EXHIBIT 1.2
NEW CENTURY MORTGAGE SECURITIES LLC
$[___________________________]
(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 LLC (the "Company"), a Delaware
limited
liability company, 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 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 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 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 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 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 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
al
