Exhibit 1
GS MORTGAGE SECURITIES CORP.
GSAMP TRUST 2006-S6
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-S6
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Underwriting Agreement
Dated as of October 18, 2006
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
GS Mortgage Securities Corp. (the "Company") proposes to cause GSAMP Trust
2006-S6 (the "Trust") to issue its Mortgage Pass-Through Certificates, Series
2006-S6 (the "Certificates"), pursuant to a Pooling and Servicing Agreement,
dated as of October 1, 2006 (the "Pooling and Servicing Agreement"), by and
among the Company, as depositor, Ocwen Loan Servicing, LLC, as servicer
("Ocwen") and Deutsche Bank National Trust Company as trustee (the "Trustee"),
and proposes to sell to you (the "Underwriter") the Certificates specified on
Schedule I hereto. The Class A-1A, Class A-1B, Class A-1C, Class A-2, Class A-3,
Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6 and Class M-7
Certificates identified on Schedule I hereto are the "Publicly Offered
Certificates." The Publicly Offered Certificates, together with the Trust's
Mortgage Pass-Through Certificates, Class X, Class X-1, Class P and Class R
Certificates, will represent in the aggregate the entire beneficial ownership
interest in the assets of the Trust primarily consisting of a segregated pool of
mortgage loans and certain other related assets.
Xxxxxxx Xxxxx Mortgage Company ("GSMC") purchased certain mortgage loans
(the "Mortgage Loans") from (1) American Home Mortgage Corp. ("American Home"),
pursuant to a Flow Mortgage Loan Purchase Agreement, dated as of June 1, 2006,
by and between GSMC, as purchaser, and American Home as seller, (2) Fremont
Investment & Loan ("Fremont"), pursuant to a Flow Mortgage Loan Purchase and
Warranties Agreement, dated as of January 1, 2006, as amended by Amendment No. 1
dated, as of August 1, 2006 each by and between GSMC, as purchaser, and Fremont
as seller, (3) certain conduit loan sellers, pursuant to certain Master Loan
Purchase Agreements, each between GSMC and the related conduit loan seller.
The Company will acquire the Mortgage Loans from GSMC pursuant to (1) an
Assignment, Assumption and Recognition Agreement, dated as of October 20, 2006,
among American Home, the Company and GSMC (the "American Home Assignment
Agreement"), (2) an Assignment, Assumption and Recognition Agreement, dated as
of October 20, 2006 among Fremont, the Company and GSMC (the "Fremont Assignment
Agreement" together with the American Home Assignment Agreement, the "Assignment
Agreements"), and (3) a Bill of Sale, dated as of October 20, 2006 between the
Company and GSMC (the "Bill of Sale").
At or prior to the time when sales to investors of the Publicly Offered
Certificates were first made (the "Time of Sale"), the Company had prepared the
following information (collectively, the "Time of Sale Information"): the GSAMP
2006-S6 Free Writing Prospectus dated October 12, 2006, including the Company's
Term Sheet attached thereto (the "Transaction FWP"), the Company's Prospectus
dated October 6, 2006, and any other "free-writing prospectus" (as defined
pursuant to Rule 405 under the Act (as defined herein)) (a "Free Writing
Prospectus") listed on Schedule IV hereto. If, subsequent to the date of this
Agreement, the Company and the Underwriter determine that such information
included an untrue statement of material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and terminate their old
purchase contracts and entered into new purchase contracts with purchasers of
the Publicly Offered Certificates, then "Time of Sale Information" will refer to
the information available to purchasers at the time of entry into the first such
new purchase contract, including any information that corrects such material
misstatements or omissions ("Corrective Information") and "Time of Sale" will
refer to the time and date on which such new purchase contracts were entered
into.
Certain Mortgage Loan documents, including the mortgage notes and
mortgages, will be held by the Trustee pursuant to the Pooling and Servicing
Agreement. The Publicly Offered Certificates are described more fully in
Schedule I hereto and in the Time of Sale Information and the Prospectus (as
defined herein). Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
1. The Company represents and warrants to, and agrees with, the
Underwriter that:
(a) A registration statement on Form S-3 (Commission File No. 333-132809),
including a form of prospectus and such amendments thereto as may have been
required to the date hereof, relating to the Publicly Offered Certificates and
the offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Act"), has been filed with the
Securities and Exchange Commission (the "Commission") and such registration
statement, as amended, has become effective. Such registration statement, as
amended or supplemented as of the date of the Prospectus (as defined herein),
including the exhibits thereto and information that is contained in the
Prospectus (as defined below) and is deemed to be part of and included in such
registration statement as such registration statement may have been amended or
supplemented as of the date of the Prospectus, is hereinafter referred to as the
"Registration Statement"; the prospectus first required to be filed to satisfy
the condition set forth in Rule 172(c) and pursuant to Rule 424(b) under the
Act, is hereinafter referred to as the "Base Prospectus"; such form of
supplement to the Base Prospectus relating to the Publicly Offered Certificates,
in the form first required to be filed to satisfy the condition set forth in
Rule 172(c) and pursuant to Rule 424(b) under the Act (including the Base
Prospectus as so supplemented) is hereinafter referred to as the "Prospectus
Supplement"; and the Base Prospectus and the Prospectus Supplement, together,
are hereinafter referred to as the "Prospectus". For purposes of this Agreement,
"Effective Time" means the date and time as of which such Registration
Statement, or the most recent post-effective amendment thereto, is declared
effective by the Commission or is deemed effective pursuant to Rule 430B under
the Act, and "Effective Date" means the date of the Effective Time or deemed
effective date pursuant to Rule 430B under the Act;
(b) On the Effective Date, the Registration Statement did conform in all
material respects to the requirements of the Act, the Securities Exchange Act of
1934, as amended (the "Exchange Act"), where applicable, and the rules and
regulations of the Commission under the Act or the Exchange Act, as applicable,
and did not, as of the Effective Date, contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statement or omission
made in reliance upon and in conformity with information furnished in writing to
the Company by the Underwriter for use in the Registration Statement;
(c) On the date of this Agreement, the Registration Statement conforms,
and at the time of the last filing of the Prospectus pursuant to Rule 424(b),
the Registration Statement and the Prospectus will conform, in all material
respects to the requirements of the Act and the rules and regulations of the
Commission thereunder (the "Rules and Regulations"), and, except as aforesaid,
neither of such documents includes, or will include, any untrue statement of a
material fact or omits, or will omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any
statement or omission made in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriter for use in the
Registration Statement, the Prospectus or the Time of Sale Information (such
information being collectively referred to as "Underwriter Statements");
(d) The documents incorporated by reference in the Prospectus, when they
were filed with the Commission conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations thereunder; and
any further documents so filed and incorporated by reference in the Prospectus,
when such documents are filed with the Commission, will conform in all material
respects to the requirements of the Exchange Act and the rules and regulations
thereunder; provided, however, that this representation and warranty shall not
apply to any statement or omission made in reliance upon and in conformity with
the Underwriter Statements;
(e) The Time of Sale Information, at the Time of Sale, did not, and at the
Closing Date will not, contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that the Company makes no representation or warranty with respect to
any statements or omissions made in reliance upon and in conformity with the
Underwriter Statements;
(f) Other than the Prospectus, the Company (including its agents and
representatives other than the Underwriter in its capacity as such) has not
made, used, prepared, authorized, approved or referred to and will not make,
use, prepare, authorize, approve or refer to any "written communication" (as
defined in Rule 405 under the Act) that constitutes an offer to sell or
solicitation of an offer to buy the Publicly Offered Certificates other than (i)
any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of
the Act or Rule 134 under the Act, (ii) the Time of Sale Information, and (iii)
each other written communication of the Company or its agents and
representatives approved in writing in advance by the Underwriter or in any
other manner mutually agreed by the Underwriter and the Company (each such
communication referred to in clause (ii) and this clause (iii) constituting an
"issuer free writing prospectus," as defined in Rule 433(h) under the Act, being
referred to as an "Issuer Free Writing Prospectus"). Each such Issuer Free
Writing Prospectus complied or, if used after the date hereof, will comply, in
all material respects with the Act and the rules and regulations promulgated
thereunder, has been filed or will be filed in accordance with Section 5(a) (to
the extent required thereby) and did not at the Time of Sale, and at the Closing
Date will not, contain any untrue statements of a material fact or (when read in
conjunction with the other Time of Sale Information) omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with the Underwriter
Statements;
(g) Since the respective dates as of which information is given in the
Time of Sale Information, Registration Statement or the Prospectus, there has
not been any change in the capital stock or long-term debt of the Company or any
of its subsidiaries or any material adverse change, or any development involving
a prospective material adverse change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or contemplated in
the Time of Sale Information, Registration Statement or the Prospectus;
(h) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware and has all
requisite power and authority (corporate and other) to own its properties and to
conduct its business as described in the Time of Sale Information and the
Prospectus;
(i) At the Time of Delivery (as defined herein), the Pooling and Servicing
Agreement, the Bill of Sale and the Assignment Agreements will have been duly
authorized, executed and delivered and will constitute a valid and legally
binding obligation of the Company, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors' rights and to
general principles of equity;
(j) When the Certificates are issued, executed, authenticated and
delivered pursuant to this Agreement and the Pooling and Servicing Agreement,
the Certificates will have been duly authorized, executed, authenticated, issued
and delivered and will be entitled to the benefits of the Pooling and Servicing
Agreement; and the Certificates and the Pooling and Servicing Agreement will
conform to the descriptions thereof in the Time of Sale Information and the
Prospectus;
(k) The issue and sale of the Certificates, the compliance by the Company
with all of the provisions of this Agreement, the Pooling and Servicing
Agreement, the Bill of Sale and the Assignment Agreements, and the consummation
of the transactions herein and therein contemplated, will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the Company is subject,
nor will such action result in any violation of the provisions of the
Certificate of Incorporation or the By-Laws of the Company or any statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company, or any of its properties; and no consent,
approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue and sale of
the Publicly Offered Certificates or the consummation by the Company of the
other transactions contemplated by this Agreement, the Pooling and Servicing
Agreement, the Bill of Sale or the Assignment Agreements except such as have
been obtained under the Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Publicly
Offered Certificates by the Underwriter;
(l) The statements set forth in the Transaction FWP and the Prospectus
under the caption "Description of the Certificates," insofar as they purport to
constitute a summary of the terms of the Certificates and insofar as they
purport to describe the provisions of the documents referred to therein, are
accurate, complete and fair;
(m) Other than as set forth or contemplated in the Time of Sale
Information or the Prospectus, there are no legal or governmental proceedings
pending to which the Company is a party or of which any property of the Company
is the subject that, if determined adversely to the Company, would individually
or in the aggregate have a material adverse effect on the condition (financial
or otherwise), earnings, affairs, business, properties or prospects of the
Company, and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
(n) The Company will, at the Time of Delivery, own the Mortgage Loans,
free and clear of any lien, mortgage, pledge, charge, security interest or other
encumbrance, and, at the Time of Delivery, the Company will have full power and
authority to sell and deliver the Mortgage Loans to the Trustee under the
Pooling and Servicing Agreement and at the Time of Delivery will have duly
authorized such assignment and delivery to the Trustee by all necessary action;
(o) Any taxes, fees and other governmental charges in connection with the
execution, delivery and performance of this Agreement, the Pooling and Servicing
Agreement, the Bill of Sale, the Assignment Agreements and the Publicly Offered
Certificates will have been paid at or prior to the Time of Delivery;
(p) At the Time of Delivery, the Mortgage Loans will have been duly and
validly assigned and delivered by the Company to the Trustee;
(q) The Company is not, and on the date on which the first bona fide offer
of the Publicly Offered Certificates is made (within the meaning of Rule
164(h)(2) under the Act) will not be, an "ineligible issuer," as defined in Rule
405 under the Act.
(r) The Trust created by the Pooling and Servicing Agreement will not at
the Time of Delivery be required to be registered under the Investment Company
Act of 1940, as amended (the "Investment Company Act"); and
(s) The Company is not and at the Time of Delivery will not be an
"investment company," as such term is defined in the Investment Company Act.
2. The Underwriter represents and warrants to, and agrees with, the
Company, that:
(a) In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant Member
State"), the Underwriter has not made and will not make an offer of
Certificates to the public in that Relevant Member State prior to the
publication of a prospectus in relation to the Publicly Offered
Certificates which has been approved by the competent authority in that
Relevant Member State or, where appropriate, approved in another Relevant
Member State and notified to the competent authority in that Relevant
Member State, all in accordance with the Prospectus Directive, except that
it may, with effect from and including the relevant implementation date,
make an offer of Publicly Offered Certificates to the public in that
Relevant Member State at any time:
(A) to legal entities which are authorized or regulated
to operate in the financial markets or, if not so authorized
or regulated, whose corporate purpose is solely to invest in
securities;
(B) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial
year; (2) a total balance sheet of more than (euro)43,000,000
and (3) an annual net turnover of more than (euro)50,000,000,
as shown in its last annual or consolidated accounts; or
(C) in any other circumstances which do not require the
publication by the issuer of a prospectus pursuant to Article
3 of the Prospectus Directive.
For the purposes of this provision, the expression an "offer of
Publicly Offered Certificates to the public" in relation to any Publicly Offered
Certificates in any Relevant Member State means the communication in any form
and by any means of sufficient information on the terms of the offer and the
Publicly Offered Certificates to be offered so as to enable an investor to
decide to purchase or subscribe the Publicly Offered Certificates, as the same
may be varied in that Member State by any measure implementing the Prospectus
Directive in that Member State and the expression "Prospectus Directive" means
the European Commission Directive 2003/71/EC and includes any relevant
implementing measure in each Relevant Member State.
(b) The Underwriter has only communicated or caused to be
communicated and will only communicate or cause to be communicated an
invitation or inducement to engage in investment activity (within the
meaning of Section 21 of the United Kingdom Financial Services and Markets
Act 2000 (the "FSMA")) received by it in connection with the issue or sale
of the Publicly Offered Certificates in circumstances in which Section
21(1) of the FSMA does not apply to the issuer.
(c) The Underwriter has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation to
the Publicly Offered Certificates in, from or otherwise involving the
United Kingdom.
3. Subject to the terms and conditions herein set forth, the Company
agrees to sell to the Underwriter, and the Underwriter agrees to purchase from
the Company, at a purchase price determined in accordance with Schedule II
hereto, the principal amount of the Publicly Offered Certificates in accordance
with Schedule III hereto. Upon the authorization by you of the release of the
Publicly Offered Certificates, the Underwriter proposes to offer the Publicly
Offered Certificates for sale to the public (which may include selected dealers)
upon the terms and conditions set forth in the Time of Sale Information and the
Prospectus.
4. (a) The Class A-1A, Class A-1B, Class A-1C, Class A-2, Class A-3, Class
M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6 and Class M-7
Certificates to be purchased by the Underwriter will be represented by one or
more definitive global Certificates in book-entry form, which will be deposited
by or on behalf of the Company with The Depository Trust Company ("DTC") or its
designated custodian. The Company will deliver such Certificates to the
Underwriter, against payment by or on behalf of the Underwriter of the purchase
price therefor by wire transfer to the Company of Federal (same day) funds, by
causing DTC to credit such Certificates to the account of the Underwriter at
DTC. The Company will cause the certificates representing such Certificates to
be made available to the Underwriter for checking at least twenty-four hours
prior to the Time of Delivery at an office designated by the Underwriter (the
"Designated Office"). The time and date of such delivery and payment shall be
10:00 a.m., New York City time, on October 20, 2006, or such other time and date
as the Underwriter and the Company may agree upon in writing. Such time and date
are herein called the "Time of Delivery" and such date is herein called the
"Closing Date."
(b) The documents to be delivered at the Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross-receipt
for the Publicly Offered Certificates and any additional documents requested by
the Underwriter pursuant to Section 7(n) hereof, will be delivered at the
offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP ("Cadwalader") at One World
Financial Center, New York, NY 10281 (the "Closing Location"), and the Publicly
Offered Certificates will be delivered at the Designated Office, all at the Time
of Delivery. A meeting will be held at the Closing Location at 3:00 p.m., New
York City time, on the New York Business Day next preceding the Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in New York City are generally authorized or obligated by
law or executive order to close.
5. The Company agrees with the Underwriter:
(a) If required, to file the Prospectus with the Commission pursuant to
and in accordance with Rule 424(b) not later than the time specified therein,
and, if required, subject to Section 11, to file any Issuer Free Writing
Prospectus to the extent required by Rule 433 under the Act. The Company will
advise the Underwriter promptly of any such filing pursuant to Rule 424(b) or
Rule 433;
(b) To make no amendment or any supplement to the Registration Statement
or the Prospectus as amended or supplemented, or to prepare, use, authorize,
approve, refer to or file any Issuer Free Writing Prospectus, in each case prior
to the Closing Date, without furnishing the Underwriter with a copy of the
proposed form thereof and providing the Underwriter with a reasonable
opportunity to review the same; and during such same period to advise the
Underwriter, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus as amended or supplemented or any amended
Prospectus has been filed or mailed for filing or any such Issuer Free Writing
Prospectus has been prepared, used, authorized, approved, referred to or filed,
of the issuance of any stop order by the Commission, of the suspension of the
qualification of any of the Publicly Offered Certificates for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement, the Prospectus or an Issuer Free
Writing Prospectus as amended or supplemented or for additional information;
and, in the event of the issuance of any such stop order or of any order
preventing or suspending the use of any prospectus relating to the Publicly
Offered Certificates or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(c) Promptly from time to time to take such action as the Underwriter may
reasonably request in order to qualify the Publicly Offered Certificates for
offering and sale under the securities laws of such states as the Underwriter
may request and to continue such qualifications in effect so long as necessary
under such laws for the distribution of such Certificates; provided, that in
connection therewith neither the Trust nor the Company shall be required to
qualify to do business, or to file a general consent to service of process in
any jurisdiction, and provided, further, that the expense of maintaining any
such qualification more than one year from the Closing Date with respect to such
Certificates shall be at the Underwriter's expense;
(d) To furnish the Underwriter with copies of the Registration Statement
(including exhibits) and copies of the Prospectus and each Issuer Free Writing
Prospectus as amended or supplemented in such quantities as the Underwriter may
from time to time reasonably request; and if, before a period of six months
shall have elapsed after the Closing Date and the delivery of a prospectus shall
be at the time required by law (or required to be delivered but for Rule 172
under the Act) in connection with sales of any Publicly Offered Certificates,
either (i) any event shall have occurred as a result of which the Prospectus or
an Issuer Free Writing Prospectus, as the case may be, would include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or (ii) for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus, as
amended or supplemented, or an Issuer Free Writing Prospectus, as the case may
be, to notify the Underwriter and upon its request to prepare and furnish
without charge to the Underwriter and to any dealer in securities as many copies
as the Underwriter may from time to time reasonably request an amendment or a
supplement to the Prospectus or an Issuer Free Writing Prospectus, as the case
may be, which will correct such statement or omission or effect such compliance;
and in case the Underwriter is required by law to deliver a prospectus in
connection with sales of any of such Publicly Offered Certificates at any time
six months or more after the Closing Date, upon the Underwriter's request, but
at its own expense, to prepare and deliver to the Underwriter as many copies as
the Underwriter may request of an amended or supplemented prospectus complying
with the Act;
(e) To make generally available upon request to Holders of the Publicly
Offered Certificates as soon as practicable, but in any event no later than
eighteen months after the Closing Date, an earnings statement of the Company
complying with Rule 158 under the Act and covering a period of at least twelve
consecutive months beginning after the Closing Date;
(f) So long as any of the Publicly Offered Certificates are outstanding,
to furnish the Underwriter copies of all reports or other communications
(financial or other) furnished to Holders of Certificates, and to deliver to the
Underwriter during such same period, (i) as soon as they are available, copies
of any reports and financial statements furnished to or filed with the
Commission; (ii) copies of each amendment to any of the Pooling and Servicing
Agreement and the Assignment Agreement; and (iii) such additional information
concerning the business and financial condition of the Company or the Trust as
the Underwriter may from time to time reasonably request; and
(g) Not to be or become an open-end investment company, unit investment
trust, closed-end investment company or face-amount certificate company that is
or is required to be registered under Section 8 of the Investment Company Act.
6. The Company covenants and agrees with the Underwriter that the Company
will pay or cause to be paid the following: (i) the Commission's filing fees
with respect to the Publicly Offered Certificates; (ii) the fees, disbursements
and expenses of counsel and accountants for the Company in connection with the
issue of the Certificates and all other expenses in connection with the
preparation and printing of all amendments and supplements thereto and the
mailing and delivery of copies thereof to the Underwriter and dealers; (iii) the
cost of printing or producing this Agreement, the Pooling and Servicing
Agreement, any Blue Sky Supplement and any term sheets, computational materials,
preliminary and final prospectus supplements and any other document produced in
connection with the offering, purchase, sale and delivery of the Publicly
Offered Certificates; (iv) all expenses in connection with the qualification of
the Publicly Offered Certificates for offering and sale under state securities
laws as provided in Section 5(c) hereof, including the fees and disbursements of
counsel for the Underwriter in connection with such qualification and in
connection with the Blue Sky Supplement; (v) any fees charged by securities
rating services for rating the Certificates; (vi) the cost of preparing the
Certificates; (vii) the fees and expenses of the Trustee and of any agent of the
Trustee and the fees and disbursements of counsel for the Trustee in connection
with the Pooling and Servicing Agreement and the Certificates; (viii) any cost
incurred in connection with the designation of the Certificates for trading in
PORTAL; and (ix) all other costs and expenses incident to the performance of the
Company's obligations hereunder that are not otherwise specifically provided for
in this Section. It is understood, however, that, except as provided in this
Section 6, Section 8 and Section 10 hereof, the Underwriter will pay all of its
own costs and expenses, including the fees of its counsel, transfer taxes on
resale of any of the Publicly Offered Certificates by it and any advertising
expenses connected with any offers it may make.
7. The obligations of the Underwriter hereunder shall be subject, in its
discretion, to the condition that all representations and warranties and other
statements of the Company herein are, at and as of the Time of Delivery, true
and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Pooling and Servicing Agreement, the Bill of Sale, the Assignment
Agreements and all of the other agreements identified in such agreements shall
have been duly entered into by all of the respective parties;
(b) Cadwalader, counsel to the Company and the Underwriter, shall have
furnished to the Underwriter its written opinions, dated the Time of Delivery,
in form and substance satisfactory to the Underwriter;
(c) In-house counsel for the Company shall have furnished to the
Underwriter a written opinion, dated the Time of Delivery, in form and substance
satisfactory to the Underwriter;
(d) Counsel for Ocwen satisfactory to the Underwriter shall have furnished
to the Underwriter its written opinion, dated the Time of Delivery, in form and
substance satisfactory to the Underwriter and counsel for the Underwriter;
(e) Counsel for the Trustee satisfactory to the Underwriter shall have
furnished to the Underwriter its written opinion, dated as of the Time of
Delivery, in form and substance satisfactory to the Underwriter and counsel for
the Underwriter;
(f) The independent accountants of the Company or other accountants
acceptable to the Underwriter shall have furnished to the Underwriter a letter
or letters, dated on the date hereof, and a letter or letters, dated the Time of
Delivery, respectively, containing statements and information of the type
customarily included in accountants' "comfort letters" and "agreed upon
procedures letters" with respect to certain financial information contained in
the Prospectus, in each case as to such matters as the Underwriter may
reasonably request and in form and substance satisfactory to the Underwriter;
(g) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Time of Sale Information or the Prospectus as
amended prior to the Time of Delivery any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Time of Sale
Information or the Prospectus as amended prior to the Time of Delivery, and (ii)
since the respective dates as of which information is given in the Time of Sale
Information or the Prospectus as amended prior to the Time of Delivery there
shall not have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Time of Sale
Information or the Prospectus as amended prior to the Time of Delivery, the
effect of which, in any such case described in clause (i) or (ii), is in the
judgment of the Underwriter so material and adverse as to make it impracticable
or inadvisable to proceed with the offering or the delivery of the Publicly
Offered Certificates on the terms and in the manner contemplated in the Time of
Sale Information or the Prospectus as first amended or supplemented;
(h) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization," as that term is defined
by the Securities and Exchange Commission for purposes of Rule 436(g)(2) under
the Act, and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities or preferred stock;
(i) On or after the date hereof, there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a general moratorium on
commercial banking activities in New York declared by either Federal or New York
State authorities or any material disruption in commercial banking or securities
settlement or clearance services in the United States; or (iii) the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war; or (iv) the occurrence of any
other calamity or crisis or any change in the financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iii) or (iv) in the judgment of the Underwriter makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Publicly Offered Certificates on the terms and in the manner contemplated
in the Time of Sale Information or the Prospectus;
(j) The Company shall have furnished or caused to be furnished to the
Underwriter at the Time of Delivery certificates of its officers satisfactory to
the Underwriter as to the accuracy in all material respects of its
representations and warranties herein at and as of such Time of Delivery, as to
the performance of all of its obligations hereunder to be performed at or prior
to such Time of Delivery, as to the matters set forth in Section 7(a) above and
as to such other matters as the Underwriter may reasonably request;
(k) The Underwriter shall have received evidence satisfactory to it that
the Publicly Offered Certificates are rated not lower than the ratings set forth
in the Prospectus Supplement under the heading "Ratings";
(l) All opinions, certificates and other documents incident to, and all
proceedings in connection with the transactions contemplated by, this Agreement,
the Assignment Agreements, the Bill of Sale and the Pooling and Servicing
Agreement shall be satisfactory in form and substance to the Underwriter and its
special counsel;
(m) The Registration Statement shall be effective under the Act and no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been instituted or threatened by
the Commission and the Prospectus Supplement and each Free Writing Prospectus
required to be filed by the Company pursuant to Section 5(a) shall have been
filed or transmitted for filing by means reasonably calculated to result in a
filing with the Commission pursuant to Rule 424(b) under the Act or Rule 433
under the Act, as applicable; and
(n) The Underwriter and its special counsel shall have received copies of
all documents and other information as they may reasonably request, in form and
substance satisfactory, to the Underwriter and its special counsel, with respect
to such transactions and the taking of all proceedings in connection therewith.
8. (a) The Company will indemnify and hold harmless the Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
the Underwriter may become subject, under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (1) an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or Prospectus or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or (2) any untrue
statement or alleged untrue statement of a material fact contained in any Issuer
Free Writing Prospectus or any Issuer Information contained in any Underwriter
Free Writing Prospectus (as defined herein), or the omission or alleged omission
to state a material fact necessary to make the statements therein (when read in
conjunction with the other Time of Sale Information), in light of the
circumstances under which they were made, not misleading, which was not
corrected by Corrective Information subsequently supplied by the Company to the
Underwriter within a reasonable period of time prior to the Time of Sale, or (3)
any breach of the representation and warranty in Section 1(q), and, in the case
of clauses (1), (2) and (3), will reimburse the Underwriter for any legal or
other expenses reasonably incurred by the Underwriter in connection with
investigating or defending any such action or claim; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information with respect to which the Underwriter has
agreed to indemnify the Company pursuant to Section 8(b).
(b) The Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statements or alleged untrue statements of a
material fact, or omissions or alleged omissions to state a material fact
necessary to make the statements therein (when read in conjunction with the Time
of Sale Information), in the light of the circumstances under which they were
made, not misleading, in the Underwriter Statements and (ii) any untrue
statements or alleged untrue statements of a material fact in any Underwriter
Free Writing Prospectus or any omission or alleged omission to state in such
Underwriter Free Writing Prospectus a material fact necessary in order to make
the statements therein (when read in conjunction with the Time of Sale
Information), in the light of the circumstances under which they were made, not
misleading; provided, that the Underwriter shall not be obligated to so
indemnify and hold harmless (A) to the extent such loss, liability, claim,
damage or expense is caused by a misstatement or omission resulting from an
error or omission in the Issuer Information which was not corrected by
Corrective Information subsequently supplied by the Company to the Underwriter
within a reasonable period of time prior to the Time of Sale or (B) with respect
to information that is also contained in the Time of Sale Information.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriter on the other from the
offering of the Publicly Offered Certificates to which such loss, claim, damage
or liability (or actions in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriter on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriter on the other shall be deemed to be
in the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriter. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Underwriter on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), the Underwriter shall not be required to contribute any amount
in excess of the amount by which the total price at which the Publicly Offered
Certificates underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which the Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Underwriter within the meaning of the Act; and the obligations of the
Underwriter with respect to any Publicly Offered Certificates under this Section
8 shall be in addition to any liability which the Underwriter may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Company and to each person, if any, who controls the Company
within the meaning of the Act.
9. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the Underwriter as set forth in this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made in connection
with the issuance of Certificates by or on behalf of the Underwriter or any
controlling person of the Underwriter, or the Company, or any officer or
director or controlling person of the Company and shall survive delivery of and
payment for the Publicly Offered Certificates.
10. If for any reason the Certificates are not delivered by or on behalf
of the Trustee as provided herein, other than by the Underwriter's failure to
comply with its obligations hereunder, the Company will reimburse the
Underwriter for all out-of-pocket expenses, including fees and disbursements of
counsel, reasonably incurred by the Underwriter in making preparations for the
purchase, sale and delivery of the Publicly Offered Certificates, but the
Company shall be under no further liability to the Underwriter with respect to
such Certificates except as provided in Section 6 and Section 8 hereof.
11. (a) In connection with the offering of the Publicly Offered
Certificates, the Underwriter may prepare and provide to prospective investors
Free Writing Prospectuses (as defined below), or portions thereof, which the
Company is required to file with the Commission in electronic format and will
use reasonable efforts to provide to the Company such Free Writing Prospectuses,
or portions thereof, in either Microsoft Word(R) or Microsoft Excel(R) format
and not in a PDF, except to the extent that the Company, in its sole discretion,
waives such requirements, subject to the following conditions (to which such
conditions the Underwriter agrees):
(i) Unless preceded or accompanied by the Prospectus, the
Underwriter shall not convey or deliver any written communication to any
person in connection with the initial offering of the Publicly Offered
Certificates, unless such written communication (1) is made in reliance on
Rule 134 under the Act, (2) constitutes a prospectus satisfying the
requirements of Rule 430B under the Act or (3) constitutes Time of Sale
Information or a Free Writing Prospectus that does not constitute Time of
Sale Information. Without the Company's prior written consent, the
Underwriter shall not convey or deliver in connection with the initial
offering of the Publicly Offered Certificates any "ABS informational and
computational material," as defined in Item 1101(a) of Regulation AB under
the Act ("ABS Informational and Computational Material"), in reliance upon
Rules 167 and 426 under the Act.
(ii) The Underwriter shall deliver to the Company, no later than
two business days prior to the date of first use thereof or such later
date as may be agreed to by the Company, (a) any Free Writing Prospectus
that was prepared by or on behalf of the Underwriter (an "Underwriter Free
Writing Prospectus") and contains any "issuer information," as defined in
Rule 433(h) under the Act and footnote 271 of the Commission's Securities
Offering Reform Release No. 33-8591 ("Issuer Information"), and (b) any
Free Writing Prospectus or portion thereof that contains only a
description of the final terms of the Publicly Offered Certificates.
Notwithstanding the foregoing, any Free Writing Prospectus that contains
only ABS Informational and Computational Materials may be delivered by the
Underwriter to the Company not later than the later of (A) two business
days prior to the due date for filing of the Prospectus pursuant to Rule
424(b) under the Act or (B) the date of first use of such Free Writing
Prospectus.
(iii) The Underwriter represents and warrants to the Company that
the Free Writing Prospectuses to be furnished to the Company by the
Underwriter pursuant to Section 11(a)(ii) will constitute all Free Writing
Prospectuses of the type described therein that were furnished to
prospective purchasers of Publicly Offered Certificates by the Underwriter
in connection with its offer and sale of the Publicly Offered
Certificates.
(iv) The Underwriter represents and warrants to the Company that
each Free Writing Prospectus required to be provided by it to the Company
pursuant to Section 11(a)(ii), when read in conjunction with the Time of
Sale Information, did not, as of the Time of Sale, and will not as of the
Closing Date, include any untrue statement of a material fact or omit any
material fact necessary to make the statements contained therein (when
read in conjunction with the Time of Sale Information), in light of the
circumstances under which they were made, not misleading; provided
however, that the Underwriter makes no representation to the extent such
misstatements or omissions were the result of any inaccurate Issuer
Information, which information was not corrected by Corrective Information
subsequently supplied by the Company to the Underwriter within a
reasonable period of time prior to the Time of Sale.
(v) The Company agrees to file with the Commission the following:
(A) any Issuer Free Writing Prospectus; (B) any Free Writing Prospectus or
portion thereof delivered by the Underwriter to the Company pursuant to
Section 11(a)(ii); and (C) any Free Writing Prospectus for which the
Company or any person acting on its behalf provided, authorized or
approved information that is prepared and published or disseminated by a
person unaffiliated with the Company or any other offering participant
that is in the business of publishing, radio or television broadcasting or
otherwise disseminating communications. Notwithstanding the foregoing, the
Company shall not be required to file (1) Issuer Information contained in
any Underwriter Free Writing Prospectus or Free Writing Prospectus of any
other offering participant other than the Company, if such information is
included or incorporated by reference in a prospectus or Free Writing
Prospectus previously filed with the Commission that relates to the
offering of the Publicly Offered Certificates, or (2) any Free Writing
Prospectus or portion thereof that contains a description of the Publicly
Offered Certificates or the offering of the Publicly Offered Certificates
which does not reflect the final terms thereof.
(vi) Any Free Writing Prospectus required to be filed pursuant to
Section 11(a)(v) by the Company shall be filed with the Commission not
later than the date of first use of the Free Writing Prospectus, except
that: (A) any Free Writing Prospectus or portion thereof required to be
filed that contains only the description of the final terms of the
Publicly Offered Certificates shall be filed by the Company with the
Commission within two days of the later of the date such final terms have
been established for all classes of Publicly Offered Certificates and the
date of first use; (B) any Free Writing Prospectus or portion thereof
required to be filed that contains only ABS Informational and
Computational Material shall be filed by the Company with the Commission
not later than the later of the due date for filing the final Prospectus
relating to the Publicly Offered Certificates pursuant to Rule 424(b)
under the Act or two business days after the first use of such Free
Writing Prospectus; (C) any Free Writing Prospectus required to be filed
pursuant to Section 11(a)(v)(C) shall, if no payment has been made or
consideration has been given by or on behalf of the Company for the Free
Writing Prospectus or its dissemination, be filed by the Company with the
Commission not later than four business days after the Company becomes
aware of the publication, radio or television broadcast or other
dissemination of the Free Writing Prospectus.
(vii) The Underwriter shall file with the Commission any Free
Writing Prospectus that is used or referred to by it and distributed by or
on behalf of the Underwriter in a manner reasonably designed to lead to
its broad, unrestricted dissemination not later than the date of the first
use of such Free Writing Prospectus. Notwithstanding the foregoing, the
Underwriter shall file with the Commission any Free Writing Prospectus for
which the Underwriter or any person acting on its behalf provided,
authorized or approved information that is prepared and published or
disseminated by a person unaffiliated with the Company or any other
offering participant that is in the business of publishing, radio or
television broadcasting or otherwise disseminating written communications
and for which no payment was made or consideration given by or on behalf
of the Company or any other offering participant, not later than four
business days after the Underwriter becomes aware of the publication,
radio or television broadcast or other dissemination of the Free Writing
Prospectus.
(viii) Notwithstanding the provisions of Sections 11(a)(v) and
11(a)(vii), neither the Company nor the Underwriter shall be required to
file any Free Writing Prospectus that does not contain substantive changes
from or additions to a Free Writing Prospectus previously filed with the
Commission, and the Underwriter shall not be required to file any Free
Writing Prospectus to the extent that the information contained therein is
included in a prospectus or Free Writing Prospectus previously filed that
relates to the offering of the Publicly Offered Certificates.
(ix) The Company and the Underwriter each agree that any Free
Writing Prospectuses prepared by it shall contain the following legend:
The depositor has filed a registration statement (including a
prospectus) with the Securities and Exchange Commission for the
offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other
documents the depositor has filed with the Securities and Exchange
Commission for more complete information about the issuer and this
offering. You may get these documents for free by visiting XXXXX on
the Securities and Exchange Commission web site at xxx.xxx.xxx.
Alternatively, the depositor, the underwriter or any dealer
participating in the offering will arrange to send you the
prospectus if you request it by calling toll-free 0-000-000-0000.
(x)(A) In the event that the Company becomes aware that, as of
the Time of Sale, any Issuer Free Writing Prospectus contains any untrue
statement of a material fact or omits to state a material fact necessary
in order to make the statements contained therein (when read in
conjunction with the Time of Sale Information), in light of the
circumstances under which they were made, not misleading (a "Defective
Issuer Free Writing Prospectus"), the Company shall notify the Underwriter
of such untrue statement or omission within one business day after
discovery and the Company shall, if requested by the Underwriter, prepare
and deliver to the Underwriter a Free Writing Prospectus that corrects the
material misstatement or omission in the Defective Issuer Free Writing
Prospectus (such corrected Issuer Free Writing Prospectus, a "Corrected
Issuer Free Writing Prospectus").
(B) In the event that the Underwriter becomes aware that, as
of the Time of Sale, any Underwriter Free Writing Prospectus
delivered to an investor in any Publicly Offered Certificates
contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
contained therein (when read in conjunction with the Time of Sale
Information), in light of the circumstances under which they were
made, not misleading, when considered in conjunction with the Time
of Sale Information (together with a Defective Issuer Free Writing
Prospectus, a "Defective Free Writing Prospectus"), the Underwriter
shall notify the Company of such untrue statement or omission within
one business day after discovery.
(C) The Underwriter shall, if requested by the Company:
(1) if the Defective Free Writing Prospectus was an
Underwriter Free Writing Prospectus, prepare a Free Writing
Prospectus which corrects the material misstatement in or
omission from the Defective Free Writing Prospectus (together
with a Corrected Issuer Free Writing Prospectus, a "Corrected
Free Writing Prospectus");
(2) deliver the Corrected Free Writing Prospectus to
each investor which received the Defective Free Writing
Prospectus prior to entering into a contract of sale with such
investor;
(3) notify such investor in a prominent fashion that the
prior contract of sale with the investor has been terminated,
and of the investor's rights as a result of termination of
such agreement;
(4) provide such investor with an opportunity to
affirmatively agree to purchase the Publicly Offered
Certificates on the terms described in the Corrected Free
Writing Prospectus; and
(5) comply with any other requirements for reformation
of the original contract of sale with such investor, as
described in Section IV.A.2.c of the Commission's Securities
Offering Reform Release No. 33-8591.
(D) In the event that the Defective Free Writing Prospectus
was an Issuer Free Writing Prospectus, and the Underwriter shall in
good faith incur any costs to an investor in connection with the
reformation of the contract of sale with the investor, the Company
agrees to reimburse the Underwriter for such costs; provided that,
before incurring such costs, the Underwriter first permits the
Company access to the applicable investor and an opportunity to
attempt to mitigate such costs through direct negotiation with such
investor.
(xi) The Underwriter covenants with the Company that after the
final Prospectus is available the Underwriter shall not distribute any
written information concerning the Publicly Offered Certificates that
contains Issuer Information to a prospective purchaser of Publicly Offered
Certificates unless such information is preceded or accompanied by the
final Prospectus.
12. All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing, and shall be sufficient
in all respects, if delivered or sent by registered mail to the Underwriter, to
the address of the Underwriter, Attention: Registration Department, set forth
above; if to the Company, to the address of the Company set forth in the
Prospectus, Attention: President.
13. This Agreement shall be binding upon, and inure solely to the benefit
of the Underwriter, the Company and, to the extent provided in Section 8 hereof,
the officers and directors of the Company and each person who controls the
Company or the Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Publicly Offered Certificates from the Underwriter shall be deemed a successor
or assign merely by reason of such purchase.
14. Time shall be of the essence of this Agreement.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
17. The Company is authorized, subject to applicable law, to disclose any
and all aspects of this potential transaction that are necessary to support any
U.S. federal income tax benefits expected to be claimed with respect to such
transaction, and all materials of any kind (including tax opinions and other tax
analyses) related to those benefits, without the Underwriter imposing any
limitations of any kind.
[SIGNATURE PAGE FOLLOWS]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned two counterparts hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and the Underwriter.
Very truly yours,
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
--------------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
Accepted as of the date hereof:
XXXXXXX, XXXXX & CO.
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
SCHEDULE I
Approximate
Initial
Class Principal Pass-Through Ratings
Class Balance(1) Rate Type (S&P/Xxxxx'x)
--------------------------------------------------------------------------------
A-1A $ 76,000,000 Variable(2) Senior AAA/Aaa
--------------------------------------------------------------------------------
A-1B $ 19,000,000 Variable(3) Senior AAA/Aaa
--------------------------------------------------------------------------------
A-1C $ 95,531,000 Variable(4) Senior AAA/Aaa
--------------------------------------------------------------------------------
A-2 $ 62,603,000 5.552%(5) Senior AAA/Aaa
--------------------------------------------------------------------------------
A-3 $ 19,053,000 Variable(6) Senior AAA/Aaa
--------------------------------------------------------------------------------
M-1 $ 35,241,000 Variable(7) Subordinate AA/Aa2
--------------------------------------------------------------------------------
M-2 $ 8,324,000 Variable(8) Subordinate AA-/Aa3
--------------------------------------------------------------------------------
M-3 $ 13,281,000 Variable(9) Subordinate A/A2
--------------------------------------------------------------------------------
M-4 $ 6,376,000 Variable(10) Subordinate A-/A3
--------------------------------------------------------------------------------
M-5 $ 7,260,000 7.000%(11) Subordinate BBB+/Baa1
--------------------------------------------------------------------------------
M-6 $ 5,667,000 7.000%(12) Subordinate BBB/Baa2
--------------------------------------------------------------------------------
M-7 $ 5,844,000 7.000%(13) Subordinate BBB-/Baa3
--------------------------------------------------------------------------------
(1) Subject to a variance of +/-10%.
(2) The Class A-1A certificates will have a pass-through rate equal to the
lesser of (i) one-month LIBOR plus 0.070% per annum (0.140% per annum
after the first distribution date on which the optional clean-up call is
exercisable), and (ii) the WAC Cap, as described in this prospectus
supplement under "Description of the Certificates--Distributions of
Interest and Principal."
(3) The Class A-1B certificates will have a pass-through rate equal to the
lesser of (i) one-month LIBOR plus 0.150% per annum (0.300% per annum
after the first distribution date on which the optional clean-up call is
exercisable), and (ii) the WAC Cap.
(4) The Class A-1C certificates will have a pass-through rate equal to the
lesser of (i) one-month LIBOR plus 0.100% per annum (0.200% per annum
after the first distribution date on which the optional clean-up call is
exercisable), and (ii) the WAC Cap.
(5) The Class A-2 certificates will have a pass-through rate equal to 5.552%
per annum (6.052% per annum after the first distribution date on which the
optional clean-up call is exercisable).
(6) The Class A-3 certificates will have a pass-through rate equal to the
lesser of (i) one-month LIBOR plus 0.230% per annum (0.460% per annum
after the first distribution date on which the optional clean-up call is
exercisable), and (ii) the WAC Cap.
(7) The Class M-1 certificates will have a pass-through rate equal to the
lesser of (i) one-month LIBOR plus 0.400% per annum (0.600% per annum
after the first distribution date on which the optional clean-up call is
exercisable), and (ii) the WAC Cap.
(8) The Class M-2 certificates will have a pass-through rate equal to the
lesser of (i) one-month LIBOR plus 0.430% per annum (0.645% per annum
after the first distribution date on which the optional clean-up call is
exercisable), and (ii) the WAC Cap.
(9) The Class M-3 certificates will have a pass-through rate equal to the
lesser of (i) one-month LIBOR plus 0.600% per annum (0.900% per annum
after the first distribution date on which the optional clean-up call is
exercisable), and (ii) the WAC Cap.
(10) The Class M-4 certificates will have a pass-through rate equal to the
lesser of (i) one-month LIBOR plus 0.720% per annum (1.080% per annum
after the first distribution date on which the optional clean-up call is
exercisable), and (ii) the WAC Cap.
(11) The Class M-5 certificates will have a pass-through rate equal to the
lesser of (i) 7.000% per annum (7.500% per annum after the first
distribution date on which the optional clean-up call is exercisable), and
(ii) the WAC Cap.
(12) The Class M-6 certificates will have a pass-through rate equal to the
lesser of (i) 7.000% per annum (7.500% per annum after the first
distribution date on which the optional clean-up call is exercisable), and
(ii) the WAC Cap.
(13) The Class M-7 certificates will have a pass-through rate equal to the
lesser of (i) 7.000% per annum (7.500% per annum after the first
distribution date on which the optional clean-up call is exercisable), and
(ii) the WAC Cap.
SCHEDULE II
Purchase Price
The purchase price for the Publicly Offered Certificates shall equal 99.75% of
the aggregate class principal balance of the Publicly Offered Certificates set
forth on Schedule I.
SCHEDULE III
Principal Amount of Certificates
Principal Principal Principal Principal Principal Principal Principal
Amount of Amount of Amount of Amount of Amount of Amount of Amount of
Underwriter Class A-1A Class A-1B Class A-1C Class A-2 Class A-3 Class M-1 Class M-2
---------------------- ----------- ----------- ----------- ----------- ----------- ----------- ----------
Xxxxxxx, Xxxxx & Co... $76,000,000 $19,000,000 $95,531,000 $62,603,000 $19,053,000 $35,241,000 $8,234,000
----------- ----------- ----------- ----------- ----------- ----------- ----------
Total................. $76,000,000 $19,000,000 $95,531,000 $62,603,000 $19,053,000 $35,241,000 $8,234,000
=========== =========== =========== =========== =========== =========== ==========
Principal Principal Principal Principal Principal
Amount of Amount of Amount of Amount of Amount of
Underwriter Class M-3 Class M-4 Class M-5 Class M-6 Class M-7
------------------------------- ----------- ---------- ---------- ---------- ----------
Xxxxxxx, Xxxxx & Co............ $13,281,000 $6,376,000 $7,260,000 $5,667,000 $5,844,000
----------- ---------- ---------- ---------- ----------
Total.......................... $13,281,000 $6,376,000 $7,260,000 $5,667,000 $5,844,000
=========== ========== ========== ========== ==========
SCHEDULE IV
Other Free Writing Prospectuses
None.
