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 EDGAR on the SEC Web site
at WWW.SEC.GOV. 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 1933 Act.
(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
