EXHIBIT 1.1
PURCHASE AGREEMENT, DATED AS OF NOVEMBER 21, 2001, BETWEEN
XXXXXXX, XXXXX & CO. AND GS MORTGAGE SECURITIES CORP.
GS MORTGAGE SECURITIES CORP.
GSR MORTGAGE LOAN TRUST 2001-1
MORTGAGE PASS-THROUGH SECURITIES, SERIES 2001-1
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Purchase Agreement
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Dated as of November 21, 2001
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
GSR Mortgage Loan Trust 2001-1 (the "Trust"), proposes to cause to
be issued its Mortgage Pass-Through Certificates, Series 2001-1 (the
"Certificates"), pursuant to a Trust Agreement, dated as of November 1,
2001 (the "Trust Agreement") between GS Mortgage Securities Corp. (the
"Company"), as depositor and JPMorgan Chase Bank, as trustee (the
"Trustee"), and proposes to sell to you (the "Purchaser") the Certificates
specified on Schedule I hereto. The Class A1-1, Class A1-2, Class A1-3,
Class A2, Class X1, Class X2, Class B1, Class B2, Class B3, Class R1, Class
R2 and Class R3 Certificates identified on Schedule I hereto are the
"Publicly Offered Certificates." The Class B4, Class B5, and Class B6
Certificates identified on Schedule I hereto are the "Private
Certificates." The Certificates will represent in the aggregate the entire
beneficial ownership interest in the assets of the Trust primarily
consisting of a segregated pool of mortgage loans and certain other related
assets.
Xxxxxxx Xxxxx Mortgage Company ("GSMC"), either directly or
indirectly, purchased (i) certain mortgage loans (the "ABN AMRO Mortgage
Loans") from ABN AMRO Mortgage Group, Inc. ("ABN AMRO") pursuant to a
Seller's Warranties and Servicing Agreement dated as of August 1, 2001 (the
"ABN AMRO Agreement") among GSMC, as purchaser and ABN AMRO, as seller,
pursuant to which ABN AMRO has made certain representations and warranties
with respect to the ABN AMRO Mortgage Loans, (ii) certain mortgage loans
(the "Bank One Mortgage Loans") from Bank One, National Association ("Bank
One") pursuant to a Seller's Purchase, Warranties and Servicing Agreement
dated as of August 1, 2001 (the "Bank One Agreement") among GSMC, as
purchaser, Bank One as seller, pursuant to which Bank One has made certain
representations and warranties with respect to the Bank One Mortgage Loans,
(iii) certain mortgage loans (the "KeyBank Mortgage Loans") from KeyBank
National Association ("KeyBank") pursuant to a Seller's Warranty Agreement,
dated as of September 25, 2001 (the "KeyBank Agreement") between Bavaria
TRR Corporation, as purchaser, and KeyBank, as seller, pursuant to which
KeyBank has made certain representations and warranties with respect to the
KeyBank Mortgage Loans, and (iv) certain mortgage loans (the "Xxxxx Fargo
Mortgage Loans" and together with the ABN AMRO Mortgage Loans, the Bank One
Mortgage Loans and the KeyBank Mortgage Loans, the "Mortgage Loans") from
Xxxxx Fargo Home Mortgage Inc. ("Xxxxx Fargo") pursuant to a Seller's
Warranties and Servicing Agreement dated as of October 1, 2001 (the "Xxxxx
Fargo Agreement"), between GSMC, as purchaser and Xxxxx Fargo, as seller.
The ABN AMRO Mortgage Loans are being serviced by ABN AMRO pursuant to the
terms of the ABN AMRO Agreement. The Bank One Mortgage Loans are being
serviced by Bank One (formerly known as First Chicago NBD Mortgage Company)
pursuant to the terms of the Bank One Agreement, the KeyBank Mortgage Loans
are being serviced by Countrywide Home Loans, Inc. ("Countrywide") pursuant
to the terms of the Servicing Agreement dated as of September 25, 2001
between GSMC, as owner and Countrywide, as servicer (the "Countrywide
Agreement" and together with the ABN AMRO Agreement, the Bank One
Agreement, the KeyBank Agreement and the Xxxxx Fargo Agreement, the "Sale
and Servicing Agreements"), and the Xxxxx Fargo Mortgage Loans are being
serviced by Xxxxx Fargo pursuant to the terms of Xxxxx Fargo Agreement.
The Company will acquire (i) the ABN AMRO Mortgage Loans pursuant
to an Assignment, Assumption and Recognition Agreement dated as of November
1, 2001 (the "GSMC ABN AMRO Assignment") among GSMC, the Depositor and ABN
AMRO; (ii) the Bank One Mortgage Loans pursuant to an Assignment,
Assumption and Recognition Agreement dated as of November 1, 2001 (the
"GSMC Bank One Assignment") among GSMC, the Depositor and Bank One; (iii)
the KeyBank Mortgage Loans pursuant to an acknowledgement letter dated as
of November 1, 2001 (the"KeyBank Acknowledgement") by KeyBank and an
Assignment, Assumption and Recognition Agreement dated as of November 1,
2001 (the "GSMC Countrywide Assignment") among GSMC, the Depositor and
Countrywide; (iv) the Xxxxx Fargo Mortgage Loans pursuant to an Assignment,
Assumption and Recognition Agreement dated as of November 1, 2001 (the
"GSMC Xxxxx Fargo Assignment" and together with the GSMC ABN AMRO
Assignment, the GSMC Bank One Assignment, GSMC Countrywide Assignment and
the KeyBank Acknowledgement, the "GSMC Assignment Agreements") among GSMC,
the Depositor and Xxxxx Fargo. Pursuant to the GSMC Assignment Agreements,
GSMC will assign certain of its rights with respect to such representations
and warranties under the Sale and Servicing Agreements to the Company.
Pursuant to (i) an Assignment, Assumption and Recognition
Agreement dated as of November 1, 2001 (the "Depositor ABN AMRO
Assignment") among the Company, the Trust and ABN AMRO; (ii) an Assignment,
Assumption and Recognition Agreement dated as of November 1, 2001 (the
"Depositor Bank One Assignment") among the Company, the Trust and Bank One;
(iii) the KeyBank Acknowledgement and an Assignment, Assumption and
Recognition Agreement dated as of November 1, 2001 (the "Depositor
Countrywide Assignment") among the Company, the Trust and Countrywide; (iv)
an Assignment, Assumption and Recognition Agreement dated as of November 1,
2001 (the "Depositor Xxxxx Fargo Assignment" and together with the
Depositor ABN AMRO Assignment, the Depositor Bank One Assignment, the
Depositor Countrywide Assignment and the KeyBank Acknowledgement, the
"Depositor Assignment Agreements") among the Company, the Trust and Xxxxx
Fargo, the Company will assign its rights under the Sale and Servicing
Agreements to the Trust. The GSMC Assignment Agreements and the Depositor
Assignment Agreements are collectively referred to herein as the
"Assignment Agreements."
Certain ABN AMRO Mortgage Loan documents, including the mortgage
notes and mortgages, will be held by XX Xxxxxx Chase Bank (formerly known
as The Chase Manhattan Bank), acting in its capacity as custodian (the
"Custodian") pursuant to a Custodial Agreement dated as of August 1, 2001
among GSMC, the Custodian and ABN AMRO. Certain Bank One Mortgage Loan
documents, including the mortgage notes and mortgages, will be held by the
Custodian pursuant to a Custodial Agreement, dated as of August 1, 2001
among GSMC, the Custodian and Bank One. Certain KeyBank Mortgage Loan
documents, including the mortgage notes and mortgages, will be held by the
Custodian pursuant to a Custodial Agreement dated as of September 25, 2001
between Bavaria TRR Corporation and the Custodian. Certain Xxxxx Fargo
Mortgage Loan documents, including the mortgage notes and mortgages, will
be held by the Custodian pursuant to a Custodial Agreement dated as of
November 1, 2001 between, GSMC, Xxxxx Fargo and the Custodian. The
Certificates are described more fully in Schedule I hereto and in the
Prospectus (as defined herein). Capitalized terms used but not defined
herein shall have the meanings given to them in the Prospectus.
1. The Company represents and warrants to, and agrees with, the
Purchaser that:
(a) Registration statement on Amendment No. 1 to Form S-3
No. 333-68812, including a form of prospectus and such amendments
thereto as may have been required to the date hereof, relating to
the Publicly Offered Certificates and the offering thereof from
time to time in accordance with Rule 415 under the Securities Act
of 1933, as amended (the "Act"), have been filed with the
Securities and Exchange Commission (the "Commission") and such
registration statement, as amended, has become effective. Such
registration statement, as amended at the Effective Time (as
defined herein), including the exhibits thereto and any material
incorporated by reference therein, are hereinafter referred to as
the "Registration Statement," and the prospectus (including the
base prospectus and any prospectus supplement) relating to the
Publicly Offered Certificates, as last filed, or mailed for
filing, with the Commission pursuant to Rule 424(b) ("Rule
424(b)") under the Act is hereinafter referred to as the
"Prospectus." For purposes of offering the Private Certificates,
an offering memorandum (the "Offering Memorandum") will be
prepared with respect to the Private Certificates which shall
include and incorporate the Prospectus as a part thereof. For
purposes of this Agreement, "Effective Time" means the date and
time as of which such Registration Statement, or the most recent
post-effective amendment thereto, is declared effective by the
Commission, and "Effective Date" means the date of the Effective
Time;
(b) On the Effective Date, the Registration Statement did
conform in all material respects to the requirements of the Act,
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), where applicable, and the rules and regulations of the
Commission under the Act or the Exchange Act, as applicable, and
did not, as of the Effective Date, 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; provided, however, that this representation and
warranty shall not apply to any statement or omission made in
reliance upon and in conformity with information furnished in
writing to the Company by the Purchaser expressly for use in the
Registration Statement;
(c) On the date of this Agreement, the Registration
Statement conforms, and at the time of the last filing of the
Prospectus pursuant to Rule 424(b), the Registration Statement and
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder (the "Rules and Regulations"), and, except
as aforesaid, neither of such documents includes, or will include,
any untrue statement of a material fact or omits, or will omit, to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading;
(d) The Private Certificates constitute exempt securities
under Section 3(a)(3) of the Act, and registration of the Private
Securities under the Act is not required in connection with the
offer, issuance, sale or delivery of the Private Securities
pursuant to Rule 144A under the Act;
(e) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission conformed in
all material respects to the requirements of the Exchange Act and
the rules and regulations thereunder; and any further documents so
filed and incorporated by reference in the Prospectus, when such
documents are filed with the Commission, will conform in all
material respects to the requirements of the Exchange Act and the
rules and regulations thereunder;
(f) Since the date as of which information is given in
the Prospectus, there has not been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, management, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Prospectus;
(g) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware and has all requisite power and authority
(corporate and other) to own its properties and to conduct its
business as described in the Prospectus;
(h) At the Time of Delivery (as defined in Section 3
hereof), the Trust Agreement and Assignment Agreements will have
been duly authorized, executed and delivered and will constitute a
valid and legally binding obligation of the Company, enforceable
in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general principles of equity;
(i) When the Certificates are issued, executed,
authenticated and delivered pursuant to this Agreement and the
Trust Agreement, the Certificates will have been duly authorized,
executed, authenticated, issued and delivered and will be entitled
to the benefits of the Trust Agreement; and the Certificates and
the Trust Agreement will conform to the descriptions thereof in
the Prospectus and the Offering Memorandum;
(j) The issue and sale of the Certificates, the
compliance by the Company with all of the provisions of this
Agreement, the Trust Agreement, and the Assignment Agreements, and
the consummation of the transactions herein and therein
contemplated, will not conflict with or result in a breach of any
of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which the Company is a party
or by which the Company is bound or to which any of the property
or assets of the Company is subject, nor will such action result
in any violation of the provisions of the Certificate of
Incorporation or the By-Laws of the Company or any statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company, or any of its
properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of
the Certificates or the consummation by the Company of the other
transactions contemplated by this Agreement, the Trust Agreement
or the Assignment Agreement except such as have been obtained
under the Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Certificates by the Purchaser;
(k) The statements set forth in each of the Prospectus
and Offering Memorandum under the caption "Description of the
Certificates," insofar as they purport to constitute a summary of
the terms of the Certificates and insofar as they purport to
describe the provisions of the documents referred to therein, are
accurate, complete and fair;
(l) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings pending
to which the Company is a party or of which any property of the
Company is the subject that, if determined adversely to the
Company, would individually or in the aggregate have a material
adverse effect on the condition (financial or otherwise),
earnings, affairs, business, properties or prospects of the
Company, and to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(m) The Company will, at the Time of Delivery, own the
Mortgage Loans, free and clear of any lien, mortgage, pledge,
charge, security interest or other encumbrance, and, at the Time
of Delivery, the Company will have full power and authority to
sell and deliver the Mortgage Loans to the Trustee under the Trust
Agreement and at the Time of Delivery will have duly authorized
such assignment and delivery to the Trustee by all necessary
action;
(n) Any taxes, fees and other governmental charges in
connection with the execution, delivery and performance of this
Agreement, the Trust Agreement, the Assignment Agreements and the
Certificates will have been paid at or prior to the Time of
Delivery;
(o) At the Time of Delivery, the Mortgage Loans will have
been duly and validly assigned and delivered by the Company to the
Trustee;
(p) The Trust created by the Trust Agreement will not at
the Time of Delivery be required to be registered under the
Investment Company Act of 1940, as amended (the "Investment
Company Act");
(q) The Company is not and at the Time of Delivery will
not be an "investment company," as such term is defined in the
Investment Company Act;
(r) When the Certificates are issued and delivered
pursuant to this Agreement, the Certificates will not be of the
same class (within the meaning of Rule 144A under the Act) as
securities that are listed on a national securities exchange,
registered under Section 6 of the Exchange Act or quoted in a U.S.
automated inter-dealer quotation system;
(s) The Class A1-1, Class A1-2, Class A1-3, Class A2,
Class X1, Class X2, Class B1, Class R1, Class R2 and Class R3
Certificates will be mortgage related securities, as defined in
Section 3(a)(41) of the Exchange Act, as long as such Certificates
are rated in one of the two highest rating grades by at least one
nationally recognized statistical rating organization; and
(t) Within the preceding six months, neither the Company
nor any other person acting on behalf of the Company has offered
or sold to any person any of the Private Certificates, or any
securities of the same or a similar class as the Private
Certificates, other than the Private Certificates offered or sold
to the Purchaser hereunder. The Company will take reasonable
precautions designed to insure that any offer or sale, direct or
indirect, of any of the Private Certificates or any substantially
similar security issued by the Trust, within six months subsequent
to the date on which the distribution of the Private Certificates
has been completed (as notified to the Company by Xxxxxxx, Xxxxx &
Co.), is made under restrictions and other circumstances
reasonably designed not to effect the status of the offer and sale
of the Private Certificates contemplated by this Agreement as
transactions exempt from the registration provisions of the Act.
2. Subject to the terms and conditions herein set forth, the
Company agrees to sell to the Purchaser, and the Purchaser agrees to
purchase from the Company, at a purchase price determined in accordance
with Schedule II hereto, the principal amount of the Certificates. Upon the
authorization by you of the release of the Certificates, the Purchaser
proposes (i) to offer the Publicly Offered Certificates for sale to the
public (which may include selected dealers), as set forth in the
Prospectus, (ii) to offer the Private Certificates for sale to
institutional investors as set forth in the Offering Memorandum and (iii)
to transfer a Percentage Interest equal to 0.01% in each of the Class R1,
Class R2 and Class R3 Certificates to JPMorgan Chase Bank, as Trustee. The
Purchaser hereby represents and warrants to, and agrees with the Company
that:
(a) it will offer and sell the Private Certificates only
to persons it reasonably believes are "qualified institutional
buyers" ("QIBs") within the meaning of Rule 144A under the Act in
transactions meeting the requirements of Rule 144A;
(b) it is a QIB; and
(c) it will not offer or sell the Private Certificates by
any form of general solicitation or general advertising, including
but not limited to the methods described in Rule 502(c) under the
Act.
3. (a) Except as set forth in the next paragraph, the Class A1-1,
Class A1-2, Class A1-3, Class A2, Class X1, Class X2, Class B1, Class B2
and Class B3 Certificates to be purchased by the Purchaser will be
represented by one or more definitive global Certificates in book-entry
form, which will be deposited by or on behalf of the Company with The
Depository Trust Company ("DTC") or its designated custodian. The Company
will deliver such Certificates to the Purchaser, against payment by or on
behalf of the Purchaser of the purchase price therefor by wire transfer to
the Company of Federal (same day) funds, by causing DTC to credit such
Certificates to the account of the Purchaser at DTC. The Company will cause
the certificates representing such Certificates to be made available to the
Purchaser for checking at least twenty-four hours prior to the Time of
Delivery at an office designated by the Purchaser (the "Designated
Office"). The time and date of such delivery and payment shall be 10:00
a.m., New York City time, on November 27, 2001, or such other time and date
as the Purchaser and the Company may agree upon in writing. Such time and
date are herein called the "Time of Delivery."
All of the Class B4, Class B5, Class B6, Class R1, Class R2 and
Class R3 Certificates shall be delivered in definitive certificated form,
by or on behalf of the Company to the Purchaser, against payment by or on
behalf of the Purchaser of the purchase price therefor by wire transfer to
the Company of Federal (same day) funds.
(b) The documents to be delivered at the Time of Delivery
by or on behalf of the parties hereto pursuant to Section 6
hereof, including the cross-receipt for the Certificates and any
additional documents requested by the Purchaser pursuant to
Section 6(l) hereof, will be delivered at the offices of Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP ("Skadden") at 0 Xxxxx Xxxxxx, Xxx
Xxxx, XX 00000 (the "Closing Location"), and the Certificates will
be delivered at the Designated Office, all at the Time of
Delivery. A meeting will be held at the Closing Location at 3:00
p.m., New York City time, on the New York Business Day next
preceding the Time of Delivery, at which meeting the final drafts
of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto. For
the purposes of this Section 3, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday that is not a
day on which banking institutions in New York City are generally
authorized or obligated by law or executive order to close.
4. The Company agrees with the Purchaser:
(a) If required, to file the Prospectus with the
Commission pursuant to and in accordance with Rule 424(b) not
later than the time specified therein. The Company will advise the
Purchaser promptly of any such filing pursuant to Rule 424(b);
(b) To make no amendment or any supplement to the
Registration Statement, the Prospectus or the Offering Memorandum
as amended or supplemented prior to the Closing Date, without
furnishing the Purchaser with a copy of the proposed form thereof
and providing the Purchaser with a reasonable opportunity to
review the same; and during such same period to advise the
Purchaser, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus as amended
or supplemented or any amended Prospectus has been filed or mailed
for filing, of the issuance of any stop order by the Commission,
of the suspension of the qualification of any of the Certificates
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement, the Prospectus or the Offering Memorandum
as amended or supplemented or for additional information; and, in
the event of the issuance of any such stop order or of any order
preventing or suspending the use of any prospectus or offering
memorandum relating to the Certificates or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(c) Promptly from time to time to take such action as the
Purchaser may reasonably request in order to qualify the
Certificates for offering and sale under the securities laws of
such states as the Purchaser may request and to continue such
qualifications in effect so long as necessary under such laws for
the distribution of such Certificates, provided that in connection
therewith neither the Trust nor the Company shall be required to
qualify to do business, or to file a general consent to service of
process in any jurisdiction, and provided, further, that the
expense of maintaining any such qualification more than one year
from the Closing Date with respect to such Certificates shall be
at the Purchaser's expense and the expense of maintaining any such
qualification with respect to the Private Certificates shall be at
the expense of the Purchaser;
(d) To furnish the Purchaser with copies of the
Registration Statement (including exhibits) and copies of the
Prospectus and the Offering Memorandum as amended or supplemented
in such quantities as the Purchaser may from time to time
reasonably request; and if, before a period of six months shall
have elapsed after the Closing Date and the delivery of a
prospectus or offering document shall be at the time required by
law in connection with sales of any such Certificates, either (i)
any event shall have occurred as a result of which the Prospectus
or the Offering Memorandum would include any untrue statement of a
material fact or omit 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, or (ii)
for any other reason it shall be necessary during such same period
to amend or supplement the Prospectus or the Offering Memorandum,
as amended or supplemented, to notify the Purchaser and upon its
request to prepare and furnish without charge to the Purchaser and
to any dealer in securities as many copies as the Purchaser may
from time to time reasonably request an amendment or a supplement
to the Prospectus or the Offering Memorandum which will correct
such statement or omission or effect such compliance; and in case
the Purchaser is required by law to deliver a prospectus or other
offering document in connection with sales of any of such
Certificates at any time six months or more after the Closing
Date, upon the Purchaser's request, but at its own expense, to
prepare and deliver to the Purchaser as many copies as the
Purchaser may request of an amended or supplemented prospectus or
offering document complying with the Act;
(e) To make generally available to Holders of
Certificates as soon as practicable, but in any event no later
than eighteen months after the Closing Date, an earnings statement
of the Company complying with Rule 158 under the Act and covering
a period of at least twelve consecutive months beginning after the
Closing Date;
(f) So long as any of the Certificates are outstanding,
to furnish the Purchaser copies of all reports or other
communications (financial or other) furnished to Holders of
Certificates, and to deliver to the Purchaser during such same
period, (i) as soon as they are available, copies of any reports
and financial statements furnished to or filed with the
Commission; (ii) copies of each amendment to any of the Trust
Agreement, the Sale and Servicing Agreements and the Assignment
Agreements; and (iii) such additional information concerning the
business and financial condition of the Company or the Trust as
the Purchaser may from time to time reasonably request;
(g) During the period beginning from the date hereof and
continuing to and including the later of (i) the termination of
trading restrictions for the Private Certificates, as notified to
the Company by the Purchaser, and (ii) the Time of Delivery for
the Private Certificates, not to offer, sell, contract to sell or
otherwise dispose of any securities of the Company that mature
more than one year after the Time of Delivery and that are
substantially similar to the Private Certificates, without the
prior written consent of the Purchaser;
(h) To furnish at its expense, upon request, to Holders
of the Private Certificates and prospective purchasers of
securities information (the "Additional Issuer Information")
satisfying the requirements of subsection (d)(4)(i) of Rule 144A
under the Act;
(i) If requested by you, to use its best efforts to cause
the Certificates to be eligible for the PORTAL trading system of
the National Association of Securities Dealers, Inc. ("PORTAL");
and
(j) Not to be or become an open-end investment company,
unit investment trust, closed-end investment company or
face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act.
5. The Company covenants and agrees with the Purchaser that the
Company will pay or cause to be paid the following: (i) the Commission's
filing fees with respect to the Publicly Offered Notes, (ii) the fees,
disbursements and expenses of counsel and accountants for the Company in
connection with the issue of the Certificates and all other expenses in
connection with the preparation and printing of all amendments and
supplements thereto and the mailing and delivery of copies thereof to the
Purchaser and dealers, (iii) the cost of printing or producing this
Agreement, the Trust Agreement, any Blue Sky Memorandum and any term
sheets, computational materials, preliminary and final prospectus
supplements and any other document produced in connection with the
offering, purchase, sale and delivery of the Certificates, (iii) all
expenses in connection with the qualification of the Certificates for
offering and sale under state securities laws as provided in Section 4(b)
hereof, including the fees and disbursements of counsel for the Purchaser
in connection with such qualification and in connection with the Blue Sky
Memorandum; (iv) any fees charged by securities rating services for rating
the Certificates; (v) the cost of preparing the Certificates; (vi) the fees
and expenses of the Trustee and of any agent of the Trustee and the fees
and disbursements of counsel for the Trustee in connection with the Trust
Agreement and the Certificates; (vii) any cost incurred in connection with
the designation of the Certificates for trading in PORTAL; and (viii) all
other costs and expenses incident to the performance of the Company's
obligations hereunder that are not otherwise specifically provided for in
this Section. It is understood, however, that, except as provided in this
Section 5, Section 7 and Section 10 hereof, the Purchaser will pay all of
its own costs and expenses, including the fees of its counsel, transfer
taxes on resale of any of the Certificates by it and any advertising
expenses connected with any offers it may make.
6. The obligations of the Purchaser shall be subject, in the
discretion of the Purchaser, to the condition that all representations and
warranties and other statements of the Company herein are, at and as of the
Time of Delivery for the Certificates, true and correct, the condition that
the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Trust Agreement, the Sale and Servicing
Agreements, the Assignment Agreements and all of the other
agreements identified in such agreements, shall have been duly
entered into by all of the respective parties;
(b) Skadden shall have furnished to the Purchaser their
written opinions, dated the Time of Delivery for the Certificates,
in form and substance satisfactory to the Purchaser;
(c) Counsel for ABN AMRO, Bank One, KeyBank and Xxxxx
Fargo satisfactory to the Purchaser shall have furnished to the
Purchaser their written opinion, dated on or about the delivery
date of the ABN AMRO Mortgage Loans, the Bank One Mortgage Loans,
the KeyBank Mortgage Loans and the Xxxxx Fargo Mortgage Loans,
respectively;
(d) Counsel for the Trustee satisfactory to the Purchaser
shall have furnished to the Purchaser their written opinion, dated
as of the Time of Delivery for the Certificates, in form and
substance satisfactory to the Purchaser and counsel for the
Purchaser;
(e) The independent accountants of the Company or other
accountants acceptable to the Purchaser shall have furnished to
the Purchaser a letter or letters, dated on the date hereof, and a
letter or letters, dated the Time of Delivery, respectively,
containing statements and information of the type customarily
included in accountants' "comfort letters" and "agreed upon
procedures letters" with respect to certain financial information
contained in the Prospectus, in each case as to such matters as
the Purchaser may reasonably request and in form and substance
satisfactory to the Purchaser;
(f) (i) Neither the Company nor any of its subsidiaries
shall have sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus as amended prior to the Time of Delivery any loss or
interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as
amended prior to the Time of Delivery, and (ii) since the
respective dates as of which information is given in the
Prospectus as amended prior to the Time of Delivery there shall
not have been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the
general affairs, management, financial position, shareholders'
equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as amended prior to the Time of Delivery, the effect of
which, in any such case described in clause (i) or (ii), is in the
judgment of the Purchaser so material and adverse as to make it
impracticable or inadvisable to proceed with the offering or the
delivery of the Certificates on the terms and in the manner
contemplated in the Prospectus or Offering Memorandum as first
amended or supplemented;
(g) On or after the date hereof (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities
or preferred stock by any "nationally recognized statistical
rating organization," as that term is defined by the Securities
and Exchange Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities
or preferred stock;
(h) On or after the date hereof, there shall not have
occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York
Stock Exchange; (ii) a general moratorium on commercial banking
activities in New York declared by either Federal or New York
State authorities; or (iii) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any
such event specified in this clause (iii) in the judgment of the
Purchaser makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Certificates on the
terms and in the manner contemplated in the Prospectus or Offering
Memorandum;
(i) The Company shall have furnished or caused to be
furnished to the Purchaser at the Time of Delivery certificates of
its officers satisfactory to the Purchaser as to the accuracy in
all material respects of its representations and warranties herein
at and as of such Time of Delivery, as to the performance of all
of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in Section 6(a)
above and as to such other matters as the Purchaser may reasonably
request;
(j) The Purchaser shall have received evidence
satisfactory to it that the Certificates are rated in the rating
category or categories specified on Schedule I hereto by the
rating agency or agencies specified on Schedule I hereto;
(k) All opinions, certificates and other documents
incident to, and all proceedings in connection with the
transactions contemplated by, this Agreement, the Assignment
Agreements, the Sale and Servicing Agreements, and the Trust
Agreement shall be satisfactory in form and substance to the
Purchaser and its special counsel; and
(l) The Registration Statement has become effective under
the Act and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or threatened by the Commission.
The Purchaser and its special counsel shall have received copies
of all documents and other information as they may reasonably request, in
form and substance satisfactory, to the Purchaser and its special counsel,
with respect to such transactions and the taking of all proceedings in
connection therewith.
7. (a) The Company will indemnify and hold harmless the Purchaser
against any losses, claims, damages or liabilities, joint or several, to
which the Purchaser may become subject, under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, Prospectus or Offering Memorandum as amended or
supplemented or any other offering material relating to the Certificates,
or any amendment or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Purchaser for any legal or other
expenses reasonably incurred by the Purchaser in connection with
investigating (or defending any such action or claim; provided, however,
that the Company shall not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission made in any such document in reliance upon and in conformity with
written information furnished to the Company by the Purchaser expressly for
use in the Registration Statement, Prospectus or Offering Memorandum.
(b) The Purchaser will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act, the Exchange
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, Prospectus
or Offering Memorandum as amended or supplemented or any other
offering material relating to the Certificates or any amendment or
supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any such document in reliance upon
and in conformity with written information furnished to the
Company by the Purchaser expressly for use therein.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof the indemnifying
party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than
reasonable costs of investigation.
(d) If the indemnification provided for in this Section 7
is unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions
in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one
hand and the Purchaser on the other from the offering of the
Certificates to which such loss, claim, damage or liability (or
actions in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect
not only such relative benefits but also the relative fault of the
Company on the one hand and the Purchaser on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and
the Purchaser on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Purchaser.
The relative fault 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 on
the one hand or the Purchaser on the other and the parties'
relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and
the Purchaser agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by
pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to
above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in
this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (d), the
Purchaser shall not be required to contribute any amount in excess
of the amount by which the total price at which the Certificates
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which the Purchaser
has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. 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.
(e) The obligations of the Company under this Section 7
shall be in addition to any liability which the Company may
otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls the Purchaser
within the meaning of the Act; and the obligations of the
Purchaser with respect to any Certificates under this Section 7
shall be in addition to any liability which the respective
Purchaser may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company and to
each person, if any, who controls the Company within the meaning
of the Act.
8. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the Purchaser as set
forth in this Agreement, shall remain in full force and effect, regardless
of any investigation (or any statement as to the results thereof) made in
connection with the issuance of Certificates by or on behalf of the
Purchaser or any controlling person of the Purchaser, or the Company, or
any officer or director or controlling person of the Company and shall
survive delivery of and payment for the Certificates.
9. If for any reason the Certificates are not delivered by or on
behalf of the Trustee as provided herein, other than by the Purchaser's
failure to comply with its obligations hereunder, the Company will
reimburse the Purchaser for all out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred by the Purchaser in making
preparations for the purchase, sale and delivery of the Certificates, but
the Company shall be under no further liability to the Purchaser with
respect to such Certificates except as provided in Section 5 and Section 7
hereof.
10. (a) The Purchaser may prepare and provide to prospective
investors "Computational Materials," "ABS Term Sheets" and "Collateral Term
Sheets" (collectively, the "8-K Information") in connection with its
offering of the Certificates, as described in the No-Action Letter of May
20, 1994 issued by the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation
I and certain affiliates, as made applicable to other issuers and
underwriters by the Commission in response to the request of the Public
Securities Association dated May 24, 1994 (collectively, the "Xxxxxx/PSA
Letter"), and the requirements of the No-Action Letter of February 17, 1995
issued by the Commission to the Public Securities Association (the "PSA
Letter" and, together with the Xxxxxx/PSA Letter, the "No-Action Letters");
subject to the following conditions: (i) the Purchaser shall comply with
the requirements of the No-Action Letters; (ii) for purposes hereof,
"Computational Materials" shall have the meaning given such term in the
No-Action Letters, but with respect to the Purchaser shall include only
those Computational Materials that have been prepared by the Purchaser for
prospective investors and for purposes hereof and "ABS Term Sheets" and
"Collateral Term Sheets" shall have the meanings given such terms in the
PSA Letter but with respect to the Purchaser shall include only those ABS
Term Sheets or Collateral Term Sheets that have been prepared by the
Purchaser for prospective investors; (iii) the Purchaser shall provide to
the Company any 8-K Information which is provided to investors no later
than the second Business Day preceding the date such 8-K Information is
required to be filed pursuant to the applicable No-Action Letters and the
Purchaser may provide copies of the foregoing in a consolidated or
aggregated form including all information required to be filed; and (iv) in
the event that the Company or the Purchaser discovers an error in the 8-K
Information, the party that prepared such material shall prepare corrected
8-K Information and deliver it to the Company for filing.
(b) The Company will cause to be filed with the
Commission one or more current reports on Form 8-K with respect to
the 8-K Information.
11. All statements, requests, notices and agreements hereunder
shall be in writing or by telegram if promptly confirmed in writing, and
shall be sufficient in all respects, if delivered or sent by registered
mail, if to the Purchaser, to the address of the Purchaser set forth above;
if to the Company, to the address of the Company set forth in the
Prospectus, Attention: President.
12. This Agreement shall be binding upon, and inure solely to the
benefit of the Purchaser, the Company and, to the extent provided in
Section 7 hereof, the officers and directors of the Company and each person
who controls the Company or the Purchaser, and their respective heirs,
executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Certificates from the Purchaser shall be deemed a
successor or assign merely by reason of such purchase.
13. Time shall be of the essence of this Agreement.
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed
to be an original. but all such respective counterparts shall together
constitute one and the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned two counterparts
hereof, whereupon this letter and your acceptance shall represent a binding
agreement between the Company and the Purchaser.
Very truly yours,
GS MORTGAGE SECURITIES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
Accepted as of the date hereof:
XXXXXXX, SACHS & CO.
By: /s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
Title: Managing Director
Xxxxxxx Xxxxx Mortgage Company is executing this Agreement to
guarantee the accuracy of the representations made by the Company and the
performance by the Company of each of its obligations under this Agreement,
including particularly the obligations of the Company under Section 7 of
this Agreement.
XXXXXXX SACHS MORTGAGE COMPANY
By: Xxxxxxx Xxxxx Real Estate Funding
Corp., its General Partner
By: /s/ Xxxxx X. Xxxx
----------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
SCHEDULE I
Approximate Initial Security
Principle Balance/Notional Ratings
Class of Certificates Amount Certificate Rate (Fitch/Xxxxx'x)
---------------------- --------------------------------- ------------------ ---------------------
Class A1-1 $155,727,000 1 AAA/Aaa
Class A1-2 $68,736,000 2 AAA/Aaa
Class A1-3 $92,471,000 3 AAA/Aaa
Class A2 $101,263,000 4 AAA/Aaa
Class X1 $316,934,000 0 XXX/Xxx
(Xxxxxxxx Xxxxxx)
Class X2 $101,263,000 0 XXX/Xxx
(Xxxxxxxx Xxxxxx)
Class B1 $5,867,000 7 AA/Aa2
Class B2 $3,911,000 7 A/A2
Class B3 $2,389,000 7 BBB/Baa2
Class B4 $1,304,000 7 BB/Ba2
Class B5 $1,086,000 7 B/B2
Class B6 $1,738,406 7 N/A
Class R1 $100 8 AAA/Aaa
Class R2 $100 8 AAA/Aaa
Class R3 $100 8 AAA/Aaa
(1) For the initial Distribution Date, the rate at which interest will
accrue stated as a rate per annum (the "Certificate Rate") on the
Class A1-1 Certificates will equal 3.068%. For each Distribution
Date on or before August 2006, the Certificate Rate on these
certificates will equal the lesser of (x) 3.068% and (y) the
weighted average of the mortgage interest rates on the Group 1
loans (as of the second preceding Due Date) less the per annum
rates at which each of the servicing fee and the trustee fee are
calculated (the "Group 1 Weighted Average Net Rate"). For the
Distribution Date in September 2006 and thereafter, the
Certificate Rate on the Class A1-1 Certificates will equal the
Group 1 Weighted Average Net Rate.
(2) For the initial Distribution Date, the Certificate Rate on the
Class A1-2 Certificates will equal 4.612%. For each Distribution
Date on or before August 2006, the Certificate Rate on these
certificates will equal the lesser of (x) 4.612% and (y) the Group
1 Weighted Average Net Rate. For the Distribution Date in
September 2006 and thereafter, the Certificate Rate on the Class
A1-2 Certificates will equal the Group 1 Weighted Average Net
Rate.
(3) For the initial Distribution Date, the Certificate Rate on the
Class A1-3 Certificates will equal 6.045%. For each Distribution
Date on or before August 2006, the Certificate Rate on these
certificates will equal the lesser of (x) 6.045% and (y) the Group
1 Weighted Average Net Rate. For the Distribution Date in
September 2006 and thereafter, the Certificate Rate on the Class
A1-3 Certificates will equal the Group 1 Weighted Average Net
Rate.
(4) For the initial Distribution Date, the Certificate Rate on the
Class A2 Certificates will equal approximately 5.575%. For each
Distribution Date on or before May 2009, the Certificate Rate on
these certificates will equal the lesser of (x) 5.575% and (y) the
weighted average of the mortgage interest rates on the Group 2
loans (as of the second preceding Due Date) less the per annum
rates at which each of the servicing fee and the trustee fee are
calculated (the "Group 2 Weighted Average Net Rate"). For the
Distribution Date in June 2009 and thereafter, the Certificate
Rate on these certificates will equal the Group 2 Weighted Average
Net Rate.
(5) The approximate Certificate Rate for the first Distribution Date
is stated as a percentage of the aggregate Certificate Balance of
the Class A1-1, A1-2 and A1-3 Certificates (the "Notional Amount"
for the Class X1 Certificates). On each Distribution Date, the
Class X1 Certificates will be entitled to receive (i) the excess,
if any, of the Group 1 Weighted Average Net Rate over the Class
A1-1 Certificate Rate, (ii) the excess, if any, of the Group 1
Weighted Average Net Rate over the Class A1-2 Certificate Rate,
and (iii) the excess, if any, of the Group 1 Weighted Average Net
Rate over the Class A1-3 Certificate Rate, in each case,
multiplied by the Certificate Balance of such class.
(6) The approximate Certificate Rate for the first Distribution Date
is stated as a percentage of the aggregate Certificate Balance of
the Class A2 Certificates (the Notional Amount for the Class X2
Certificates). On each Distribution Date, the Class X2
Certificates will be entitled to receive the excess, if any, of
the Group 2 Weighted Average Net Rate over the Class A2
Certificate Rate multiplied by the Certificate Balance of such
class.
(7) For the initial Distribution Date, the Certificate Rate on these
certificates will equal approximately 6.660%. On each Distribution
Date thereafter, the Certificate Rate on these certificates will
equal the Class B Certificate Rate.
(8) The Certificate Rate will equal the Group 1 Weighted Average Net
Rate which for the initial Distribution Date will equal
approximately 6.660%.
SCHEDULE II
-----------
Purchase Price
--------------
Price to Proceeds to the
Class CUSIP Security Balance the Public Underwriter Coupon
------------------------------------------------------------------------------------------------
A1-1 00000XXX0 155,727,000.00 100.00% 155,727,981.08 3.068%
A1-2 00000XXX0 68,736,000.00 100.00% 68,737,443.46 4.612%
A1-3 00000XXX0 92,471,000.00 101.00% 93,400,194.84 6.045%
A2 00000XXX0 101,263,000.00 100.50% 101,769,315.00 5.575%
X1 00000XXX0 316,934,000.00 2.33% 7,383,963.99 2.389%
X2 00000XXX0 101,263,000.00 1.35% 1,367,050.50 1.087%
X0 00000XXX0 5,867,000.00 102.09% 5,989,840.31 6.660%
X0 00000XXX0 3,911,000.00 99.58% 3,894,433.40 6.660%
X0 00000XXX0 2,389,000.00 98.14% 2,344,504.40 6.660%
R1 00000XXX0 100.00 100.00% 100.00 6.660%
R2 00000XXX0 100.00 100.00% 100.00 6.660%
R3 00000XXX0 100.00 100.00% 100.00 6.660%
================================================================================================
WA/Tot 430,364,300.00 102.38% 440,615,026.97 6.660%
