GE CAPITAL MORTGAGE SERVICES, INC.
PASS-THROUGH CERTIFICATES
(Issuable in Series)
UNDERWRITING AGREEMENT
----------------------
PaineWebber Incorporated New York, New York
1285 Avenue of the Americas September 24, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
GE Capital Mortgage Services, Inc., a corporation
organized and existing under the laws of the State of New Jersey
(the "Company"), may offer for sale from time to time its Pass-
Through Certificates evidencing interests in pools of mortgage
loans (the "Certificates"). The Certificates may be issued in
various series, and within each series, in one or more classes,
in one or more offerings on terms determined at the time of sale
(each such series, a "Series" and each such class, a "Class").
Each Series of the Certificates will be issued under a separate
Pooling and Servicing Agreement (each, a "Pooling and Servicing
Agreement") to be dated as of the respective cut-off date (each,
a "Cut-off Date") between the Company, as seller and servicer,
and the trustee named therein (the "Trustee"). Capitalized terms
used but not defined herein shall have the meanings given to them
in the related Pooling and Servicing Agreement.
The Certificates issued under each Pooling and
Servicing Agreement will represent the entire beneficial
ownership interest in a trust fund (the "Trust Fund") established
by such Pooling and Servicing Agreement. The assets of each Trust
Fund will consist primarily of a pool of closed end, fixed rate,
first- or second-lien, home equity mortgage loans (the "Mortgage
Loans") having the original terms to maturity, interest rate
types and amortization characteristics specified in the related
Terms Agreement referred to hereinbelow. If specified in the
related Prospectus Supplement, the Certificates will have the
benefit of a Supplemental Agreement, dated as of the respective
Cut-off Date (the "Supplemental Agreement"), among the Company,
General Electric Capital Corporation ("GECC") and the Trustee. If
so specified in the related Terms Agreement, one or more
elections may be made to treat the assets of each Trust Fund as a
real estate mortgage investment conduit (each, a "REMIC") for
federal income tax purposes.
Underwritten offerings of Certificates may be made
through you or through an underwriting syndicate managed by you.
The Company proposes to sell one or more Series of the
Certificates to you and to each of the other several
underwriters, if any, participating in an underwriting syndicate
managed by you. It is understood, however, that the Company may
elect to retain, through the execution of one or more
underwriting agreements in addition to this Agreement, one or
more additional underwriters other than you to underwrite, or
manage the underwriting syndicate with respect to, any offering
of one or more Series of its Certificates.
Whenever the Company determines to make an offering of
Certificates (each, a "Certificate Offering") pursuant to this
Agreement through you, it will enter into an agreement with you
Classes of Offered Certificates (as defined below) to, and the
purchase and public offering thereof by, you and such other
underwriters, if any, selected by you as have authorized you to
enter into such Terms Agreement on their behalf (the underwriters
designated in any such Terms Agreement being referred to herein
as "Underwriters," which term shall include you whether acting
alone in the sale of any Offered Certificates of any series or as
a member of an underwriting syndicate). Each such Certificate
Offering which the Company elects to make pursuant to this
Agreement shall be governed by this Agreement, as supplemented by
the related Terms Agreement, and this Agreement and such Terms
Agreement shall inure to the benefit of and be binding upon each
underwriter participating in the offering of such Offered
Certificates. Each Terms Agreement, which shall be substantially
in the form of Exhibit A hereto, shall specify, among other
things, the Classes of Certificates to be purchased by the
Underwriters (the "Offered Certificates"), the principal balance
or balances of the Offered Certificates, each subject to any
stated variance, the names of the Underwriters participating in
such offering (subject to substitution as provided in Section 12
hereof) and the price or prices at which such Offered
Certificates are to be purchased by the Underwriters from the
Company.
1. Representations and Warranties. (a) The Company
represents and warrants to and agrees with the Underwriters, as
of the date of the related Terms Agreement, that:
(i) The registration statement specified in
the related Terms Agreement, on Form S-3, including a
prospectus, has been filed with the Securities and
Exchange Commission (the "Commission") for the
registration under the Securities Act of 1933, as
amended (the "Act"), of pass-through certificates
issuable in series, which registration statement has
been declared effective by the Commission. Such
registration statement, as amended to the date of the
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related Terms Agreement, including any documents
incorporated by reference therein pursuant to Item 12
of Form S-3 under the Act which were filed under the
Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the effective date of the
Registration Statement, is hereinafter called the
"Registration Statement," and such prospectus, as such
prospectus is supplemented by a prospectus supplement
relating to the Offered Certificates of the related
Series, each in the form first filed after the date of
the related Terms Agreement pursuant to Rule 424(b)
under the Act, including any documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under
the Act which were filed under the Exchange Act on or
before the date of such Prospectus Supplement (other
than any such incorporated documents that relate to
Collateral Term Sheets (as defined herein)) (such
prospectus supplement, including such incorporated
documents (other than those that relate to Collateral
Term Sheets), in the form first filed after the date of
the related Terms Agreement pursuant to Rule 424(b) is
hereinafter called the "Prospectus Supplement"), is
hereinafter called the "Final Prospectus". Any
preliminary prospectus, including any preliminary
prospectus supplement which, as completed, is proposed
to be used in connection with the sale of a Series of
Offered Certificates and any prospectus filed with the
Commission pursuant to Rule 424(a) of the Act is
hereinafter referred to as a "Preliminary Prospectus";
it being understood that the Company is not obligated
to prepare any such Preliminary Prospectus without its
consent. Any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the
Registration Statement, the Preliminary Prospectus, the
Final Prospectus or the Prospectus Supplement shall be
deemed to refer to and include the filing of any
document under the Exchange Act after the effective
date of the Registration Statement or the issue date of
the Preliminary Prospectus, the Final Prospectus or
Prospectus Supplement, as the case may be, deemed to be
incorporated therein by reference pursuant to Item 12
of Form S-3 under the Act.
(ii) The related Registration Statement, at
the time it became effective, and the prospectus
contained therein, and any amendments thereof and
supplements thereto filed prior to the date of the
related Terms Agreement, conformed in all material
respects to the requirements of the Act and the rules
and regulations of the Commission thereunder; on the
date of the related Terms Agreement and on each Closing Date
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(as defined in Section 3 below), the related Registration Statement
and the related Final Prospectus, and any amendments thereof
and supplements thereto, will conform in all material
respects to the requirements of the Act and the rules
and regulations of the Commission thereunder; such
Registration Statement, at the time it became
effective, did not contain any untrue statement of a
material fact or omit to state a material fact required
to be stated therein or necessary to make the
statements therein not misleading; such Final
Prospectus, on the date of any filing pursuant to Rule
424(b) and on each Closing Date, will not include any
untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein,
in the light of the circumstances under which they are
made, not misleading; and the Detailed Description
referred to in such Final Prospectus, on each Closing
Date and the date of any filing thereof under cover of
Form 8-K, will not include any untrue statement of a
material fact or omit to state any information which
such Final Prospectus states will be included in such
Detailed Description; provided, however, that the
Company makes no representations or warranties as to
the information contained in or omitted from (A) such
Registration Statement or such Final Prospectus (or any
supplement thereto) in reliance upon and in conformity
with written information furnished to the Company by or
on behalf of the Underwriters specifically for use in
the preparation thereof or (B) any Current Report (as
defined in Section 5(b) below), or in any amendment
thereof or supplement thereto, incorporated by
reference in such Registration Statement or such Final
Prospectus (or any amendment thereof or supplement
thereto).
(iii) The Certificates of the related Series
will conform to the description thereof contained in
the related Final Prospectus; and will each on the
related Closing Date be duly and validly authorized,
and, when validly executed, countersigned, issued and
delivered in accordance with the related Pooling and
Servicing Agreement and sold to you as provided herein
and in the related Terms Agreement, will each be
validly issued and outstanding and entitled to the
benefits of the related Pooling and Servicing
Agreement.
(iv) Neither the issuance nor sale of
the Certificates of the related Series nor the
consummation of any other of the transactions herein
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contemplated, nor the fulfillment of the terms hereof
or of the related Terms Agreement, will conflict with
any statute, order or regulation applicable to the
Company of any court, regulatory body, administrative
agency or governmental body having jurisdiction over
the Company or with any organizational document of the
Company or any instrument or any agreement under which
the Company is bound or to which it is a party.
(v) This Agreement and the related
Terms Agreement have been duly authorized, executed
and delivered by the Company.
(vi) At or prior to the related Closing
Date, the Company will have entered into the related
Pooling and Servicing Agreement and, if applicable, the
related Supplemental Agreement and, assuming the due
authorization, execution and delivery thereof by the
Trustee, and by GECC, in the case of the Supplemental
Agreement, such Pooling and Servicing Agreement and
such Supplemental Agreement (each on such Closing Date)
will each constitute the valid and binding agreement of
the Company enforceable in accordance with its terms,
subject as to enforceability, to bankruptcy,
insolvency, reorganization or other similar laws
affecting creditors' rights and to general principles
of equity (regardless of whether the enforceability of
each such Pooling and Servicing Agreement or such
Supplemental Agreement is considered in a proceeding in
equity or at law).
2. Purchase and Sale. Subject to the execution of the
Terms Agreement for a particular Certificate Offering and subject
to the terms and conditions and in reliance upon the
representations and warranties set forth in this Agreement and
such Terms Agreement, the Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Company,
the respective original principal amounts of the related Offered
Certificates set forth in the related Terms Agreement opposite
the name of such Underwriter, plus any additional original
principal amount of Offered Certificates which such Underwriter
may be obligated to purchase pursuant to Section 12 hereof, at
the purchase price therefor set forth in such Terms Agreement
(the "Purchase Price").
The parties hereto agree that settlement for all
securities sold pursuant to this Agreement and the applicable
Terms Agreement shall take place on the settlement date agreed
upon at the time of the related transaction and set forth as the
"Closing Date" in such Terms Agreement and not as set forth in
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Rule 15c6-1(a) of the Exchange Act.
3. Delivery and Payment. Delivery of and payment for
the Offered Certificates of a Series shall be made at the offices
of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, New York, New York, at
10:00 A.M., New York City time, on the Closing Date specified in
the related Terms Agreement, which date and time may be postponed
by agreement between the Underwriters and the Company (such date
and time being herein called the "Closing Date"). Delivery of
such Offered Certificates shall be made to the Underwriters
against payment by the Underwriters of the Purchase Price thereof
to or upon the order of the Company by wire transfer in federal
or other immediately available funds or by check payable in
federal funds, as the Company shall specify no later than five
full business days prior to such Closing Date. Unless delivery is
made through the facilities of The Depository Trust Company, the
Offered Certificates shall be registered in such names and in
such authorized denominations as the Underwriters may request not
less than two full business days in advance of each Closing Date.
The Company agrees to notify the Underwriters at least
two business days before each Closing Date of the exact principal
balance evidenced by the Offered Certificates and to have such
Offered Certificates available for inspection, checking and
packaging in New York, New York, no later than 12:00 noon on the
business day prior to such Closing Date.
4. Offering by the Underwriters. It is understood that
the Underwriters propose to offer the Offered Certificates of the
related Series for sale to the public as set forth in the related
Final Prospectus.
5. Agreements. The Company agrees with the
Underwriters that:
(a) The Company will cause the each of the
Preliminary Prospectus and the Final Prospectus as
supplemented by a Prospectus Supplement relating to the
Offered Certificates to be filed pursuant to Rule 424 under
the Act and will promptly advise the Underwriters when such
Preliminary Prospectus and such Final Prospectus as so
supplemented has been so filed, and prior to the termination
of the Certificate Offering to which such Preliminary
Prospectus and Final Prospectus relates also will promptly
advise the Underwriters (i) when any amendment to the
related Registration Statement specifically relating to such
Offered Certificates shall have become effective or any
further supplement to such Preliminary Prospectus or such
Final Prospectus has been filed, (ii) of any request by the
Commission for any amendment of such Registration Statement,
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Preliminary Prospectus or Final Prospectus or for any additional
information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of such Registration
Statement or the institution or threatening of any
proceeding for that purpose and (iv) of the receipt by the
Company of any written notification with respect to the
suspension of the qualification of such Offered Certificates
for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company
will not file any amendment of the related Registration
Statement or supplement to the related Preliminary
Prospectus or Final Prospectus (other than any amendment or
supplement specifically relating to one or more Series of
pass-through certificates other than the Series that
includes the related Offered Certificates) unless the
Company has furnished the Underwriters with a copy for its
review prior to filing. The Company will use its best
efforts to prevent the issuance of any such stop order and,
if issued, to obtain as soon as possible the withdrawal
thereof.
(b) The Company will cause any Computational
Materials and any Structural Term Sheets (each as defined in
Section 8 below) with respect to the Offered Certificates of
a Series that are delivered by an Underwriter to the Company
pursuant to Section 8 to be filed with the Commission on a
Current Report on Form 8-K (each such filing of such
materials, a "Current Report") pursuant to Rule 13a-11 under
the Exchange Act on the business day immediately following
the later of (i) the day on which such Computational
Materials and Structural Term Sheets are delivered to
counsel for the Company by an Underwriter prior to 10:30
a.m. and (ii) the date on which this Agreement is executed
and delivered. The Company will cause one Collateral Term
Sheet (as defined in Section 9 below) with respect to the
Offered Certificates of a Series that is delivered by the
Underwriters to the Company in accordance with the
provisions of Section 9 to be filed with the Commission on a
Current Report pursuant to Rule 13a-11 under the Exchange
Act on the business day immediately following the day on
which such Collateral Term Sheet is delivered to counsel for
the Company by the Underwriters prior to 10:30 a.m. In
addition, if at any time prior to the availability of the
related Prospectus Supplement, the Underwriters have
delivered to any prospective investor a subsequent
Collateral Term Sheet that reflects, in the reasonable
judgment of the Underwriters and the Company, a material
change in the characteristics of the Mortgage Loans for the
related Series from those on which a Collateral Term Sheet
with respect to the related Series previously filed with the
Commission was based, the Company will cause any such
7
Collateral Term Sheet that is delivered by the Underwriters
to the Company in accordance with the provisions of Section
9 to be filed with the Commission on a Current Report on the
business day immediately following the day on which such
Collateral Term Sheet is delivered to counsel for the
Company by the Underwriters prior to 10:30 a.m. In each
case, the Company will promptly advise the Underwriters when
such Current Report has been so filed. Each such Current
Report shall be incorporated by reference in the related
Final Prospectus and the related Registration Statement.
Notwithstanding the five preceding sentences, the Company
shall have no obligation to file any materials provided by
the Underwriters pursuant to Sections 8 and 9 which, in the
reasonable determination of the Company after making
reasonable efforts to consult with the Underwriters, are not
required to be filed pursuant to the ▇▇▇▇▇▇ Letters or the
PSA Letter (each as defined in Section 8 below), or which
contain erroneous information or contain any untrue
statement of a material fact or, when read in conjunction
with the Final Prospectus and Prospectus Supplement, omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading; it
being understood, however, that the Company shall have no
obligation to review or pass upon the accuracy or adequacy
of, or to correct, any Computational Materials, Structural
Term Sheets or Collateral Term Sheets provided by the
Underwriters to the Company pursuant to Section 8 or Section
9 hereof. The Company shall give notice to the Underwriters
of its determination not to file any materials pursuant to
clause (i) of the preceding sentence and agrees to file such
materials if the Underwriters reasonably object to such
determination within one business day after receipt of such
notice.
(c) If, at any time when a prospectus relating to
the Offered Certificates of a Series is required to be
delivered under the Act, any event occurs as a result of
which the related Final Prospectus as then amended or
supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary
to make the statements therein in light of the circumstances
under which they were made not misleading, or if it shall be
necessary at any time to amend or supplement the related
Final Prospectus to comply with the Act or the rules
thereunder, the Company promptly will prepare and file with
the Commission, subject to paragraph (a) of this Section 5,
an amendment or supplement which will correct such statement
or omission or an amendment which will effect such
compliance; provided, however, that the Company will not be
required to file any such amendment or supplement with
respect to any Computational Materials, Structural Term
8
Sheets or Collateral Term Sheets incorporated by reference in
the Final Prospectus other than any amendments or supplements of
such Computational Materials or Structural Term Sheets that are
furnished to the Company by the Underwriters pursuant to Section 8(e)
hereof or any amendments or supplements of such Collateral
Term Sheets that are furnished to the Company by the
Underwriters pursuant to Section 9(d) hereof which are
required to be filed in accordance therewith.
(d) The Company will furnish to the Underwriters
and counsel for the Underwriters, without charge, as many
signed copies of the related Registration Statement
(including exhibits thereto) and, so long as delivery of a
prospectus by the Underwriters or dealer may be required by
the Act, as many copies of the related Preliminary
Prospectus and the related Final Prospectus and any
supplements thereto (other than exhibits to the related
Current Report) as the Underwriters may reasonably request.
(e) The Company will furnish such information,
execute such instruments and take such actions as may be
reasonably requested by the Underwriters to qualify the
Offered Certificates of a Series for sale under the laws of
such jurisdictions as the Underwriters may designate, to
maintain such qualifications in effect so long as required
for the distribution of such Offered Certificates and to
determine the legality of such Offered Certificates for
purchase by institutional investors; provided, however, that
the Company shall not be required to qualify to do business
in any jurisdiction where it is not qualified on the date of
the related Terms Agreement or to take any action which
would subject it to general or unlimited service of process
in any jurisdiction in which it is not, on the date of the
related Terms Agreement, subject to such service of process.
(f) So long as the Offered Certificates of a
Series are outstanding, the Company will furnish to the
Underwriters copies of the annual independent public
accountants' servicing report furnished to the Trustee
pursuant to Section 3.13 of the related Pooling and
Servicing Agreement.
(g) Whether or not the transactions contemplated
hereby and by the related Terms Agreement shall be
consummated, the Company shall be responsible for the
payment of any costs and expenses for which details are
submitted, in connection with the performance of its
obligations under this Agreement and the related Terms
Agreement, including, without limitation, (a) the cost and
expenses of printing or otherwise reproducing the related
Registration Statement, the related Preliminary Prospectus,
9
the related Final Prospectus, this Agreement, the related
Terms Agreement, the related Pooling and Servicing Agreement
and the Offered Certificates, and (b) the cost of delivering
the related Offered Certificates to the office of the
Underwriters, insured to the satisfaction of the
Underwriters (it being understood that, except as provided
in this paragraph (g) and in Section 7 hereof, the
Underwriters will pay all their own costs and expenses,
including the fees of ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriters, transfer taxes on resale of any Offered
Certificates by them, advertising expenses connected with
any offers that they may make, the fees of KPMG Peat Marwick
LLP with respect to its letters furnished pursuant to
Section 6(l) of the Agreement and any letter furnished
pursuant to the last sentence of Section 6(k) hereof, the
fees of any firm of public accountants selected by the
Underwriters with respect to their letter furnished pursuant
to Section 8(c) of the Agreement and any other costs and
expenses specified in the related Terms Agreement as
"Additional Expenses", and all expenses (e.g., shipping,
postage and courier costs) associated with the delivery of
the related Prospectus to prospective investors and
investors, other than the costs of delivery to the
Underwriter's facilities, provided, that if courier services
(other than overnight delivery services utilized in the
ordinary course of business) are required to ensure that
such Prospectus is delivered to investors on the day
immediately preceding the related Closing Date, the Company
will pay such courier expenses).
6. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Offered
Certificates of any Series shall be subject to the accuracy in
all material respects of the representations and warranties on
the part of the Company contained in this Agreement, as
supplemented by the related Terms Agreement, as of the respective
dates thereof and the related Closing Date, to the accuracy of
the statements of the Company made in any applicable officers'
certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations under this
Agreement and such Terms Agreement and to the following
additional conditions applicable to the related Certificate
Offering:
(a) No stop order suspending the effectiveness of
the related Registration Statement shall have been issued
and no proceedings for that purpose shall have been
instituted or threatened.
(b) Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel
for the Company, shall have furnished to the Underwriters an
opinion, dated the related Closing Date, to the effect
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that:
(i) this Agreement and the related
Terms Agreement have been duly executed and delivered
by the Company under the law of the State of New York;
(ii) each of the related Pooling and
Servicing Agreement and, if applicable, the related
Supplemental Agreement has been duly executed and
delivered by the Company under the law of the State of
New York and is a legal, valid and binding agreement of
the Company enforceable against the Company in
accordance with its terms;
(iii) the Offered Certificates, when duly
executed and countersigned by the Trustee in accordance
with the related Pooling and Servicing Agreement, will
be validly issued and outstanding and entitled to the
benefits of such Pooling and Servicing Agreement;
(iv) the related Pooling and Servicing
Agreement is not required to be qualified under the
Trust Indenture Act of 1939, as amended, and the trust
created thereunder is not required to be registered
under the Investment Company Act of 1940, as amended;
(v) such counsel confirms that (based
solely upon telephonic confirmation from a
representative of the Commission) the related
Registration Statement is effective under the Act and,
to the best of such counsel's knowledge, no stop order
with respect thereto has been issued, and no proceeding
for that purpose has been instituted or threatened by
the Commission under the Act; such Registration
Statement (except the financial statements and
schedules and other financial and statistical data
included therein and the documents incorporated by
reference therein, as to which such counsel need
express no view), at the time it became effective and
the related Final Prospectus (except the financial
statements and schedules and the other financial and
statistical data included therein, the documents
incorporated by reference therein and any
Underwriter-Provided Information (as defined herein) as
to which such counsel need express no view), as of the
date of the Prospectus Supplement, appeared on their
face to be appropriately responsive in all material
respects to the requirements of the Act and the rules
and regulations thereunder; and no information has come
to the attention of such counsel that causes it to
11
believe that (A) such Registration Statement (except the
financial statements and schedules and the other financial and
statistical data included therein and the documents incorporated
by reference therein, as to which such counsel need
express no view) at the time it became effective,
contained an untrue statement of a material fact or
omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or (B) such Final Prospectus or any
amendment or supplement thereto (except the financial
statements and schedules and the other financial and
statistical data included therein and the documents
incorporated by reference therein and any Underwriter-
Provided Information, as to which such counsel need
express no view), as of the date of the Prospectus
Supplement or at the related Closing Date, contained or
contains an untrue statement of a material fact or
omitted or omits 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;
(vi) the statements set forth under the
heading "Description of the Certificates" in the
related Final Prospectus, insofar as such statements
purport to summarize certain provisions of the related
Pooling and Servicing Agreement and the related Offered
Certificates, provide a fair summary of such
provisions;
(vii) the statements set forth in the related
Final Prospectus under the headings "Certain Legal
Aspects of the Mortgage Loans and Contracts -- The
Mortgage Loans", "Certain Federal Income Tax
Consequences" (insofar as they relate specifically to
the purchase, ownership and disposition of the related
Offered Certificates) and "ERISA Considerations"
(insofar as they relate specifically to the purchase,
ownership and disposition of such Offered
Certificates), to the extent that they constitute
matters of law or legal conclusions, provide a fair
summary of such law or conclusions; and
(viii) assuming compliance with all provisions
of the related Pooling and Servicing Agreement, for
federal income tax purposes, (A) if any election is
made to treat the assets of the Trust Fund (other than
assets excluded from a REMIC, as described in the Final
Prospectus) as one or more REMICs: the related Trust
Fund and any specified subgrouping therein (other than
any such excluded assets) will qualify as one or more
12
REMICs pursuant to Section 860D of the Internal Revenue Code of
1986, as amended (the "Code"), each Class of Certificates of the
related Series, other than the related Residual Class or
Classes, will constitute a class of "regular interests"
in a related REMIC within the meaning of the Code, and
each Class of such Certificates specified in the
related Final Prospectus as a Class of Residual
Certificates will constitute the "residual interest" in
a related REMIC within the meaning of the Code; (B) if
no such REMIC election is made: the Trust Fund will be
treated as a "grantor trust".
Such opinion may express its reliance as to factual matters
on the representations and warranties made by, and on
certificates or other documents furnished by, officers of
the parties to this Agreement, the related Terms Agreement,
the related Pooling and Servicing Agreement or the related
Supplement Agreement. Such opinion may assume the due
authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other
than the Company. Such opinion may be qualified, insofar as
it concerns the enforceability of the documents referred to
therein, to the extent that such enforceability may be
limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights
in general and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in
equity or at law). Such opinion may be further qualified as
expressing no opinion as to (x) the statements in the
related Final Prospectus under the heading "Certain Legal
Aspects of the Mortgage Loans and Contracts -- The Mortgage
Loans" except insofar as such statements relate to the laws
of the State of New York and the laws of the United States,
and (y) the statements in such Final Prospectus under the
headings "ERISA Considerations" and "Certain Federal Income
Tax Consequences" except insofar as such statements relate
to the laws of the United States. In addition, such opinion
may be qualified as an opinion only on the laws of the State
of New York and the laws of the United States.
(c) The General Counsel for the Company shall have
furnished to the Underwriters an opinion, dated the related
Closing Date, to the effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of New Jersey,
with corporate power to own its properties, to conduct
its business as described in the related Final
Prospectus and to enter into and perform its
obligations under this Agreement, the related Terms
13
Agreement, the related Pooling and Servicing
Agreement, the related Supplemental Agreement and the
Certificates of the related Series;
(ii) The Company has full power and
authority to sell and service the related Mortgage
Loans as contemplated herein and in the related Pooling
and Servicing Agreement;
(iii) No consent, approval, authorization or
order of any court or governmental agency or body is
required for the consummation by the Company of the
transactions contemplated herein, in the related
Pooling and Servicing Agreement or in the related
Supplemental Agreement, except such as may be required
under the blue sky laws of any jurisdiction and such
other approvals as have been obtained;
(iv) Neither the issuance of the
Certificates of the related Series nor delivery of the
related Offered Certificates, nor the consummation of
any other of the transactions contemplated in this
Agreement, the related Terms Agreement, the related
Pooling and Servicing Agreement or the related
Supplemental Agreement, nor the fulfillment of the
terms of the related Certificates, the related Pooling
and Servicing Agreement, the related Supplemental
Agreement, this Agreement or the related Terms
Agreement will conflict with or violate any term or
provision of the articles of incorporation or by-laws
of the Company or any statute, order or regulation
applicable to the Company of any court, regulatory
body, administrative agency or governmental body having
jurisdiction over the Company and will not conflict
with, result in a breach or violation or the
acceleration of or constitute a default under the terms
of any indenture or other agreement or instrument known
to such counsel to which the Company is a party or by
which it is bound; and
(v) There are no actions, proceedings or
investigations pending or, to the best knowledge of
such counsel, threatened before any court,
administrative agency or other tribunal (i) asserting
the invalidity of this Agreement, the related Terms
Agreement, the related Pooling and Servicing Agreement,
the related Supplemental Agreement or the related
Certificates, (ii) seeking to prevent the issuance of
the Certificates of the related Series or the
consummation by the Company of any of the transactions
contemplated by this Agreement, such Terms Agreement,
14
such Pooling and Servicing Agreement or such Supplemental Agreement,
or (iii) which might materially and adversely affect the
performance by the Company of its obligations under, or the
validity or enforceability of, this Agreement, such Terms
Agreement, such Pooling and Servicing Agreement, such
Supplemental Agreement or the related Certificates.
In rendering her opinion such counsel may rely as to matters
of fact, to the extent deemed proper and as stated therein,
on certificates of responsible officers of the Company or
public officials. In addition, such opinion may be qualified
as an opinion only on the laws of the State of New Jersey.
(d) If applicable, counsel for GECC shall have
furnished to the Underwriters an opinion, dated the related
Closing Date, to the effect that:
(i) GECC has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the State of New York and in each
jurisdiction in which the conduct of its business
requires such qualification;
(ii) GECC has full corporate power and
authority to execute and deliver the Supplemental
Agreement and to carry out its terms, and the
execution, delivery and performance of the Supplemental
Agreement have been duly authorized by GECC by all
necessary corporate action;
(iii) The related Supplemental Agreement has
been duly executed and delivered by GECC and
constitutes a legal, valid and binding agreement of
GECC enforceable in accordance with its terms, except
as such enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws
affecting the enforcement of creditor's rights in
general and by general principles of equity, regardless
of whether such enforceability is considered in a
proceeding in equity or at law; and
(iv) The execution, delivery and performance
of the Supplemental Agreement by GECC does not and will
not conflict with or violate any term or provision of
the articles of incorporation or by-laws of GECC or any
statute, order or regulation applicable to GECC of any
court, regulatory body, administrative agency or
governmental body having jurisdiction over GECC and
will not conflict with, result in a breach or violation
or the acceleration of or constitute a default under
the terms of any indenture or other agreement or instrument
15
known to such counsel to which GECC is a party or by which it
is bound.
In rendering such opinion such counsel may rely as to
matters of fact, to the extent deemed proper and as stated
therein, on certificates of responsible officers of GECC or
public officials.
(e) The Underwriters shall have received from
▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, such opinion
or opinions, dated the related Closing Date, with respect to
the issuance and sale of the Certificates of the related
Series, the related Registration Statement, the related
Final Prospectus and such other related matters as the
Underwriters may reasonably require, and the Company shall
have furnished to such counsel such documents as the
Underwriters may reasonably request for the purpose of
enabling them to pass upon such matters.
(f) The Company shall have furnished to the
Underwriters a certificate of the Company, signed by the
President or any Vice President and the Senior Vice
President-Finance or the principal financial or accounting
officer of the Company, dated the related Closing Date, to
the effect that the signers of such certificate have
carefully examined the related Registration Statement
(excluding any Current Reports and any other documents
incorporated by reference therein), the related Final
Prospectus, the Detailed Description referred to in such
Final Prospectus (excluding any related Current Report),
this Agreement and the related Terms Agreement and that:
(i) the representations and warranties of
the Company in this Agreement are true and correct in
all material respects on and as of the related Closing
Date with the same effect as if made on such Closing
Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part
to be performed or satisfied at or prior to such
Closing Date;
(ii) no stop order suspending the
effectiveness of such Registration Statement has been
issued and no proceedings for that purpose have been
instituted or, to their knowledge, threatened; and
(iii) nothing has come to their attention
that would lead them to believe that such Registration
Statement (excluding any Current Report) contains any
untrue statement of a material fact or omits to state
any material fact required to be stated therein or
necessary to make the statements therein not
16
misleading, that the related Final Prospectus
(excluding any related Current Report) contains any
untrue statement of a material fact or omits to state a
material fact required to be stated therein or
necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading, or that the Detailed Description referred
to in such Final Prospectus includes any untrue
statement of a material fact or omits to state any
information which the Final Prospectus states will be
included in such Detailed Description.
(g) If applicable, GECC shall have furnished to
the Underwriters a certificate of GECC, signed by the
President or any Vice President and the Senior Vice
President-Finance or the principal financial or accounting
officer of GECC, dated the related Closing Date, to the
effect that the signers of such certificate have carefully
examined the information under the headings "Description of
the Certificates--Supplemental Agreement with GECC" and
"General Electric Capital Corporation" contained in the
related Final Prospectus and the related Supplemental
Agreement and that:
(i) nothing has come to their attention
that would lead them to believe that such information
in the related Final Prospectus contains any untrue
statement of a material fact or omits to state any
material fact required to be stated therein or
necessary to make the statements therein, in the light
of the circumstances in which they were made, not
misleading; and
(ii) the representations and warranties of
GECC in the related Supplemental Agreement are true and
correct in all material respects on and as of the
related Closing Date with the same effect as if made on
such Closing Date, and GECC has complied with all the
agreements and satisfied all the conditions on its part
to be performed or satisfied at or prior to such
Closing Date.
(h) Counsel for the Trustee shall have furnished
to the Underwriters an opinion, dated the related Closing
Date, to the effect that:
(i) the Trustee has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of its jurisdiction of
organization with corporate power to own its properties
and conduct its business as presently conducted by it,
to conduct business as a trustee and to enter into and
17
perform its obligations under the related Pooling
and Servicing Agreement and, if applicable, the
related Supplemental Agreement;
(ii) each of the related Pooling and
Servicing Agreement and the related Supplemental
Agreement has been duly authorized, executed and
delivered by the Trustee and constitutes the legal,
valid and binding agreement of the Trustee enforceable
against the Trustee in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent
conveyance, reorganization or other similar laws
affecting the enforcement of creditors' rights
generally and to judicial discretion, and general
principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law);
(iii) the Trustee has duly accepted its
appointment as trustee under the related Pooling and
Servicing Agreement;
(iv) no consent, approval, authorization or
order of any state or federal court or government
agency or body is required on the part of the Trustee
for the consummation of the transactions contemplated
in the related Pooling and Servicing Agreement and the
related Supplemental Agreement, except such as may be
required under any federal or state securities law; and
(v) the performance on the part of the
Trustee of any of the transactions contemplated in the
related Pooling and Servicing Agreement and the related
Supplemental Agreement does not conflict with or result
in a breach or violation of any term or provision of,
or constitute a default under, the Articles of
Organization, as amended, or By-Laws of the Trustee, or
any state or federal statute or regulation applicable
to the Trustee, or to such counsel's knowledge, any
indenture or other agreement or instrument to which the
Trustee is a party or by which it is bound, or, to such
counsel's knowledge, any order of any state or federal
court, regulatory body, administrative agency or
governmental body having jurisdiction over the Trustee.
In addition, such counsel shall furnish to the Underwriters
such opinions as to the treatment of the Trust Fund for
purposes of state tax law where the Trustee maintains
possession of the assets of the Trust Fund as are reasonably
satisfactory to the Underwriters.
18
(i) If any Preliminary Prospectus has been
prepared with respect to a Series of Certificates, KPMG Peat
Marwick LLP shall have furnished to the Underwriters a
letter, dated as of the date of such Preliminary Prospectus,
in form and substance satisfactory to the Underwriters,
stating in effect that:
(i) they have performed certain specified
procedures as a result of which they have determined
that such information as the Underwriters may
reasonably request of an accounting, financial or
statistical nature (which is limited to accounting,
financial or statistical information derived from the
general accounting records of the Company) set forth in
the related Preliminary Prospectus under the caption
"Delinquency and Foreclosure Experience of the Company"
agrees with the accounting records of the Company,
excluding any questions of legal interpretation; and
(ii) they have performed certain specified
procedures as a result of which they have determined
that such information as the Underwriters may
reasonably request of an accounting, financial or
statistical nature (which is limited to accounting,
financial or statistical information derived from the
general accounting records of the Company and which is
obtained from an analysis of a sample of the Mortgage
Loans included in the related pool) set forth in the
related Preliminary Prospectus under the caption
"Description of the Mortgage Pool and the Mortgaged
Properties" or "Description of the Mortgage Pools and
the Mortgaged Properties", as the case may be, is
mutually consistent and agrees with the accounting
records of the Company and, where applicable, the
related Mortgage Loan files of the Company, excluding
any questions of legal interpretation.
(j) KPMG Peat Marwick LLP shall have furnished to
the Underwriters a letter, dated as of the date of the
related Terms Agreement, in form and substance satisfactory
to the Underwriters, stating in effect that they have
performed certain specified procedures as a result of which
they have determined that such information as the
Underwriters may reasonably request of an accounting,
financial or statistical nature (which is limited to
accounting, financial or statistical information derived
from the general accounting records of the Company) set
forth in the related Final Prospectus under the caption
"Delinquency and Foreclosure Experience of the Company"
agrees with the accounting records of the Company, excluding
any questions of legal interpretation.
19
(k) KPMG Peat Marwick LLP shall have furnished to
the Underwriters a letter, dated as of the related Closing
Date, in form and substance satisfactory to the
Underwriters, stating in effect that they have performed
certain specified procedures as a result of which they have
determined that such information as the Underwriters may
reasonably request of an accounting, financial or
statistical nature (which is limited to accounting,
financial or statistical information derived from the
general accounting records of the Company and which is
obtained from an analysis of a sample of the Mortgage Loans
included in the related pool) set forth in the related Final
Prospectus under the caption "Description of the Mortgage
Pool and the Mortgaged Properties" or "Description of the
Mortgage Pools and the Mortgaged Properties", as the case
may be, and in the Detailed Description relating to such
Final Prospectus is mutually consistent and agrees with the
accounting records of the Company and, where applicable, the
related Mortgage Loan files of the Company, excluding any
questions of legal interpretation. In addition, if
applicable, such accountants shall have furnished to the
Underwriters a letter, dated as of the related Closing Date,
which shall include a statement or statements to the effect
that based upon the assumptions and methodology agreed to by
the Company (and which is consistent with the manner in
which any final PAC Balances, TAC Balances, Scheduled
Balances, Maximum and Minimum Scheduled Balances or any
other scheduled balances are to be calculated as set forth
in the related Final Prospectus), all of which shall be
described by reference in such letter, such accountants
shall have verified the mathematical accuracy of any final
PAC Balances Table, TAC Balances Table, Scheduled Balances
Table, Maximum or Minimum Scheduled Balances Table or other
scheduled balances table attached as an exhibit to the
related Pooling and Servicing Agreement.
(l) KPMG Peat Marwick LLP shall have furnished to
the Underwriters and the Company a letter or letters, dated
as of the date of the related Terms Agreement, in form and
substance satisfactory to the Underwriters and the Company,
including, without limitation, statements, if applicable, to
the effect that:
(i) based upon the assumptions and
methodology set forth in the related Final Prospectus,
all of which shall be described by reference in such
letter, they recomputed the percentages of initial
principal balance outstanding as of each of the
Distribution Dates (as defined in such Final
Prospectus) indicated and the weighted average lives of
each Class of Offered Certificates at each of the
20
indicated percentages of the applicable Prepayment
Assumption, and they compared the recomputed
percentages and weighted average lives to the
corresponding percentages and weighted average lives
set forth in the related tables and found them to be in
agreement;
(ii) based upon the assumptions and
methodology set forth in such Final Prospectus, all of
which shall be described by reference in such letter,
they have verified the mathematical accuracy of any
Scheduled Final Distribution Dates for the Offered
Certificates, PAC Balances, TAC Balances, Scheduled
Balances, Maximum and Minimum Scheduled Balances or any
other scheduled balances set forth in such Final
Prospectus for each indicated Distribution Date, and
have verified the mathematical accuracy of any initial
Effective Ranges of any PAC Certificates, Scheduled
Certificates or other scheduled Certificates set forth
in such Final Prospectus; and
(iii) based upon the assumptions and
methodology set forth in such Final Prospectus, all of
which shall be described by reference in such letter,
they have verified the mathematical accuracy of the
pre-tax yields to maturity and, if applicable,
aggregate cash flows of any Class of Certificates for
which such pre-tax yields and, if applicable, aggregate
cash flows are set forth in such Final Prospectus at
the indicated percentages of the Prepayment Assumption
and, if applicable, at the indicated values of COFI,
LIBOR or any other index, as applicable.
(m) The Offered Certificates of the related Series
shall have received the ratings specified in the related
Terms Agreement (the "Required Ratings").
(n) Prior to the related Closing Date, the Company
shall have furnished to the Underwriters such further
information, certificates and documents as the Underwriters
may reasonably request.
(o) If any Certificates of the related Series are
to be sold to any other underwriter and/or offered in
reliance upon an exemption from the registration
requirements of the Act, the sale at or prior to the related
Closing Date of such Certificates to the purchaser thereof
shall have occurred.
(p) Subsequent to the date of the related Terms
Agreement, there shall not have been any change, or any
21
development involving a prospective change, in or affecting
the business or properties of the Company or GECC which the
Underwriters conclude in their judgment, after consultation
with the Company, materially impairs the investment quality
of the Offered Certificates of the related Series so as to
make it impractical or inadvisable to proceed with the
public offering or the delivery of such Offered Certificates
as contemplated by the related Final Prospectus.
If any of the conditions specified in this Section 6
shall not have been fulfilled in all material respects with
respect to the particular Offered Certificates of a Series when
and as provided in this Agreement and the related Terms
Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement and the related Terms
Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriters and their
counsel, this Agreement (with respect to the related Offered
Certificates) and the related Terms Agreement and all obligations
of the Underwriters hereunder (with respect to the related
Offered Certificates) and thereunder may be canceled at, or at
any time prior to, the related Closing Date by the Underwriters.
Notice of such cancellation shall be given to the Company in
writing, or by telephone or telegraph confirmed in writing.
7. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter and each
person who controls any Underwriter within the meaning of the Act
or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act, or other
Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement relating to the
Offered Certificates of the applicable Series as it became
effective or in any amendment or supplement thereof, or in such
Registration Statement, in the related Preliminary Prospectus or
the related Final Prospectus, or in any amendment thereof, or in
the Detailed Description referred to in such Final Prospectus or
arise out of or are based upon the omission or alleged omission
(in the case of any Computational Materials or ABS Term Sheets
(in each case as defined herein) in respect of which the Company
agrees to indemnify each Underwriter, as set forth below, when
such are read in conjunction with the related Final Prospectus
and Prospectus Supplement) to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such
22
indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided,
however, that (i) the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made
therein (A) in reliance upon and in conformity with written
information furnished to the Company as herein stated by or on
behalf of any Underwriter through you specifically for use in
connection with the preparation thereof or (B) in any Current
Report or any amendment or supplement thereof, except to the
extent that any untrue statement or alleged untrue statement
therein or omission therefrom results (or is alleged to have
resulted) directly from an error (a "Mortgage Pool Error") in the
information concerning the characteristics of the Mortgage Loans
furnished by the Company to any Underwriter in writing or by
electronic transmission that was used in the preparation of
either (x) any Computational Materials or ABS Term Sheets (or
amendments or supplements thereof) included in such Current
Report (or amendment or supplement thereof) or (y) any written or
electronic materials furnished to prospective investors on which
the Computational Materials (or amendments or supplements) were
based, (ii) such indemnity with respect to any Preliminary
Prospectus or any Corrected Statement (as defined below) in any
Final Prospectus (or supplement thereto) shall not inure to the
benefit of any Underwriter (or any person controlling any
Underwriter) from whom the person asserting any loss, claim,
damage or liability purchased the Certificates of the related
Series that are the subject thereof if such person did not
receive a copy of the related Final Prospectus or a supplement to
such Final Prospectus, as the case may be, at or prior to the
confirmation of the sale of such Certificates and the untrue
statement or omission of a material fact contained in such
Preliminary Prospectus or Final Prospectus (or supplement
thereto) was corrected (a "Corrected Statement") in such Final
Prospectus (with respect to any Preliminary Prospectus) or in
such other supplement (with respect to any Final Prospectus) and
such Final Prospectus or such supplement was furnished by the
Company to such Underwriter prior to the delivery of such
confirmation, and (iii) such indemnity with respect to any
Mortgage Pool Error shall not inure to the benefit of any
Underwriter (or any person controlling any Underwriter) from whom
the person asserting any loss, claim, damage or liability
received any Computational Materials or ABS Term Sheets (or any
written or electronic materials on which the Computational
Materials or ABS Term Sheets are based) that were prepared on the
basis of such Mortgage Pool Error, if, prior to the time of
confirmation of the sale of the applicable Certificates to such
person, the Company notified such Underwriter in writing of the
Mortgage Pool Error or provided in written or electronic form
information superseding or correcting such Mortgage Pool Error
23
(in any such case, a "Corrected Mortgage Pool Error"), and such
Underwriter failed to notify such person thereof or to deliver to
such person corrected Computational Materials (or underlying
written or electronic materials) or ABS Term Sheets. This
indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, each of its
directors, each of its officers who signs the Registration
Statement relating to the Offered Certificates of the applicable
Series, and each person who controls the Company within the
meaning of the Act or the Exchange Act to the same extent as the
foregoing indemnities from the Company to each Underwriter, but
only with reference to (A) written information furnished to the
Company by or on behalf of such Underwriter through you
specifically for use in the preparation of the documents referred
to in the foregoing indemnity with respect to the related Series,
or (B) any Computational Materials or ABS Term Sheets (or
amendments or supplements thereof) delivered to prospective
investors by such Underwriter and furnished to the Company by
such Underwriter pursuant to Section 8 and incorporated by
reference in such Registration Statement, the related Preliminary
Prospectus or the related Final Prospectus or any amendment or
supplement thereof (except that no such indemnity shall be
available for any losses, claims, damages or liabilities, or
actions in respect thereof, resulting from any Mortgage Pool
Error, other than a Corrected Mortgage Pool Error). This
indemnity agreement will be in addition to any liability which
each Underwriter may otherwise have. The Company acknowledges
that the Underwriter-Provided Information constitute the only
information furnished in writing by or on behalf of the
Underwriters for inclusion in the related Preliminary Prospectus
or Final Prospectus (other than any Computational Materials or
ABS Term Sheets (or amendments or supplements thereof)), and the
Underwriters confirm that such statements are correct.
"Underwriter-Provided Information" means any statements provided
to the Company by the Underwriters specifically for use in the
preparation of the related Preliminary Prospectus or Final
Prospectus and designated as such in the Terms Agreement for the
related Series. Any Computational Materials or ABS Term Sheets
(or amendments or supplements thereof) furnished to the Company
by a particular Underwriter shall relate exclusively to and be
the several responsibility of such Underwriter and no other
Underwriter.
(c) Promptly after receipt by an indemnified party
under Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party under this Section 7, notify
such indemnifying party in writing of the commencement thereof;
but the omission so to notify such indemnifying party
24
will not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 7. In case
any such action is brought against any indemnified party, and it
notifies the indemnifying party or parties of the commencement
thereof, the indemnifying party or parties will be entitled to
participate therein, and to the extent that they may elect by
written notice delivered to an indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to
assume the defense thereof, with counsel satisfactory to such
indemnified party; provided, however, that if the defendants in
any such action include both an indemnified party and an
indemnifying party and such indemnified party shall have
reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from
or additional to those available to an indemnifying party, such
indemnified party or parties shall have the right to select
separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from an
indemnifying party or parties to such indemnified party of their
election so to assume the defense of such action and approval by
such indemnified party of counsel, such indemnifying party or
parties will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof
unless (i) such indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party or parties
shall not be liable for the expenses of more than one separate
counsel approved by the indemnified party or parties in the case
of subparagraph (a) or (b), representing the indemnified parties
under subparagraph (a) or (b), who are parties to such action),
(ii) the indemnifying party or parties shall not have employed
counsel satisfactory to the indemnified party or parties to
represent such indemnified party or parties within a reasonable
time after notice of commencement of the action or (iii) the
indemnifying party or parties have authorized the employment of
counsel for an indemnified party at the expense of the
indemnifying parties; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the
counsel referred to in such clause (i) or (iii).
(d) If the indemnification provided for in paragraph
(a) or (b) of this Section 7 is due in accordance with its terms
but is for any reason held by a court to be unavailable from the
Company or any Underwriter, on grounds of policy or otherwise, or
if an indemnified party failed to give notice under paragraph (c)
of this Section 7 in respect of a claim otherwise subject to
indemnification in accordance with paragraph (a) or (b) of this
Section 7, the Company and such Underwriter shall contribute to
25
the aggregate losses, claims, damages and liabilities (including
legal and other expenses reasonably incurred in connection with
investigating or defending same) to which the Company and such
Underwriter may be subject, as follows:
(i) in the case of any losses, claims, damages and
liabilities (or actions in respect thereof) which do not
arise out of or are not based upon any untrue statement or
omission of a material fact in any Computational Materials
or ABS Term Sheets (or any amendments or supplements
thereof), in such proportion so that the Underwriters are
responsible for that portion represented by the difference
between the proceeds to the Company in respect of the
Offered Certificates appearing on the cover page of the
Final Prospectus for the related Series and the total
proceeds received by the Underwriters from the sale of such
Offered Certificates (the "Underwriting Discount"), and the
Company is responsible for the balance; provided, however,
that in no case shall the Underwriters be responsible under
this subparagraph (i) for any amount in excess of such
Underwriting Discount applicable to the Offered Certificates
purchased by the Underwriters pursuant to this Agreement and
the related Terms Agreement; and
(ii) in the case of any losses, claims, damages and
liabilities (or actions in respect thereof) which arise out
of or are based upon any untrue statement or omission of a
material fact in any Computational Materials or ABS Term
Sheets (or any amendments or supplements thereof) or in any
written or electronic materials distributed to prospective
investors on which the Computational Materials are based, in
such proportion as is appropriate to reflect the relative
fault of the Company on the one hand and the Underwriter
that delivered such materials to prospective investors 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 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 in such Computational Materials or ABS Term Sheets (or
any amendments or supplements thereof or such written or
electronic materials) results from information prepared by
the Company on the one hand or such Underwriter on the other
and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such
statement or omission.
Notwithstanding anything to the contrary in this Section 7(d), no
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution
26
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person
who controls any Underwriter within the meaning of either the Act
or the Exchange Act shall have the same rights to contribution as
such Underwriter, and each person who controls the Company within
the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement
and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the
immediately preceding sentence of this paragraph (d).
8. Computational Materials and Structural Term Sheets.
(a) Not later than 10:30 a.m., New York time, on the business day
before the date on which the Current Report relating to the
Offered Certificates of a Series is required to be filed by the
Company with the Commission pursuant to Section 5(b) hereof, the
Underwriters shall deliver to the Company five complete copies of
all materials provided by the Underwriters to prospective
investors in such Offered Certificates which constitute (i)
"Computational Materials" within the meaning of the no-action
letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Commission to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance
Corporation I, ▇▇▇▇▇▇, Peabody & Co. Incorporated, and ▇▇▇▇▇▇
Structured Asset Corporation and the no-action letter dated May
27, 1994 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (together, the
"▇▇▇▇▇▇ Letters") and the filing of such material is a condition
of the relief granted in such letter (such materials being the
"Computational Materials"), and (ii) "Structural Term Sheets"
within the meaning of the no-action letter dated February 17,
1995 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (the "PSA
Letter") and the filing of such material is a condition of the
relief granted in such letter (such materials being the
"Structural Term Sheets"). Each delivery of Computational
Materials and Structural Term Sheets to the Company pursuant to
this paragraph (a) shall be effected by delivering four copies of
such materials to counsel for the Company on behalf of the
Company at the address specified in Section 3 hereof and one copy
of such materials to the Company.
(b) Each Underwriter represents and warrants to and
agrees with the Company, as of the date of the related Terms
Agreement and as of the Closing Date, that:
(i) the Computational Materials furnished to the
Company by such Underwriter pursuant to Section 8(a)
constitute (either in original, aggregated or
consolidated form) all of the materials furnished to
prospective investors by such Underwriter prior to the
time of delivery thereof to the Company that are
27
required to be filed with the Commission with respect
to the related Offered Certificates in accordance with
the ▇▇▇▇▇▇ Letters, and such Computational Materials
comply with the requirements of the ▇▇▇▇▇▇ Letters;
(ii) the Structural Term Sheets furnished to the
Company by such Underwriter pursuant to Section 8(a)
constitute all of the materials furnished to
prospective investors by such Underwriter prior to the
time of delivery thereof to the Company that are
required to be filed with the Commission as "Structural
Term Sheets" with respect to the related Offered
Certificates in accordance with the PSA Letter, and
such Structural Term Sheets comply with the
requirements of the PSA Letter;
(iii) on the date any such Computational Materials
or Structural Term Sheets with respect to such Offered
Certificates (or any written or electronic materials
furnished to prospective investors on which the
Computational Materials are based) were last furnished
to each prospective investor by such Underwriter and on
the date of delivery thereof to the Company pursuant to
Section 8(a) and on the related Closing Date, such
Computational Materials (or such other materials) or
Structural Term Sheets did not and will not include any
untrue statement of a material fact or, when read in
conjunction with the Final Prospectus and Prospectus
Supplement, omit to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading; and
(iv) all Computational Materials (or underlying
materials distributed to prospective investors on which
the Computational Materials were based) delivered to
prospective investors by such Underwriter and all
Structural Term Sheets delivered to prospective
investors by such Underwriter contained and will
contain a legend, prominently displayed on the first
page thereof, stating that the Computational Materials
or Structural Term Sheets are being produced and
provided exclusively by the Underwriter and that the
Underwriter is acting as an underwriter and not acting
as an agent of the Company in connection with the
securities described herein, and otherwise in form and
substance satisfactory to the Company.
Notwithstanding the foregoing, each Underwriter makes no
representation or warranty as to whether any Computational
Materials or Structural Term Sheets (or any written or electronic
materials on which the Computational Materials are based)
included or will include any untrue statement resulting
28
directly from any Mortgage Pool Error (except any Corrected
Mortgage Pool Error, with respect to materials prepared after the
receipt by such Underwriter from the Company of notice of such
Corrected Mortgage Pool Error or materials superseding or
correcting such Corrected Mortgage Pool Error).
(c) The Underwriters shall cause a firm of public
accountants to furnish to the Company a letter, dated as of the
date on which the Underwriters deliver any Computational
Materials (which term shall be deemed to include, for purposes of
this paragraph (c), calculated statistical information delivered
to prospective investors in the form of a Structural Term Sheet)
to the Company pursuant to Section 8(a), in form and substance
satisfactory to the Company, stating in effect that they have
verified the mathematical accuracy of any calculations performed
by each Underwriter and set forth in such Computational
Materials.
(d) Each Underwriter acknowledges and agrees that any
Computational Materials or Structural Term Sheets with respect to
any Series of Certificates furnished to prospective investors
from and after September 10, 1996 have been prepared and
disseminated by the Underwriters and not by or on behalf of the
Company, and that such materials included and shall include a
disclaimer in the form described in paragraph (b)(iv) above. Each
Underwriter agrees that it will not represent to prospective
investors that any Computational Materials or Structural Term
Sheets were prepared or disseminated on behalf of the Company.
(e) If, at any time when a prospectus relating to the
Offered Certificates of a Series is required to be delivered
under the Act, it shall be necessary to amend or supplement the
related Final Prospectus as a result of an untrue statement of a
material fact contained in any Computational Materials or
Structural Term Sheets provided by any Underwriter pursuant to
this Section 8 or the omission to state therein a material fact
required, when considered in conjunction with the related Final
Prospectus and Prospectus Supplement, to be stated therein or
necessary to make the statements therein, when read in
conjunction with the related Final Prospectus and Prospectus
Supplement, not misleading, or if it shall be necessary to amend
or supplement any Current Report relating to any Computational
Materials or Structural Term Sheets to comply with the Act or the
rules thereunder, such Underwriter promptly will prepare and
furnish to the Company for filing with the Commission an
amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Each
Underwriter represents and warrants to the Company, as of the
date of delivery by it of such amendment or supplement to the
Company, that such amendment or supplement will not include any
untrue statement of a material fact or, when read in conjunction
29
with the related Final Prospectus and Prospectus Supplement,
omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; provided, however, each such Underwriter makes no
representation or warranty as to whether any such amendment or
supplement will include any untrue statement resulting directly
from any Mortgage Pool Error (except any Corrected Mortgage Pool
Error, with respect to any such amendment or supplement prepared
after the receipt by such Underwriter from the Company of notice
of such Corrected Mortgage Pool Error or materials superseding or
correcting such Corrected Mortgage Pool Error). The Company shall
have no obligation to file such amendment or supplement if (i)
the Company determines that such amendment or supplement contains
any untrue statement of a material fact or, when read in
conjunction with the related Final Prospectus and Prospectus
Supplement, omits to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; it being understood, however, that the Company shall
have no obligation to review or pass upon the accuracy or
adequacy of, or to correct, any such amendment or supplement
provided by any Underwriter to the Company pursuant to this
paragraph (e) or (ii) the Company reasonably determined that such
filing is not required under the Act and the Underwriters do not
object as provided below. The Company shall give notice to the
Underwriters of its determination not to file an amendment or
supplement pursuant to clause (ii) of the preceding sentence and
agrees to file such amendment or supplement if the Underwriters
reasonably object to such determination within one business day
after receipt of such notice.
9. Collateral Term Sheets. (a) Prior to the delivery of
any "Collateral Term Sheet" within the meaning of the PSA Letter,
the filing of which material is a condition of the relief granted
in such letter (such material being the "Collateral Term
Sheets"), to a prospective investor in the Offered Certificates,
the Underwriters shall notify the Company and its counsel by
telephone of their intention to deliver such materials and the
approximate date on which the first such delivery of such
materials is expected to occur. Not later than 10:30 a.m., New
York time, on the business day immediately following the date on
which any Collateral Term Sheet was first delivered to a
prospective investor in the Offered Certificates, the
Underwriters shall deliver to the Company five complete copies of
all materials provided by the Underwriters to prospective
investors in such Offered Certificates which constitute
"Collateral Term Sheets." Each delivery of a Collateral Term
Sheet to the Company pursuant to this paragraph (a) shall be
effected by delivering four copies of such materials to counsel
for the Company on behalf of the Company at the address specified
in Section 3 hereof and one copy of such materials to the
Company. (Collateral Term Sheets and Structural Term Sheets are,
30
together, referred to herein as "ABS Term Sheets.") At the
time of each such delivery, the Underwriter making such delivery
shall indicate in writing that the materials being delivered
constitute Collateral Term Sheets, and, if there has been any
prior such delivery with respect to the related Series, shall
indicate whether such materials differ in any material respect
from any Collateral Term Sheets previously delivered to the
Company with respect to such Series pursuant to this Section 9(a)
as a result of the occurrence of a material change in the
characteristics of the related Mortgage Loans.
(b) Each Underwriter represents and warrants to and
agrees with the Company as of the date of the related Terms
Agreement and as of the Closing Date, that:
(i) The Collateral Term Sheets furnished to
the Company by such Underwriter pursuant to Section 9(a)
constitute all of the materials furnished to prospective
investors by such Underwriter prior to time of delivery
thereof to the Company that are required to be filed with
the Commission as "Collateral Term Sheets" with respect to
the related Offered Certificates in accordance with the PSA
Letter, and such Collateral Term Sheets comply with the
requirements of the PSA Letter;
(ii) On the date any such Collateral Term
Sheets with respect to such Offered Certificates were last
furnished to each prospective investor by such Underwriter
and on the date of delivery thereof to the Company pursuant
to Section 9(a) and on the related Closing Date, such
Collateral Term Sheets did not and will not include any
untrue statement of a material fact or, when read in
conjunction with the Final Prospectus and Prospectus
Supplement, omit to state a material fact required to be
stated therein or necessary to make the statements therein
not misleading; and
(iii) such Underwriter has not represented to
any prospective investor that any Collateral Term Sheets
with respect to any Series were prepared or disseminated on
behalf of the Company, and, except as otherwise disclosed by
such Underwriter to the Company in writing prior to the date
hereof, all Collateral Term Sheets previously furnished to
prospective investors included a disclaimer to the effect
set forth in Section 9(c).
Notwithstanding the foregoing, each Underwriter makes no
representation or warranty as to whether any Collateral Term
Sheet included or will include any untrue statement or material
omission resulting directly from any Mortgage Pool Error (except
any Corrected Mortgage Pool Error, with respect to materials
prepared after the receipt by such Underwriter from the Company
31
of notice of such Corrected Mortgage Pool Error or materials
superseding or correcting such Corrected Mortgage Pool Error).
(c) Each Underwriter acknowledges and agrees that any
Collateral Term Sheets with respect to any Series of Certificates
furnished to prospective investors from and after the date hereof
shall include a disclaimer in form satisfactory to the Company to
the effect set forth in Section 8(d) hereof, and to the effect
that the information contained in such materials supersedes
information contained in any prior Collateral Term Sheet with
respect to such Series of Offered Certificates and will be
superseded by the description of the related Mortgage Loans in
the related Prospectus Supplement and in the Detailed Description
relating to such Prospectus Supplement to be filed under cover of
Form 8-K. Each Underwriter agrees that it will not represent to
prospective investors that any Collateral Term Sheets were
prepared or disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the
Offered Certificates of a Series is required to be delivered
under the Act, it shall be necessary to amend or supplement the
related Final Prospectus as a result of an untrue statement of a
material fact contained in any Collateral Term Sheets provided by
any Underwriter pursuant to this Section 9 or the omission to
state therein a material fact required, when considered in
conjunction with the related Final Prospectus and Prospectus
Supplement, to be stated therein or necessary to make the
statements therein, when read in conjunction with the related
Final Prospectus and Prospectus Supplement, not misleading, or if
it shall be necessary to amend or supplement any Current Report
relating to any Collateral Term Sheets to comply with the Act or
the rules thereunder, such Underwriter promptly will prepare and
furnish to the Company for filing with the Commission an
amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Each
Underwriter represents and warrants to the Company, as of the
date of delivery of such amendment or supplement to the Company,
that such amendment or supplement will not include any untrue
statement of a material fact or, when read in conjunction with
the related Final Prospectus and Prospectus Supplement, omit to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however,
each such Underwriter makes no representation or warranty as to
whether any such amendment or supplement will include any untrue
statement resulting directly from any Mortgage Pool Error (except
any Corrected Mortgage Pool Error, with respect to any such
amendment or supplement prepared after the receipt by such
Underwriter from the Company of notice of such Corrected Mortgage
Pool Error or materials superseding or correcting such Corrected
Mortgage Pool Error). The Company shall have no obligation to
32
file such amendment or supplement if the Company determines that (i)
such amendment or supplement contains any untrue statement of a
material fact or, when read in conjunction with the related Final
Prospectus and Prospectus Supplement, omits to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; it being understood, however,
that the Company shall have no obligation to review or pass upon
the accuracy or adequacy of, or to correct, any such amendment or
supplement provided by any Underwriter to the Company pursuant to
this paragraph (d) or (ii) such filing is not required under the
Act.
10. Termination. This Agreement (with respect to a
particular Certificate Offering) and the related Terms Agreement
shall be subject to termination in the absolute discretion of the
Underwriters, by notice given to the Company prior to delivery of
and payment for the related Offered Certificates, if prior to the
related Closing Date (i) trading in securities generally on the
New York Stock Exchange shall have been suspended or materially
limited, (ii) a general moratorium on commercial banking
activities in New York shall have been declared by either federal
or New York State authorities, or (iii) there shall have occurred
any outbreak or material escalation of hostilities or other
calamity or crisis the effect of which on the financial markets
of the United States is such as to make it, in the reasonable
judgment of the Underwriters, impracticable to market such
Offered Certificates.
11. Representations and Indemnities to Survive
Delivery. The agreements, representations, warranties,
indemnities and other statements of the Company or its officers
and of the Underwriters set forth in or made pursuant to this
Agreement and the related Terms Agreement will remain in full
force and effect, regardless of any investigation made by or on
behalf of the Underwriters or the Company or any of the officers,
directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the related Offered
Certificates. The provisions of Section 7 hereof shall survive
the termination or cancellation of this Agreement and the related
Terms Agreement.
12. Default by One or More of the Underwriters. If one
or more of the Underwriters shall fail on the Closing Date to
purchase the Offered Certificates which it or they are obligated
to purchase hereunder and under the applicable Terms Agreement
(the "Defaulted Certificates"), you shall have the right, within
24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted
Certificates in such amounts as may be agreed upon and upon the
terms herein set forth and under the applicable Terms Agreement.
33
If, however, you have not completed such arrangements within
such 24-hour period, then:
(a) if the aggregate original Certificate Principal
Balance of Defaulted Certificates does not exceed 10% of the
aggregate original Certificate Principal Balance of the
Offered Certificates to be purchased pursuant to such Terms
Agreement, the non-defaulting Underwriters named in such
Terms Agreement shall be obligated to purchase the full
amount thereof in the proportions that their respective
underwriting obligations thereunder bear to the underwriting
obligations of all non-defaulting Underwriters; and
(b) if the aggregate original Certificate Principal
Balance of Defaulted Certificates exceeds 10% of the
aggregate original Certificate Principal Balance of the
Offered Certificates to be purchased pursuant to such Terms
Agreement, the applicable Terms Agreement shall terminate
without any liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section 12 and nothing in
this Agreement shall relieve any defaulting Underwriter from
liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement or such applicable Terms Agreement,
either you or the Company shall have the right to postpone the
Closing Date for a period of time not exceeding seven days in
order to effect any required changes in the Registration
Statement or in any other documents or arrangements.
13. Successors. This Agreement and the related Terms
Agreement will inure to the benefit of and be binding upon the
parties hereto and thereto and their respective successors and
the officers, directors and controlling persons referred to in
Section 7 hereof, and their successors and assigns, and no other
person will have any right or obligation hereunder or thereunder.
No purchaser of any Offered Certificate from the Underwriters
shall be deemed a successor or assign by reason of such purchase.
14. APPLICABLE LAW. THIS AGREEMENT AND THE RELATED
TERMS AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE AND TO BE PERFORMED THEREIN.
15. Miscellaneous. This Agreement, as supplemented
by the related Terms Agreement, supersedes all prior and
contemporaneous agreements and understandings relating to the
subject matter hereof. This Agreement and the related Terms
34
Agreement or any term of each may not be changed, waived,
discharged or terminated except by an affirmative written
agreement made by the party against whom enforcement of the
change, waiver, discharge or termination is sought. The headings
in this Agreement and the related Terms Agreement are for
purposes of reference only and shall not limit or otherwise
affect the meaning hereof or thereof.
16. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the
Underwriters, will be delivered to the Underwriters at the
address first above written; or if sent to the Company, will be
delivered to GE Capital Mortgage Services, Inc., Three Executive
Campus, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General
Counsel.
35
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the
undersigned a counterpart hereof, whereupon this letter and your
acceptance shall represent a binding agreement between the
Company and the Underwriters.
Very truly yours,
GE CAPITAL MORTGAGE SERVICES, INC.
By:______________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of
the date first above written.
PAINEWEBBER INCORPORATED
as Representative of the Underwriters
named in the applicable Terms Agreement
By: ________________________________
Name:
Title:
36
EXHIBIT A
GE CAPITAL MORTGAGE SERVICES, INC.
REMIC MULTI-CLASS PASS-THROUGH CERTIFICATES
SERIES ____-__
TERMS AGREEMENT
(to Underwriting Agreement,
dated September 24, 1996
between the Company and the Underwriters)
GE Capital Mortgage Services, Inc. New York, New York
Three Executive Campus [Date]
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Each of PaineWebber Incorporated [and
] (each an "Underwriter" and collectively the
"Underwriters") agrees, severally and not jointly, subject to the
terms and provisions herein and of the captioned Underwriting
Agreement (the "Underwriting Agreement"), to purchase such
Classes of Series ____-__ Certificates specified opposite its
name in Section 2(a) hereof (the "Offered Certificates"). This
letter supplements and modifies the Underwriting Agreement solely
as it relates to the purchase and sale of the Offered
Certificates described below. The Series ____-__ Certificates are
registered with the Securities and Exchange Commission by means
of an effective Registration Statement (No. 33-___). Capitalized
terms used and not defined herein have the meanings given them in
the Underwriting Agreement.
Section 1. The Mortgage Pool: The Series ____-__
Certificates shall evidence the entire beneficial ownership
interest in a mortgage pool (the "Mortgage Pool") of closed end,
fixed rate, first- or second-lien, home equity mortgage loans
(the "Mortgage Loans") having the characteristics described in
the Prospectus Supplement dated the date hereof.
Section 2. The Certificates: The Offered
Certificates shall be issued as follows:
(a) Classes: The Offered Certificates shall be issued
with the following Class designations, interest rates and
principal balances, subject in the aggregate to the variance
referred to in Section 1(a)[and, as to any particular Class,
to an upward or downward variance of up to [ ]%]:
37
Principal Interest Class Purchase
Underwriter Class Balance Rate Price Percentage
----------- ----- --------- -------- ----------------
(b) The Offered Certificates shall have such other
characteristics as described in the related Final
Prospectus.
Section 3. Purchase Price: The Purchase Price for each
Class of the Offered Certificates shall be the Class Purchase
Price Percentage therefor (as set forth in Section 2(a) above) of
the initial Class Certificates Principal Balance thereof plus
accrued interest at the rate of [ ]% per annum from and including
the Cut-off Date up to, but not including, _________ __, ____
(the "Closing Date").
Section 4. Required Ratings: The Offered
Certificates shall have received Required Ratings of at least
[ ] from [ ].
Section 5. Tax Treatment: [One or more elections
will be made to treat the assets of the Trust Fund as a REMIC.]
[The Trust Fund will be treated as a "grantor trust" for federal
income tax purposes.]
[Section 6. Additional Expenses:]*
* to be inserted if applicable.
38
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the
undersigned a counterpart hereof, whereupon this letter and your
acceptance shall represent a binding agreement between the
Underwriters and the Company.
Very truly yours,
PAINEWEBBER INCORPORATED
By:_____________________________
Name:
Title:
[name of Underwriter]
By:_____________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of
the date first above written.
GE CAPITAL MORTGAGE SERVICES, INC.
By: _______________________________
Name:
Title:
39