EXHIBIT 1
GS MORTGAGE SECURITIES CORPORATION II
GS MORTGAGE SECURITIES TRUST [SERIES]
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES [_____]
Underwriting Agreement
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[DATE]
[_____] [_____]
Ladies and Gentlemen:
GS Mortgage Securities Corporation II, a Delaware corporation (the
"Company"), proposes to cause to be issued its GS Mortgage Securities Trust
[_____]-[_____], Commercial Mortgage Pass-Through Certificates, Series
[_____]-[_____] identified in Schedule I hereto (the "Certificates"), under a
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of [_____], among the Company, [_____], as master servicer (the "Master
Servicer"), [_____], as special servicer (the "Special Servicer"), and [_____],
as trustee (the "Trustee"), and proposes to sell the [_____] Certificates
(collectively, the "Publicly Offered Certificates") to [_____], [_____] and
[_____] (together, the "Underwriters"). The Certificates will represent in the
aggregate the entire beneficial ownership interest in a trust fund (the "Trust
Fund") primarily consisting of a segregated pool (the "Mortgage Pool") of
mortgage loans (the "Mortgage Loans") secured by first liens on commercial,
multifamily and manufactured housing community properties. The Mortgage Loans
will be purchased by the Company from (i) [_____] pursuant to a Mortgage Loan
Purchase Agreement ("[_____]"), dated as of [_____], between the Company and
[_____], (ii) [_____] pursuant to a Mortgage Loan Purchase Agreement ("[_____"),
dated as of [_____], between the Company and [_____], and (iii) [_____]
(together, the "Mortgage Loan Sellers") pursuant to a Mortgage Loan Purchase
Agreement ("[_____]") (together, the "Purchase Agreements"), dated as of
[_____], between the Company and [_____], in exchange for immediately available
funds. This is to confirm the arrangements with respect to your purchase of the
Publicly Offered Certificates. Capitalized terms used but not defined herein
shall have the meanings given to them in the Pooling and Servicing Agreement.
At or prior to the time when sales to purchasers of the Publicly
Offered Certificates were first made, which was approximately [_____] on [_____]
(the "Time of Sale"), the Company had prepared the following information
(collectively, the "Time of Sale Information"): the Company's free writing
prospectus dated [_____] (the cover page of which is attached hereto as Annex A)
to accompany the Company's Prospectus dated [_____], relating to the Publicly
Offered Certificates, and each a "free-writing prospectus" (as defined pursuant
to Rule 405 under the Securities Act) (a "Free Writing Prospectus"). If,
subsequent to the date of this Agreement, the Company and the Underwriters (x)
determine that such information included an untrue statement of material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading and (y) terminate their old purchase contracts and enter into new
purchase contracts with investors in the Publicly Offered Certificates, then
"Time of Sale Information" will refer to
the information conveyed to purchasers at the time of entry into the first such
new purchase contract, including any information that corrects such material
misstatements or omissions ("Corrective Information") and "Time of Sale" will
refer to the time and date on which such new purchase contracts were entered
into.
1. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S-3 (Commission File No.
[_____]), including a form of prospectus and such amendments thereto as may have
been required to the date hereof, relating to the Publicly Offered Certificates
and the offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act"), has been filed with
the Securities and Exchange Commission (the "Commission") and such registration
statement, as amended, has become effective. No stop order suspending the
effectiveness of such registration statement is in effect, and no proceedings
for such purpose are pending or, to the Company's knowledge, threatened by the
Commission. Such registration statement, including the exhibits thereto and any
information that is contained in the Prospectus (as defined herein) and is
deemed to be a part of and included in such registration statement, as such
registration statement may have been amended or supplemented at the date of the
Prospectus, is hereinafter referred to as the "Registration Statement;" the
prospectus first required to be filed to satisfy the condition set forth in Rule
172(c) and pursuant to Rule 424(b) under the Securities Act is hereinafter
referred to as the "Base Prospectus"; the supplement to the Base Prospectus
relating to the Publicly Offered Certificates in the form first required to be
filed to satisfy the condition set forth in Rule 172(c) and pursuant to Rule
424(b) under the Securities Act is hereinafter referred to as the "Prospectus
Supplement"; and the Base Prospectus and the Prospectus Supplement, including
the diskette delivered therewith, together, are hereinafter referred to as the
"Prospectus." The conditions to the use of a registration statement on Form S-3
under the Securities Act, as set forth in the General Instructions to Form S-3,
and the conditions of Rule 415 under the Securities Act have been satisfied with
respect to the Registration Statement. There is no request by the Commission for
any further amendment of the Registration Statement or the Prospectus or for any
additional information. There has been no notification with respect to the
suspension of the qualification for sale of the Certificates for sale in any
jurisdiction or any proceeding for such purpose having been instituted or
threatened;
(b) As of its effective date or deemed effective date pursuant to
Rule 430B under the Securities Act (the "Effective Date") Registration Statement
did conform in all material respects to the requirements of the Securities Act,
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), where
applicable, and the rules and regulations of the Commission under the Securities
Act or the Exchange Act, as applicable, and did not, as of the Effective Date,
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not
apply to any Underwriter Information (as defined below);
(c) As of the date of the Prospectus Supplement, the Prospectus will
conform, in all material respects to the requirements of the Securities Act, the
Exchange Act and the rules and regulations of the Commission thereunder (the
"Rules and Regulations"), and such
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document does not include, and will not include, any untrue statement of a
material fact or omits, or will omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any
Underwriter Information;
(d) The documents incorporated by reference in the Registration
Statement and the Prospectus, when they were filed with the Commission conformed
in all material respects to the requirements of the Exchange Act and the rules
and regulations thereunder; and any further documents so filed and incorporated
by reference in the Registration Statement and the Prospectus, when such
documents are filed with the Commission, will conform in all material respects
to the requirements of the Exchange Act and the rules and regulations
thereunder; provided, however, that the Company makes no representations,
warranties or agreements as to (A) the information contained in the Prospectus
or any revision or amendment thereof or supplement thereto in reliance upon and
in conformity with information furnished in writing to the Company by [_____] on
behalf of itself or the other Underwriters specifically for use in connection
with the preparation of the Time of Sale Information or Prospectus or any
revision or amendment thereof or supplement thereto (the "Underwriter
Information"), (B) any information contained in or omitted from the portions of
the Prospectus for which the Mortgage Loan Sellers are obligated to indemnify
the Underwriters pursuant to the Indemnification Agreements, each dated as of
[_____], between each Mortgage Loan Seller, respectively, and the Company (the
"Mortgage Loan Seller Information"), (C) any information contained in or omitted
from the portions of the Prospectus for which the Master Servicer is obligated
to indemnify the Underwriters pursuant to the Indemnification Agreement, dated
as of [_____], between the Master Servicer and the Company (the "Master Servicer
Information"), (D) any information contained in or omitted from the portions of
the Prospectus for which the Special Servicer is obligated to indemnify the
Underwriters pursuant to the Indemnification Agreement, dated as of [_____],
between the Special Servicer and the Company (the "Special Servicer
Information"), or (E) any information contained in or omitted from the portions
of the Prospectus for which the Trustee is obligated to indemnify the
Underwriters pursuant to the Indemnification Agreement, dated as of [_____],
between the Trustee and the Company (the "Trustee Information"). [The
Underwriter Information shall consist of the [_____] sentence of the [_____]
paragraph, the [_____] paragraph (other than the first sentence thereof) and the
[_____] paragraph of the section of the Prospectus Supplement entitled "Plan of
Distribution" and the [_____] paragraph on the cover page of the Prospectus
Supplement];
(e) Since the date as of which information is given in the
Prospectus, there has not been any change in the capital stock or long-term debt
of the Company or any of its subsidiaries or any material adverse change, or any
development involving a change, that would have a material adverse effect on the
ability of the Company to perform its obligations under this Agreement, the
Pooling and Servicing Agreement or any Purchase Agreement;
(f) The Time of Sale Information, at the Time of Sale, did not, and
at the Closing Date will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided that the Company makes no representation and warranty with respect to
(A) any statements or omissions made in reliance upon and in conformity with the
Underwriter Information or (B) any Mortgage Loan Seller Information
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contained in or omitted from such Time of Sale Information. The parties
acknowledge that none of the Underwriters has furnished any Underwriter
Information to the Depositor expressly for use in the Time of Sale Information.
(g) Other than the Prospectus, the Company (including its agents and
representatives other than the Underwriters in their capacity as such) has not
made, used, prepared, authorized, approved or referred to and will not make,
use, prepare, authorize, approve or refer to any "written communication" (as
defined in Rule 405 under the Securities Act) that constitutes an offer to sell
or solicitation of an offer to buy the Publicly Offered Certificates other than
(i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a)
of the Securities Act or Rule 134 under the Securities Act, (ii) the Time of
Sale Information, and (iii) each other written communication of the Company or
its agents and representatives approved by the Underwriters either in writing in
advance or in any other manner mutually agreed by the Underwriters and the
Company (each such communication referred to in clause (ii) and this clause
(iii) constituting an "issuer free writing prospectus", as defined in Rule
433(h) under the Securities Act, being referred to herein as an "Issuer Free
Writing Prospectus"). Each such Issuer Free Writing Prospectus complied or, if
used after the date hereof, will comply, in all material respects with the
Securities Act and the rules and regulations promulgated thereunder, has been
filed or will be filed in accordance with Section 12 (to the extent required
thereby) and did not at the Time of Sale, and at the Closing Date will not,
contain any untrue statements of a material fact or (when read in conjunction
with the other Time of Sale Information) omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that the Company makes no
representation and warranty with respect to (i) any statements or omissions made
in reliance upon and in conformity with the Underwriter Information or (ii) any
Mortgage Loan Seller Information contained in or omitted from any Issuer Free
Writing Prospectus. The parties acknowledge that none of the Underwriters has
furnished any Underwriter Information to the Depositor expressly for use in any
Issuer Free Writing Prospectus.
(h) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware and
has all requisite power and authority (corporate and other, including, without
limitation, all material licenses, certificates, authorizations or permits
issued by the appropriate state, federal or foreign regulatory agencies or
bodies) to own its properties and to conduct its business as described in the
Prospectus, and is duly qualified as a foreign corporation in good standing in
all jurisdictions in which the ownership or lease of its property or the conduct
of its business requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the Company or its
execution and performance of the terms of this Agreement;
(i) this Agreement has been duly authorized, executed and delivered
by the Company;
(j) At the Time of Delivery (as defined in Section 4 hereof) the
Pooling and Servicing Agreement and the Purchase Agreements will have been duly
authorized, executed and delivered. At the Time of Delivery, the Pooling and
Servicing Agreement and the Purchase Agreements will constitute valid and
legally binding obligations of the Company, enforceable in accordance with their
respective terms, subject, as to enforcement, to bankruptcy, insolvency,
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reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general principles of equity;
(k) When the Certificates are issued, executed, authenticated and
delivered pursuant to this Agreement and the Pooling and Servicing Agreement,
the Certificates will have been duly authorized, executed, authenticated, issued
and delivered and will be entitled to the benefits of the Pooling and Servicing
Agreement; and the Certificates and the Pooling and Servicing Agreement will
conform to the descriptions thereof in the Prospectus;
(l) The issue and sale of the Certificates, the compliance by the
Company with all of the provisions of this Agreement, the Pooling and Servicing
Agreement and the Purchase Agreements, and the consummation of the transactions
herein and therein contemplated, (1) will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other material agreement
or instrument to which the Company is a party or by which the Company is bound
or to which any of the property or assets of the Company is subject, (2) will
not result in any violation of the provisions of the Certificate of
Incorporation or the By-Laws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company, or any of its properties; (3) except as contemplated by the Pooling
and Servicing Agreement, will not result in the creation or imposition of any
lien, charge or encumbrance upon any of its property or assets pursuant to the
terms of any such indenture, mortgage, contract or other instrument. No consent,
approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the authorization,
issue and sale of the Publicly Offered Certificates or the consummation by the
Company of the other transactions contemplated by this Agreement, the Pooling
and Servicing Agreement or the Purchase Agreements except such as have been
obtained under the Securities Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Publicly
Offered Certificates by the Underwriters;
(m) The statements set forth in the Prospectus under the caption
"Description of the Offered Certificates," insofar as they purport to constitute
a summary of the terms of the Certificates and insofar as they purport to
describe the provisions of the documents referred to therein, are accurate,
complete and fair;
(n) Other than as set forth or contemplated in the Prospectus or in
the Time of Sale Information, there are no legal or governmental proceedings
pending to which the Company is a party or of which any property of the Company
is the subject that are required to be described in the Prospectus or Time of
Sale Information or that, if determined adversely to the Company, would
individually or in the aggregate (i) have a material adverse effect on the
condition (financial or otherwise), earnings, affairs, business, properties or
prospects of the Company, and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others, (ii) invalidate this Agreement, the Pooling and Servicing
Agreement, any Purchase Agreement or the Certificates, (iii) prevent the
issuance of the Certificates or the consummation of any of the transactions
contemplated by this Agreement, (iv) materially and adversely affect the
performance by the Company of its obligations under, or the validity or
enforceability against the Company of, this Agreement, the
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Pooling and Servicing Agreement, any Purchase Agreement or the Certificates or
(v) adversely affect the federal income tax attributes of the Certificates
described in the Prospectus or the Time of Sale Information;
(o) The Company will, at the Time of Delivery, own the Mortgage
Loans, free and clear of any lien, mortgage, pledge, charge, security interest
or other encumbrance, and, at the Time of Delivery, the Company will have full
power and authority to sell and deliver the Mortgage Loans to the Trustee under
the Pooling and Servicing Agreement and at the Time of Delivery will have duly
authorized such assignment and delivery to the Trustee by all necessary action;
(p) Any taxes, fees and other governmental charges in connection
with the execution, delivery and performance of this Agreement, the Pooling and
Servicing Agreement, the Purchase Agreements and the Publicly Offered
Certificates will have been paid at or prior to the Time of Delivery;
(q) Neither the Company nor the Trust Fund is, and neither the sale
of the Certificates in the manner contemplated by the Prospectus nor the
activities of the Trust Fund pursuant to the Pooling and Servicing Agreement
will cause the Company or the Trust Fund to be an "investment company" or under
the control of an "investment company" as such terms are defined under the
Investment Company Act of 1940, as amended (the "Investment Company Act"), and
the Pooling and Servicing Agreement is not required to be qualified under the
Trust Indenture Act of 1939, as amended;
(r) At the Time of Delivery, the Mortgage Loans will have been duly
and validly assigned and delivered by the Company to the Trustee;
(s) The Trust created by the Pooling and Servicing Agreement will
not at the Time of Delivery be required to be registered under the Investment
Company Act;
(t) There are no contracts, indentures or other documents of a
character required by the Securities Act or by the rules and regulations
thereunder to be described or referred to in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that have
not been so described or referred to therein or so filed or incorporated by
reference as exhibits thereto;
(u) The Company is not and at the Time of Delivery will not be an
"investment company," as such term is defined in the Investment Company Act;
(v) Each of the Publicly Offered Certificates will be mortgage
related securities, as defined in Section 3(a)(41) of the Exchange Act;
(w) Under generally accepted accounting principles and for federal
income tax purposes, the Company will report the transfer of the Mortgage Loans
to the Trustee in exchange for the Certificates and the sale of the Publicly
Offered Certificates to the Underwriters pursuant to this Agreement as a sale of
the interest in the Mortgage Loans evidenced by the Publicly Offered
Certificates. The consideration received by the Company upon the sale of the
Publicly Offered Certificates to the Underwriters will constitute reasonably
equivalent value and fair
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consideration for the Publicly Offered Certificates. The Company will be solvent
at all relevant times prior to, and will not be rendered insolvent by, the sale
of the Publicly Offered Certificates to the Underwriters. The Company is not
selling the Publicly Offered Certificates to the Underwriters with any intent to
hinder, delay or defraud any of the creditors of the Company;
(x) The Company has not relied on the Underwriters for any tax,
regulatory, accounting or other advice with respect to compliance with or
registration under any statute, rule or regulation of any governmental,
regulatory, administrative or other agency or authority. The Company
acknowledges and agrees that (i) the terms of this Agreement and the offering
(including the price of the Certificates) were negotiated at arm's length
between sophisticated parties represented by counsel; (ii) no fiduciary,
advisory or agency relationship between the Company and the Underwriters has
been created as a result of any of the transactions contemplated by this
Agreement, irrespective of whether any Underwriter has advised or is advising
the Company on other matters; (iii) the Underwriters' obligations to the Company
in respect of the offering, and the purchase and sale, of the Certificates are
set forth in this Agreement in their entirety; and (iv) it has obtained such
legal, tax, accounting and other advice as it deems appropriate with respect to
this Agreement and the transactions contemplated hereby and any other activities
undertaken in connection therewith, and it is not relying on the Underwriters
with respect to any such matters; and
(y) The Company is not, and on the date on which the first bona fide
offer of the Publicly Offered Certificates is made (within the meaning of Rule
164(h)(2) under the Securities Act) will not be, an "ineligible issuer," as
defined in Rule 405 under the Securities Act.
2. Each Underwriter represents and warrants to, and agrees with, the
Company, that:
(a) In relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a "Relevant Member
State"), such Underwriter has not made and will not make an offer of
Certificates to the public in that Relevant Member State prior to the
publication of a prospectus in relation to the Publicly Offered Certificates
which has been approved by the competent authority in that Relevant Member State
or, where appropriate, approved in another Relevant Member State and notified to
the competent authority in that Relevant Member State, all in accordance with
the Prospectus Directive, except that it may, with effect from and including the
relevant implementation date, make an offer of Publicly Offered Certificates to
the public in that Relevant Member State at any time:
(A) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in
securities;
(B) to any legal entity which has two or more of (1) an
average of at least 250 employees during the last financial year;
(2) a total balance sheet of
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more than (euro)43,000,000 and (3) an annual net turnover of more
than (euro)50,000,000, as shown in its last annual or consolidated
accounts; or
(C) in any other circumstances which do not require the
publication by the issuer of a prospectus pursuant to Article 3 of
the Prospectus Directive.
For the purposes of this provision, the expression an "offer of Publicly Offered
Certificates to the public" in relation to any Publicly Offered Certificates in
any Relevant Member State means the communication in any form and by any means
of sufficient information on the terms of the offer and the Publicly Offered
Certificates to be offered so as to enable an investor to decide to purchase or
subscribe the Publicly Offered Certificates, as the same may be varied in that
Member State by any measure implementing the Prospectus Directive in that Member
State and the expression "Prospectus Directive" means the European Commission
Directive 2003/71/EC and includes any relevant implementing measure in each
Relevant Member State.
(b) Each Underwriter has only communicated or caused to be
communicated and will only communicate or cause to be communicated an invitation
or inducement to engage in investment activity (within the meaning of Section 21
of the United Kingdom Financial Services and Markets Act 2000 (the "FSMA"))
received by it in connection with the issue or sale of the Publicly Offered
Certificates in circumstances in which Section 21(1) of the FSMA does not apply
to the issuer.
(c) Each Underwriter has complied and will comply with all
applicable provisions of the FSMA with respect to anything done by it in
relation to the Publicly Offered Certificates in, from or otherwise involving
the United Kingdom.
(d) Each Underwriter will not offer or sell any Publicly Offered
Certificates, directly or indirectly, in Japan or to, or for the benefit of, any
resident of Japan (which term as used herein means any person resident in Japan,
including any corporation or other entity organized under the laws of Japan), or
to others for re offering or resale, directly or indirectly, in Japan or to a
resident of Japan, except pursuant to an exemption from the registration
requirements of, and otherwise in compliance with, the Securities and Exchange
Law of Japan and any other applicable laws, regulations and ministerial
guidelines of Japan.
3. Subject to the terms and conditions herein set forth, the Company
agrees to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at a purchase price
determined in accordance with Schedule II hereto, the principal amount of the
Publicly Offered Certificates in accordance with Schedule III hereto. Upon the
authorization by you of the release of the Publicly Offered Certificates, the
several Underwriters propose to offer the Publicly Offered Certificates for sale
to the public (which may include selected dealers) upon the terms and conditions
set forth in the Prospectus.
4. (a) Except as set forth in the next paragraph, the Publicly
Offered Certificates to be purchased by the Underwriters will be represented by
one or more definitive global Certificates in book-entry form, which will be
deposited by or on behalf of the Company with The Depository Trust Company
("DTC") or its designated custodian. The Company will deliver such Certificates
to [_____] for the account of each Underwriter, against payment by or on behalf
of such Underwriter of the purchase price therefor by wire transfer to the
Company of Federal (same day) funds, by causing DTC to credit such Certificates
to the account of [_____] at DTC. The Company will cause the certificates
representing such Certificates to be made
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available to [_____] for checking at least twenty-four hours prior to the Time
of Delivery at an office designated by [_____] (the "Designated Office"). The
time and date of such delivery and payment shall be [_____], New York City time,
on [_____], or such other time and date as [_____] and the Company may agree
upon in writing. Such time and date are herein called the "Time of Delivery" and
such date is herein called the "Closing Date."
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Publicly Offered Certificates and any additional documents
requested by the Underwriters pursuant to Section 7(q) hereof, will be delivered
at the offices of Cadwalader, Xxxxxxxxxx & Xxxx LLP ("Xxxxxxxxxx") at Xxx Xxxxx
Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (the "Closing Location"), and the Publicly
Offered Certificates will be delivered at the Designated Office, all at the Time
of Delivery. A meeting will be held at the Closing Location at [_____], New York
City time, on the New York Business Day next preceding the Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday that is not a day on which banking
institutions in New York City are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters:
(a) If required, to file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b) not later than the time specified therein.
The Company will advise the Underwriters promptly of any such filing pursuant to
and within the time frames set forth in Rule 424(b). Subject to Section 12, the
Company will cause each Issuer Free Writing Prospectus to be transmitted for
filing pursuant to Rule 433 under the Securities Act by means reasonably
calculated to result in filing with the Commission pursuant to said rule;
(b) To make no amendment or any supplement to the Registration
Statement or the Prospectus as amended or supplemented prior to the Closing
Date, or to prepare, use, authorize, approve, refer to or file any Issuer Free
Writing Prospectus, without furnishing the Underwriters with a copy of the
proposed form thereof and providing the Underwriters with a reasonable
opportunity to review the same; and during such same period to advise the
Underwriters, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus as amended or supplemented or any amended
Prospectus has been filed or mailed for filing, of the issuance of any stop
order by the Commission, of the suspension of the qualification of any of the
Publicly Offered Certificates for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or the Prospectus as amended or supplemented or for additional
information; and, in the event of the issuance of any such stop order or of any
order preventing or suspending the use of any prospectus relating to the
Publicly Offered Certificates or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
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(c) Promptly from time to time to take such action as the
Underwriters may reasonably request in order to qualify the Publicly Offered
Certificates for offering and sale under the securities laws of such states as
the Underwriters may request and to continue such qualifications in effect so
long as necessary under such laws for the distribution of such Certificates;
provided, that in connection therewith neither the Trust nor the Company shall
be required to qualify to do business, or to file a general consent to service
of process in any jurisdiction;
(d) To furnish the Underwriters with copies of the Registration
Statement (including exhibits), copies of the Prospectus and each Free Writing
Prospectus (as amended or supplemented), in such quantities as the Underwriters
may from time to time reasonably request; and if, before a period of six months
shall have elapsed after the Closing Date and the delivery of a prospectus shall
be at the time required by law in connection with sales of any such Publicly
Offered Certificates, either (i) any event shall have occurred as a result of
which the Prospectus would include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or (ii) for any other reason it shall be necessary during such same
period to amend or supplement the Prospectus, as amended or supplemented, to
notify each Underwriter and upon their request to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies as
each Underwriter may from time to time reasonably request an amendment or a
supplement to the Prospectus which will correct such statement or omission or
effect such compliance; and in case any Underwriter is required by law to
deliver a prospectus in connection with sales of any of such Certificates at any
time six months or more after the Closing Date, upon such Underwriter's request,
to prepare and deliver to the Underwriter as many copies as such Underwriter may
request of an amended or supplemented prospectus complying with the Securities
Act;
(e) To make generally available to Holders of the Publicly Offered
Certificates as soon as practicable, but in any event no later than eighteen
months after the Closing Date, an earnings statement of the Company complying
with Rule 158 under the Securities Act and covering a period of at least twelve
consecutive months beginning after the Closing Date;
(f) So long as any of the Publicly Offered Certificates are
outstanding, to furnish the Underwriters copies of all reports or other
communications (financial or other) furnished to Holders of Certificates, and to
deliver to each Underwriter during such same period, (i) as soon as they are
available, copies of any reports and financial statements furnished to or filed
with the Commission; (ii) copies of each amendment to any of the Pooling and
Servicing Agreement and the Purchase Agreements; and (iii) such additional
information concerning the business and financial condition of the Company or
the Trust as each Underwriter may from time to time reasonably request; and
(g) Not to be or become an open-end investment company, unit
investment trust, closed-end investment company or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act.
-10-
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the
Commission's filing fees with respect to the Publicly Offered Certificates; (ii)
the fees, disbursements and expenses of counsel and accountants for the Company
in connection with the issue of the Certificates and all other expenses in
connection with the preparation and printing of all amendments and supplements
thereto and the mailing and delivery of copies thereof to the Underwriters and
dealers; (iii) the cost of printing or producing this Agreement, the Pooling and
Servicing Agreement, any Blue Sky Supplement and any term sheets, computational
materials, the Time of Sale Information, any Issuer Free Writing Prospectus, the
Prospectus and any other document produced in connection with the offering,
purchase, sale and delivery of the Publicly Offered Certificates; (iv) all
expenses in connection with the qualification of the Publicly Offered
Certificates for offering and sale under state securities laws as provided in
Section 5(c) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky Supplement; (v) any fees charged by securities rating services for
rating the Certificates; (vi) the cost of preparing the Certificates; the fees
and expenses of the Trustee and of any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Pooling and
Servicing Agreement and the Certificates; (vii) any cost incurred in connection
with the designation of the Certificates for trading in PORTAL; and (viii) all
other costs and expenses incident to the performance of the Company's
obligations hereunder that are not otherwise specifically provided for in this
Section 6. It is understood, however, that, except as provided in this Section 6
and Sections 8, 11 and 13(c) hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Publicly Offered Certificates by it and any advertising
expenses connected with any offers it may make.
7. The obligations of the Underwriters hereunder shall be subject,
in their discretion, to the condition that all representations and warranties
and other statements of the Company herein are, at and as of the Time of
Delivery, true and correct, the condition that the Company shall have performed
all of its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Pooling and Servicing Agreement, the Purchase Agreements and
all of the other agreements identified in such agreements shall have been duly
entered into by all of the respective parties;
(b) Cadwalader, counsel to the Company, shall have furnished to the
Underwriters its written opinion, dated the Time of Delivery, in form and
substance satisfactory to the Underwriters;
(c) [_____], counsel to [_____], shall have furnished to the
Underwriters its letter relating to the Prospectus, dated the Time of Delivery,
in form and substance satisfactory to the Underwriters;
(d) In-house counsel for the Company shall have furnished to the
Underwriters a written opinion, dated the Time of Delivery, in form and
substance satisfactory to the Underwriters; (e) [_____], counsel to [_____],
shall have furnished to the Underwriters its written opinion, dated the Time of
Delivery, in form and substance satisfactory to the Underwriters;
-11-
(f) [_____], counsel to [_____], shall have furnished to the
Underwriters its written opinion, dated the Time of Delivery, in form and
substance satisfactory to the Underwriters;
(g) [_____], counsel to [_____], shall have furnished to the
Underwriters its written opinion, dated the Time of Delivery, in form and
substance satisfactory to the Underwriters and counsel for the Underwriters;
(h) Counsel for the Master Servicer satisfactory to the Underwriters
shall have furnished to the Underwriters its written opinion, dated the Time of
Delivery, in form and substance satisfactory to the Underwriters and counsel for
the Underwriters;
(i) Counsel for the Special Servicer satisfactory to the
Underwriters shall have furnished to the Underwriters its written opinion, dated
the Time of Delivery, in form and substance satisfactory to the Underwriters and
counsel for the Underwriters;
(j) Counsel for the Trustee satisfactory to the Underwriters shall
have furnished to the Underwriters its written opinion, dated as of the Time of
Delivery, in form and substance satisfactory to the Underwriters and counsel for
the Underwriters;
(k) The independent accountants of the Company or other accountants
acceptable to the Underwriters shall have furnished to the Underwriters a letter
or letters, dated on the date hereof, and a letter or letters, dated the Time of
Delivery, respectively, containing statements and information of the type
customarily included in accountants' "comfort letters" and "agreed upon
procedures letters" with respect to certain financial information contained in
the Time of Sale Information and the Prospectus, in each case as to such matters
as the Underwriters may reasonably request and in form and substance
satisfactory to the Underwriters;
(l) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Time of Sale Information as of the Time of Sale
or Prospectus as amended prior to the Time of Delivery any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Time of Sale
Information as of the Time of Sale or Prospectus as amended prior to the Time of
Delivery, and (ii) since the respective dates as of which information is given
in the Prospectus as amended prior to the Time of Delivery there shall not have
been any change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus as
amended prior to the Time of Delivery, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the Underwriters so
material and adverse as to make it impracticable or inadvisable to proceed
-12-
with the offering or the delivery of the Publicly Offered Certificates on the
terms and in the manner contemplated in the Time of Sale Information and the
Prospectus as first amended or supplemented;
(m) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or preferred stock
by any "nationally recognized statistical rating organization," as that term is
defined by the Securities and Exchange Commission for purposes of Rule 436(g)(2)
under the Securities Act, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities or preferred
stock;
(n) On or after the date hereof, there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general moratorium
on commercial banking activities in New York declared by either Federal or New
York State authorities or any material disruption in commercial banking or
securities settlement or clearance services in the United States; (iii) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war; or (iv) the
occurrence of any other calamity or crisis or any change in the financial,
political or economic conditions in the United States or elsewhere, if the
effect of any such event specified in clause (iii) or (iv) in the judgment of
the Underwriters makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Publicly Offered Certificates on the
terms and in the manner contemplated in the Time of Sale Information and the
Prospectus;
(o) The Company shall have furnished or caused to be furnished to
the Underwriters at the Time of Delivery certificates of its officers
satisfactory to the Underwriters as to the accuracy in all material respects of
its representations and warranties herein at and as of such Time of Delivery, as
to the performance of all of its obligations hereunder to be performed at or
prior to such Time of Delivery, as to the matters set forth in Section 7(a)
above and as to such other matters as the Underwriters may reasonably request;
(p) The Underwriters shall have received evidence satisfactory to
them that the Publicly Offered Certificates are rated in the rating category or
categories specified on Schedule I hereto by the rating agency or agencies
specified on Schedule I hereto;
(q) the Underwriters shall have received such further opinions,
information, certificates and documents as the Underwriters may reasonably have
requested, and all proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be in all material
respects reasonably satisfactory in form and substance to the Underwriters and
their counsel; and
(r) The Registration Statement shall be effective under the
Securities Act and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been instituted or threatened by the Commission and the Prospectus Supplement
and each Free Writing Prospectus required to be filed by the Company pursuant to
Section 12 shall have been filed or transmitted for filing by means reasonably
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calculated to result in a filing with the Commission pursuant to Rule 424(b) or
Rule 433 under the Securities Act, as applicable.
The Underwriters and their special counsel shall have received
copies of all documents and other information as they may reasonably request, in
form and substance satisfactory, to the Underwriters and their special counsel,
with respect to such transactions and the taking of all proceedings in
connection therewith.
8. (a) The Company will indemnify and hold harmless each Underwriter
(severally and not jointly) against any losses, expenses, claims, damages or
liabilities, joint or several (and will reimburse each Underwriter for any legal
or other expenses reasonably incurred by each Underwriter in connection with
investigating or defending any action or claim), to which each Underwriter may
become subject, under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, expenses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement or
any amendment or supplement thereto or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) any untrue statement or alleged untrue
statement of any material fact contained in the Prospectus Supplement or the
Base Prospectus or any amendment or supplement thereto or the omission or
alleged omission 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 or (iii) any untrue statement or alleged
untrue statement of a material fact contained in any Issuer Free Writing
Prospectus or any Issuer Information contained in any Underwriter Free Writing
Prospectus, or the omission or alleged omission to state a material fact
necessary to make the statements therein (when read in conjunction with the
other Time of Sale Information), in light of the circumstances under which they
were made, not misleading, which was not corrected by Corrective Information
subsequently supplied by the Company or any Mortgage Loan Seller to any
Underwriter at least 1 Business Day prior to the Time of Sale and the person
asserting any such loss, expenses, claim, damage or liability did not receive
such Corrective Information prior to the Time of Sale, or (iv) any breach of the
representation and warranty in Section 1(x) or Section 1(y); provided, however,
that, in the case of clauses (i) and (ii) above, the Company shall not be liable
in any such case to the extent that any such loss, expense, claim, damage or
liability is caused by any such untrue statement or omission or alleged untrue
statement or omission with respect to any information in the Prospectus as to
which such Underwriter has agreed to indemnify the Company pursuant to Section
8(b); and provided, further, that the Company shall have no obligation to so
indemnify and hold harmless to the extent that such loss, expense, claim, damage
or liability arises out of or is based upon an untrue statement or omission or
an alleged untrue statement or omission with respect to the Mortgage Loan Seller
Information.
(b) Each Underwriter shall, severally and not jointly, indemnify and
hold harmless the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) as incurred, but only with respect to (i) untrue statements
or alleged untrue statements of a material fact, or omissions or alleged
omissions to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, in the
Underwriter Information and
-14-
(ii) untrue statements or alleged untrue statements of a material fact in any
Underwriter Free Writing Prospectus or omission or alleged omission to state in
such Underwriter Free Writing Prospectus a material fact necessary in order to
make the statements therein (when read in conjunction with the Time of Sale
Information), in the light of the circumstances under which they were made, not
misleading; provided, that no Underwriter shall be obligated to so indemnify and
hold harmless the Company (A) to the extent such Liabilities are caused by a
misstatement or omission resulting from an error or omission in the Issuer
Information which was not corrected by Corrective Information subsequently
supplied by the Company or any Mortgage Loan Seller to any Underwriter at least
1 Business Day prior to the Time of Sale or (B) with respect to information that
is also contained in the Time of Sale Information.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party, except to the extent that such omission to notify
materially prejudices the indemnifying party and in no event relieves it of
liability it may otherwise then have under this Section 8. Upon request of the
indemnified party, the indemnifying party shall retain counsel reasonably
satisfactory to the indemnified party (who shall not, except with the consent of
the indemnified party, be counsel to the indemnifying party) to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding as incurred. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have agreed to the retention of such
counsel, (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them or (iii) the indemnifying
party shall have failed to designate within a reasonable period of time counsel
reasonably satisfactory to the indemnified party (in which case the fees and
expenses shall be paid as incurred by the indemnifying party). In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. An indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent.
However, if settled with such consent or if there be a final judgment for the
plaintiff, the
-15-
indemnifying party shall indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment. Notwithstanding the
foregoing two sentences, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel for which the indemnifying party is obligated under this
subsection, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. If an indemnifying party assumes the defense of any
proceeding, it shall be entitled to settle such proceeding with the consent of
the indemnified party or, if such settlement (i) provides for an unconditional
release of the indemnified party in connection with all matters relating to the
proceeding that have been asserted against the indemnified party in such
proceeding by the other parties to such settlement and (ii) does not require an
admission of fault, culpability or failure to act by or on behalf of the
indemnified party, without the consent of the indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, expenses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Publicly Offered Certificates subject to
this Agreement (taking into account the portion of the proceeds of the offering
realized by each). If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the Underwriters
on the other in connection with the statements or omissions which resulted in
such losses, expenses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total proceeds from
the sale of the Certificates by the Underwriters (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information concerning the matter with respect to which the claim was asserted,
and opportunity to correct or prevent such statement or omission any other
equitable considerations appropriate under the circumstances. The Company and
the Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata or per capita
allocation (even if the Underwriters were treated as one entity for such
purposes) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
expenses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
-16-
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim, which expenses the
indemnifying party shall pay as and when incurred at the request of the
indemnified party. Notwithstanding the provisions of subsection (c) above and
this subsection (d), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total underwriting discounts and
commissions and other fees received by such Underwriter in connection with the
offering of the Certificates exceeds the amount of damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligation in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint. The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies that may otherwise be
available to any indemnified party at law or in equity.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of any
Underwriter or any Person, if any, who controls any Underwriter within the
meaning of the Securities Act or the Exchange Act; and the obligations of the
Underwriters with respect to any Publicly Offered Certificates under this
Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each Person, if
any, who controls the Company within the meaning of the Securities Act.
(f) The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or other liabilities referred to in this Section
8 shall be deemed to include any legal fees and disbursements or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such claim. 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.
(g) The indemnity and contribution agreements contained in this
Section 8 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Company,
an Underwriter, any of their respective directors or officers, or any person
controlling the Company or such Underwriter, and (iii) acceptance of and payment
for any of the Publicly Offered Certificates.
(h) Each Underwriter (the "Indemnifying Underwriter") will indemnify
and hold harmless the other Underwriters and each person, if any, who controls
such Underwriter within the meaning of either the Securities Act or the Exchange
Act (the "Non-Indemnifying Underwriter") from and against any and all losses,
expenses, claims, damages or liabilities, joint or several, to which the
Non-Indemnifying Underwriter becomes subject under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, common law
or otherwise insofar as such losses, expenses, claims, damages or liabilities,
(or actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a
-17-
material fact or the omission or alleged omission (when read in conjunction with
the Time of Sale Information) to state a material fact necessary in order to
make the statements, in the light of the circumstances under which they were
made, not misleading at the Time of Sale, contained in any Underwriter Free
Writing Prospectus prepared by such Indemnifying Underwriter or (ii) the failure
of such Indemnifying Underwriter, or any member of its selling group, to comply
with any provision of Section 12, and agrees to reimburse such Non-Indemnifying
Underwriter, as incurred for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action, except to the extent such losses, claims, damages or
liabilities are caused by a misstatement or omission resulting from an error or
omission in the Issuer Information which was not corrected by Corrective
Information subsequently supplied by the Company or any Mortgage Loan Seller to
any Underwriter at least 1 Business Day prior to the Time of Sale. This
agreement will be in addition to any liability that any Underwriter may
otherwise have.
9. (a) If any Underwriter shall default in its obligation to
purchase Publicly Offered Certificates which it has agreed to purchase
hereunder, you may in your discretion arrange for you or another party or other
parties to purchase such Certificates on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange for
the purchase of such Certificates, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to you to purchase such Certificates on such terms.
In the event that, within the respective prescribed periods, you notify the
Company that you have so arranged for the purchase of such Certificates, or the
Company notifies you that it has so arranged for the purchase of such
Certificates, you or the Company shall have the right to postpone the Time of
Delivery for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees to
file promptly any amendments to the Registration Statement or the Prospectus
which in your opinion may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any person substituted under this Section
with like effect as if such person had originally been a party to this Agreement
with respect to such Certificates.
(b) If, after giving effect to any arrangements for the purchase of
the Publicly Offered Certificates of a defaulting Underwriter or Underwriters by
you and the Company as provided in subsection (a) above, the aggregate principal
amount of such Certificates which remains unpurchased does not exceed
one-eleventh of the aggregate principal amount of all the Publicly Offered
Certificates, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Certificates
which such Underwriter agreed to purchase hereunder and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Certificates which such Underwriter agreed to purchase
hereunder) of the Certificates of such defaulting Underwriter or Underwriters
for which such arrangements have not been made; but nothing herein shall relieve
a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Certificates of a defaulting Underwriter or Underwriters by you and the
Company as provided in subsection (a) above, the aggregate principal amount of
such Certificates which remains
-18-
unpurchased exceeds one-eleventh of the aggregate principal amount of all the
Publicly Offered Certificates, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Certificates of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters as
set forth in this Agreement, shall remain in full force and effect, regardless
of any investigation (or any statement as to the results thereof) made in
connection with the issuance of Certificates by or on behalf of any Underwriter
or any controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company and shall survive delivery of and
payment for the Publicly Offered Certificates.
11. If this Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not be under any liability to any Underwriter except
as provided in Sections 6 and 8 hereof; but if for any reason the Certificates
are not delivered by or on behalf of the Trustee as provided herein, other than
by several Underwriters' failure to comply with its obligations hereunder, the
Company will reimburse the Underwriters for all out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Publicly Offered Certificates, but the Company shall be under no further
liability to any Underwriter with respect to such Certificates except as
provided in Section 6 and Section 8 hereof.
12. (a) The Underwriters may prepare and provide to prospective
investors Free Writing Prospectuses (as defined below), or portions thereof,
which the Company is required to file with the Commission in electronic format
and will use reasonable efforts to provide to the Company such Free Writing
Prospectuses, or portions thereof, in either Microsoft Word(R) or Microsoft
Excel(R) format and not in a PDF, except to the extent that the Company, in its
sole discretion, waives such requirements, subject to the following conditions
(to which such conditions each Underwriter agrees (provided that no Underwriter
shall be responsible for any breach of the following conditions by any other
Underwriter)):
(i) Unless preceded or accompanied by the Prospectus, the
Underwriters shall not convey or deliver any written communication to any
person in connection with the initial offering of the Publicly Offered
Certificates, unless such written communication (1) is made in reliance on
Rule 134 under the Securities Act, (2) constitutes a prospectus satisfying
the requirements of Rule 430B under the Securities Act or (3) constitutes
Time of Sale Information or a Free Writing Prospectus that does not
constitute Time of Sale Information. The Underwriters shall not convey or
deliver in connection with the initial offering of the Publicly Offered
Certificates any materials in reliance on any "ABS informational and
computational material," as defined in Item 1101(a) of Regulation AB under
the Securities Act ("ABS Informational and Computational Material"), in
reliance upon Rules 167 and 426 under the Securities Act.
-19-
(ii) Each Underwriter shall deliver to the Company, no later than
two business days prior to the date of first use thereof or such later
date as may be agreed to by the Company that allows the Company to satisfy
the requirements of Rule 433 under the Securities Act, (a) any Free
Writing Prospectus that was prepared by or on behalf of such Underwriter
(an "Underwriter Free Writing Prospectus") and that contains any "issuer
information," as defined in Rule 433(h) under the Securities Act and
footnote 271 of the Commission's Securities Offering Reform Release No.
33-8591 ("Issuer Information") (which the parties hereto agree includes,
without limitation, Mortgage Loan Seller Information), and (b) any Free
Writing Prospectus or portion thereof prepared by or on behalf of such
Underwriter that contains only a description of the final terms of the
Publicly Offered Certificates. Notwithstanding the foregoing, any Free
Writing Prospectus that contains only ABS Informational and Computational
Materials may be delivered by an Underwriter to the Company not later than
the later of (A) two business days prior to the due date for filing of the
Prospectus pursuant to Rule 424(b) under the Securities Act or such later
date as may be agreed to by the Company or (B) the date of first use of
such Free Writing Prospectus.
(iii) Each Underwriter represents and warrants to the Company that
the Free Writing Prospectuses to be furnished to the Company by such
Underwriter pursuant to Section 12(a)(ii) will constitute all Free Writing
Prospectuses of the type described therein that were furnished to
prospective investors by such Underwriter in connection with its offer and
sale of the Publicly Offered Certificates.
(iv) Each Underwriter represents and warrants to the Company that
each Free Writing Prospectus required to be provided by it to the Company
pursuant to Section 12(a)(ii) did not, as of the Time of Sale, and will
not as of the Closing Date, include any untrue statement of a material
fact or omit any material fact necessary to make the statements contained
therein (when read in conjunction with the Time of Sale Information), in
light of the circumstances under which they were made, not misleading;
provided however, that such Underwriter makes no representation to the
extent such misstatements or omissions were the result of any inaccurate
Issuer Information, which information was not corrected by Corrective
Information subsequently supplied by the Company or any Mortgage Loan
Seller to such Underwriter within a reasonable period of time prior to the
Time of Sale.
(v) The Company agrees to file with the Commission the following:
(A) Any Issuer Free Writing Prospectus;
(B) Any Free Writing Prospectus or portion thereof delivered
by any Underwriter to the Company pursuant to Section 12(a)(ii); and
(C) Any Free Writing Prospectus for which the Company or any
person acting on its behalf provided, authorized or approved
information that is prepared and published or disseminated by a
person unaffiliated with the Company or any other offering
participant that is in the business of publishing, radio or
television broadcasting or otherwise disseminating communications.
-20-
Notwithstanding the foregoing, the Company shall not be required to
file (1) Issuer Information contained in any Underwriter Free
Writing Prospectus or Free Writing Prospectus of any other offering
participant other than the Company, if such information is included
or incorporated by reference in a prospectus or Free Writing
Prospectus previously filed with the Commission that relates to the
offering of the Publicly Offered Certificates, or (2) any Free
Writing Prospectus or portion thereof that contains a description of
the Publicly Offered Certificates or the offering of the Publicly
Offered Certificates which does not reflect the final terms thereof.
(vi) Any Free Writing Prospectus required to be filed pursuant to
Section 12(a)(v)(C) by the Company shall be filed with the Commission not
later than the date of first use of the Free Writing Prospectus, except
that:
(A) Any Free Writing Prospectus or portion thereof required to
be filed that contains only the description of the final terms of
the Publicly Offered Certificates shall be filed by the Company with
the Commission within two days of the later of the date such final
terms have been established for all classes of Publicly Offered
Certificates and the date of first use;
(B) Any Free Writing Prospectus or portion thereof required to
be filed that contains only ABS Informational and Computational
Material shall be filed by the Company with the Commission not later
than the later of the due date for filing the final Prospectus
relating to the Publicly Offered Certificates pursuant to Rule
424(b) under the Securities Act or two business days after the first
use of such Free Writing Prospectus; and
(C) Any Free Writing Prospectus required to be filed pursuant
to Section 12(a)(v)(C) shall, if no payment has been made or
consideration has been given by or on behalf of the Company for the
Free Writing Prospectus or its dissemination, be filed by the
Company with the Commission not later than four business days after
the Company becomes aware of the publication, radio or television
broadcast or other dissemination of the Free Writing Prospectus.
(vii) Each Underwriter shall file with the Commission, or provide to
the Company at least two Business Days prior to the time such filing is
required, any Free Writing Prospectus that is used or referred to by it
and distributed by or on behalf of such Underwriter in a manner reasonably
designed to lead to its broad, unrestricted dissemination not later than
the date of the first use of such Free Writing Prospectus.
(viii) Notwithstanding the provisions of Section 12(a)(vii), each
Underwriter shall file, or cause to be filed, with the Commission any Free
Writing Prospectus for which such Underwriter or any person acting on its
behalf provided, authorized or approved information that is prepared and
published or disseminated by a person unaffiliated with the Company or any
other offering participant that is in the business of publishing, radio or
television broadcasting or otherwise disseminating written communications
and for which no payment was made or consideration given by or on
-21-
behalf of the Company or any other offering participant, not later than
four business days after such Underwriter becomes aware of the
publication, radio or television broadcast or other dissemination of the
Free Writing Prospectus.
(ix) Notwithstanding the provisions of Sections 12(a)(v) and
12(a)(vii), neither the Company nor any Underwriter shall be required to
file any Free Writing Prospectus that does not contain substantive changes
from or additions to a Free Writing Prospectus previously filed with the
Commission, and no Underwriter shall be required to file any Free Writing
Prospectus to the extent that the information contained therein is
included in a prospectus or Free Writing Prospectus previously filed that
relates to the offering of the Publicly Offered Certificates.
(x) The Company and the Underwriters each agree that any Free
Writing Prospectuses prepared by it shall contain the following legend, or
substantially equivalent legend that complies with Rule 433 of the
Securities Act:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the
depositor has filed with the SEC for more complete information about
the depositor, the issuing trust, and this offering. You may get
these documents for free by visiting XXXXX on the SEC Web site at
xxx.xxx.xxx. Alternatively, the depositor, any underwriter or any
dealer participating in the offering will arrange to send you the
prospectus if you request it by calling toll-free 0-000-000-0000.
(xi) The Depositor and each Underwriter agree to retain all Free
Writing Prospectus that they have used and that are not required to be
filed pursuant to this Section 4 for a period of three years following the
initial bona fide offering of the Certificates.
(xii) (A) In the event that the Company becomes aware that, as of
the Time of Sale, any Issuer Free Writing Prospectus contains any untrue
statement of a material fact or omits to state a material fact necessary
in order to make the statements contained therein (when read in
conjunction with the Time of Sale Information), in light of the
circumstances under which they were made, not misleading (a "Defective
Issuer Free Writing Prospectus"), the Company shall notify the
Underwriters of such untrue statement or omission within one business day
after discovery and the Company shall, if requested by the Underwriters,
prepare and deliver to the Underwriters a Free Writing Prospectus that
corrects the material misstatement or omission in the Defective Issuer
Free Writing Prospectus (such corrected Issuer Free Writing Prospectus, a
"Corrected Issuer Free Writing Prospectus").
(B) In the event that any Underwriter becomes aware that, as
of the Time of Sale, any Underwriter Free Writing Prospectus
delivered to an investor in any Publicly Offered Certificates
contained any untrue statement of a material
-22-
fact or omitted to state a material fact necessary in order to make
the statements contained therein (when read in conjunction with the
Time of Sale Information), in light of the circumstances under which
they were made, not misleading (together with a Defective Issuer
Free Writing Prospectus, a "Defective Free Writing Prospectus"),
such Underwriter shall notify the Company of such untrue statement
or omission within one business day after discovery.
(C) The Underwriters shall, if requested by the Company:
(1) if the Defective Free Writing Prospectus was an
Underwriter Free Writing Prospectus, prepare a Free Writing
Prospectus that corrects the material misstatement in or
omission from the Defective Free Writing Prospectus (together
with a Corrected Issuer Free Writing Prospectus, a "Corrected
Free Writing Prospectus");
(2) deliver the Corrected Free Writing Prospectus to
each investor which received the Defective Free Writing
Prospectus prior to entering into a contract of sale with such
investor;
(3) notify such investor in a prominent fashion that the
prior contract of sale with the investor has been terminated,
and of the investor's rights as a result of termination of
such agreement;
(4) provide such investor with an opportunity to
affirmatively agree to purchase the Publicly Offered
Certificates on the terms described in the Corrected Free
Writing Prospectus; and
(5) comply with any other requirements for reformation
of the original contract of sale with such investor, as
described in Section IV.A.2.c of Commission's Securities
Offering Reform Release No. 33-8591.
(D) In the event that the Defective Free Writing Prospectus
was an Issuer Free Writing Prospectus, and the Underwriters shall in
good faith incur any costs to an investor in connection with the
reformation of the contract of sale with the investor, the Company
agrees to reimburse the Underwriters for such costs; provided that,
before incurring such costs, the Underwriters first permits the
Company access to the applicable investor and an opportunity to
attempt to mitigate such costs through direct negotiation with such
investor.
(xiii) Each Underwriter covenants with the Company that after the
Prospectus is available such Underwriter shall not distribute any written
information concerning the Publicly Offered Certificates to a prospective
investor unless such information is preceded or accompanied by the
Prospectus.
13. Termination of the Obligations of the Underwriters. (a) Any
Underwriter may terminate its obligations under this Agreement by notice to the
Company at any time at or prior to the Time of Delivery if the sale of the
Certificates provided for herein is not
-23-
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.
(b) The obligations of the Underwriters to purchase the Certificates
shall be terminable by [_____] and [_____] if at any time on or prior to the
Time of Delivery (i) any change, or any development or event involving a
prospective change in the condition (financial or other), business, properties
or results of operations of the Company or the Trust Fund which, in the judgment
of a majority in interest of the Underwriters (based on Underwriting
obligations), is material and adverse and makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment for
the Certificates; (ii) any downgrading in the rating of any of the Certificates
by any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act), or any public announcement
that any such organization has under surveillance or review its rating of any of
the Certificates (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as would, in
the judgment of a majority in interest of the Underwriters, be likely to
prejudice materially the success of the proposed issue, sale or distribution of
the Certificates, whether in the primary market or in respect of dealings in the
secondary market; (iv) any material suspension or material limitation of trading
in securities generally on the New York Stock Exchange or over-the-counter
market, or any setting of minimum prices for trading on such exchange or market,
or any suspension of trading of any Certificates on any relevant exchange or in
the over-the-counter market; (v) any general moratorium on commercial banking
activities declared by any Federal or New York State authorities; (vi) any major
disruption of settlements of securities or clearance services in the United
States; or (vii) any attack on, outbreak or escalation of hostilities or act of
terrorism involving the United States, any declaration of war by Congress or any
other national or international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters, the effect of any such attack,
outbreak, escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public offering or
the sale of any payment for the Certificates.
(c) If any Underwriter terminates its obligations under this
Agreement in accordance with Section 13(a), the Company shall reimburse such
Underwriter for all reasonable out-of pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been reasonably incurred by such
Underwriter in connection with the proposed purchase and sale of the
Certificates.
14. All statements, requests, notices and agreements hereunder shall
be in writing and shall be deemed to have been duly given if (a) personally
delivered, (b) mailed by registered or certified mail, postage prepaid and
received by the addressee, (c) sent by express courier delivery service and
received by the addressee or (d) transmitted by telex or facsimile transmission
(or any other type of electronic transmission agreed upon by the parties) and
confirmed by a writing delivered by any of the means described in (a), (b) or
(c), if (i) to the Company, addressed to [___________].
-24-
15. This Agreement shall be binding upon, and inure solely to the
benefit of the Underwriters, the Company and, to the extent provided in Section
8 hereof, the officers and directors of the Company and each person who controls
the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Publicly Offered Certificates from any Underwriter shall be deemed a successor
or assign merely by reason of such purchase.
16. Time shall be of the essence of this Agreement.
17. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
18. THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED
BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM,
WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
19. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
20. The Company is authorized, subject to applicable law, to
disclose any and all aspects of this potential transaction that are necessary to
support any U.S. federal income tax benefits expected to be claimed with respect
to such transaction, and all materials of any kind (including tax opinions and
other tax analyses) related to those benefits, without the Underwriters imposing
any limitations of any kind.
21. This Agreement supersedes all prior or contemporaneous
agreements and understandings relating to the subject matter hereof. Neither
this Agreement nor any term hereof may be amended, waived, discharged or
terminated except by a writing signed by the party against whom enforcement of
such amendment, waiver, discharge or termination is sought.
-25-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned two counterparts hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and each of the Underwriters.
Very truly yours,
GS MORTGAGE SECURITIES CORPORATION II
By:
--------------------------------------
Name:
Title:
Accepted as of the date hereof:
[_____],
as Underwriter
By:
--------------------------------------
Name:
Title:
[_____],
as Underwriter
By:
--------------------------------------
Name:
Title:
SCHEDULE I
----------
Approximate
Initial Initial
Class of Certificate Certificate Ratings
Certificates Principal Balance Rate ([_______])
------------------ --------------------- --------------- ------------------
[_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____]
Sch. I-1
SCHEDULE II
-----------
Purchase Price
--------------
Class of
Certificates Price
--------------------------------------- --------------------------------------
[_____] [_________]
[_____] [_________]
[_____] [_________]
[_____] [_________]
[_____] [_________]
[_____] [_________]
[_____] [_________]
[_____] [_________]
[_____] [_________]
[_____] [_________]
[_____] [_________]
[_____] [_________]
[_____] [_________]
Sch. II-1
SCHEDULE III
Principal Amount of Certificates
--------------------------------
Principal Principal Principal Principal Principal
Amount of Amount of Amount of Amount of Amount of
Underwriter Class A-1 Class A-2 Class A-3 Class A-AB Class A-4
------------------ ------------- ----------- ---------- ------------ -----------
[_____] [_____] [_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____] [_____] [_____]
Total............. [_____] [_____] [_____] [_____] [_____]
Principal Principal Principal Principal Principal
Amount of Amount of Amount of Amount of Amount of
Underwriter Class A-1A Class A-M Class A-J Class B Class C
------------------ ------------- ----------- ---------- ------------ -----------
[_____] [_____] [_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____] [_____] [_____]
Total............. [_____] [_____] [_____] [_____] [_____]
Principal Principal Principal
Amount of Amount of Amount of
Underwriter Class D Class E Class F
------------------ ------------- ----------- ----------
[_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____]
[_____] [_____] [_____] [_____]
Total............. [_____] [_____] [_____]
Sch. III-1
ANNEX A
-------
Annex A-1
ANNEX B
-------
Annex B-1
