|
||||||||||||||||||||||||||
| SEC Info℠ | | | Home | | | Search | | | My Interests | | | Help | | | Sign In | | | Please Sign In | |||||||
|
||||||||||||||||||||||||||
As Of Filer Filing For·On·As Docs:Size Issuer Agent 7/14/06 New Century Home Equity L… 2006-2 8-K:2,9 6/07/06 6:5.4M Thacher Proffitt… LLP/FA |
Document/Exhibit Description Pages Size 1: 8-K New Century Mortgage Securities LLC HTML 29K 2: EX-1.1 Underwriting Agreement HTML 143K 3: EX-3.1 Amended and Restated Trust Agreement HTML 308K 4: EX-4.1 Indenture HTML 1.27M 5: EX-99.1 Servicing Agreement HTML 7.59M 6: EX-99.2 Mortgage Loan Purchase Agreement HTML 160K
| Unassociated Document |
| (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 free writing prospectus dated June 20, 2006 that
has heretofore been filed pursuant to Rule 433, is hereinafter called
the
“Pricing Free Writing Prospectus.” The Company will file with the
Commission within four 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 Pricing Free Writing Prospectus and the
Final
Prospectus are first filed pursuant to Rule 433 and Rule 424,
respectively, under the 1933 Act, as applicable, 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
Pricing
Free Writing Prospectus as of the date of the Contract of Sale 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, (iii)
any Preliminary Term Sheet, as of its date of use, did not contain
any
untrue statement of material fact and did not omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading and (iv) the Final Prospectus, as
amended or supplemented as of any such time and the Pricing Free Writing
Prospectus as of the date of the Contract of Sale, 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,
any
Preliminary Term Sheet, the Pricing Free Writing 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
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 (company and other) to own its properties
and conduct its business as now conducted by it and to enter into and
perform its obligations under each Operative Agreement to which it
is a
party; 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 has been, and each other Operative Agreement to which the
Company is a party, 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 Operative Agreements will conform in all material respects
to the descriptions thereof contained in the Pricing Free Writing
Prospectus and the Final Prospectus, and the Underwritten Notes, when
duly
and validly authorized, executed, authenticated and delivered in
accordance with the Indenture and paid for by the Underwriters as provided
herein, will be the legal, valid and binding obligations of the Issuer,
enforceable in accordance with their terms and entitled to the benefits
and security provided by the Indenture. The Trust Agreement will be
effective to establish the Issuer as a valid statutory trust under
the
laws of the State of Delaware.
|
| (g) |
As
of the Closing Date, the Mortgage Loans will meet the criteria for
selection described in the Pricing Free Writing Prospectus and the
Final
Prospectus, and on the Closing Date, the representations and warranties
of
NC Capital with respect to the Mortgage Loans contained in the MLPA,
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 any Operative Agreement to which it is a party, 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 formation or operating agreement 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, any Operative
Agreement to which it is a party 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 any Operative Agreement or the Notes, (ii) seeking to
prevent the issuance of the Notes or the consummation of any of the
transactions contemplated by any Operative Agreement, (iii) that might
materially and adversely affect the performance by the Company of its
obligations under, or the validity or enforceability of, any Operative
Agreement, 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 March
31,
2006.
|
| (k) |
Any
taxes, fees and other governmental charges payable by the Company in
connection with the execution, delivery and issuance of the Operative
Agreements 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) |
Neither
the Issuer nor the Company is, and the issuance and sale of the Notes
in
the manner contemplated by the Pricing Free Writing Prospectus or the
Final Prospectus will not cause the Company or the Issuer 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) |
The
transfer of the Mortgage Loans to the Issuer at the Closing Date will
be
treated by the Company for financial accounting and reporting purposes,
and federal, state and local tax purposes as a pledge of assets owned
by
the Company to secure debt of the Company evidenced by the
Notes.
|
| (n) |
As
of the Effective Date and as of the date of the Contract of Sale, the
Company is not an “ineligible issuer” as defined in Rule 405 under the
1933 Act.
|
| (o) |
The
Company has complied and will comply with the requirements of Rule
433
under the 1933 Act applicable to any Issuer Free Writing Prospectus,
including timely filing or retention, and legending of any Issuer Free
Writing Prospectus.
|
| (p) |
No
Issuer Free Writing Prospectus conflicts with the information in the
Registration Statement or the Final Prospectus, and does not and will
not
include an untrue statement of a material fact and does not and will
not
omit to state a material fact necessary to make the statements therein,
in
light of the circumstances under which they were made, not
misleading.
|
|
(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 €43,000,000 and (3) an annual net turnover of more than
€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.
|
| (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
Pricing Free Writing Prospectus to each prospective
investor.
|
| (ii) |
Unless
preceded or accompanied by a prospectus satisfying the requirements
of
Section 10(a) of the Securities Act or access thereto is made available
pursuant to Rule 173 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:
|
| (vii) |
Any
Computational Materials shall include legends, in addition to those
specified in paragraph (vi) above, substantially similar to the
following:
|
| (viii) |
Each
Underwriter severally agrees to retain all Free Writing Prospectuses
that
it has used and that are not 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:
|
| (d) |
(i)
In the event that any Underwriter or the Company becomes aware that,
as of
the time of the Contract of Sale, any Free Writing Prospectus prepared
by
or on behalf of the Underwriter and delivered to a purchaser of an
Underwritten Note 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 or 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 Note which received the Defective Free
Writing Prospectus prior to entering into an agreement to purchase
any
Underwritten Notes.
|
| (iv) |
The
Underwriters shall notify such purchaser in a prominent fashion of
the
purchaser’s ability to elect to terminate the prior agreement to purchase
the Underwritten Notes, and of such purchaser’s rights if such prior
agreement is terminated.
|
| (v) |
The
Underwriters shall provide such purchaser with an opportunity to
affirmatively agree to purchase such Underwritten Notes on the terms
described in the Corrected Free Writing Prospectus and under a new
Contract of Sale.
|
| (e) |
Each
Underwriter covenants with the Company that after the Final Prospectus
is
available, the Underwriter shall not distribute any written information
concerning the Underwritten Notes to a prospective purchaser of
Underwritten Notes unless such information is preceded or accompanied
by
the Final Prospectus.
|
| (a) |
The
Company will not file any amendment to the Registration Statement or
supplement to (including the supplement relating to the Underwritten
Notes
included in the Final Prospectus) the Base Prospectus, unless the Company
has furnished to you a copy for your review prior to filing, and will
not
file or distribute any such proposed amendment or supplement to which
you
reasonably object. Subject to the foregoing sentence, the Company will
cause the Pricing Free Writing Prospectus to be transmitted to the
Commission for filing pursuant to Rule 433(d) of the 1933 Act 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 Pricing Free Writing Prospectus has been
filed
pursuant to Rule 433(d) and when 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 or the Final Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (v)
of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Underwritten Notes for sale
in any
jurisdiction or the initiation or threatening of any proceeding for
such
purpose. The Company will use its best efforts to prevent the issuance
of
any such stop order or suspension and, if issued, to obtain as soon
as
possible the withdrawal thereof.
|
| (b) |
If,
at any time when a prospectus relating to the Underwritten Notes is
required to be delivered under the 1933 Act, any event occurs as a
result
of which any Final Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light
of the
circumstances under which they were made not misleading, or if it shall
be
necessary to amend or supplement the Final Prospectus to comply with
the
1933 Act or the rules and regulations thereunder, the Company will
promptly prepare and file with the Commission, subject to paragraph
(a) of
this Section 5, an amendment or supplement that will correct such
statement or omission or an amendment that will effect such compliance
and, if such amendment or supplement is required to be contained in
a
post-effective amendment of the Registration Statement, will use its
best
efforts to cause such amendment of the Registration Statement to be
made
effective as soon as possible.
|
| (c) |
The
Company will (i) furnish to the Representative and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and each amendment thereto that shall
become
effective on or prior to the Closing Date, and to each other Underwriter
a
copy of the Registration Statement (without exhibits thereto) and each
such amendment and, so long as delivery of a prospectus by an Underwriter
or dealer in connection with the Underwritten Notes may be required
by the
1933 Act, as many copies of the Pricing Free Writing Prospectus, the
Final
Prospectus and any amendments thereof and supplements thereto as the
Representative may reasonably request, and (ii) file promptly all reports
and any definitive proxy or information statements required to be filed
by
the Company with the Commission pursuant to Section 13(a), 13(c), 14
or
15(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”),
subsequent to the date of the Final Prospectus and for so long as the
delivery of a prospectus by an Underwriter or dealer in connection
with
the Underwritten Notes may be required under the 1933
Act.
|
| (d) |
The
Company agrees that, so long as the Notes shall be outstanding, it
will
deliver to the Representative the annual statement as to compliance
delivered to the Indenture Trustee pursuant to Section 3.20 of the
Servicing Agreement and the Assessment of Compliance and the Attestation
Report furnished to the Indenture Trustee pursuant to Section 3.21
of the
Servicing Agreement, as soon as such statements are furnished to the
Company. The Company will request that the Indenture Trustee furnish
to
the Underwriters any monthly reports furnished to Noteholders pursuant
to
the Indenture.
|
| (e) |
The
Company will furnish such information, execute such instruments and
take
such action, if any, as may be required to qualify the Underwritten
Notes
for sale under the laws of such jurisdictions as the Representative
may
designate and will maintain such qualifications in effect so long as
required for the distribution of the Underwritten Notes; provided,
however, that the Company shall not be required to qualify to do business
in any jurisdiction where it is not now so qualified or to take any
action
that would subject it to general or unlimited service of process in
any
jurisdiction where it is not now so
subject.
|
| (f) |
The
Company will pay, to the extent not paid by the Seller pursuant to
the
MLPA, 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 Operative Agreements and the Notes; accounting fees
and
disbursements; the costs and expenses in connection with the qualification
or exemption of the Underwritten Notes under state securities or blue
sky
laws, including filing fees and reasonable fees and disbursements of
counsel in connection with the preparation of any blue sky survey and
in
connection with any determination of the eligibility of the Notes for
investment by institutional investors and the preparation of any legal
investment survey; the expenses of printing any such blue sky survey
and
legal investment survey; the costs and expenses in connection with
the
preparation, printing and filing of the Registration Statement (including
exhibits thereto), the Base Prospectus, the Pricing Free Writing
Prospectus and the Final Prospectus, the preparation and printing of
this
Agreement and the furnishing to the Underwriters of such copies of
the
Pricing Free Writing Prospectus and the Final Prospectus as the
Representative may reasonably request, and the fees of each nationally
recognized statistical rating organization identified in the Final
Prospectus (individually and collectively, the “Rating Agency”) as having
rated the Underwritten Notes. Except as provided in Section 7 hereof,
the
Underwriters shall be responsible for paying all costs and expenses
incurred by them in connection with the offering of the Underwritten
Notes.
|
| (g) |
The
Representative has been retained solely to act as underwriter in
connection with the sale of the Underwritten Notes and that no fiduciary,
advisory or agency relationship between the Company and the Representative
has been created in respect of any of the transactions contemplated
by
this
Agreement, irrespective of whether the Representative has advised or
is
advising the Company on other matters; the price of the Underwritten
Notes
set forth in this Agreement was established by the Company following
discussions and arm’s-length negotiations with the Representative and the
Company is capable of evaluating and understanding and understands
and
accepts the terms, risks and conditions of the transactions contemplated
by this Agreement; the Company has been advised that the Representative
and its affiliates are engaged in a broad range of transactions which
may
involve interests that differ from those of the Company and that the
Representative has no obligation to disclose such interests and
transactions to the Company by virtue of any fiduciary, advisory or
agency
relationship; and the Company waives, to the fullest extent permitted
by
law, any claims it may have against the Representative for breach of
fiduciary duty or alleged breach of fiduciary duty and agrees that
the
Representative shall have no liability (whether direct or indirect)
to the
Company in respect of such a fiduciary duty claim or to any person
asserting a fiduciary duty claim on behalf of or in right of the Company,
including stockholders, employees or creditors of the
Company.
|
| (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 Free Writing Prospectus previously filed with the Commission that
relates to the offering of the Notes, or (B) any Free Writing Prospectus
or portion thereof that contains a description of the Notes or the
offering of the Notes which does not reflect the final terms
thereof.
|
| (j) |
To
the extent that costs are incurred as a result of an intended trade
that
has been broken, the party that is responsible for such broken trade
shall
bear the costs associated thereto.
|
| (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
Pricing
Free Writing Prospectus, the 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 any information
provided by the Company to the Underwriters for use in any Free Writing
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 Thacher Proffitt & Wood LLP,
counsel for the Company and NCCC, a favorable opinion, dated the Closing
Date and satisfactory in form and substance to counsel for the
Underwriters.
|
| (d) |
The
Representative shall have received from KPMG LLP, 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 Pricing Free Writing Prospectus
and
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 New Century.
|
| (e) |
The
Underwriters shall have received from their counsel such opinion or
opinions, dated the Closing Date, with respect to the issuance and
sale of
the Underwritten Notes, the Registration Statement and the Final
Prospectus, and such other related matters as you may reasonably
require.
|
| (f) |
The
Underwritten Notes shall have been given the ratings set forth in Schedule
I hereto by the Rating Agencies.
|
| (g) |
The
Representative shall have received, from counsel for the Indenture
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 Operative Agreements to which it is a party have been
duly
authorized, executed and delivered by the Indenture Trustee and constitute
legal, valid and binding agreements of the Indenture 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 Indenture Trustee and the
Representative.
|
| (h) |
The
Representative shall have received from NCCC, 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 NCCC under the MLPA 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 NCCC or any of its
affiliates.
|
| (ii) |
An
officer’s certificate relating to the MLPA and the obligations of NCCC
thereunder, and attached thereto the applicable resolutions of the
board
of directors of NCCC, together with the copies of the certificate of
incorporation and by-laws of NCCC and a certificate of good standing
of
NCCC under the laws of the State of
California.
|
| (iii) |
An
opinion of in-house counsel to NCCC 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 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 Servicing Agreement and the
obligations of the Servicer thereunder, as the Servicer or otherwise,
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; 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, NCCC and the Servicer supplied to the Rating Agencies or the
Indenture Trustee relating to certain matters with respect to the Notes.
Any such opinions shall be dated the Closing Date and addressed to
the
Underwriters or accompanied by the reliance letters to the Underwriters
or
shall state that the Underwriters may rely upon
them.
|
| (k) |
All
proceedings in connection with the transactions contemplated by this
Agreement and all documents incident hereto shall be satisfactory in
form
and substance to the Representative and counsel for the Underwriters,
and
the Representative and counsel for the Underwriters shall have received
such other information, certificates and documents as they may reasonably
request.
|
| (l) |
There
shall not have occurred any development that has caused a material
adverse
change in the financial condition, results of operations or business
of
New Century or the Company.
|
| (m) |
All
documents required under the MLPA have been provided to the appropriate
parties.
|
| (n) |
[Reserved].
|
| (o) |
The
Underwriters shall have received a copy of the opinion of Richards,
Layton
& Finger, counsel for the Owner Trustee, an opinion, dated the Closing
Date, in form and substance satisfactory to the
Underwriters.
|
| (p) |
The
Interest Rate Swap Agreement shall have been
delivered.
|
| (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 static pool information for prior securitized pools provided by
the
Company to the Underwriters or any untrue statement or alleged untrue
statement of a material fact contained in the registration statement
for
the registration of the Underwritten Notes as originally filed or in
any
amendment thereof, or in the Base Prospectus, any Preliminary Term
Sheet,
the Pricing 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) in any Derived Information, except
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 Pricing Free Writing
Prospectus or Final Prospectus for which the Company 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 NCCC or the Company
did
not provide written notice of such error to the Underwriters prior
to the
first Contract of Sale (any such uncorrected Pool Information, a “Pool
Error”). This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
|
| (b) |
Each
Underwriter severally will indemnify and hold harmless the Company,
each
of its directors, each of its officers who signs the Registration
Statement, and each person, if any, who controls the Company within
the
meaning of either the 1933 Act or the 1934 Act, to the same extent
as the
foregoing indemnity from the Company to each Underwriter, but only
with
reference to (i) the Derived Information of such Underwriter or (ii)
the
Underwriter’s Information of such
Underwriter.
|
| (c) |
Promptly
after receipt by an indemnified party under this Section 8 of notice
of
the commencement of any action, such indemnified party will, if a claim
in
respect thereof is to be made against the indemnifying party under
this
Section 8, notify the indemnifying party in writing of the commencement
thereof; but the failure to so notify the indemnifying party (i) will
not
relieve it from liability under paragraph 8(a) or 8(b) above unless
and to
the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial
rights
and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph 8(a) or 8(b) above.
The
indemnifying party shall be entitled to appoint counsel of the
indemnifying party’s choice at the indemnifying party’s expense to
represent the indemnified party in any action for which indemnification
is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained
by
the indemnified party or parties except as set forth below); provided,
however,
that such counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party’s election to appoint counsel to
represent the indemnified party in an action, the indemnified party
shall
have the right to employ separate counsel (including local counsel),
and
the indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present
such
counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to
it
and/or other indemnified parties that are different from or additional
to
those available to the indemnifying party, (iii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party
to
represent the indemnified party within a reasonable time after notice
of
the institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without
the
prior written consent of the indemnified parties, settle or compromise
or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or
not
the indemnified parties are actual or potential parties to such claim
or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability
arising
out of such claim, action, suit or
proceeding.
|
| (d) |
If
the indemnification provided for in this Section 8 is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities
(or
actions in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) (including legal and other expenses reasonably
incurred in connection with investigating or defending same)
(collectively, “Losses”) to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Underwriters
from the offering of the Underwritten Notes. If the allocation provided
by
the immediately preceding sentence is unavailable for any reason, the
Company and the Underwriters shall contribute in such proportion as
is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company and the Underwriters in connection with
the
statements or omissions that resulted in such Losses as well as any
other
relevant equitable consideration. Benefits received by the Company
shall
be deemed to be equal to the total net proceeds from the offering (before
deducting expenses) and benefits received by an Underwriter shall be
deemed to be equal to the underwriting discounts and commissions received
by such Underwriter with respect to the aggregate initial principal
amount
of the Underwritten Notes purchased by such Underwriter. Relative fault
shall be determined by reference to whether any alleged untrue statement
or omission relates to the information provided by the Company or such
Underwriter. The Company and the Underwriters agree that it would not
be
just and equitable if contribution were determined by pro rata allocation
or any other method of allocation that does not take account of the
equitable considerations referred to above. In no case shall any
Underwriter (except as may be provided in any agreement among Underwriters
relating to the offering of the Underwritten Notes) be responsible
for any
amount in excess of the underwriting discounts and commissions received
by
such Underwriter with respect to the aggregate initial principal amount
of
the Underwritten Notes purchased by such Underwriter. Notwithstanding
the
provisions of this paragraph 8(d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933
Act)
shall be entitled to contribution from any person who was not guilty
of
such fraudulent misrepresentation. For purposes of this Section 8,
each
person, if any, who controls an Underwriter within the meaning of the
1933
Act or the 1934 Act and each director, officer, employee and agent
of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person, if any, who controls the Company within
the
meaning of either the 1933 Act or the 1934 Act, each officer of the
Company who shall have signed the Registration Statement and each director
of the Company shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of this
paragraph 8(d).
|
| (e) |
For
purposes hereof, as to each Underwriter, the term “Derived Information”
means such information, if any, that is not contained in either (i)
the
Prospectus, the Registration Statement or amendments or supplements
to
either, taking into account information incorporated therein by reference
or (ii) any Pool Information, except to the extent that any omission
or
alleged omission in Derived Information results from a Pool
Error.
|
| (a) |
if
the aggregate principal amount of Defaulted Notes does not exceed 10%
of
the aggregate principal amount of the Underwritten Notes to be purchased
pursuant to this Agreement, the non-defaulting Underwriters named in
this
Agreement shall be obligated to purchase the full amount thereof in
the
proportions that their respective underwriting obligations hereunder
bear
to the underwriting obligations of all such non-defaulting Underwriters,
or
|
| (b) |
if
the aggregate principal amount of Defaulted Notes exceeds 10% of the
aggregate principal amount of the Underwritten Notes to be purchased
pursuant to this Agreement, this Agreement shall terminate, without
any
liability on the part of any non-defaulting
Underwriters
|
| Very truly yours, | ||
|
NEW
CENTURY MORTGAGE
SECURITIES
LLC
|
||
| |
|
|
| By: | /s/ Kevin Cloyd | |
|
Name: Kevin Cloyd |
||
| Title: President | ||
| DEUTSCHE BANK SECURITIES INC. | ||||
| By: | /s/ Bradford Audres | |||
|
Name:
Bradford Audres
Title:
Director
|
||||
| DEUTSCHE BANK SECURITIES INC. | ||||
| By: | /s/ Susan Valenti | |||
|
Name:
Susan Valenti
Title:
Director
|
||||
| NEW CENTURY MORTGAGE CORPORATION | ||||
| By: | /s/ Kevin Cloyd | |||
|
Name:
Kevin Cloyd
Title:
President
|
||||
|
Class
Designation
|
Initial
Note Balance(1)
|
Note
Rate
|
Moody’s
|
S&P
|
|
Class
A-1
|
$435,122,000
|
Variable
|
Aaa
|
AAA
|
|
Class
A-2a
|
$224,944,000
|
Variable
|
Aaa
|
AAA
|
|
Class
A-2b
|
$240,865,000
|
Variable
|
Aaa
|
AAA
|
|
Class
A-2c
|
$34,182,000
|
Variable
|
Aaa
|
AAA
|
|
Class
M-1
|
$52,481,000
|
Variable
|
Aa1
|
AA+
|
|
Class
M-2
|
$54,866,000
|
Variable
|
Aa2
|
AA
|
|
Class
M-3
|
$17,295,000
|
Variable
|
Aa3
|
AA-
|
|
Class
M-4
|
$22,662,000
|
Variable
|
A1
|
A+
|
|
Class
M-5
|
$20,277,000
|
Variable
|
A2
|
A
|
|
Class
M-6
|
$10,735,000
|
Variable
|
A3
|
A-
|
|
Class
M-7
|
$15,506,000
|
Variable
|
Baa1
|
BBB+
|
|
Class
M-8
|
$8,349,000
|
Variable
|
Baa1
|
BBB
|
|
Class
M-9
|
$14,313,000
|
Variable
|
Baa2
|
BBB-
|
|
Class
M-10
|
$16,102,000
|
Variable
|
Baa3
|
NR
|
|
Underwriters
|
|
Deutsche
Bank Securities Inc.
|
|
Lehman
Brothers Inc.
|
|
Barclays
Capital Inc.
|
|
Credit
Suisse Securities (USA) LLC
|
|
Northeast
Securities, Inc.
|
| This ‘8-K’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| Filed on: | 7/14/06 | |||
| 6/29/06 | ||||
| 6/26/06 | ||||
| 6/20/06 | 8-K, FWP | |||
| For Period End: | 6/7/06 | 8-K | ||
| 4/14/06 | ||||
| 3/31/06 | ||||
| List all Filings | ||||