underwriter that as of the
date of the Preliminary Prospectus, as of the date of the
Final Prospectus and as of the Closing Date:
(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3 (the file number of which is
set forth in Schedule I hereto), for the registration
of the Underwritten Certificates under the Securities
Act of 1933, as amended (the "1933 Act"), which
registration statement has become effective and
copies of which have heretofore been delivered to
you. Such registration statement, as amended as of
the date hereof, meets the requirements set forth in
Rule 415(a)(1)(vii) under the 1933 Act and complies
in all other material respects with the 1933 Act and
the rules and regulations thereunder. The Company
proposes to file with the Commission pursuant to Rule
424 under the 1933 Act a supplement to the form of
prospectus included in such registration statement
relating to the Underwritten Certificates and the
plan of distribution thereof, and has previously
advised you of all further information (financial and
other) with respect to the Certificates and the
Mortgage Pool to be set forth therein. Such
registration statement, including the exhibits
thereto, as amended as of the date hereof, is
hereinafter called the "Registration Statement;" the
prospectus included in the Registration Statement
after the Registration Statement, as amended, became
effective, or as subsequently filed with the
Commission pursuant to Rule 424 under the 1933 Act,
is hereinafter called the "Base Prospectus;" the form
of prospectus supplemented by the supplement to the
form of prospectus relating to the Underwritten
Certificates, in the form in which it shall be first
filed with the Commission pursuant to Rule 424
(including the Base Prospectus as so supplemented) is
hereinafter called a "Final Prospectus." The
preliminary prospectus dated the date hereof and that
will be filed pursuant to Rule 424, is hereinafter
called the "Preliminary Prospectus." The Company will
file with the Commission within fifteen days of the
issuance of the Certificates a report on Form 8-K
setting forth specific information concerning the
Underwritten Certificates and the Mortgage Pool to
the extent that such information is not set forth in
the Final Prospectus.
(b) As of the date hereof, when the Final Prospectus is
first filed pursuant to Rule 424 under the 1933 Act,
when, prior to the Closing Date (as hereinafter
defined), any amendment to the Registration Statement
becomes effective, when any supplement to the Final
Prospectus is filed with the Commission, and at the
Closing Date, (i) the Registration Statement, as
amended as of any such time, the Final Prospectus, as
amended or supplemented as of any such time, and the
Preliminary Prospectus as of the date hereof comply
and will comply in all material respects with the
applicable requirements of the 1933 Act and the rules
and regulations thereunder, (ii) the Registration
Statement, as amended as of any such time, does not
and will not contain any untrue statement of material
fact and does not and will not omit to state any
material fact required to be stated therein or
necessary in order to make the statements therein not
misleading, and (iii) the Final Prospectus, as
amended or supplemented as of any such time, and the
Preliminary Prospectus as of the date hereof do not
and will not contain any untrue statement of a
material fact and do not and will not omit to state a
material fact necessary to make the statements
therein, in the light of the circumstances under
which they were made, not misleading; PROVIDED,
-------- HOWEVER, that the Company makes no
representations or warranties as to the information
------- contained in or omitted from the Registration
Statement, the Preliminary Prospectus or Final
Prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with the
information furnished in writing to the Company by or
on behalf of any Underwriter through the
Representative specifically for use in connection
with the preparation of the Registration Statement
and the Final Prospectus (the "Underwriters'
Information"). The Underwriters' Information is
limited to the following information in the
Preliminary Prospectus and the Prospectus Supplement:
under the caption "Method of Distribution," the first
sentence of the second and sixth paragraphs.
(c) The Company has been duly formed and is validly
existing as a limited liability company in good
standing under the laws of the State of Delaware with
full power and authority (corporate and other) to own
its properties and conduct its business as now
conducted by it and to enter into and perform its
obligations under this Agreement, the Pooling and
Servicing Agreement and the Mortgage Loan Purchase
Agreement, dated as of the date hereof (the "Mortgage
Loan Purchase Agreement"), between the Company and
[______]; and the Company has received no notice of
proceedings relating to the revocation or
modification of any license, certificate, authority
or permit applicable to its owning such properties or
conducting such business which singly or in the
aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially and adversely
affect the conduct of the business, operations,
financial condition or income of the Company.
(d) As of the date hereof, when the Final Prospectus is
first filed pursuant to Rule 424 under the 1933 Act,
when, prior to the Closing Date (as hereinafter
defined), any amendment to the Registration Statement
becomes effective, when any supplement to the Final
Prospectus is filed with the Commission, and at the
Closing Date, there has not and will not have been
(i) any request by the Commission for any further
amendment of the Registration Statement or the Final
Prospectus or for any additional information, (ii)
any issuance by the Commission of any stop order
suspending the effectiveness of the Registration
Statement or the institution or threatening of any
proceeding for that purpose or (iii) any notification
with respect to the suspension of the qualification
of the Underwritten Certificates for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose.
(e) This Agreement and the Mortgage Loan Purchase
Agreement have been, and the Pooling and Servicing
Agreement when executed and delivered as contemplated
hereby and thereby will have been, duly authorized,
executed and delivered by the Company and each
constitutes, or will constitute when so executed and
delivered, a legal, valid and binding agreement of
the Company, enforceable against the Company in
accordance with its terms, except as enforceability
may be limited by (i) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization
or other similar laws affecting the enforcement of
the rights of creditors, (ii) general principles of
equity, whether enforcement is sought in a proceeding
in equity or at law and (iii) public policy
considerations underlying the securities laws, to the
extent that such public policy considerations limit
the enforceability of the provisions of this
Agreement that purport to provide indemnification
from securities law liabilities.
(f) The Certificates and the Pooling and Servicing
Agreement will conform in all material respects to
the description thereof contained in the Final
Prospectus, and the Underwritten Certificates, when
duly and validly authorized, executed, authenticated
and delivered in accordance with the Pooling and
Servicing Agreement and paid for by the Underwriters
as provided herein, will be entitled to the benefits
of the Pooling and Servicing Agreement. On the
Closing Date, the Pooling and Servicing Agreement
will be effective to establish the Trust Fund as a
valid trust under the laws of the State of New York.
(g) As of the Closing Date, the Mortgage Loans will meet
the criteria for selection described in the
Preliminary Prospectus and the Final Prospectus, and
on the Closing Date, the representations and
warranties of the Company with respect to the
Mortgage Loans contained in the Pooling and Servicing
Agreement, will be true and correct in all material
respects.
(h) None of the issuance and sale of the Certificates,
the execution and delivery by the Company of this
Agreement, the Mortgage Loan Purchase Agreement or
the Pooling and Servicing Agreement, the consummation
by the Company of any of the transactions herein or
therein contemplated, or compliance by the Company
with the provisions hereof or thereof, will conflict
with or result in a breach of any term or provision
of the certificate of formation of the Company or
conflict with, result in a breach, violation or
acceleration of or constitute a default under, the
terms of any indenture or other agreement or
instrument to which the Company or any of its
affiliates is a party or by which it or any of them
is bound, or any statute, order or regulation
applicable to the Company or any of its affiliates of
any court, regulatory body, administrative agency or
governmental body having jurisdiction over the
Company or any of its affiliates. Neither the Company
nor any of its affiliates is a party to, bound by or
in breach or violation of any indenture or other
agreement or instrument, or subject to or in
violation of any statute, order or regulation of any
court, regulatory body, administrative agency or
governmental body having jurisdiction over it, which
materially and adversely affects, or may in the
future materially and adversely affect, (i) the
validity or enforceability of, or the ability of the
Company to perform its obligations under, this
Agreement, the Mortgage Loan Purchase Agreement or
the Pooling and Servicing Agreement or (ii) the
business, operations, financial conditions,
properties or assets of the Company.
(i) There are no actions or proceedings against, or
investigations of, the Company pending, or, to the
knowledge of the Company, threatened, before any
court, administrative agency or other tribunal (i)
asserting the invalidity of this Agreement, the
Mortgage Loan Purchase Agreement, the Pooling and
Servicing Agreement or the Certificates, (ii) seeking
to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated
by this Agreement, the Mortgage Loan Purchase
Agreement or the Pooling and Servicing Agreement,
(iii) that might materially and adversely affect the
performance by the Company of its obligations under,
or the validity or enforceability of, this Agreement,
the Mortgage Loan Purchase Agreement, the Pooling and
Servicing Agreement or the Certificates, or (iv)
seeking to affect adversely the federal income tax
attributes of the Certificates as described in the
Final Prospectus.
(j) There has not been any material adverse change in the
business, operations, financial condition, properties
or assets of the Company since [_________________].
(k) Any taxes, fees and other governmental charges
payable by the Company in connection with the
execution, delivery and issuance of this Agreement,
the Mortgage Loan Purchase Agreement and the Pooling
and Servicing Agreement or the execution, delivery
and sale or transfer of the Certificates have been or
will be paid at or prior to the Closing Date.
(l) The Company is not, and the issuance and sale of the
Certificates in the manner contemplated by the
Preliminary Prospectus or the Final Prospectus will
not cause the Company to be, subject to registration
or regulation as an investment company or affiliate
of an investment company under the Investment Company
Act of 1940, as amended (the "Investment Company
Act").
(m) As of the Effective Date and as of the date of the
Contract of Sale, the Depositor is not an "ineligible
issuer" as defined in Rule 405 under the 1933 Act.
1.A REPRESENTATIONS OF THE SEVERAL UNDERWRITERS. Each Underwriter
hereby represents and agrees, severally and not jointly, that
in relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a
"Relevant Member State"), with effect from and including the
date on which the Prospectus Directive is implemented in that
Relevant Member State (the "Relevant Implementation Date") it
has not made and will not make an offer of the Certificates to
the public in that Relevant Member State prior to the
publication of a prospectus in relation to the Certificates
which has been approved by the competent authority in that
Relevant Member State or, where appropriate, approved in
another Relevant Member State and notified to the competent
authority in that Relevant Member State, all in accordance
with the Prospectus Directive, except that it may, with effect
from and including the Relevant Implementation Date, make an
offer of the Certificates to the public in that Relevant
Member State at any time:
(a) to legal entities which are authorized or regulated
to operate in the financial markets or, if not so
authorized or regulated, whose corporate purpose is
solely to invest in securities;
(b) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last
financial year; (2) a total balance sheet of more
than (euro)43,000,000 and (3) an annual net turnover
of more than (euro)50,000,000, as shown in its last
annual or consolidated accounts; or
(c) in any other circumstances which do not require the
publication by the Depositor of a prospectus pursuant
to Article 3 of the Prospectus Directive.
For the purposes of this representation, the expression an
"offer of the Certificates to the public" in relation to any
Certificates in any Relevant Member State means the
communication in any form and by any means of sufficient
information on the terms of the offer and the Certificates to
be offered so as to enable an investor to decide to purchase
or subscribe the Certificates, as the same may be varied in
that Member State by any measure implementing the Prospectus
Directive in that Member State, and the expression "Prospectus
Directive" means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
Each Underwriter, severally and not jointly, hereby further
represents and agrees, with respect to the United Kingdom,
that:
(i) it has only communicated or caused to be communicated
and will only communicate or cause to be communicated
an invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the
Financial Services and Markets Act) received by it in
connection with the issue or sale of the Notes in
circumstances in which Section 21(1) of the Financial
Services and Markets Act does not apply to the
Issuer; and
(ii) it has complied and will comply with all applicable
provisions of the Financial Services and Markets Act
with respect to anything done by it in relation to
the Certificates in, from or otherwise involving the
United Kingdom.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties set forth
herein, the Company agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to
purchase from the Company on the Closing Date, at the
applicable purchase price set forth in Schedule I hereto, the
respective portions of the Underwritten Certificates set forth
opposite such Underwriter's name in the "Method of
Distribution" section of the Prospectus Supplement.
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Underwritten Certificates shall be made in the manner, on the
date and at the time specified in Schedule I hereto (or such
later date not later than seven business days after such
specified date as the Representative shall designate), which
date and time may be postponed by agreement between the
Representative and the Company or as provided in Section 9
hereof (such date and time of delivery and payment for the
Underwritten Certificates being herein called the "Closing
Date"). Delivery of the Underwritten Certificates, as set
forth on Schedule I hereto, shall be made to the
Representative for the respective accounts of the several
Underwriters against payment in same day Federal funds by the
several Underwriters of the applicable purchase price. The
Underwritten Certificates shall be registered in such names
and in such authorized denominations as the Representative may
request not less than three full business days in advance of
the Closing Date.
The Company agrees to have the Underwritten Certificates available for
inspection, checking and packaging by the Representative in New York,
New York, not later than 1:00 p.m. New York time on the business day
prior to the Closing Date.
4. OFFERING BY UNDERWRITERS.
(a) It is understood that the several Underwriters
propose to offer the Underwritten Certificates for
sale to the public as set forth in the Final
Prospectus.
(b) Each Underwriter severally covenants and agrees with
the Company as to itself that:
(i) Prior to entering into any Contract of Sale,
the Underwriter shall convey the Preliminary
Prospectus to each prospective investor. The
Underwriter shall keep sufficient records to
document its conveyance of the Preliminary
Prospectus to each potential investor prior
to the related Contract of Sale.
(ii) Unless preceded or accompanied by a
prospectus satisfying the requirements of
Section 10(a) of the Securities Act, the
Underwriter shall not convey or deliver any
written communication to any person in
connection with the initial offering of the
Certificates, unless such written
communication (1) is made in reliance on Rule
134 under the Securities Act, (2) constitutes
a prospectus satisfying the requirements of
Rule 430B under the Securities Act or (3) is
a Free Writing Prospectus.
(iii) An Underwriter may convey a Preliminary Term
Sheet to a potential investor prior to
entering into a Contract of Sale with such
investor; provided, however, that (x) such
Underwriter shall not enter into a Contract
of Sale with such investor unless the
Underwriter has complied with paragraph (i)
above prior to such Contract of Sale, (y)
such Underwriter shall deliver a copy of the
proposed Preliminary Term Sheet to the
Depositor and its counsel prior to the
anticipated first use and shall not convey
any such Preliminary Term Sheet to which the
Depositor or its counsel reasonably objects.
(iv) An Underwriter may convey Computational
Materials (x) to a potential investor prior
to entering into a Contract of Sale with such
investor; provided, however, that (A) such
Underwriter shall not enter into a Contract
of Sale with such investor unless the
Underwriter has complied with paragraph (i)
above prior to such Contract of Sale and (B)
such Computational Materials shall not be
disseminated in a manner reasonably designed
to lead to its broad unrestricted
dissemination; provided, however, that if
such Computational Materials are disseminated
in a manner reasonably designed to lead to
its broad unrestricted dissemination, such
Underwriter shall file with the Commission
such Computational Materials, and (y) to an
investor after a Contract of Sale, provided
that the Underwriter has complied with
paragraph (i) above in connection with such
Contract of Sale. The Underwriter shall keep
sufficient records of any conveyance of
Computational Materials to potential or
actual investors and shall maintain such
records as required by the Rules and
Regulations.
(v) If an Underwriter does not furnish a Free
Writing Prospectus to the Depositor's counsel
prior to the scheduled print date of the
Final Prospectus, such Underwriter will be
deemed to have represented that it did not
convey any Free Writing Prospectus to any
potential investor.
(vi) Each Free Writing Prospectus shall contain
legends that are substantially similar to the
following:
The issuer has filed a registration statement
(including a prospectus) with the SEC for the
offering to which this free writing prospectus
relates. Before you invest, you should read the
prospectus in that registration statement and other
documents the issuer has filed with the SEC for more
complete information about the issuer and this
offering. You may get these documents for free by
visiting XXXXX on the SEC Web site at XXX.XXX.XXX.
Alternatively, the issuer, any underwriter or any
dealer participating in the offering will arrange to
send you the prospectus if you request it by calling
toll-free 1-8[zz-zzz-zzzz].
This free writing prospectus does not contain all
information that is required to be included in the
base prospectus and the prospectus supplement.
The information in this free writing prospectus
supersedes information contained in any prior similar
free writing prospectus relating to these securities
prior to the time of your commitment to purchase.
The asset-backed securities referred to in this free
writing prospectus are being offered when, as and if
issued. In particular, you are advised that
asset-backed securities, and the asset pools backing
them, are subject to modification or revision
(including, among other things, the possibility that
one or more classes of securities may be split,
combined or eliminated), at any time prior to
issuance or availability of a final prospectus. As a
result, you may commit to purchase securities that
have characteristics that may change, and you are
advised that all or a portion of the securities may
not be issued that have the characteristics described
in this free writing prospectus. Our obligation to
sell securities to you is conditioned on the
securities having the characteristics described in
this free writing prospectus. If that condition is
not satisfied, we will notify you, and neither the
issuer nor [the] [any] underwriter will have any
obligation to you to deliver all or any portion of
the securities which you have committed to purchase,
and there will be no liability between us as a
consequence of the non-delivery.
This free writing prospectus is being delivered to
you solely to provide you with information about the
offering of the asset-backed securities referred to
in this free writing prospectus and to solicit an
indication of your interest in purchasing such
securities, when, as and if issued. Any such
indication of interest will not constitute a
contractual commitment by you to purchase any of the
securities.
(vii) Any Computational Materials shall include
legends, in addition to those specified in
paragraph (vi) above, substantially similar
to the following:
The information in this free writing prospectus may
be based on preliminary assumptions about the pool
assets and the structure. Any such assumptions are
subject to change.
The information in this free writing prospectus may
reflect parameters, metrics or scenarios specifically
requested by you. If so, prior to the time of your
commitment to purchase, you should request updated
information based on any parameters, metrics or
scenarios specifically required by you.
Neither the issuer of the securities nor any of its
affiliates prepared, provided, approved or verified
any statistical or numerical information presented in
this free writing prospectus, although that
information may be based in part on loan level data
provided by the issuer or its affiliates.
(viii) Each Underwriter severally agrees to retain
all Free Writing Prospectuses that it has
used and that are not required to be filed
pursuant to this Section 4 for a period of
three years following the initial bona fide
offering of the Underwritten Certificates.
(c) The following terms shall have the meanings set forth
below, unless the context clearly indicates
otherwise:
COMPUTATIONAL MATERIALS: Any Free Writing Prospectus
prepared by the Underwriter that contains only (i) information
of the type specified in paragraph (5) of the definition of
ABS Informational and Computational Materials in Item 1101(a)
of Regulation AB or (ii) information that is not Issuer
Information.
CONTRACT OF SALE: The meaning set forth in Rule 159
under the 1933 Act.
DERIVED INFORMATION: Such information, if any, in any
Free Writing Prospectus prepared by any Underwriter that is
not contained in either (i) the Registration Statement, the
Base Prospectus, any Preliminary Prospectus or Final
Prospectus or amendments or supplements thereto, taking into
account information incorporated therein by reference (other
than information incorporated by reference from any) or (ii)
any Pool Information, except to the extent that any omission
or alleged omission in Derived Information results from a Pool
Error.
FREE WRITING PROSPECTUS: A "written communication"
within the meaning of Rule 405 under the 1933 Act that
describes the Certificates and/or the Mortgage Loans.
ISSUER INFORMATION: Such information as defined in
Rule 433(h) under the 1933 Act and which shall not include (i)
information that is merely based on or derived from such
information or (ii) any Excluded Information.
ISSUER FREE WRITING PROSPECTUS: The meaning set forth
in Rule 405 of the 1933 Act except that (i) Computational
Materials shall not be an Issuer Free Writing Prospectus and
(ii) any Free Writing Prospectus or portion thereof prepared
by or on behalf of an Underwriter that includes any Issuer
Information that is not approved by the Depositor for use
therein shall not be an Issuer Free Writing Prospectus.
PRELIMINARY TERM SHEET: A Free Writing Prospectus
that contains information of the type described in paragraphs
(1) - (3) of the definition of ABS Informational and
Computational Materials in Item 1101(a) of Regulation AB but
which does not include Derived Information.
(d) (i) In the event that any Underwriter or the Company
becomes aware that, as of the time of the Contact of
Sale, any Free Writing Prospectus prepared by or on
behalf of the Underwriter and delivered to a
purchaser of an Underwritten Certificate contained
any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the
statements contained therein, in light of the
circumstances under which they were made, not
misleading (such Free Writing Prospectus, a
"Defective Free Writing Prospectus"), the Underwriter
of the Company shall notify the other parties to this
Agreement within one business day after discovery.
(ii) The party responsible for the information to
be corrected, if requested by the Company or
an Underwriter, as appropriate, shall prepare
a Free Writing Prospectus with Corrective
Information that corrects the material
misstatement in or omission from the
Defective Free Writing Prospectus (such
corrected Free Writing Prospectus, a
"Corrected Free Writing Prospectus").
(iii) The Underwriters shall deliver the Corrected
Free Writing Prospectus to each purchaser of
an Underwritten Certificate which received
the Defective Free Writing Prospectus prior
to entering into an agreement to purchase any
Underwritten Certificates.
(iv) The Underwriters shall notify such purchaser
in a prominent fashion that the prior
agreement to purchase Underwritten
Certificates has been terminated, and of such
purchaser's rights as a result of termination
of such agreement.
(v) The Underwriters shall provide such purchaser
with an opportunity to affirmatively agree to
purchase such Underwritten Certificates on
the terms described in the Corrected Free
Writing Prospectus.
(e) Each Underwriter covenants with the Company that
after the Final Prospectus is available, the
Underwriter shall not distribute any written
information concerning the Underwritten Certificates
to a prospective purchaser of Underwritten
Certificates unless such information is preceded or
accompanied by the Final Prospectus.
5. AGREEMENTS. The Company agrees with the several Underwriters
that:
(a) The Company will not file any amendment to the
Registration Statement or supplement to (including
the supplement relating to the Underwritten
Certificates included in the Final Prospectus) the
Base Prospectus, unless the Company has furnished to
you a copy for your review prior to filing, and will
not file or distribute any such proposed amendment or
supplement to which you reasonably object. Subject to
the foregoing sentence, the Company will cause the
Preliminary Prospectus and the Final Prospectus to be
transmitted to the Commission for filing pursuant to
Rule 424 under the 1933 Act. The Company will
promptly advise the Representative (i) when the
Preliminary Prospectus and the Final Prospectus shall
have been filed or transmitted to the Commission for
filing pursuant to Rule 424, (ii) when any amendment
to the Registration Statement shall have become
effective, (iii) of any request by the Commission for
any amendment of the Registration Statement, the
Preliminary Prospectus or the Final Prospectus or for
any additional information, (iv) of the issuance by
the Commission of any stop order suspending the
effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that
purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Underwritten Certificates for
sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the
issuance of any such stop order or suspension and, if
issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the
Underwritten Certificates is required to be delivered
under the 1933 Act, any event occurs as a result of
which any Final Prospectus as then amended or
supplemented would include any untrue statement of a
material fact or omit to state any material fact
necessary to make the statements therein in the light
of the circumstances under which they were made not
misleading, or if it shall be necessary to amend or
supplement the Final Prospectus to comply with the
1933 Act or the rules and regulations thereunder, the
Company will promptly prepare and file with the
Commission, subject to paragraph (a) of this Section
5, an amendment or supplement that will correct such
statement or omission or an amendment that will
effect such compliance and, if such amendment or
supplement is required to be contained in a
post-effective amendment of the Registration
Statement, will use its best efforts to cause such
amendment of the Registration Statement to be made
effective as soon as possible.
(c) The Company will (i) furnish to the Representative
and counsel for the Underwriters, without charge,
signed copies of the Registration Statement
(including exhibits thereto) and each amendment
thereto that shall become effective on or prior to
the Closing Date, and to each other Underwriter a
copy of the Registration Statement (without exhibits
thereto) and each such amendment and, so long as
delivery of a prospectus by an Underwriter or dealer
in connection with the Underwritten Certificates may
be required by the 1933 Act, as many copies of the
Preliminary Prospectus, the Final Prospectus and any
amendments thereof and supplements thereto as the
Representative may reasonably request, and (ii) file
promptly all reports and any definitive proxy or
information statements required to be filed by the
Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "1934 Act"), subsequent
to the date of the Final Prospectus and for so long
as the delivery of a prospectus by an Underwriter or
dealer in connection with the Underwritten
Certificates may be required under the 1933 Act.
(d) So long as the Certificates shall be outstanding, the
Company will deliver to the Representative the annual
statement as to compliance delivered to the Trustee
pursuant to Section 3.20 of the Pooling and Servicing
Agreement and the annual statement of a firm of
independent public accountants furnished to the
Trustee pursuant to Section 3.21 of the Pooling and
Servicing Agreement, as soon as such statements are
furnished to the Company. The Company will request
that the Servicer and the Trustee furnish to the
Underwriters any monthly reports furnished to
Certificateholders pursuant to the Pooling and
Servicing Agreement.
(e) The Company will furnish such information, execute
such instruments and take such action, if any, as may
be required to qualify the Underwritten Certificates
for sale under the laws of such jurisdictions as the
Representative may designate and will maintain such
qualifications in effect so long as required for the
distribution of the Underwritten 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.
(f) The Company will pay, to the extent not paid by the
Seller pursuant to the Mortgage Loan Purchase
Agreement, all costs and expenses in connection with
the transactions herein contemplated, including, but
not limited to: the fees and disbursements of its
counsel; the costs and expenses of printing (or
otherwise reproducing) and delivering the Pooling and
Servicing Agreement and the Certificates; accounting
fees and disbursements; the costs and expenses in
connection with the qualification or exemption of the
Underwritten Certificates under state securities or
blue sky laws, including filing fees and reasonable
fees and disbursements of counsel in connection with
the preparation of any blue sky survey and in
connection with any determination of the eligibility
of the Certificates for investment by institutional
investors and the preparation of any legal investment
survey; the expenses of printing any such blue sky
survey and legal investment survey; the costs and
expenses in connection with the preparation, printing
and filing of the Registration Statement (including
exhibits thereto), the Base Prospectus, the
Preliminary Prospectus and the Final Prospectus, the
preparation and printing of this Agreement and the
furnishing to the Underwriters of such copies of each
Preliminary Final Prospectus and the Final Prospectus
as the Representative may reasonably request, and the
fees of each nationally recognized statistical rating
organization identified in the Final Prospectus
(individually and collectively, the "Rating Agency")
as having rated the Underwritten Certificates. Except
as provided in Section 7 hereof, the Underwriters
shall be responsible for paying all costs and
expenses incurred by them in connection with the
offering of the Underwritten Certificates.
(g) In connection with any transaction contemplated by
this Agreement, the Company and each of its
affiliates maintain customary, arm's-length business
relationships with the Representative and each of its
affiliates, and no fiduciary duty on the part of the
Representative or any of its affiliates is thereby or
hereby intended or created, and the express
disclaimer of any such fiduciary relationship on the
part of the Representative and each of its affiliates
is hereby acknowledged and accepted by the Company
and each of its affiliates.
(h) To the extent that any Underwriter has provided to
the Company a Free Writing Prospectus that such
Underwriter has conveyed to a prospective investor,
the Company will file or cause to be filed with the
Commission such Free Writing Prospectus that is
either an Issuer Free Writing Prospectus (as defined
in Section 4(c) hereof) or contains Issuer
Information as soon as reasonably practicable after
the date of this Agreement, but in any event, not
later than required pursuant to Rules 426 or 433,
respectively, of the 1933 Act.
(i) The Company shall not be required to file (A) any
Free Writing Prospectus, if the information included
therein is included or incorporated by reference in a
prospectus or Free Writing Prospectus previously
filed with the Commission that relates to the
offering of the Certificates, or (B) any Free Writing
Prospectus or portion thereof that contains a
description of the Certificates or the offering of
the Certificates which does not reflect the final
terms thereof.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The several
obligations of the Underwriters to purchase the Underwritten
Certificates shall be subject to the accuracy of the
representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement
filed prior to the Closing Date and as of the Closing Date, to
the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time,
shall have been issued and not withdrawn and no
proceedings for that purpose shall have been
instituted or threatened; and the Final Prospectus
shall have been filed or transmitted for filing with
the Commission in accordance with Rule 424 under the
0000 Xxx.
(b) The Company shall have delivered to you a certificate
of the Company, signed by the President or a vice
president or an assistant vice president of the
Company and dated the Closing Date, to the effect
that the signer of such certificate has carefully
examined the Registration Statement, the Preliminary
Prospectus, Final Prospectus and this Agreement and
that (i) the representations and warranties of the
Company in this Agreement are true and correct in all
material respects as of the Closing Date with the
same effect as if made on the Closing Date, (ii) the
Company has, in all material respects, complied with
all the agreements and satisfied all the conditions
on its part that are required by this Agreement to be
performed or satisfied at or prior to the Closing
Date, (iii) no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge,
threatened, (iv) nothing has come to the attention of
such officer that would lead such officer to believe
that the Preliminary Prospectus or the Final
Prospectus contains any untrue statement of a
material fact or omits to state any material fact
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made, not misleading and (v) subsequent to the
respective dates as of which information is given in
the Final Prospectus, there has not been any material
adverse change in the general affairs capitalization,
financial condition or results of operations of the
Company.
(c) The Underwriters shall have received from (i)
[_______________], counsel for the Company and
[______], and (ii) [______________] counsel for the
Underwriters, favorable opinions, dated the Closing
Date and satisfactory in form and substance to
counsel for the Underwriters.
Such opinion may (x) express its reliance as to
factual matters on the representations and warranties made by,
and on certificates or other documents furnished by officers
of, the parties to this Agreement, the Mortgage Loan Purchase
Agreement and the Pooling and Servicing Agreement, (y) assume
the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties
thereto other than the Company, and (z) be qualified as an
opinion only on the federal laws of the United States of
America, the laws of the State of New York and the corporation
law of the State of Delaware. (d) The Representative shall
have received from [__________], certified public accountants,
two letters, one dated the date hereof and one dated the date
of the Final Prospectus and satisfactory in form and substance
to the Representative and counsel for the Underwriters, to the
effect that they have performed certain specified procedures
as a result of which they determined that certain information
of an accounting, financial or statistical nature set forth in
the Preliminary Prospectus and the Final Prospectus under the
captions "Summary of Prospectus Supplement--The Mortgage
Loans," "Risk Factors" (to the extent of information regarding
the Mortgage Loans therein), and "The Mortgage Pool" agrees
with the records of the Originator.
(e) [Reserved].
(f) The Underwritten Certificates shall have been given
the ratings set forth in Schedule I hereto by the
Rating Agencies.
(g) The Representative shall have received, from counsel
for the Trustee, a favorable opinion, dated the
Closing Date, and in form and substance satisfactory
to the Representative and its counsel, to the effect
that the Pooling and Servicing Agreement has been
duly authorized, executed and delivered by the
Trustee and constitutes the legal, valid and binding
agreement of the Trustee, enforceable in accordance
with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of
creditors rights in general and by general principles
of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law, and
as to such other matters as may be agreed upon by the
Trustee and the Representative.
(h) The Representative shall have received from [______],
in form and substance satisfactory to counsel for the
Underwriters:
(i) An officer's certificate stating that on the
Closing Date, (x) the representations and
warranties of [______] under the Mortgage
Loan Purchase Agreement will be true and
correct and no event has occurred that would
constitute a default thereunder; (y) nothing
has come to the attention of such officer
that would lead such officer to believe that
the information set forth in the Prospectus,
other than the Underwriters' Information and
with respect to any private placement
memorandum, any information of a comparable
nature, contains any untrue statement of a
material fact or omits to state any material
fact necessary in order to make the
statements therein, in light of the
circumstances under which they were made, not
misleading and (z) subsequent to the
respective dates as of which information is
given in the Prospectus Supplement and any
private placement memorandum, there has not
been any material adverse change in the
general affairs, capitalization, financial
condition or results of operations of
[______] or any of its affiliates.
(ii) An officer's certificate relating to the
Mortgage Loan Purchase Agreement and the
obligations of [______] thereunder, and
attached thereto the applicable resolutions
of the board of directors of [______],
together with the copies of the certificate
of incorporation and by-laws of [______] and
a certificate of good standing of [______]
under the laws of the State of California.
(iii) An opinion of in-house counsel to [______] in
form and substance satisfactory to the
Representative and its counsel.
(i) The Representative shall have received from the
Servicer, in form and substance satisfactory to
counsel for the Underwriters:
(i) An officer's certificate stating that on the
Closing Date the representations and
warranties of the Servicer contained in the
Pooling and Servicing Agreement will be true
and correct and no event has occurred with
respect to the Servicer that would constitute
an Event of Default thereunder;
(ii) An officer's certificate relating to the
Pooling and Servicing Agreement and the
obligations of the Servicer thereunder, and
attached thereto the applicable resolutions
of the board of directors of the Servicer,
together with copies of the certificate of
incorporation and by-laws of the Servicer and
a certificate of good standing of the
Servicer (or equivalent limited partnership
documents); and
(iii) The Representative shall have received from
counsel to the Servicer, a favorable opinion,
dated the Closing Date and satisfactory in
form and substance to counsel for the
Underwriters.
(j) The Underwriters shall have received copies of any
opinions of counsel to the Company, [______] and the
Originator supplied to the Rating Agencies or the
Trustee relating to certain matters with respect to
the Certificates. Any such opinions shall be dated
the Closing Date and addressed to the Underwriters or
accompanied by the reliance letters to the
Underwriters or shall state that the Underwriters may
rely upon them.
(k) All proceedings in connection with the transactions
contemplated by this Agreement and all documents
incident hereto shall be satisfactory in form and
substance to the Representative and counsel for the
Underwriters, and the Representative and counsel for
the Underwriters shall have received such other
information, certificates and documents as they may
reasonably request.
(l) There shall not have occurred any development that
has caused a material adverse change in the financial
condition, results of operations or business of the
Originator or the Depositor.
(m) All documents required under the Mortgage Loan
Purchase Agreement have been provided to the
appropriate parties.
(n) The Underwriters shall have received a letter, dated
the Closing Date, from each of [____________],
counsel to the Company, and [___________], counsel to
the Underwriters, providing negative assurance with
respect to the Preliminary Prospectus as of its date
and as of the date hereof.
If any of the conditions specified in this Section 6
shall not have been fulfilled in all material respects when
and as provided in this Agreement, if the Company is in breach
of any covenants or agreements contained herein or if any of
the opinions and certificates mentioned above or elsewhere in
this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the
Representative and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder
may be cancelled at, or at any time prior to, the Closing Date
by the Representative. Notice of such cancellation shall be
given to the Company in writing, or by telephone or telegraph
confirmed in writing.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale to the
Underwriters of the Underwritten Certificates as provided for
herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof
is not satisfied or because of any refusal, inability or
failure on the part of the Company to perform any agreement
herein or comply with any provisions hereof, other than by
reason of default by the Underwriters, the Company will
reimburse the Underwriters severally upon demand for all
out-of-pocket expenses, including reasonable fees and
disbursements of counsel, that shall have been incurred by the
Underwriters in connection with the proposed purchase and sale
of the Underwritten Certificates.
8. INDEMNIFICATION AND CONTRIBUTION. The Company agrees with the
several Underwriters that:
(a) The Company will indemnify and hold harmless each
Underwriter, the directors, officers, employees and
agents of each Underwriter, and each person who
controls any Underwriter within the meaning of either
the 1933 Act or the 1934 Act against any and all
losses, claims, damages or liabilities, joint or
several, to which they or any of them may become
subject under the 1933 Act, the 1934 Act or other
federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material
fact contained in the registration statement for the
registration of the Underwritten Certificates as
originally filed or in any amendment thereof, or in
the Base Prospectus, the Preliminary Prospectus, any
Issuer Free Writing Prospectus or Final Prospectus,
or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or
alleged omission to state therein a material fact
required to be stated therein or necessary to make
the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred
by them in connection with investigating or defending
any such loss, claim, damage, liability or action;
PROVIDED, HOWEVER, that the Company will not be
liable in any such case to the extent --------
------- that any such loss, claim, damage or
liability arises out of or is based upon any such
untrue statement or alleged untrue statement or
omission or alleged omission made therein (i) in
reliance upon and in conformity with any
Underwriter's Information or (ii) any Derived
Information to the extent that any untrue statement
or alleged untrue statement or omission therein
results (or is alleged to have resulted) from an
error or material omission in the information either
in the Preliminary Prospectus or the Prospectus for
which the Depositor is responsible or concerning the
characteristics of the Mortgage Loans furnished to
the Underwriters for use in the preparation of any
Free Writing Prospectus (any such information, the
"Pool Information"), which error was not superseded
or corrected by the delivery to the Underwriters of
corrected written or electronic information, or for
which [______] or the Depositor provided written
notice of such error to the Underwriters prior to the
first Contract of Sale (any such uncorrected Pool
Information, a "Pool Error") in any Computational
Materials or ABS Term Sheets required to be provided
by the Underwriters to the Company pursuant to
Section 4. This indemnity agreement will be in
addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally will indemnify and hold
harmless the Company, each of its directors, each of
its officers who signs the Registration Statement,
and each person, if any, who controls the Company
within the meaning of either the 1933 Act or the 1934
Act, to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only with
reference to (i) the Derived Information of such
Underwriter or (ii) the Underwriter's Information of
such Underwriter.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any
action, such indemnified party will, if a claim in
respect thereof is to be made against the
indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement
thereof; but the failure to so notify the
indemnifying party (i) will not relieve it from
liability under paragraph 8(a) or 8(b) above unless
and to the extent it did not otherwise learn of such
action and such failure results in the forfeiture by
the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any
indemnified party other than the indemnification
obligation provided in paragraph 8(a) or 8(b) above.
The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the
indemnified party in any action for which
indemnification is sought (in which case the
indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties
except as set forth below); PROVIDED, HOWEVER, that
such counsel shall be satisfactory to the indemnified
-------- ------- party. Notwithstanding the
indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the
indemnified party shall have the right to employ
separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel if (i)
the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual
or potential defendants in, or targets of, any such
action include both the indemnified party and the
indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal
defenses available to it and/or other indemnified
parties that are different from or additional to
those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after
notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of
the indemnifying party. An indemnifying party will
not, without the prior written consent of the
indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any
pending or threatened claim, action, suit or
proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not
the indemnified parties are actual or potential
parties to such claim or action) unless such
settlement, compromise or consent includes an
unconditional release of each indemnified party from
all liability arising out of such claim, action, suit
or proceeding.
(d) In order to provide for just and equitable
contribution in circumstances in which the
indemnification provided for in paragraph (a) of this
Section 8 is due in accordance with its terms but is
for any reason held by a court to be unavailable from
the Company on grounds of policy or otherwise, the
Company and the Underwriters shall contribute to the
aggregate losses, claims, damages and liabilities
(including legal and other expenses reasonably
incurred in connection with investigating or
defending same) (collectively, "Losses") to which the
Company and one or more of the Underwriters may be
subject in such proportion as is appropriate to
reflect the relative benefits received by the Company
and the Underwriters from the offering of the
Underwritten Certificates. If the allocation provided
by the immediately preceding sentence is unavailable
for any reason, the Company and the Underwriters
shall contribute in such proportion as is appropriate
to reflect not only such relative benefits but also
the relative fault of the Company and the
Underwriters in connection with the statements or
omissions that resulted in such Losses as well as any
other relevant equitable consideration. Benefits
received by the Company shall be deemed to be equal
to the total net proceeds from the offering (before
deducting expenses) and benefits received by an
Underwriter shall be deemed to be equal to [___]%of
the aggregate initial principal amount of the
Underwritten Certificates purchased by such
Underwriter. Relative fault shall be determined by
reference to whether any alleged untrue statement or
omission relates to the information provided by the
Company or such Underwriter. The Company and the
Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata
allocation or any other method of allocation that
does not take account of the equitable considerations
referred to above. In no case shall any Underwriter
(except as may be provided in any agreement among
Underwriters relating to the offering of the
Underwritten Certificates) be responsible for any
amount in excess of [___]% of the aggregate initial
principal amount of the Underwritten Certificates
purchased by such Underwriter. Notwithstanding the
provisions of this paragraph 8(d), no person guilty
of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled
to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of
this Section 8, each person, if any, who controls an
Underwriter within the meaning of the 1933 Act or the
1934 Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person, if
any, who controls the Company within the meaning of
either the 1933 Act or the 1934 Act, each officer of
the Company who shall have signed the Registration
Statement and each director of the Company shall have
the same rights to contribution as the Company,
subject in each case to the applicable terms and
conditions of this paragraph 8(d).
9. ORIGINATOR OBLIGATIONS. [_____________] agrees with each
Underwriter, for the sole and exclusive benefit of such
Underwriter and each person who controls an Underwriter within
the meaning of either the Act or the Exchange Act and not for
the benefit of any assignee thereof or any other person or
persons dealing with such Underwriter, to indemnify and hold
harmless each Underwriter and each person who controls an
Underwriter within the meaning of either the Act or the
Exchange Act against any failure by the Company to perform any
of its obligations under this Agreement.
[_____________________] agrees that there are no conditions
precedent to the obligations of [_____________________]
hereunder other than written demand to the Company to perform
its obligations under this Agreement.
10. TERMINATION. This Agreement shall be subject to termination in
the absolute discretion of the Representative, by notice given
to the Company prior to delivery of and payment for all
Certificates if prior to such time (i) trading in securities
generally on the New York Stock Exchange, the American Stock
Exchange or the over-the-counter market shall have been
suspended or minimum prices shall have been established on
either of such exchanges or such market by the Commission, by
such exchange or by any other regulatory body or governmental
authority having jurisdiction; (ii) a banking moratorium shall
have been declared by Federal or New York state authorities;
(iii) the United States shall have become engaged in material
hostilities, there shall have been an escalation of such
hostilities involving the United States or there shall have
been a declaration of war by the United States; (iv) a
material disruption in settlement or clearing operations shall
occur; or (v) there shall have occurred such a material
adverse change in general economic, political or financial
conditions (or the effect of international conditions on the
financial markets of the United States shall be such) which is
material and adverse, and in the case of any of the events
specified in clauses (i) through (v), either individually or
together with any other such event makes it in the judgment of
the Representative, impractical to market the Certificates.
11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of
the Underwriters participating in the public offering of the
Underwritten Certificates shall fail at the Closing Date to
purchase the Underwritten Certificates which it is (or they
are) obligated to purchase hereunder (the "Defaulted
Certificates"), then the non-defaulting Underwriters shall
have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Certificates in such
amounts as may be agreed upon and upon the terms herein set
forth. If, however, the Underwriters have not completed such
arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted
Certificates does not exceed [__]% of the aggregate
principal amount of the Underwritten Certificates to
be purchased pursuant to this Agreement, the
non-defaulting Undewriters named in this Agreement
shall be obligated to purchase the full amount
thereof in the proportions that their respective
underwriting obligations hereunder bear to the
underwriting obligations of all such non-defaulting
Underwriters, or
9(b) if the aggregate principal amount of Defaulted
Certificates exceeds 10% of the aggregate principal
amount of the Underwritten Certificates to be
purchased pursuant to this Agreement, this Agreement
shall terminate, without any liability on the part of
any non-defaulting Underwriters.
No action taken pursuant to this Section 11 shall
relieve any defaulting Underwriter from the liability with
respect to any default of such Underwriter under this
Agreement.
In the event of a default by any Underwriter set
forth in this Section 11, each of the Underwriters and the
Depositor shall have the right to postpone the Closing Date
for a period not exceeding five Business Days in order that
any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements may be
effected.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other
statements of the Company or its officers and the Underwriters
set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or the Company or any of the
officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for
the Underwritten Certificates. The provisions of Sections 7, 8
and 9 hereof shall survive the termination or cancellation of
this Agreement.
13. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representative,
will be mailed, delivered or telegraphed and confirmed to it
at [___________________________], Attention: [_______]; or, if
sent to the Company, will be mailed, delivered or telegraphed
and confirmed to it at 00000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxxxx 00000, Attention: General Counsel.
14. 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 8 hereof, and their successors
and assigns, and no other person will have any right or
obligation hereunder.
15. APPLICABLE LAW. This Agreement will be governed by and
construed in accordance with the laws of the State of New
York, excluding the choice of laws provisions therein. This
Agreement may be executed in any number of counterparts, each
of which shall for all purposes be deemed to be an original
and all of which shall together constitute but one and the
same instrument.
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 among the Company
and the several Underwriters.
Very truly yours,
NEW CENTURY MORTGAGE SECURITIES LLC
By: _____________________________________
Name:
Title
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
[____________________________]
By:________________________________
Name:
Title
For itself and the other Underwriters
named in Schedule II to the foregoing
Agreement.
For purposes of Section 9 hereof:
[____________________________]
By:________________________________
Name:
Title
SCHEDULE I
Underwriting Agreement dated [________________]
As used in this Agreement, the term "Registration Statement" refers to
registration statement No. 333-[___________] filed by the Company on Form S-3
and declared effective on [_______________], as amended to date. The term "Base
Prospectus" refers to the form of Prospectus filed with the Commission pursuant
to Rule 424 under the 1933 Act after the Registration Statement became
effective.
Title and Description of Certificates: New Century Home Equity Loan Trust,
Series 200_-_, Asset Backed Pass-Through Certificates.
Initial aggregate principal balance of the Underwritten Certificates:
$[___________] (Approximate)
The classes of Underwritten Certificates will have the Initial Certificate
Principal Balances, Pass-Through Rates and ratings by [S&P and Xxxxx'x] as set
forth in the Prospectus Supplement.
The aggregate purchase price for the Underwritten Certificates will be equal to
approximately [__]% of the aggregate initial Certificate Principal Balances of
the Underwritten Certificates as of the Closing Date.
________________________________________________________________________________
Closing Time, Date and Location: 10:00 AM, on or about [___________] at the
offices of [___________], [address].
________________________________________________________________________________
Issuance and Delivery of Certificates: The Underwritten Certificates will be
delivered at closing in book-entry form in such names and denominations as the
Representative may direct in accordance with the Underwriting Agreement.
SCHEDULE II
[__________________]
[__________________]
[__________________]
