NEW CENTURY MORTGAGE SECURITIES, INC.
$[_________________] (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, Inc. (the "Company"), a Delaware
corporation, 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 incorporated and is validly
existing as a corporation 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 incorporation or by-laws 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 ▇▇▇▇▇ on the SEC Web site
at ▇▇▇.▇▇▇.▇▇▇. 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 ▇▇▇▇ ▇▇▇.
(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
▇▇▇▇ ▇▇▇) 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
(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 ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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, INC.
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 ▇▇▇▇▇'▇] 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
[________________]
[__________________]
[__________________]
NEW CENTURY MORTGAGE SECURITIES, INC.
$[_________________________]
(Approximate)
New Century Home Equity Loan Trust, Series 200_-_
Asset Backed Notes
UNDERWRITING AGREEMENT
New York, New York
[_________, __] 200_
[_______________],
as Representative
[______________]
[-________________________]
Dear Sir or Madam:
New Century Mortgage Securities, Inc. (the "Company"), a Delaware
corporation, proposes to issue New Century Home Equity Loan Trust, Series
200_-_, Asset Backed Notes (the "Notes"), 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 Notes to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representative (the
"Representative"). The Notes are designated as (i) the Class A-[__] Notes
(collectively, the "Class A Notes"); and (ii) the Class M- [__] Notes
(collectively, the "Mezzanine Notes"); and the Class CE-1, Class CE-2, Class P,
Class R, and Class R-X Notes (collectively, (except for the Class CE-2 Notes,
which are not being retained) the "Retained Notes"). All classes of Notes, other
than the Retained Notes, collectively, are the "Underwritten Notes."
The Notes 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 Notes and the delivery
of the Retained Notes to the Seller or its designee. The Notes 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 Notes.
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 Notes 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 Notes and the plan of distribution thereof, and
has previously advised you of all further information
(financial and other) with respect to the Notes 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 Notes, 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 Notes a report on Form 8-K setting forth
specific information concerning the Underwritten Notes 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 incorporated and is validly
existing as a corporation 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 Notes 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 Notes and the Pooling and Servicing Agreement will
conform in all material respects to the description thereof
contained in the Final Prospectus, and the Underwritten Notes,
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 Notes, 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 incorporation or by-laws 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 Notes, (ii) seeking to prevent
the issuance of the Notes 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 Notes, or (iv) seeking to affect adversely the federal
income tax attributes of the Notes 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 Notes 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 Notes
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 Notes to the public in that Relevant Member State
prior to the publication of a prospectus in relation to the Notes 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 Notes 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 Notes to the public" in relation to any Notes 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 Notes to be offered so as to
enable an investor to decide to purchase or subscribe the Notes, 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 Notes 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 Notes 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
Notes 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 Notes
being herein called the "Closing Date"). Delivery of the Underwritten
Notes, 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 Notes 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 Notes 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 Notes 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 Notes, 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 ▇▇▇▇▇ on the SEC Web site
at ▇▇▇.▇▇▇.▇▇▇. 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 Notes.
(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 Notes 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 Notes.
(iv) The Underwriters shall notify such purchaser in a
prominent fashion that the prior agreement to purchase Underwritten
Notes 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 Notes
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 Notes to a prospective
purchaser of Underwritten Notes 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 Notes 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 Notes 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 Notes 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
Notes 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 Notes may be required under
the 1933 Act.
(d) So long as the Notes 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 Notes 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 Notes;
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 Notes; accounting fees and
disbursements; the costs and expenses in connection with the
qualification or exemption of the Underwritten Notes 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 Notes 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 Notes. 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 Notes.
(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 Notes, or (B) any Free Writing
Prospectus or portion thereof that contains a description of
the Notes or the offering of the Notes 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 Notes
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 ▇▇▇▇ ▇▇▇.
(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 Notes 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 Notes. 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 Notes 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 Notes.
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 Notes 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 Notes. 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 Notes 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 Notes) be responsible for any amount in excess of
[__]% of the aggregate initial principal amount of the
Underwritten Notes 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 ▇▇▇▇ ▇▇▇) 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 Notes 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 Notes.
11. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the
Underwriters participating in the public offering of the
Underwritten Notes shall fail at the Closing Date to purchase the
Underwritten Notes which it is (or they are) obligated to purchase
hereunder (the "Defaulted Notes"), 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
Notes 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 Notes does
not exceed [__]% of the aggregate principal amount of the
Underwritten Notes 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
(b) if the aggregate principal amount of Defaulted Notes
exceeds [__]% of the aggregate principal amount of the
Underwritten Notes 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 Notes. 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 ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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, INC.
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 Notes: New Century Home Equity Loan Trust, Series
200_-_, Asset Backed Notes.
Initial aggregate principal balance of the Underwritten Notes: $[___________]
(Approximate)
The classes of Underwritten Notes will have the Initial Certificate Principal
Balances, Pass-Through Rates and ratings by [S&P and ▇▇▇▇▇'▇] as set forth in
the Prospectus Supplement.
The aggregate purchase price for the Underwritten Notes will be equal to
approximately [__]% of the aggregate initial Certificate Principal Balances of
the Underwritten Notes 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 Notes: The Underwritten Notes 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
[___________________________]
[___________________________]
[___________________________]