EXHIBIT 1
GS MORTGAGE SECURITIES CORP.
GSAMP TRUST 2006-HE5
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-HE5
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Underwriting Agreement
Dated as of August 23, 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-HE5 (the "Trust") to issue its Mortgage Pass-Through
Certificates, Series 2006-HE5 (the "Certificates"), pursuant to a Pooling and
Servicing Agreement, dated as of August 1, 2006 (the "Pooling and Servicing
Agreement"), by and among the Company, as depositor, Xxxxxx Loan Servicing LP,
as a servicer ("Xxxxxx"), Avelo Mortgage, L.L.C., as a servicer ("Avelo"),
Select Portfolio Servicing, Inc., as a servicer (together with Xxxxxx and Avelo,
the "Servicers"), Xxxxx Fargo Bank, N.A., as master servicer (in such capacity,
the "Master Servicer") and as securities administrator (in such capacity, the
"Securities Administrator"), X.X. Xxxxxx Trust Company, National Association, as
a custodian ("XX Xxxxxx"), U.S. Bank National Association, as a custodian ("U.S.
Bank"), Deutsche Bank National Trust Company, as a custodian (together with U.S.
Bank and XX Xxxxxx, the "Custodians") and LaSalle Bank National Association, as
trustee (the "Trustee"), and proposes to sell to you (the "Underwriter") the
Certificates specified on Schedule I hereto. The Class A-1, Class A-2A, Class
A-2B Class A-2C, Class A-2D, Class M-1, Class M-2, Class M-3, Class M-4, Class
M-5, Class M-6, Class M-7, Class M-8, Class M-9, Class R, Class RC and Class RX
Certificates identified on Schedule I hereto are the "Publicly Offered
Certificates." The Publicly Offered Certificates, together with the Trust's
Mortgage Pass-Through Certificates, Class B-1, Class B-2, Class P and Class X
Certificates, will represent in the aggregate the entire beneficial ownership
interest in the assets of the Trust primarily consisting of a segregated pool of
mortgage loans and certain other related assets.
Xxxxxxx Xxxxx Mortgage Company ("GSMC") purchased certain
mortgage loans (the "Mortgage Loans") from (1) First Horizon Home Loan
Corporation ("First Horizon"), pursuant to a Flow Mortgage Loan Purchase and
Warranties Agreement, dated as of May 1, 2006, by and between GSMC and First
Horizon, (2) The CIT Group/Consumer Finance, The CIT Group/Consumer Finance
(NY), and the CIT Group/Consumer Finance (TN) (collectively "CIT"), pursuant to
a Flow Mortgage Loan Purchase and Warranties Agreement, dated as of May 1, 2006,
by and between GSMC and CIT, (3) Aames Capital Corporation ("Aames"), pursuant
to a Flow Mortgage Loan Purchase and Warranties Agreement, dated as of April 1,
2006, by and between GSMC and Aames, (4) 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 August 25,
2006 among First Horizon, the Company and GSMC (the "First Horizon Assignment
Agreement"), (2) an Assignment, Assumption and Recognition Agreement, dated as
of August 25, 2006 among Aames, the Company and GSMC (the "Aames Assignment
Agreement"), (3) an Assignment, Assumption and Recognition Agreement, dated as
of August 25, 2006 among CIT, the Company and GSMC (the "CIT Assignment
Agreement"), (4) (together with the First Horizon Assignment Agreement and the
Aames Assignment Agreement, the "Assignment Agreements"), and (5) a Bill of
Sale, dated as of August 25, 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-HE5 Free Writing Prospectus dated August 14, 2006,
including the Company's Term Sheet attached thereto (the "Transaction FWP"), the
Company's Prospectus dated August 3, 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-1, Class A-2A, Class A-2B, Class A-2C, Class
A-2D, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class
M-7, Class M-8 and Class M-9 Certificates to be purchased by the Underwriter
will be represented by one or more definitive global Certificates in book-entry
form, which will be deposited by or on behalf of the Company with The Depository
Trust Company ("DTC") or its designated custodian. The Company will deliver such
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 Class R, Class RC and Class RX
Certificates will be represented by one or more definitive Certificates in the
physical form. The Company will cause the certificates representing such
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 August 25, 2006, or such
other time and date as the Underwriter and the Company may agree upon in
writing. Such time and date are herein called the "Time of Delivery" and such
date is herein called the "Closing Date."
(b) The documents to be delivered at the Time of Delivery by or
on behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Publicly Offered Certificates and any additional documents
requested by the Underwriter pursuant to Section 7(q) hereof, will be delivered
at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP ("Xxxxxxxxxx") 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 First Horizon 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 CIT satisfactory to the Underwriter shall have
furnished to the Underwriter its written opinion, dated the Time of Delivery, in
form and substance satisfactory to the Underwriter and counsel for the
Underwriter;
(f) Counsel for each Servicer satisfactory to the Underwriter
shall have furnished to the Underwriter its written opinion, dated the Time of
Delivery, in form and substance satisfactory to the Underwriter and counsel for
the Underwriter;
(g) Counsel for each Custodian satisfactory to the Underwriter
shall have furnished to the Underwriter its written opinion, dated the Time of
Delivery, in form and substance satisfactory to the Underwriter and counsel for
the Underwriter;
(h) Counsel for the Securities Administrator satisfactory to the
Underwriter shall have furnished to the Underwriter its written opinion, dated
the Time of Delivery, in form and substance satisfactory to the Underwriter and
counsel for the Underwriter;
(i) Counsel for the Master Servicer satisfactory to the
Underwriter shall have furnished to the Underwriter its written opinion, dated
the Time of Delivery, in form and substance satisfactory to the Underwriter and
counsel for the Underwriter;
(j) Counsel for the Trustee satisfactory to the Underwriter shall
have furnished to the Underwriter its written opinion, dated as of the Time of
Delivery, in form and substance satisfactory to the Underwriter and counsel for
the Underwriter;
(k) The independent accountants of the Company or other
accountants acceptable to the Underwriter shall have furnished to the
Underwriter a letter or letters, dated on the date hereof, and a letter or
letters, dated the Time of Delivery, respectively, containing statements and
information of the type customarily included in accountants' "comfort letters"
and "agreed upon procedures letters" with respect to certain financial
information contained in the Prospectus, in each case as to such matters as the
Underwriter may reasonably request and in form and substance satisfactory to the
Underwriter;
(l) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Time of Sale Information or the
Prospectus as amended prior to the Time of Delivery any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Time of Sale
Information or the Prospectus as amended prior to the Time of Delivery, and (ii)
since the respective dates as of which information is given in the Time of Sale
Information or the Prospectus as amended prior to the Time of Delivery there
shall not have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Time of Sale
Information or the Prospectus as amended prior to the Time of Delivery, the
effect of which, in any such case described in clause (i) or (ii), is in the
judgment of the Underwriter so material and adverse as to make it impracticable
or inadvisable to proceed with the offering or the delivery of the Publicly
Offered Certificates on the terms and in the manner contemplated in the Time of
Sale Information or the Prospectus as first amended or supplemented;
(m) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or preferred stock
by any "nationally recognized statistical rating organization," as that term is
defined by the Securities and Exchange Commission for purposes of Rule 436(g)(2)
under the Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities or preferred stock;
(n) On or after the date hereof, there shall not have occurred
any of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general moratorium
on commercial banking activities in New York declared by either Federal or New
York State authorities or any material disruption in commercial banking or
securities settlement or clearance services in the United States; or (iii) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war; or (iv) the
occurrence of any other calamity or crisis or any change in the financial,
political or economic conditions in the United States or elsewhere, if the
effect of any such event specified in clause (iii) or (iv) in the judgment of
the Underwriter makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Publicly Offered Certificates on the terms and
in the manner contemplated in the Time of Sale Information or the Prospectus;
(o) The Company shall have furnished or caused to be furnished to
the Underwriter at the Time of Delivery certificates of its officers
satisfactory to the Underwriter as to the accuracy in all material respects of
its representations and warranties herein at and as of such Time of Delivery, as
to the performance of all of its obligations hereunder to be performed at or
prior to such Time of Delivery, as to the matters set forth in Section 7(a)
above and as to such other matters as the Underwriter may reasonably request;
(p) The Underwriter shall have received evidence satisfactory to
it that the Publicly Offered Certificates are rated not lower than the ratings
set forth in the Prospectus Supplement under the heading "Ratings";
(q) All opinions, certificates and other documents incident to,
and all proceedings in connection with the transactions contemplated by, this
Agreement, the Assignment Agreements, the Bill of Sale and the Pooling and
Servicing Agreement shall be satisfactory in form and substance to the
Underwriter and its special counsel;
(r) The Registration Statement shall be effective under the Act
and no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been instituted or threatened
by the Commission and the Prospectus Supplement and each Free Writing Prospectus
required to be filed by the Company pursuant to Section 5(a) shall have been
filed or transmitted for filing by means reasonably calculated to result in a
filing with the Commission pursuant to Rule 424(b) under the Act or Rule 433
under the Act, as applicable; and
(s) The Underwriter and its special counsel shall have received
copies of all documents and other information as they may reasonably request, in
form and substance satisfactory, to the Underwriter and its special counsel,
with respect to such transactions and the taking of all proceedings in
connection therewith.
8. (a) The Company will indemnify and hold harmless the
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which the Underwriter may become subject, under the Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (1)
an untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or Prospectus or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and,
in the case of clauses (1), (2) and (3), will reimburse the Underwriter for any
legal or other expenses reasonably incurred by the Underwriter in connection
with investigating or defending any such action or claim or (2) any untrue
statement or alleged untrue statement of a material fact contained in any Issuer
Free Writing Prospectus or any Issuer Information contained in any Underwriter
Free Writing Prospectus (as defined herein), or the omission or alleged omission
to state a material fact necessary to make the statements therein (when read in
conjunction with the other Time of Sale Information), in light of the
circumstances under which they were made, not misleading, which was not
corrected by Corrective Information subsequently supplied by the Company to the
Underwriter within a reasonable period of time prior to the Time of Sale, or (3)
any breach of the representation and warranty in Section 1(q), and, in the case
of clauses (1), (2) and (3), will reimburse the Underwriter for any legal or
other expenses reasonably incurred by the Underwriter in connection with
investigating or defending any such action or claim; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with (i) information with respect to which the Underwriter has
agreed to indemnify the Company pursuant to Section 8(b).
(b) The Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any untrue statements or alleged untrue statements of a
material fact, or omissions or alleged omissions to state a material fact
necessary to make the statements therein (when read in conjunction with the Time
of Sale Information), in the light of the circumstances under which they were
made, not misleading, in the Underwriter Statements and (ii) any untrue
statements or alleged untrue statements of a material fact in any Underwriter
Free Writing Prospectus or any omission or alleged omission to state in such
Underwriter Free Writing Prospectus a material fact necessary in order to make
the statements therein (when read in conjunction with the Time of Sale
Information), in the light of the circumstances under which they were made, not
misleading; provided, that the Underwriter shall not be obligated to so
indemnify and hold harmless (A) to the extent such loss, liability, claim,
damage or expense is caused by a misstatement or omission resulting from an
error or omission in the Issuer Information which was not corrected by
Corrective Information subsequently supplied by the Company to the Underwriter
within a reasonable period of time prior to the Time of Sale or (B) with respect
to information that is also contained in the Time of Sale Information.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriter on
the other from the offering of the Publicly Offered Certificates to which such
loss, claim, damage or liability (or actions in respect thereof) relates. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the Underwriter on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriter on the other shall be deemed
to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriter. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or the Underwriter on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriter agree that it would
not be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Publicly Offered Certificates underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which the
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
the Underwriter within the meaning of the Act; and the obligations of the
Underwriter with respect to any Publicly Offered Certificates under this Section
8 shall be in addition to any liability which the Underwriter may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Company and to each person, if any, who controls the Company
within the meaning of the Act.
9. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the Underwriter as set forth
in this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made in connection
with the issuance of Certificates by or on behalf of the Underwriter or any
controlling person of the Underwriter, or the Company, or any officer or
director or controlling person of the Company and shall survive delivery of and
payment for the Publicly Offered Certificates.
10. If for any reason the Certificates are not delivered by or on
behalf of the Securities Administrator as provided herein, other than by the
Underwriter's failure to comply with its obligations hereunder, the Company will
reimburse the Underwriter for all out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred by the Underwriter in making
preparations for the purchase, sale and delivery of the Publicly Offered
Certificates, but the Company shall be under no further liability to the
Underwriter with respect to such Certificates except as provided in Section 6
and Section 8 hereof.
11. (a) In connection with the offering of the Publicly Offered
Certificates, the Underwriter may prepare and provide to prospective investors
Free Writing Prospectuses (as defined below), or portions thereof, which the
Company is required to file with the Commission in electronic format and will
use reasonable efforts to provide to the Company such Free Writing Prospectuses,
or portions thereof, in either Microsoft Word(R) or Microsoft Excel(R) format
and not in a PDF, except to the extent that the Company, in its sole discretion,
waives such requirements, subject to the following conditions (to which such
conditions the Underwriter agrees):
(i) Unless preceded or accompanied by the Prospectus, the
Underwriter shall not convey or deliver any written communication to
any person in connection with the initial offering of the Publicly
Offered Certificates, unless such written communication (1) is made in
reliance on Rule 134 under the Act, (2) constitutes a prospectus
satisfying the requirements of Rule 430B under the Act or (3)
constitutes Time of Sale Information or a Free Writing Prospectus that
does not constitute Time of Sale Information. Without the Company's
prior written consent, the Underwriter shall not convey or deliver in
connection with the initial offering of the Publicly Offered
Certificates any "ABS informational and computational material," as
defined in Item 1101(a) of Regulation AB under the Act ("ABS
Informational and Computational Material"), in reliance upon Rules 167
and 426 under the Act.
(ii) The Underwriter shall deliver to the Company, no later than
two business days prior to the date of first use thereof or such later
date as may be agreed to by the Company, (a) any Free Writing
Prospectus that was prepared by or on behalf of the Underwriter (an
"Underwriter Free Writing Prospectus") and contains any "issuer
information," as defined in Rule 433(h) under the Act and footnote 271
of the Commission's Securities Offering Reform Release No. 33-8591
("Issuer Information"), and (b) any Free Writing Prospectus or portion
thereof that contains only a description of the final terms of the
Publicly Offered Certificates. Notwithstanding the foregoing, any Free
Writing Prospectus that contains only ABS Informational and
Computational Materials may be delivered by the Underwriter to the
Company not later than the later of (A) two business days prior to the
due date for filing of the Prospectus pursuant to Rule 424(b) under
the Act or (B) the date of first use of such Free Writing Prospectus.
(iii) The Underwriter represents and warrants to the Company that
the Free Writing Prospectuses to be furnished to the Company by the
Underwriter pursuant to Section 11(a)(ii) will constitute all Free
Writing Prospectuses of the type described therein that were furnished
to prospective purchasers of Publicly Offered Certificates by the
Underwriter in connection with its offer and sale of the Publicly
Offered Certificates.
(iv) The Underwriter represents and warrants to the Company that
each Free Writing Prospectus required to be provided by it to the
Company pursuant to Section 11(a)(ii), when read in conjunction with
the Time of Sale Information, did not, as of the Time of Sale, and
will not as of the Closing Date, include any untrue statement of a
material fact or omit any material fact necessary to make the
statements contained therein (when read in conjunction with the Time
of Sale Information), in light of the circumstances under which they
were made, not misleading; provided however, that the Underwriter
makes no representation to the extent such misstatements or omissions
were the result of any inaccurate Issuer Information, which
information was not corrected by Corrective Information subsequently
supplied by the Company to the Underwriter within a reasonable period
of time prior to the Time of Sale.
(v) The Company agrees to file with the Commission the following:
(A) any Issuer Free Writing Prospectus; (B) any Free Writing
Prospectus or portion thereof delivered by the Underwriter to the
Company pursuant to Section 11(a)(ii); and (C) any Free Writing
Prospectus for which the Company or any person acting on its behalf
provided, authorized or approved information that is prepared and
published or disseminated by a person unaffiliated with the Company or
any other offering participant that is in the business of publishing,
radio or television broadcasting or otherwise disseminating
communications. Notwithstanding the foregoing, the Company shall not
be required to file (1) Issuer Information contained in any
Underwriter Free Writing Prospectus or Free Writing Prospectus of any
other offering participant other than the Company, if such information
is included or incorporated by reference in a prospectus or Free
Writing Prospectus previously filed with the Commission that relates
to the offering of the Publicly Offered Certificates, or (2) any Free
Writing Prospectus or portion thereof that contains a description of
the Publicly Offered Certificates or the offering of the Publicly
Offered Certificates which does not reflect the final terms thereof.
(vi) Any Free Writing Prospectus required to be filed pursuant to
Section 11(a)(v) by the Company shall be filed with the Commission not
later than the date of first use of the Free Writing Prospectus,
except that: (A) any Free Writing Prospectus or portion thereof
required to be filed that contains only the description of the final
terms of the Publicly Offered Certificates shall be filed by the
Company with the Commission within two days of the later of the date
such final terms have been established for all classes of Publicly
Offered Certificates and the date of first use; (B) any Free Writing
Prospectus or portion thereof required to be filed that contains only
ABS Informational and Computational Material shall be filed by the
Company with the Commission not later than the later of the due date
for filing the final Prospectus relating to the Publicly Offered
Certificates pursuant to Rule 424(b) under the Act or two business
days after the first use of such Free Writing Prospectus; (C) any Free
Writing Prospectus required to be filed pursuant to Section
11(a)(v)(C) shall, if no payment has been made or consideration has
been given by or on behalf of the Company for the Free Writing
Prospectus or its dissemination, be filed by the Company with the
Commission not later than four business days after the Company becomes
aware of the publication, radio or television broadcast or other
dissemination of the Free Writing Prospectus.
(vii) The Underwriter shall file with the Commission any Free
Writing Prospectus that is used or referred to by it and distributed
by or on behalf of the Underwriter in a manner reasonably designed to
lead to its broad, unrestricted dissemination not later than the date
of the first use of such Free Writing Prospectus. Notwithstanding the
foregoing, the Underwriter shall file with the Commission any Free
Writing Prospectus for which the Underwriter or any person acting on
its behalf provided, authorized or approved information that is
prepared and published or disseminated by a person unaffiliated with
the Company or any other offering participant that is in the business
of publishing, radio or television broadcasting or otherwise
disseminating written communications and for which no payment was made
or consideration given by or on behalf of the Company or any other
offering participant, not later than four business days after the
Underwriter becomes aware of the publication, radio or television
broadcast or other dissemination of the Free Writing Prospectus.
(viii) Notwithstanding the provisions of Sections 11(a)(v) and
11(a)(vii), neither the Company nor the Underwriter shall be required
to file any Free Writing Prospectus that does not contain substantive
changes from or additions to a Free Writing Prospectus previously
filed with the Commission, and the Underwriter shall not be required
to file any Free Writing Prospectus to the extent that the information
contained therein is included in a prospectus or Free Writing
Prospectus previously filed that relates to the offering of the
Publicly Offered Certificates.
(ix) The Company and the Underwriter each agree that any Free
Writing Prospectuses prepared by it shall contain the following
legend:
The depositor has filed a registration statement (including a
prospectus) with the Securities and Exchange Commission for the
offering to which this communication relates. Before you invest,
you should read the prospectus in that registration statement and
other documents the depositor has filed with the Securities and
Exchange Commission for more complete information about the
issuer and this offering. You may get these documents for free by
visiting XXXXX on the Securities and Exchange Commission web site
at xxx.xxx.xxx. Alternatively, the depositor, any underwriter or
any dealer participating in the offering will arrange to send you
the prospectus if you request it by calling toll-free
0-000-000-0000.
(x) (A) In the event that the Company becomes aware that, as of
the Time of Sale, any Issuer Free Writing Prospectus contains any
untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements contained therein (when read
in conjunction with the Time of Sale Information), in light of the
circumstances under which they were made, not misleading (a "Defective
Issuer Free Writing Prospectus"), the Company shall notify the
Underwriter of such untrue statement or omission within one business
day after discovery and the Company shall, if requested by the
Underwriter, prepare and deliver to the Underwriter a Free Writing
Prospectus that corrects the material misstatement or omission in the
Defective Issuer Free Writing Prospectus (such corrected Issuer Free
Writing Prospectus, a "Corrected Issuer Free Writing Prospectus").
(B) In the event that the Underwriter becomes aware that,
as of the Time of Sale, any Underwriter Free Writing Prospectus
delivered to an investor in any Publicly Offered Certificates
contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
contained therein (when read in conjunction with the Time of Sale
Information), in light of the circumstances under which they were
made, not misleading, when considered in conjunction with the
Time of Sale Information (together with a Defective Issuer Free
Writing Prospectus, a "Defective Free Writing Prospectus"), the
Underwriter shall notify the Company of such untrue statement or
omission within one business day after discovery.
(C) The Underwriter shall, if requested by the Company:
(1) if the Defective Free Writing Prospectus was an
Underwriter Free Writing Prospectus, prepare a Free Writing
Prospectus which corrects the material misstatement in or
omission from the Defective Free Writing Prospectus
(together with a Corrected Issuer Free Writing Prospectus, a
"Corrected Free Writing Prospectus");
(2) deliver the Corrected Free Writing Prospectus to
each investor which received the Defective Free Writing
Prospectus prior to entering into a contract of sale with
such investor;
(3) notify such investor in a prominent fashion that
the prior contract of sale with the investor has been
terminated, and of the investor's rights as a result of
termination of such agreement;
(4) provide such investor with an opportunity to
affirmatively agree to purchase the Publicly Offered
Certificates on the terms described in the Corrected Free
Writing Prospectus; and
(5) comply with any other requirements for reformation
of the original contract of sale with such investor, as
described in Section IV.A.2.c of the Commission's Securities
Offering Reform Release No. 33-8591.
(D) In the event that the Defective Free Writing
Prospectus was an Issuer Free Writing Prospectus, and the
Underwriter shall in good faith incur any costs to an investor in
connection with the reformation of the contract of sale with the
investor, the Company agrees to reimburse the Underwriter for
such costs; provided that, before incurring such costs, the
Underwriter first permits the Company access to the applicable
investor and an opportunity to attempt to mitigate such costs
through direct negotiation with such investor.
(xi) The Underwriter covenants with the Company that after the
final Prospectus is available the Underwriter shall not distribute any
written information concerning the Publicly Offered Certificates that
contains Issuer Information to a prospective purchaser of Publicly
Offered Certificates unless such information is preceded or
accompanied by the final Prospectus.
12. All statements, requests, notices and agreements hereunder
shall be in writing or by telegram if promptly confirmed in writing, and shall
be sufficient in all respects, if delivered or sent by registered mail to the
Underwriter, to the address of the Underwriter, Attention: Registration
Department, set forth above; if to the Company, to the address of the Company
set forth in the Prospectus, Attention: President.
13. This Agreement shall be binding upon, and inure solely to the
benefit of the Underwriter, the Company and, to the extent provided in Section 8
hereof, the officers and directors of the Company and each person who controls
the Company or the Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Publicly Offered Certificates from the Underwriter shall be deemed a successor
or assign merely by reason of such purchase.
14. Time shall be of the essence of this Agreement.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such respective counterparts shall together constitute
one and the same instrument.
17. The Company is authorized, subject to applicable law, to
disclose any and all aspects of this potential transaction that are necessary to
support any U.S. federal income tax benefits expected to be claimed with respect
to such transaction, and all materials of any kind (including tax opinions and
other tax analyses) related to those benefits, without the Underwriter imposing
any limitations of any kind.
[SIGNATURE PAGE FOLLOWS]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned two counterparts hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and the Underwriter.
Very truly yours,
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
Accepted as of the date hereof:
XXXXXXX, XXXXX & CO.
By: /s/ Xxxxxxxx Xxxx
-------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
SCHEDULE I
Approximate Initial
Class Principal Pass-Through Ratings
Class Balance(1) Rate Type (S&P/Xxxxx'x)
----- ------------------- ------------ ---- -------------
A-1 $241,582,000 Variable(2) Senior AAA/Aaa
A-2A $266,689,000 Variable(3) Senior AAA/Aaa
A-2B $121,873,000 Variable(4) Senior AAA/Aaa
A-2C $115,439,000 Variable(5) Senior AAA/Aaa
A-2D $48,975,000 Variable(6) Senior AAA/Aaa
M-1 $41,491,000 Variable(7) Subordinate AA+/Aa1
M-2 $38,379,000 Variable(8) Subordinate AA/Aa2
M-3 $22,820,000 Variable(9) Subordinate AA/Aa3
M-4 $19,190,000 Variable(10) Subordinate AA/A1
M-5 $19,190,000 Variable(11) Subordinate A+/A2
M-6 $17,634,000 Variable(12) Subordinate A/A3
M-7 $17,115,000 Variable(13) Subordinate A-/Baa1
M-8 $14,003,000 Variable(14) Subordinate BBB+/Baa2
M-9 $11,410,000 Variable(15) Subordinate BBB-/Baa3
R $ 50 N/A(16) Senior/Residual AAA/N/A
RC $ 100 N/A(16) Senior/Residual AAA/N/A
RX $ 50 N/A(16) Senior/Residual AAA/N/A
(1) Subject to a variance of +/-5%.
(2) The Class A-1 certificates will have a pass-through rate equal to the
least of (i) one-month LIBOR plus 0.140% (0.280% after the first
distribution date on which the optional clean-up call is exercisable),
(ii) the Loan Group I Cap, as described in this prospectus supplement
under "Description of the Certificates--Distributions," and (iii) the WAC
Cap, as described in this prospectus supplement under "Description of the
Certificates--Distributions."
(3) The Class A-2A certificates will have a pass-through rate equal to the
least of (i) one-month LIBOR plus 0.040% (0.080% after the first
distribution date on which the optional clean-up call is exercisable),
(ii) the Loan Group II Cap, as described in this prospectus supplement
under "Description of the Certificates--Distributions" and (iii) the WAC
Cap.
(4) The Class A-2B certificates will have a pass-through rate equal to the
least of (i) one-month LIBOR plus 0.100% (0.200% after the first
distribution date on which the optional clean-up call is exercisable),
(ii) the Loan Group II Cap and (iii) the WAC Cap.
(5) The Class A-2C certificates will have a pass-through rate equal to the
least of (i) one-month LIBOR plus 0.150% (0.300% after the first
distribution date on which the optional clean-up call is exercisable),
(ii) the Loan Group II Cap and (iii) the WAC Cap.
(6) The Class A-2D certificates will have a pass-through rate equal to the
least of (i) one-month LIBOR plus 0.240% (0.480% after the first
distribution date on which the optional clean-up call is exercisable),
(ii) the Loan Group II Cap and (iii) the WAC Cap.
(7) The Class M-1 certificates will have a pass-through rate equal to the
lesser of (i) one-month LIBOR plus 0.300% (0.450% 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 0.310% (0.465% after the first
distribution date on which the optional clean-up call is exercisable) and
(ii) the WAC Cap.
(9) The Class M-3 certificates will have a pass-through rate equal to the
lesser of (i) one-month LIBOR plus 0.320% (0.480% after the first
distribution date on which the optional clean-up call is exercisable) and
(ii) the WAC Cap.
(10) The Class M-4 certificates will have a pass-through rate equal to the
lesser of (i) one-month LIBOR plus 0.370% (0.555% after the first
distribution date on which the optional clean-up call is exercisable) and
(ii) the WAC Cap.
(11) The Class M-5 certificates will have a pass-through rate equal to the
lesser of (i) one-month LIBOR plus 0.400% (0.600% after the first
distribution date on which the optional clean-up call is exercisable) and
(ii) the WAC Cap.
(12) The Class M-6 certificates will have a pass-through rate equal to the
lesser of (i) one-month LIBOR plus 0.480% (0.720% after the first
distribution date on which the optional clean-up call is exercisable) and
(ii) the WAC Cap.
(13) The Class M-7 certificates will have a pass-through rate equal to the
lesser of (i) one-month LIBOR plus 0.830% (1.245% after the first
distribution date on which the optional clean-up call is exercisable) and
(ii) the WAC Cap.
(14) The Class M-8 certificates will have a pass-through rate equal to the
lesser of (i) one-month LIBOR plus 1.100% (1.650% after the first
distribution date on which the optional clean-up call is exercisable) and
(ii) the WAC Cap.
(15) The Class M-9 certificates will have a pass-through rate equal to the
lesser of (i) one-month LIBOR plus 1.950% (2.925% after the first
distribution date on which the optional clean-up call is exercisable) and
(ii) the WAC Cap.
(16) The Class R, Class RC and Class RX certificates are not entitled to
receive any distributions of interest.
SCHEDULE II
Purchase Price
The purchase price for the Publicly Offered Certificates shall equal 99.875% of
the aggregate class principal balance of the Publicly Offered Certificates set
forth on Schedule I.
SCHEDULE III
Principal Amount of Certificates
Principal Principal Principal Principal Principal Principal Principal
Amount of Amount of Amount of Amount of Amount of Amount of Amount of
Underwriter Class A-1 Class A-2A Class A-2B Class A-2C Class A-2D Class M-1 Class M-2
-------------------------- ------------ ------------ ------------ ------------ ----------- ----------- -----------
Xxxxxxx, Xxxxx & Co....... $241,582,000 $266,689,000 $121,873,000 $115,439,000 $48,975,000 $41,491,000 $38,379,000
------------ ------------ ------------ ------------ ----------- ----------- -----------
Total .................... $241,582,000 $266,689,000 $121,873,000 $115,439,000 $48,975,000 $41,491,000 $38,379,000
============ ============ ============ ============ =========== =========== ===========
Principal Principal Principal Principal Principal Principal Principal
Amount of Amount of 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 Class M-8 Class M-9
-------------------------- ------------ ------------ ------------ ------------ ----------- ----------- -----------
Xxxxxxx, Xxxxx & Co....... $22,820,000 $19,190,000 $19,190,000 $17,634,000 $17,115,000 $14,003,000 $11,410,000
------------ ------------ ------------ ------------ ----------- ----------- -----------
Total .................... $22,820,000 $19,190,000 $19,190,000 $17,634,000 $17,115,000 $14,003,000 $11,410,000
============ ============ ============ ============ =========== =========== ===========
Principal Principal Principal
Amount of Amount of Amount of
Underwriter Class R Class RC Class RX
-------------------------- ---------- ---------- ----------
Xxxxxxx, Xxxxx & Co....... $50 $100 $50
---------- ---------- ----------
Total .................... $50 $100 $50
========== ========== ==========
SCHEDULE IV
Other Free Writing Prospectuses
None.
