EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT
GS Mortgage Securities Corp.
Settlor and Depositor
[Name of ABS]
Series _____ - _____
[Class ______ Notes]
[Class ______ Notes]
[Class _______ Certificates]
[Class _______ Certificates]
------- ---, ----
Xxxxxxx, Xxxxx & Co.
[As Representative of the
Several Underwriters]
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
GS Mortgage Securities Corp., a Delaware corporation (the
"Company"), proposes to cause [Name of Trust] (the "Trust") to issue and
sell of $________ in aggregate stated amount of [Name of ABS] Notes [,
Class ____ and Class ____] ([collectively,] the "Notes") and of $________
in aggregate stated amount of [Name of ABS] Certificates [, Class ___ and
Class ___] ([collectively,] [except for a de minimus portion of the Class
___ Certificates,] the "[Certificates] [Securities]") pursuant to [a] [the]
[Trust Agreement] [[Master] Pooling and Servicing Agreement] [Standard
Terms and Conditions of Pooling and Servicing] [, as supplemented by a
[Series Supplement] [Reference Agreement]] ([as so supplemented,] the
"[Trust] [Pooling and Servicing] Agreement") [each] dated as of [date]
[each] [between] [among] the Company [, __________________, as servicer
(the "Servicer")] and JPMorgan Chase Bank, as trustee (the "Trustee") and
will evidence beneficial interests in the Trust. [The Notes will be issued
pursuant to an Indenture dated as of [date] between the Trust and
_____________, as trustee (the "Indenture Trustee") and will represent
obligations of the Trust. The assets of the Trust consist primarily of a
pool of [previously issued securities backed by] [motor vehicle loan
agreements and motor vehicle retail installment sale contracts, in each
case secured by new and used automobiles, vans and light duty trucks,
security interests in the vehicles financed thereby] [[floorplan]
[consumer] [corporate] [revolving] [equipment] [student loan] [credit card]
[charge card] [debit card] receivables generated or to be generated from
time to time in a portfolio of [floorplan] [consumer] [corporate]
[revolving] [equipment] [student loan] [credit card] [charge card] [debit
card] accounts]] [one- to four-family residential mortgage loans] [mortgage
loans secured by multifamily residential rental properties consisting of
five or more dwelling units or apartment buildings owned by cooperative
housing corporations] [loans made to finance the purchase of certain rights
relating to cooperatively owned properties secured by a pledge of shares of
a cooperative corporation and an assignment of a proprietary lease or
occupancy agreement on a cooperative dwelling] [manufactured housing
conditional sales contracts and installment loan agreements] [insured by
the FHA] [partially guaranteed by the VA] and certain monies due thereunder
(the "Trust Assets"). The Notes and the Certificates are herein
collectively referred to as the "Securities".
The Company proposes to sell the Securities to you [and to each of
the other several underwriters participating in an underwriting syndicate
managed by you]. Underwritten offerings of Securities may be made by you or
by an underwriting syndicate managed by you (as used in this Agreement,
references to "you" shall mean the firm or firms acting as sole
underwriter(s) or as representative(s) of a group of underwriters of such
offering).
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-____) for
the registration of the Securities under the Securities Act of 1933 (the
"1933 Act"), including a related form of prospectus and related form of
prospectus supplement. Such registration statement was declared effective
on _____________. Such registration statement, as from time to time
amended, including all exhibits thereto, is hereinafter referred to as the
"Registration Statement". The form of prospectus that appears in the
Registration Statement, as such prospectus is amended from time to time, is
hereinafter referred to as the "Basic Prospectus". The Basic Prospectus as
supplemented by the prospectus supplement relating to the Securities, in
the form in which, as so supplemented, it shall be filed with the
Commission pursuant to Rule 424 under the 1933 Act, is hereinafter referred
to as the "Final Prospectus".
The Company, hereby agrees with you [and the several Underwriters
named in Schedule A hereto (collectively,] [(] the "Underwriter[s]") as
follows:
SECTION 1. Representations and Warranties. The Company represents
and warrants to you as of the date hereof, and to each Underwriter named on
Schedule A hereto, as follows:
(a) The Registration Statement, at the time it became effective,
complied in all material respects with the requirements of the 1933 Act and
the rules and regulations of the Commission thereunder (the "1933 Act
Regulations") and does not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceeding for that purpose has been initiated or threatened by the
Commission. The Final Prospectus at the time it is transmitted to the
Commission for filing pursuant to Rule 424 under the 1933 Act and at the
Closing Time referred to in Section 2 will not contain an 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. There are no material contracts or
documents of the Company which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or the 1933 Act Regulations which
have not been so filed.
(b) Since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, and other than as
herein or therein contemplated, (i) the Company has not, and at no time
through the Closing Time will it have, entered into any material
transaction or incurred any material liability or obligation, contingent or
otherwise, other than as may relate to additional series of securities
similar to the Securities, (ii) there has not been, and at no time through
the Closing Time will there have been, any material change in the capital
stock or debt of the Company, or any material adverse change in the
business of the Company, and no material legal or governmental proceeding,
domestic or foreign, affecting the Company or the transactions contemplated
by this Agreement has been or at any time through the Closing Time will
have been instituted or threatened, and (iii) no event has or at any time
through the Closing Time will have occurred that constitutes or would
constitute a default under the provisions of the [Trust] [Pooling and
Servicing] Agreement [or the Indenture].
(c) The Company has been duly incorporated and is validly existing
in good standing under the laws of the State of Delaware with corporate
power and authority to conduct its business as described in the
Registration Statement. The Company is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification and where the failure to so
qualify would have a material adverse effect on the Company.
(d) The shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable.
(e) The Company is not in violation of its Certificate of
Incorporation or Bylaws. The Company is not in default in the performance
or observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it or its properties may be
bound, which violations or defaults separately or in the aggregate would
have a material adverse effect on the Company.
(f) The Company owns or possesses or has obtained all material
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to conduct its business as described in the
Registration Statement or, if later, the applicable Final Prospectus; and
the Company has conducted and is conducting its business so as to comply in
all material respects with all applicable laws, administrative regulations
and administrative and court decrees.
(g) There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending against
the Company (except as set forth in the Registration Statement or, if
later, the applicable Final Prospectus) which could reasonably be expected
to result in any material adverse change in the condition, financial or
otherwise, earnings, business affairs or business prospects of the Company
or which could reasonably be expected to interfere with or materially and
adversely affect the consummation of the transactions contemplated herein.
(h) The execution and delivery of this Agreement[,][and [the
[Trust] [Pooling and Servicing] Agreement [and the Indenture], the
incurrence of the obligations herein and therein set forth and the
consummation of the transactions contemplated herein and therein are within
the corporate power and authority of the Company and have been duly
authorized by the Company by all necessary corporate action; this Agreement
has been duly executed and delivered by the Company, and each such
instrument constitutes and will constitute a legal, valid and binding
obligation of the Company enforceable against the Company in accordance
with such instrument's terms. Neither the execution and delivery of this
Agreement, the incurrence of the obligations herein set forth, nor the
consummation of the transactions contemplated herein will conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, mortgage, pledge, charge, security interest or
encumbrance (collectively, "Lien") upon any property or assets of the
Company, pursuant to any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company is a party or by which
the Company may be bound, or to which any of the property or assets of the
Company is subject, which separately or in the aggregate are material, nor
will any such action result in any violation of the provisions of the
Certificate of Incorporation or Bylaws of the Company or of any law,
administrative regulation, or, to the best of such entity's knowledge, any
administrative or court decree.
(i) The issuance of the Certificates has been duly authorized by
the Company and, when such Certificates are executed and delivered in
accordance with the [Trust] [Pooling and Servicing] Agreement and sold to
the Underwriters pursuant to this Agreement, such Certificates will be
legally issued and will duly evidence all the beneficial ownership interest
in the related trust created by the [Trust] [Pooling and Servicing]
Agreement.
[((j)) The issuance of the Notes has been duly authorized by the
Trust and, when such Notes are executed and delivered in accordance with
the Indenture and sold to the Underwriters pursuant to this Agreement, such
Notes will be legally issued and will duly evidence all the interest in the
related trust created by the Indenture.]
([j][k]) The Securities[,] [and] the [Trust] [Pooling and
Servicing] Agreement and the Indenture will conform in all material
respects to the respective descriptions thereof contained in the applicable
Final Prospectus.
([k][l]) The [Trust] [Pooling and Servicing] Agreement will be
effective prior to the Closing Time to establish the Trust under and
pursuant to the laws of the jurisdiction specified in such [Trust] [Pooling
and Servicing] Agreement, and the acquisition of the Trust Assets by the
Trustee will be effective to vest with the holders of the Certificates the
entire beneficial ownership in the Trust Assets intended to be vested
thereby.
[([l][m]) The Trust's assignment of the Trust Assets to the
Indenture Trustee pursuant to the Indenture will vest in the Indenture
Trustee a first priority perfected security interest therein, subject to no
prior lien, mortgage, security interest, pledge, adverse claim, charge or
other encumbrance.]
([ ]) Each of the Company and the Trust is not, and will not as a
result of the offer and sale of the Securities as contemplated in this
Agreement become, an "investment company" or under the "control" of an
"investment company" (as such terms are defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act")), which would be
required to register under the Investment Company Act.
(__) The representations and warranties made by the Company in the
[Trust] [Pooling and Servicing] Agreement and in any Officers' Certificate
of the Company delivered pursuant to such [Trust] [Pooling and Servicing]
Agreement will be true and correct at the time made and at the Closing
Time.
(__) Any certificate signed by an officer of the Company and
delivered to you or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the
matters covered thereby.
(__) All approvals, authorizations, consents, orders or other
actions of any person, corporation or other organization, or of any
governmental body, quasi-governmental body or official (except with respect
to the state securities or Blue Sky laws of various jurisdictions),
required in connection with (i) the valid and proper deposit of the Trust
Assets pursuant to the [Trust] [Pooling and Servicing] Agreement and (ii)
the valid and proper authorization, issuance and sale of the Certificates
pursuant to such [Trust] [Pooling and Servicing] Agreement [and of the
Notes pursuant to the Indenture] and this Agreement, have been or will be
taken or obtained on or prior to the Closing Time.
(__) At or prior to the Closing Time, the Certificates shall be
rated __________ by ___________. At or prior to the Closing Time, the Notes
shall be rated the highest bond rating by ____________.
(__) Any taxes, fees and other governmental charges in connection
with the execution and delivery of this Agreement, [,][and] the [Trust]
[Pooling and Servicing] Agreement [the Indenture] and in connection with
the acquisition of the Trust Assets and the issuance of the Securities have
been paid or will be paid at or prior to the related Closing Time.
(__) [At the Closing Time, the Trustee under the [Trust] [Pooling
and Servicing] Agreement will have acquired all right, title and interest
in and to the Trust Assets] [Immediately prior to the Closing Time, the
Company (or one of its affiliates) will own the Trust Assets free and clear
of any Lien; the Company (or such affiliate) will have the corporate power
and authority to assign, deliver and deposit the Trust Assets owned by it
to and with the Trustee under the [Trust] [Pooling and Servicing]
Agreement, and will have duly authorized the assignment, delivery and
deposit of such Trust Assets to and with such Trustee by all necessary
corporate action. At the Closing Time, the Company (or one of its
affiliates) will have assigned and delivered to and transferred to the
applicable Trustee under the applicable [Trust] [Pooling and Servicing]
Agreement all its right, title and interest in and to the Trust Assets
applicable to such Certificates as of the Closing Time.]
SECTION 2. Sale and Delivery to the Underwriter[s]; Closing. The
[commitment of the Underwriter] [several commitments of the Underwriters]
to purchase Certificates shall be deemed to have been made on the basis of
the representations and warranties herein contained. Subject to the terms
and conditions herein set forth, the Company agrees to sell, or to cause
one of its affiliates to sell, to [the] [each] Underwriter, [severally and
not jointly,] and [the] [each] Underwriter, [severally and not jointly,]
agrees to purchase from the Company, at a purchase price equal to [(i)]
___% of the original stated amount of the [Class ___] Certificates
[[,][and] (ii) ______% of the original stated amount of the [Class ____]
Certificates] [[,][and] (iii) _____% of the original stated amount of the
[Class ___] Notes] [and (iv) _____% of the original stated amount of the
[Class ___] Notes] the respective original stated amount of [the] [each
class of such] Securities set forth on Schedule A hereto opposite the name
of such Underwriter[, plus any additional original stated amount of
Securities which such Underwriter may be obligated to purchase pursuant to
Section 10 hereof].
Delivery of, and payment of the purchase price for, the Securities
shall be made at the office of Skadden, Arps, Slate Xxxxxxx & Xxxx LLP,
Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as
shall be agreed upon by you and the Company, at 10:00 A.M. on _______, or
such other time as shall be agreed upon by you and the Company (such time
and date being referred to as the "Closing Time"). Payment shall be made in
immediately available funds, payable to or upon the order of the Company.
Such Certificates shall be in such denominations and registered in such
names as you may request in writing at least two business days prior to the
Closing Time. The Certificates will be made available for examination and
packaging by you in New York, New York not later than 10:00 A.M. on the
business day next preceding the Closing Time. The Certificates to be so
delivered will initially be represented by one or more Certificates
registered in the name of Cede & Co., the nominee of DTC. The interests of
beneficial owners of the Certificates will be represented by book entries
on the records of DTC and participating members thereof.
SECTION 3. Covenants of the Company. The Company covenants with
you[, and with each Underwriter participating in the offering of the
Certificates,] as follows:
(a) Immediately following the execution of this Agreement, the
Company will prepare a Final Prospectus setting forth the stated amount of
Securities covered thereby and the terms not otherwise specified in the
[Trust] [Pooling and Servicing] Agreement [and the Indenture] [, the names
of the Underwriters participating in the offering and the principal amount
of Securities which each severally has agreed to purchase, the names of any
Underwriters acting as co-managers with you in connection with the
offering,] the price at which the Securities are to be purchased by the
Underwriter[s] from the Company, the initial public offering price, the
selling concession and reallowance, if any, and such other information as
you and the Company deem appropriate in connection with the offering of the
Securities. The Company will promptly transmit copies of the Final
Prospectus to the Commission for filing pursuant to Rule 424 of the 1933
Act Regulations and will furnish to the Underwriters named therein as many
copies of the Final Prospectus as you shall reasonably request.
(b) The Company will notify you immediately, and in writing
confirm the notice, of (i) the receipt of any comments from the Commission
concerning the Registration Statement, (ii) any request by the Commission
for any amendment to the Registration Statement or any amendment or
supplement to the Final Prospectus or for any additional information, (iii)
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose, (iv) the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threat of any
proceeding for that purpose, and (v) the happening of any event which makes
untrue any statement of a material fact made in the Registration Statement
or in any Final Prospectus then required to be distributed or which
requires the making of a change in the Registration Statement or any such
Final Prospectus in order to make any material statement therein, in light
of the circumstances under which it was made, not misleading. The Company
will make every reasonable effort to prevent the issuance of any stop order
and, if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(c) The Company will give you notice of its intention to file any
amendment to the Registration Statement or any amendment or supplement to
the Final Prospectus, and will not file any such amendment or supplement
without furnishing a copy thereof to you and your counsel and obtaining
your consent to such filing, which consent shall not be unreasonably
withheld.
(d) The Company will deliver to you, as soon as practicable, as
many signed copies of the Registration Statement as originally filed and of
each amendment thereto, with signed consents and exhibits filed therewith,
and will also deliver to you such number of conformed copies of the
Registration Statement as originally filed and of each amendment thereto
(including consents and exhibits), as you may reasonably request.
(e) The Company will furnish to [each] [the] Underwriter, from
time to time during the period when the Final Prospectus is required to be
delivered under the 1933 Act, such number of copies of the Final Prospectus
(as amended or supplemented) as such Underwriter may reasonably request for
the purposes contemplated by the 1933 Act or the Securities Exchange Act of
1934 (the "1934 Act").
(f) If at any time when a prospectus relating to the Securities is
required to be delivered under the 1933 Act any event occurs as a result of
which the applicable Final Prospectus as then amended or supplemented would
include an untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend such Final Prospectus to comply with the
1933 Act, the Company, subject to subsection (c) above, promptly will
prepare and file with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance.
(g) The Company will endeavor, in cooperation with you and your
counsel, to qualify the Securities for offering and sale under the
applicable securities and Blue Sky laws of such jurisdictions as you may
reasonably designate, and will maintain such qualification in effect for a
period of not less than two years after the date hereof, and will cooperate
with you and your counsel to determine the eligibility of the Securities
for the investment by institutional investors in such jurisdictions. The
Company will, at your request or the request of your counsel, file such
statements and reports as may be required by the laws of each jurisdiction
in which the Securities have been qualified as above provided.
Notwithstanding the foregoing, no such qualification shall be required in
any jurisdiction where, as a result thereof, the Company would be subject
to general service of process, other than by reason of the offer and sale
of the Securities, to qualification as a foreign corporation or to taxation
as a foreign corporation doing business in such jurisdiction.
(h) The Company will make generally available to its security
holders and will deliver to you as soon as practicable an earnings
statement, conforming to the requirements of Section 11(a) of the 1933 Act,
covering a period of at least twelve months beginning after the effective
date of the Registration Statement. Compliance with Rule 158 of the 1933
Act Regulations shall satisfy the requirements of this paragraph.
(i) So long as any Securities are outstanding, the Company will
furnish to you as soon as practicable copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange by the Company and to the extent that such information
has been maintained in the ordinary course by the Company, such other
information as may reasonably be requested by you which in your judgment is
necessary or appropriate to the maintenance of a secondary market in the
Securities.
SECTION 4. Payment of Expenses. The Company will pay or cause to
be paid all expenses incident to the performance of the Company's
obligations under this Agreement[,] [and] the [Trust] [Pooling and
Servicing] Agreement [and the Indenture] including without limitation those
related to: (i) the filing of the Registration Statement with respect to
the Securities and all amendments thereto, including Commission filing
fees, (ii) the printing or photocopying and delivery to the Underwriter[s],
in such quantities as you may reasonably request, of copies of this
Agreement, (iii) the preparation, registration, issuance and delivery of
the Securities to the Underwriter[s], (iv) the fees and disbursements of
the Company's counsel and accountants, and of any such counsel rendering a
closing opinion with respect to matters of local law, (v) the qualification
of the Securities under securities and Blue Sky laws and the determination
of the eligibility of the Securities for investment in accordance with the
provisions of Section 3(g), including filing fees and the reasonable fees
and disbursements of counsel for the Underwriter[s] in connection therewith
and in connection with the preparation of any Blue Sky Survey and Legal
Investment Survey, (vi) the printing and delivery to the Underwriter[s], in
such quantities as you may reasonably request, of copies of the
Registration Statement with respect to the Securities and all amendments
thereto, of any preliminary prospectus and preliminary prospectus
supplement and of the Final Prospectus and all amendments and supplements
thereto, and of any Blue Sky Survey and Legal Investment Survey, (vii) the
printing or photocopying and delivery to the Underwriter[s], in such
quantities as you may reasonably request, of copies of the [Trust] [Pooling
and Servicing] Agreement [and the Indenture], (viii) the fees charged by
investment rating agencies for rating the Certificates, (ix) the fees and
expenses, if any, incurred in connection with the listing of Certificates
on any national securities exchange and (x) the fees and expenses of the
Trustee [and the Indenture Trustee] and [its] [their respective] counsel.
SECTION 5. Conditions of Underwriters' Obligations. The
obligations of the Underwriter[s] to purchase and pay for the Certificates
pursuant to this Agreement are subject to the accuracy in all material
respects, on and as of the date hereof, and the applicable Closing Time, of
the representations and warranties of the Company herein contained, to the
performance by the Company of its obligations hereunder, and to the
following further conditions:
(a) Subsequent to the execution of this Agreement, there shall not
have occurred or exist any of the following: (i) any change, or any
development involving a prospective change, in or affecting particularly
the business or properties of the Company which, in your judgment,
materially impairs the investment quality of the Securities; (ii) the
imposition of additional material governmental restrictions, not in force
and effect on the date of this Agreement, upon trading in securities
generally, or the establishment generally of minimum or maximum prices on
the New York Stock Exchange or the suspension of trading in securities
generally on such exchange, or the establishment of a general banking
moratorium by federal or New York authorities; (iii) any event which makes
untrue or incorrect in any material respect any statement or information
contained in the Registration Statement or the Final Prospectus, or which
is not reflected in the Registration Statement or the Final Prospectus but
should be reflected therein in order to make the statements or information
contained therein not misleading in any material respect; or (iv) an
outbreak of major hostilities or other national or international calamity
or any substantial change or acceleration in market, financial or economic
conditions as, in your judgment, affects adversely the marketability of the
Securities.
(b) At the applicable Closing Time you shall have received the
opinion or opinions, addressed to the Underwriter[s] and dated the Closing
Time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the
Company, or other counsel reasonably satisfactory to you [and counsel for
the Underwriters], which opinion or opinions shall be in form and substance
reasonably satisfactory to you [and counsel for the Underwriters]. In
rendering its opinion, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP and such
other counsel may rely, as to matters of fact, on certificates of
responsible officers of the Company, the Trustee [,the Indenture Trustee]
and public officials and upon such opinions of such other counsel as may be
acceptable to you.
(c) At the Closing Time there shall not have been, since the date
hereof or since the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, any material adverse
change in the condition, financial or otherwise, earnings, business
affairs, regulatory situation or business prospects of the Company whether
or not arising in the ordinary course of business, and you shall have
received, at the Closing Time, a certificate of the Chairman of the Board,
the President or any Vice President of the Company to the effect that there
has been no such material adverse change and to the effect that the other
representations and warranties of the Company contained in Section 1 are
true and correct with the same force and effect as though made at and as of
the Closing Time. (d) At the Closing Time, you and the Company shall have
received the favorable opinion of counsel for the Trustee, addressed to the
Underwriter[s] and the Company and dated the Closing Time, which opinion or
opinions shall be in form and substance reasonably satisfactory to you and
counsel for the Underwriter[s] and the Company.
[( ) At the Closing Time, you and the Company shall have received
the favorable opinion of counsel for the Indenture Trustee, addressed to
the Underwriter[s] and the Company and dated the Closing Time, which
opinion or opinions shall be in form and substance reasonably satisfactory
to you and counsel for the Underwriter[s] and the Company.]
(e) At the Closing Time, (i) counsel for the Underwriter[s] shall
have been furnished with such documents and opinions (which opinions shall
be limited to those specified in Sections 5(b) and 5(d)) as they may
reasonably require for the purpose of enabling them to pass upon the
Registration Statement, the Final Prospectus, the issuance and sale of the
Securities and related proceedings, or in order to evidence the accuracy of
any of the representations and warranties, or the fulfillment of any of the
conditions, herein contained[,] [and] (ii) [each Underwriter that is not an
affiliate of the Company shall have received the opinion or opinions,
addressed to such Underwriter and dated the Closing Time, of special
counsel to such Underwriter, which opinion or opinions shall be in the form
specified in the applicable Terms Agreement or, if not so specified, in
form and substance reasonably satisfactory to such Underwriter, and (iii)]
all proceedings taken by the Company in connection with the issuance and
sale of the Securities as contemplated in the [Trust] [Pooling and
Servicing] Agreement [and the Indenture] shall be reasonably satisfactory
in form and substance to you and counsel for the Underwriter[s].
(f) At the Closing Time you shall have received or be entitled to
rely upon any opinions of counsel to the Company supplied to the rating
agency or rating agencies rating the Securities relating to certain matters
with respect to the Securities. Any such opinions shall specify that the
Underwriter[s are] [is] entitled to rely upon any such opinions as if such
opinions were addressed to them.
(g) You shall have received evidence satisfactory to you that, on
or before the Closing Time, UCC-1 financing statements have been or are
being filed in the appropriate filing offices reflecting the transfer of
the interests of the Company in the Trust Assets and the proceeds thereof
to the Trust [and the grant of the security interest therein by the Trust
to the Indenture Trustee].
(h) The Certificates shall be rated _____ by ________________, and
no rating agency shall have placed the Certificates under surveillance or
review with possible negative implications. The Notes shall be rated
________ by __________, and no rating agency shall have placed the Notes
under surveillance or review with possible negative implications.
[((i)) At the Closing Time, you and the Company shall have
received the favorable opinion of counsel for the Servicer, addressed to
the Underwriter[s] and the Company and dated the Closing Time, which
opinion or opinions shall be in form and substance reasonably satisfactory
to you and counsel for the Underwriter[s] and the Company.]
If any condition in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by
you by notice to the Company at any time at or prior to the Closing Time,
and such termination shall be without liability of any party to any other
party except as provided in Section 4.
SECTION 6. Indemnification. (a) The Company agrees to indemnify
and hold harmless [each] [the] Underwriter and each person, if any, who
controls [any] [the] Underwriter within the meaning of Section 15 of the
1933 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever arising out of any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in any preliminary
prospectus, preliminary prospectus supplement or the Final
Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein in the light of
the circumstances under which they were made not misleading,
unless such untrue statement or omission or such alleged untrue
statement or omission was made in reliance upon and in conformity
with written information furnished to the Company by [any
Underwriter through] you expressly for use in the Registration
Statement (or any amendment thereto) in any preliminary
prospectus, preliminary prospectus supplement or the Final
Prospectus (or any amendment or supplement thereto);
(ii) against any and all loss, liability, claim,
damage and expense whatsoever to the extent of the aggregate
amount paid in settlement of any litigation, investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based, in each case, upon
any untrue statement or omission described in (i) above, if such
settlement is effected with the written consent of the Company;
and
(iii) against any and all expense whatsoever
(including the reasonable fees and disbursements of counsel chosen
by you) reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding
by any governmental agency or body, commenced or threatened or any
claim whatsoever based upon any untrue statement or omission, or
any alleged untrue statement or omission described in (i) above,
to the extent that any such expense is not paid under (i) or (ii)
above.
(b) [Each] [The] Underwriter [severally] agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed
the Registration Statement or any amendment thereto, and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933
Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section 6,
but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus, preliminary prospectus
supplement or the Final Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with written information furnished to
the Company by such Underwriter expressly for use in the Registration
Statement (or any amendment thereto) or in any preliminary prospectus,
preliminary prospectus supplement or the Final Prospectus (or any amendment
or supplement thereto).
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of
the commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under subsection (a) or (b) above. In case
any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
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 will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action.
SECTION 7. Contribution. In order to provide for just and
equitable contribution in circumstances in which an indemnity provided for
in subsections (a) or (b) of Section 6 is for any reason held to be
unenforceable by the indemnified parties although applicable in accordance
with its terms, the Company, on the one hand, and the Underwriter[s], on
the other, shall contribute to the aggregate losses, liabilities, claims,
damages and expense of the nature contemplated by such subsection incurred
by the Company and [one or more of] the Underwriter[s], (i) in such
proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriter[s] on the other from the
offering of the Certificates or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above and also the relative fault of the Company on the one hand and
the Underwriter[s] on the other in connection with the statements or
omissions that resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the
Underwriter[s] on the other shall be deemed to be in the same proportion as
the total proceeds from the offering of the Certificates (before deducting
expenses) received by the Company bear to the total compensation and profit
(before deducting expenses) received or realized by the Underwriter[s] from
the purchase and resale, or underwriting, of the Certificates. 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 or the Underwriter[s] and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent
such untrue or alleged untrue statement or omission or alleged omission.
The Company and the Underwriter[s] agree that it would not be just and
equitable if the contributions pursuant to this Section 7 were to be
determined by pro rata allocation [(even if the Underwriters were treated
as one entity for such purpose)] or by any other method of allocation that
does not take account of the equitable considerations referred to in the
first sentence of this Section 7. The amount paid by an indemnified party
as a result of the losses, liabilities, claims, damages, or expenses
referred to in the first sentence of this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending against any action or
claim which is the subject of this Section 7. Notwithstanding any other
provision of this Section 7, [no] [the] Underwriter shall [not] be
obligated to make contributions hereunder that in the aggregate exceed the
total public offering price of the Certificates purchased by such
Underwriter, less the aggregate amount of any damages that such Underwriter
has been required to pay in respect of the same or substantially similar
claim, and no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
[The Underwriters' obligations in this Section 7 to contribute shall be
several in proportion to their respective underwriting obligations and not
joint.] For purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act shall have the
same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement
or any amendment thereto, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act shall have the same rights
to contribution as the Company.
SECTION 8. Representations, Warranties, and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto or as contemplated hereby, shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of [any] [the] Underwriter or controlling person thereof, and shall
survive delivery of any Certificates to the Underwriters.
SECTION 9. Termination of Agreement. (a) You may terminate this
Agreement by notice to the Company, at any time at or prior to the Closing
Time, (i) if there has been, since the respective dates as of which
information is given in the Registration Statement or Final Prospectus, any
material adverse change in the condition, financial or otherwise, earnings,
business affairs, regulatory situation or business prospects of the
Company, whether or not arising in the ordinary course of business, (ii) if
there has occurred any outbreak of major hostilities, acts of terrorism or
domestic disturbance within the any of the 50 states of the United States
of America or other national or international calamity or any substantial
change or acceleration in market, financial or economic conditions, the
effect of which is such as to make it, in your reasonable judgment,
impracticable to market the Securities or enforce contracts for the sale of
the Securities or (iii) if trading generally on either the New York Stock
Exchange or the American Stock Exchange has been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices
for securities have been required, by either of said exchanges or by order
of the Commission or any other governmental authority, or if a banking
moratorium has been declared by either federal or state authorities.
(b) This Agreement may be terminated by you in accordance with
Section 5 hereof.
(c) In the event of any such termination, (i) the covenants set
forth in Section 3 with respect to any offering of Securities shall remain
in effect so long as [any] [the] Underwriter owns any Securities and (ii)
the covenant set forth in Section 3(h), the provisions of Section 4, the
indemnity agreement set forth in Section 6, and the provisions of Sections
7 and 13 shall remain in effect forever.
SECTION 10. [Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at the Closing Time to purchase the
Securities which it or they are obligated to purchase hereunder (the
"Defaulted Securities"), you shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any Underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth. If, however, you have not completed such
arrangements within such 24-hour period, then:
(a) if the aggregate original stated amount of Defaulted
Securities does not exceed 10% of the aggregate original stated amount of
the Securities to be purchased pursuant to this Agreement, the
nondefaulting Underwriters named herein shall be obligated to purchase the
full amount thereof in the proportions that their respective underwriting
obligations thereunder bear to the underwriting obligations of all
nondefaulting Underwriters; and
(b) if the aggregate original stated amount of the Defaulted
Securities exceeds 10% of the aggregate original stated amount of the
Securities to be pursuant to this Agreement, this Agreement shall terminate
without any liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 10 and nothing in this
Agreement shall relieve any defaulting Underwriter from liability in
respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either you or the Company shall have the
right to postpone the Closing Time for a period of time not exceeding seven
days in order to effect any required changes in the Registration Statement
or in any other documents or arrangements.]
[RESERVED]
SECTION 11. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given
if mailed or transmitted by any standard form of written telecommunication.
Notices to the Company shall be directed to it at [ ], 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attn: _______, and notices to you shall be directed
to Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn:
____________.
SECTION 12. Parties. This Agreement shall inure to the benefit of
and be binding upon the Underwriter[s] named herein and the Company and
their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto, and their respective successors
and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or
any provisions herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of
the parties hereto and thereto and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from [any] [the] Underwriter shall
be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT AND EACH TERMS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
If the foregoing is in accordance with your understanding hereof, please
execute this Agreement in the appropriate space below and return to the
undersigned, whereupon this instrument along with any counterpart will
become a binding agreement among the Company and you in accordance with its
terms.
Very truly yours,
GS Mortgage Securities Corp.
By:
--------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX, SACHS & CO.
[Acting on behalf of themselves
and as Representative of the
several Underwriters]
By:____________________________
Name:
Title:
SCHEDULE A
Principal Amount of
Underwriter [Class ___] Certificates
------------------------------------------------------
Xxxxxxx, Xxxxx & Co.................................. $
---------------------------
Total $
Principal Amount of
Underwriter [Class ___] Certificates
------------------------------------------------------
Xxxxxxx, Sachs & Co.................................. $
---------------------------
Total................................................ $
Principal Amount of
Underwriter [Class ___] Certificates
------------------------------------------------------
Xxxxxxx, Xxxxx & Co.................................. $
---------------------------
Total................................................ $
Principal Amount of
Underwriter [Class ___] Certificates
------------------------------------------------------
Xxxxxxx, Sachs & Co.................................. $
---------------------------
Total................................................ $
