EXHIBIT 1.1
NEW CENTURY MORTGAGE SECURITIES LLC
$[_________________] (Approximate)
New Century Home Equity Loan Trust, Series 200_-_
Asset Backed Pass-Through Certificates
UNDERWRITING AGREEMENT
New York, New York
[_________, __] 200_
[___________________]
as Representative
[___________________]
[___________________]
Dear Sir or Madam:
New Century Mortgage Securities LLC (the "Company"), a Delaware
limited
liability company, proposes to issue New Century Home Equity Loan
Trust, Series
200_-_, Asset Backed Pass-Through Certificates (the
"Certificates"), under a
Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated
as of [___________], among the Company, [_______________], as
servicer (the
"Servicer") and [_____________], as trustee (the "Trustee"), and
proposes to
sell the Underwritten Certificates to the underwriters named in
Schedule II
hereto (the "Underwriters"), for whom you are acting as
representative (the
"Representative"). The Certificates are designated as (i) the Class
A-[_]
Certificates (collectively, the "Class A Certificates"); and (ii)
the Class
M-[__] Certificates (collectively, the "Mezzanine Certificates");
and the Class
CE-1, Class CE-2, Class P, Class R, and Class R-X Certificates
(collectively,
(except for the Class CE-2 Certificates, which are not being
retained) the
"Retained Certificates"). All classes of Certificates, other than
the Retained
Certificates, collectively, are the "Underwritten
Certificates."
The Certificates will represent in the aggregate the entire
beneficial
ownership interest in a trust fund (the "Trust Fund") consisting
primarily of a
segregated pool (the "Mortgage Pool") of one- to four-family,
adjustable-and
fixed-rate, first lien and second lien mortgage loans (the
"Mortgage Loans")
originated or acquired by [_____________] (the "Originator"). Each
Mortgage Loan
provides for an original term to maturity of not greater than 30
years. The
Mortgage Loans will be acquired by the Company from [_____________]
("[______]"
or the "Seller") in exchange for immediately available funds in an
amount equal
to the net sale proceeds of the Underwritten Certificates and the
delivery of
the Retained Certificates to the Seller or its designee. The
Certificates are
described more fully in Schedule I hereto and in a registration
statement which
the Company has furnished to you.
This is to confirm the arrangements with respect to your purchase
of
the Underwritten Certificates.
Capitalized terms used but not defined herein shall have the
meanings
assigned thereto in the Pooling and Servicing Agreement.
1.
REPRESENTATIONS AND WARRANTIES: The Company represents and
warrants to, and agrees with, each Underwriter that as of the
date of the Preliminary Prospectus, as of the date of the
Final Prospectus and as of the Closing Date:
(a) The
Company has filed with the Securities and
Exchange Commission (the "Commission") a registration
statement on Form S-3 (the file number of which is
set forth in Schedule I hereto), for the registration
of
the Underwritten Certificates under the Securities
Act of 1933, as amended (the "1933 Act"), which
registration statement has become effective and
copies of which have heretofore been delivered to
you. Such registration statement, as amended as of
the date hereof, meets the requirements set forth in
Rule 415(a)(1)(vii) under the 1933 Act and complies
in all other material respects with the 1933 Act and
the rules and regulations thereunder. The Company
proposes to file with the Commission pursuant to Rule
424 under the 1933 Act a supplement to the form of
prospectus included in such registration statement
relating to the Underwritten Certificates and the
plan of distribution thereof, and has previously
advised you of all further information (financial and
other) with respect to the Certificates and the
Mortgage Pool to be set forth therein. Such
registration statement, including the exhibits
thereto, as amended as of the date hereof, is
hereinafter called the "Registration Statement;" the
prospectus included in the Registration Statement
after the Registration Statement, as amended, became
effective, or as subsequently filed with the
Commission pursuant to Rule 424 under the 1933 Act,
is hereinafter called the "Base Prospectus;" the form
of prospectus supplemented by the supplement to the
form of prospectus relating to the Underwritten
Certificates, in the form in which it shall be first
filed with the Commission pursuant to Rule 424
(including the Base Prospectus as so supplemented) is
hereinafter called a "Final Prospectus." The
preliminary prospectus dated the date hereof and that
will be filed pursuant to Rule 424, is hereinafter
called the
"Preliminary Prospectus." The Company will
file with the Commission within fifteen days of the
issuance of the Certificates a report on Form 8-K
setting forth specific information concerning the
Underwritten Certificates and the Mortgage Pool to
the extent that such information is not set forth in
the Final Prospectus.
(b) As of the
date hereof, when the Final Prospectus is
first filed pursuant to Rule 424 under the 1933 Act,
when, prior to the Closing Date (as hereinafter
defined), any amendment to the Registration Statement
becomes effective, when any supplement to the Final
Prospectus is filed with the Commission, and at the
Closing Date, (i) the Registration Statement, as
amended as of any such time, the Final Prospectus, as
amended or supplemented as of any such time, and the
Preliminary Prospectus as of the date hereof comply
and will comply in all material respects with the
applicable requirements of the 1933 Act and the rules
and regulations thereunder, (ii) the Registration
Statement, as amended as of any such time, does not
and will not contain any untrue statement of material
fact and does not and will not omit to state any
material fact required to be stated therein or
necessary in order to make the statements therein not
misleading, and (iii) the Final Prospectus, as
amended or supplemented as of any such time, and the
Preliminary Prospectus as of the date hereof do not
and will not contain any untrue statement of a
material fact and do not and will not omit to state a
material fact necessary to make the statements
therein, in the light of the circumstances under
which they were made, not misleading; PROVIDED,
-------- HOWEVER, that the Company makes no
representations or warranties as to the information
------- contained in or omitted from the Registration
Statement, the Preliminary Prospectus or Final
Prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with the
information furnished in writing to the Company by or
on behalf of any Underwriter through the
Representative specifically for use in connection
with the preparation of the Registration Statement
and the Final Prospectus (the "Underwriters'
Information"). The Underwriters' Information is
limited to the following information in the
Preliminary Prospectus and the Prospectus Supplement:
under the caption "Method of Distribution," the first
sentence of the second and sixth paragraphs.
(c) The
Company has been duly formed and is validly
existing as a limited liability company in good
standing under the laws of the State of Delaware with
full power and authority (corporate and other) to own
its properties and conduct its business as now
conducted by it and to enter into and perform its
obligations under this Agreement, the Pooling and
Servicing Agreement and the Mortgage Loan Purchase
Agreement, dated as of the date hereof (the "Mortgage
Loan Purchase Agreement"), between the Company and
[______]; and the Company has received no notice of
proceedings relating to the revocation or
modification of any license, certificate, authority
or permit applicable to its owning such properties or
conducting such business which singly or in the
aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially and adversely
affect the conduct of the business, operations,
financial condition or income of the Company.
(d) As of the
date hereof, when the Final Prospectus is
first filed pursuant to Rule 424 under the 1933 Act,
when, prior to the Closing Date (as hereinafter
defined), any amendment to the Registration Statement
becomes effective, when any supplement to the Final
Prospectus is filed with the Commission, and at the
Closing Date, there has not and will not have been
(i) any request by the Commission for any further
amendment of the Registration Statement or the Final
Prospectus or for any additional information, (ii)
any issuance by the Commission of any stop order
suspending the effectiveness of the Registration
Statement or the institution or threatening of any
proceeding for that purpose or (iii) any notification
with respect to the suspension of the qualification
of the Underwritten Certificates for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose.
(e) This
Agreement and the Mortgage Loan Purchase
Agreement have been, and the Pooling and Servicing
Agreement when executed and delivered as contemplated
hereby and thereby will have been, duly authorized,
executed and delivered by the Company and each
constitutes, or will constitute when so executed and
delivered, a legal, valid and binding agreement of
the Company, enforceable against the Company in
accordance with its terms, except as enforceability
may be limited by (i) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization
or other similar laws affecting the enforcement of
the rights of creditors, (ii) general principles of
equity, whether enforcement is sought in a proceeding
in equity or at law and (iii) public policy
considerations underlying the securities laws, to the
extent that such public policy considerations limit
the enforceability of the provisions of this
Agreement that purport to provide indemnification
from securities law liabilities.
(f) The
Certificates and the Pooling and Servicing
Agreement will conform in all material respects to
the description thereof contained in the Final
Prospectus, and the Underwritten Certificates, when
duly and validly authorized, executed, authenticated
and delivered in accordance with the Pooling and
Servicing Agreement and paid for by the Underwriters
as provided herein, will be entitled to the benefits
of the Pooling and Servicing Agreement. On the
Closing Date, the Pooling and Servicing Agreement
will be effective to establish the Trust Fund as a
valid trust under the laws of the State of New York.
(g) As of the
Closing Date, the Mortgage Loans will meet
the criteria for selection described in the
Preliminary Prospectus and the Final Prospectus, and
on the Closing Date, the representations and
warranties of the Company with respect to the
Mortgage Loans contained in the Pooling and Servicing
Agreement, will be true and correct in all material
respects.
(h) None of
the issuance and sale of the Certificates,
the execution and delivery by the Company of this
Agreement, the Mortgage Loan Purchase Agreement or
the Pooling and Servicing Agreement, the consummation
by the Company of any of the transactions herein or
therein contemplated, or compliance by the Company
with the provisions hereof or thereof, will conflict
with or result in a breach of any term or provision
of the certificate of formation of the Company or
conflict with, result in a breach, violation or
acceleration of or constitute a default under, the
terms of any indenture or other agreement or
instrument to which the Company or any of its
affiliates is a party or by which it or any of them
is bound, or any statute, order or regulation
applicable to the Company or any of its affiliates of
any court, regulatory body, administrative agency or
governmental body having jurisdiction over the
Company or any of its affiliates. Neither the Company
nor any of its affiliates is a party to, bound by or
in breach or violation of any indenture or other
agreement or instrument, or subject to or in
violation of any statute, order or regulation of any
court, regulatory body, administrative agency or
governmental body having jurisdiction over it, which
materially and adversely affects, or may in the
future materially and adversely affect, (i) the
validity or enforceability of, or the ability of the
Company to perform its obligations under, this
Agreement, the Mortgage Loan Purchase Agreement or
the Pooling and Servicing Agreement or (ii) the
business, operations, financial conditions,
properties or assets of the Company.
(i) There are
no actions or proceedings against, or
investigations of, the Company pending, or, to the
knowledge of the Company, threatened, before any
court, administrative agency or other tribunal (i)
asserting the invalidity of this Agreement, the
Mortgage Loan Purchase Agreement, the Pooling and
Servicing Agreement or the Certificates, (ii) seeking
to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated
by this Agreement, the Mortgage Loan Purchase
Agreement or the Pooling and Servicing Agreement,
(iii) that might materially and adversely affect the
performance by the Company of its obligations under,
or the validity or enforceability of, this Agreement,
the Mortgage Loan Purchase Agreement, the Pooling and
Servicing Agreement or the Certificates, or (iv)
seeking to affect adversely the federal income tax
attributes of the Certificates as described in the
Final Prospectus.
(j) There has
not been any material adverse change in the
business, operations, financial condition, properties
or assets of the Company since [_________________].
(k) Any taxes,
fees and other governmental charges
payable by the Company in connection with the
execution, delivery and issuance of this Agreement,
the Mortgage Loan Purchase Agreement and the Pooling
and Servicing Agreement or the execution, delivery
and sale or transfer of the Certificates have been or
will be paid at or prior to the Closing Date.
(l) The
Company is not, and the issuance and sale of the
Certificates in the manner contemplated by the
Preliminary Prospectus or the Final Prospectus will
not cause the Company to be, subject to registration
or regulation as an investment company or affiliate
of an investment company under the Investment Company
Act of 1940, as amended (the "Investment Company
Act").
(m) As of the
Effective Date and as of the date of the
Contract of Sale, the Depositor is not an "ineligible
issuer" as defined in Rule 405 under the 1933 Act.
1.A
REPRESENTATIONS OF THE SEVERAL UNDERWRITERS. Each Underwriter
hereby represents and agrees, severally and not jointly, that
in relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a
"Relevant Member State"), with effect from and including the
date on which the Prospectus Directive is implemented in that
Relevant Member State (the "Relevant Implementation Date") it
has not made and will not make an offer of the Certificates to
the public in that Relevant Member State prior to the
publication of a prospectus in relation to the Certificates
which has been approved by the competent authority in that
Relevant Member State or, where appropriate, approved in
another Relevant Member State and notified to the competent
authority in that Relevant Member State, all in accordance
with the Prospectus Directive, except that it may, with effect
from and including the Relevant Implementation Date, make an
offer of the Certificates to the public in that Relevant
Member State at any time:
(a) to legal
entities which are authorized or regulated
to operate in the financial markets or, if not so
authorized or regulated, whose corporate purpose is
solely to invest in securities;
(b)
to any
legal entity which has two or more of (1) an
average of at least 250 employees during the last
financial year; (2) a total balance sheet of more
than (euro)43,000,000 and (3) an annual net turnover
of more than (euro)50,000,000, as shown in its last
annual or consolidated accounts; or
(c) in any
other circumstances which do not require the
publication by the Depositor of a prospectus pursuant
to Article 3 of the Prospectus Directive.
For the purposes of this representation, the expression an
"offer of the Certificates to the public" in relation to any
Certificates in any Relevant Member State means the
communication in any form and by any means of sufficient
information on the terms of the offer and the Certificates to
be offered so as to enable an investor to decide to purchase
or subscribe the Certificates, as the same may be varied in
that Member State by any measure implementing the Prospectus
Directive in that Member State, and the expression "Prospectus
Directive" means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
Each
Underwriter, severally and not jointly, hereby further
represents and agrees, with respect to the United Kingdom,
that:
(i) it has
only communicated or caused to be communicated
and will only communicate or cause to be communicated
an invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the
Financial Services and Markets Act) received by it in
connection with the issue or sale of the Notes in
circumstances in which Section 21(1) of the Financial
Services and Markets Act does not apply to the
Issuer; and
(ii)
it has complied and will comply with all applicable
provisions of the Financial Services and Markets Act
with respect to anything done by it in relation to
the Certificates in, from or otherwise involving the
United Kingdom.
2.
PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties set forth
herein, the Company agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to
purchase from the Company on the Closing Date, at the
applicable purchase price set forth in Schedule I hereto, the
respective portions of the Underwritten Certificates set forth
opposite such Underwriter's name in the "Method of
Distribution" section of the Prospectus Supplement.
3.
DELIVERY AND PAYMENT. Delivery of and payment for the
Underwritten Certificates shall be made in the manner, on the
date and at the time
specified in Schedule I hereto (or such
later date not later than seven business days after such
specified date as the Representative shall designate), which
date and time may be postponed by agreement between the
Representative and the Company or as provided in Section 9
hereof (such date and time of delivery and payment for the
Underwritten Certificates being herein called the "Closing
Date"). Delivery of the Underwritten Certificates, as set
forth on Schedule I hereto, shall be made to the
Representative for the respective accounts of the several
Underwriters against payment in same day Federal funds by the
several Underwriters of the applicable purchase price. The
Underwritten Certificates shall be registered in such names
and in such authorized denominations as the Representative may
request not less than three full business days in advance of
the Closing Date.
The Company agrees to have the Underwritten Certificates available
for
inspection, checking and packaging by the Representative in New
York,
New York, not later than 1:00 p.m. New York time on the business
day
prior to the Closing Date.
4.
OFFERING BY UNDERWRITERS.
(a) It is
understood that the several Underwriters
propose to offer the Underwritten Certificates for
sale to the public as set forth in the Final
Prospectus.
(b) Each
Underwriter severally covenants and agrees with
the Company as to itself that:
(i)
Prior to entering into any Contract of Sale,
the Underwriter shall convey the Preliminary
Prospectus to each prospective investor. The
Underwriter shall keep sufficient records to
document its conveyance of the Preliminary
Prospectus to each potential investor prior
to the related Contract of Sale.
(ii)
Unless preceded or accompanied by a
prospectus satisfying the requirements of
Section 10(a) of the Securities Act, the
Underwriter shall not convey or deliver any
written communication to any person in
connection with the initial offering of the
Certificates, unless such written
communication (1) is made in reliance on Rule
134 under the Securities Act, (2) constitutes
a prospectus satisfying the requirements of
Rule 430B under the Securities Act or (3) is
a Free Writing Prospectus.
(iii) An
Underwriter may convey a Preliminary Term
Sheet to a potential investor prior to
entering into a Contract of Sale with such
investor; provided, however, that (x) such
Underwriter shall not enter into a Contract
of Sale with such investor unless the
Underwriter has complied with paragraph (i)
above prior to such Contract of Sale, (y)
such Underwriter shall deliver a copy of the
proposed Preliminary Term Sheet to the
Depositor and its counsel prior to the
anticipated first use and shall not convey
any such Preliminary Term Sheet to which the
Depositor or its counsel reasonably objects.
(iv) An
Underwriter may convey Computational
Materials (x) to a potential investor prior
to entering into a Contract of Sale with such
investor; provided, however, that (A) such
Underwriter shall not enter into a Contract
of Sale with such investor unless the
Underwriter has complied with paragraph (i)
above prior to such Contract of Sale and (B)
such Computational Materials shall not be
disseminated in a manner reasonably designed
to lead to its broad unrestricted
dissemination; provided, however, that if
such Computational Materials are disseminated
in a manner reasonably designed to lead to
its broad unrestricted dissemination, such
Underwriter shall file
with the Commission
such Computational Materials, and (y) to an
investor after a Contract of Sale, provided
that the Underwriter has complied with
paragraph (i) above in connection with such
Contract of Sale. The Underwriter shall keep
sufficient records of any conveyance of
Computational Materials to potential or
actual investors and shall maintain such
records as required by the Rules and
Regulations.
(v)
If an Underwriter does not furnish a Free
Writing Prospectus to the Depositor's counsel
prior to the scheduled print date of the
Final Prospectus, such Underwriter will be
deemed to have represented that it did not
convey any Free Writing Prospectus to any
potential investor.
(vi) Each
Free Writing Prospectus shall contain
legends that are substantially similar to the
following:
The issuer has
filed a registration statement
(including a prospectus) with the SEC for the
offering to which this free writing prospectus
relates. Before you invest, you should read the
prospectus in that registration statement and other
documents the issuer has filed with the SEC for more
complete information about the issuer and this
offering. You may get these documents for free by
visiting 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 informati
