GE-WMC Mortgage Securities, L.L.C.
PASS-THROUGH CERTIFICATES
(Issuable in Series)
UNDERWRITING AGREEMENT
[REPRESENTATIVE] New York, New York
[ADDRESS] [_____], 20[__]
Ladies and Gentlemen:
GE-WMC Mortgage Securities, L.L.C., a limited liability company
organized and existing under the laws of the State of Delaware (the "COMPANY"),
may offer for sale to you and each underwriter named in the related Terms
Agreement (as defined herein) (collectively, the "UNDERWRITERS") from time to
time its Pass-Through Certificates evidencing interests in a pool of mortgage
loans (the "CERTIFICATES"). The Certificates may be issued in various series,
and within each series, in one or more classes, in one or more offerings on
terms determined at the time of sale (each such series, a "SERIES" and each such
class, a "CLASS"). Each Series of the Certificates will be issued under a
separate Pooling and Servicing Agreement (each, a "POOLING AND SERVICING
AGREEMENT") to be dated as of the applicable cut-off date (each, a "CUT-OFF
DATE") among the Company, [SEVICER OR MASTER SERVICER, ANY SPECIAL SERVICER AND
THE TRUSTEE]. Capitalized terms used but not defined herein shall have the
meanings given to them in the related Pooling and Servicing Agreement.
The Certificates issued under each Pooling and Servicing Agreement will
represent the entire beneficial ownership interest in a trust fund (the "TRUST
FUND") established by such Pooling and Servicing Agreement. The assets of each
Trust Fund will consist primarily of a pool of conventional,
[fixed-][adjustable-] rate, [first][second][junior] lien, one- to four-family
residential mortgage loans (the "MORTGAGE LOANS") having the original terms to
maturity specified in the related Terms Agreement referred to hereinbelow.
Pursuant to the Mortgage Loan Purchase Agreement, dated the date of this
Agreement (the "MORTGAGE LOAN PURCHASE AGREEMENT") between [SELLER], as seller
(the "SELLER") and the Company, the Seller will sell to the Company all of its
right, title and interest in and to the related Mortgage Loans, including the
scheduled principal balances of such Mortgage Loans as of the applicable Cut-off
Date and interest due after such Cut-off Date. Pursuant to the related Pooling
and Servicing Agreement, the Company will sell to a Trust Fund all of its right,
title and interest in and to the related Mortgage Loans, including the scheduled
principal balances of such Mortgage Loans as of the applicable Cut-off Date and
interest due after such Cut-off Date. If so specified in the related Terms
Agreement, one or more elections may be made to treat the assets of each Trust
Fund as a real estate mortgage investment conduit (each, a "REMIC") for federal
income tax purposes.
The Certificates are more fully described in a Registration Statement
which the Company has furnished to the Underwriters.
Whenever the Company determines to make an offering of Certificates
(each, a "CERTIFICATE OFFERING") pursuant to this Agreement through you, it will
enter into an agreement with you which shall be substantially in the form of
Exhibit A hereto (the "TERMS AGREEMENT") providing for the sale of specified
Classes of Offered Certificates (as defined below) to, and the purchase and
public offering thereof by, you acting as a representative of the several
Underwriters (in such capacity you are hereinafter referred to as the
"REPRESENTATIVE"), and the other Underwriters If only one Underwriter is named
in the Terms Agreement, the terms "Underwriter," "Underwriters" and
"Representative" shall refer to that named Underwriter. Each such Certificate
Offering which the Company elects to make pursuant to this Agreement shall be
governed by this Agreement, as supplemented by the related Terms Agreement. Each
Terms Agreement shall specify, among other things, the Classes of Certificates
to be purchased by the Underwriters (the "OFFERED CERTIFICATES"), the principal
balance or balances of the Offered Certificates, each subject to any stated
variance, the names of the Underwriters participating in such Certificate
Offering and the price or prices at which such Offered Certificates are to be
purchased by the Underwriters from the Company.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to and agrees with the Underwriters, as of the date of the related Terms
Agreement, that:
(a) The registration statement specified in the related Terms
Agreement, on Form S-3, including a prospectus, has been filed with the
Securities and Exchange Commission (the "COMMISSION") for the registration under
the Securities Act of 1933, as amended (the "ACT"), of pass-through certificates
issuable in series, which registration statement has been declared effective by
the Commission. Such registration statement, as amended to the date of the
related Terms Agreement, including any documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act which were filed under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), on or before
the effective date of the Registration Statement, is hereinafter called the
"REGISTRATION STATEMENT," and such prospectus, as such prospectus is
supplemented by a prospectus supplement relating to the Offered Certificates of
the related Series, each in the form first filed after the date of the related
Terms Agreement pursuant to Rule 424(b) under the Act, including any documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act
which were filed under the Exchange Act on or before the date of such prospectus
supplement (other than any such incorporated documents that relate to
[Collateral Term Sheets] (as defined herein)) (such prospectus supplement,
including such incorporated documents (other than those that relate to
[Collateral Term Sheets]), in the form first filed after the date of the related
Terms Agreement pursuant to Rule 424(b), is hereinafter called the "PROSPECTUS
SUPPLEMENT"), is hereinafter called the "Prospectus". Any reference herein to
the terms "amend," "amendment" or "supplement" with respect to the Registration
Statement, the Prospectus or the Prospectus Supplement shall be deemed to refer
to and include the filing of any document under the Exchange Act after the
effective date of the Registration Statement or the issue date of the Prospectus
or Prospectus Supplement, as the case may be, deemed to be incorporated therein
by reference pursuant to Item 12 of Form S-3 under the Act.
(b) The related Registration Statement, at the time it became
effective, and the prospectus contained therein, and any amendments thereof and
supplements thereto filed prior to the date of the related Terms Agreement,
conformed in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder; on the date of the related Terms
Agreement and on each Closing Date (as defined in Section 3 below), the related
Registration Statement and the related Prospectus, and any amendments thereof
and supplements thereto, will conform in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder; such Registration Statement, at the time it became effective, did
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; such Prospectus, on the date of any filing pursuant to Rule
424(b) and on each Closing Date, will not include any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they are made, not
misleading; PROVIDED, HOWEVER, that the Company makes no representations or
warranties as to the information contained in or omitted from (A) such
Registration Statement or such Prospectus (or any supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by the Representative or any Underwriter specifically for use in the
preparation thereof, or (B) any Current Report (as defined in Section 5(b)
below), other than with respect to any Mortgage Pool Error, or in any amendment
thereof or supplement thereto, incorporated by reference in such Registration
Statement or such Prospectus (or any amendment thereof or supplement thereto).
(c) The Certificates of the related Series will conform to the
description thereof contained in the related Prospectus; will each, if rated at
the time of issuance in one of the two highest rating categories by a nationally
recognized statistical rating organization, be when issued a "mortgage related
security" as such term is defined in Section 3(a)(41) of the Exchange Act; and
will each on the related Closing Date be duly and validly authorized, and, when
validly executed, countersigned, issued and delivered in accordance with the
related Pooling and Servicing Agreement and sold to you as provided herein and
in the related Terms Agreement, will each be validly issued and outstanding and
entitled to the benefits of the Pooling and Servicing Agreement.
(d) Neither the issuance nor sale of the Certificates of the related
Series nor the consummation of any other of the transactions herein
contemplated, nor the fulfillment of the terms hereof or of the related Terms
Agreement, will conflict with any statute, order or regulation applicable to the
Company of any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Company or with any organizational document of
the Company or any instrument or any agreement under which the Company is bound
or to which it is a party.
(e) This Agreement and the related Terms Agreement have been duly
authorized, executed and delivered by the Company.
(f) At or prior to the related Closing Date, the Company will have
entered into the related Pooling and Servicing Agreement and, assuming the due
authorization, execution and delivery thereof by the Trustee, such Pooling and
Servicing Agreement (on such Closing Date) will constitute the valid and binding
agreement of the Company enforceable in accordance with its terms, subject as to
enforceability, to bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights and to general principles of equity (regardless of
whether the enforceability of such Pooling and Servicing Agreement is considered
in a proceeding in equity or at law).
2. PURCHASE AND SALE. Subject to the execution of the Terms Agreement
for a particular Certificate Offering and subject to the terms and conditions
and in reliance upon the representations and warranties set forth in this
Agreement and such Terms Agreement, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, all, but not less than all, of the related Offered
Certificates at the purchase price therefor set forth in such Terms Agreement
(the "PURCHASE Price").
The parties hereto agree that settlement for all securities pursuant to
this Agreement and the related Terms Agreement shall take place on the terms set
forth herein and therein and not as set forth in Rule 15c6-1(a) under the
Exchange Act.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Offered
Certificates of a Series shall be made at the offices of Xxxxxxx Xxxxxxxx & Xxxx
LLP, New York, New York, at 10:00 A.M., New York City time, on the Closing Date
specified in the related Terms Agreement, which date and time may be postponed
by agreement between the Representative and the Company (such date and time
being herein called the "CLOSING DATE"). Delivery of such Offered Certificates
shall be made to the Representative for the accounts of the several Underwriters
against payment by each Underwriter of the applicable Purchase Price thereof to
or upon the order of the Company by wire transfer in federal or other
immediately available funds or by check payable in federal funds, as the Company
shall specify no later than five full business days prior to such Closing Date.
Unless delivery is made through the facilities of The Depository Trust Company,
the Offered Certificates shall be registered in such names and in such
authorized denominations as the Underwriters may request not less than two full
business days in advance of each Closing Date.
The Company agrees to notify the Representative at least two business
days before each Closing Date of the exact principal balance evidenced by the
Offered Certificates and to have such Offered Certificates available for
inspection, checking and packaging in New York, New York, no later than 12:00
noon on the business day prior to such Closing Date.
4. OFFERING BY THE UNDERWRITERS. It is understood that the Underwriters
propose to offer the Offered Certificates of the related Series for sale to the
public as set forth in the Prospectus.
5. AGREEMENTS. The Company agrees with the Underwriters that:
(a) The Company will cause the Prospectus as supplemented by a
Prospectus Supplement relating to the Offered Certificates to be transmitted to
the Commission for filing pursuant to Rule 424 under the Act by means reasonably
calculated to result in filing with the Commission pursuant to such rule, and
prior to the termination of the Certificate Offering to which such Prospectus
relates also will promptly advise the Representative (i) when any amendment to
the related Registration Statement specifically relating to such Offered
Certificates shall have become effective or any further supplement to such
Prospectus has been filed, (ii) of any request by the Commission for any
amendment of such Registration Statement or Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of such Registration Statement or the institution
or threatening of any proceeding for that purpose and (iv) of the receipt by the
Company of any written notification with respect to the suspension of the
qualification of such Offered Certificates for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
(b) The Company will cause any Computational Materials, Collateral Term
Sheets, Series Term Sheets and any Structural Term Sheets (each as defined in
Section 8 below) with respect to the Offered Certificates of a Series that are
delivered by the Representative on behalf of the Underwriters to the Company
pursuant to Section 8 to be filed with the Commission on a Current Report on
Form 8-K (a "CURRENT REPORT") pursuant to Rule 13a-11 under the Exchange Act.
Any Computational Materials, Series Term Sheets and Structural Term Sheets shall
be filed as soon as reasonably practicable after the date of the date of the
related Terms Agreement, but in any event, not later than 11:00 a.m. New York
time on the date on which the related Prospectus is made available to the
Underwriters and is filed with the Commission pursuant to Rule 424(b) of the Act
or as is otherwise required by the terms of the letters referred to in Section 8
hereof. The Company will cause one Collateral Term Sheet (as defined in Section
8 below) with respect to the Offered Certificates of a Series that is delivered
by the Representative on behalf of the Underwriters to the Company in accordance
with the provisions of Section 8 to be filed with the Commission on a Current
Report pursuant to Rule 13a-11 under the Exchange Act on the business day
immediately following the day on which such Collateral Term Sheet is delivered
to counsel for the Company by the Representative prior to 10:30 a.m. In
addition, if at any time prior to the availability of the related Prospectus
Supplement any Underwriter has delivered to any prospective investor a
subsequent Collateral Term Sheet that reflects, in the reasonable judgment of
the Representative on behalf of the Underwriters and the Company, a material
change in the characteristics of the Mortgage Loans for the related Series from
those on which a Collateral Term Sheet with respect to the related Series
previously filed with the Commission was based, the Company will cause any such
Collateral Term Sheet that is delivered by the Representative to the Company in
accordance with the provisions of Section 8 to be filed with the Commission on a
Current Report on the business day immediately following the day on which such
Collateral Term Sheet is delivered to counsel for the Company by the
Representative prior to 10:30 a.m. In each case, the Company will promptly
advise the Representative when such Current Report has been so filed and will
furnish to the Representative a file stamped copy of the transmittal letter
accompanying such filing. Each such Current Report shall be incorporated by
reference in the related Prospectus and the related Registration Statement.
Notwithstanding the five preceding sentences, the Company shall have no
obligation to file any materials provided by the Representative pursuant to
Sections 8 which (i) in the reasonable determination of the Company after making
reasonable efforts to consult with the Representative, are not required to be
filed pursuant to the Xxxxxx Letters or the PSA Letter (each as defined in
Section 8 below), or (ii) contain erroneous information or contain any untrue
statement of a material fact or, when read in conjunction with the related
Prospectus and related Prospectus Supplement, omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; it being understood, however, that the Company shall have no
obligation to review or pass upon the accuracy or adequacy of, or to correct,
any ABS Term Sheets (as defined in Section 8) provided by the Representative to
the Company pursuant to Section 8 hereof. The Company shall give notice to the
Representative of its determination not to file any ABS Term Sheets pursuant to
clause (i) of the preceding sentence.
(c) If, at any time when a Prospectus relating to the Offered
Certificates of a Series is required to be delivered under the Act, any event
occurs as a result of which the related Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or if it shall be
necessary at any time to amend or supplement the Prospectus to comply with the
Act or the rules thereunder, the Company promptly will notify the Representative
of such event and 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; PROVIDED, HOWEVER, that the Company will not be
required to file any such amendment or supplement with respect to any ABS Term
Sheets incorporated by reference in the related Prospectus other than any
amendments or supplements of such ABS Term Sheets that are furnished to the
Company by Representative on behalf of the Underwriters pursuant to Section 8(e)
hereof which are required to be filed in accordance therewith.
(d) The Company will furnish to each Underwriter and counsel for the
Underwriters, without charge, as many signed copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of a prospectus
by an Underwriter or dealer may be required by the Act, as many copies of the
related Prospectus and any supplements thereto (other than exhibits to the
related Current Report) as the Underwriters may reasonably request.
(e) The Company will furnish such information, execute such instruments
and take such actions as may be reasonably requested by the Representative to
qualify the Offered Certificates of a Series for sale under the laws of such
jurisdictions as the Representative may designate, to maintain such
qualifications in effect so long as required for the initial distribution of
such Offered Certificates; PROVIDED, HOWEVER, that the Company shall not be
required to qualify to do business in any jurisdiction where it is not qualified
on the date of the related Terms Agreement or to take any action which would
subject it to general or unlimited service of process or to corporate or
franchise taxation in any jurisdiction in which it is not, on the date of the
related Terms Agreement, subject to such service of process or to such corporate
or franchise taxation.
(f) If the transactions contemplated hereby and by the related Terms
Agreement shall be consummated, the Company shall be responsible for the payment
of any costs and expenses for which details are submitted, in connection with
the performance of its obligations under this Agreement and the related Terms
Agreement, including, without limitation, (a) the cost and expenses of printing
or otherwise reproducing the related Registration Statement or Prospectus or
Prospectus Supplement, this Agreement, the related Terms Agreement, the related
Pooling and Servicing Agreement and the Offered Certificates, and (b) the cost
of delivering the related Offered Certificates to the office of the
Representative, insured to the satisfaction of the Representative. If the
transactions contemplated by this Agreement are not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or to comply with any provision hereof
other than by reason of default by the Underwriters, the Company will reimburse
the Underwriters upon demand for all out-of pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
the Underwriters in connection with the proposed purchase, sale and offering of
the Offered Certificates. Except as provided in this paragraph (g) and in
Section 7 hereof, each Underwriter will pay all its own costs and expenses,
including the fees of [XxXxx Xxxxxx, LLP], counsel for the Underwriters,
transfer taxes on resale of any Offered Certificates by it, advertising expenses
connected with any offers that it may make, the fees of [KPMG LLP] with respect
to its comfort letters furnished pursuant to Section 6(h) hereof relating to
numerical information included in the Prospectus Supplement under the headings
"Yield and Prepayment Considerations" [relating to decrement tables and other
yield tables] and "Description of the Certificates- Principal Distributions"
[relating to PAC tables, TAC Tables etc.] the fees of any firm of public
accountants selected by the Representative with respect to their letter
furnished pursuant to Section 8(c) of this Agreement and any other costs and
expenses specified in the related Terms Agreement as "ADDITIONAL EXPENSES").
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters to purchase the Offered Certificates of any Series shall be
subject to the accuracy in all material respects of the representations and
warranties on the part of the Company contained in this Agreement, as
supplemented by the related Terms Agreement, as of the respective dates thereof
and the related Closing Date, to the accuracy of the statements of the Company
made in any applicable officers' certificates pursuant to the provisions hereof,
to the performance by the Company of its obligations under this Agreement and
such Terms Agreement and to the following additional conditions applicable to
the related Certificate Offering:
(a) No stop order suspending the effectiveness of the related
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted, or to the knowledge of the Company,
threatened by the Commission.
(b) Xxxxxxx Xxxxxxxx & Wood LLP, counsel for the Company, shall have
furnished to the Representative on behalf of the Underwriters an opinion, dated
the related Closing Date, to the effect that:
(i) This Agreement, the related Terms Agreement and the
related Pooling and Servicing Agreement each constitutes a legal, valid
and binding agreement of the Company, enforceable against the Company
in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium,
receivership or other laws relating to or affecting creditors' rights
generally, and to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity), and except
that the enforcement of rights with respect to indemnification and
contribution obligations and provisions (a) purporting to waive or
limit rights to trial by jury, oral amendments to written agreements or
rights of set off or (b) relating to submission to jurisdiction, venue
of service or process, may be limited by applicable law or
considerations of public policy;
(ii) The Certificates have been duly authorized by the Company
and, when the Certificates have been duly executed, countersigned and
delivered by the Trustee in the manner contemplated in the related
Pooling and Servicing Agreement and paid for by the Underwriters
pursuant to this Agreement and the related Terms Agreement, the
Certificates will be validly issued and outstanding and entitled to the
benefits provided by the related Pooling and Servicing Agreement;
(iii) The related Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as
amended;
(iv) The Trust Fund (as defined in the related Pooling and
Servicing Agreement) is not required to be registered under the
Investment Company Act of 1940, as amended;
(v) The related Prospectus and Prospectus Supplement, as of
the dates thereof (in each case, with the exception of any information
incorporated by reference therein and any numerical, financial,
statistical and quantitative data included therein, as to which such
counsel need express no view), appeared on their respective faces to be
appropriately responsive in all material respects to the requirements
of the Act, and the rules and regulations thereunder applicable to such
documents as of the relevant date;
(vi) The statements (a) in the related Prospectus under the
headings "Federal Income Tax Consequences" and "ERISA Considerations"
and (b) in the Prospectus Supplement under the headings (i) "Summary of
Terms--Federal Income Tax Consequences," (ii) "Summary of Terms--ERISA
Considerations," (iii) "Federal Income Tax Consequences" and (iv)
"ERISA Considerations," insofar as such statements relate to the
Certificates and purport to summarize matters of federal law or legal
conclusions with respect thereto, have been reviewed by such counsel
and are correct in all material respects; and
(vii) Assuming that the Certificates are rated in one of the
two highest rating categories by a nationally recognized statistical
rating organization, each such Certificate upon issuance will be a
"mortgage related security" as such term is defined in Section 3(a)(41)
of the Exchange Act.
(c) In addition, Xxxxxxx Xxxxxxxx & Xxxx LLP, counsel for the Company,
shall have stated to the Underwriters that nothing has come to such counsel's
attention in the course of its review of the related Prospectus which causes
such counsel to believe that such Prospectus, as of the date of the related
Prospectus Supplement or the Closing Date, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; PROVIDED, HOWEVER, that such counsel
need express no view as to any information incorporated by reference in the
related Prospectus or as to the adequacy or accuracy of the financial,
numerical, statistical or quantitative information included in such Prospectus.
(d) Xxxxxxx Xxxxxxxx & Wood LLP, counsel for the Company, shall have
furnished to the Company and the Representative on behalf of the Underwriters an
opinion, dated the related Closing Date, in form and substance satisfactory to
the Company and the Representatives, relating to certain insolvency and
bankruptcy matters and federal income tax matters as may be required to obtain
the Required Ratings (as defined below)
(e) In-house Counsel for the Company shall have furnished to the
Representative on behalf of the Underwriters an opinion, dated the related
Closing Date, to the effect that:
(i) The Company has been duly formed and is validly existing
as a limited liability company in good standing under the laws of the
State of Delaware, with power to own its properties, to conduct its
business as described in the related Prospectus and to enter into and
perform its obligations under this Agreement, the related Terms
Agreement, the related Pooling and Servicing Agreement and the
Certificates of the related Series;
(ii) The Company has full power and authority to sell the
related Mortgage Loans as contemplated herein and in the related
Pooling and Servicing Agreement;
(iii) This Agreement, the related Terms Agreement and the
related Pooling and Servicing Agreement have been duly authorized,
executed and delivered by the Company under the law of the State of
Delaware;
(iv) The issuance and sale of the Offered Certificates have
been duly authorized by the Company;
(v) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by the
Company of the transactions contemplated herein or in the related
Pooling and Servicing Agreement, except such as may be required under
the blue sky laws of any jurisdiction and such other approvals as have
been obtained;
(vi) Neither the issuance of the Certificates of the related
Series nor delivery of the related Offered Certificates, nor the
consummation of any other of the transactions contemplated in this
Agreement, the related Terms Agreement or the related Pooling and
Servicing Agreement, nor the fulfillment of the terms of the related
Certificates, the related Pooling and Servicing Agreement, this
Agreement or the related Terms Agreement will conflict with or violate
any term or provision of the articles of formation or by-laws of the
Company or, to the best of such counsel's knowledge, any statute, order
or regulation applicable to the Company of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Company and will not conflict with, result in a breach or violation or
the acceleration of or constitute a default under the terms of any
indenture or other agreement or instrument known to such counsel to
which the Company is a party or by which it is bound; and
(vii) There are no actions, proceedings or investigations
pending or, to the best knowledge of such counsel, threatened before
any court, administrative agency or other tribunal (i) asserting the
invalidity of this Agreement, the related Terms Agreement, the related
Pooling and Servicing Agreement or the related Certificates, (ii)
seeking to prevent the issuance of the Certificates of the related
Series or the consummation by the Company of any of the transactions
contemplated by this Agreement, such Terms Agreement or the related
Pooling and Servicing Agreement, or (iii) which might materially and
adversely affect the performance by the Company of its obligations
under, or the validity or enforceability of, this Agreement, such Terms
Agreement, the related Pooling and Servicing Agreement or the related
Certificates.
In rendering his or her opinion such counsel may rely as to matters of
fact, to the extent deemed proper and as stated therein, on certificates of
responsible officers of the Company or public officials. In addition, such
opinion may be qualified as an opinion only on the laws of the State of
Delaware.
(f) The Underwriters shall have received from [XxXxx Xxxxxx LLP],
counsel for the Underwriters, such opinion or opinions, dated the related
Closing Date, with respect to the issuance and sale of the Certificates of the
related Series, the related Registration Statement, the related Prospectus and
such other related matters as the Underwriters may reasonably require, and the
Company shall have furnished to such counsel such documents as the Underwriters
may reasonably request for the purpose of enabling them to pass upon such
matters.
(g) The Company shall have furnished to the Representative or counsel
to the Representative a certificate of the Company, signed by the President, any
Vice President or the principal financial or accounting officer of the Company,
dated the related Closing Date, to the effect that the signer of such
certificate has carefully examined the related Registration Statement (excluding
any Current Reports and any other documents incorporated by reference therein)
and the related Prospectus (excluding any related Current Report), this
Agreement and the related Terms Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the related Closing Date with the same effect as if made on such
Closing Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to such Closing Date;
(ii) no stop order suspending the effectiveness of such
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to their knowledge, threatened; and
(iii) nothing has come to their attention that would lead them
to believe that such Registration Statement (excluding any Current
Report) contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, that the related Prospectus
(excluding any related Current Report) contains any untrue statement of
a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(h) Counsel for the Trustee, shall have furnished to the Underwriters
an opinion, dated the related Closing Date, to the effect that:
(i) the Trustee has been duly incorporated and is validly
existing as a corporation or banking institution in good standing under
the laws of the place of its formation with power to own its properties
and conduct its business as presently conducted by it, to conduct
business as a trustee and to enter into and perform its obligations
under the related Pooling and Servicing Agreement;
(ii) the related Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Trustee and constitutes the
legal, valid and binding agreement of the Trustee enforceable against
the Trustee in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyance, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and to
judicial discretion, and general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law);
(iii) the Trustee has duly accepted its appointment as trustee
under the Pooling and Servicing Agreement;
(iv) no consent, approval, authorization or order of any
[___________] or federal court or government agency or body is required
on the part of the Trustee for the consummation of the transactions
contemplated in the Pooling and Servicing Agreement, except such as may
be required under any federal or state securities law; and
(v) the performance on the part of the Trustee of any of the
transactions contemplated in the Pooling and Servicing Agreement does
not conflict with or result in a breach or violation of any term or
provision of, or constitute a default under, the Articles of
Organization, as amended, or By-Laws of the Trustee, or any
[__________] or federal statute or regulation applicable to the
Trustee, or to such counsel's knowledge, any indenture or other
agreement or instrument to which the Trustee is a party or by which it
is bound, or, to such counsel's knowledge, any order of any state or
federal court, regulatory body, administrative agency or governmental
body having jurisdiction over the Trustee.
In addition, such counsel shall furnish to the Representative on behalf
of the Underwriters such opinions as to the treatment of the Trust Fund for
purposes of [__________] tax law as are reasonably satisfactory to the
Representative.
(i) The Representative shall have received letters dated on or before
the date on which the Prospectus Supplement is dated and printed, in form and
substance acceptable to the Representative and its counsel, prepared by [KPMG
LLP] (a) regarding certain numerical information contained or incorporated by
reference in the Prospectus Supplement and (b) relating to certain agreed upon
procedures as requested by the Underwriters relating to the Mortgage Loans.
(j) The Offered Certificates of the related Series shall have received
the ratings specified in the related Terms Agreement (the "REQUIRED RATINGS").
(k) Prior to the related Closing Date, the Company shall have furnished
to the Underwriters such further information, certificates and documents as the
Underwriters may reasonably request.
(l) If any Certificates of the related Series are to be sold to any
other underwriter and/or offered in reliance upon an exemption from the
registration requirements of the Act, the sale at or prior to the related
Closing Date of such Certificates to the purchaser thereof shall have occurred.
(m) Subsequent to the date of the related Terms Agreement, there shall
not have been any material adverse change in the business or properties of the
Company which in the Representative's reasonable judgment, after consultation
with the Company, materially impairs the investment quality of the Offered
Certificates of the related Series so as to make it impractical or inadvisable
to proceed with the public offering or the delivery of such Offered Certificates
as contemplated by the related Prospectus.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects with respect to the particular Offered
Certificates of a Series when and as provided in this Agreement and the related
Terms Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement and the related Terms Agreement shall not be in all
material respects reasonably satisfactory in form and substance to the
Representative and its counsel, this Agreement (with respect to the related
Offered Certificates) and the related Terms Agreement and all obligations of the
Underwriters hereunder (with respect to the related Offered Certificates) and
thereunder may be canceled at, or at any time prior to, the related Closing Date
by the Underwriters. Notice of such cancellation shall be given to the Company
in writing, or by telephone or telegraph confirmed in writing.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person who controls such Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act, or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) are caused by any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement relating to the Offered Certificates of the applicable
Series as it became effective or in any amendment or supplement thereof, or in
the Registration Statement or the Prospectus, or in any amendment thereof, or
are caused by the omission or alleged omission (in the case of any Computational
Materials or ABS Term Sheets (as defined herein) in respect of which the Company
agrees to indemnify such Underwriter, as set forth below, when such are read in
conjunction with the Prospectus and Prospectus Supplement) to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and agrees to reimburse each such indemnified party for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; PROVIDED, HOWEVER, that (i) the Company will 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 any such untrue statement or alleged untrue statement or
omission or alleged omission made therein (A) in reliance upon and in conformity
with written information furnished to the Company by the Representative or any
Underwriter specifically for use in connection with the preparation thereof or
(B) in any Current Report or any amendment or supplement thereof, except to the
extent that any untrue statement or alleged untrue statement therein or omission
therefrom results (or is alleged to have resulted) directly from an error (a
"MORTGAGE POOL ERROR") in the information concerning the characteristics of the
Mortgage Loans furnished by the Company to the Underwriters in writing or by
electronic transmission that was used in the preparation of either (x) any ABS
Term Sheets (or amendments or supplements thereof) included in such Current
Report (or amendment or supplement thereof) or (y) any written or electronic
materials furnished to prospective investors on which the ABS Term Sheets (or
amendments or supplements) were based, (ii) such indemnity with respect to any
Corrected Statement (as defined below) in the Prospectus (or supplement thereto)
shall not inure to the benefit of such Underwriter (or any person controlling
such Underwriter) from whom the person asserting any loss, claim, damage or
liability purchased the Certificates of the related Series that are the subject
thereof if such person was not sent a copy of a supplement to the Prospectus at
or prior to the confirmation of the sale of such Certificates and the untrue
statement or omission of a material fact contained in the Prospectus (or
supplement thereto) was corrected (a "CORRECTED STATEMENT") in such other
supplement and such supplement was furnished by the Company to such Underwriter
prior to the delivery of such confirmation, and (iii) such indemnity with
respect to any Mortgage Pool Error shall not inure to the benefit of such
Underwriter (or any person controlling such Underwriter) from whom the person
asserting any loss, claim, damage or liability received any ABS Term Sheets (or
any written or electronic materials on which the ABS Term Sheets are based) that
were prepared on the basis of such Mortgage Pool Error, if, prior to the time of
confirmation of the sale of the applicable Certificates to such person, the
Company notified the Underwriters in writing of the Mortgage Pool Error or
provided in written or electronic form information superseding or correcting
such Mortgage Pool Error (in any such case, a "CORRECTED MORTGAGE POOL ERROR"),
and such Underwriter failed to notify such person thereof or to deliver to such
person corrected ABS Term Sheets (or underlying written or electronic
materials). This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement relating to the Offered Certificates of the
applicable Series, and each person who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnities from the Company to such Underwriter, but only with
reference to (A) written information furnished to the Company by the
Representative on behalf of the Underwriters or by any such Underwriter
specifically for use in the preparation of the documents referred to in the
foregoing indemnity with respect to the related Series, or (B) any ABS Term
Sheets (or amendments or supplements thereof) delivered to prospective investors
by the Underwriters and furnished to the Company by the Representative on behalf
of the Underwriters pursuant to Section 8 and incorporated by reference in such
Registration Statement or the related Prospectus or any amendment or supplement
thereof, (except that no such indemnity shall be available for any losses,
claims, damages or liabilities, or actions in respect thereof resulting from any
Mortgage Pool Error, other than a Corrected Mortgage Pool Error). This indemnity
agreement will be in addition to any liability which the Underwriters may
otherwise have. The Terms Agreement will describe the information furnished in
writing by the Representative and the Underwriters for inclusion in the related
Prospectus and the Underwriters confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under Section 7 of
notice of the commencement of any action, an indemnified party will, if a claim
in respect thereof is to be made against an indemnifying party under this
Section 7, notify such indemnifying party in writing of the commencement
thereof; PROVIDED, HOWEVER, that the omission so to notify such indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 7 except and to the extent
of any prejudice to the indemnifying party arising from such failure to provide
notice. In case any such action is brought against an indemnified party, and it
notifies an indemnifying party of the commencement thereof, such indemnifying
party will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party; PROVIDED, HOWEVER, that if the
defendants in any such action include both indemnified and indemnifying parties
and any such indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to such indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assert such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from an indemnifying party to an indemnified party of its election so to assume
the defense of such action and approval by such indemnified party of counsel,
such indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel approved by the
indemnified party in the case of subparagraph (a) or (b), representing the
indemnified parties under subparagraph (a) or (b), who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) If the indemnification provided for in paragraph (a) or (b) of this
Section 7 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company or the Underwriters, on grounds of
policy or otherwise, then each indemnifying party shall contribute to the
aggregate losses, claims, damages and liabilities to which the Company and the
Underwriters may be subject in such proportion as is appropriate to reflect not
only the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Offered Certificates but also
the relative fault of the Company on the one hand and of the Underwriters, on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) of the
Offered Certificates received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
Offered Certificates. The relative fault of the Company on the one hand and of
the Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to Section 7(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the considerations referred to above. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 7(d) shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim except where the indemnified party is required to bear such
expenses pursuant to Section 7(d); which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party believes that it will be ultimately obligated to pay
such expenses. In the event that any expenses so paid by the indemnifying party
are subsequently determined to not be required to be borne by the indemnifying
party hereunder, the party which received such payment shall promptly refund the
amount so paid to the party which made such payment.
Notwithstanding anything to the contrary in this Section 7(d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 7,
each person who controls an Underwriter within the meaning of either Section 15
of the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either Section 15 of the Act or Section 20 of the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the immediately preceding
sentence of this paragraph (d).
8. ABS TERM SHEETS. (a) Prior to the delivery by any Underwriter of any
ABS Term Sheet (as defined below) to a prospective investor in any Offered
Certificates or to any third-party data or analytical service, the
Representative shall, in order to facilitate the timely filing of such material
with the Commission, notify the Company and its counsel by telephone of its
intention to deliver such materials and the approximate date on which the first
such delivery of such materials is expected to occur. Not later than 10:30 a.m.,
New York time, on the business day immediately following the date on which any
ABS Term Sheet was first delivered to a prospective investor in such Offered
Certificates, the Representative shall deliver to the Company five complete
copies of all materials provided by the Underwriters to prospective investors in
such Offered Certificates or third-party data or analytical service which
constitute ABS Term Sheets. Each delivery of an ABS Term Sheet to the Company
pursuant to this paragraph (a) shall be effected by delivering four copies of
such materials to counsel for the Company on behalf of the Company at the
address specified in Section 3 hereof and one copy of such materials to the
Company. For purposes of this Agreement, "ABS TERM SHEETS" shall mean Series
Term Sheets, Collateral Term Sheets, Computational Material and Structural Term
Sheets, each of which shall have the respective meanings assigned to them (a) in
the case of "SERIES TERM SHEETS", in the no-action letter addressed to Greenwood
Trust Company, Discover Card Master Trust I dated April 0, 0000 (xxx "XXXXXXXXX
XXXXXX"), (x) in the case of "COLLATERAL TERM SHEETS" and "STRUCTURAL TERM
SHEETS", in the February 13, 1995 letter of Cleary, Gottlieb, Xxxxx & Xxxxxxxx
on behalf of the Public Securities Association (which letter, and the SEC
staff's response thereto, are publicly available February 17, 1995) (the "PSA
LETTER"), and (c) in the case of "COMPUTATIONAL MATERIALS", the meaning assigned
to it in the no-action letter dated May 20, 1994 issued by the Division of
Corporation Finance of the Commission to Xxxxxx, Peabody Acceptance Corporation
I, Xxxxxx, Xxxxxxx & Co. Incorporated, and Xxxxxx Structured Asset Corporation
(the "XXXXXX LETTERS"), the no-action letter dated May 27, 1994 issued by the
Division of Corporation Finance of the Commission to the Public Securities
Association and the no-action letter of February 17, 1995 issued by the
Commission to the Public Securities Association and shall include any written
information provided by an Underwriter to a third-party data or analytical
service, including Bloomberg, or CDI files made directly available to
prospective investors by an Underwriter about the structure of and assets
backing the Offered Certificates. At the time of each such delivery, the
Representative shall indicate in writing that the materials being delivered
constitute ABS Sheets, and, if there has been any prior such delivery with
respect to the related Series, shall indicate whether such materials differ in
any material respect from any ABS Term Sheets previously delivered to the
Company with respect to such Series pursuant to this Section 8(a) as a result of
the occurrence of a material change in the characteristics of the related
Mortgage Loans.
(b) Each Underwriter, severally and not jointly, represents and
warrants to and agrees with the Company, as of the date of the related Terms
Agreement and as of the Closing Date, that:
(i) It either (A) has not provided any potential investor with
an ABS Term Sheet or (B) has, prior to or substantially
contemporaneously with, but in no event later than one (1) Business Day
following, its first delivery of any such ABS Term Sheet to a potential
investor or third-party analytical service, delivered such ABS Term
Sheet to the Representative and the Representative has delivered to the
Company and its counsel as described in Section 8(a) above.
(ii) It has not, and will not provide any ABS Term Sheets to
any investor after the date of this Agreement and prior to the delivery
of the related Prospectus to such investor, without the Company or its
counsel having had an opportunity to review the same.
(iii) the Computational Materials furnished to the Company
pursuant to Section 8(a) constitute (either in original, aggregated or
consolidated form) all of the materials furnished to prospective
investors by the Underwriters prior to the time of delivery thereof to
the Company that are required to be filed with the Commission with
respect to the related Offered Certificates in accordance with the
Xxxxxx Letters, and such Computational Materials comply with the
requirements of the Xxxxxx Letters;
(iv) the Structural Term Sheets furnished to the Company
pursuant to Section 8(a) constitute all of the materials furnished to
prospective investors by the Underwriters prior to the time of delivery
thereof to the Company that are required to be filed with the
Commission as "Structural Term Sheets" with respect to the related
Offered Certificates in accordance with the PSA Letter, and such
Structural Term Sheets comply with the requirements of the PSA Letter;
(v) the Series Term Sheets furnished to the Company pursuant
to Section 8(a) constitute all of the materials furnished to
prospective investors by the Underwriters prior to the time of delivery
thereof to the Company that are required to be filed with the
Commission as "Series Term Sheets" with respect to the related Offered
Certificates in accordance with the Greenwood Letter, and such Series
Term Sheets comply with the requirements of the Greenwood Letter;
(vi) the Collateral Term Sheets furnished to the Company
pursuant to Section 8(a) constitute all of the materials furnished to
prospective investors by the Underwriters prior to time of delivery
thereof to the Company that are required to be filed with the
Commission as "Collateral Term Sheets" with respect to the related
Offered Certificates in accordance with the PSA Letter, and such
Collateral Term Sheets comply with the requirements of the PSA Letter;
(vii) on the date any such ABS Term Sheets with respect to
such Offered Certificates (or any written or electronic materials
furnished to prospective investors on which the ABS Term Sheets are
based) were last furnished to each prospective investor and on the date
of delivery thereof to the Company pursuant to Section 8(a) and on the
related Closing Date, such ABS Term Sheets (or such other materials)
did not and will not include any untrue statement of a material fact
or, when read in conjunction with the related Prospectus and Prospectus
Supplement, omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; PROVIDED,
HOWEVER, that no Underwriter makes any representation or warranty as to
the Prospectus and Prospectus Supplement (other than such portion
thereof described in Section 7(a)(i)(A));
(viii) all ABS Term Sheets (or underlying materials
distributed to prospective investors on which the ABS Term Sheets were
based) furnished to prospective investors or third-party data or
analytical service contained and will contain a legend, prominently
displayed on the first page thereof stating that the ABS Term Sheets
were not prepared or disseminated on behalf of the Company, are being
provided exclusively by the Underwriters and that the Underwriters are
acting as the underwriters and not acting as agents of the Company in
connection with the securities described therein, and otherwise in form
and substance satisfactory to the Company;
(ix) each ABS Term Sheet bears a legend indicating that the
information contained therein does not contain all the information that
is required to be included in the base prospectus and the related
prospectus supplement and that investors are urged to read the base
prospectus and the prospectus supplement and other relevant documents
filed or to be filed with the Securities and Exchange Commission,
because they contain important information.
(x) either (A) it has not provided a CDI file to a prospective
investor that contains information about the Offered Certificates, the
Mortgage Loans or the structure of the transaction that is
substantively different from such information contained in the ABS Term
Sheets that have been previously delivered by an Underwriter to the
Company and not in the form of a CDI file or (B) has, prior to or
substantially contemporaneously with, but in no event later than one
(1) Business Day following, its first delivery of a CDI file to a
potential investor, delivered (in form other than a CDI file) to the
Company or its counsel for filing such substantive information about
the Offered Certificates, the Mortgage Loans or the structure of the
transaction included in such CDI file that is in addition to or
substantively different from such information contained in the ABS Term
Sheets that have been previously delivered to the Company or its
counsel.
Notwithstanding the foregoing, no Underwriter makes any representation
or warranty as to whether any ABS Term Sheets (or any written or electronic
materials on which the ABS Term Sheets are based) included or will include any
untrue statement resulting directly from any Mortgage Pool Error (except any
Corrected Mortgage Pool Error, with respect to materials prepared after the
receipt by the Underwriters from the Company of notice of such Corrected
Mortgage Pool Error or materials superseding or correcting such Corrected
Mortgage Pool Error).
(c) The Underwriters shall cause a firm of public accountants to
furnish to the Company a letter, dated as of the date on which the Underwriters
deliver any ABS Term Sheets other than Collateral Term Sheets (which term shall
be deemed to include, for purposes of this paragraph (c), calculated statistical
information delivered to prospective investors) to the Company pursuant to
Section 8(a), in form and substance satisfactory to the Company, stating in
effect that they have verified the mathematical accuracy of any calculations
performed by the Underwriters and set forth in such ABS Term Sheets (except that
with respect to any Computational Materials in the form of CDI files made
directly available to prospective investors by an Underwriter or information
provided by an Underwriter to a third-party data or analytical service,
including Bloomberg, pursuant to which a computer model is created, such
accountants' letter shall address the model created rather than the materials
provided for the creation of such model).
(d) The Underwriters acknowledge and agree that the Company has not
authorized and will not authorize the distribution of any ABS Term Sheets (or
any written or electronic materials on which the ABS Term Sheets are based), and
agree that any ABS Term Sheets with respect to any Series of Certificates
furnished to prospective investors from and after the date hereof included and
shall include a disclaimer in the form set forth in paragraph (b)(viii) above.
Each Underwriter agrees, severally and not jointly, that it will not represent
to prospective investors that any ABS Term Sheets were prepared or disseminated
on behalf of the Company.
(e) If, at any time when the Prospectus relating to the Offered
Certificates of a Series is required to be delivered under the Act, it shall be
necessary to amend or supplement the Prospectus as a result of an untrue
statement of a material fact contained in any ABS Term Sheets provided by any
Underwriter pursuant to this Section 8 or the omission to state therein a
material fact required, when considered in conjunction with the Prospectus and
Prospectus Supplement, to be stated therein or necessary to make the statements
therein, when read in conjunction with the Prospectus and Prospectus Supplement,
not misleading, or if it shall be necessary to amend or supplement any Current
Report relating to any ABS Term Sheets to comply with the Act or the rules
thereunder, the Underwriters promptly will prepare and furnish to the Company
for filing with the Commission an amendment or supplement which will correct
such statement or omission or an amendment which will effect such compliance.
Each Underwriter, severally and not jointly, represents and warrants to the
Company, as of the date of delivery of such amendment or supplement to the
Company, that such amendment or supplement will not include any untrue statement
of a material fact or, when read in conjunction with the Prospectus and
Prospectus Supplement, omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; PROVIDED,
HOWEVER, that no Underwriter makes any representation or warranty (i) as to the
Prospectus and Prospectus Supplement (other than such portion thereof described
in Section 7(a)(i)(A)) and (ii) as to whether any such amendment or supplement
will include any untrue statement resulting directly from any Mortgage Pool
Error (except any Corrected Mortgage Pool Error, with respect to any such
amendment or supplement prepared after the receipt by the Underwriters from the
Company of notice of such Corrected Mortgage Pool Error or materials superseding
or correcting such Corrected Mortgage Pool Error). The Company shall have no
obligation to file such amendment or supplement if (i) the Company determines
that such amendment or supplement contains any untrue statement of a material
fact or, when read in conjunction with the Prospectus and Prospectus Supplement,
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; PROVIDED, HOWEVER, that the Company
shall have no obligation to review or pass upon the accuracy or adequacy of, or
to correct, any such amendment or supplement provided by any Underwriter to the
Company pursuant to this paragraph (e) or (ii) the Company reasonably determines
that such filing is not required under the Act. The Company shall give notice to
the Underwriters of its determination not to file an amendment or supplement
pursuant to clause (ii) of the preceding sentence.
9. AGREEMENT OF THE UNDERWRITERS. Each Underwriter agrees that (i) a
printed copy of the Prospectus will be delivered to each person who receives a
confirmation of sale prior to or at the same time with such confirmation of
sale; (ii) if an electronic copy of the Prospectus is delivered by such
Underwriter for any purpose, such copy shall be the same electronic file
containing the Prospectus in the identical form transmitted electronically to
such Underwriter by or on behalf of the Company specifically for use by such
Underwriter pursuant to this Section 9; for example, if the Prospectus is
delivered to such Underwriter by or on behalf of the Company in a single
electronic file in pdf format, then such Underwriter will deliver the electronic
copy of the Prospectus in the same single electronic file in pdf format; and
(iii) it has not used, and during the period for which it has an obligation to
deliver a "prospectus" (as defined in Section 2(a)(10) of the Act) relating to
the Offered Certificates (including any period during which such Underwriter has
such delivery obligation in its capacity as a "dealer" (as defined in Section
2(a)(12) of the Act)) it will not use, any internet Web site or electronic media
containing information for prospective investors, including any internet Web
site or electronic media maintained by third parties, in connection with the
offering of the Offered Certificates, except in compliance with applicable laws
and regulations
10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the
Underwriters participating in the public offering of the Offered Certificates
shall fail at the Closing Date to purchase the Offered Certificates which it is
(or they are) obligated to purchase hereunder (the "DEFAULTED CERTIFICATES"),
then the non-defaulting Underwriters shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Certificates in such amounts as may be agreed upon and upon the
terms herein set forth. If, however, the Underwriters have not completed such
arrangements within such 24-hour period, then
(a) if the aggregate principal amount of Defaulted Certificates does
not exceed 10% of the aggregate principal amount of the Offered Certificates to
be purchased pursuant to this Agreement, the non-defaulting Underwriters named
in this Agreement shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all such non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Certificates exceeds
10% of the aggregate principal amount of the Offered Certificates to be
purchased pursuant to this Agreement, the non-defaulting Underwriters shall have
the right to purchase all, but shall not be under any obligation to purchase
any, of the Offered Certificates, and if such non-defaulting Underwriters do not
purchase all of the Offered Certificates, this Agreement shall terminate,
without any liability on the part of any non-defaulting Underwriters or the
Company.
In the event of a default by any Underwriter as set forth in this
SECTION 10, the Closing Date for the Offered Certificates shall be postponed for
such period, not exceeding seven days, as the non-defaulting Underwriters and
the Company shall determine in order that the required changes in the
Registration Statement, the Prospectus or in any other documents or arrangements
may be effected. Nothing contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Company and to any
non-defaulting Underwriter for damages occasioned by its default hereunder.
11. TERMINATION. (a) This Agreement shall be subject to termination by
notice given to the Company, if the sale of the Offered Certificates provided
for herein is not consummated because of any failure or refusal on the part of
the Company to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement. If you terminate this Agreement in accordance
with this Section 11(a), the Company will reimburse the Representative for all
reasonable out-of-pocket expenses (including reasonable fees and disbursements
of counsel) that shall have been reasonably incurred by the Underwriters in
connection with the proposed purchase and sale of the Offered Certificates.
(b) This Agreement (with respect to a particular Certificate Offering)
and the related Terms Agreement shall be terminable by the Representative on
behalf of the Underwriters by written notice delivered to the Company if at any
time on or before the related Closing Date (i) trading in securities generally
on the New York Stock Exchange shall have been suspended, (ii) a general
moratorium on commercial banking activities in New York shall have been declared
by either federal or New York State authorities, or (iii) there shall have
occurred any outbreak or material escalation of hostilities or other calamity or
crisis, the effect of which on the financial markets of the United States is
such as to make it, in the reasonable judgment of the Representative,
impracticable or inadvisable to market such Offered Certificates on the terms
and in the manner contemplated in the Prospectus. Upon such notice being given,
the parties to this Agreement shall (except for the liability of the Company and
the Underwriters under Section 5(g) and Section 7 be released and discharged
from their respective obligations under this Agreement.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. The
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement and the related Terms Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Underwriters
or the Company or any of the officers, directors or controlling persons referred
to in Section 7 hereof, and will survive delivery of and payment for the related
Offered Certificates. The provisions of Section 7 hereof shall survive the
termination or cancellation of this Agreement and the related Terms Agreement.
13. SUCCESSORS. This Agreement and the related Terms Agreement will
inure to the benefit of and be binding upon the parties hereto and thereto and
their respective successors and the officers, directors and controlling persons
referred to in Section 7 hereof, and their successors and assigns, and no other
person will have any right or obligation hereunder or thereunder. No purchaser
of any Offered Certificate from any Underwriter shall be deemed a successor or
assign by reason of such purchase.
14. APPLICABLE LAW. THIS AGREEMENT AND THE RELATED TERMS AGREEMENT WILL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
15. MISCELLANEOUS. This Agreement, as supplemented by the related Terms
Agreement, supersedes all prior and contemporaneous agreements and
understandings relating to the subject matter hereof. This Agreement and the
related Terms Agreement or any term of each may not be changed, waived,
discharged or terminated except by an affirmative written agreement made by the
party against whom enforcement of the change, waiver, discharge or termination
is sought. The headings in this Agreement and the related Terms Agreement are
for purposes of reference only and shall not limit or otherwise affect the
meaning hereof or thereof.
NOTICES. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Underwriters, will be delivered to it at the
Representative's address first above written; or if sent to the Company, will be
delivered to GE-WMC Mortgage Securities, L.L.C., 0000 Xxxxxxxx Xxx., Xxxxxxx, XX
00000, Attention:______; with a copy to GE Consumer Finance, 0000 Xxxxxx Xxxxxx,
0xx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxxx, Senior
Vice President and Counsel, Capital Markets.
16. NON-PETITION COVENANT. Notwithstanding any prior termination of
this Agreement, the Underwriters shall not acquiesce, petition or otherwise
invoke or cause the Company to invoke the process of any court or governmental
authority for the purpose of commencing or sustaining a case against the Company
under any federal or state bankruptcy, insolvency or similar law, or appointing
a receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Company or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Company.
17. FINANCIAL SERVICES ACT. Each Underwriter represents and warrants
to, and agrees with, the Company that (a) it has complied and shall comply with
all applicable provisions of the Financial Services and Markets Xxx 0000 (the
"FSMA") and the Public Offers of Securities Regulations 1995 (the "REGULATIONS")
with respect to anything done by it in relation to the Offered Certificates in,
from or otherwise involving the United Kingdom; (b) it has only communicated or
caused to be communicated and it will only communicate or cause to be
communicated any invitation or inducement to engage in investment activity
(within the meaning of section 21 of the FSMA) received by it in connection with
the issue or sale of any Offered Certificates in circumstances in which section
21(1) of the FSMA does not apply to the Company; and (c) it has not offered or
sold, and prior to the date which is six months after the date of issue of the
Offered Certificates will not offer or sell any Offered Certificates to persons
in the United Kingdom except to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances which
do not constitute an offer to the public in the United Kingdom for the purposes
of the Regulations.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and the Underwriters.
Very truly yours,
GE-WMC MORTGAGE SECURITIES, L.L.C.
By: _______________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
[REPRESENTATIVE], as Representative
By: ___________________________________
Name:
Title:
EXHIBIT A
GE-WMC MORTGAGE SECURITIES, L.L.C.
PASS-THROUGH CERTIFICATES
SERIES ____-__
TERMS AGREEMENT
(to Underwriting Agreement,
dated [_____], 20[__]
between the Company and the Representative)
GE-WMC Mortgage Securities, L.L.C. New York, New York
[ADDRESS] [Date]
[____], as Representative, and each of the underwriters named below
(collectively, the "UNDERWRITERS") agree, subject to the terms and provisions
herein and of the captioned Underwriting Agreement (the "UNDERWRITING
AGREEMENT"), to purchase such Classes of Series ____-__ Certificates specified
in Section 2(a) hereof (the "OFFERED CERTIFICATES"). This letter supplements and
modifies the Underwriting Agreement solely as it relates to the purchase and
sale of the Offered Certificates described below and the terms and conditions
thereof are incorporated herein by reference. The Series ____-__ Certificates
are registered with the Securities and Exchange Commission by means of an
effective Registration Statement (No. 333-_____). Capitalized terms used and not
defined herein have the meanings given them in the Underwriting Agreement.
Section 1. THE MORTGAGE POOL: The Series ____-__ Certificates shall
evidence the entire beneficial ownership interest in a mortgage pool (the
"MORTGAGE POOL") of conventional, fixed rate, fully amortizing one- to
four-family residential mortgage loans (the "MORTGAGE LOANS") having the
following characteristics as of ________ __, ____ (the "CUT-OFF DATE"):
(a) AGGREGATE PRINCIPAL AMOUNT OF THE MORTGAGE POOL: $[ ]
aggregate principal balance as of the Cut-off Date, subject to [an
upward or downward variance of up to [ ]%, the precise aggregate
principal balance to be determined by the Company][a permitted variance
such that the aggregate Scheduled Principal Balance thereof will be not
less than $[ ] or greater than $[ ]].
(b) ORIGINAL TERMS TO MATURITY: The original term to maturity
of each Mortgage Loan included in the Mortgage Pool shall be between
___ and ___ years.
Section 2. THE CERTIFICATES: The Offered Certificates shall be issued
as follows:
(a) CLASSES: The Offered Certificates shall be issued with the following Class
designations, interest rates and principal balances, subject in the aggregate to
the variance referred to in Section 1(a)[and, as to any particular Class, to an
upward or downward variance of up to [ ]%]:
Class Purchase
Class Principal Balance Interest Rate Price Percentage
----------- ------------------- --------------- ------------------
Class __ $_________ ___% ___%
(b) The Offered Certificates shall have such other
characteristics as described in the Prospectus.
Section 3. PURCHASE PRICE: The Purchase Price for each Class of the
Offered Certificates shall be the Class Purchase Price Percentage therefor (as
set forth in Section 2(a) above) of the initial Class Certificates Principal
Balance thereof plus accrued interest at the rate of [ ]% per annum from and
including the applicable Cut-off Date up to, but not including, _________ __,
____ (the "CLOSING DATE").
Section 4. REQUIRED RATINGS:The Offered Certificates shall have
received Required Ratings of at least [ ] from [ ].
Section 5. TAX TREATMENT: [One or more elections will be made to treat
the assets of the Trust Fund as a REMIC.] [The Trust Fund will be treated as a
"grantor trust" for federal income tax purposes.]
Section 6. UNDERWRITERS: [lead, co-lead, co-managers]
Section 7. UNDERWRITERS' INFORMATION: (i) the first sentence of the
last paragraph appearing on the cover page of the Prospectus Supplement as such
statements relate to such Offered Certificates, (ii) the second sentence in the
paragraph under the heading "Risk Factors - You may not be able to resell your
certificates", (iii) the second sentence of the first paragraph under the
heading "Plan of Distribution" in the Prospectus Supplement as such statements
relate to such Offered Certificates and (iv) [dec tables].
Section 8. Underwriting Discounts and Commissions:
[Section 9. ADDITIONAL EXPENSES:]*
-----------
* to be inserted if applicable.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Underwriters and the Company.
Very truly yours,
[REPRESENTATIVE], as Representative
By: _______________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
GE-WMC MORTGAGE SECURITIES, L.L.C.
By: ____________________________________
Name:
Title:
[EACH CO-UNDERWRITER]
By: ____________________________________
Name:
Title:
