EXHIBIT 1.1
GE-WMC Mortgage Securities, L.L.C.
PASS-THROUGH CERTIFICATES
(Issuable in Series)
UNDERWRITING AGREEMENT
[REPRESENTATIVE] New York, New York
[ADDRESS] [_________], 20[__]
Ladies and Gentlemen:
GE-WMC Mortgage Securities, L.L.C., a limited liability company
organized and existing under the laws of the State of Delaware (the "Company"),
may offer for sale to you and each underwriter named in the related Terms
Agreement (as defined herein) (collectively, the "Underwriters") from time to
time its Pass-Through Certificates evidencing interests in a pool of mortgage
loans (the "Certificates"). The Certificates may be issued in various series,
and within each series, in one or more classes, in one or more offerings on
terms determined at the time of sale (each such series, a "Series" and each such
class, a "Class"). Each Series of the Certificates will be issued under a
separate Pooling and Servicing Agreement (each, a "Pooling and Servicing
Agreement") to be dated as of the applicable cut-off date (each, a "Cut-off
Date") among the Company, the servicer or master servicer named in the related
Terms Agreement (the "Servicer") and the trustee named in the related Terms
Agreement (the "Trustee"). Capitalized terms used but not defined herein shall
have the meanings given to them in the related Pooling and Servicing Agreement.
The Certificates issued under a Pooling and Servicing Agreement will
represent the entire beneficial ownership interest in a trust fund (the "Trust
Fund") established by such Pooling and Servicing Agreement. The assets of the
related Trust Fund will consist primarily of a pool of non-prime, fixed-rate
and/or adjustable-rate, first and/or second lien, one- to four-family
residential mortgage loans (the "Mortgage Loans") having the original terms to
maturity specified in the related Terms Agreement referred to hereinbelow.
Pursuant to a mortgage loan purchase agreement, dated the issue date of the
Certificates sold to you (the "Originator Mortgage Loan Purchase Agreement"),
between WMC Mortgage Corp., as seller (the "Originator") and GE Mortgage
Holding, L.L.C. (the "Seller"), as purchaser, the Originator will sell to the
Seller all of its right, title and interest in and to the related Mortgage
Loans, including the scheduled principal balances of such Mortgage Loans as of
the applicable Cut-off Date and interest due after such Cut-off Date. Pursuant
to a mortgage loan purchase agreement, dated the issue date of the Certificates
sold to you (the "Seller Mortgage Loan Purchase Agreement"), between the Seller,
as seller and the Company, as purchaser, the Seller will sell to the Company all
of its right, title and interest in and to the related Mortgage Loans, including
the scheduled principal balances of such Mortgage Loans as of the applicable
Cut-off Date and interest due after such Cut-off Date. Pursuant to the related
Pooling and Servicing Agreement, the Company will sell to the related Trust Fund
all of its right, title and interest in and to the related Mortgage Loans,
including the scheduled principal balances of such Mortgage Loans as of the
applicable Cut-off Date and interest due after such Cut-off Date. If so
specified in the related Terms Agreement, one or more elections may be made to
treat the assets of each Trust Fund as a real estate mortgage investment conduit
(each, a "REMIC") for federal income tax purposes.
The Certificates are more fully described in a Registration Statement
(as defined below) which the Company has made available to the Underwriters as
of the Applicable Time relating to each Terms Agreement.
Whenever the Company determines to make an offering of Certificates
(each, a "Certificate Offering") pursuant to this Agreement through you, it will
enter into an agreement with you which shall be substantially in the form of
Exhibit A hereto (the "Terms Agreement") providing for the sale of specified
Classes of Offered Certificates (as defined below) to, and the purchase and
public offering thereof by, each of you acting as a representative of the
several Underwriters (in such capacity you are hereinafter referred to as the
"Representatives"). If only one Underwriter is named in the Terms Agreement, the
terms "Underwriter," "Underwriters," "Representative" and "Representatives"
shall refer to that named Underwriter. Each such Certificate Offering which the
Company elects to make pursuant to this Agreement shall be governed by this
Agreement, as supplemented by the related Terms Agreement. Each Terms Agreement
shall specify, among other things, the Classes of Certificates to be purchased
by the Underwriters (the "Offered Certificates"), the principal balance or
balances of the Offered Certificates, each subject to any stated variance, the
names of the Underwriters participating in such Certificate Offering and the
price or prices at which such Offered Certificates are to be purchased by the
Underwriters from the Company.
1. Representations and Warranties. The Company represents and warrants
to and agrees with the Underwriters, as of the date of the related Terms
Agreement, that:
(a) The registration statement specified in the related Terms
Agreement, on Form S-3, including a prospectus, has been filed with the
Securities and Exchange Commission (the "Commission") for the registration under
the Securities Act of 1933, as amended (the "Act"), of pass-through certificates
issuable in series, which registration statement has been declared effective by
the Commission. Such registration statement, as amended to the date of the
related Terms Agreement, including any documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act that were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") on or before
the effective date of the Registration Statement, is hereinafter called the
"Registration Statement," and such prospectus (the "Base Prospectus"), as such
prospectus is supplemented by a prospectus supplement relating to the Offered
Certificates of the related Series, each in the form first filed after the date
of the related Terms Agreement pursuant to Rule 424(b) under the Act, including
any documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act that were filed under the Exchange Act on or before the date of
such prospectus supplement (other than those relating to Underwriter Materials
(as defined herein)) (such prospectus supplement, including such incorporated
documents and any information that is deemed retroactively to be a part of the
Registration Statement pursuant to Rule 430A under the Act (other than those
that relate to Underwriter Materials), in the form filed after the date of the
related Terms Agreement pursuant to Rule 424(b) and that discloses the public
offering price and other final terms of the Offered Certificates, the
"Prospectus Supplement"), is hereinafter called the "Prospectus." The Company,
if so specified in the related Terms Agreement, also will prepare and file with
the Commission pursuant to Rule 424 the preliminary prospectus supplement
specified in the Terms Agreement relating to the Offered Certificates of the
related Series (the "Preliminary Prospectus Supplement" and, together with the
Base Prospectus, the "Preliminary Prospectus"). Any reference herein to the
terms "amend," "amendment" or "supplement" with respect to the Registration
Statement, the Base Prospectus, the Preliminary Prospectus Supplement or the
Prospectus Supplement shall be deemed to refer to and include the filing of any
document under the Exchange Act after the effective date of the Registration
Statement or the date of the Prospectus or any Preliminary Prospectus, as the
case may be, deemed to be incorporated therein by reference pursuant to Item 12
of Form S-3 under the Act. "Applicable Time" means the time of the Contract of
Sale (as used in Rule 159).
(b) The related Registration Statement, at the time it became
effective, and the prospectus contained therein, and any amendments thereof and
supplements thereto filed prior to the date of the related Terms Agreement,
conformed in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder; on the date of the related Terms
Agreement and on each Closing Date (as defined in Section 3 below), the related
Registration Statement, the related Preliminary Prospectus and the related
Prospectus, and any amendments thereof and supplements thereto, will conform in
all material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder; such Registration Statement, at the
time it became effective, did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; such Preliminary Prospectus, as
of its date and as of the Applicable Time, did not or will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading; such Prospectus, on
the date of any filing pursuant to Rule 424(b) and on the related Closing Date,
will not include any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading; provided, however, that
the Company makes no representations or warranties as to (A) the information
contained in or omitted from such Prospectus or Preliminary Prospectus (or any
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by the Representatives or any Underwriter specifically
for use in the preparation thereof or (B) any Underwriter Materials or in any
amendment thereof or supplement thereto (as defined herein), other than with
respect to any Mortgage Pool Error.
(c) (i) At the time of the filing of the Registration Statement and
(ii) at the date of the Terms Agreement, the Company was not and is not an
"ineligible issuer," as defined in Rule 405 under the Act.
(d) As of the Applicable Time and at all subsequent times through the
completion of the public offer and sale of the Offered Certificates, none of any
Issuer Free Writing Prospectus(es) (as defined in Section 8(a)) issued at or
prior to the Applicable Time, nor any Issuer Information (as defined in Section
8(a)) contained in a Free Writing Prospectus and approved by the Company for use
therein included any untrue statement of a material fact of omitted to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from any prospectus
included in the Registration Statement or any Issuer Free Writing Prospectus in
reliance upon and in conformity with written information furnished to the
Company by the Representatives or any Underwriter specifically for use in the
preparation thereof or any Underwriter Materials; provided, however, that the
Company will not be required to file any such amendment or supplement with
respect to any Underwriter Materials other than any amendments or supplements to
such Underwriter Materials that are furnished to the Company by the
Representatives on behalf of the Underwriters pursuant to Section 8(b)(ii) that
are required to be filed in accordance with Section 8(d)(ii).
(e) If so specified in the related Terms Agreement, the Company or the
Representatives will prepare an Issuer Free Writing Prospectus (as defined in
Section 8(a)) for delivery to potential investors prior to the time of Contract
of Sale (as defined herein) (such Issuer Free Writing Prospectus, a "Time of
Sale Free Writing Prospectus"). Each Time of Sale Free Writing Prospectus, as of
its date and at all subsequent times through the completion of the public offer
and sale of the Offered Certificates or until any earlier date that the Company
notified or notifies the Representatives as described in the next sentence, did
not, does not and will not include any information that conflicted, conflicts or
will conflict with the information then contained in the Registration Statement.
If at any time following issuance of a Time of Sale Free Writing Prospectus
there occurred or occurs an event or development as a result of which such Time
of Sale Free Writing Prospectus conflicted or would conflict with the
information then contained in the Registration Statement or included or would
include an untrue statement of a material fact or omitted or would omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances prevailing at that subsequent time, not misleading, (i) the
Company has promptly notified or will promptly notify the Representatives and
(ii) the Company has promptly amended or will promptly amend or supplement such
Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue
statement or omission. The foregoing two sentences do not apply to statements in
or omissions from any Time of Sale Free Writing Prospectus in reliance upon and
in conformity with written information furnished to the Company by the
Representatives or any Underwriter specifically for use in the preparation
thereof.
(f) The Offered Certificates of the related Series will conform to the
description thereof contained in the related Prospectus; will each, if so stated
in the Prospectus and rated at the time of issuance in one of the two highest
rating categories by a nationally recognized statistical rating organization, be
when issued a "mortgage related security" as such term is defined in Section
3(a)(41) of the Exchange Act; and will each on the related Closing Date be duly
and validly authorized, and, when validly executed, countersigned, issued and
delivered in accordance with the related Pooling and Servicing Agreement and
sold to you as provided herein and in the related Terms Agreement, will each be
validly issued and outstanding and entitled to the benefits of the Pooling and
Servicing Agreement.
(g) Neither the issuance nor sale of the Offered Certificates of the
related Series nor the consummation of any other of the transactions herein
contemplated, nor the fulfillment of the terms hereof or of the related Terms
Agreement, will conflict with any statute, order or regulation applicable to the
Company of any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Company or with any organizational document of
the Company or any instrument or any agreement under which the Company is bound
or to which it is a party.
(h) None of the issuance and sale of the Certificates of the related
Series, the execution and delivery by the Company of any Operative Agreement (as
defined herein) to which it is a party, the consummation by the Company of any
of the transactions herein or therein contemplated, or compliance by the Company
with the provisions hereof or thereof, will (i) conflict with or result in a
breach of any term or provision of the formation or operating agreement of the
Company or (ii) conflict with, result in a breach, violation or acceleration of
or constitute a default under, the terms of any indenture or other agreement or
instrument to which the Company is a party or by which it or any of them is
bound, or any statute, order or regulation applicable to the Company of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over the Company, the default in or the breach or violation of
which would have a material adverse effect on the Company or the Offered
Certificates of the related Series or the ability of the Company to perform its
obligations under the Operative Agreements to which the Company is a party or
this Agreement.
(i) The Company has been duly formed and is validly existing as a
limited liability company in good standing under the laws of the State of
Delaware with full power and authority (company and other) to own its properties
and conduct its business as now conducted by it and to enter into and perform
its obligations under each Operative Agreement to which it is a party.
(j) This Agreement and the related Terms Agreement have been duly
authorized, executed and delivered by the Company.
(k) At or prior to the related Closing Date, the Company will have
entered into the related Pooling and Servicing Agreement and, assuming the due
authorization, execution and delivery thereof by the Trustee, such Pooling and
Servicing Agreement (on such Closing Date) will constitute the valid and binding
agreement of the Company enforceable in accordance with its terms, subject as to
enforceability, to bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights and to general principles of equity (regardless of
whether the enforceability of such Pooling and Servicing Agreement is considered
in a proceeding in equity or at law).
(l) There are no actions, orders or proceedings against, or
investigations of, the Company pending, or, to the knowledge of the Company,
threatened, before any court, administrative agency or other tribunal (i)
asserting the invalidity of any Operative Agreement or the Certificates of the
related Series, (ii) seeking to prevent the issuance of such Certificates or the
consummation of any of the transactions contemplated by any Operative Agreement,
or (iii) that, if determined adversely to the Company, would materially and
adversely affect the performance by the Company of its obligations under, or the
validity or enforceability of, the Certificates or any Operative Agreement.
(m) Any taxes, fees and other governmental charges payable by the
Company in connection with the execution, delivery, issuance and sale or
transfer of the Certificates of the related Series have been or will be paid at
or prior to the Closing Date.
2. Purchase and Sale. Subject to the execution of the Terms Agreement for a
particular Certificate Offering and subject to the terms and conditions and in
reliance upon the representations and warranties set forth in this Agreement and
such Terms Agreement, the Company agrees to sell to each Underwriter, and each
such Underwriter agrees, severally and not jointly, to purchase from the
Company, the respective original principal amounts of the Offered Certificates
set forth in the applicable Terms Agreement opposite the name of such
Underwriter, plus any additional original principal amount of Offered
Certificates which such Underwriter may be obligated to purchase pursuant to
Section 11 hereof at the purchase price therefor set forth in such Terms
Agreement (the "Purchase Price").
The parties hereto agree that settlement for all securities pursuant to
this Agreement and the related Terms Agreement shall take place on the terms set
forth herein and therein and not as set forth in Rule 15c6-1(a) under the
Exchange Act.
3. Delivery and Payment. Delivery of and payment for the Offered
Certificates of a Series shall be made at the offices of Xxxxxxx Xxxxxxxx & Xxxx
LLP, New York, New York, at 10:00 A.M., New York City time, on the Closing Date
specified in the related Terms Agreement, which date and time may be postponed
by agreement between the Representatives and the Company (such date and time
being herein called the "Closing Date"). Delivery of such Offered Certificates
shall be made to the Representatives for the accounts of the several
Underwriters against payment by each Underwriter of the applicable Purchase
Price thereof to or upon the order of the Company by wire transfer in federal or
other immediately available funds or by check payable in federal funds, as the
Company shall specify no later than five full business days prior to such
Closing Date. Unless delivery is made through the facilities of The Depository
Trust Company, the Offered Certificates shall be registered in such names and in
such authorized denominations as the Underwriters may request not less than two
full business days in advance of each Closing Date.
The Company agrees to notify the Representatives at least two business
days before each Closing Date of the exact principal balance evidenced by the
Offered Certificates and to have such Offered Certificates available for
inspection, checking and packaging in New York, New York, no later than 12:00
noon on the business day prior to such Closing Date.
4. Offering by the Underwriters. It is understood that the Underwriters
propose to offer the Offered Certificates of the related Series for sale to the
public as set forth in the Prospectus. Each Underwriter (severally and not
jointly) represents and warrants that it has complied in all material respects,
and agrees that it will comply in all material respects, with all applicable
securities laws and regulations in each jurisdiction in which it purchases,
offers, sells or delivers the Offered Certificates or distributes the
Prospectus.
5. Agreements. The Company agrees with the Underwriters that:
(a) The Company has caused or will cause each Preliminary Prospectus
and the Prospectus relating to the Offered Certificates to be transmitted to the
Commission for filing pursuant to Rule 424 under the Act by means reasonably
calculated to result in filing with the Commission pursuant to such rule but,
with respect to the Prospectus, in no event later than 9:00 a.m. on the related
Closing Date and prior to the termination of the Certificate Offering to which
such Prospectus relates also will promptly advise the Representatives (i) when
any amendment to the related Registration Statement specifically relating to
such Offered Certificates shall have become effective or any Statutory
Prospectus has been filed, (ii) of any request by the Commission for any
amendment of such Registration Statement or any Preliminary Prospectus or the
Prospectus or for any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of such Registration
Statement or the institution or threatening of any proceeding for that purpose
and (iv) of the receipt by the Company of any written notification with respect
to the suspension of the qualification of such Offered Certificates for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will not file any amendment of the related Registration
Statement or supplement to the related Prospectus (other than any amendment or
supplement specifically relating to one or more Series of asset-backed
securities other than the Series that includes the related Offered Certificates)
unless (i) the Company has given reasonable notice to the Underwriters of its
intention to file any such amendment or supplement and (ii) the Company has
furnished the Underwriters with a copy for their review within a reasonable time
prior to filing. The Company will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) [Reserved]
(c) If, at any time when any Preliminary Prospectus is to be delivered
pursuant to a Terms Agreement or a Prospectus relating to the Offered
Certificates of a Series is required to be delivered under the Act, any event
occurs as a result of which such Preliminary Prospectus or the related
Prospectus as then amended or supplemented would include any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein in light of the circumstances under which they were made not
misleading, or if it shall be necessary at any time to amend or supplement such
Preliminary Prospectus or the Prospectus to comply with the Act or the rules
thereunder, the Company promptly will notify the Representatives of such event
and prepare and file with the Commission, subject to the penultimate sentence of
paragraph (a) of this Section 5, an amendment or supplement which will correct
such statement or omission or an amendment which will effect such compliance;
provided, however, that the Company will not be required to file any such
amendment or supplement with respect to any Underwriter Materials incorporated
by reference in the Registration Statement other than anny amendments or
supplements of such Underwriter Materials that are furnished to the Company by
the Representatives on behalf of the Underwriters and required to be filed
pursuant to Section 8(b)(ii).
(d) The Company will furnish to each Underwriter and counsel for the
Underwriters, without charge, as many signed copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of a prospectus
by an Underwriter or dealer may be required by the Act, as many copies of the
related Prospectus and any supplements thereto as the Underwriters may
reasonably request.
(e) The Company will furnish such information, execute such instruments
and take such actions as may be reasonably requested by the Representatives to
enable the Representatives to (i) qualify the Offered Certificates of a Series
for sale under the laws of such jurisdictions as the Representatives may
designate, (ii) maintain such qualifications in effect so long as required for
the initial distribution of such Offered Certificates and (iii) determine the
legality of such Offered Certificates for purchase by institutional investors;
provided, however, that the Company shall not be required to qualify to do
business in any jurisdiction where it is not qualified on the date of the
related Terms Agreement or to take any action which would subject it to general
or unlimited service of process or to corporate or franchise taxation in any
jurisdiction in which it is not, on the date of the related Terms Agreement,
subject to such service of process or to such corporate or franchise taxation.
(f) So long as the Offered Certificates of a Series are outstanding,
the Company will furnish to the Representatives, upon request, copies of the
annual independent public accountants servicing report furnished to the Trustee
pursuant to the related Pooling and Servicing Agreement.
(g) If the transactions contemplated hereby and by the related Terms
Agreement shall be consummated, the Company or the Seller shall pay any costs
and expenses for which details are submitted, in connection with the performance
of its obligations under this Agreement and the related Terms Agreement,
including, without limitation, (i) the filing of the Registration Statement with
respect to the Certificates and all amendments thereto, (ii) the preparation,
registration, issuance and delivery to the Underwriters of the Certificates
underwritten pursuant to this Agreement, (iii) the fees and disbursements of the
Company's counsel and accountants, (iv) the printing and delivery to the
Underwriters, in such quantities as they may reasonably request, of copies of
the Registration Statement with respect to the Certificates underwritten
pursuant to this Agreement and all amendments thereto, of any related
Preliminary Prospectus and Prospectus and all amendments and supplements thereto
and all documents incorporated therein and of any Time of Sale Issuer Free
Writing Prospectuses to investors or prospective investors, (v) the fees charged
by investment rating agencies requested by the Company to initially rate the
Certificates underwritten pursuant to this Agreement, (vi) the fees and
expenses, if any, incurred in connection with the listing of the Certificates
underwritten pursuant to this Agreement on any national securities exchange, and
(vii) the fees and expenses of the Trustee and its counsel. If the transactions
contemplated by this Agreement are not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 is not satisfied or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or to comply with any provision hereof other than
by reason of default by the Underwriters, the Company will reimburse the
Underwriters upon demand for all out-of pocket expenses (including reasonable
fees and disbursements of counsel) that shall have been incurred by the
Underwriters in connection with the proposed purchase, sale and offering of the
Offered Certificates. Except as provided in this paragraph (g) and in Section 7
hereof, each Underwriter will pay all its own costs and expenses, including (i)
the fees of [XxXxx Xxxxxx, LLP], counsel for the Underwriters, (ii) transfer
taxes on resale of any Offered Certificates by it, (iii) advertising expenses
connected with any offers that it may make, (iv) the fees of any firm of public
accountants selected by the Representatives with respect to any letter furnished
by them in connection with ABS ICM or Term Sheet (each as defined herein), (v)
any expenses for the qualification of the Offered Certificates of the applicable
Series under "blue sky" or state securities laws, including filing fees and the
fee and disbursements of counsel in connection therewith and in connection with
the preparation of any Blue Sky Survey and (vi) any other costs and expenses
specified in the related Terms Agreements as "Additional Expenses."
(h) [Reserved]
(i) If so specified in the related Terms Agreement, the Company will
prepare the Preliminary Prospectus relating to the Offered Certificates in a
form consented to by the Representatives, and will file such Preliminary
Prospectus within the period required by Rule 424(b).
(j) If so specified in the related Terms Agreement, the Company will
prepare a final term sheet relating to the Offered Securities, containing only
information that describes the final terms of the Offered Certificates and
otherwise in a form consented to by the Representatives, and will file such
final term sheet within the period required by Rule 433(d)(5)(ii) following the
date such final terms have been established for all classes of the offering of
the Offered Certificates. Any such final term sheet is an Issuer Free Writing
Prospectus for purposes of this Agreement.
(k) All written and graphic communications relating to the Offered
Certificates used prior to the availability of the Prospectus will comply with
the requirements of Rule 433, including the inclusion of the legend required by
Rule 433(c)(2).
(l) To the extent prepared by or on behalf of the Company or to the
extent that the Representatives has provided to the Company either ABS ICM or a
Free Writing Prospectus that constitutes an Issuer Free Writing Prospectus (as
defined in Section 8(a)) or contains Issuer Information that such Underwriter
has conveyed to a prospective investor, the Company will file or cause to be
filed with the Commission such ABS ICM or such Free Writing Prospectus as soon
as reasonably practicable after the date of the related Terms Agreement, but in
any event not later than required pursuant to Rules 426 or 433, respectively,
under the Act; provided, however, that the Company shall not be required to file
(A) any Free Writing Prospectus, if the information included therein is included
or incorporated by reference in a prospectus or Free Writing Prospectus
previously filed with the Commission that related to the offering of the Offered
Certificates or (B) any Free Writing Prospectus or portion thereof that contains
a description of the Certificates or the offering of the Offered Certificates
that does not reflect the final terms thereof.
6. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Offered Certificates of any Series shall be
subject to the accuracy in all material respects of the representations and
warranties on the part of the Company contained in this Agreement, as
supplemented by the related Terms Agreement, as of the respective dates thereof
and the related Closing Date, to the accuracy of the statements of the Company
made in any applicable officers' certificates pursuant to the provisions hereof,
to the performance by the Company of its obligations under this Agreement and
such Terms Agreement and to the following additional conditions applicable to
the related Certificate Offering:
(a) No stop order suspending the effectiveness of the related
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted, or to the knowledge of the Company,
threatened by the Commission.
(b) Xxxxxxx Xxxxxxxx & Xxxx LLP, counsel for the Company, shall have
furnished to the Representatives on behalf of the Underwriters an opinion, dated
the related Closing Date, substantially in form and substance to the effect
that:
(i) This Agreement, the related Terms Agreement, the related
Pooling and Servicing Agreement, the Originator Mortgage Loan Purchase
Agreement and the Seller Mortgage Loan Purchase Agreement
(collectively, the "Operative Agreements") each constitutes a legal,
valid and binding agreement of each of the Company, the Seller and the
Originator (each, a "WMC Party") to the extent that such WMC Party is a
party thereto, enforceable against such WMC Party in accordance with
its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, receivership or other laws
relating to or affecting creditors' rights generally, and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity), and except that the enforcement of
rights with respect to indemnification and contribution obligations and
provisions (a) purporting to waive or limit rights to trial by jury,
oral amendments to written agreements or rights of set off or (b)
relating to submission to jurisdiction, venue of service or process,
may be limited by applicable law or considerations of public policy;
(ii) The Certificates have been duly authorized by the Company
and, when the Certificates have been duly executed, countersigned and
delivered by the Trustee in the manner contemplated in the related
Pooling and Servicing Agreement, the Certificates will be validly
issued and outstanding and entitled to the benefits provided by the
related Pooling and Servicing Agreement;
(iii) The related Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as
amended;
(iv) The Trust Fund (as defined in the related Pooling and
Servicing Agreement) is not required to be registered under the
Investment Company Act of 1940, as amended;
(v) Such counsel confirms that the related Registration
Statement is effective under the Act and, to the best of such counsel's
knowledge, no stop order with respect thereto has been issued, and no
proceeding for that purpose has been instituted or threatened by the
Commission; such Registration Statement (except the financial
statements and schedules and other financial and statistical data
included therein and the documents incorporated by reference therein,
as to which such counsel need express no view), at the time it became
effective, the related Preliminary Prospectus and the related
Prospectus (except in each case the financial statements and schedules,
the other financial and statistical data included therein and the
documents incorporated by reference therein), as of its respective date
conformed in all material respects to the requirements of the Act and
the rules and regulations thereunder; and no information has come to
the attention of such counsel that causes it to believe that (A) such
Registration Statement (except the financial statements and schedules
and the other financial and statistical data included therein and the
documents incorporated by reference therein, as to which such counsel
need express no view) at the time it became effective, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. (B) such Preliminary Prospectus or any
amendment or supplement thereto (except the financial statements and
schedules and other financial and statistical date included therein),
as of the date of the Preliminary Prospectus, contained or contains an
untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
or (C) such Prospectus or any amendment or supplement thereto (except
the financial statements and schedules and the other financial and
statistical data included therein), as of the date of the Prospectus
Supplement, or at the related Closing Date, contained or contains an
untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
[or (D) if applicable, such counsel has no reason to believe that the
Time of Sale Free Writing Prospectus, as of the date of the Time of
Sale Free Writing Prospectus and as of the Applicable Time contained
any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading];
(vi) Each Prospectus and any Preliminary Prospectus, as of the
dates thereof (in each case, with the exception of any information
incorporated by reference therein and any numerical, financial,
statistical and quantitative data included therein, as to which such
counsel need express no view), appeared on their respective faces to be
appropriately responsive in all material respects to the requirements
of the Act, and the rules and regulations thereunder applicable to such
documents as of the relevant date;
(vii) The statements (a) in the related Prospectus under the
headings "Federal Income Tax Consequences" and "Considerations for
Benefit Plan Investors" and (b) in the Prospectus Supplement under the
headings (i) "Summary of Prospectus Supplement--Federal Income Tax
Consequences," (ii) "Summary of Prospectus Supplement--ERISA
Considerations," (iii) "Federal Income Tax Consequences" and (iv)
"ERISA Considerations," insofar as such statements relate to the
Certificates and purport to summarize matters of federal law or legal
conclusions with respect thereto, have been reviewed by such counsel
and are correct in all material respects;
(viii) If applicable, that the Offered Certificates upon
issuance will be a "mortgage related security" as such term is defined
in Section 3(a)(41) of the Exchange Act, so long as the Offered
Certificates are rated in one of the two highest rating categories by a
nationally recognized statistical rating organization;
(ix) The statements set forth under the heading "Description
of the Securities" in the related Prospectus and "Description of the
Certificates" in the related Prospectus Supplement, insofar as such
statements purport to summarize certain provisions of the related
Pooling and Servicing Agreement and the related Offered Certificates,
provide a fair summary of such provisions; and
(x) Assuming compliance with all provisions of the related
Pooling and Servicing Agreement, for federal income tax purposes, (A)
if any election is made to treat the assets of the Trust Fund as a
REMIC: the related Trust Fund (and any specified subgrouping therein)
will qualify as a REMIC pursuant to Section 860D of the Internal
Revenue Code of 1986, as amended (the "Code"), each Class of
Certificates of the related Series, other than the related Residual
Class or Classes, will constitute a class of "regular interests" in the
related REMIC within the meaning of the Code, and each Class of such
Certificates specified in the related Prospectus as a Class of Residual
Certificates will constitute the "residual interest" in the related
REMIC within the meaning of the Code; (B) if no such REMIC election is
made: the Trust Fund will be treated as a "grantor trust."
(c) [Reserved].
(d) Xxxxxxx Xxxxxxxx & Wood LLP, counsel for the Company, shall have
furnished to the Company and the Representatives on behalf of the Underwriters
an opinion, dated the related Closing Date, in form and substance satisfactory
to the Company and the Representatives, relating to certain insolvency and
bankruptcy matters and federal income tax matters as may be required to obtain
the Required Ratings (as defined below).
(e) In-house transaction counsel for the Company and Seller shall have
furnished to the Representatives on behalf of the Underwriters an opinion, dated
the related Closing Date, generally to the effect that:
(i) Each of the Company and the Seller has been duly formed
and is validly existing as a limited liability company in good standing
under the laws of the State of Delaware, with power to own its
properties, to conduct its business as described in the related
Prospectus and to enter into and perform its obligations under each
Operative Agreement to which it is a party and the Certificates of the
related Series;
(ii) Each of the Company and the Seller has full power and
authority to sell the related Mortgage Loans as contemplated herein and
in each Operative Agreement to which it is a party;
(iii) Each Operative Agreement to which it is a party has been
duly authorized, executed and delivered by each of the Company and the
Seller;
(iv) The issuance and sale of the Offered Certificates have
been duly authorized by each of the Company and the Seller;
(v) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by each
of the Company and the Seller of the transactions contemplated herein
or in each Operative Agreement to which it is a party, except such as
may be required under the blue sky laws of any jurisdiction and such
other approvals as have been obtained;
(vi) Neither the issuance of the Certificates of the related
Series nor delivery of the related Offered Certificates, nor the
consummation of any other of the transactions contemplated in each
Operative Agreement to which it is a party, nor the fulfillment of the
terms of the related Certificates and each Operative Agreement to which
it is a party will conflict with or violate any term or provision of
the articles of formation or by-laws of each of the Company and the
Seller or, to the best of such counsel's knowledge, any statute, order
or regulation applicable to the Company or the Seller, as applicable,
of any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Company or the Seller, as applicable,
and will not conflict with, result in a breach or violation or the
acceleration of or constitute a default under the terms of any
indenture or other agreement or instrument known to such counsel to
which the Company and the Seller, as applicable, is a party or by which
it is bound; and
(vii) There are no actions, proceedings or investigations
pending or, to the best knowledge of such counsel, threatened before
any court, administrative agency or other tribunal (i) asserting the
invalidity of this Agreement, the related Terms Agreement, the related
Pooling and Servicing Agreement or the related Certificates, (ii)
seeking to prevent the issuance of the Certificates of the related
Series or the consummation by the Company of any of the transactions
contemplated by this Agreement, such Terms Agreement or the related
Pooling and Servicing Agreement, or (iii) which might materially and
adversely affect the performance by the Company of its obligations
under, or the validity or enforceability of, this Agreement, such Terms
Agreement, the related Pooling and Servicing Agreement or the related
Certificates.
In rendering his or her opinion such counsel may rely as to
matters of fact, to the extent deemed proper and as stated therein, on
certificates of responsible officers of the Company or public
officials. In addition, such opinion may be delivered by an attorney
admitted to the New York bar that is generally familiar with the
corporate law of the State of Delaware.
(f) In-house counsel for WMC Mortgage Corp. shall have furnished to you
an opinion addressed to the Underwriters, dated the related Closing Date, in
form and substance reasonably satisfactory to the Representatives and counsel
for the Underwriters.
(g) The Underwriters shall have received from [XxXxx Xxxxxx LLP],
counsel for the Underwriters, such opinion or opinions, dated the related
Closing Date, with respect to the issuance and sale of the Certificates of the
related Series, the related Registration Statement, the related Prospectus and
such other related matters as the Underwriters may reasonably require, and the
Company shall have furnished to such counsel such documents as the Underwriters
may reasonably request for the purpose of enabling them to pass upon such
matters.
(h) The Company shall have furnished to the Representatives or counsel
to the Representatives a certificate of the Company, signed by the President,
any Vice President or the principal financial or accounting officer of the
Company, dated the related Closing Date, to the effect that the signer of such
certificate has carefully examined the related Registration Statement (excluding
any ABS ICM with respect to Offered Certificates of a Series that are filed by
the Underwriters or delivered by any Representatives on behalf of the
Underwriters to the Company pursuant to Section 8(b) to be filed with the
Commission on a Current Report on Form 8-K), each Preliminary Prospectus, the
related Prospectus, this Agreement and the related Terms Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the related Closing Date with the same effect as if made on such
Closing Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to such Closing Date;
(ii) no stop order suspending the effectiveness of such
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to their knowledge, threatened; and
(iii) nothing has come to their attention that would lead them
to believe that such Registration Statement contains any untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that any Preliminary Prospectus or the
related Prospectus contains any untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(i) Counsel for the Trustee, shall have furnished to the Underwriters
an opinion, dated the related Closing Date, substantially in form and substance
to the effect that:
(i) the Trustee has been duly incorporated and is validly
existing as a corporation or banking institution in good standing under
the laws of the place of its formation with power to own its properties
and conduct its business as presently conducted by it, to conduct
business as a trustee and to enter into and perform its obligations
under the related Pooling and Servicing Agreement;
(ii) the related Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Trustee and constitutes the
legal, valid and binding agreement of the Trustee enforceable against
the Trustee in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyance, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and to
judicial discretion, and general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law);
(iii) the Trustee has duly accepted its appointment as trustee
under the Pooling and Servicing Agreement;
(iv) no consent, approval, authorization or order of any
applicable state or federal court or government agency or body is
required on the part of the Trustee for the consummation of the
transactions contemplated in the Pooling and Servicing Agreement,
except such as may be required under any federal or state securities
law; and
(v) the performance on the part of the Trustee of any of the
transactions contemplated in the Pooling and Servicing Agreement does
not conflict with or result in a breach or violation of any term or
provision of, or constitute a default under, the Articles of
Organization, as amended, or By-Laws of the Trustee, or any applicable
state or federal statute or regulation applicable to the Trustee, or to
such counsel's knowledge, any indenture or other agreement or
instrument to which the Trustee is a party or by which it is bound, or,
to such counsel's knowledge, any order of any state or federal court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Trustee.
In addition, such counsel shall furnish to the Representatives
on behalf of the Underwriters such opinions as to the treatment of the
Trust Fund for purposes of the tax law of the state that is the situs
of the Trust Fund as are reasonably satisfactory to the
Representatives.
(j) The Representatives shall have received letters dated on or before
the date on which the Prospectus Supplement is dated and printed, in form and
substance acceptable to the Representatives and its counsel, prepared by [KPMG
LLP] (a) regarding certain numerical information contained or incorporated by
reference in the Prospectus Supplement, any Preliminary Prospectus Supplement
and any Time of Sale Free Writing Prospectus and (b) relating to certain agreed
upon procedures as requested by the Underwriters relating to the Mortgage Loans.
(k) The Offered Certificates of the related Series shall have received
the ratings specified in the related Terms Agreement (the "Required Ratings").
(l) Prior to the related Closing Date, the Company shall have furnished
to the Underwriters such further information, certificates and documents as the
Underwriters may reasonably request.
(m) If any Certificates of the related Series are to be sold to any
other underwriter and/or offered in reliance upon an exemption from the
registration requirements of the Act, the sale at or prior to the related
Closing Date of such Certificates to the purchaser thereof shall have occurred.
(n) Subsequent to the date of the related Terms Agreement, there shall
not have been any material adverse change in the business or properties of the
Company which in the Representatives' reasonable judgment, after consultation
with the Company, materially impairs the investment quality of the Offered
Certificates of the related Series so as to make it impractical or inadvisable
to proceed with the public offering or the delivery of such Offered Certificates
as contemplated by the related Prospectus.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects with respect to the particular Offered
Certificates of a Series when and as provided in this Agreement and the related
Terms Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement and the related Terms Agreement shall not be in all
material respects reasonably satisfactory in form and substance to the
Representatives and their counsel, this Agreement (with respect to the related
Offered Certificates) and the related Terms Agreement and all obligations of the
Underwriters hereunder (with respect to the related Offered Certificates) and
thereunder may be canceled at, or at any time prior to, the related Closing Date
by the Underwriters. Notice of such cancellation shall be given to the Company
in writing, or by telephone or telegraph confirmed in writing.
7. Indemnification and Contribution.
(a) The Company and the Seller, jointly and severally, agree to
indemnify and hold harmless each Underwriter and each person who controls such
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act, the
Exchange Act, or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) are caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement relating to
the Offered Certificates of the applicable Series as it became effective or in
any amendment or supplement thereof, or in any Preliminary Prospectus or the
Prospectus or in any amendment thereof, or in any Issuer Free Writing
Prospectus, any Issuer Information contained in any Free Writing Prospectus and
approved by the Company for use therein are caused by the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that (i)
neither the Company nor the Seller will be liable in any such case to the extent
that any such loss, claim, damage or liability is caused by any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein (A) in reliance upon and in conformity with written information
furnished to the Company by any Representative or any Underwriter specifically
for use in connection with the preparation thereof or (B) in any Underwriter
Materials, except to the extent that any untrue statement or alleged untrue
statement therein or omission therefrom results (or is alleged to have resulted)
directly from an error in the information concerning the characteristics of the
Mortgage Loans furnished by the Company or the Underwriters in writing or by
electronic transmission (a "Mortgage Pool Error") that was used in the
preparation of such Underwriter Materials and not corrected by information
supplied by the Company to the Underwriters prior to the Applicable Time (the
information and materials described in clauses (A) and (B), collectively,
"Underwriter Provided Information"). This indemnity agreement will be in
addition to any liability which the Company or the Seller may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement relating to the Offered Certificates of the
applicable Series, and each person who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnities from the Company and the Seller to such Underwriter,
but only with reference to (A) written information furnished to the Company by
the Representatives on behalf of the Underwriters or by any such Underwriter
specifically for use in the preparation of the documents referred to in the
foregoing indemnity with respect to the related Series or (B) Underwriter
Materials, except to the extent that any untrue statement or alleged untrue
statement therein or omission therefrom results (or is alleged to have resulted)
directly from a Mortgage Pool Error that was used in the preparation of either
(x) any Underwriter Materials (or amendment or supplement thereof) or (y) any
written or electronic materials furnished to prospective investors on which the
Underwriter Materials (or amendments or supplements) were based. This indemnity
agreement will be in addition to any liability which the Underwriters may
otherwise have. The Terms Agreement will describe the information furnished in
writing by the Representatives and the Underwriters for inclusion in the related
Prospectus and the Underwriters confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under Section 7 of
notice of the commencement of any action, an indemnified party will, if a claim
in respect thereof is to be made against an indemnifying party under this
Section 7, notify such indemnifying party in writing of the commencement
thereof; provided, however, that the omission so to notify such indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under subparagraph (a) or (b) except and to the
extent of any prejudice to the indemnifying party arising from such failure to
provide notice. In case any such action is brought against an indemnified party,
and it notifies an indemnifying party of the commencement thereof, such
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, jointly with
any other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party; provided, however, that if
the defendants in any such action include both indemnified and indemnifying
parties and any such indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to such indemnifying
party, the indemnified party or parties shall have the right to select separate
counsel to assert such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from an indemnifying party to an indemnified party of its
election so to assume the defense of such action and approval by such
indemnified party of counsel, such indemnifying party will not be liable to such
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel approved by the indemnified party in the case of subparagraph
(a) or (b), representing the indemnified parties under subparagraph (a) or (b),
who are parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii). Unless it shall
assume the defense of any proceeding, the indemnifying party shall not be liable
for any settlement of any proceeding, effected without its written consent, but
if settled with such consent or if there shall be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss, claim, damage or liability by reason of such settlement or
judgment. No indemnifying party shall, without the written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding and does
not include a statement as to, or an admission of, fault, culpability or failure
to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in paragraph (a) or (b) of this
Section 7 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company or the Underwriters, on grounds of
policy or otherwise, then each indemnifying party shall contribute to the
aggregate losses, claims, damages and liabilities to which the Company, the
Seller and the Underwriters may be subject in such proportion as is appropriate
to reflect not only the relative benefits received by the Company and the Seller
on the one hand and each Underwriter on the other from the offering of the
Offered Certificates but also the relative fault of the Company and Seller
jointly on the one hand and of each Underwriter, on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations; provided,
however, that, other than in connection with the willful misconduct or gross
negligence of the Underwriter or as described in the next proviso, in no case
shall such Underwriter be responsible under this paragraph (d) for any amount in
excess of the underwriting discount applicable to the Offered Certificates
purchased by such Underwriter pursuant to this Agreement and the related Terms
Agreement; provided, further, that if the statements or omissions or alleged
statements or alleged omissions which resulted in contribution were contained in
or omitted, as applicable, from Underwriter Provided Information, the preceding
limitation on contribution shall be inapplicable to the Underwriter which
furnished such Underwriter Provided Information. The relative benefits received
by the Company and Seller jointly on the one hand and each Underwriter on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) of the Offered Certificates
received by the Company bear to the total underwriting discounts and commissions
received by each Underwriter with respect to the Offered Certificates. The
relative fault of the Company and Seller jointly on the one hand and of each
Underwriter on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by such Underwriter, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company, the Seller and the Underwriters agree that it would not be
just and equitable if contribution pursuant to Section 7(d) were determined by
pro rata allocation or by any other method of allocation which does not take
account of the considerations referred to above. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 7(d) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim except where the indemnified party is required to bear such
expenses pursuant to Section 7(d); which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party believes that it will be ultimately obligated to pay
such expenses. In the event that any expenses so paid by the indemnifying party
are subsequently determined to not be required to be borne by the indemnifying
party hereunder, the party which received such payment shall promptly refund the
amount so paid to the party which made such payment.
Notwithstanding anything to the contrary in this Section 7(d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 7,
each person who controls an Underwriter within the meaning of either Section 15
of the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company or
the Seller, as the case may be, within the meaning of either Section 15 of the
Act or Section 20 of the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company or the
Seller, as the case may be, shall have the same rights to contribution as the
Company or the Seller, as the case may be, subject in each case to the
immediately preceding sentence of this paragraph (d).
(e) In the event that neither the Company nor the Seller has sufficient
funds to make any payments required to be made by them to the Underwriters
pursuant to Section 7 of this Agreement, the Seller shall cause its parent,
GE-WMC Mortgage Holding, Inc. ("GEMHI") to contribute funds to the Seller for
such purpose pursuant to that certain Contribution Agreement, dated as of
September 28, 2005, by and between GEMHI and the Seller. In the event that GEMHI
requires funds to make such contributions to the Seller pursuant to the
preceding sentence, GEMHI shall cause its parent, General Electric Capital
Services, Inc. ("GECS") to contribute funds to GEMHI for such purpose pursuant
to that certain Supplemental Contribution Agreement, dated as of September 28,
2005, by and between GEMHI and GECS.
8. Investor Communications. (a) The following terms shall have the
meanings set forth below, unless the context clearly indicates otherwise:
(i) ABS ICM: ABS Informational and Computational Materials as
defined in Item 1101(a) of Regulation AB promulgated by the Commission.
(ii) Contract of Sale: The meaning set forth in Rule 159 under
the Act.
(iii) Free Writing Prospectus: A Free Writing Prospectus
within the meaning of Rule 405 under the Act that describes the
Certificates and/or the Mortgage Loans.
(iv) Issuer Information: Such information as defined in Rule
433(h) under the Act and not information that is merely based on or
derived from such approved information.
(v) Issuer Free Writing Prospectus: The meaning set forth in
Rule 433(h) of the Act, except that (A) no Free Writing Prospectus
shall be deemed to be prepared by any Underwriter on behalf of the
Company if such Free Writing Prospectus is not delivered to the Company
by the Underwriters prior to first use and (B) no Underwriter Materials
shall be deemed to be an Issuer Free Writing Prospectus.
(vi) Term Sheet: A Free Writing Prospectus that contains
information described in paragraphs (1) to (3) of the definition of ABS
Informational and Computational Materials in Item 1101(a) of Regulation
AB.
(vii) Underwriter Materials: Any of (i) ABS ICM or Term Sheet
prepared by an Underwriter that contains information specified in the
definition of ABS ICM and may or may not include Issuer Information,
(ii) any Free Writing Prospectus prepared by or on behalf of an
Underwriter that does not include any Issuer Information and (iii) any
Free Writing Prospectus prepared by or on behalf of an Underwriter that
includes any Issuer Information not approved by the Company for use in
a Free Writing Prospectus.
(b) Each Underwriter severally represents, warrants, covenants and
agrees with the Company as to itself that:
(i) On or ______, unless preceded or accompanied by a
prospectus satisfying the requirements of Section 10(a) of the Act, it
will not convey or deliver any written communication to any person in
connection with the initial offering of the Offered Certificates,
unless such written communication (A) is made in reliance on Rule 134
under the Act, (B) constitutes a prospectus satisfying the requirements
of Rule 430B under the Act, (C) constitutes a Free Writing Prospectus
or (D) is provided to the Company for filing with the Commission in
accordance with Section 8(b)(ii). The Underwriter shall not convey or
deliver in connection with the initial offering of the Certificates any
ABS ICM in reliance on Rules 167 and 426 under the Act.
(ii) It will deliver to the Company, no later than one
business day prior to the date of first use thereof, (A) any Free
Writing Prospectus prepared by or on behalf of such Underwriter that
contains any Issuer Information and (B) any Free Writing Prospectus or
portion thereof that contains only a description of the final terms of
the Certificates. Notwithstanding the foregoing, any Free Writing
Prospectus that contains only ABS ICM may be delivered by such
Underwriter to the Company or its counsel not later than the later of
(1) one business day prior to the due date for filing of the Prospectus
pursuant to Rule 424(b) under the Act or (2) the date of first use of
such Free Writing Prospectus.
(iii) The Free Writing Prospectuses to be furnished to the
Company by it pursuant to Section 8(b)(ii) will constitute all Free
Writing Prospectuses of the type described therein that were furnished
to prospective purchasers of Offered Certificates by such Underwriter
in connection with its offer and sale of the Offered Certificates.
(iv) Each Free Writing Prospectus required to be provided by
it to the Company pursuant to Section 8(b)(ii), when viewed together
with the Time of Sale Free Writing Prospectus or Preliminary
Prospectus, as applicable, is not, as of the Applicable Time, and will
not be as of the Closing Date, misleading or inaccurate; provided,
however, that such Underwriter makes no representation with respect to
any such Free Writing Prospectus that is misleading or inaccurate as a
result of any misleading or inaccurate Issuer Information supplied by
the Company to the Underwriters, which information was not corrected by
corrective information subsequently supplied by the Company to the
Underwriters ("Corrective Information") prior to the Applicable Time.
(v) It will file with the Commission, not later than the date
of first use of such Free Writing Prospectus, any Free Writing
Prospectus that is used or referred to by such Underwriter and
distributed by or on behalf of such Underwriter in a manner reasonably
designed to lead to its broad unrestricted dissemination within the
meaning of Rule 433(d) under the Act.
(vi) Notwithstanding anything in Section 8(b)(v) to the
contrary, it will 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.
(vii) It will retain all Free Writing Prospectuses that such
Underwriter has used and that are not required to be filed pursuant to
this Section 8(b) for a period of three years following the initial
bona fide offering of the Offered Certificates.
(viii) (A) In the event that it becomes aware that, as of the
Applicable Time, any Free Writing Prospectus prepared by or on behalf
of such Underwriter and delivered to a purchaser of an Offered
Certificate contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to made the
statements contained therein, in the light of the circumstances under
which they were made, not misleading (such Free Writing Prospectus, a
"Defective Free Writing Prospectus"), such Underwriter shall notify the
Company thereof within one business day after discovery; and (B) If the
Defective Free Writing Prospectus was an Issuer Free Writing Prospectus
or contained Issuer Information, such Underwriter will, if requested by
the Company: (1) prepare a Free Writing Prospectus with Corrective
Information that corrects the material misstatement in or omission from
the Defective Free Writing Prospectus (each such corrected Free Writing
Prospectus, a "Corrected Free Writing Prospectus"); (2) deliver the
Corrected Free Writing Prospectus to each purchaser of an Offered
Certificate from it that received the Defective Free Writing Prospectus
prior to entering into a agreement to purchase any Offered
Certificates; (3) notify such purchaser in a prominent fashion that the
prior agreement to purchase Offered Certificates has been terminated
and of such purchaser's rights as a result of termination of such
agreement; and (4) provide such purchaser with an opportunity to
affirmatively agree to purchase such Offered Certificates on the terms
described in the Corrected Free Writing Prospectus.
(ix) After the Prospectus is available, it will not distribute
any written information concerning the Offered Certificates to a
prospective purchaser of Offered Certificates unless such information
is preceded or accompanied by the Prospectus.
(c) The Company and each Underwriter agree that:
(i) any Free Writing Prospectus prepared by it will contain a
legend in substantially the following form:
THE ISSUER HAS FILED A REGISTRATION STATEMENT (INCLUDING A
PROSPECTUS) WITH THE SEC FOR THE OFFERING TO WHICH THIS FREE
WRITING PROSPECTUS RELATES. BEFORE YOU INVEST, YOU SHOULD READ
THE PROSPECTUS IN THAT REGISTRATION STATEMENT AND OTHER
DOCUMENTS THE ISSUER HAS FILED WITH THE SEC FOR MORE COMPLETE
INFORMATION ABOUT THE ISSUER AND THIS OFFERING. YOU MAY OBTAIN
THESE DOCUMENTS FOR FREE BY VISITING XXXXX ON THE SEC WEB SITE
AT XXX.XXX.XXX. ALTERNATIVELY, THE ISSUER, ANY UNDERWRITER OR
ANY DEALER PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND
YOU THE PROSPECTUS IF YOU REQUEST IT BY CALLING TOLL-FREE
1-8[ZZ-ZZZ-ZZZZ] OR EMAILING [_________] AT [___________].
(ii) Notwithstanding the provisions of Sections 8(b)(v) and
8(d)(ii), neither the Issuer nor any Underwriter will be required to
file any Free Writing Prospectus that does not contain substantive
changes from or additions to a Free Writing Prospectus previously filed
with the Commisison.
(d) The Company represents, warrants, covenants and agrees with each
Underwriter that:
(i) The Company will file with the Commission (A) any Issuer
Free Writing Prospectus; (B) any Free Writing Prospectus or portion
thereof delivered by the Underwriter to the Company pursuant to Section
8(b)(ii); and (C) Any Free Writing Prospectus for which the Company or
any person acting on its behalf provided, authorized or approved
information that is prepared and published or disseminated by a person
unaffiliated with the Company or any other offering participant that is
in the business of publishing, radio or television broadcasting or
otherwise disseminating communications.
(ii) Any Free Writing Prospectus required to be filed pursuant
to Section 8(b)(ii) by the Company shall be filed with the Commission
not later than the date of first use of the Free Writing Prospectus;
provided, however, that (A) any Free Writing Prospectus or portion
thereof required to be filed that contains only the description of the
final terms of the Certificates will be filed by the Company with
Commission within two days of the later of the date such final terms
have been established for all classes of Certificates and the date of
first use; (B) any Free Writing Prospectus or portion thereof required
to be filed that contains only ABS ICM will be filed by the Company
with the Commission not later than the later of the due date for filing
the Prospectus relating to the Offered Certificates pursuant to Rule
424(b) under the Act or two business days after the first use of such
Free Writing Prospectus; (C) any Free Writing Prospectus required to be
filed pursuant to Section 8(d)(i) will, if no payment has been made or
consideration has been given by or on behalf of the Company for the
Free Writing Prospectus or its dissemination, be filed by the Company
with the Commission not later than four business days after the Company
becomes aware of the publication, radio or television broadcast or
other dissemination of the Free Writing Prospectus and (D) the Company
will not be required to file (1) Issuer Information contained in any
Free Writing Prospectus of an Underwriter or any other offering
participant other than the Company if such information is included or
incorporated by reference in a prospectus or Free Writing Prospectus
previously filed with the Commission that relates to the offering of
the Certificates or (2) any Free Writing Prospectus or portion thereof
that contains a description of the Certificates or the offering of the
Certificates that does not reflect the final terms thereof.
9. [Reserved]
10. No Fiduciary Duty. The Company acknowledges that in connection with
any offering of the Certificates: (a) the Underwriters have acted at arms
length, are not agents of, and owe no fiduciary duties to, the Company or any
other person, (b) the Underwriters owe the Company only those duties and
obligations set forth in this Agreement and the related Terms Agreement and (c)
the Underwriters may have interests that differ from those of the Company. The
Company waives to the full extent permitted by applicable law any claims it may
have against the Underwriters arising solely from an alleged breach of fiduciary
duty in connection with any offering of the Certificates.
11. Default by One or More of the Underwriters. If one or more of the
Underwriters participating in the public offering of the Offered Certificates
shall fail at the Closing Date to purchase the Offered Certificates which it is
(or they are) obligated to purchase hereunder (the "Defaulted Certificates"),
then the non-defaulting Underwriters shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Certificates in such amounts as may be agreed upon and upon the
terms herein set forth. If, however, the Underwriters have not completed such
arrangements within such 24-hour period, then
(a) if the aggregate principal amount of Defaulted Certificates does
not exceed 10% of the aggregate principal amount of the Offered Certificates to
be purchased pursuant to this Agreement, the non-defaulting Underwriters named
in this Agreement shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all such non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Certificates exceeds
10% of the aggregate principal amount of the Offered Certificates to be
purchased pursuant to this Agreement, the non-defaulting Underwriters shall have
the right to purchase all, but shall not be under any obligation to purchase
any, of the Offered Certificates, and if such non-defaulting Underwriters do not
purchase all of the Offered Certificates, this Agreement shall terminate,
without any liability on the part of any non-defaulting Underwriters or the
Company.
In the event of a default by any Underwriter as set forth in this
Section 11, the Closing Date for the Offered Certificates shall be postponed for
such period, not exceeding seven days, as the non-defaulting Underwriters and
the Company shall determine in order that the required changes in the
Registration Statement, the Prospectus or in any other documents or arrangements
may be effected. Nothing contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Company and to any
non-defaulting Underwriter for damages occasioned by its default hereunder.
12. Termination. Notwithstanding anything to the contrary contained in
Section 8:
(a) This Agreement shall be subject to termination by notice given to
the Company, if the sale of the Offered Certificates provided for herein is not
consummated because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement, and if you terminate this Agreement in accordance with this
Section 12(a), the Company will reimburse the Representatives for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been reasonably incurred by the Underwriters in connection with
the proposed purchase and sale of the Offered Certificates.
(b) This Agreement (with respect to a particular Certificate Offering)
and the related Terms Agreement shall be terminable by the Representatives on
behalf of the Underwriters by written notice delivered to the Company if at any
time on or before the related Closing Date (i) trading in securities generally
on the New York Stock Exchange shall have been suspended, (ii) a general
moratorium on commercial banking activities in New York shall have been declared
by either federal or New York State authorities, or (iii) there shall have
occurred any outbreak or material escalation of hostilities or other calamity or
crisis, the effect of which on the financial markets of the United States is
such as to make it, in the reasonable judgment of the Representatives,
impracticable or inadvisable to market such Offered Certificates on the terms
and in the manner contemplated in the Prospectus. Upon such notice being given,
the parties to this Agreement shall (except for the liability of the Company and
the Underwriters under Section 5(g) and Section 7 be released and discharged
from their respective obligations under this Agreement.
13. Representations and Indemnities to Survive Delivery. The
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement and the related Terms Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Underwriters
or the Company or any of the officers, directors or controlling persons referred
to in Section 7 hereof, and will survive delivery of and payment for the related
Offered Certificates. The provisions of Section 7 hereof shall survive the
termination or cancellation of this Agreement and the related Terms Agreement.
14. Successors. This Agreement and the related Terms Agreement will
inure to the benefit of and be binding upon the parties hereto and thereto and
their respective successors and the officers, directors and controlling persons
referred to in Section 7 hereof, and their successors and assigns, and no other
person will have any right or obligation hereunder or thereunder. No purchaser
of any Offered Certificate from any Underwriter shall be deemed a successor or
assign by reason of such purchase.
15. APPLICABLE LAW. (a) THIS AGREEMENT AND THE RELATED TERMS AGREEMENT
WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM
PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
AGREEMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM
THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF
MANHATTAN IN NEW YORK CITY. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO
SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH
PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON
LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY
CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HERBY WAIVES PERSONAL SERVICE OF
THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED
IN ACCORDANCE WITH SECTION 18 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED
UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER
DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS
SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW.
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
16. Miscellaneous. This Agreement, as supplemented by the related Terms
Agreement, together with any contemporaneous written agreements and any prior
written agreements (to the extent not superseded by this Agreement, as
supplement by the related Terms Agreement) that related to the offering of the
Certificates, represents the entire agreement between the Company and the
Underwriters with respect to the preparation of the Prospectus Supplement, and
the conduct of the offering, and the purchase and sale of the Certificates. This
Agreement and the related Terms Agreement or any term of each may not be
changed, waived, discharged or terminated except by an affirmative written
agreement made by the party against whom enforcement of the change, waiver,
discharge or termination is sought. The headings in this Agreement and the
related Terms Agreement are for purposes of reference only and shall not limit
or otherwise affect the meaning hereof or thereof.
17. Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement. Executed counterparts may be delivered electronically.
18. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters, will be delivered
to it at the Representatives' addresses first above written; or if sent to the
Company, will be delivered to GE-WMC Mortgage Securities, L.L.C., 0000 Xxxxxxxx
Xxx., Xxxxxxx, XX 00000, Attention: Legal Department; with a copy to GE Consumer
Finance, 0000 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention:
Xxxxxxx X. Xxxxxxxx, Senior Vice President and Counsel, Capital Markets.
19. Non-Petition Covenant. Notwithstanding any prior termination of
this Agreement, the Underwriters shall not acquiesce, petition or otherwise
invoke or cause the Company or the Seller to invoke the process of any court or
governmental authority for the purpose of commencing or sustaining a case
against the Company or the Seller under any federal or state bankruptcy,
insolvency or similar law, or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Company or the
Seller or any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Company or the Seller.
20. Financial Services Act. Each Underwriter represents and warrants
to, and agrees with, the Company that (a) it has complied and shall comply with
all applicable provisions of the Financial Services and Markets Xxx 0000 (the
"FSMA") and the Public Offers of Securities Regulations 1995 (the "Regulations")
with respect to anything done by it in relation to the Offered Certificates in,
from or otherwise involving the United Kingdom; (b) it has only communicated or
caused to be communicated and it will only communicate or cause to be
communicated any invitation or inducement to engage in investment activity
(within the meaning of section 21 of the FSMA) received by it in connection with
the issue or sale of any Offered Certificates in circumstances in which section
21(1) of the FSMA does not apply to the Company; and (c) it has not offered or
sold, and prior to the date which is six months after the date of issue of the
Offered Certificates will not offer or sell any Offered Certificates to persons
in the United Kingdom except to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances which
do not constitute an offer to the public in the United Kingdom for the purposes
of the Regulations.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and the Underwriters.
Very truly yours,
GE-WMC MORTGAGE SECURITIES, L.L.C.
By: ________________________________
Name:
Title:
GE MORTGAGE HOLDING, L.L.C.
By: ________________________________
Name:
Title:
With respect solely to Section
7(e), the foregoing Agreement is
hereby confirmed and accepted as of
the date first above written
GE-WMC MORTGAGE HOLDING, INC.
By: ________________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
[REPRESENTATIVE]
Acting on behalf of itself and as the
Representative of the several Underwriters
By: _____________________________________
Name:
Title:
[REPRESENTATIVE]
Acting on behalf of itself and as the
Representative of the several Underwriters
By: _____________________________________
Name:
Title:
EXHIBIT A
GE-WMC MORTGAGE SECURITIES, L.L.C.
PASS-THROUGH CERTIFICATES
SERIES ____-__
TERMS AGREEMENT
(to Underwriting Agreement,
dated [_____], 20[__]
between the Company and the Representatives)
GE-WMC Mortgage Securities, L.L.C. New York, New York
[ADDRESS] [Date]
[REPRESENTATIVE] and [REPRESENTATIVE], as Representatives, and each of
the underwriters named below (collectively, the "Underwriters") agree, subject
to the terms and provisions herein and of the captioned Underwriting Agreement
(the "Underwriting Agreement"), to purchase such Classes of Series ____-__
Certificates specified in Section 2(a) hereof (the "Offered Certificates"). This
letter supplements and modifies the Underwriting Agreement solely as it relates
to the purchase and sale of the Offered Certificates described below and the
terms and conditions thereof are incorporated herein by reference. The Series
____-__ Certificates are registered with the Securities and Exchange Commission
by means of an effective Registration Statement (No. 333-_____). [A Preliminary
Prospectus, dated _________, 20__, has been prepared by the Company.] [A Time of
Sale Free Writing Prospectus, dated ___________, 20__, has been prepared by or
approved by the Company.] Capitalized terms used and not defined herein have the
meanings given them in the Underwriting Agreement.
Section 1. The Mortgage Pool: The Series ____-__ Certificates shall
evidence the entire beneficial ownership interest in a mortgage pool (the
"Mortgage Pool") of conventional, fixed rate, fully amortizing one- to
four-family residential mortgage loans (the "Mortgage Loans") having the
following characteristics as of ________ __, ____ (the "Cut-off Date"):
(a) Aggregate Principal Amount of the Mortgage Pool: $[ ]
aggregate principal balance as of the Cut-off Date, subject to [an
upward or downward variance of up to [ ]%, the precise aggregate
principal balance to be determined by the Company][a permitted variance
such that the aggregate Scheduled Principal Balance thereof will be not
less than $[ ] or greater than $[ ]].
(b) Original Terms to Maturity: The original term to maturity
of each Mortgage Loan included in the Mortgage Pool shall be between
___ and ___ years.
(c) Servicer:
(d) Trustee:
Section 2. The Certificates: The Offered Certificates shall be issued
as follows:
(a) Classes: The Offered Certificates shall be issued with the
following Class designations, interest rates and principal balances,
subject in the aggregate to the variance referred to in Section
1(a)[and, as to any particular Class, to an upward or downward variance
of up to [ ]%]:
Class Purchase
Class Principal Balance Interest Rate Price Percentage
---- ----------------- ------------- --------------------
Class __ $_________ ___% ___%
(b) The Offered Certificates shall have such other
characteristics as described in the Prospectus.
Section 3. Purchase Price: The Purchase Price for each Class of the
Offered Certificates shall be the Class Purchase Price Percentage therefor (as
set forth in Section 2(a) above) of the initial Class Certificates Principal
Balance thereof plus accrued interest at the rate of [ ]% per annum from and
including the applicable Cut-off Date up to, but not including, _________ __,
____ (the "Closing Date").
Section 4. Required Ratings:The Offered Certificates shall have
received Required Ratings of at least [ ] from [ ].
Section 5. Tax Treatment: [One or more elections will be made to treat
the assets of the Trust Fund as a REMIC.] [The Trust Fund will be treated as a
"grantor trust" for federal income tax purposes.]
Section 6. Underwriters: [lead, co-lead, co-managers]
Section 7. Underwriters' Information: (i) the first sentence of the
last paragraph appearing on the cover page of the Prospectus Supplement as such
statements relate to such Offered Certificates, (ii) the second sentence in the
paragraph under the heading "Risk Factors - You may not be able to resell your
certificates" and (iii) the second sentence of the first paragraph under the
heading "Plan of Distribution" in the Prospectus Supplement as such statements
relate to such Offered Certificates.
Section 8. Underwriting Discounts and Commissions:
[Section 9. Additional Expenses:]*
-----------
* to be inserted if applicable.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Underwriters and the Company.
Very truly yours,
[REPRESENTATIVE]
Acting on behalf of itself and as the
Representative of the several Underwriters
By: _________________________________
Name:
Title:
[REPRESENTATIVE]
Acting on behalf of itself and as the
Representative of the several Underwriters
By: _________________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
[EACH CO-UNDERWRITER]
By: ____________________________________
Name:
Title:
GE-WMC MORTGAGE SECURITIES, L.L.C.
By: ____________________________________
Name:
Title:
GE MORTGAGE HOLDING, L.L.C.
By: ________________________________
Name:
Title
With respect solely to Section 7(e), the foregoing Agreement is hereby confirmed
and accepted as of the date first above written
GE-WMC MORTGAGE HOLDING, INC.
By: ________________________________
Name:
Title
