EXHIBIT 1
GS MORTGAGE SECURITIES CORP.
C-BASS TRUST 2006-CB9
C-BASS MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2006-CB9
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Underwriting Agreement
Dated as of December 6, 2006
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., as
as representative of the several underwriters
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
GS Mortgage Securities Corp. (the "Company") proposes to cause
C-BASS Trust 2006-CB9 (the "Trust") to issue its C-BASS Mortgage Loan Asset
Backed Certificates, Series 2006-CB9 (the "Certificates"), pursuant to a Pooling
and Servicing Agreement, dated as of November 1, 2006 (the "Pooling and
Servicing Agreement"), by and among the Company, as depositor, ▇▇▇▇▇▇ Loan
Servicing LP, as servicer (the "Servicer"), Credit-Based Asset Servicing and
Securitization LLC, as sponsor ("C-BASS"), LaSalle Bank National Association, as
trustee (the "Trustee"), and proposes to sell to you (the "Underwriter") the
Certificates specified on Schedule I hereto. The Class A-1, Class A-2, Class
A-3, Class A-4, Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class
M-6, Class M-7, Class M-8 and Class M-9 Certificates identified on Schedule I
hereto are the "Publicly Offered Certificates." The Publicly Offered
Certificates, together with the Trust's C-BASS Mortgage Loan Asset-Backed
Certificates, Class B-1, Class B-2, Class B-3, Class R, Class R-X, Class CE-1,
Class CE-2 and Class P Certificates, will represent in the aggregate the entire
beneficial ownership interest in the assets of the Trust primarily consisting of
a segregated pool of mortgage loans and certain other related assets.
The Company purchased certain mortgage loans (the "Mortgage Loans")
from C-BASS, pursuant to that certain Mortgage Loan Purchase Agreement (the
"Mortgage Loan Purchase Agreement"), dated as of December 7, 2006, by and
between the Company, as purchaser, and C-BASS.
At or prior to the time when sales to investors of the Publicly
Offered Certificates were first made (the "Time of Sale"), the Company had
prepared the following information (collectively, the "Time of Sale
Information"): the C-BASS 2006-CB9 Free Writing Prospectus dated November 28,
2006, including the Company's Term Sheet attached thereto (the "Transaction
FWP"), the Company's Prospectus dated October 6, 2006, and any other
"free-writing prospectus" (as defined pursuant to Rule 405 under the Act (as
defined herein)) (a "Free Writing Prospectus") listed on Schedule IV hereto. If,
subsequent to the date of this Agreement, the Company and the Underwriters
determine that such information included an untrue statement of material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading and terminate their old purchase contracts and entered into new
purchase contracts with purchasers of the Publicly Offered Certificates, then
"Time of Sale Information" will refer to the information available to purchasers
at the time of entry into the first such new purchase contract, including any
information that corrects such material misstatements or omissions ("Corrective
Information") and "Time of Sale" will refer to the time and date on which such
new purchase contracts were entered into.
Certain Mortgage Loan documents, including the mortgage notes and
mortgages, will be held by the Custodian pursuant to the Pooling and Servicing
Agreement. The Publicly Offered Certificates are described more fully in
Schedule I hereto and in the Time of Sale Information and the Prospectus (as
defined herein). Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
1. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S-3 (Commission File No.
333-132809), including a form of prospectus and such amendments thereto as may
have been required to the date hereof, relating to the Publicly Offered
Certificates and the offering thereof from time to time in accordance with Rule
415 under the Securities Act of 1933, as amended (the "Act"), has been filed
with the Securities and Exchange Commission (the "Commission") and such
registration statement, as amended, has become effective. Such registration
statement, as amended or supplemented as of the date of the Prospectus (as
defined herein), including the exhibits thereto and information that is
contained in the Prospectus (as defined below) and is deemed to be part of and
included in such registration statement as such registration statement may have
been amended or supplemented as of the date of the Prospectus, is hereinafter
referred to as the "Registration Statement"; the prospectus first required to be
filed to satisfy the condition set forth in Rule 172(c) and pursuant to Rule
424(b) under the Act, is hereinafter referred to as the "Base Prospectus"; such
form of supplement to the Base Prospectus relating to the Publicly Offered
Certificates, in the form first required to be filed to satisfy the condition
set forth in Rule 172(c) and pursuant to Rule 424(b) under the Act (including
the Base Prospectus as so supplemented) is hereinafter referred to as the
"Prospectus Supplement"; and the Base Prospectus and the Prospectus Supplement,
together, are hereinafter referred to as the "Prospectus". For purposes of this
Agreement, "Effective Time" means the date and time as of which such
Registration Statement, or the most recent post-effective amendment thereto, is
declared effective by the Commission or is deemed effective pursuant to Rule
430B under the Act, and "Effective Date" means the date of the Effective Time or
deemed effective date pursuant to Rule 430B under the Act;
(b) On the Effective Date, the Registration Statement did conform in
all material respects to the requirements of the Act, the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), where applicable, and the rules
and regulations of the Commission under the Act or the Exchange Act, as
applicable, and did not, as of the Effective Date, contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any statement
or omission made in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter expressly through ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co. for use in the Registration Statement;
(c) On the date of this Agreement, the Registration Statement
conforms, and at the time of the last filing of the Prospectus pursuant to Rule
424(b), the Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Act and the rules and regulations
of the Commission thereunder (the "Rules and Regulations"), and, except as
aforesaid, neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not
apply to any statement or omission made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter expressly
through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. for use in the Registration Statement, the
Prospectus or the Time of Sale Information (such information being collectively
referred to as "Underwriter Statements");
(d) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations thereunder; and
any further documents so filed and incorporated by reference in the Prospectus,
when such documents are filed with the Commission, will conform in all material
respects to the requirements of the Exchange Act and the rules and regulations
thereunder; provided, however, that this representation and warranty shall not
apply to any statement or omission made in reliance upon and in conformity with
the Underwriter Statements;
(e) The Time of Sale Information, at the Time of Sale, did not, and
at the Closing Date will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided that the Company makes no representation or warranty with respect to
any statements or omissions made in reliance upon and in conformity with the
Underwriter Statements;
(f) Other than the Prospectus, the Company (including its agents and
representatives other than the Underwriters in their capacities as such) has not
made, used, prepared, authorized, approved or referred to and will not make,
use, prepare, authorize, approve or refer to any "written communication" (as
defined in Rule 405 under the Act) that constitutes an offer to sell or
solicitation of an offer to buy the Publicly Offered Certificates other than (i)
any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of
the Act or Rule 134 under the Act, (ii) the Time of Sale Information, and (iii)
each other written communication of the Company or its agents and
representatives approved in writing in advance by the Underwriters 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 Act, being
referred to as an "Issuer Free Writing Prospectus"). Each such Issuer Free
Writing Prospectus complied or, if used after the date hereof, will comply, in
all material respects with the Act and the rules and regulations promulgated
thereunder, has been filed or will be filed in accordance with Section 5(a) (to
the extent required thereby) and did not at the Time of Sale, and at the Closing
Date will not, contain any untrue statements of a material fact or (when read in
conjunction with the other Time of Sale Information) omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with the Underwriter
Statements;
(g) Since the respective dates as of which information is given in
the Time of Sale Information, Registration Statement or the Prospectus, there
has not been any change in the capital stock or long-term debt of the Company or
any of its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Time of Sale Information, Registration Statement or the
Prospectus;
(h) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware and
has all requisite power and authority (corporate and other) to own its
properties and to conduct its business as described in the Time of Sale
Information and the Prospectus;
(i) At the Time of Delivery (as defined herein), the Pooling and
Servicing Agreement and the Mortgage Loan Purchase Agreement will have been duly
authorized, executed and delivered and will constitute a valid and legally
binding obligation of the Company, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors' rights and to
general principles of equity;
(j) When the Certificates are issued, executed, authenticated and
delivered pursuant to this Agreement and the Pooling and Servicing Agreement,
the Certificates will have been duly authorized, executed, authenticated, issued
and delivered and will be entitled to the benefits of the Pooling and Servicing
Agreement; and the Certificates and the Pooling and Servicing Agreement will
conform to the descriptions thereof in the Time of Sale Information and the
Prospectus;
(k) The issue and sale of the Certificates, the compliance by the
Company with all of the provisions of this Agreement, the Pooling and Servicing
Agreement and the Mortgage Loan Purchase Agreement, and the consummation of the
transactions herein and therein contemplated, will not conflict with or result
in a breach of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the Company is subject,
nor will such action result in any violation of the provisions of the
Certificate of Incorporation or the By-Laws of the Company or any statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company, or any of its properties; and no consent,
approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue and sale of
the Publicly Offered Certificates or the consummation by the Company of the
other transactions contemplated by this Agreement, the Pooling and Servicing
Agreement or the Mortgage Loan Purchase Agreement except such as have been
obtained under the Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Publicly
Offered Certificates by the Underwriters;
(l) The statements set forth in the Transaction FWP and the
Prospectus under the caption "Description of the Certificates," insofar as they
purport to constitute a summary of the terms of the Certificates and insofar as
they purport to describe the provisions of the documents referred to therein,
are accurate, complete and fair;
(m) Other than as set forth or contemplated in the Time of Sale
Information or the Prospectus, there are no legal or governmental proceedings
pending to which the Company is a party or of which any property of the Company
is the subject that, if determined adversely to the Company, would individually
or in the aggregate have a material adverse effect on the condition (financial
or otherwise), earnings, affairs, business, properties or prospects of the
Company, and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
(n) The Company will, at the Time of Delivery, own the Mortgage
Loans, free and clear of any lien, mortgage, pledge, charge, security interest
or other encumbrance, and, at the Time of Delivery, the Company will have full
power and authority to sell and deliver the Mortgage Loans to the Trustee under
the Pooling and Servicing Agreement and at the Time of Delivery will have duly
authorized such assignment and delivery to the Trustee by all necessary action;
(o) Any taxes, fees and other governmental charges in connection
with the execution, delivery and performance of this Agreement, the Pooling and
Servicing Agreement, the Mortgage Loan Purchase Agreement and the Publicly
Offered Certificates will have been paid at or prior to the Time of Delivery;
(p) At the Time of Delivery, the Mortgage Loans will have been duly
and validly assigned and delivered by the Company to the Trustee;
(q) The Company is not, and on the date on which the first bona fide
offer of the Publicly Offered Certificates is made (within the meaning of Rule
164(h)(2) under the Act) will not be, an "ineligible issuer", as defined in Rule
405 under the Act.
(r) The Trust created by the Pooling and Servicing Agreement will
not at the Time of Delivery be required to be registered under the Investment
Company Act of 1940, as amended (the "Investment Company Act"); and
(s) The Company is not and at the Time of Delivery will not be an
"investment company," as such term is defined in the Investment Company Act.
2. Each of the Underwriters, severally and not jointly, represent
and warrant 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 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) Such 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) Such Underwriter has complied and will comply with all
applicable provisions of the FSMA with respect to anything done by it in
relation to the Publicly Offered Certificates in, from or otherwise involving
the United Kingdom.
3. Subject to the terms and conditions herein set forth, the Company
agrees to sell to 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 Time of Sale Information and the Prospectus.
4. (a) The Class A-1, Class A-2, Class A-3, Class A-4, Class M-1,
Class M-2, Class M-3, Class M-4, Class M-5, Class M-6, Class M-7, Class M-8 and
Class M-9 Certificates to be purchased by the 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 ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. for the account of each Underwriter, against payment by
or on behalf of the Underwriter of the purchase price therefor by wire transfer
to the Company of Federal (same day) funds, by causing DTC to credit such
Certificates to the account of the Underwriter at DTC. The Company will cause
the certificates representing such Certificates to be made available to ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co. for checking at least twenty-four hours prior to the Time of
Delivery at an office designated by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. (the "Designated
Office"). The time and date of such delivery and payment shall be 10:00 a.m.,
New York City time, on December 7, 2006, or such other time and date as the
Underwriters 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(n) hereof, will be delivered
at the offices of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP ("Cadwalader") at One World
Financial Center, New York, NY 10281 (the "Closing Location"), and the Publicly
Offered Certificates will be delivered at the Designated Office, all at the Time
of Delivery. A meeting will be held at the Closing Location at 3:00 p.m., New
York City time, on the New York Business Day next preceding the Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in New York City are generally authorized or obligated by
law or executive order to close.
5. The Company agrees with 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,
and, if required, subject to Section 11, to file any Issuer Free Writing
Prospectus to the extent required by Rule 433 under the Act. The Company will
advise the Underwriters promptly of any such filing pursuant to Rule 424(b) or
Rule 433;
(b) To make no amendment or any supplement to the Registration
Statement or the Prospectus as amended or supplemented, or to prepare, use,
authorize, approve, refer to or file any Issuer Free Writing Prospectus, in each
case prior to the Closing Date, without furnishing the 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 or any such Issuer Free Writing
Prospectus has been prepared, used, authorized, approved, referred to or filed,
of the issuance of any stop order by the Commission, of the suspension of the
qualification of any of the Publicly Offered Certificates for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement, the Prospectus or an Issuer Free
Writing Prospectus as amended or supplemented or for additional information;
and, in the event of the issuance of any such stop order or of any order
preventing or suspending the use of any prospectus relating to the Publicly
Offered Certificates or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(c) Promptly from time to time to take such action as the
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, and provided, further, that the expense of
maintaining any such qualification more than one year from the Closing Date with
respect to such Certificates shall be at the Underwriters' expense;
(d) To furnish the Underwriters with copies of the Registration
Statement (including exhibits) and copies of the Prospectus and each Issuer Free
Writing Prospectus as amended or supplemented in such quantities as the
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 (or required to be delivered but
for Rule 172 under the Act) in connection with sales of any Publicly Offered
Certificates, either (i) any event shall have occurred as a result of which the
Prospectus or an Issuer Free Writing Prospectus, as the case may be, would
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (ii) for any other
reason it shall be necessary during such same period to amend or supplement the
Prospectus, as amended or supplemented, or an Issuer Free Writing Prospectus, as
the case may be, to notify each Underwriter and upon its 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 or an Issuer Free Writing
Prospectus, as the case may be, which will correct such statement or omission or
effect such compliance; and in case any Underwriter is required by law to
deliver a prospectus in connection with sales of any of such Publicly Offered
Certificates at any time six months or more after the Closing Date, upon such
Underwriter's request, but at its own expense, to prepare and deliver to such
Underwriter as many copies as such Underwriter may request of an amended or
supplemented prospectus complying with the Act;
(e) To make generally available upon request to Holders of the
Publicly Offered Certificates as soon as practicable, but in any event no later
than eighteen months after the Closing Date, an earnings statement of the
Company complying with Rule 158 under the Act and covering a period of at least
twelve consecutive months beginning after the Closing Date;
(f) So long as any of the Publicly Offered Certificates are
outstanding, to furnish the 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 Mortgage Loan Purchase Agreement; 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.
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, preliminary and final prospectus supplements and any other document
produced in connection with the offering, purchase, sale and delivery of the
Publicly Offered Certificates; (iv) all expenses in connection with the
qualification of the Publicly Offered Certificates for offering and sale under
state securities laws as provided in Section 5(c) hereof, including the fees and
disbursements of counsel for the 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; (vii) the fees and expenses of the Trustee and of
any agent of the Trustee and the fees and disbursements of counsel for the
Trustee in connection with the Pooling and Servicing Agreement and the
Certificates; (viii) any cost incurred in connection with the designation of the
Certificates for trading in PORTAL; and (ix) all other costs and expenses
incident to the performance of the Company's obligations hereunder that are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section 6, Section 8 and Section 10 hereof,
each Underwriter will pay all of its own costs and expenses, including the fees
of its counsel, transfer taxes on resale of any of the Publicly Offered
Certificates by it and any advertising expenses connected with any offers it may
make.
7. The obligations of the 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 Mortgage Loan Purchase
Agreement and all of the other agreements identified in such agreements shall
have been duly entered into by all of the respective parties;
(b) Cadwalader, counsel to the Company and the ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
shall have furnished to the Underwriters its written opinions, dated the Time of
Delivery, in form and substance satisfactory to the Underwriters;
(c) In-house counsel for the Company shall have furnished to the
Underwriter a written opinion, dated the Time of Delivery, in form and substance
satisfactory to the Underwriter;
(d) Counsel for the Servicer satisfactory to the Underwriters shall
have furnished to the Underwriters their written opinion, dated the Time of
Delivery, in form and substance satisfactory to the Underwriters and counsel for
each Underwriter;
(e) Counsel for the Custodian satisfactory to the Underwriters shall
have furnished to the Underwriters their written opinion, dated the Time of
Delivery, in form and substance satisfactory to the Underwriters and counsel for
each Underwriter;
(f) Counsel for the Trustee satisfactory to the Underwriter shall
have furnished to the Underwriter its written opinion, dated as of the Time of
Delivery, in form and substance satisfactory to the Underwriter and counsel for
the Underwriter;
(g) 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 Prospectus, in each case as to such matters as the Underwriters may
reasonably request and in form and substance satisfactory to the Underwriters;
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Time of Sale Information or the Prospectus as
amended prior to the Time of Delivery any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Time of Sale
Information or the Prospectus as amended prior to the Time of Delivery, and (ii)
since the respective dates as of which information is given in the Time of Sale
Information or the Prospectus as amended prior to the Time of Delivery there
shall not have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Time of Sale
Information or the Prospectus as amended prior to the Time of Delivery, the
effect of which, in any such case described in clause (i) or (ii), is in the
judgment of the Underwriters so material and adverse as to make it impracticable
or inadvisable to proceed with the offering or the delivery of the Publicly
Offered Certificates on the terms and in the manner contemplated in the Time of
Sale Information or the Prospectus as first amended or supplemented;
(i) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or preferred stock
by any "nationally recognized statistical rating organization," as that term is
defined by the Securities and Exchange Commission for purposes of Rule 436(g)(2)
under the Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities or preferred stock;
(j) On or after the Time of Sale, there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general moratorium
on commercial banking activities in New York declared by either Federal or New
York State authorities or any material disruption in commercial banking or
securities settlement or clearance services in the United States; or (iii) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war; or (iv) the
occurrence of any other calamity or crisis or any change in the financial,
political or economic conditions in the United States or elsewhere, if the
effect of any such event specified in clause (iii) or (iv) in the judgment of
the 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 or the
Prospectus;
(k) 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;
(l) The Underwriters shall have received evidence satisfactory to it
that the Publicly Offered Certificates are rated not lower than the ratings set
forth in the Prospectus Supplement under the heading "Ratings";
(m) All opinions, certificates and other documents incident to, and
all proceedings in connection with the transactions contemplated by, this
Agreement, the Mortgage Loan Purchase Agreement and the Pooling and Servicing
Agreement shall be satisfactory in form and substance to each Underwriter and
its special counsel;
(n) The Registration Statement shall be effective under the Act and
no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been instituted or threatened
by the Commission and the Prospectus Supplement and each Free Writing Prospectus
required to be filed by the Company pursuant to Section 5(a) shall have been
filed or transmitted for filing by means reasonably calculated to result in a
filing with the Commission pursuant to Rule 424(b) under the Act or Rule 433
under the Act, as applicable; and
(o) Each Underwriter and its special counsel shall have received
copies of all documents and other information as they may reasonably request, in
form and substance satisfactory, to each Underwriter and its special counsel,
with respect to such transactions and the taking of all proceedings in
connection therewith.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
each Underwriter may become subject, under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (1) an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or Prospectus or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or (2) any untrue
statement or alleged untrue statement of a material fact contained in any Issuer
Free Writing Prospectus or any Issuer Information contained in any Underwriter
Free Writing Prospectus (as defined herein), or the omission or alleged omission
to state a material fact necessary to make the statements therein (when read in
conjunction with the other Time of Sale Information), in light of the
circumstances under which they were made, not misleading, which was not
corrected by Corrective Information subsequently supplied by the Company to the
Underwriters within a reasonable period of time prior to the Time of Sale, or
(3) any breach of the representation and warranty in Section 1(q), and, in the
case of clauses (1), (2) and (3), will reimburse each Underwriter for any legal
or other expenses reasonably incurred by each Underwriter in connection with
investigating or defending any such action or claim; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information with respect to which each Underwriter has
agreed to indemnify the Company pursuant to Section 8(b).
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statements or
alleged untrue statements of a material fact, or omissions or alleged omissions
to state a material fact necessary to make the statements therein (when read in
conjunction with the Time of Sale Information), in the light of the
circumstances under which they were made, not misleading, in the Underwriter
Statements and (ii) any untrue statements or alleged untrue statements of a
material fact in any Underwriter Free Writing Prospectus or any omission or
alleged omission to state in such Underwriter Free Writing Prospectus a material
fact necessary in order to make the statements therein (when read in conjunction
with the Time of Sale Information), in the light of the circumstances under
which they were made, not misleading, and, in the case of clauses (i) and (ii),
will reimburse the Company for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such action or
claim; provided, that each Underwriter shall not be obligated to so indemnify
and hold harmless (A) to the extent such loss, liability, claim, damage or
expense is caused by a misstatement or omission resulting from an error or
omission in the Issuer Information which was not corrected by Corrective
Information subsequently supplied by the Company to each Underwriter within a
reasonable period of time prior to the Time of Sale or (B) with respect to
information that is also contained in the Time of Sale Information.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include any
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any 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, 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 to which
such loss, claim, damage or liability (or actions in respect thereof) relates.
If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the 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 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 this subsection
(d) were determined by pro rata 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, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Publicly Offered Certificates underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which 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 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.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the 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 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 Act.
9. (a) If any Underwriter shall default in its obligation to
purchase 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 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 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
Certificates which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of all the 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 for any reason the Certificates are not delivered by or on
behalf of the Trustee as provided herein, other than by the 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. In connection with the offering of the Publicly Offered
Certificates, the Underwriters may prepare and provide to prospective investors
Free Writing Prospectuses, or portions thereof, which the Company is required to
file with the Commission in electronic format and will use reasonable efforts to
provide to the Company such Free Writing Prospectuses, or portions thereof, in
either Microsoft Word(R) or Microsoft Excel(R) format and not in a PDF, except
to the extent that the Company, in its sole discretion, waives such
requirements, subject to the following conditions (to which such conditions the
Underwriter agrees):
(i) Unless preceded or accompanied by the Prospectus, the
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 Act, (2) constitutes a prospectus satisfying the
requirements of Rule 430B under the Act or (3) constitutes Time of Sale
Information or a Free Writing Prospectus that does not constitute Time of
Sale Information. Without the Company's prior written consent, the
Underwriter shall not convey or deliver in connection with the initial
offering of the Publicly Offered Certificates any "ABS informational and
computational material," as defined in Item 1101(a) of Regulation AB under
the Act ("ABS Informational and Computational Material"), in reliance upon
Rules 167 and 426 under the Act.
(ii) The Underwriters shall deliver to the Company, no later than
two business days prior to the date of first use thereof or such later
date as may be agreed to by the Company, (a) any Free Writing Prospectus
that was prepared by or on behalf of any Underwriter (an "Underwriter Free
Writing Prospectus") and contains any "issuer information", as defined in
Rule 433(h) under the Act and footnote 271 of the Commission's Securities
Offering Reform Release No. 33-8591 ("Issuer Information"), and (b) any
Free Writing Prospectus or portion thereof that contains only a
description of the final terms of the Publicly Offered Certificates.
Notwithstanding the foregoing, any Free Writing Prospectus that contains
only ABS Informational and Computational Materials may be delivered by the
Underwriters to the Company not later than the later of (A) two business
days prior to the due date for filing of the Prospectus pursuant to Rule
424(b) under the Act or (B) the date of first use of such Free Writing
Prospectus.
(iii) Each Underwriter represents and warrants to the Company that
the Free Writing Prospectuses to be furnished to the Company by the
Underwriters pursuant to Section 11(ii) will constitute all Free Writing
Prospectuses of the type described therein that were furnished to
prospective purchasers of Publicly Offered Certificates by the
Underwriters in connection with its offer and sale of the Publicly Offered
Certificates.
(iv) The Underwriters represent and warrant to the Company that each
Free Writing Prospectus required to be provided by it to the Company
pursuant to Section 11(ii), when read in conjunction with the Time of Sale
Information, did not, as of the Time of Sale, and will not as of the
Closing Date, include any untrue statement of a material fact or omit any
material fact necessary to make the statements contained therein (when
read in conjunction with the Time of Sale Information), in light of the
circumstances under which they were made, not misleading; provided
however, that the Underwriters make no representation to the extent such
misstatements or omissions were the result of any inaccurate Issuer
Information, which information was not corrected by Corrective Information
subsequently supplied by the Company to the Underwriters within a
reasonable period of time prior to the Time of Sale.
(v) The Company agrees to file with the Commission the following:
(A) any Issuer Free Writing Prospectus; (B) any Free Writing Prospectus or
portion thereof delivered by the Underwriters to the Company pursuant to
Section 11(ii); and (C) any Free Writing Prospectus for which the Company
or any person acting on its behalf provided, authorized or approved
information that is prepared and published or disseminated by a person
unaffiliated with the Company or any other offering participant that is in
the business of publishing, radio or television broadcasting or otherwise
disseminating communications. Notwithstanding the foregoing, the Company
shall not be required to file (1) Issuer Information contained in any
Underwriter Free Writing Prospectus or Free Writing Prospectus of any
other offering participant other than the Company, if such information is
included or incorporated by reference in a prospectus or Free Writing
Prospectus previously filed with the Commission that relates to the
offering of the Publicly Offered Certificates, or (2) any Free Writing
Prospectus or portion thereof that contains a description of the Publicly
Offered Certificates or the offering of the Publicly Offered Certificates
which does not reflect the final terms thereof.
(vi) Any Free Writing Prospectus required to be filed pursuant to
Section 11(v) by the Company shall be filed with the Commission not later
than the date of first use of the Free Writing Prospectus, except that:
(A) any Free Writing Prospectus or portion thereof required to be filed
that contains only the description of the final terms of the Publicly
Offered Certificates shall be filed by the Company with the Commission
within two days of the later of the date such final terms have been
established for all classes of Publicly Offered Certificates and the date
of first use; (B) any Free Writing Prospectus or portion thereof required
to be filed that contains only ABS Informational and Computational
Material shall be filed by the Company with the Commission not later than
the later of the due date for filing the final Prospectus relating to the
Publicly Offered Certificates pursuant to Rule 424(b) under the Act or two
business days after the first use of such Free Writing Prospectus; (C) any
Free Writing Prospectus required to be filed pursuant to Section 11(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 any Free
Writing Prospectus that is used or referred to by it and distributed by or
on behalf of each Underwriter in a manner reasonably designed to lead to
its broad, unrestricted dissemination not later than the date of the first
use of such Free Writing Prospectus. Notwithstanding the foregoing, each
Underwriter shall file with the Commission any Free Writing Prospectus for
which each Underwriter or any person acting on its behalf provided,
authorized or approved information that is prepared and published or
disseminated by a person unaffiliated with the Company or any other
offering participant that is in the business of publishing, radio or
television broadcasting or otherwise disseminating written communications
and for which no payment was made or consideration given by or on behalf
of the Company or any other offering participant, not later than four
business days after such Underwriter becomes aware of the publication,
radio or television broadcast or other dissemination of the Free Writing
Prospectus.
(viii) Notwithstanding the provisions of Sections 11(a)(v) and
11(a)(vii), neither the Company nor the Underwriters shall be required to
file any Free Writing Prospectus that does not contain substantive changes
from or additions to a Free Writing Prospectus previously filed with the
Commission, and the Underwriters shall not be required to file any Free
Writing Prospectus to the extent that the information contained therein is
included in a prospectus or Free Writing Prospectus previously filed that
relates to the offering of the Publicly Offered Certificates.
(ix) The Company and the Underwriters each agree that any Free
Writing Prospectuses prepared by it shall contain the following legend:
The depositor has filed a registration statement (including a
prospectus) with the Securities and Exchange Commission for the
offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other
documents the depositor has filed with the Securities and Exchange
Commission for more complete information about the issuer and this
offering. You may get these documents for free by visiting ▇▇▇▇▇ on
the Securities and Exchange Commission web site at ▇▇▇.▇▇▇.▇▇▇.
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 ▇-▇▇▇-▇▇▇-▇▇▇▇.
(x) (A) In the event that the Company becomes aware that, as of the
Time of Sale, any Issuer Free Writing Prospectus contains any untrue
statement of a material fact or omits to state a material fact necessary
in order to make the statements contained therein (when read in
conjunction with the Time of Sale Information), in light of the
circumstances under which they were made, not misleading (a "Defective
Issuer Free Writing Prospectus"), the Company shall notify the
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 fact or omitted to
state a material fact necessary in order to make the statements
contained therein (when read in conjunction with the Time of Sale
Information), in light of the circumstances under which they were
made, not misleading, when considered in conjunction with the Time
of Sale Information (together with a Defective Issuer Free Writing
Prospectus, a "Defective Free Writing Prospectus"), the Underwriters
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 which corrects the material misstatement in or
omission from the Defective Free Writing Prospectus (together
with a Corrected Issuer Free Writing Prospectus, a "Corrected
Free Writing Prospectus");
(2) deliver the Corrected Free Writing Prospectus to
each investor which received the Defective Free Writing
Prospectus prior to entering into a contract of sale with such
investor;
(3) notify such investor in a prominent fashion that the
prior contract of sale with the investor has been terminated,
and of the investor's rights as a result of termination of
such agreement;
(4) provide such investor with an opportunity to
affirmatively agree to purchase the Publicly Offered
Certificates on the terms described in the Corrected Free
Writing Prospectus; and
(5) comply with any other requirements for reformation
of the original contract of sale with such investor, as
described in Section IV.A.2.c of 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 permit the
Company access to the applicable investor and an opportunity to
attempt to mitigate such costs through direct negotiation with such
investor.
(xi) The Underwriters covenant with the Company that after the final
Prospectus is available the Underwriters shall not distribute any written
information concerning the Publicly Offered Certificates that contains
Issuer Information to a prospective purchaser of Publicly Offered
Certificates unless such information is preceded or accompanied by the
final Prospectus.
13. All statements, requests, notices and agreements hereunder shall
be in writing or by telegram if promptly confirmed in writing, and shall be
sufficient in all respects, if delivered or sent by registered mail, if to the
Underwriters, to the address of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., as representative of the
Underwriters, Attention: Registration Department, set forth above; if to the
Company, to the address of the Company set forth in the Prospectus, Attention:
President.
14. 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.
15. The Company acknowledges and agrees that (i) the purchase and
sale of the Securities pursuant to this Agreement is an arm's-length commercial
transaction between the Company, on the one hand, and the several Underwriters,
on the other, (ii) in connection therewith and with the process leading to such
transaction each Underwriter is acting solely as a principal and not the agent
or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or
fiduciary responsibility in favor of the Company with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether such
Underwriter has advised or is currently advising the Company on other matters)
or any other obligation to the Company except the obligations expressly set
forth in this Agreement and (iv) the Company has consulted its own legal and
financial advisors to the extent it deemed appropriate. The Company agrees that
it will not claim that the Underwriters, or any of them, has rendered advisory
services of any nature or respect, or owes a fiduciary or similar duty to the
Company, in connection with such transaction or the process leading thereto.
16. Time shall be of the essence of this Agreement.
17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
18. The Company and each of the Underwriters hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to
trial by jury in any legal proceeding arising out of or relating 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.
[SIGNATURE PAGE FOLLOWS]
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned two counterparts hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and each of the Underwriters.
Very truly yours,
GS MORTGAGE SECURITIES CORP.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
Accepted as of the date hereof:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO,
as representative of the underwriters
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
SCHEDULE I
Approximate
Initial Class
Class Principal Balance(1) Pass-Through Rate Type
---------- -------------------- ----------------- ---------------
A-1 $ 330,834,000 Variable(2) Senior
A-2 $ 72,092,000 Variable(3) Senior
A-3 $ 116,880,000 Variable(4) Senior
A-4 $ 82,496,000 Variable(5) Senior
M-1 $ 28,281,000 Variable(6) Subordinate
M-2 $ 22,930,000 Variable(7) Subordinate
M-3 $ 13,758,000 Variable(8) Subordinate
M-4 $ 11,848,000 Variable(9) Subordinate
M-5 $ 12,229,000 Variable(10) Subordinate
M-6 $ 9,554,000 Variable(11) Subordinate
M-7 $ 9,172,000 Variable(12) Subordinate
M-8 $ 8,790,000 Variable(13) Subordinate
M-9 $ 6,115,000 Variable(14) Subordinate
(1) Subject to variance of +/- 10%.
(2) The Class A-1 certificates will have a pass-through rate equal to the
least of (i) one-month LIBOR plus 0.060% (0.120% after the first
distribution date on which the optional clean-up call is exercisable),
(ii) the WAC Cap and (iii) the Maximum Rate Cap, as described in the
prospectus supplement.
(3) The Class A-2 certificates will have a pass-through rate equal to the
least of (i) one-month LIBOR plus 0.110% (0.220% after the first
distribution date on which the optional clean-up call is exercisable),
(ii) the WAC Cap and (iii) the Maximum Rate Cap.
(4) The Class A-3 certificates will have a pass-through rate equal to the
least of (i) one-month LIBOR plus 0.150% (0.300% after the first
distribution date on which the optional clean-up call is exercisable),
(ii) the WAC Cap and (iii) the Maximum Rate Cap.
(5) The Class A-4 certificates will have a pass-through rate equal to the
least of (i) one-month LIBOR plus 0.230% (0.460% after the first
distribution date on which the optional clean-up call is exercisable),
(ii) the WAC Cap and (iii) the Maximum Rate Cap.
(6) The Class M-1 certificates will have a pass-through rate equal to the
least of (i) one-month LIBOR plus 0.250% (0.375% after the first
distribution date on which the optional clean-up call is exercisable),
(ii) the WAC Cap and (iii) the Maximum Rate Cap.
(7) The Class M-2 certificates will have a pass-through rate equal to the
least of (i) one-month LIBOR plus 0.320% (0.480% after the first
distribution date on which the optional clean-up call is exercisable),
(ii) the WAC Cap and (iii) the Maximum Rate Cap.
(8) The Class M-3 certificates will have a pass-through rate equal to the
least of (i) one-month LIBOR plus 0.340% (0.510% after the first
distribution date on which the optional clean-up call is exercisable),
(ii) the WAC Cap and (iii) the Maximum Rate Cap.
(9) The Class M-4 certificates will have a pass-through rate equal to the
least of (i) one-month LIBOR plus 0.390% (0.585% after the first
distribution date on which the optional clean-up call is exercisable),
(ii) the WAC Cap and (iii) the Maximum Rate Cap.
(10) The Class M-5 certificates will have a pass-through rate equal to the
least of (i) one-month LIBOR plus 0.550% (0.825% after the first
distribution date on which the optional clean-up call is exercisable),
(ii) the WAC Cap and (iii) the Maximum Rate Cap.
(11) The Class M-6 certificates will have a pass-through rate equal to the
least of (i) one-month LIBOR plus 0.750% (1.125% after the first
distribution date on which the optional clean-up call is exercisable),
(ii) the WAC Cap and (iii) the Maximum Rate Cap.
(12) The Class M-7 certificates will have a pass-through rate equal to the
least of (i) one-month LIBOR plus 0.940% (1.410% after the first
distribution date on which the optional clean-up call is exercisable),
(ii) the WAC Cap and (iii) the Maximum Rate Cap.
(13) The Class M-8 certificates will have a pass-through rate equal to the
least of (i) one-month LIBOR plus 1.960% (2.940% after the first
distribution date on which the optional clean-up call is exercisable),
(ii) the WAC Cap and (iii) the Maximum Rate Cap.
(14) The Class M-9 certificates will have a pass-through rate equal to the
least of (i) one-month LIBOR plus 2.500% (3.750% after the first
distribution date on which the optional clean-up call is exercisable),
(ii) the WAC Cap and (iii) the Maximum Rate Cap.
SCHEDULE II
Purchase Price
The purchase price for the Publicly Offered Certificates shall equal
99.76% of the aggregate class principal balance of the Publicly Offered
Certificates set forth on Schedule I.
SCHEDULE III
Principal Amount of Certificates
Principal Principal Principal Principal Principal
Amount of Amount of Amount of Amount of Amount of
Underwriter Class A-1 Class A-2 Class A-3 Class A-4 Class M-1
------------------------ ------------ ------------ ------------ ----------- -----------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $181,958,700 $39,650,600 $64,284,000 $45,372,800 $15,554,550
Banc of America
Securities LLC $49,625,100 $10,813,800 $17,532,000 $12,374,400 $4,242,150
BNP Paribas, Inc. $49,625,100 $10,813,800 $17,532,000 $12,374,400 $4,242,150
Citigroup Global Markets
Inc. $49,625,100 $10,813,800 $17,532,000 $12,374,400 $4,242,150
------------------------ ------------ ------------ ------------ ----------- -----------
Total................. $330,834,000 $72,092,000 $116,880,000 $82,496,000 $28,281,000
Principal Principal Principal Principal Principal
Amount of Amount of Amount of Amount of Amount of
Underwriter Class M-2 Class M-3 Class M-4 Class M-5 Class M-6
------------------------ ------------ ------------ ------------ ----------- -----------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $12,611,500 $7,566,900 $6,516,400 $6,725,950 $5,254,700
Banc of America
Securities LLC $3,439,500 $2,063,700 $1,777,200 $1,834,350 $1,433,100
BNP Paribas, Inc. $3,439,500 $2,063,700 $1,777,200 $1,834,350 $1,433,100
Citigroup Global Markets
Inc. $3,439,500 $2,063,700 $1,777,200 $1,834,350 $1,433,100
------------------------ ------------ ------------ ------------ ----------- -----------
Total................. $22,930,000 $13,758,000 $11,848,000 $12,229,000 $9,554,000
Principal Principal Principal
Amount of Amount of Amount of
Underwriter Class M-7 Class M-8 Class M-9
------------------------ ------------ ------------ ------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $5,044,600 $4,834,500 $3,363,250
Banc of America
Securities LLC $1,375,800 $1,318,500 $917,250
BNP Paribas, Inc. $1,375,800 $1,318,500 $917,250
Citigroup Global Markets
Inc. $1,375,800 $1,318,500 $917,250
------------------------ ------------ ------------ ------------
Total................. $9,172,000 $8,790,000 $6,115,000
SCHEDULE IV
Other Free Writing Prospectuses
[None.]