GE-WMC Mortgage Securities, L.L.C. PASS-THROUGH CERTIFICATES (Issuable in Series) UNDERWRITING AGREEMENT
EXECUTION
GE-WMC
Mortgage Securities, L.L.C.
PASS-THROUGH
CERTIFICATES
(Issuable
in Series)
August
10, 2006
Citigroup
Global Markets Inc.,
acting
on
behalf of itself and as a
Representative
000
Xxxxxxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Xxxxxxx,
Xxxxx & Co.,
acting
on
behalf of itself and as a
Representative
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
GE-WMC
Mortgage Securities, L.L.C., a limited liability company organized and existing
under the laws of the State of Delaware (the “Company”),
may
offer for sale to you and each underwriter named in the related Terms Agreement
(as defined herein) (collectively, the “Underwriters”)
from
time to time its Pass-Through Certificates evidencing interests in a pool of
mortgage loans (the “Certificates”).
The
Certificates may be issued in various series, and within each series, in one
or
more classes, in one or more offerings on terms determined at the time of sale
(each such series, a “Series”
and
each such class, a “Class”).
Each
Series of the Certificates will be issued under a separate Pooling and Servicing
Agreement (each, a “Pooling
and Servicing Agreement”)
to be
dated as of the applicable cut-off date (each, a “Cut-off
Date”)
among
the Company, the servicer or master servicer named in the related Terms
Agreement (the “Servicer”)
and
the trustee named in the related Terms Agreement (the “Trustee”).
Capitalized terms used but not defined herein shall have the meanings given
to
them in the related Pooling and Servicing Agreement.
The
Certificates issued under a Pooling and Servicing Agreement will represent
the
entire beneficial ownership interest in a trust fund (the “Trust
Fund”)
established by such Pooling and Servicing Agreement. The assets of the related
Trust Fund will consist primarily of a pool of non-prime, fixed-rate and/or
adjustable-rate, first and/or second lien, one- to four-family residential
mortgage loans (the “Mortgage
Loans”)
having
the original terms to maturity specified in the related Terms Agreement referred
to hereinbelow. Pursuant to a mortgage loan purchase agreement, dated the issue
date of the Certificates sold to you (the “Originator Mortgage
Loan Purchase Agreement”),
between WMC Mortgage Corp., as seller (the “Originator”)
and GE
Mortgage Holding, L.L.C. (the “Seller”),
as
purchaser, the Originator will sell to the Seller all of its right, title and
interest in and to the related Mortgage Loans, including the scheduled principal
balances of such Mortgage Loans as of the applicable Cut-off Date and interest
due after such Cut-off Date. Pursuant to a mortgage loan purchase agreement,
dated the issue date of the Certificates sold to you (the “Seller
Mortgage Loan Purchase Agreement”),
between the Seller, as seller and the Company, as purchaser, the Seller will
sell to the Company all of its right, title and interest in and to the related
Mortgage Loans, including the scheduled principal balances of such Mortgage
Loans as of the applicable Cut-off Date and interest due after such Cut-off
Date. Pursuant to the related Pooling and Servicing Agreement, the Company
will
sell to the related Trust Fund all of its right, title and interest in and
to
the related Mortgage Loans, including the scheduled principal balances of such
Mortgage Loans as of the applicable Cut-off Date and interest due after such
Cut-off Date. If so specified in the related Terms Agreement, one or more
elections may be made to treat the assets of each Trust Fund as a real estate
mortgage investment conduit (each, a “REMIC”)
for
federal income tax purposes.
The
Certificates are more fully described in a Registration Statement (as defined
below) which the Company has made available to the Underwriters as of the
Applicable Time relating to each Terms Agreement.
Whenever
the Company determines to make an
offering of Certificates
(each, a
“Certificate
Offering”)
pursuant to this Agreement through you, it will enter into an agreement with
you
which shall be substantially in the form of Exhibit A hereto (the “Terms
Agreement”)
providing for the sale of specified Classes of Offered Certificates (as defined
below) to, and the purchase and public offering thereof by, each of you acting
as a representative of the several Underwriters (in such capacity you are
hereinafter referred to as the “Representatives”).
If
only one Underwriter is named in the Terms Agreement, the terms “Underwriter,”
“Underwriters,” “Representative” and “Representatives” shall refer to that named
Underwriter. Each such Certificate Offering which the Company elects to make
pursuant to this Agreement shall be governed by this Agreement, as supplemented
by the related Terms Agreement. Each Terms Agreement shall specify, among other
things, the Classes of Certificates to be purchased by the Underwriters (the
“Offered
Certificates”),
the
principal balance or balances of the Offered Certificates, each subject to
any
stated variance, the names of the Underwriters participating in such Certificate
Offering and the price or prices at which such Offered Certificates are to
be
purchased by the Underwriters from the Company.
1.
Representations
and Warranties.
The
Company represents and warrants to and agrees with the Underwriters, as of
the
date of the related Terms Agreement, that:
(a)
The
registration statement specified in the related Terms Agreement, on Form S-3,
including a prospectus, has been filed with the Securities and Exchange
Commission (the “Commission”)
for
the registration under the Securities Act of 1933, as amended (the “Act”),
of
pass-through certificates issuable in series, which registration statement
has
been declared effective by the Commission. Such registration statement, as
amended to the date of the related Terms Agreement, including any documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Act
that were filed under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) on or before the effective date of the Registration Statement,
is hereinafter called the “Registration Statement,” and such prospectus (the
“Base
Prospectus”),
as
such prospectus is supplemented by a prospectus supplement relating to the
Offered Certificates of the related Series, each in the form first filed after
the date of the related Terms Agreement pursuant to Rule 424(b) under the Act,
including any documents incorporated by reference therein pursuant to Item
12 of
Form S-3 under the Act that were filed under the Exchange Act on or before
the
date of such prospectus supplement (other than those relating to Underwriter
Materials (as defined herein)) (such prospectus supplement, including such
incorporated documents and any information that is deemed retroactively to
be a
part of the Registration Statement pursuant to Rule 430A under the Act (other
than those that relate to Underwriter Materials), in the form filed after the
date of the related Terms Agreement pursuant to Rule 424(b) and that discloses
the public offering price and other final terms of the Offered Certificates,
the
“Prospectus
Supplement”),
is
hereinafter called the “Prospectus.”
The
Company, if so specified in the related Terms Agreement, also will prepare
and
file with the Commission pursuant to Rule 424 the preliminary prospectus
supplement specified in the Terms Agreement relating to the Offered Certificates
of the related Series (the “Preliminary
Prospectus Supplement”
and,
together with the Base Prospectus, the “Preliminary
Prospectus”).
Any
reference herein to the terms “amend,” “amendment” or “supplement” with respect
to the Registration Statement, the Base Prospectus, the Preliminary Prospectus
Supplement or the Prospectus Supplement shall be deemed to refer to and include
the filing of any document under the Exchange Act after the effective date
of
the Registration Statement or the date of the Prospectus or any Preliminary
Prospectus, as the case may be, deemed to be incorporated therein by reference
pursuant to Item 12 of Form S-3 under the Act. “Applicable
Time”
means
the time of the Contract of Sale (as used in Rule 159).
(b)
The
related Registration Statement, at the time it became effective, and the
prospectus contained therein, and any amendments thereof and supplements thereto
filed prior to the date of the related Terms Agreement, conformed in all
material respects to the requirements of the Act and the rules and regulations
of the Commission thereunder; on the date of the related Terms Agreement and
on
each Closing Date (as defined in Section 3 below), the related Registration
Statement, the related Preliminary Prospectus, the related Prospectus and the
Designated Static Pool Information (as defined below), and any amendments
thereof and supplements thereto, will conform in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder; such Registration Statement, at the time it became effective, did
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; such Preliminary Prospectus, as of its date and as of the
Applicable Time, did not or will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they are made, not misleading; such Prospectus, on the date of any filing
pursuant to Rule 424(b) and on the related Closing Date, will not include any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they are made, not misleading; provided,
however,
that
the Company makes no representations or warranties as to (A) the information
contained in or omitted from such Prospectus or Preliminary Prospectus (or
any
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by the Representatives or any Underwriter specifically
for use in the preparation thereof or (B) any Underwriter Materials or in any
amendment thereof or supplement thereto (as defined herein), other than with
respect to any Mortgage Pool Error. As used herein the term “Designated
Static Pool Information”
shall
mean the static pool information referred to in the Preliminary Prospectus
and
the Prospectus under the caption “Static Pool Information” but deemed to be
excluded from the Registration Statement and the Prospectus pursuant to Item
1105(d) of Regulation AB issued under the Act.
(c) (i)
At
the time of the filing of the Registration Statement and (ii) at the date of
the
Terms Agreement, the Company was not and is not an “ineligible issuer,” as
defined in Rule 405 under the Act.
(d) As
of the
Applicable Time and at all subsequent times through the completion of the public
offer and sale of the Offered Certificates, none of any Issuer Free Writing
Prospectus(es) (as defined in Section 8(a)) issued at or prior to the Applicable
Time, nor any Issuer Information (as defined in Section 8(a)) contained in
a
Free Writing Prospectus and approved by the Company for use therein included
any
untrue statement of a material fact or omitted 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. The preceding sentence
does not apply to statements in or omissions from any prospectus included in
the
Registration Statement or any Issuer Free Writing Prospectus in reliance upon
and in conformity with written information furnished to the Company by the
Representatives or any Underwriter specifically for use in the preparation
thereof or any Underwriter Materials; provided,
however,
that
the Company will not be required to file any such amendment or supplement with
respect to any Underwriter Materials other than any amendments or supplements
to
such Underwriter Materials that are furnished to the Company by the
Representatives on behalf of the Underwriters pursuant to Section 8(b)(ii)
that
are required to be filed in accordance with Section 8(d)(ii).
(e) If
so
specified in the related Terms Agreement, the Company or the Representatives
will prepare an Issuer Free Writing Prospectus (as defined in Section 8(a))
for
delivery to potential investors prior to the time of Contract of Sale (as
defined herein) (such Issuer Free Writing Prospectus, a “Time
of Sale Free Writing Prospectus”).
Each
Time of Sale Free Writing Prospectus, as of its date and at all subsequent
times
through the completion of the public offer and sale of the Offered Certificates
or until any earlier date that the Company notified or notifies the
Representatives as described in the next sentence, did not, does not and will
not include any information that conflicted, conflicts or will conflict with
the
information then contained in the Registration Statement. If at any time
following issuance of a Time of Sale Free Writing Prospectus there occurred
or
occurs an event or development as a result of which such Time of Sale Free
Writing Prospectus conflicted or would conflict with the information then
contained in the Registration Statement or included or would include an untrue
statement of a material fact or omitted or would omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances prevailing at that subsequent time, not misleading, (i) the
Company has promptly notified or will promptly notify the Representatives and
(ii) the Company has promptly amended or will promptly amend or supplement
such
Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue
statement or omission. The foregoing two sentences do not apply to statements
in
or omissions from any Time of Sale Free Writing Prospectus in reliance upon
and
in conformity with the written information furnished to the Company by the
Representatives or any Underwriter specifically for use in the preparation
thereof.
(f) The
Offered Certificates of the related Series will conform to the description
thereof contained in the related Prospectus; will each, if so stated in the
Prospectus and rated at the time of issuance in one of the two highest rating
categories by a nationally recognized statistical rating organization, be when
issued a “mortgage related security” as such term is defined in Section 3(a)(41)
of the Exchange Act; and will each on the related Closing Date be duly and
validly authorized, and, when validly executed, countersigned, issued and
delivered in accordance with the related Pooling and Servicing Agreement and
sold to you as provided herein and in the related Terms Agreement, will each
be
validly issued and outstanding and entitled to the benefits of the Pooling
and
Servicing Agreement.
(g) Neither
the issuance nor sale of the Offered Certificates of the related Series nor
the
consummation of any other of the transactions herein contemplated, nor the
fulfillment of the terms hereof or of the related Terms Agreement, will conflict
with any statute, order or regulation applicable to the Company of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Company or with any organizational document of the Company or any
instrument or any agreement under which the Company is bound or to which it
is a
party.
(h) None
of
the issuance and sale of the Certificates of the related Series, the execution
and delivery by the Company of any Operative Agreement (as defined herein)
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 (i) conflict with or result in a breach of any term
or
provision of the formation or operating agreement of the Company or (ii)
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 is a party or by which it or any of them is bound, or any
statute, order or regulation applicable to the Company of any court, regulatory
body, administrative agency or governmental body having jurisdiction over the
Company, the default in or the breach or violation of which would have a
material adverse effect on the Company or the Offered Certificates of the
related Series or the ability of the Company to perform its obligations under
the Operative Agreements to which the Company is a party or this
Agreement.
(i) 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.
(j) This
Agreement and the related Terms Agreement have been duly authorized, executed
and delivered by the Company.
(k) At
or
prior to the related Closing Date, the Company will have entered into the
related Pooling and Servicing Agreement and, assuming the due authorization,
execution and delivery thereof by the Trustee, such Pooling and Servicing
Agreement (on such Closing Date) will constitute the valid and binding agreement
of the Company enforceable in accordance with its terms, subject as to
enforceability, to bankruptcy, insolvency, reorganization or other similar
laws
affecting creditors’ rights and to general principles of equity (regardless of
whether the enforceability of such Pooling and Servicing Agreement is considered
in a proceeding in equity or at law).
(l) There
are
no actions, orders 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 Certificates of the related Series, (ii) seeking
to
prevent the issuance of such Certificates or the consummation of any of the
transactions contemplated by any Operative Agreement, or (iii) that, if
determined adversely to the Company, would materially and adversely affect
the
performance by the Company of its obligations under, or the validity or
enforceability of, the Certificates or any Operative Agreement.
(m) Any
taxes, fees and other governmental charges payable by the Company in connection
with the execution, delivery, issuance and sale or transfer of the Certificates
of the related Series have been or will be paid at or prior to the Closing
Date.
2.
Purchase
and Sale.
Subject
to the execution of the Terms Agreement for a particular Certificate Offering
and subject to the terms and conditions and in reliance upon the representations
and warranties set forth in this Agreement and such Terms Agreement, the Company
agrees to sell to each Underwriter, and each such Underwriter agrees, severally
and not jointly, to purchase from the Company, the respective original principal
amounts of the Offered Certificates set forth in the applicable Terms Agreement
opposite the name of such Underwriter, plus any additional original principal
amount of Offered Certificates which such Underwriter may be obligated to
purchase pursuant to Section 11 hereof at the purchase price therefor set forth
in such Terms Agreement (the “Purchase
Price”).
The
parties hereto agree that settlement for all securities pursuant to this
Agreement and the related Terms Agreement shall take place on the terms set
forth herein and therein and not as set forth in Rule 15c6-1(a) under the
Exchange Act.
3.
Delivery
and Payment.
Delivery of and payment for the Offered Certificates of a Series shall be made
at the offices of Xxxxxxx Xxxxxxxx & Wood LLP, New York, New York, at 10:00
A.M., New York City time, on the Closing Date specified in the related Terms
Agreement, which date and time may be postponed by agreement between the
Representatives and the Company (such date and time being herein called the
“Closing
Date”).
Delivery of such Offered Certificates shall be made to the Representatives
for
the accounts of the several Underwriters against payment by each Underwriter
of
the applicable Purchase Price thereof to or upon the order of the Company by
wire transfer in federal or other immediately available funds or by check
payable in federal funds, as the Company shall specify no later than five full
business days prior to such Closing Date. Unless delivery is made through the
facilities of The Depository Trust Company, the Offered Certificates shall
be
registered in such names and in such authorized denominations as the
Underwriters may request not less than two full business days in advance of
each
Closing Date.
The
Company agrees to notify the Representatives at least two business days before
each Closing Date of the exact principal balance evidenced by the Offered
Certificates and to have such Offered Certificates available for inspection,
checking and packaging in New York, New York, no later than 12:00 noon on the
business day prior to such Closing Date.
4.
Offering
by the Underwriters.
It is
understood that the Underwriters propose to offer the Offered Certificates
of
the related Series for sale to the public as set forth in the Prospectus. Each
Underwriter (severally and not jointly) represents and warrants that it has
complied in all material respects, and agrees that it will comply in all
material respects, with all applicable securities laws and regulations in each
jurisdiction in which it purchases, offers, sells or delivers the Offered
Certificates or distributes the Prospectus.
5.
Agreements.
The
Company agrees with the Underwriters that:
(a)
The
Company has caused or will cause each Preliminary Prospectus and the Prospectus
relating to the Offered Certificates to be transmitted to the Commission for
filing pursuant to Rule 424 under the Act by means reasonably calculated to
result in filing with the Commission pursuant to such rule but, with respect
to
the Prospectus, in no event later than 9:00 a.m. on the related Closing Date
and
prior to the termination of the Certificate Offering to which such Prospectus
relates also will promptly advise the Representatives (i) when any amendment
to
the related Registration Statement specifically relating to such Offered
Certificates shall have become effective or any Statutory Prospectus has been
filed, (ii) of any request by the Commission for any amendment of such
Registration Statement or any Preliminary Prospectus or the Prospectus or for
any additional information, (iii) of the issuance by the Commission of any
stop
order suspending the effectiveness of such Registration Statement or the
institution or threatening of any proceeding for that purpose and (iv) of the
receipt by the Company of any written notification with respect to the
suspension of the qualification of such Offered Certificates for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will not file any amendment of the related Registration
Statement or supplement to the related Prospectus (other than any amendment
or
supplement specifically relating to one or more Series of asset-backed
securities other than the Series that includes the related Offered Certificates)
unless (i) the Company has given reasonable notice to the Underwriters of its
intention to file any such amendment or supplement and (ii) the Company has
furnished the Underwriters with a copy for their review within a reasonable
time
prior to filing. The Company will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b)
[Reserved]
(c)
If,
at
any time when any Preliminary Prospectus is to be delivered pursuant to a Terms
Agreement or a Prospectus relating to the Offered Certificates of a Series
is
required to be delivered under the Act, any event occurs as a result of which
such Preliminary Prospectus or the related 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 light of
the
circumstances under which they were made not misleading, or if it shall be
necessary at any time to amend or supplement such Preliminary Prospectus or
the
Prospectus to comply with the Act or the rules thereunder, the Company promptly
will notify the Representatives of such event and prepare and file with the
Commission, subject to the penultimate sentence of paragraph (a) of this Section
5, an amendment or supplement which will correct such statement or omission
or
an amendment which will effect such compliance; provided,
however,
that
the Company will not be required to file any such amendment or supplement with
respect to any Underwriter Materials incorporated by reference in the
Registration Statement other than any amendments or supplements of such
Underwriter Materials that are furnished to the Company by the Representatives
on behalf of the Underwriters and required to be filed pursuant to Section
8(b)(ii).
(d)
The
Company will furnish to each Underwriter and counsel for the Underwriters,
without charge, as many signed copies of the Registration Statement (including
exhibits thereto) and, so long as delivery of a prospectus by an Underwriter
or
dealer may be required by the Act, as many copies of the related Prospectus
and
any supplements thereto as the Underwriters may reasonably request.
(e)
The
Company will furnish such information, execute such instruments and take such
actions as may be reasonably requested by the Representatives to enable the
Representatives to (i) qualify the Offered Certificates of a Series for sale
under the laws of such jurisdictions as the Representatives may designate,
(ii)
maintain such qualifications in effect so long as required for the initial
distribution of such Offered Certificates and (iii) determine the legality
of
such Offered Certificates for purchase by institutional investors; provided,
however,
that
the Company shall not be required to qualify to do business in any jurisdiction
where it is not qualified on the date of the related Terms Agreement or to
take
any action which would subject it to general or unlimited service of process
or
to corporate or franchise taxation in any jurisdiction in which it is not,
on
the date of the related Terms Agreement, subject to such service of process
or
to such corporate or franchise taxation.
(f)
So
long
as the Offered Certificates of a Series are outstanding, the Company will
furnish to the Representatives, upon request, copies of the annual independent
public accountants servicing report furnished to the Trustee pursuant to the
related Pooling and Servicing Agreement.
(g) If
the
transactions contemplated hereby and by the related Terms Agreement shall be
consummated, the Company or the Seller shall pay any costs and expenses for
which details are submitted, in connection with the performance of its
obligations under this Agreement and the related Terms Agreement, including,
without limitation, (i) the filing of the Registration Statement with respect
to
the Certificates and all amendments thereto, (ii) the preparation,
registration, issuance and delivery to the Underwriters of the Certificates
underwritten pursuant to this Agreement, (iii) the fees and disbursements
of the Company’s counsel and accountants, (iv) the printing and delivery to
the Underwriters, in such quantities as they may reasonably request, of copies
of the Registration Statement with respect to the Certificates underwritten
pursuant to this Agreement and all amendments thereto, of any related
Preliminary Prospectus and Prospectus and all amendments and supplements thereto
and all documents incorporated therein and of any Time of Sale Issuer Free
Writing Prospectuses to investors or prospective investors, (v) the fees
charged by investment rating agencies requested by the Company to initially
rate
the Certificates underwritten pursuant to this Agreement, (vi) the fees and
expenses, if any, incurred in connection with the listing of the Certificates
underwritten pursuant to this Agreement on any national securities exchange,
and
(vii) the fees and expenses of the Trustee and its counsel. If the
transactions contemplated by this Agreement are not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 is
not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or to comply with any provision hereof
other than by reason of default by the Underwriters, the Company will reimburse
the Underwriters upon demand for all out-of pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred
by
the Underwriters in connection with the proposed purchase, sale and offering
of
the Offered Certificates. Except as provided in this paragraph (g) and in
Section 7 hereof, each Underwriter will pay all its own costs and expenses,
including (i) the fees of XxXxx Xxxxxx, LLP, counsel for the Underwriters,
(ii)
transfer taxes on resale of any Offered Certificates by it, (iii) advertising
expenses connected with any offers that it may make, (iv) the fees of any firm
of public accountants selected by the Representatives with respect to any letter
furnished by them in connection with ABS ICM or Term Sheet (each as defined
herein), (v) any expenses for the qualification of the Offered Certificates
of
the applicable Series under “blue sky” or state securities laws, including
filing fees and the fee and disbursements of counsel in connection therewith
and
in connection with the preparation of any Blue Sky Survey and (vi) any other
costs and expenses specified in the related Terms Agreements as “Additional
Expenses.”
(h) [Reserved]
(i) If
so
specified in the related Terms Agreement, the Company will prepare the
Preliminary Prospectus relating to the Offered Certificates in a form consented
to by the Representatives, and will file such Preliminary Prospectus within
the
period required by Rule 424(b).
(j) If
so
specified in the related Terms Agreement, the Company will prepare a final
term
sheet relating to the Offered Securities, containing only information that
describes the final terms of the Offered Certificates and otherwise in a form
consented to by the Representatives, and will file such final term sheet within
the period required by Rule 433(d)(5)(ii) following the date such final terms
have been established for all classes of the offering of the Offered
Certificates. Any such final term sheet is an Issuer Free Writing Prospectus
for
purposes of this Agreement.
(k) All
written and graphic communications relating to the Offered Certificates used
prior to the availability of the Prospectus will comply with the requirements
of
Rule 433, including the inclusion of the legend required by Rule
433(c)(2).
(l) To
the
extent prepared by or on behalf of the Company or to the extent that the
Representatives has provided to the Company either ABS ICM or a Free Writing
Prospectus that constitutes an Issuer Free Writing Prospectus (as defined in
Section 8(a)) or contains Issuer Information that such Underwriter has conveyed
to a prospective investor, the Company will file or cause to be filed with
the
Commission such ABS ICM or such Free Writing Prospectus as soon as reasonably
practicable after the date of the related Terms Agreement, but in any event
not
later than required pursuant to Rules 426 or 433, respectively, under the Act;
provided,
however,
that
the Company shall not be required to file (A) any Free Writing Prospectus,
if
the information included therein is included or incorporated by reference in
a
prospectus or Free Writing Prospectus previously filed with the Commission
that
related to the offering of the Offered Certificates or (B) any Free Writing
Prospectus or portion thereof that contains a description of the Certificates
or
the offering of the Offered Certificates that does not reflect the final terms
thereof.
6.
Conditions
to the Obligations of the Underwriters.
The
obligations of the Underwriters to purchase the Offered Certificates of any
Series shall be subject to the accuracy in all material respects of the
representations and warranties on the part of the Company contained in this
Agreement, as supplemented by the related Terms Agreement, as of the respective
dates thereof and the related Closing Date, to the accuracy of the statements
of
the Company made in any applicable officers’ certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations under
this Agreement and such Terms Agreement and to the following additional
conditions applicable to the related Certificate Offering:
(a)
No
stop
order suspending the effectiveness of the related Registration Statement shall
have been issued and no proceedings for that purpose shall have been instituted,
or to the knowledge of the Company, threatened by the Commission.
(b)
Xxxxxxx
Xxxxxxxx & Xxxx LLP, counsel for the Company, shall have furnished to the
Representatives on behalf of the Underwriters an opinion, dated the related
Closing Date, substantially in form and substance to the effect
that:
(i)
This
Agreement, the related Terms Agreement, the related Pooling and Servicing
Agreement, the Originator Mortgage Loan Purchase Agreement and the Seller
Mortgage Loan Purchase Agreement (collectively, the “Operative
Agreements”)
each
constitutes a legal, valid and binding agreement of each of the Company, the
Seller and the Originator (each, a “WMC
Party”)
to the
extent that such WMC Party is a party thereto, enforceable against such WMC
Party in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium, receivership
or
other laws relating to or affecting creditors’ rights generally, and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity), and except that the enforcement of rights
with
respect to indemnification and contribution obligations and provisions (a)
purporting to waive or limit rights to trial by jury, oral amendments to written
agreements or rights of set off or (b) relating to submission to jurisdiction,
venue of service or process, may be limited by applicable law or considerations
of public policy;
(ii)
The
Certificates have been duly authorized by the Company and, when the Certificates
have been duly executed, countersigned and delivered by the Trustee in the
manner contemplated in the related Pooling and Servicing Agreement, the
Certificates will be validly issued and outstanding and entitled to the benefits
provided by the related Pooling and Servicing Agreement;
(iii)
The
related Pooling and Servicing Agreement is not required to be qualified under
the Trust Indenture Act of 1939, as amended;
(iv)
The
Trust
Fund (as defined in the related Pooling and Servicing Agreement) is not required
to be registered under the Investment Company Act of 1940, as
amended;
(v)
Such
counsel confirms that the related Registration Statement is effective under
the
Act and, to the best of such counsel’s knowledge, no stop order with respect
thereto has been issued, and no proceeding for that purpose has been instituted
or threatened by the Commission; such Registration Statement (except the
financial statements and schedules and other financial and statistical data
included therein and the documents incorporated by reference therein, as to
which such counsel need express no view), at the time it became effective,
the
related Preliminary Prospectus and the related Prospectus (except in each case
the financial statements and schedules, the other financial and statistical
data
included therein and the documents incorporated by reference therein), as of
its
respective date conformed in all material respects to the requirements of the
Act and the rules and regulations thereunder; and no information has come to
the
attention of such counsel that causes it to believe that (A) such Registration
Statement (except the financial statements and schedules and the other financial
and statistical data included therein and the documents incorporated by
reference therein, as to which such counsel need express no view) at the time
it
became effective, contained an untrue statement of a material fact or omitted
to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; or (B) such Preliminary Prospectus or any
amendment or supplement thereto (except the financial statements and schedules
and other financial and statistical date included therein), as of the date
of
the Preliminary Prospectus, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading; or (C) such Prospectus or any amendment or supplement
thereto (except the financial statements and schedules and the other financial
and statistical data included therein), as of the date of the Prospectus
Supplement, or at the related Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or (D) if applicable,
such counsel has no reason to believe that the Time of Sale Free Writing
Prospectus, as of the date of the Time of Sale Free Writing Prospectus and
as of
the Applicable Time contained any untrue statement of a material fact or omitted
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;
(vi)
Each
Prospectus and any Preliminary Prospectus, as of the dates thereof (in each
case, with the exception of any information incorporated by reference therein
and any numerical, financial, statistical and quantitative data included
therein, as to which such counsel need express no view), appeared on their
respective faces to be appropriately responsive in all material respects to
the
requirements of the Act, and the rules and regulations thereunder applicable
to
such documents as of the relevant date;
(vii)
The
statements (a) in the related Prospectus under the headings “Federal Income Tax
Consequences” and “Considerations for Benefit Plan Investors” and (b) in the
Prospectus Supplement under the headings (i) “Summary of Prospectus
Supplement—Federal Income Tax Consequences,” (ii) “Summary of Prospectus
Supplement—ERISA Considerations,” (iii) “Federal Income Tax Consequences” and
(iv) “ERISA Considerations,” insofar as such statements relate to the
Certificates and purport to summarize matters of federal law or legal
conclusions with respect thereto, have been reviewed by such counsel and are
correct in all material respects;
(viii)
If
applicable, that the Offered Certificates upon issuance will be a “mortgage
related security” as such term is defined in Section 3(a)(41) of the Exchange
Act, so long as the Offered Certificates are rated in one of the two highest
rating categories by a nationally recognized statistical rating organization;
(ix)
The
statements set forth under the heading “Description of the Securities” in the
related Prospectus and “Description of the Certificates” in the related
Prospectus Supplement, insofar as such statements purport to summarize certain
provisions of the related Pooling and Servicing Agreement and the related
Offered Certificates, provide a fair summary of such provisions;
and
(x)
Assuming
compliance with all provisions of the related Pooling and Servicing Agreement,
for federal income tax purposes, (A) if any election is made to treat the assets
of the Trust Fund as a REMIC: the related Trust Fund (and any specified
subgrouping therein) will qualify as a REMIC pursuant to Section 860D of the
Internal Revenue Code of 1986, as amended (the “Code”),
each
Class of Certificates of the related Series, other than the related Residual
Class or Classes, will constitute a class of “regular interests” in the related
REMIC within the meaning of the Code, and each Class of such Certificates
specified in the related Prospectus as a Class of Residual Certificates will
constitute the “residual interest” in the related REMIC within the meaning of
the Code; (B) if no such REMIC election is made: the Trust Fund will be treated
as a “grantor trust.”
(c)
[Reserved].
(d)
Xxxxxxx
Xxxxxxxx & Wood LLP, counsel for the Company, shall have furnished to the
Company and the Representatives on behalf of the Underwriters an opinion, dated
the related Closing Date, in form and substance satisfactory to the Company
and
the Representatives, relating to certain insolvency and bankruptcy matters
and
federal income tax matters as may be required to obtain the Required Ratings
(as
defined below).
(e)
In-house
transaction counsel for the Company and Seller shall have furnished to the
Representatives on behalf of the Underwriters an opinion, dated the related
Closing Date, generally to the effect that:
(i)
Each
of
the Company and the Seller 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 power to own its properties, to conduct its business as described
in the related Prospectus and to enter into and perform its obligations under
each Operative Agreement to which it is a party and the Certificates of the
related Series;
(ii)
Each
of
the Company and the Seller has full power and authority to sell the related
Mortgage Loans as contemplated herein and in each Operative Agreement to which
it is a party;
(iii)
Each
Operative Agreement to which it is a party has been duly authorized, executed
and delivered by each of the Company and the Seller;
(iv)
The
issuance and sale of the Offered Certificates have been duly authorized by
each
of the Company and the Seller;
(v)
No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the consummation by each of the Company and the Seller
of
the transactions contemplated herein or in each Operative Agreement to which
it
is a party, except such as may be required under the blue sky laws of any
jurisdiction and such other approvals as have been obtained;
(vi)
Neither
the issuance of the Certificates of the related Series nor delivery of the
related Offered Certificates, nor the consummation of any other of the
transactions contemplated in each Operative Agreement to which it is a party,
nor the fulfillment of the terms of the related Certificates and each Operative
Agreement to which it is a party will conflict with or violate any term or
provision of the articles of formation or by-laws of each of the Company and
the
Seller or, to the best of such counsel’s knowledge, any statute, order or
regulation applicable to the Company or the Seller, as applicable, of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Company or the Seller, as applicable, and will not conflict with,
result in a breach or violation or the acceleration of or constitute a default
under the terms of any indenture or other agreement or instrument known to
such
counsel to which the Company and the Seller, as applicable, is a party or by
which it is bound; and
(vii)
There
are
no actions, proceedings or investigations pending or, to the best knowledge
of
such counsel, threatened before any court, administrative agency or other
tribunal (i) asserting the invalidity of this Agreement, the related Terms
Agreement, the related Pooling and Servicing Agreement or the related
Certificates, (ii) seeking to prevent the issuance of the Certificates of the
related Series or the consummation by the Company of any of the transactions
contemplated by this Agreement, such Terms Agreement or the related Pooling
and
Servicing Agreement, or (iii) which might materially and adversely affect the
performance by the Company of its obligations under, or the validity or
enforceability of, this Agreement, such Terms Agreement, the related Pooling
and
Servicing Agreement or the related Certificates.
In
rendering his or her opinion such counsel may rely as to matters of fact, to
the
extent deemed proper and as stated therein, on certificates of responsible
officers of the Company or public officials. In addition, such opinion may
be
delivered by an attorney admitted to the New York bar that is generally familiar
with the corporate law of the State of Delaware.
(f)
In-house
counsel for WMC Mortgage Corp. shall have furnished to you an opinion addressed
to the Underwriters, dated the related Closing Date, in form and substance
reasonably satisfactory to the Representatives and counsel for the Underwriters.
(g)
The
Underwriters shall have received from XxXxx Xxxxxx LLP, counsel for the
Underwriters, such opinion or opinions, dated the related Closing Date, with
respect to the issuance and sale of the Certificates of the related Series,
the
related Registration Statement, the related Prospectus and such other related
matters as the Underwriters may reasonably require, and the Company shall have
furnished to such counsel such documents as the Underwriters may reasonably
request for the purpose of enabling them to pass upon such matters.
(h)
The
Company shall have furnished to the Representatives or counsel to the
Representatives a certificate of the Company, signed by the President, any
Vice
President or the principal financial or accounting officer of the Company,
dated
the related Closing Date, to the effect that the signer of such certificate
has
carefully examined the related Registration Statement (excluding any ABS ICM
with respect to Offered Certificates of a Series that are filed by the
Underwriters or delivered by any Representatives on behalf of the Underwriters
to the Company pursuant to Section 8(b) to be filed with the Commission on
a
Current Report on Form 8-K), each Preliminary Prospectus, the related
Prospectus, this Agreement and the related Terms Agreement and
that:
(i)
the
representations and warranties of the Company in this Agreement are true and
correct in all material respects on and as of the related Closing Date with
the
same effect as if made on such Closing Date, and the Company has complied with
all the agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to such Closing Date;
(ii)
no
stop
order suspending the effectiveness of such Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to their
knowledge, threatened; and
(iii)
nothing
has come to their attention that would lead them to believe that such
Registration Statement contains any untrue statement of a material fact or
omits
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, or that any Preliminary Prospectus or
the
related Prospectus contains any untrue statement of a material fact or omits
to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(i)
Counsel
for the Trustee, shall have furnished to the Underwriters an opinion, dated
the
related Closing Date, substantially in form and substance to the effect
that:
(i)
the
Trustee has been duly incorporated and is validly existing as a corporation
or
banking institution in good standing under the laws of the place of its
formation with power to own its properties and conduct its business as presently
conducted by it, to conduct business as a trustee and to enter into and perform
its obligations under the related Pooling and Servicing Agreement;
(ii)
the
related Pooling and Servicing Agreement has been duly authorized, executed
and
delivered by the Trustee and constitutes the legal, valid and binding agreement
of the Trustee enforceable against the Trustee in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent conveyance, reorganization or
other similar laws affecting the enforcement of creditors’ rights generally and
to judicial discretion, and general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law);
(iii)
the
Trustee has duly accepted its appointment as trustee under the Pooling and
Servicing Agreement;
(iv)
no
consent, approval, authorization or order of any applicable state or federal
court or government agency or body is required on the part of the Trustee for
the consummation of the transactions contemplated in the Pooling and Servicing
Agreement, except such as may be required under any federal or state securities
law; and
(v)
the
performance on the part of the Trustee of any of the transactions contemplated
in the Pooling and Servicing Agreement does not conflict with or result in
a
breach or violation of any term or provision of, or constitute a default under,
the Articles of Organization, as amended, or By-Laws of the Trustee, or any
applicable state or federal statute or regulation applicable to the Trustee,
or
to such counsel’s knowledge, any indenture or other agreement or instrument to
which the Trustee is a party or by which it is bound, or, to such counsel’s
knowledge, any order of any state or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Trustee.
In
addition, such counsel shall furnish to the Representatives on behalf of the
Underwriters such opinions as to the treatment of the Trust Fund for purposes
of
the tax law of the state that is the situs of the Trust Fund as are reasonably
satisfactory to the Representatives.
(j) The
Representatives shall have received letters dated on or before the date on
which
the Prospectus Supplement is dated and printed, in form and substance acceptable
to the Representatives and its counsel, prepared by KPMG LLP (a) regarding
certain numerical information contained or incorporated by reference in the
Prospectus Supplement, any Preliminary Prospectus Supplement and any Time of
Sale Free Writing Prospectus and (b) relating to certain agreed upon procedures
as requested by the Underwriters relating to the Mortgage Loans. The
Representatives may also, at their own expense, obtain a letter, on or before
the date on which the Prospectus Supplement is dated and printed, prepared
by
KPMG LLP regarding the Designated Static Pool Information contained or
incorporated by reference in the Prospectus Supplement, any Preliminary
Prospectus Supplement and any Time of Sale Free Writing Prospectus; provided that
such
letter shall not be a condition to the obligations of the Underwriters hereunder
unless a material inaccuracy regarding the Designated Static Pool Information
has been discovered and remained uncorrected by the Company as of the date
of
the Prospectus Supplement.
(k) The
Offered Certificates of the related Series shall have received the ratings
specified in the related Terms Agreement (the “Required
Ratings”).
(l) Prior
to
the related Closing Date, the Company shall have furnished to the Underwriters
such further information, certificates and documents as the Underwriters may
reasonably request.
(m) If
any
Certificates of the related Series are to be sold to any other underwriter
and/or offered in reliance upon an exemption from the registration requirements
of the Act, the sale at or prior to the related Closing Date of such
Certificates to the purchaser thereof shall have occurred.
(n) Subsequent
to the date of the related Terms Agreement, there shall not have been any
material adverse change in the business or properties of the Company which
in
the Representatives’ reasonable judgment, after consultation with the Company,
materially impairs the investment quality of the Offered Certificates of the
related Series so as to make it impractical or inadvisable to proceed with
the
public offering or the delivery of such Offered Certificates as contemplated
by
the related Prospectus.
If
any of
the conditions specified in this Section 6 shall not have been fulfilled in
all
material respects with respect to the particular Offered Certificates of a
Series when and as provided in this Agreement and the related Terms Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in
this
Agreement and the related Terms Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and their
counsel, this Agreement (with respect to the related Offered Certificates)
and
the related Terms Agreement and all obligations of the Underwriters hereunder
(with respect to the related Offered Certificates) and thereunder may be
canceled at, or at any time prior to, the related Closing Date by the
Underwriters. Notice of such cancellation shall be given to the Company in
writing, or by telephone or telegraph confirmed in writing.
7.
Indemnification
and Contribution.
(a)
The
Company and the Seller, jointly and severally, agree to indemnify and hold
harmless each Underwriter and each person who controls such Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange 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 Act, the Exchange 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) are caused by (A) a Mortgage Pool Error or (B) any untrue statement
or
alleged untrue statement of a material fact contained in the Registration
Statement relating to the Offered Certificates of the applicable Series as
it
became effective or in any amendment or supplement thereof, or in any
Preliminary Prospectus or the Prospectus or the Designated Static Pool
Information or in any amendment thereof, or in any Issuer Free Writing
Prospectus, any Issuer Information contained in any Free Writing Prospectus
and
approved by the Company for use therein are caused by the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them
in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided,
however,
that
(i) neither the Company nor the Seller will be liable in any such case to the
extent that any such loss, claim, damage or liability is caused by any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein (A) in reliance upon and in conformity with written information
furnished to the Company by the Representatives or any Underwriter as it relates
to the Underwriters specifically for use in the preparation thereof or (B)
in
any Underwriter Materials, except to the extent that any untrue statement or
alleged untrue statement therein or omission therefrom results (or is alleged
to
have resulted) directly from an error in the information concerning the
characteristics of the Mortgage Loans furnished by the Company in writing or
by
electronic transmission (a “Mortgage
Pool Error”)
that
was used in the preparation of such Underwriter Materials and not corrected
by
information supplied by the Company to the Underwriters prior to the Applicable
Time or (C) a Calculation Error (as defined herein). This indemnity agreement
will be in addition to any liability which the Company or the Seller may
otherwise have.
(b)
Each
Underwriter, severally and not jointly, agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement relating to the Offered Certificates of the applicable
Series, and each person who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnities from the Company and the Seller to such Underwriter,
but
only with reference to (A) the written information furnished to the Company
by
the Representatives or any Underwriter as it relates to the Underwriters
specifically for use in the preparation of the documents referred to in the
foregoing indemnity with respect to the related Series or (B) Underwriter
Materials or (C) a material error or omission from the mathematical calculations
performed by the Underwriters (but not the data or the choice of assumptions
used to make such calculations) and used to derive the percentages, dates or
terms presented in any decrement or yield tables set forth in the section titled
“Decrement Tables” or such other similar section in the Prospectus Supplement (a
“Calculation Error”), except, in the case of clause (B) or (C) above, to the
extent that any untrue statement or alleged untrue statement therein or omission
therefrom results (or is alleged to have resulted) directly from a Mortgage
Pool
Error or a material error in or omission from any information provided by the
Company to the Representatives or an Underwriter that was used in the
preparation of either (x) any Underwriter Materials (or amendment or supplement
thereof) or (y) any written or electronic materials furnished to prospective
investors on which the Underwriter Materials (or amendments or supplements)
were
based. This indemnity agreement will be in addition to any liability which
the
Underwriters may otherwise have. The Terms Agreement will describe the
information furnished in writing by the Representatives and the Underwriters
for
inclusion in the related Prospectus and the Underwriters confirm that such
statements are correct.
(c)
Promptly
after receipt by an indemnified party under Section 7 of notice of the
commencement of any action, an indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 7, notify
such indemnifying party in writing of the commencement thereof; provided,
however,
that
the omission so to notify such indemnifying party will not relieve it from
any
liability which it may have to any indemnified party otherwise than under
subparagraph (a) or (b) except and to the extent of any prejudice to the
indemnifying party arising from such failure to provide notice. In case any
such
action is brought against an indemnified party, and it notifies an indemnifying
party of the commencement thereof, such indemnifying party will be entitled
to
participate therein, and to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party; provided,
however,
that if
the defendants in any such action include both indemnified and indemnifying
parties and any such indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to such indemnifying
party, the indemnified party or parties shall have the right to select separate
counsel to assert such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from an indemnifying party to an indemnified party of its
election so to assume the defense of such action and approval by such
indemnified party of counsel, such indemnifying party will not be liable to
such
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel
in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel approved by the indemnified party in the case of subparagraph
(a) or (b), representing the indemnified parties under subparagraph (a) or
(b),
who are parties to such action), (ii) 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 commencement of
the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii). Unless it shall
assume the defense of any proceeding, the indemnifying party shall not be liable
for any settlement of any proceeding, effected without its written consent,
which consent shall not be unreasonably withheld, but
if
settled with such consent or if there shall be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party
from
and against any loss, claim, damage or liability by reason of such settlement
or
judgment. No indemnifying party shall, without the written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party
from
all liability on claims that are the subject matter of such proceeding and
does
not include a statement as to, or an admission of, fault, culpability or failure
to act by or on behalf of any indemnified party.
(d) If
the
indemnification provided for in paragraph (a) or (b) of this Section 7 is due
in
accordance with its terms but is for any reason held by a court to be
unavailable from the Company or the Underwriters, on grounds of policy or
otherwise, then each indemnifying party shall contribute to the aggregate
losses, claims, damages and liabilities to which the Company, the Seller and
the
Underwriters may be subject (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Seller on the one hand
and
each Underwriter on the other from the offering of the Offered Certificates
or
(ii) if the allocation provided in clause 7(d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 7(d)(i) above but also the relative
fault of the Company and Seller jointly on the one hand and of each Underwriter,
on the other in connection with the statements or omissions which resulted
in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations; provided,
however,
that,
other than in connection with the willful misconduct or gross negligence of
the
Underwriter or as described in the next proviso, in no case shall such
Underwriter be responsible under this paragraph (d) for any amount in excess
of
the underwriting discount applicable to the Offered Certificates purchased
by
such Underwriter pursuant to this Agreement and the related Terms Agreement;
provided, further,
that if
the statements or omissions or alleged statements or alleged omissions which
resulted in contribution were contained in or omitted, as applicable, from
(A)
written information furnished to the Company by the Representatives or any
Underwriter as it relates to the Underwriters specifically for use in the
preparation of the Time of Sale Free Writing Prospectus, any Preliminary
Prospectus or the Prospectus, (B) the Underwriters Materials or (C) a
Calculation Error, the preceding limitation on contribution shall be
inapplicable to the Underwriter which furnished such written information. The
relative benefits received by the Company and Seller jointly on the one hand
and
each Underwriter on the other shall be deemed to be in the same proportion
as
the total net proceeds from the offering (before deducting expenses) of the
Offered Certificates received by the Company bear to the total underwriting
discounts and commissions received by each Underwriter with respect to the
Offered Certificates. The relative fault of the Company and Seller jointly
on
the one hand and of each Underwriter on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material
fact
relates to information supplied by the Company or by such Underwriter, and
the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The
Company, the Seller and the Underwriters agree that it would not be just and
equitable if contribution pursuant to Section 7(d) were determined by pro rata
allocation or by any other method of allocation which does not take account
of
the considerations referred to above. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 7(d) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by
such indemnified party in connection with investigating or defending any such
action or claim except where the indemnified party is required to bear such
expenses pursuant to Section 7(d); which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party believes that it will be ultimately obligated to
pay
such expenses. In the event that any expenses so paid by the indemnifying party
are subsequently determined to not be required to be borne by the indemnifying
party hereunder, the party which received such payment shall promptly refund
the
amount so paid to the party which made such payment.
Notwithstanding
anything to the contrary in this Section 7(d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who controls
an
Underwriter within the meaning of either Section 15 of the Act or Section 20
of
the Exchange Act shall have the same rights to contribution as such Underwriter,
and each person who controls the Company or the Seller, as the case may be,
within the meaning of either Section 15 of the Act or Section 20 of the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company or the Seller, as the case may be,
shall have the same rights to contribution as the Company or the Seller, as
the
case may be, subject in each case to the immediately preceding sentence of
this
paragraph (d).
(e) In
the
event that neither the Company nor the Seller has sufficient funds to make
any
payments required to be made by them to the Underwriters pursuant to Section
7
of this Agreement, the Seller shall cause its parent, GE-WMC Mortgage Holding,
Inc. (“GEMHI”) to contribute funds to the Seller for such purpose pursuant to
that certain Contribution Agreement, dated as of September 28, 2005, by and
between GEMHI and the Seller. In the event that GEMHI requires funds to make
such contributions to the Seller pursuant to the preceding sentence, GEMHI
shall
cause its parent, General Electric Capital Services, Inc. (“GECS”) to contribute
funds to GEMHI for such purpose pursuant to that certain Supplemental
Contribution Agreement, dated as of September 28, 2005, by and between GEMHI
and
GECS.
(f) The
obligations of the parties under this Section 7 shall survive the purchase
and
sale of the Certificates and the termination of this Agreement. The indemnity
and contribution agreements pursuant to this Section 7 will be in addition
to
any liability which the Company, the Seller or the Underwriters may otherwise
have in a proceeding in equity or at law.
8. Investor
Communications.
(a) The
following terms shall have the meanings set forth below, unless the context
clearly indicates otherwise:
(i) ABS
ICM:
ABS
Informational and Computational Materials as defined in Item 1101(a) of
Regulation AB promulgated by the Commission.
(ii) Contract
of Sale:
The
meaning set forth in Rule 159 under the Act.
(iii) Free
Writing Prospectus:
A Free
Writing Prospectus within the meaning of Rule 405 under the Act that describes
the Certificates and/or the Mortgage Loans.
(iv) Issuer
Information:
Information approved by the Company for inclusion in a Free Writing Prospectus
that constitutes “Issuer Information” as defined in Rule 433(h) under the Act
that is within the types of information specified in clauses (1) to (5) of
footnote 271 of Commission Release No. 33-8591 (Securities Offering Reform)
and
not information that is merely based on or derived from such approved
information.
(v) Issuer
Free Writing Prospectus:
The
meaning set forth in Rule 433(h) of the Act, except that (A) no Free Writing
Prospectus shall be deemed to be prepared by any Underwriter on behalf of the
Company if such Free Writing Prospectus is not delivered to the Company by
the
Underwriters prior to first use and (B) no Underwriter Materials shall be deemed
to be an Issuer Free Writing Prospectus.
(vi) Term
Sheet:
A Free
Writing Prospectus that contains information described in paragraphs (1) to
(3)
of the definition of ABS Informational and Computational Materials in Item
1101(a) of Regulation AB.
(vii) Underwriter
Materials:
Any of
(i) that portion of ABS ICM or Term Sheet prepared by an Underwriter that
contains information specified in the definition of ABS ICM (except for Item
1101(a)(4) of ABS ICM relating to static pool information) and that is not
Issuer Information and (ii) any portion of a Free Writing Prospectus (other
than
a Time of Sale Free Writing Prospectus) prepared by or on behalf of an
Underwriter that is not Issuer Information.
(b) Each
Underwriter severally represents, warrants, covenants and agrees with the
Company as to itself that:
(i) On
or
after August 1, 2006, unless preceded or accompanied by a prospectus satisfying
the requirements of Section 10(a) of the Act, it will not convey or deliver
any
written communication to any person in connection with the initial offering
of
the Offered Certificates, unless such written communication (A) is made in
reliance on Rule 134 under the Act, (B) constitutes a prospectus satisfying
the
requirements of Rule 430B under the Act, (C) constitutes a Free Writing
Prospectus or (D) is provided to the Company for filing with the Commission
in
accordance with Section 8(b)(ii). The Underwriter shall not convey or deliver
in
connection with the initial offering of the Certificates any ABS ICM in reliance
on Rules 167 and 426 under the Act.
(ii) It
will
deliver to the Company, no later than one business day prior to the date of
first use thereof, (A) any Free Writing Prospectus prepared by or on behalf
of
such Underwriter that contains any Issuer Information and (B) any Free Writing
Prospectus or portion thereof that contains only a description of the final
terms of the Certificates. Notwithstanding the foregoing, any Free Writing
Prospectus that contains only ABS ICM may be delivered by such Underwriter
to
the Company or its counsel not later than the later of (1) one business day
prior to the due date for filing of the Prospectus pursuant to Rule 424(b)
under
the Act or (2) the date of first use of such Free Writing
Prospectus.
(iii) The
Free
Writing Prospectuses to be furnished to the Company by it pursuant to Section
8(b)(ii) will constitute all Free Writing Prospectuses of the type described
therein that were furnished to prospective purchasers of Offered Certificates
by
such Underwriter in connection with its offer and sale of the Offered
Certificates.
(iv) Each
Free
Writing Prospectus required to be provided by it to the Company pursuant to
Section 8(b)(ii), when viewed together with the Time of Sale Free Writing
Prospectus or Preliminary Prospectus, as applicable, does not, as of the
Applicable Time, and will not contain as of the Closing Date, an untrue
statement of a material fact or omit to state a material fact necessary in
order
to make the statements, in the light of the circumstances under which they
were
made, not misleading at the time of sale (including, without limitation, a
Contract of Sale); provided,
however,
that
such Underwriter makes no representation with respect to any such Free Writing
Prospectus that contains an untrue statement of a material fact or omitted
to
state a material fact necessary in order to make the statements, in the light
of
the circumstances under which they were made, not misleading at the time of
sale
(including, without limitation, a Contract of Sale) as a result of any untrue
Issuer Information supplied by the Company to the Underwriters, which
information was not corrected by corrective information subsequently supplied
by
the Company to the Underwriters in a reasonable amount of time (“Corrective
Information”) prior to the Applicable Time.
(v) It
will
be obligated to file with the Commission, not later than the date of first
use
of such Free Writing Prospectus (other than a Term Sheet or Time of Sale Free
Writing Prospectus), any Free Writing Prospectus (other than a Term Sheet or
Time of Sale Free Writing Prospectus) that is used or referred to by such
Underwriter and distributed by or on behalf of such Underwriter in a manner
reasonably designed to lead to its broad unrestricted dissemination within
the
meaning of Rule 433(d) under the Act; provided,
however,
that
such obligation to file under this Section 8(b)(v) shall be satisfied by the
Underwriters providing such information to the Company for filing.
(vi) Notwithstanding
anything in Section 8(b)(v) to the contrary, it will be obligated to file with
the Commission any Free Writing Prospectus (other than a Term Sheet or Time
of
Sale Free Writing Prospectus) for which the Underwriter or any person acting
on
its behalf provided, authorized or approved information that is prepared and
published or disseminated by a person unaffiliated with the Company or any
other
offering participant that is in the business of publishing, radio or television
broadcasting or otherwise disseminating written communications and for which
no
payment was made or consideration given by or on behalf of the Company or any
other offering participant, not later than four business days after the
Underwriter becomes aware of the publication, radio or television broadcast
or
other dissemination of the Free Writing Prospectus; provided,
however,
that
such obligation to file under this Section 8(b)(vi) shall be satisfied by the
Underwriters providing such information to the Company for filing.
(vii) It
will
retain all Free Writing Prospectuses that such Underwriter has used and that
are
not required to be filed pursuant to this Section 8(b) for a period of three
years following the initial bona
fide
offering
of the Offered Certificates.
(viii) (A)
In
the event that it becomes aware that, as of the Applicable Time, any (x)
Preliminary Prospectus Supplement of (y) Free Writing Prospectus prepared by
or
on behalf of such Underwriter and, in either case, delivered to a purchaser
of
an Offered Certificate contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
contained therein, in the light of the circumstances under which they were
made,
not misleading (such Preliminary Prospectus Supplement, a “Defective Preliminary
Prospectus” and such Free Writing Prospectus, a “Defective Free Writing
Prospectus”), such Underwriter shall notify the Company thereof within one
business day after discovery; (B) If the Defective Free Writing Prospectus
was
an Issuer Free Writing Prospectus or contained Issuer Information, such
Underwriter will, if requested by the Company: (1) prepare a Free Writing
Prospectus with Corrective Information that corrects the material misstatement
in or omission from the Defective Free Writing Prospectus (each such corrected
Free Writing Prospectus, a “Corrected Free Writing Prospectus”); (2) deliver the
Corrected Free Writing Prospectus to each purchaser of an Offered Certificate
from it that received the Defective Free Writing Prospectus prior to entering
into a Contract of Sale; (3) provide such purchaser with adequate disclosure
of
(i) the contractual arrangement, (ii) the investor’s rights under the existing
Contract of Sale at the time termination is sought, and (iii) the new
information that is necessary to correct the misstatements or omissions in
the
information given at the time of original Contract of Sale; (4) provide such
purchaser with a meaningful ability to elect to terminate or not terminate
the
prior Contract of Sale and to elect to enter into or not enter into a new
Contract of Sale; and (5) comply with any other requirements for reformation
of
the original Contract of Sale described in Section IV.2.c of Securities Act
Release No. 33-8591; and (C) if requested by the Company, (1) cooperate with
the
Company to prepare a Preliminary Prospectus Supplement that corrects the
material misstatement in or omission from the Defective Preliminary Prospectus
Supplement (each such corrected Preliminary Prospectus Supplement, a “Corrected
Preliminary Prospectus Supplement”), (2) deliver the Corrected Preliminary
Prospectus Supplement to each purchaser of an Offered Certificate from it that
received the Defective Preliminary Prospectus Supplement prior to entering
into
a Contract of Sale; (3) provide such purchaser with adequate disclosure of
(i)
the contractual arrangement, (ii) the investor’s rights under the existing
Contract of Sale at the time termination is sought, and (iii) the new
information that is necessary to correct the misstatements or omissions in
the
information given at the time of original Contract of Sale; (4) provide such
purchaser with a meaningful ability to elect to terminate or not terminate
the
prior Contract of Sale and to elect to enter into or not enter into a new
Contract of Sale; and (5) comply with any other requirements for reformation
of
the original Contract of Sale described in Section IV.2.c of Securities Act
Release No. 33-8591 (Securities Offering Reform);
(ix) After
the
Prospectus is available, it will not distribute any written information
concerning the Offered Certificates to a prospective purchaser of Offered
Certificates unless such information is preceded or accompanied by the
Prospectus.
(x) Notwithstanding
the foregoing, the Company agrees that the Underwriters may disseminate
information on Bloomberg and any other similar proprietary system to prospective
investors relating solely to (i)
information
of the type identified in Rule 134 of the Act, (ii)
information
included in the Preliminary Prospectus, (iii)
the
status of allocations and subscriptions of the Offered Certificates
and
information
relating to the class, size, rating, price, CUSIPS, coupon, yield, spread,
benchmark, status and/or legal maturity date of the Offered Certificates, the
weighted average life, expected final payment date, the trade date and payment
window of one or more classes of Offered Certificates, the eligibility of the
Offered Certificates to be purchased by ERISA plans and a column or other entry
showing the status of the subscriptions for the Offered Certificates (both
for
the issuance as a whole and for the Underwriters’ retention) and/or expected
pricing parameters of the Offered Certificates,
and
(iv)
information
constituting final terms of the Offered Certificates within the meaning of
Rule
433(d)(5)(ii) under the Act; provided,
however,
that
any information described in this Section 8(b)(x) shall contain a legend in
substantially the form described in Section 8(c)(i) of this
Agreement.
(xi) It
shall
not accept any such offer to purchase an Offered Certificate or any interest
in
any Offered Certificate or Mortgage Loan or otherwise enter into any Contract
of
Sale for any Offered Certificate, any interest in any Offered Certificate or
any
Mortgage Loan prior to the investor’s receipt of a Time of Sale Free Writing
Prospectus.
(c) The
Company and each Underwriter agree that:
(i) any
Free
Writing Prospectus prepared by it will contain a legend in substantially the
following form:
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 obtain these documents for free by
visiting XXXXX on the SEC Web site at xxx.xxx.xxx.
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] or emailing [_________] at
[___________].
(ii) Notwithstanding
the provisions of Sections 8(b)(v) and 8(d)(ii), neither the Issuer nor any
Underwriter will be required to file any Free Writing Prospectus that does
not
contain substantive changes from or additions to a Free Writing Prospectus
previously filed with the Commission.
(d) The
Company represents, warrants, covenants and agrees with each Underwriter
that:
(i) The
Company will file with the Commission (A) any Issuer Free Writing Prospectus;
(B) any Free Writing Prospectus or portion thereof delivered by the Underwriter
to the Company pursuant to Section 8(b)(ii); and (C) any Free Writing Prospectus
for which the Company or any person acting on its behalf provided, authorized
or
approved information that is prepared and published or disseminated by a person
unaffiliated with the Company or any other offering participant that is in
the
business of publishing, radio or television broadcasting or otherwise
disseminating communications.
(ii) Any
Free
Writing Prospectus required to be filed pursuant to Section 8(b)(ii) by the
Company shall be filed with the Commission not later than the date of first
use
of the Free Writing Prospectus; provided,
however, that
(A)
any Free Writing Prospectus or portion thereof required to be filed that
contains only the description of the final terms of the Certificates will be
filed by the Company with Commission within two days of the later of the date
such final terms have been established for all classes of Certificates and
the
date of first use; (B) any Free Writing Prospectus or portion thereof required
to be filed that contains only ABS ICM will be filed by the Company with the
Commission not later than the later of the due date for filing the Prospectus
relating to the Offered Certificates pursuant to Rule 424(b) under the Act
or
two business days after the first use of such Free Writing Prospectus; (C)
any
Free Writing Prospectus required to be filed pursuant to Section 8(d)(i) will,
if no payment has been made or consideration has been given by or on behalf
of
the Company for the Free Writing Prospectus or its dissemination, be filed
by
the Company with the Commission not later than four business days after the
Company becomes aware of the publication, radio or television broadcast or
other
dissemination of the Free Writing Prospectus and (D) the Company will not be
required to file (1) Issuer Information contained in any Free Writing Prospectus
of an Underwriter or any other offering participant other than the Company
if
such information is included or incorporated by reference in a prospectus or
Free Writing Prospectus previously filed with the Commission that relates to
the
offering of the Certificates or (2) any Free Writing Prospectus or portion
thereof that contains a description of the Certificates or the offering of
the
Certificates that does not reflect the final terms thereof.
9. [Reserved]
10. No
Fiduciary Duty.
The
Company hereby acknowledges that (a) the Underwriters are acting as principal
and not as an agent or fiduciary of the Company and (b) its engagement of the
Underwriters in connection with the Certificate Offering is as independent
contractors and not in any other capacity. No Underwriter has assumed a
fiduciary responsibility or other advisory activity that would be deemed be
a
fiduciary responsibility in favor of the Company with respect to the Certificate
Offering contemplated hereby or the process leading thereto (irrespective of
whether such Underwriter has advised or is currently advising the Company on
other matters) or any other obligation to the Company except the obligations
expressly set forth in this Agreement. Furthermore, the Company agrees that
it
is solely responsible for making its own judgments in connection with the
Certificate Offering (irrespective of whether any of the Underwriters has
advised or is currently advising the Company on related or other matters).
The
Company waives to the full extent permitted by applicable law any claims it
may
have against the Underwriters arising solely from an alleged breach of fiduciary
duty (including the rendering of advisory services that are deemed fiduciary
activities or responsibilities) in connection with any offering of the
Certificates.
11. Default
by One or More of the Underwriters.
If one
or more of the Underwriters participating in the public offering of the Offered
Certificates shall fail at the Closing Date to purchase the Offered Certificates
which it is (or they are) obligated to purchase hereunder (the “Defaulted
Certificates”),
then
the non-defaulting Underwriters shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all,
of the Defaulted Certificates in such amounts as may be agreed upon and upon
the
terms herein set forth. If, however, the Underwriters have not completed such
arrangements within such 24-hour period, then
(a) if
the
aggregate principal amount of Defaulted Certificates does not exceed 10% of
the
aggregate principal amount of the Offered Certificates 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 Certificates exceeds 10% of the
aggregate principal amount of the Offered Certificates to be purchased pursuant
to this Agreement, the non-defaulting Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Offered Certificates, and if such non-defaulting Underwriters do not purchase
all of the Offered Certificates, this Agreement shall terminate, without any
liability on the part of any non-defaulting Underwriters or the
Company.
In
the
event of a default by any Underwriter as set forth in this Section 11,
the
Closing Date for the Offered Certificates shall be postponed for such period,
not exceeding seven days, as the non-defaulting Underwriters and the Company
shall determine in order that the required changes in the Registration
Statement, the Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company and to any non-defaulting
Underwriter for damages occasioned by its default hereunder.
12. Termination.
Notwithstanding anything to the contrary contained in Section 8:
(a)
This
Agreement shall be subject to termination by notice given to the Company, if
the
sale of the Offered Certificates provided for herein is not consummated because
of any failure or refusal on the part of the Company to comply with the terms
or
to fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement, and
if
you terminate this Agreement in accordance with this Section 12(a), the Company
will reimburse the Representatives for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
reasonably incurred by the Underwriters in connection with the proposed purchase
and sale of the Offered Certificates.
(b)
This
Agreement (with respect to a particular Certificate Offering) and the related
Terms Agreement shall be terminable by the Representatives on behalf of the
Underwriters by written notice delivered to the Company if at any time on or
before the related Closing Date (i) trading in securities generally on the
New
York Stock Exchange shall have been suspended, (ii) a general moratorium on
commercial banking activities in New York shall have been declared by either
federal or New York State authorities, or (iii) there shall have occurred any
outbreak or material escalation of hostilities or other calamity or crisis,
the
effect of which on the financial markets of the United States is such as to
make
it, in the reasonable judgment of the Representatives, impracticable or
inadvisable to market such Offered Certificates on the terms and in the manner
contemplated in the Prospectus. Upon such notice being given, the parties to
this Agreement shall (except for the liability of the Company and the
Underwriters under Section 5(g) and Section 7 be released and discharged from
their respective obligations under this Agreement.
13. Representations
and Indemnities to Survive Delivery.
The
agreements, representations, warranties, indemnities and other statements of
the
Company or its officers and of the Underwriters set forth in or made pursuant
to
this Agreement and the related Terms Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Underwriters
or the Company or any of the officers, directors or controlling persons referred
to in Section 7 hereof, and will survive delivery of and payment for the related
Offered Certificates. The provisions of Section 7 hereof shall survive the
termination or cancellation of this Agreement and the related Terms
Agreement.
14. Successors.
This
Agreement and the related Terms Agreement will inure to the benefit of and
be
binding upon the parties hereto and thereto and their respective successors
and
the officers, directors and controlling persons referred to in Section 7 hereof,
and their successors and assigns, and no other person will have any right or
obligation hereunder or thereunder. No purchaser of any Offered Certificate
from
any Underwriter shall be deemed a successor or assign by reason of such
purchase.
15. APPLICABLE
LAW.
(a)
THIS AGREEMENT AND THE RELATED TERMS AGREEMENT WILL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO
AGREEMENTS MADE AND TO BE PERFORMED THEREIN, WITHOUT REFERENCE TO ITS CONFLICT
OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW),
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(b) EACH
PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED
IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION
TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS
AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT;
PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS
MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN
IN
NEW YORK CITY. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY
HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK
OF
PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY
CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HERBY WAIVES PERSONAL SERVICE
OF
THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT
AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE
BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED
IN ACCORDANCE WITH SECTION 18 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED
UPON THE EARLIER OF SUCH PARTY’S ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER
DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS
SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN
ANY
OTHER MANNER PERMITTED BY LAW.
(c) BECAUSE
DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST
QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE
PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION
RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING
SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS
OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT
TO
TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED
WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT (EXCEPT FOR SECTION 7 OF THIS AGREEMENT) OR
THE
TRANSACTIONS CONTEMPLATED HEREBY.
16. Miscellaneous.
This
Agreement, as supplemented by the related Terms Agreement, together with any
contemporaneous written agreements and any prior written agreements (to the
extent not superseded by this Agreement, as supplement by the related Terms
Agreement) that related to the offering of the Certificates, represents the
entire agreement between the Company and the Underwriters with respect to the
preparation of the Prospectus Supplement, and the conduct of the offering,
and
the purchase and sale of the Certificates. This Agreement and the related Terms
Agreement or any term of each may not be changed, waived, discharged or
terminated except by an affirmative written agreement made by the party against
whom enforcement of the change, waiver, discharge or termination is sought.
The
headings in this Agreement and the related Terms Agreement are for purposes
of
reference only and shall not limit or otherwise affect the meaning hereof or
thereof.
17. Counterparts.
This
Agreement may be executed in any number of separate counterparts, each of which
shall collectively and separately constitute one agreement. Executed
counterparts may be delivered electronically.
18. Notices.
All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to the Underwriters, will be delivered to it at the Representatives’
addresses first above written; or if sent to the Company, will be delivered
to
GE-WMC Mortgage Securities, L.L.C., 0000 Xxxxxxxx Xxx., Xxxxxxx, XX 00000,
Attention: Legal Department; with a copy to GE Consumer Finance, 0000 Xxxxxx
Xxxxxx, 0xx
Xxxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxx, Senior Vice
President and Counsel, Capital Markets.
19. Non-Petition
Covenant.
Notwithstanding any prior termination of this Agreement, the Underwriters shall
not acquiesce, petition or otherwise invoke or cause the Company or the Seller
to invoke the process of any court or governmental authority for the purpose
of
commencing or sustaining a case against the Company or the Seller under any
federal or state bankruptcy, insolvency or similar law, or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Company or the Seller or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the
Company or the Seller.
20. Financial
Services Act.
Each
Underwriter represents and warrants to, and agrees with, the Company that (a)
it
has complied and shall comply with all applicable provisions of the Financial
Services and Markets Xxx 0000 (the “FSMA”)
and
the Public Offers of Securities Regulations 1995 (the “Regulations”)
with
respect to anything done by it in relation to the Offered Certificates in,
from
or otherwise involving the United Kingdom; (b) it has only communicated or
caused to be communicated and it will only communicate or cause to be
communicated any invitation or inducement to engage in investment activity
(within the meaning of section 21 of the FSMA) received by it in connection
with
the issue or sale of any Offered Certificates in circumstances in which section
21(1) of the FSMA does not apply to the Company; and (c) it has not offered
or
sold, and prior to the date which is six months after the date of issue of
the
Offered Certificates will not offer or sell any Offered Certificates to persons
in the United Kingdom except to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances which
do not constitute an offer to the public in the United Kingdom for the purposes
of the Regulations.
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to the undersigned a counterpart hereof, whereupon this letter and
your acceptance shall represent a binding agreement between the Company and
the
Underwriters.
Very
truly yours,
GE-WMC
MORTGAGE SECURITIES, L.L.C.
By:
________________________________
Name:
Title:
GE
MORTGAGE HOLDING, L.L.C.
By:
________________________________
Name:
Title:
With
respect solely to Section 7(e),
the
foregoing Agreement is
hereby
confirmed and accepted
as
of the
date first above written
GE-WMC
MORTGAGE HOLDING, INC.
By:
________________________________
Name:
Title:
The
foregoing Agreement is
hereby
confirmed and accepted
as
of the
date first above written.
CITIGROUP
GLOBAL MARKETS INC.
Acting
on
behalf of itself and as the
Representative
of the several Underwriters
By:
___________________________________
Name:
Title:
XXXXXXX,
XXXXX & CO.
Acting
on
behalf of itself and as the
Representative
of the several Underwriters
By:
__________________________________
(Xxxxxxx,
Sachs & Co.)
EXHIBIT
A
GE-WMC
MORTGAGE SECURITIES, L.L.C.
PASS-THROUGH
CERTIFICATES
SERIES
____-__
TERMS
AGREEMENT
dated
[_____], 20[__]
between
the Company and the Representatives)
| GE-WMC Mortgage Securities,
L.L.C. [ADDRESS] |
New
York, New
York
[Date] |
Citigroup
Global Markets Inc. and Xxxxxxx, Xxxxx & Co., as Representatives, and each
of the underwriters named below (collectively, the “Underwriters”)
agree,
subject to the terms and provisions herein and of the captioned Underwriting
Agreement (the “Underwriting
Agreement”),
to
purchase such Classes of Series ____-__ Certificates specified in Section 2(a)
hereof (the “Offered
Certificates”).
This
letter supplements and modifies the Underwriting Agreement solely as it relates
to the purchase and sale of the Offered Certificates described below and the
terms and conditions thereof are incorporated herein by reference. The Series
____-__ Certificates are registered with the Securities and Exchange Commission
by means of an effective Registration Statement (No. 333-_____). [A Preliminary
Prospectus, dated _________, 20__, has been prepared by the Company.] [A Time
of
Sale Free Writing Prospectus, dated ___________, 20__, has been prepared by
or
approved by the Company.] Capitalized terms used and not defined herein have
the
meanings given them in the Underwriting Agreement.
Section
1. The
Mortgage Pool:
The
Series ____-__ Certificates shall evidence the entire beneficial ownership
interest in a mortgage pool (the “Mortgage
Pool”)
of
conventional, fixed rate, fully amortizing one- to four-family residential
mortgage loans (the “Mortgage
Loans”)
having
the following characteristics as of ________ __, ____ (the “Cut-off
Date”):
(a) Aggregate
Principal Amount of the Mortgage Pool:
$[ ] aggregate principal balance as of the Cut-off Date, subject to
[an upward or downward variance of up to [ ]%, the precise aggregate
principal balance to be determined by the Company][a permitted variance such
that the aggregate Scheduled Principal Balance thereof will be not less than
$[ ] or greater than $[ ]].
(b) Original
Terms to Maturity:
The
original term to maturity of each Mortgage Loan included in the Mortgage Pool
shall be between ___ and ___ years.
(c)
Servicer:
(d) Trustee:
Section
2. The
Certificates:
The
Offered Certificates shall be issued as follows:
(a) Classes:
The
Offered Certificates shall be issued with the following Class designations,
interest rates and principal balances, subject in the aggregate to the variance
referred to in Section 1(a)[and, as to any particular Class, to an upward or
downward variance of up to [ ]%]:
|
Class
|
Principal
Balance
|
Interest
Rate
|
Class
Purchase
Price
Percentage
|
Class
____ $_________
___%
___%
(b) The
Offered Certificates shall have such other characteristics as described in
the
Prospectus.
Section
3. Purchase
Price:
The
Purchase Price for each Class of the Offered Certificates shall be the Class
Purchase Price Percentage therefor (as set forth in Section 2(a) above) of
the
initial Class Certificates Principal Balance thereof plus accrued interest
at
the rate of [ ]% per annum from and including the applicable Cut-off Date up
to,
but not including, _________ __, ____ (the “Closing
Date”).
Section
4. Required
Ratings: The
Offered Certificates shall have received Required Ratings of at least
[ ] from [ ].
Section
5. Tax
Treatment: [One
or
more elections will be made to treat the assets of the Trust Fund as a REMIC.]
[The Trust Fund will be treated as a “grantor trust” for federal income tax
purposes.]
Section
6. Underwriters:
[lead,
co-lead, co-managers]
Section
7. Underwriters’
Information:
[(i)
the second sentence in the paragraph under the heading "Risk Factors - The
liquidity of the certificates may be limited" and (ii) the second sentence
of
the first paragraph under the heading “Method of Distribution” in the Prospectus
Supplement as such statements relate to such Offered Certificates.]
Section
8. Underwriting
Discounts and Commissions:
[Section
9. Additional
Expenses:]*
*
to be
inserted if applicable.
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to the undersigned a counterpart hereof, whereupon this letter and
your acceptance shall represent a binding agreement between the Underwriters
and
the Company.
Very
truly yours,
CITIGROUP
GLOBAL MARKETS INC.
Acting
on
behalf of itself and as the
Representative
of the several Underwriters
By:
_____________________________________
Name:
Title:
XXXXXXX,
SACHS & CO.
Acting
on
behalf of itself and as the
Representative
of the several Underwriters
By:
___________________________________
(Xxxxxxx,
Xxxxx & Co.)
The
foregoing Agreement is
hereby
confirmed and accepted
as
of the
date first above written.
[EACH
CO-UNDERWRITER]
By:
________________________________
Name:
Title:
GE-WMC
MORTGAGE SECURITIES, L.L.C.
By:
________________________________
Name:
Title:
GE
MORTGAGE HOLDING, L.L.C.
By:
________________________________
Name:
Title
With
respect solely to Section 7(e),
the
foregoing Agreement is
hereby
confirmed and accepted
as
of the
date first above written
GE-WMC
MORTGAGE HOLDING, INC.
By:
________________________________
Name:
Title
GE-WMC
MORTGAGE SECURITIES, L.L.C.
PASS-THROUGH
CERTIFICATES
SERIES
2006-1
TERMS
AGREEMENT
dated
August 10, 2006
between
the Company and the Representatives)
| GE-WMC Mortgage Securities, L.L.C. 0000 Xxxxxxxx Xxx. Xxxxxxx, XX 00000 |
New
York, New York
August
10, 2006
|
Citigroup
Global Markets Inc. and Xxxxxxx, Xxxxx & Co., as Representatives, and each
of the underwriters named below (collectively, the “Underwriters”)
agree,
subject to the terms and provisions herein and of the captioned Underwriting
Agreement (the “Underwriting
Agreement”),
to
purchase such Classes of Series 2006-1 Certificates specified in Section 2(a)
hereof (the “Offered
Certificates”).
This
letter supplements and modifies the Underwriting Agreement solely as it relates
to the purchase and sale of the Offered Certificates described below and the
terms and conditions thereof are incorporated herein by reference. The Series
2006-1 Certificates are registered with the Securities and Exchange Commission
by means of an effective Registration Statement (No. 333-131203). A Time of
Sale
Free Writing Prospectus, dated August 9, 2006, has been prepared by or approved
by the Company. Capitalized terms used and not defined herein have the meanings
given them in the Underwriting Agreement.
Section
1. The
Mortgage Pool:
The
Series 2006-1 Certificates shall evidence the entire beneficial ownership
interest in a mortgage pool (the “Mortgage
Pool”)
of
non-prime, fixed and adjustable rate, secured by one- to four-family residential
mortgage loans (the “Mortgage
Loans”)
having
the following characteristics as of August 1, 2006 (the “Cut-off
Date”):
(a) Aggregate
Principal Amount of the Mortgage Pool:
$902,258,035.23 aggregate principal balance as of the Cut-off Date, subject
to
an upward or downward variance of up to 5%, the precise aggregate principal
balance to be determined by the Company.
(b) Original
Terms to Maturity:
The
original term to maturity of each Mortgage Loan included in the Mortgage Pool
shall be between 10 and 30 years.
(c)
Servicer:
Xxxxxx
Loan Servicing LP.
(d) Trustee:
Bank of
New York.
Section
2. The
Certificates:
The
Offered Certificates shall be issued as follows:
(a) Classes:
The
Offered Certificates shall be issued with the following Class designations,
interest rates and principal balances, subject in the aggregate to the variance
referred to in Section 1(a) and, as to any particular Class, to an upward or
downward variance of up to 5%:
|
Class
|
Initial
Certificate
Principal
Balance(1)
|
Pass-Through
Rate
|
Margin
(2)(%) (3)(%)
|
Price
to Public
|
Underwriting
Discount
|
Class
Purchase
Price Percentage
|
Class
|
Initial
Certificate
Principal
Balance(1)
|
Pass-Through
Rate
|
Margin
(2)(%) (3)(%)
|
|
Offered
Certificates
|
||||||||||
|
A-2a
|
$261,770,000
|
Variable(4)
|
0.040%
|
0.080%
|
100.0000%
|
0.2150%
|
99.7850%
|
AAA
|
Aaa
|
AAA
|
|
A-2b
|
$247,189,000
|
Variable(4)
|
0.150%
|
0.300%
|
100.0000%
|
0.2150%
|
99.7850%
|
AAA
|
Aaa
|
AAA
|
|
A-2c
|
$
30,091,000
|
Variable(4)
|
0.240%
|
0.480%
|
100.0000%
|
0.2150%
|
99.7850%
|
AAA
|
Aaa
|
AAA
|
|
M-1
|
$
28,872,000
|
Variable(4)
|
0.270%
|
0.405%
|
100.0000%
|
0.2150%
|
99.7850%
|
AA+
|
Aa1
|
AA+
|
|
M-2
|
$
25,714,000
|
Variable(4)
|
0.290%
|
0.435%
|
100.0000%
|
0.2150%
|
99.7850%
|
AA+
|
Aa2
|
AA
|
|
M-3
|
$
15,790,000
|
Variable(4)
|
0.310%
|
0.465%
|
100.0000%
|
0.2150%
|
99.7850%
|
AA
|
Aa3
|
AA
|
|
M-4
|
$
13,985,000
|
Variable(4)
|
0.360%
|
0.540%
|
100.0000%
|
0.2150%
|
99.7850%
|
AA-
|
A1
|
AA-
|
|
M-5
|
$
13,985,000
|
Variable(4)
|
0.380%
|
0.570%
|
100.0000%
|
0.2150%
|
99.7850%
|
A+
|
A2
|
A+
|
|
M-6
|
$
13,083,000
|
Variable(4)
|
0.440%
|
0.660%
|
100.0000%
|
0.2150%
|
99.7850%
|
A
|
A3
|
A
|
|
B-1
|
$
12,180,000
|
Variable(4)
|
0.830%
|
1.245%
|
100.0000%
|
0.2150%
|
99.7850%
|
X-
|
Xxx0
|
X-
|
|
X-0
|
$
9,474,000
|
Variable(4)
|
0.950%
|
1.425%
|
100.0000%
|
0.2150%
|
99.7850%
|
BBB+
|
Baa2
|
BBB+
|
|
B-3
|
$
6,767,000
|
Variable(4)
|
1.800%
|
2.700%
|
100.0000%
|
0.2150%
|
99.7850%
|
BBB
|
Baa3
|
BBB
|
_______________
(1)
Approximate.
May vary by an amount plus or minus 5% of the principal balance
stated.
(2)
For
the
Interest Accrual Period for each Distribution Date on or prior to the Optional
Termination Date (as defined in the Prospectus Supplement).
(3)
For
the
Interest Accrual Period for each Distribution Date after the Optional
Termination Date.
(4)
The
pass-through rate on the Class A Certificates and each class of Subordinate
Certificates will be based on one-month LIBOR plus the applicable margin set
forth above, subject to the rate caps described in the Prospectus
Supplement.
(b) The
Offered Certificates shall have such other characteristics as described in
the
Prospectus.
Section
3. Purchase
Price:
The
Purchase Price for each Class of the Offered Certificates shall be the Class
Purchase Price Percentage thereof (as set forth in Section 2(a) above) of the
initial Class Certificates Principal Balance thereof plus accrued interest
at
the rate set forth in the table in Section 2(a) applicable from and including
the applicable Cut-off Date up to, but not including, August 21, 2006 (the
“Closing
Date”).
Section
4. Required
Ratings: The
Offered Certificates shall have received the ratings by each of Fitch, Xxxxx’x
and S&P set forth in the table in Section 2(a).
Section
5. Tax
Treatment: One
or
more elections will be made to treat designated portions of the Trust as a
REMIC
for federal income tax purposes.
Section
6. Underwriters:
Citigroup
Global Markets Inc. (structuring lead), Xxxxxxx, Sachs & Co. (co-lead); and
Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxx Brothers Inc. and UBS Securities
LLC (co-managers).
Section
7. Underwriters’
Information:
(i) the
second sentence in the paragraph under the heading "Risk Factors - The liquidity
of the certificates may be limited" and (ii) the second sentence of the first
paragraph under the heading “Method of Distribution” in the Prospectus
Supplement as such statements relate to such Offered Certificates.
Section
8. Underwriting
Discounts and Commissions: The underwriting discount applicable to each
class of Offering Certificates shall be as set forth in the table in Section
2(a).
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to the undersigned a counterpart hereof, whereupon this letter and
your acceptance shall represent a binding agreement between the Underwriters
and
the Company.
Very
truly yours,
CITIGROUP
GLOBAL MARKETS INC.
Acting
on
behalf of itself and as the
Representative
of the several Underwriters
By:
_________________________________
Name:
Title:
XXXXXXX,
XXXXX & CO.
Acting
on
behalf of itself and as the
Representative
of the several Underwriters
By:
______________________________
(Xxxxxxx,
Sachs & Co.)
The
foregoing Agreement is
hereby
confirmed and accepted
as
of the
date first above written.
XXXXXX
XXXXXXX & CO. INCORPORATED
By:
________________________________
Name:
Title:
XXXXXX
BROTHERS INC.
By:
________________________________
Name:
Title:
UBS
SECURITIES LLC
By:
________________________________
Name:
Title:
With
respect solely to Section 7(e),
the
foregoing Agreement is
hereby
confirmed and accepted
as
of the
date first above written
GE-WMC
MORTGAGE HOLDING, INC.
By:
________________________________
Name:
Title
