GS MORTGAGE SECURITIES CORP. GSR TRUST 2007-HEL1 MORTGAGE-BACKED NOTES, SERIES 2007-HEL1
GS
MORTGAGE SECURITIES CORP.
MORTGAGE-BACKED
NOTES, SERIES 2007-HEL1
Dated
as
of April
5,
2007
Xxxxxxx,
Xxxxx & Co.
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
GS
Mortgage Securities Corp. (the “Company”) proposes to cause GSR Trust 2007-HEL1
(the “Issuing Entity”) to issue its Mortgage-Backed Notes, Series 2007-HEL1 (the
“Notes”),
pursuant to an Indenture, dated as of April 17, 2007 (the “Indenture”),
by
and between the Issuing
Entity and
Deutsche Bank National Trust Company, as indenture trustee (the “Indenture
Trustee”), and proposes to sell to Xxxxxxx, Sachs & Co. (the “Underwriter”)
the
Notes specified on Schedule I hereto pursuant to this Underwriting Agreement
(the “Agreement”). The Class A Notes identified on Schedule I hereto are the
“Publicly
Offered Notes.”
The
Publicly
Offered
Notes
and the Class X, Class X-1, Class S and Class R Certificates (collectively,
the
“Trust Certificates”) issued pursuant to the Amended
and Restated Trust Agreement,
dated
as of April 17, 2007 (the “Amended and Restated Trust Agreement”), will
represent in the aggregate the entire beneficial ownership interest in the
assets of the Trust Estate primarily consisting of a pool of home equity lines
of credit and certain other related assets.
Xxxxxxx
Xxxxx Mortgage Company (“GSMC”)
purchased certain home equity lines of credit (the “HELOCs”), without recourse,
from Residential
Funding Company, LLC
(“RFC”),
pursuant to the (a) Master Home Equity Lines of Credit Purchase and Servicing
Agreement, dated as of December 1, 2006 between GSMC, as purchaser, and RFC,
as
seller and servicer and (b) the Purchase Price and Terms Letter dated October
27, 2006 between GSMC and RFC.
The
Company will acquire the HELOCs from GSMC pursuant to a Sale and Servicing
Agreement, dated as of April 17, 2007 (the “Sale and Servicing Agreement”),
among GSMC, the Company, the Indenture Trustee, RFC,
as
original loan seller and servicer and the Issuing Entity.
At
or
prior to the time when sales to investors of the Publicly Offered Notes were
first made (the “Time of Sale”), the Company had prepared the following
information (collectively, the “Time of Sale Information”): the GSR Trust
2007-HEL1 Free Writing Prospectus dated April 5, 2007 (the “Preliminary
Free Writing Prospectus”),
the
GSR Trust 2007-HEL1 Term Sheet dated April 5, 2007 (the “Term Sheet”) and any
other “free-writing prospectus” (as defined pursuant to Rule 405 under the Act
(as defined herein)) (the “Free
Writing Prospectus”)
listed
on Schedule III hereto. If, subsequent to the date of this Agreement, the
Company and the Underwriter have determined 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 have terminated their old purchase
contracts and entered into new purchase contracts with purchasers of the
Publicly Offered Notes,
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”).
Certain
HELOC documents, including the mortgage notes and mortgages, will be held by
the
Indenture Trustee pursuant to the Sale and Servicing Agreement. The Publicly
Offered Notes 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 Indenture and the Sale 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. 333-139817), including
a
form of prospectus and such amendments thereto as may have been required to
the
date hereof, relating to the Publicly Offered Notes 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 at the Effective Time (as defined herein), including
the
exhibits thereto and any material incorporated by reference therein, are
hereinafter referred to as the “Registration
Statement,”
and
the prospectus (including the base prospectus and any prospectus supplement)
relating to the Publicly Offered Notes, as last filed, or mailed for filing,
with the Commission pursuant to Rule 424(b) (“Rule
424(b)”)
under
the Act is hereinafter referred to as the “Prospectus.”
For
purposes of this Agreement, “Effective
Time”
means
the date and time as of which such Registration Statement, or the most recent
post-effective amendment thereto, is declared effective by the Commission,
and
“Effective
Date”
means
the date of the Effective Time;
(b) On
the
Effective Date, the Registration Statement did conform in all material respects
to the requirements of the Act, the Securities Exchange Act of 1934, as amended
(the “Exchange
Act”),
where
applicable, and the rules and regulations of the Commission under the Act or
the
Exchange Act, as applicable, and did not, as of the Effective Date, contain
any
untrue statement of a material fact or omit to state a material fact required
to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to
any
statement or omission made in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriter for use in the
Registration Statement;
(c) On
the
date of this Underwriting Agreement (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 and the
Prospectus;
(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 information
furnished in writing to the Company by the Underwriter for use in the
Prospectus;
(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 information relating
to
the Underwriter furnished to the Company in writing by the Underwriter expressly
for use in such Time of Sale Information;
(f) Other
than the Preliminary Free Writing Prospectus and 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 Notes other
than
(i) the Term Sheet (the Term Sheet and each such communication by the Company
or
its agents and representatives that constitutes an “issuer free writing
prospectus”, as defined in Rule 433(h) under the Act (other than a communication
referred to in clause (ii) below), an “Issuer Free Writing Prospectus”), (ii)
any document not constituting a prospectus pursuant to Section 2(a)(10)(a)
of
the Act or Rule 134 under the Act or (iii) the documents listed on Schedule
III
hereto and other written communication approved in writing in advance by the
Underwriter. Each such Issuer Free Writing Prospectus complied in all material
respects with the Act, has been filed in accordance with Section 11 (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 information relating
to
the Underwriter furnished to the Company in writing by the Underwriter expressly
for use in any Issuer Free Writing Prospectus;
(g) Since
the
date as of which information is given in the Time
of
Sale Information 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 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 in Section 4 hereof), the Sale and Servicing
Agreement 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
Notes are issued, executed, authenticated and delivered pursuant to this
Agreement and the Indenture, the Notes will have been duly authorized, executed,
authenticated, issued and delivered and will be entitled to the benefits of
the
Indenture; and the Notes and the Indenture will conform to the descriptions
thereof in the Time
of
Sale Information and the Prospectus;
(k) The
issue
and sale of the Notes, the compliance by the Company with all of the provisions
of this Agreement and the Sale and Servicing Agreement 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 Notes or the consummation by the Company of the other
transactions contemplated by this Agreement and the Sale and Servicing Agreement
except such as have been obtained under the Act, and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution
of
the Publicly Offered Notes by the Underwriter;
(l) The
statements set forth in the Prospectus under the caption “Description of the
Notes,” insofar as they purport to constitute a summary of the terms of the
Notes 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 HELOCs, 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 HELOCs to the Indenture Trustee under the Sale and Servicing
Agreement and at the Time of Delivery will have duly authorized such assignment
and delivery to the Indenture 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 Sale and Servicing Agreement
and
the Publicly Offered Notes will have been paid at or prior to the Time of
Delivery;
(p) At
the
Time of Delivery, the HELOCs will have been duly and validly assigned and
delivered by the Company to the Indenture Trustee;
(q) The
Company is not, and on the date on which the first bona fide offer of the
Publicly Offered Notes
is made
will not be, an “ineligible issuer”, as defined in Rule 405 under the
Act.
(r) The
Trust
created by the Amended and Restated Trust Agreement will not at the Time of
Delivery be required to be registered under the Investment Company Act of 1940,
as amended (the “Investment
Company Act”);
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 Notes to the public
in
that Relevant Member State prior to the publication of a prospectus in relation
to the Publicly Offered Notes 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 Notes 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
€43,000,000 and (3) an annual net turnover of more than €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 Notes to the public” in
relation to any 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 Notes to be offered so as to enable an investor
to
decide to purchase or subscribe the Notes, 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 Xxx 0000 (the “FSMA”)) received by it in
connection with the issue or sale of the Notes 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 Notes 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 Notes. Upon the authorization by you of the
release of the Publicly Offered Notes, the Underwriter proposes to offer the
Publicly Offered Notes 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 Notes to be purchased by the Underwriter will be represented by one
or
more definitive global Notes 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 Notes 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 Notes to the account of the Underwriter at DTC. The Company
will cause the certificates representing such the Publicly Offered Notes 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 April 17, 2007, 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 Notes and any additional documents requested by the Underwriter
pursuant to Section 7(k) hereof, will be delivered at the offices of Xxxxxxx
Xxxxxxxx & Xxxx LLP
at Xxx
Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (the “Closing
Location”),
and
the Publicly Offered Notes 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,
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 Notes 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
or the,
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 Notes
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 Notes 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 Notes; 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 Notes 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 Notes, 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 Notes
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) The
Company will, pursuant to reasonable procedures developed in good faith, retain
copies of each Issuer Free Writing Prospectus that is not filed with the
Commission in accordance with Rule 433 under the Act.
(f) To
make
generally available upon request to Holders of the Publicly Offered Notes 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;
(g) So
long
as any of the Publicly Offered Notes are outstanding, to furnish the Underwriter
copies of all reports or other communications (financial or other) furnished
to
Holders of Notes, 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
the
Sale and Servicing 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
(h) 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 Notes; (ii) the fees, disbursements and expenses of counsel
and accountants for the Company in connection with the issue of the Notes 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 Sale and Servicing Agreement, the Indenture, the Amended
and
Restated Trust Agreement, the Administration 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 Notes; (iv) all expenses
in
connection with the qualification of the Publicly Offered Notes 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 Notes; (vi) the cost of
preparing the Notes; (vii) the fees and expenses of the Indenture Trustee and
of
any agent of the Indenture Trustee and the fees and disbursements of counsel
for
the Indenture Trustee in connection with the Pooling and Servicing Agreement
and
the Notes; (viii) any cost incurred in connection with the designation of the
Notes 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 12 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 Notes
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
Sale
and Servicing Agreement and all of the other agreements identified in such
agreements shall have been duly entered into by all of the respective
parties;
(b) Xxxxxxx
Xxxxxxxx & Wood LLP,
counsel
to the Company, 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 the Indenture 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;
(e) 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;
(f) (i)
Neither the Company nor any of its subsidiaries shall have sustained since
the
date of the latest audited financial statements included or incorporated by
reference in the 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 Notes on the terms and
in
the manner contemplated in
the Time
of Sale Information or
the
Prospectus as first amended or supplemented;
(g) On
or
after the date hereof (i) no downgrading shall have occurred in the rating
accorded the Company’s debt securities or preferred stock by any “nationally
recognized statistical rating organization,” as that term is defined by the
Securities and Exchange Commission for purposes of Rule 436(g)(2) under the
Act,
and (ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any
of the Company’s debt securities or preferred stock;
(h) On
or
after the date hereof, there shall not have occurred any of the following:
(i) a
suspension or material limitation in trading in securities generally on the
New
York Stock Exchange; (ii) a general moratorium on commercial banking activities
in New York declared by either Federal or New York State authorities or 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 Notes on the terms and in the manner contemplated in the Time
of
Sale Information or the Prospectus;
(i) 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;
(j) The
Underwriter shall have received evidence satisfactory to it that the Publicly
Offered Notes are rated in the rating category or categories specified on
Schedule I hereto by the rating agency or agencies specified on Schedule I
hereto;
(k) All
opinions, certificates and other documents incident to, and all proceedings
in
connection with the transactions contemplated by, this Agreement and the Sale
and Servicing Agreement shall be satisfactory in form and substance to the
Underwriter and its special counsel;
(l) 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
(m) The
financial guaranty insurance policy, for the benefit of the Class A Noteholders,
shall have been issued by MBIA Insurance Corporation..
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 as amended or supplemented or any other
offering material relating to the Publicly Offered Notes, or any amendment
or
supplement thereto, or in any static pool information, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the 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
the Time of Sale Information or any Issuer Information (as defined in Section
11(b)) contained in any Free Writing Prospectus prepared by or on behalf of
the
Underwriter (an “Underwriter Free Writing Prospectus”) or contained in any Free
Writing Prospectus which is required to be filed pursuant to Section 11(e)(iii)
or Section 11(h), or the omission or alleged omission to state a material fact
required 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 at any time prior to
the
Time of Sale, except insofar as such losses, claims, damages or liabilities
arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with (i)
information with respect to which each Underwriter has agreed to indemnify
the
Company pursuant to Section 8(b);
provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
an
untrue statement or alleged untrue statement or omission or alleged omission
made in any such document in reliance upon and in conformity with written
information furnished to the Company by the Underwriter expressly for use in
the
Registration Statement,
any
Time of Sale Information, any Issuer Free Writing Prospectus
or
Prospectus.
(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
an
untrue statement or alleged untrue statement of a material fact contained in
the
Registration Statement,
any
Issuer Free Writing Prospectus, any Time of Sale Information
or
Prospectus as amended or supplemented or any other offering material relating
to
the Publicly Offered Notes or any amendment or supplement thereto, or arise
out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that
such untrue statement or alleged untrue statement or omission or alleged
omission was made (i)
in
any
such document in reliance upon and in conformity with written information
furnished to the Company by the Underwriter expressly for use therein; and
will
reimburse the Company for any legal or other expenses reasonably incurred by
the
Company in connection with investigating or defending any such action or claim
as such expenses are incurred,
or (ii)
in any Underwriter Free Writing Prospectus (in the case of an omission or an
alleged omission, when read in conjunction with the Time of Sale Information);
provided, that the Underwriter shall not be obligated to so indemnify and hold
harmless (A) with respect to information that is also contained in the Time
of
Sale Information or (B) to the extent such losses, claims, damages or
liabilities are caused by a misstatement or omission resulting from an error
or
omission in the Issuer Information to the Underwriter which was not corrected
by
Corrective Information subsequently supplied by the Company to the Underwriter
at any time prior to the Time of Sale.
(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 Notes 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
Notes 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 Notes 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
Notes 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
Notes.
10. If
for
any reason the Notes are not delivered by or on behalf of the Indenture 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 Notes, but the Company shall be under no
further liability to the Underwriter with respect to such Notes except as
provided in Section 6 and Section 8 hereof.
11. (a) Unless
preceded or accompanied by a prospectus satisfying the requirements of Section
10(a) of the Act, the Underwriter shall not convey or deliver any written
communication to any person in connection with the initial offering of the
Publicly Offered Notes, 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 a Free Writing
Prospectus. Without the Company’s prior written consent, the Underwriter shall
not convey or deliver in connection with the initial offering of the Publicly
Offered Notes
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.
(b) The Underwriter
shall deliver to the Company, no later than two business days prior to the
date
of first use thereof, (a) any Underwriter Free Writing Prospectus that contains
any “issuer information”, as defined in Rule 433(h) under the Act (“Issuer
Information”), and (b) any Free Writing Prospectus or portion thereof that
contains only a description of the final terms of the Publicly Offered Notes.
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.
(c) 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(b) will constitute all Free Writing Prospectuses of the type
described therein that were furnished to prospective purchasers of Publicly
Offered Notes
by the
Underwriter in connection with its offer and sale of the Publicly Offered
Notes.
(d) 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(b), when read together with all other 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, 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 supplied by the Company to the Underwriter,
which information was not corrected by Corrective Information subsequently
supplied by the Company to the Underwriter prior to the Time of
Sale.
(e) The
Company agrees to file with the Commission the following: (i)
any
Issuer Free Writing Prospectus; (ii) any Free Writing Prospectus or portion
thereof delivered by the Underwriter to the Company pursuant to Section 11(b);
and (iii) 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.
(f) Any
Free
Writing Prospectus required to be filed pursuant to Section 11(e) by the Company
shall be filed with the Commission not later than the date of first use of
the
Free Writing Prospectus, except that: (i) any Free Writing Prospectus or portion
thereof required to be filed that contains only the description of the final
terms of the Publicly Offered Notes
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
Notes
and the
date of first use; (ii) 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
Notes
pursuant
to Rule 424(b) under the Act or two business days after the first use of such
Free Writing Prospectus; (iii) any Free Writing Prospectus required to be filed
pursuant to Section 11(e)(iii) 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; and (iv) the Company shall not be required to file (A)
Issuer Information contained in any Free Writing Prospectus of the Underwriter
or any other offering participant other than the Company, if such information
is
included or incorporated by reference in a prospectus or Free Writing Prospectus
previously filed with the Commission that relates to the offering of the
Publicly Offered Notes,
or (B)
any Free Writing Prospectus or portion thereof that contains a description
of
the Publicly Offered Notes or the offering of the Publicly Offered Notes
which
does not reflect the final terms thereof.
(g) 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.
(h) Notwithstanding
the provisions of Section 11(g), 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.
(i) Notwithstanding
the provisions of Sections 11(e) and 11(g), neither the Issuing Entity 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.
(j) 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
SEC 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 SEC for more complete information about the
depositor, the issuing trust and this offering. You may get these documents
for
free by visiting XXXXX on the SEC 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.
(k) In
the
event that the Underwriter becomes aware that, as of the Time of Sale, any
Issuer Information contained in any Underwriter Free Writing Prospectus and
delivered to a purchaser of a Publicly Offered Note
was not
correctly reflected in such Underwriter Free Writing Prospectus such that it
caused the Underwriter Free Writing Prospectus to contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements contained therein, in the light of the circumstances under which
they were made, when read together with all other Time of Sale Information
not
misleading (such Free Writing Prospectus, a “Defective Free Writing
Prospectus”), the Underwriter shall notify the Company thereof within one
business day after discovery and shall, if requested by the
Company.
(i) Prepare
a
Free Writing Prospectus with Corrective Information that corrects the material
misstatement in or omission from the Defective Free Writing Prospectus (such
corrected Free Writing Prospectus, a “Corrected Free Writing
Prospectus”);
(ii) Deliver
the Corrected Free Writing Prospectus to each purchaser of a Publicly Offered
Certificate which received the Defective Free Writing Prospectus prior to
entering into an agreement to purchase any Publicly Offered Notes;
(iii) Notify
such purchaser in a prominent fashion that the prior agreement to purchase
Publicly Offered Notes has been terminated, and of such purchaser’s rights as a
result of termination of such agreement; and
(iv) Provide
such purchaser with an opportunity to affirmatively agree to purchase such
Publicly Offered Notes on the terms described in the Corrected Free Writing
Prospectus.
(l) 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 Notes that contains Issuer Information to a
prospective purchaser of Publicly Offered Notes 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 Notes 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,
SACHS & CO.
By:
/s/ Xxxx
Xxxxx
Name:
Xxxx
Xxxxx
Title:
Managing
Director
SCHEDULE
I
|
Class
|
Approximate
Initial
Class Principal Balance(1)
|
Pass-Through
Rate
|
Type
|
Ratings
(S&P/Xxxxx’x)
|
||||
|
A
|
$132,937,000
|
Variable(2)
|
Senior
|
AAA/Aaa
|
(1) Subject
to a variance of +/- 10%.
(2) The
Class
A notes will have a note interest rate equal to the lesser of (i) one-month
LIBOR plus 0.160% (0.320% after the first payment date on which the optional
clean-up call is exercisable) and (ii) the wac cap, as described in the
prospectus supplement.
SCHEDULE
II
Purchase
Price
The
purchase price for the Publicly Offered Notes shall equal 99.84%
of the
class principal balance of the Publicly Offered Notes set forth on Schedule
I.
SCHEDULE
III
Free
Writing Prospectus
(Provided
Upon Request)
