EXHIBIT 1
GS MORTGAGE SECURITIES CORP.
GSAMP TRUST 2006-HE8
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-HE8
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Underwriting Agreement
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Dated as of December 27, 2006
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
GS Mortgage Securities Corp. (the "Company") proposes to cause GSAMP
Trust 2006-HE8 (the "Trust") to issue its Mortgage Pass-Through Certificates,
Series 2006-HE8 (the "Certificates"), pursuant to a Pooling and Servicing
Agreement, dated as of December 1, 2006 (the "Pooling and Servicing Agreement"),
by and among the Company, as depositor, Xxxxxx Loan Servicing LP, as a servicer
("Xxxxxx"), Avelo Mortgage, L.L.C., as a servicer ("Avelo", together with
Xxxxxx, the "Servicers"), Xxxxx Fargo Bank, N.A., as master servicer (in such
capacity, the "Master Servicer") and as securities administrator (in such
capacity, the "Securities Administrator"), The Bank of New York Trust Company,
National Association, as a custodian ("BoNY"), U.S. Bank National Association,
as a custodian ("U.S. Bank"), Deutsche Bank National Trust Company, as a
custodian (together with U.S. Bank and BoNY, the "Custodians") and LaSalle Bank
National Association, as trustee (the "Trustee"), and proposes to sell to you
(the "Underwriter") the Certificates specified on Schedule I hereto. The Class
A-1, Class A-2A, Class A-2B Class A-2C, Class A-2D, Class M-1, Class M-2, Class
M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8, Class M-9, Class R,
Class RC and Class RX Certificates identified on Schedule I hereto are the
"Publicly Offered Certificates." The Publicly Offered Certificates, together
with the Trust's Mortgage Pass-Through Certificates, Class B-1, Class B-2, Class
P and Class X 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") purchased certain mortgage
loans (the "Mortgage Loans") from (1) Aames Capital Corporation ("Aames"),
pursuant to the Flow Mortgage Loan Purchase and Warranties Agreement, dated as
of April 1, 2006, by and between GSMC and Aames, (2) Decision One Mortgage
Company, LLC ("Decision One"), pursuant to the Flow Mortgage Loan Purchase and
Warranties Agreement, dated as of May 1, 2006, by and between GSMC and Decision
One, (3) First Horizon Home Loan Corporation ("First Horizon"), pursuant to the
Flow Mortgage Loan Purchase and Warranties Agreement, dated as of May 1, 2006,
by and between GSMC and First Horizon, (4) MILA, Inc. ("MILA"), pursuant to the
Second Amended and Restated Flow Mortgage Loan Purchase Agreement, dated as of
June 1, 2006, by and between GSMC and MILA, (5) NovaStar Mortgage, Inc.
("NovaStar"), pursuant to the Flow Mortgage Loan Purchase and Warranties
Agreement, dated May 1, 2006, by and between GSMC and NovaStar, (6) Quicken
Loans, Inc. ("Quicken"), pursuant to the Amended and Restated Seller's Purchase,
Warranties and Interim Servicing Agreement, dated as of June 1, 2006, by and
between GSMC and Quicken, (7) Residential Funding Company, LLC ("RFC"), pursuant
to the Flow Mortgage Loan Purchase and Warranties Agreement, dated as of May 1,
2006, by and between GSMC and RFC, (8) Sebring Capital Partners, Limited
Partnership ("Sebring"), pursuant to the Flow Mortgage Loan Purchase and
Warranties Agreement, dated as of February 1, 2006, as amended by Amendment No.
1, dated September 1, 2006, by and between GSMC and Sebring, (9) Senderra
Funding LLC ("Senderra"), pursuant to the Flow Mortgage Loan Purchase and
Warranties Agreement, dated as of March 1, 2006, as amended by Amendment No. 1,
dated as of June 28, 2006, by and between GSMC and Senderra, (10) Wilmington
Finance, Inc. ("Wilmington"), pursuant to the Flow Mortgage Loan Purchase,
Warranties and Servicing Agreement,, dated as of November 1, 2006, by and
between GSMC and Wilmington, and (11) certain conduit loan sellers, pursuant to
certain Master Loan Purchase Agreements, each between GSMC and the related
conduit loan seller.
The Company will acquire the Mortgage Loans from GSMC pursuant to
(1) an Assignment, Assumption and Recognition Agreement, dated December 27,
2006, among Aames, the Company and GSMC (the "Aames Assignment Agreement"), (2)
an Assignment, Assumption and Recognition Agreement, dated December 27, 2006,
among Decision One, the Company and GSMC (the "Decision One Assignment
Agreement"), (3) an Assignment, Assumption and Recognition Agreement, dated
December 27, 2006, among NovaStar, the Company and GSMC (the "NovaStar
Assignment Agreement"), (4) an Assignment, Assumption and Recognition Agreement,
dated December 27, 2006, among First Horizon, the Company and GSMC (the "First
Horizon Assignment Agreement," and together with the preceding agreements, the
"Assignment Agreements") and (5) a Bill of Sale, dated as of December 27, 2006,
by and between the Company and GSMC (the "Bill of Sale").
At or prior to the time when sales to investors of the Publicly
Offered Certificates were first made (the "Time of Sale"), the Company had
prepared the following information (collectively, the "Time of Sale
Information"): the GSAMP 2006-HE8 Free Writing Prospectus dated December 18,
2006, including the Company's Term Sheet attached thereto (the "Transaction
FWP"), the Company's Prospectus, dated October 6, 2006, and any other
"free-writing prospectus" (as defined pursuant to Rule 405 under the Act (as
defined herein)) (a "Free Writing Prospectus") listed on Schedule IV hereto. If,
subsequent to the date of this Agreement, the Company and the Underwriter
determine that such information included an untrue statement of material fact or
omitted 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 and terminate their old purchase contracts and entered into new
purchase contracts with purchasers of the Publicly Offered Certificates, then
"Time of Sale Information" will refer to the information available to purchasers
at the time of entry into the first such new purchase contract, including any
information that corrects such material misstatements or omissions ("Corrective
Information") and "Time of Sale" will refer to the time and date on which such
new purchase contracts were entered into.
Certain Mortgage Loan documents, including the mortgage notes and
mortgages, will be held by the Trustee pursuant to the Pooling and Servicing
Agreement. The Publicly Offered Certificates are described more fully in
Schedule I hereto and in the Time of Sale Information and the Prospectus (as
defined herein). Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
1. The Company represents and warrants to, and agrees with, the
Underwriter that:
(a) A registration statement on Form S-3 (Commission File No.
333-132809), 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"), has been filed with the Securities and Exchange Commission (the
"Commission") and such registration statement, as amended, has become
effective. Such registration statement, as amended or supplemented as of
the date of the Prospectus (as defined herein), including the exhibits
thereto and information that is contained in the Prospectus (as defined
below) and is deemed to be part of and included in such registration
statement as such registration statement may have been amended or
supplemented as of the date of the Prospectus, is hereinafter referred to
as the "Registration Statement"; the prospectus first required to be filed
to satisfy the condition set forth in Rule 172(c) and pursuant to Rule
424(b) under the Act, is hereinafter referred to as the "Base Prospectus";
such form of supplement to the Base Prospectus relating to the Publicly
Offered Certificates, in the form first required to be filed to satisfy
the condition set forth in Rule 172(c) and pursuant to Rule 424(b) under
the Act (including the Base Prospectus as so supplemented) is hereinafter
referred to as the "Prospectus Supplement"; and the Base Prospectus and
the Prospectus Supplement, together, are hereinafter referred to as the
"Prospectus". 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
or is deemed effective pursuant to Rule 430B under the Act, and "Effective
Date" means the date of the Effective Time or deemed effective date
pursuant to Rule 430B under the Act;
(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 Underwriter 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; 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 Underwriter for use in the Registration
Statement, the Prospectus or the Time of Sale Information (such
information being collectively referred to as "Underwriter Statements");
(d) 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; provided,
however, that this representation and warranty shall not apply to any
statement or omission made in reliance upon and in conformity with the
Underwriter Statements;
(e) The Time of Sale Information, at the Time of Sale, did not, and
at the Closing Date will not, contain any untrue statement of a material
fact or omit 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; provided that the Company makes no
representation or warranty with respect to any statements or omissions
made in reliance upon and in conformity with the Underwriter Statements;
(f) Other than the Prospectus, the Company (including its agents and
representatives other than the Underwriter in its capacity as such) has
not made, used, prepared, authorized, approved or referred to and will not
make, use, prepare, authorize, approve or refer to any "written
communication" (as defined in Rule 405 under the Act) that constitutes an
offer to sell or solicitation of an offer to buy the Publicly Offered
Certificates other than (i) any document not constituting a prospectus
pursuant to Section 2(a)(10)(a) of the Act or Rule 134 under the Act, (ii)
the Time of Sale Information, and (iii) each other written communication
of the Company or its agents and representatives approved in writing in
advance by the Underwriter or in any other manner mutually agreed by the
Underwriter and the Company (each such communication referred to in clause
(ii) and this clause (iii) constituting an "issuer free writing
prospectus," as defined in Rule 433(h) under the Act, being referred to as
an "Issuer Free Writing Prospectus"). Each such Issuer Free Writing
Prospectus complied or, if used after the date hereof, will comply, in all
material respects with the Act and the rules and regulations promulgated
thereunder, has been filed or will be filed in accordance with Section
5(a) (to the extent required thereby) and did not at the Time of Sale, and
at the Closing Date will not, contain any untrue statements of a material
fact or (when read in conjunction with the other Time of Sale Information)
omit 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; provided that the Company makes no representation and warranty
with respect to any statements or omissions made in reliance upon and in
conformity with the Underwriter Statements;
(g) Since the respective dates as of which information is given in
the Time of Sale Information, Registration Statement or 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 Time of
Sale Information, Registration Statement or the Prospectus;
(h) 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 Time of Sale
Information and the Prospectus;
(i) At the Time of Delivery (as defined herein), the Pooling and
Servicing Agreement, the Bill of Sale and the 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;
(j) When the Publicly Offered Certificates are issued, executed,
authenticated and delivered pursuant to this Agreement and the Pooling and
Servicing Agreement, the Publicly Offered Certificates will have been duly
authorized, executed, authenticated, issued and delivered and will be
entitled to the benefits of the Pooling and Servicing Agreement; and the
Publicly Offered Certificates and the Pooling and Servicing Agreement will
conform to the descriptions thereof in the Time of Sale Information and
the Prospectus;
(k) The issue and sale of the Publicly Offered Certificates, the
compliance by the Company with all of the provisions of this Agreement,
the Pooling and Servicing Agreement, the Bill of Sale 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 Publicly Offered Certificates or the
consummation by the Company of the other transactions contemplated by this
Agreement, the Pooling and Servicing Agreement, the Bill of Sale or the
Assignment Agreements 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 Publicly Offered Certificates by
the Underwriter;
(l) The statements set forth in the Transaction FWP and the
Prospectus under the caption "Description of the Certificates," insofar as
they purport to constitute a summary of the terms of the Publicly Offered
Certificates and insofar as they purport to describe the provisions of the
documents referred to therein, are accurate, complete and fair;
(m) Other than as set forth or contemplated in the Time of Sale
Information or 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;
(n) 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 Pooling and Servicing Agreement and at the Time
of Delivery will have duly authorized such assignment and delivery to the
Trustee by all necessary action;
(o) Any taxes, fees and other governmental charges in connection
with the execution, delivery and performance of this Agreement, the
Pooling and Servicing Agreement, the Bill of Sale, the Assignment
Agreements and the Publicly Offered Certificates will have been paid at or
prior to the Time of Delivery;
(p) At the Time of Delivery, the Mortgage Loans will have been duly
and validly assigned and delivered by the Company to the Trustee;
(q) The Company is not, and on the date on which the first bona fide
offer of the Publicly Offered Certificates is made (within the meaning of
Rule 164(h)(2) under the Act) will not be, an "ineligible issuer," as
defined in Rule 405 under the Act.
(r) The Trust created by the Pooling and Servicing 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");
and
(s) 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.
2. The Underwriter represents and warrants to, and agrees with, the
Company, that:
(a) In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant Member
State"), the Underwriter has not made and will not make an offer of
Publicly Offered Certificates to the public in that Relevant Member State
prior to the publication of a prospectus in relation to the Publicly
Offered Certificates which has been approved by the competent authority in
that Relevant Member State or, where appropriate, approved in another
Relevant Member State and notified to the competent authority in that
Relevant Member State, all in accordance with the Prospectus Directive,
except that it may, with effect from and including the relevant
implementation date, make an offer of Publicly Offered Certificates to the
public in that Relevant Member State at any time:
(A) to legal entities which are authorized or regulated
to operate in the financial markets or, if not so authorized
or regulated, whose corporate purpose is solely to invest in
securities;
(B) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial
year; (2) a total balance sheet of more than (euro)43,000,000
and (3) an annual net turnover of more than (euro)50,000,000,
as shown in its last annual or consolidated accounts; or
(C) in any other circumstances which do not require the
publication by the issuer of a prospectus pursuant to Article
3 of the Prospectus Directive.
For the purposes of this provision, the expression "offer of
Publicly Offered Certificates to the public" in relation to any Publicly Offered
Certificates in any Relevant Member State means the communication in any form
and by any means of sufficient information on the terms of the offer and the
Publicly Offered Certificates to be offered so as to enable an investor to
decide to purchase or subscribe the Publicly Offered Certificates, as the same
may be varied in that Member State by any measure implementing the Prospectus
Directive in that Member State and the expression "Prospectus Directive" means
the European Commission Directive 2003/71/EC and includes any relevant
implementing measure in each Relevant Member State.
(b) The Underwriter has only communicated or caused to be
communicated and will only communicate or cause to be communicated an
invitation or inducement to engage in investment activity (within the
meaning of Section 21 of the United Kingdom Financial Services and Markets
Act 2000 (the "FSMA")) received by it in connection with the issue or sale
of the Publicly Offered Certificates in circumstances in which Section
21(1) of the FSMA does not apply to the issuer.
(c) The Underwriter has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation to
the Publicly Offered Certificates in, from or otherwise involving the
United Kingdom.
3. Subject to the terms and conditions herein set forth, the Company
agrees to sell to the Underwriter, and the Underwriter agrees to purchase from
the Company, at a purchase price determined in accordance with Schedule II
hereto, the principal amount of the Publicly Offered Certificates in accordance
with Schedule III hereto. Upon the authorization by you of the release of the
Publicly Offered Certificates, the Underwriter proposes to offer the Publicly
Offered Certificates for sale to the public (which may include selected dealers)
upon the terms and conditions set forth in the Time of Sale Information and the
Prospectus.
4. (a) The Class A-1, Class A-2A, Class A-2B, Class A-2C, Class
A-2D, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8 and Class M-9 Certificates to be purchased by the Underwriter
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
Publicly Offered Certificates to the Underwriter, against payment by or on
behalf of the Underwriter of the purchase price therefor by wire transfer to the
Company of Federal (same day) funds, by causing DTC to credit such Publicly
Offered Certificates to the account of the Underwriter at DTC. The Class R,
Class RC and Class RX Certificates will be represented by one or more definitive
Certificates in the physical form. The Company will cause the certificates
representing such Publicly Offered Certificates to be made available to the
Underwriter for checking at least twenty-four hours prior to the Time of
Delivery at an office designated by the Underwriter (the "Designated Office").
The time and date of such delivery and payment shall be 10:00 a.m., New York
City time, on December 27, 2006, or such other time and date as the Underwriter
and the Company may agree upon in writing. Such time and date are herein called
the "Time of Delivery" and such date is herein called the "Closing Date."
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Publicly Offered Certificates and any additional
documents requested by the Underwriter pursuant to Section 7(q) hereof,
will be delivered at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP
("Cadwalader") at One World Financial Center, New York, NY 10281 (the
"Closing Location"), and the Publicly Offered 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 4, "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.
5. The Company agrees with the Underwriter:
(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, and, if required, subject to Section 11, to file any Issuer Free
Writing Prospectus to the extent required by Rule 433 under the Act. The
Company will advise the Underwriter promptly of any such filing pursuant
to Rule 424(b) or Rule 433;
(b) To make no amendment or any supplement to the Registration
Statement or the Prospectus as amended or supplemented, or to prepare,
use, authorize, approve, refer to or file any Issuer Free Writing
Prospectus, in each case prior to the Closing Date, without furnishing the
Underwriter with a copy of the proposed form thereof and providing the
Underwriter with a reasonable opportunity to review the same; and during
such same period to advise the Underwriter, 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 or any such Issuer Free Writing Prospectus has
been prepared, used, authorized, approved, referred to or filed, of the
issuance of any stop order by the Commission, of the suspension of the
qualification of any of the Publicly Offered 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 an Issuer Free Writing Prospectus 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 relating to the Publicly Offered 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
Underwriter may reasonably request in order to qualify the Publicly
Offered Certificates for offering and sale under the securities laws of
such states as the Underwriter may request and to continue such
qualifications in effect so long as necessary under such laws for the
distribution of such Publicly Offered 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 Publicly Offered Certificates shall be at the
Underwriter's expense;
(d) To furnish the Underwriter with copies of the Registration
Statement (including exhibits) and copies of the Prospectus and each
Issuer Free Writing Prospectus as amended or supplemented in such
quantities as the Underwriter 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 shall be at the time required by law
(or required to be delivered but for Rule 172 under the Act) in connection
with sales of any Publicly Offered Certificates, either (i) any event
shall have occurred as a result of which the Prospectus or an Issuer Free
Writing Prospectus, as the case may be, 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, as amended or supplemented, or an Issuer Free Writing
Prospectus, as the case may be, to notify the Underwriter and upon its
request to prepare and furnish without charge to the Underwriter and to
any dealer in securities as many copies as the Underwriter may from time
to time reasonably request an amendment or a supplement to the Prospectus
or an Issuer Free Writing Prospectus, as the case may be, which will
correct such statement or omission or effect such compliance; and in case
the Underwriter is required by law to deliver a prospectus in connection
with sales of any of such Publicly Offered Certificates at any time six
months or more after the Closing Date, upon the Underwriter's request, but
at its own expense, to prepare and deliver to the Underwriter as many
copies as the Underwriter may request of an amended or supplemented
prospectus complying with the Act;
(e) To make generally available upon request to Holders of the
Publicly Offered 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 Publicly Offered Certificates are
outstanding, to furnish the Underwriter copies of all reports or other
communications (financial or other) furnished to Holders of Certificates,
and to deliver to the Underwriter 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 Pooling and Servicing Agreement and the Assignment
Agreement; and (iii) such additional information concerning the business
and financial condition of the Company or the Trust as the Underwriter may
from time to time reasonably request; and
(g) 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.
6. The Company covenants and agrees with the Underwriter that the
Company will pay or cause to be paid the following: (i) the Commission's filing
fees with respect to the Publicly Offered Certificates; (ii) the fees,
disbursements and expenses of counsel and accountants for the Company in
connection with the issue of the Publicly Offered 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
Underwriter and dealers; (iii) the cost of printing or producing this Agreement,
the Pooling and Servicing Agreement, any Blue Sky Supplement 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 Publicly Offered Certificates; (iv) all expenses in
connection with the qualification of the Publicly Offered Certificates for
offering and sale under state securities laws as provided in Section 5(c)
hereof, including the fees and disbursements of counsel for the Underwriter in
connection with such qualification and in connection with the Blue Sky
Supplement; (v) any fees charged by securities rating services for rating the
Publicly Offered Certificates; (vi) the cost of preparing the Publicly Offered
Certificates; (vii) 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 Pooling and Servicing Agreement and the Publicly Offered Certificates;
(viii) any cost incurred in connection with the designation of the Publicly
Offered Certificates for trading in PORTAL; and (ix) 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 6, Section 8 and Section 10
hereof, the Underwriter will pay all of its own costs and expenses, including
the fees of its counsel, transfer taxes on resale of any of the Publicly Offered
Certificates by it and any advertising expenses connected with any offers it may
make.
7. The obligations of the Underwriter hereunder shall be subject, in
its discretion, to the condition that all representations and warranties and
other statements of the Company herein are, at and as of the Time of Delivery,
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 Pooling and Servicing Agreement, the Bill of Sale, 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) Cadwalader, counsel to the Company and the Underwriter, shall
have furnished to the Underwriter its written opinions, dated the Time of
Delivery, in form and substance satisfactory to the Underwriter;
(c) In-house counsel for the Company shall have furnished to the
Underwriter a written opinion, dated the Time of Delivery, in form and
substance satisfactory to the Underwriter;
(d) Counsel for Aames satisfactory to the Underwriter shall have
furnished to the Underwriter its written opinion, dated the Time of
Delivery, in form and substance satisfactory to the Underwriter and
counsel for the Underwriter;
(e) Counsel for NovaStar satisfactory to the Underwriter shall have
furnished to the Underwriter its written opinion, dated the Time of
Delivery, in form and substance satisfactory to the Underwriter and
counsel for the Underwriter;
(f) Counsel for each Servicer satisfactory to the Underwriter shall
have furnished to the Underwriter its written opinion, dated the Time of
Delivery, in form and substance satisfactory to the Underwriter and
counsel for the Underwriter;
(g) Counsel for each Custodian satisfactory to the Underwriter shall
have furnished to the Underwriter its written opinion, dated the Time of
Delivery, in form and substance satisfactory to the Underwriter and
counsel for the Underwriter;
(h) Counsel for the Securities Administrator satisfactory to the
Underwriter shall have furnished to the Underwriter its written opinion,
dated the Time of Delivery, in form and substance satisfactory to the
Underwriter and counsel for the Underwriter;
(i) Counsel for the Master Servicer satisfactory to the Underwriter
shall have furnished to the Underwriter its written opinion, dated the
Time of Delivery, in form and substance satisfactory to the Underwriter
and counsel for the Underwriter;
(j) Counsel for the Trustee satisfactory to the Underwriter shall
have furnished to the Underwriter its written opinion, dated as of the
Time of Delivery, in form and substance satisfactory to the Underwriter
and counsel for the Underwriter;
(k) The independent accountants of the Company or other accountants
acceptable to the Underwriter shall have furnished to the Underwriter 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 Underwriter may reasonably request and in form and
substance satisfactory to the Underwriter;
(l) (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 Time of Sale Information or
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 Time of Sale Information or the Prospectus as
amended prior to the Time of Delivery and (ii) since the respective dates
as of which information is given in the Time of Sale Information or 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 Time of Sale Information or 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 Underwriter so material and
adverse as to make it impracticable or inadvisable to proceed with the
offering or the delivery of the Publicly Offered Certificates on the terms
and in the manner contemplated in the Time of Sale Information or the
Prospectus as first amended or supplemented;
(m) 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;
(n) 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 any material disruption in
commercial banking or securities settlement or clearance services in the
United States; 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; or (iv) the occurrence of any other calamity or
crisis or any change in the financial, political or economic conditions in
the United States or elsewhere, if the effect of any such event specified
in clause (iii) or (iv) in the judgment of the Underwriter makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Publicly Offered Certificates on the terms and in the
manner contemplated in the Time of Sale Information or the Prospectus;
(o) The Company shall have furnished or caused to be furnished to
the Underwriter at the Time of Delivery certificates of its officers
satisfactory to the Underwriter 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 7(a) above and as to such other matters as
the Underwriter may reasonably request;
(p) The Underwriter shall have received evidence satisfactory to it
that the Publicly Offered Certificates are rated not lower than the
ratings set forth in the Prospectus Supplement under the heading
"Ratings";
(q) All opinions, certificates and other documents incident to, and
all proceedings in connection with the transactions contemplated by, this
Agreement, the Assignment Agreements, the Bill of Sale and the Pooling and
Servicing Agreement shall be satisfactory in form and substance to the
Underwriter and its special counsel;
(r) The Registration Statement shall be 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 and the Prospectus Supplement and each Free
Writing Prospectus required to be filed by the Company pursuant to Section
5(a) shall have been filed or transmitted for filing by means reasonably
calculated to result in a filing with the Commission pursuant to Rule
424(b) under the Act or Rule 433 under the Act, as applicable; and
(s) The Underwriter 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 Underwriter and its
special counsel, with respect to such transactions and the taking of all
proceedings in connection therewith.
8. (a) The Company will indemnify and hold harmless the Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
the Underwriter 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 (1) an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or Prospectus 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, in the case of
clauses (1), (2) and (3), will reimburse the Underwriter for any legal or other
expenses reasonably incurred by the Underwriter in connection with investigating
or defending any such action or claim or (2) any untrue statement or alleged
untrue statement of a material fact contained in any Issuer Free Writing
Prospectus or any Issuer Information contained in any Underwriter Free Writing
Prospectus (as defined herein), or the omission or alleged omission to state a
material fact necessary to make the statements therein (when read in conjunction
with the other Time of Sale Information), in light of the circumstances under
which they were made, not misleading, which was not corrected by Corrective
Information subsequently supplied by the Company to the Underwriter within a
reasonable period of time prior to the Time of Sale, or (3) any breach of the
representation and warranty in Section 1(q), and, in the case of clauses (1),
(2) and (3), will reimburse the Underwriter for any legal or other expenses
reasonably incurred by the Underwriter 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 reliance upon and in
conformity with (i) information with respect to which the Underwriter has agreed
to indemnify the Company pursuant to Section 8(b).
(b) The Underwriter 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 (i) any untrue statements or
alleged untrue statements of a material fact, or omissions or alleged
omissions to state a material fact necessary to make the statements
therein (when read in conjunction with the Time of Sale Information), in
the light of the circumstances under which they were made, not misleading,
in the Underwriter Statements and (ii) any untrue statements or alleged
untrue statements of a material fact in any Underwriter Free Writing
Prospectus or any omission or alleged omission to state in such
Underwriter Free Writing Prospectus a material fact necessary in order to
make the statements therein (when read in conjunction with the Time of
Sale Information), in the light of the circumstances under which they were
made, not misleading; provided, that the Underwriter shall not be
obligated to so indemnify and hold harmless (A) to the extent such loss,
liability, claim, damage or expense is caused by a misstatement or
omission resulting from an error or omission in the Issuer Information
which was not corrected by Corrective Information subsequently supplied by
the Company to the Underwriter within a reasonable period of time prior to
the Time of Sale or (B) with respect to information that is also contained
in the Time of Sale Information.
(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 8 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 Underwriter on the other from the offering of the
Publicly Offered 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 Underwriter 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 Underwriter 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 Underwriter. 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 Underwriter 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
Underwriter 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 Underwriter shall not be required
to contribute any amount in excess of the amount by which the total price
at which the Publicly Offered Certificates underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages which the Underwriter 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 8 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 Underwriter within the meaning of the Act; and the
obligations of the Underwriter with respect to any Publicly Offered
Certificates under this Section 8 shall be in addition to any liability
which the Underwriter 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.
9. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the Underwriter 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 Underwriter or any
controlling person of the Underwriter, or the Company, or any officer or
director or controlling person of the Company and shall survive delivery of and
payment for the Publicly Offered Certificates.
10. If for any reason the Publicly Offered Certificates are not
delivered by or on behalf of the Securities Administrator as provided herein,
other than by the Underwriter's failure to comply with its obligations
hereunder, the Company will reimburse the Underwriter for all out-of-pocket
expenses, including fees and disbursements of counsel, reasonably incurred by
the Underwriter in making preparations for the purchase, sale and delivery of
the Publicly Offered Certificates, but the Company shall be under no further
liability to the Underwriter with respect to such Publicly Offered Certificates
except as provided in Section 6 and Section 8 hereof.
11. (a) In connection with the offering of the Publicly Offered
Certificates, the Underwriter may prepare and provide to prospective investors
Free Writing Prospectuses (as defined below), or portions thereof, which the
Company is required to file with the Commission in electronic format and will
use reasonable efforts to provide to the Company such Free Writing Prospectuses,
or portions thereof, in either Microsoft Word(R) or Microsoft Excel(R) format
and not in a PDF, except to the extent that the Company, in its sole discretion,
waives such requirements, subject to the following conditions (to which such
conditions the Underwriter agrees):
(i) Unless preceded or accompanied by the Prospectus, the
Underwriter shall not convey or deliver any written communication to any
person in connection with the initial offering of the Publicly Offered
Certificates, unless such written communication (1) is made in reliance on
Rule 134 under the Act, (2) constitutes a prospectus satisfying the
requirements of Rule 430B under the Act or (3) constitutes Time of Sale
Information or a Free Writing Prospectus that does not constitute Time of
Sale Information. Without the Company's prior written consent, the
Underwriter shall not convey or deliver in connection with the initial
offering of the Publicly Offered Certificates any "ABS informational and
computational material," as defined in Item 1101(a) of Regulation AB under
the Act ("ABS Informational and Computational Material"), in reliance upon
Rules 167 and 426 under the Act.
(ii) The Underwriter shall deliver to the Company, no later than two
business days prior to the date of first use thereof or such later date as
may be agreed to by the Company, (a) any Free Writing Prospectus that was
prepared by or on behalf of the Underwriter (an "Underwriter Free Writing
Prospectus") and contains any "issuer information," as defined in Rule
433(h) under the Act and footnote 271 of the Commission's Securities
Offering Reform Release No. 33-8591 ("Issuer Information"), and (b) any
Free Writing Prospectus or portion thereof that contains only a
description of the final terms of the Publicly Offered Certificates.
Notwithstanding the foregoing, any Free Writing Prospectus that contains
only ABS Informational and Computational Materials may be delivered by the
Underwriter to the Company not later than the later of (A) two business
days prior to the due date for filing of the Prospectus pursuant to Rule
424(b) under the Act or (B) the date of first use of such Free Writing
Prospectus.
(iii) The Underwriter represents and warrants to the Company that
the Free Writing Prospectuses to be furnished to the Company by the
Underwriter pursuant to Section 11(a)(ii) will constitute all Free Writing
Prospectuses of the type described therein that were furnished to
prospective purchasers of Publicly Offered Certificates by the Underwriter
in connection with its offer and sale of the Publicly Offered
Certificates.
(iv) The Underwriter represents and warrants to the Company that
each Free Writing Prospectus required to be provided by it to the Company
pursuant to Section 11(a)(ii), when read in conjunction with the Time of
Sale Information, did not, as of the Time of Sale, and will not as of the
Closing Date, include any untrue statement of a material fact or omit any
material fact necessary to make the statements contained therein (when
read in conjunction with the Time of Sale Information), in light of the
circumstances under which they were made, not misleading; provided
however, that the Underwriter makes no representation to the extent such
misstatements or omissions were the result of any inaccurate Issuer
Information, which information was not corrected by Corrective Information
subsequently supplied by the Company to the Underwriter within a
reasonable period of time prior to the Time of Sale.
(v) The Company agrees to file with the Commission the following:
(A) any Issuer Free Writing Prospectus; (B) any Free Writing Prospectus or
portion thereof delivered by the Underwriter to the Company pursuant to
Section 11(a)(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. Notwithstanding the foregoing, the
Company shall not be required to file (1) Issuer Information contained in
any Underwriter Free Writing Prospectus or Free Writing Prospectus of 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 Publicly Offered Certificates, or (2) any Free Writing
Prospectus or portion thereof that contains a description of the Publicly
Offered Certificates or the offering of the Publicly Offered Certificates
which does not reflect the final terms thereof.
(vi) Any Free Writing Prospectus required to be filed pursuant to
Section 11(a)(v) by the Company shall be filed with the Commission not
later than the date of first use of the Free Writing Prospectus, except
that: (A) any Free Writing Prospectus or portion thereof required to be
filed that contains only the description of the final terms of the
Publicly Offered Certificates shall be filed by the Company with the
Commission within two days of the later of the date such final terms have
been established for all classes of Publicly Offered Certificates and the
date of first use; (B) any Free Writing Prospectus or portion thereof
required to be filed that contains only ABS Informational and
Computational Material shall be filed by the Company with the Commission
not later than the later of the due date for filing the final Prospectus
relating to the Publicly 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 11(a)(v)(C) shall, 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.
(vii) The Underwriter shall file with the Commission any Free
Writing Prospectus that is used or referred to by it and distributed by or
on behalf of the Underwriter in a manner reasonably designed to lead to
its broad, unrestricted dissemination not later than the date of the first
use of such Free Writing Prospectus. Notwithstanding the foregoing, the
Underwriter shall file with the Commission any 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.
(viii) Notwithstanding the provisions of Sections 11(a)(v) and
11(a)(vii), neither the Company nor the Underwriter shall 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, and the Underwriter shall not be required to file any Free
Writing Prospectus to the extent that the information contained therein is
included in a prospectus or Free Writing Prospectus previously filed that
relates to the offering of the Publicly Offered Certificates.
(ix) The Company and the Underwriter each agree that any Free
Writing Prospectuses prepared by it shall contain the following legend:
The depositor has filed a registration statement (including a
prospectus) with the Securities and Exchange Commission for the
offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other
documents the depositor has filed with the Securities and Exchange
Commission for more complete information about the issuer and this
offering. You may get these documents for free by visiting XXXXX on
the Securities and Exchange Commission web site at xxx.xxx.xxx.
Alternatively, the depositor, any underwriter or any dealer
participating in the offering will arrange to send you the
prospectus if you request it by calling toll-free 0-000-000-0000.
(x) (A) In the event that the Company becomes aware that, as of the
Time of Sale, any Issuer Free Writing Prospectus contains any untrue
statement of a material fact or omits to state a material fact necessary
in order to make the statements contained therein (when read in
conjunction with the Time of Sale Information), in light of the
circumstances under which they were made, not misleading (a "Defective
Issuer Free Writing Prospectus"), the Company shall notify the Underwriter
of such untrue statement or omission within one business day after
discovery and the Company shall, if requested by the Underwriter, prepare
and deliver to the Underwriter a Free Writing Prospectus that corrects the
material misstatement or omission in the Defective Issuer Free Writing
Prospectus (such corrected Issuer Free Writing Prospectus, a "Corrected
Issuer Free Writing Prospectus").
(B) In the event that the Underwriter becomes aware that, as
of the Time of Sale, any Underwriter Free Writing Prospectus
delivered to an investor in any Publicly Offered Certificates
contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
contained therein (when read in conjunction with the Time of Sale
Information), in light of the circumstances under which they were
made, not misleading, when considered in conjunction with the Time
of Sale Information (together with a Defective Issuer Free Writing
Prospectus, a "Defective Free Writing Prospectus"), the Underwriter
shall notify the Company of such untrue statement or omission within
one business day after discovery.
(C) The Underwriter shall, if requested by the Company:
(1) if the Defective Free Writing Prospectus was an
Underwriter Free Writing Prospectus, prepare a Free Writing
Prospectus which corrects the material misstatement in or
omission from the Defective Free Writing Prospectus (together
with a Corrected Issuer Free Writing Prospectus, a "Corrected
Free Writing Prospectus");
(2) deliver the Corrected Free Writing Prospectus to
each investor which received the Defective Free Writing
Prospectus prior to entering into a contract of sale with such
investor;
(3) notify such investor in a prominent fashion that the
prior contract of sale with the investor has been terminated,
and of the investor's rights as a result of termination of
such agreement;
(4) provide such investor with an opportunity to
affirmatively agree to purchase the Publicly Offered
Certificates on the terms described in the Corrected Free
Writing Prospectus; and
(5) comply with any other requirements for reformation
of the original contract of sale with such investor, as
described in Section IV.A.2.c of the Commission's Securities
Offering Reform Release No. 33-8591.
(D) In the event that the Defective Free Writing Prospectus
was an Issuer Free Writing Prospectus, and the Underwriter shall in
good faith incur any costs to an investor in connection with the
reformation of the contract of sale with the investor, the Company
agrees to reimburse the Underwriter for such costs; provided that,
before incurring such costs, the Underwriter first permits the
Company access to the applicable investor and an opportunity to
attempt to mitigate such costs through direct negotiation with such
investor.
(xi) The Underwriter covenants with the Company that after the final
Prospectus is available the Underwriter shall not distribute any written
information concerning the Publicly Offered Certificates that contains
Issuer Information to a prospective purchaser of Publicly Offered
Certificates unless such information is preceded or accompanied by the
final Prospectus.
12. 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 to the
Underwriter, to the address of the Underwriter, Attention: Registration
Department, set forth above; if to the Company, to the address of the Company
set forth in the Prospectus, Attention: President.
13. This Agreement shall be binding upon, and inure solely to the
benefit of the Underwriter, the Company and, to the extent provided in Section 8
hereof, the officers and directors of the Company and each person who controls
the Company or the Underwriter, 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
Publicly Offered Certificates from the Underwriter shall be deemed a successor
or assign merely by reason of such purchase.
14. Time shall be of the essence of this Agreement.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
16. 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.
17. The Company is authorized, subject to applicable law, to
disclose any and all aspects of this potential transaction that are necessary to
support any U.S. federal income tax benefits expected to be claimed with respect
to such transaction, and all materials of any kind (including tax opinions and
other tax analyses) related to those benefits, without the Underwriter imposing
any limitations of any kind.
[SIGNATURE PAGE FOLLOWS]
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 Underwriter.
Very truly yours,
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
---------------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
Accepted as of the date hereof:
XXXXXXX, XXXXX & CO.
By: /s/ Xxxx X. Xxxxx
-----------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
SCHEDULE I
----------
Approximate
Initial Class Pass-Through Ratings
Class Principal Balance(1) Rate Type (S&P/Xxxxx'x)
----------------------------------------------------------------------------------------------
A-1 $ 353,741,000 Variable(2) Senior AAA/Aaa
A-2A $ 230,823,000 Variable(3) Senior AAA/Aaa
A-2B $ 65,795,000 Variable(4) Senior AAA/Aaa
A-2C $ 85,335,000 Variable(5) Senior AAA/Aaa
A-2D $ 33,516,000 Variable(6) Senior AAA/Aaa
M-1 $ 45,700,000 Variable(7) Subordinate AA+/Aa1
M-2 $ 41,593,000 Variable(8) Subordinate AA/Aa2
M-3 $ 25,161,000 Variable(9) Subordinate AA-/Aa3
M-4 $ 21,567,000 Variable(10) Subordinate A+/A1
M-5 $ 20,539,000 Variable(11) Subordinate A/A2
M-6 $ 16,431,000 Variable(12) Subordinate A-/A3
M-7 $ 12,837,000 Variable(13) Subordinate BBB+/Baa1
M-8 $ 8,729,000 Variable(14) Subordinate BBB/Baa2
M-9 $ 11,811,000 Variable(15) Subordinate BBB-/Baa2
R $ 50 N/A(16) Senior/Residual AAA/N/A
RC $ 100 N/A(16) Senior/Residual AAA/N/A
RX $ 50 N/A(16) Senior/Residual AAA/N/A
(1) Subject to a variance of +/- 5%.
(2) The Class A 1 certificates will have a pass through rate equal to the
least of (i) one month LIBOR plus 0.140% (0.280% after the first
distribution date on which the optional clean up call is exercisable),
(ii) the Loan Group I Cap, as described in the prospectus supplement under
"Description of the Certificates--Calculation of Interest and Principal"
and (iii) the WAC Cap, as described in the prospectus supplement under
"Description of the Certificates--Calculation of Interest and Principal."
(3) The Class A 2A certificates will have a pass through rate equal to the
least of (i) one month LIBOR plus 0.070% (0.140% after the first
distribution date on which the optional clean up call is exercisable),
(ii) the Loan Group II Cap, as described in the prospectus supplement
under "Description of the Certificates--Calculation of Interest and
Principal" and (iii) the WAC Cap.
(4) The Class A 2B certificates will have a pass through rate equal to the
least of (i) one month LIBOR plus 0.130% (0.260% after the first
distribution date on which the optional clean up call is exercisable),
(ii) the Loan Group II Cap and (iii) the WAC Cap.
(5) The Class A 2C certificates will have a pass through rate equal to the
least of (i) one month LIBOR plus 0.170% (0.340% after the first
distribution date on which the optional clean up call is exercisable),
(ii) the Loan Group II Cap and (iii) the WAC Cap.
(6) The Class A 2D certificates will have a pass through rate equal to the
least of (i) one month LIBOR plus 0.230% (0.460% after the first
distribution date on which the optional clean up call is exercisable),
(ii) the Loan Group II Cap and (iii) the WAC Cap.
(7) The Class M 1 certificates will have a pass through rate equal to the
lesser of (i) one month LIBOR plus 0.250% (0.375% after the first
distribution date on which the optional clean up call is exercisable) and
(ii) the WAC Cap.
(8) The Class M 2 certificates will have a pass through rate equal to the
lesser of (i) one month LIBOR plus 0.290% (0.435% after the first
distribution date on which the optional clean up call is exercisable) and
(ii) the WAC Cap.
(9) The Class M 3 certificates will have a pass through rate equal to the
lesser of (i) one month LIBOR plus 0.320% (0.480% after the first
distribution date on which the optional clean up call is exercisable) and
(ii) the WAC Cap.
(10) The Class M 4 certificates will have a pass through rate equal to the
lesser of (i) one month LIBOR plus 0.390% (0.585% after the first
distribution date on which the optional clean up call is exercisable) and
(ii) the WAC Cap.
(11) The Class M 5 certificates will have a pass through rate equal to the
lesser of (i) one month LIBOR plus 0.410% (0.615% after the first
distribution date on which the optional clean up call is exercisable) and
(ii) the WAC Cap.
(12) The Class M 6 certificates will have a pass through rate equal to the
lesser of (i) one month LIBOR plus 0.460% (0.690% after the first
distribution date on which the optional clean up call is exercisable) and
(ii) the WAC Cap.
(13) The Class M 7 certificates will have a pass through rate equal to the
lesser of (i) one month LIBOR plus 0.950% (1.425% after the first
distribution date on which the optional clean up call is exercisable) and
(ii) the WAC Cap.
(14) The Class M 8 certificates will have a pass through rate equal to the
lesser of (i) one month LIBOR plus 1.700% (2.550% after the first
distribution date on which the optional clean up call is exercisable) and
(ii) the WAC Cap.
(15) The Class M 9 certificates will have a pass through rate equal to the
lesser of (i) one month LIBOR plus 2.750% (4.125% after the first
distribution date on which the optional clean up call is exercisable) and
(ii) the WAC Cap.
(16) The Class R, Class RC and Class RX certificates are not entitled to
receive any distributions of interest.
SCHEDULE II
-----------
Purchase Price
--------------
The purchase price for the Publicly Offered Certificates shall equal 99.975% of
the aggregate class principal balance of the Publicly Offered Certificates set
forth on Schedule I.
SCHEDULE III
------------
Principal Amount of Certificates
--------------------------------
Principal Principal Principal Principal Principal Principal Principal
Amount of Amount of Amount of Amount of Amount of Amount of Amount of
Underwriter Class A-1 Class A-2A Class A-2B Class A-2C Class A-2D Class M-1 Class M-2
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx, Xxxxx & Co..... $353,741,000 $230,823,000 $65,795,000 $85,335,000 $33,516,000 $45,700,000 $41,593,000
Total................... $353,741,000 $230,823,000 $65,795,000 $85,335,000 $33,516,000 $45,700,000 $41,593,000
Principal Principal Principal Principal Principal Principal
Principal Xxxxxx Xxxxxx of Amount of Amount of Amount of Amount of Amount of
Underwriter of Class M-3 Class M-4 Class M-5 Class M-6 Class M-7 Class M-8 Class M-9
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxxx, Xxxxx & Co..... $25,161,000 $21,567,000 $20,539,000 $16,431,000 $12,837,000 $8,729,000 $11,811,000
Total................... $25,161,000 $21,567,000 $20,539,000 $16,431,000 $12,837,000 $8,729,000 $11,811,000
Principal Principal Principal
Amount of Amount of Amount of
Underwriter Class R Class RC Class RX
------------------------------------------------------------------------
Xxxxxxx, Xxxxx & Co..... $50 $100 $50
Total................... $50 $100 $50
SCHEDULE IV
-----------
Other Free Writing Prospectuses
-------------------------------
None.
