EXECUTION
GE CAPITAL MORTGAGE SERVICES, INC.
PASS-THROUGH CERTIFICATES
(Issuable in Series)
UNDERWRITING AGREEMENT
▇▇▇▇▇▇ Brothers Inc. New York, New York
American Express Tower May 22, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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 to
you (the "Underwriter") 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 State Street Bank and Trust Company, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the related Pooling and Servicing Agreement.
The Certificates issued under each Pooling and Servicing Agreement will
represent the entire beneficial ownership interest in a trust fund (the "Trust
Fund") established by such Pooling and Servicing Agreement. The assets of each
Trust Fund will consist primarily of a pool of conventional, fixed rate, first
lien, fully amortizing, one- to four-family residential mortgage loans (the
"Mortgage Loans") having the original terms to maturity specified in the related
Terms Agreement referred to hereinbelow. 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.
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 (the "Terms Agreement") providing for the sale of
specified Classes of Offered Certificates (as defined below) to, and the
purchase and public offering thereof by, you. Each such Certificate Offering
which the Company elects to make pursuant to this Agreement shall be governed by
this Agreement, as supplemented by the related Terms Agreement. Each Terms
Agreement, 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
Underwriter (the "Offered Certificates"), the principal balance or balances of
the Offered Certificates, each subject to any stated variance, and the price or
prices at which such Offered Certificates are to be purchased by the Underwriter
from the Company.
1. Representations and Warranties. (a) The Company represents and
warrants to and agrees with the Underwriter, 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 related Terms
Agreement, including any documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act which were filed under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
on or before the effective date of the Registration Statement, is
hereinafter called the "Registration Statement", and such prospectus,
as such prospectus is supplemented by a prospectus supplement relating
to the Offered Certificates of the related Series, each in the form
first filed after the date of the related Terms Agreement pursuant to
Rule 424(b) under the Act, including any documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act which
were filed under the Exchange Act on or before the date of such
prospectus supplement (other than any such incorporated documents that
relate to Collateral Term Sheets (as defined herein))(such prospectus
supplement, including such incorporated documents (other than those
that relate to Collateral Term Sheets), in the form first filed after
the date of the related Terms Agreement pursuant to Rule 424(b) is
hereinafter called the "Prospectus Supplement"), is hereinafter called
the "Prospectus". Any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration
Statement, the Prospectus or the Prospectus Supplement shall be deemed
to refer to and include the filing of any document under the Exchange
Act after the effective date of the Registration Statement or the
issue date of the Prospectus or Prospectus Supplement, as the case may
be, deemed to be incorporated therein by reference pursuant to Item 12
of Form S-3 under the Act.
(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 (as defined in Section 3 below), the related
Registration Statement and the related Prospectus, and any amendments
thereof and supplements thereto, will conform in all material respects
to the requirements of the Act and the rules and regulations of the
Commission thereunder; such Registration Statement, at the time it
became effective, did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; such
Prospectus, on the date of any filing pursuant to Rule 424(b) and on
each Closing Date, will not include any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they are made,
not misleading; and the Detailed Description referred to in such
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 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 Prospectus (or any supplement thereto) in reliance
upon and in conformity with written information furnished to the
Company by or on behalf of the Underwriter 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
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 Prospectus; will each, if
rated at the time of issuance in one of the two highest rating
categories by a nationally recognized statistical rating organization,
be when issued a "mortgage related security" as such term is defined
in Section 3(a)(41) of the Exchange Act, and will each on the related
Closing Date be duly and validly authorized, and, when validly
executed, countersigned, issued and delivered in accordance with the
related Pooling and Servicing Agreement and sold to you as provided
herein and in the related Terms Agreement, will each be validly issued
and outstanding and entitled to the benefits of the 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 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,
assuming the due authorization, execution and delivery thereof by the
Trustee, such Pooling and Servicing Agreement (on such Closing Date)
will constitute the valid and binding agreement of the Company
enforceable in accordance with its terms, subject as to
enforceability, to bankruptcy, insolvency, reorganization or other
similar laws affecting creditors' rights and to general principles of
equity (regardless of whether the enforceability of such Pooling and
Servicing Agreement is considered in a proceeding in equity or at
law).
2. Purchase and Sale. Subject to the execution of the Terms Agreement
for a particular Certificate Offering and subject to the terms and
conditions and in reliance upon the representations and warranties set
forth in this Agreement and such Terms Agreement, the Company agrees to
sell to the Underwriter, and the Underwriter agrees to purchase from the
Company, all, but not less than all, of the related Offered Certificates at
the purchase price therefor set forth in such Terms Agreement (the
"Purchase Price").
The parties hereto agree that settlement for all securities 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 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 Underwriter and the Company
(such date and time being herein called the "Closing Date"). Delivery of
such Offered Certificates shall be made to the Underwriter against payment
by the Underwriter 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 Underwriter may request not less than two
full business days in advance of each Closing Date.
The Company agrees to notify the Underwriter 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 Underwriter. It is understood that the Underwriter
proposes to offer the Offered Certificates of the related Series for sale
to the public as set forth in the related Prospectus.
5. Agreements. The Company agrees with the Underwriter that:
(a) The Company will cause the 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
Underwriter when such Prospectus as so supplemented has been so filed,
and prior to the termination of the Certificate Offering to which such
Prospectus relates also will promptly advise the Underwriter (i) when
any amendment to the related Registration Statement specifically
relating to such Offered Certificates shall have become effective or
any further supplement to such Prospectus has been filed, (ii) of any
request by the Commission for any amendment of such Registration
Statement or Prospectus or for any additional information, (iii) of
the issuance by the Commission of any stop order suspending the
effectiveness of such Registration Statement or the institution or
threatening of any proceeding for that purpose and (iv) of the receipt
by the Company of any written notification with respect to the
suspension of the qualification of such Offered Certificates for sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will not file any amendment of the
related Registration Statement or supplement to the related 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 Underwriter 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
the 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 the 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 Underwriter 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 Underwriter prior to 10:30 a.m. In addition, if at any
time prior to the availability of the related Prospectus Supplement
the Underwriter has delivered to any prospective investor a Collateral
Term Sheet that reflects, in the reasonable judgment of the
Underwriter and the Company, a material change in the characteristics
of the Mortgage Loans for the related Series from those on which a
Collateral Term Sheet with respect to the related Series previously
filed with the Commission was based, the Company will cause any such
Collateral Term Sheet that is delivered by the Underwriter 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 Underwriter prior to 10:30
a.m. In each case, the Company will promptly advise the Underwriter
when such Current Report has been so filed. Each such Current Report
shall be incorporated by reference in the related Prospectus and the
related Registration Statement. Notwithstanding the five preceding
sentences, the Company shall have no obligation to file any materials
provided by the Underwriter pursuant to Sections 8 and 9 which, in the
reasonable determination of the Company after making reasonable
efforts to consult with the Underwriter, 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 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
Underwriter to the Company pursuant to Section 8 or Section 9 hereof.
(c) If, at any time when a prospectus relating to the Offered
Certificates of a Series is required to be delivered under the Act,
any event occurs as a result of which the related Prospectus as then
amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in light of the circumstances under which they were
made not misleading, or if it shall be necessary at any time to amend
or supplement the related 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 Sheets or Collateral Term Sheets incorporated by reference in the
Prospectus other than any amendments or supplements of such
Computational Materials or Structural Term Sheets that are furnished
to the Company by the Underwriter pursuant to Section 8(e) hereof or
any amendments or supplements of such Collateral Term Sheets that are
furnished to the Company by the Underwriter pursuant to Section 9(d)
hereof which the Company determines to file in accordance therewith.
(d) The Company will furnish to the Underwriter and counsel for
the Underwriter, without charge, as many signed copies of the related
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by the Underwriter or dealer may be required
by the Act, as many copies of the related Prospectus and any
supplements thereto (other than exhibits to the related Current
Report) as the Underwriter may reasonably request.
(e) The Company will furnish such information, execute such
instruments and take such actions as may be reasonably requested by
the Underwriter to qualify the Offered Certificates of a Series for
sale under the laws of such jurisdictions as the Underwriter 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 Underwriter 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 or
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 Underwriter, insured to the satisfaction of the Underwriter (it
being understood that, except as provided in this paragraph (f) and in
Section 7 hereof, the Underwriter will pay all its own costs and
expenses, including the fees of ▇▇▇▇▇ & ▇▇▇▇, counsel for the
Underwriter, transfer taxes on resale of any Offered Certificates by
it, advertising expenses connected with any offers that it may make,
the fees of KPMG Peat Marwick LLP with respect to its letters
furnished pursuant to Section 6(i) of this Agreement and any letter
furnished pursuant to the last sentence of Section 6(h) hereof, the
fees of any firm of public accountants selected by the Underwriter
with respect to their letter furnished pursuant to Section 8(c) of
this Agreement, 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 Underwriter. The obligations
of the Underwriter 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 Underwriter an opinion, dated the related
Closing Date, to the effect 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) the related Pooling and Servicing 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 telephone
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; 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 Prospectus (except the financial
statements and schedules and the other financial and statistical
data included therein, the documents incorporated by reference
therein and the information included in the second sentence of
the antepenultimate paragraph, the first sentence of the
penultimate paragraph, and the last paragraph of the cover page
of such Prospectus Supplement and in the second and fourth
sentences of the first paragraph under the heading "Plan of
Distribution" therein, 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 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 Prospectus or any amendment or supplement thereto (except
the financial statements and schedules and the other financial
and statistical data included therein, the documents incorporated
by reference therein and the information included in the second
sentence of the antepenultimate paragraph, the first sentence of
the penultimate paragraph, and the last paragraph of the cover
page of such Prospectus Supplement and in the second and fourth
sentences of the first paragraph under the heading "Plan of
Distribution" therein, 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 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 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;
(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 as a REMIC: the related Trust Fund (and any specified
subgrouping therein) will qualify as a REMIC 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 the related REMIC within the
meaning of the Code, and each Class of such Certificates
specified in the related Prospectus as a Class of Residual
Certificates will constitute the "residual interest" in the
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"; and
(ix) assuming that some or all of the Offered Certificates
of the related Series shall be rated at the time of issuance in
one of the two highest rating categories by a nationally
recognized statistical rating organization, each Offered
Certificate so rated will be at the time of issuance, a "mortgage
related security" as such term is defined in Section 3(a)(41) of
the Exchange Act.
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 or the related Pooling and Servicing
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 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 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 law of the State of New York and the federal law
of the United States of America.
(c) The General Counsel for the Company shall have furnished to
the Underwriter 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 Prospectus
and to enter into and perform its obligations under this
Agreement, the related Terms Agreement, the related Pooling and
Servicing Agreement and the Certificates of the related Series;
(ii) The Company has full power and authority to sell 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 or in the related Pooling and Servicing Agreement, except
such as may be required under the blue sky laws of any
jurisdiction and such other approvals as have been obtained;
(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 or the related
Pooling and Servicing Agreement, nor the fulfillment of the terms
of the related Certificates, the related Pooling and Servicing
Agreement, this Agreement or the related Terms Agreement will
conflict with or violate any term or provision of the articles of
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 or the
related Certificates, (ii) seeking to prevent the issuance of the
Certificates of the related Series or the consummation by the
Company of any of the transactions contemplated by this
Agreement, such Terms Agreement or such Pooling and Servicing
Agreement, or (iii) which might materially and adversely affect
the performance by the Company of its obligations under, or the
validity or enforceability of, this Agreement, such Terms
Agreement, such Pooling and Servicing 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) The Underwriter shall have received from ▇▇▇▇▇ & ▇▇▇▇,
counsel for the Underwriter, such opinion or opinions, dated the
related Closing Date, with respect to the issuance and sale of the
Certificates of the related Series, the related Registration
Statement, the related Prospectus and such other related matters as
the Underwriter may reasonably require, and the Company shall have
furnished to such counsel such documents as the Underwriter may
reasonably request for the purpose of enabling them to pass upon such
matters.
(e) The Company shall have furnished to the Underwriter 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 Prospectus, the Detailed Description referred to
in such Prospectus (excluding any related Current Report), this
Agreement and the related Terms Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on
and as of the related Closing Date with the same effect as if
made on such Closing Date, and the Company has complied with all
the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such Closing Date;
(ii) no stop order suspending the effectiveness of such
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to their knowledge,
threatened; and
(iii) nothing has come to their attention that would lead
them to believe that such Registration Statement (excluding any
Current Report) contains any untrue statement of a material fact
or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, that
the related Prospectus (excluding any related Current Report)
contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or that the Detailed
Description referred to in such Prospectus includes any untrue
statement of a material fact or omits to state any information
which the Prospectus states will be included in such Detailed
Description.
(f) Peabody & ▇▇▇▇▇▇, counsel for the Trustee, shall have
furnished to the Underwriter 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 the
Commonwealth of Massachusetts 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 perform
its obligations under the related Pooling and Servicing
Agreement;
(ii) the related Pooling and Servicing Agreement has been
duly authorized, executed and delivered by the Trustee and
constitutes the legal, valid and binding agreement of the Trustee
enforceable against the Trustee in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization or other similar laws affecting the enforcement of
creditors' rights generally and to judicial discretion, and
general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law);
(iii) the Trustee has duly accepted its appointment as
trustee under the related Pooling and Servicing Agreement;
(iv) no consent, approval, authorization or order of any
Massachusetts 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, 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 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 Massachusetts 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 Underwriter such
opinions as to the treatment of the Trust Fund for purposes of
Massachusetts tax law as are reasonably satisfactory to the
Underwriter.
(g) KPMG Peat Marwick LLP shall have furnished to the Underwriter
a letter, dated as of the date of the related Terms Agreement, in form
and substance satisfactory to the Underwriter, stating in effect that
they have performed certain specified procedures as a result of which
they have determined that such information as the Underwriter 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 Prospectus Supplement under the caption "Delinquency
and Foreclosure Experience of the Company" agrees with the accounting
records of the Company, excluding any questions of legal
interpretation.
(h) KPMG Peat Marwick LLP shall have furnished to the Underwriter
a letter, dated as of the related Closing Date, in form and substance
satisfactory to the Underwriter, stating in effect that they have
performed certain specified procedures as a result of which they have
determined that such information as the Underwriter 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 Prospectus Supplement
under the caption "Description of the Mortgage Pool and the Mortgaged
Proper- ties" or "Description of the Mortgage Pools and the Mortgaged
Properties", as the case may be, and in the Detailed Description
relating to such Prospectus Supplement 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 Underwriter 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
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.
(i) KPMG Peat Marwick LLP shall have furnished to the Underwriter
and the Company a letter or letters, dated as of the date of the
related Terms Agreement, in form and substance satisfactory to the
Underwriter 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 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 Prospectus) indicated and
the weighted average lives of each Class of Offered Certificates
at each of the 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 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 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 Prospectus; and
(iii) based upon the assumptions and methodology set forth
in such 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
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.
(j) The Offered Certificates of the related Series shall have
received the ratings specified in the related Terms Agreement (the
"Required Ratings").
(k) Prior to the related Closing Date, the Company shall have
furnished to the Underwriter such further information, certificates
and documents as the Underwriter may reasonably request.
(l) If any Certificates of the related Series are to be sold to
any other underwriter and/or offered in reliance upon an exemption
from the registration requirements of the Act, the sale at or prior to
the related Closing Date of such Certificates to the purchaser thereof
shall have occurred.
(m) Subsequent to the date of the related Terms Agreement, there
shall not have been any change, or any development involving a
prospective change, in or affecting the business or properties of the
Company which the Underwriter concludes in its judgment, after
consultation with the Company, materially impairs the investment
quality of the Offered Certificates of the related Series so as to
make it impractical or inadvisable to proceed with the public offering
or the delivery of such Offered Certificates as contemplated by the
related Prospectus.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects with respect to the particular
Offered Certificates of a Series when and as provided in this Agreement and
the related Terms Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement and the related Terms
Agreement shall not be in all material respects reasonably satisfactory in
form and substance to the Underwriter and its counsel, this Agreement (with
respect to the related Offered Certificates) and the related Terms
Agreement and all obligations of the Underwriter 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 Underwriter. 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 the Underwriter and each person who controls
the 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 or the related Prospectus, or in
any amendment thereof, or in the Detailed Description referred to in such
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 the Underwriter, as set forth below, when such are read in
conjunction with the related 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
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 the
Underwriter specifically for use in connection with the preparation thereof
or (B) in any Current Report or any amendment or supplement thereof, except
to the extent that any untrue statement or alleged untrue statement therein
or omission therefrom results (or is alleged to have resulted) directly
from an error (a "Mortgage Pool Error") in the information concerning the
characteristics of the Mortgage Loans furnished by the Company to the
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 Corrected Statement (as defined below) in such Prospectus (or
supplement thereto) shall not inure to the benefit of the Underwriter (or
any person controlling the 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 a supplement to such Prospectus at or prior to the confirmation of the
sale of such Certificates and the untrue statement or omission of a
material fact contained in such Prospectus (or supplement thereto) was
corrected (a "Corrected Statement") in such other supplement and such
supplement was furnished by the Company to the 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 the Underwriter (or
any person controlling the Underwriter) from whom the person asserting any
loss, claim, damage or liability received any Computational Materials (or
any written or electronic materials on which the Computational Materials
are based) or ABS Term Sheets that were prepared on the basis of such
Mortgage Pool Error, if, prior to the time of confirmation of the sale of
the applicable Certificates to such person, the Company notified the
Underwriter in writing of the Mortgage Pool Error or provided in written or
electronic form information superseding or correcting such Mortgage Pool
Error (in any such case, a "Corrected Mortgage Pool Error"), and the
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) The Underwriter agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the
Registration Statement relating to the Offered Certificates of the
applicable Series, and each person who controls the Company within the
meaning of the Act or the Exchange Act to the same extent as the
foregoing indemnities from the Company to the Underwriter, but only
with reference to (A) written information furnished to the Company by
or on behalf of the Underwriter specifically for use in the
preparation of the documents referred to in the foregoing indemnity
with respect to the related Series, or (B) any Computational Materials
or ABS Term Sheets (or amendments or supplements thereof) furnished to
the Company by the Underwriter pursuant to Section 8 or Section 9 and
incorporated by reference in such Registration Statement or the
related Prospectus or any amendment or supplement thereof (except that
no such indemnity shall be available for any losses, claims, damages
or liabilities, or actions in respect thereof, resulting from any
Mortgage Pool Error, other than a Corrected Mortgage Pool Error). This
indemnity agreement will be in addition to any liability which the
Underwriter may otherwise have. The Company acknowledges that the
statements set forth in the second sentence of the ante-penultimate
paragraph, the first sentence of the penultimate paragraph, and in the
last paragraph appearing on the cover page of the related Prospectus
Supplement as such statements relate to such Offered Certificates and
the second sentence of the first paragraph under the heading "Plan of
Distribution" in such Prospectus Supplement as such statements relate
to such Offered Certificates constitute the only information furnished
in writing by or on behalf of the Underwriter for inclusion in the
related Prospectus (other than any Computational Materials or ABS Term
Sheets (or amendments or supplements thereof) furnished to the Company
by the Underwriter), and the Underwriter confirms that such statements
are correct.
(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 the
indemnifying party under this Section 7, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section 7.
In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the
extent that it may elect by written notice delivered to the
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 the indemnified party and
the indemnifying party and the 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 the indemnifying party, the indemnified party or
parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be
liable to such indemnified party under this Section 7 for any legal or
other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party
shall have employed separate counsel in connection with the assertion
of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel
approved by the indemnified party in the case of subparagraph (a) or
(b), representing the indemnified parties under subparagraph (a) or
(b), who are parties to such action), (ii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after
notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at
the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the
counsel referred to in such clause (i) or (iii).
(d) If the indemnification provided for in paragraph (a) or (b)
of this Section 7 is due in accordance with its terms but is for any
reason held by a court to be unavailable from the Company or the
Underwriter, on grounds of policy or otherwise, or if the 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 the
Underwriter shall contribute to 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 the 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 Underwriter is 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
Prospectus Supplement for the related Series and the total
proceeds received by the Underwriter 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 Underwriter be responsible under this
subparagraph (i) for any amount in excess of such Underwriting
Discount applicable to the Offered Certificates purchased by the
Underwriter 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 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 the 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 from any
person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 7, each person who controls the Underwriter
within the meaning of either the Act or the Exchange Act shall have
the same rights to contribution as the 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 Underwriter shall deliver to the Company five
complete copies of all materials provided by the Underwriter to prospective
investors in such Offered Certificates that 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"), the filing
of which 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"), the filing of which
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) The 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
pursuant to Section 8(a) constitute (either in original,
aggregated or consolidated form) all of the materials furnished
to prospective investors by the Underwriter prior to the time of
delivery thereof to the Company that are required to be filed
with the Commission with respect to the related Offered
Certificates in accordance with the ▇▇▇▇▇▇ Letters, and such
Computational Materials comply with the requirements of the
▇▇▇▇▇▇ Letters;
(ii) the Structural Term Sheets furnished to the Company
pursuant to Section 8(a) constitute all of the materials
furnished to prospective investors by the 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; and
(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 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 related Prospectus and Prospectus
Supplement, omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading.
Notwithstanding the foregoing, the 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 directly from any Mortgage Pool Error (except any
Corrected Mortgage Pool Error, with respect to materials prepared
after the receipt by the Underwriter from the Company of notice of
such Corrected Mortgage Pool Error or materials superseding or
correcting such Corrected Mortgage Pool Error).
(c) The Underwriter shall cause a firm of public accountants to
furnish to the Company a letter, dated as of the date on which the
Underwriter delivers 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 the Underwriter and set forth in such Computational
Materials.
(d) The 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 May 21, 1996 have been prepared and disseminated by the
Underwriter and not by or on behalf of the Company, and that such
materials included and shall include a disclaimer in form satisfactory
to the Company to the effect that such materials have been prepared
and disseminated by the Underwriter, and that the content and accuracy
of such materials have not been reviewed by 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 Prospectus as a
result of an untrue statement of a material fact contained in any
Computational Materials or Structural Term Sheets provided by the
Underwriter pursuant to this Section 8 or the omission to state
therein a material fact required, when considered in conjunction with
the related Prospectus and Prospectus Supplement, to be stated therein
or necessary to make the statements therein, when read in conjunction
with the related 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, the 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. The
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 Prospectus
and Prospectus Supplement, omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that the 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 the 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 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 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 the Underwriter to the Company pursuant to this
paragraph (e) or (ii) such filing is not required under the Act.
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
any Offered Certificates, the Underwriter shall, in order to facilitate the
timely filing of such material with the Commission, notify the Company and
its counsel by telephone of its intention to deliver such materials and the
approximate date on which the first such delivery of such materials is
expected to occur. Not later than 10:30 a.m., New York time, on the
business day immediately following the date on which any Collateral Term
Sheet was first delivered to a prospective investor in such Offered
Certificates, the Underwriter shall deliver to the Company five complete
copies of all materials provided by the Underwriter to prospective
investors in the Offered Certificates that 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, together,
referred to herein as "ABS Term Sheets.") At the time of each such
delivery, the Underwriter 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) The 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
pursuant to Section 9(a) constitute all of the materials
furnished to prospective investors by the 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; and
(ii) On the date any such Collateral Term Sheets with
respect to such Offered Certificates were last furnished to each
prospective investor 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 Prospectus and Prospectus Supplement, omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading.
Notwithstanding the foregoing, the 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 the
Underwriter from the Company of notice of such Corrected Mortgage Pool
Error or materials superseding or correcting such Corrected Mortgage
Pool Error).
(c) The 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 will have been
prepared and disseminated by the Underwriter and not by or on behalf
of the Company, and that such materials 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 the 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. The 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 Prospectus as a
result of an untrue statement of a material fact contained in any
Collateral Term Sheets provided by the Underwriter pursuant to this
Section 9 or the omission to state therein a material fact required,
when considered in conjunction with the related Prospectus and
Prospectus Supplement, to be stated therein or necessary to make the
statements therein, when read in conjunction with the related
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,
the 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. The 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 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, the 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 the 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 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 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 the 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 Underwriter, 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 Underwriter, 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 Underwriter 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 Underwriter 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. 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 Underwriter
shall be deemed a successor or assign by reason of such purchase.
13. 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.
14. Miscellaneous. This Agreement, as supplemented by the related
Terms Agreement, supersedes all prior and contemporaneous agreements and
understandings relating to the subject matter hereof. This Agreement and
the related Terms Agreement or any term of each may not be changed, waived,
discharged or terminated except by an affirmative written agreement made by
the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement and the related Terms
Agreement are for purposes of reference only and shall not limit or
otherwise affect the meaning hereof or thereof.
15. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriter, will be
delivered to it at the address first above written; or if sent to the
Company, will be delivered to GE Capital Mortgage Services, Inc., Three
Executive Campus, Cherry Hill, New Jersey 08002, Attention: General
Counsel.
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 Underwriter.
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.
▇▇▇▇▇▇ BROTHERS INC.
By:______________________________
Name:
Title:
EXHIBIT A
GE CAPITAL MORTGAGE SERVICES, INC.
REMIC MULTI-CLASS PASS-THROUGH CERTIFICATES
SERIES ____-__
TERMS AGREEMENT
(to Underwriting Agreement,
dated May 22, 1996
between the Company and the Underwriter)
GE Capital Mortgage Services, Inc. New York, New York
Three Executive Campus [Date]
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc. (the "Underwriter") agrees, subject to the terms and
provisions herein and of the captioned Underwriting Agreement (the "Underwriting
Agreement"), to purchase such Classes of Series ____-__ Certificates specified
in Section 2(a) hereof (the "Offered Certificates"). This letter supplements and
modifies the Underwriting Agreement solely as it relates to the purchase and
sale of the Offered Certificates described below. 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 conventional, fixed rate, fully amortizing one- to
four-family residential mortgage loans (the "Mortgage Loans") having the
following characteristics as of ________ __, ____ (the "Cut-off Date"):
(a) Aggregate Principal Amount of the Mortgage Pool: $[ ] aggregate
principal balance as of the Cutoff Date, subject to [an upward or downward
variance of up to [ ]%, the precise aggregate principal balance to be
determined by the Company][a permitted variance such that the aggregate
Scheduled Principal Balance thereof will be not less than $[ ] or greater
than $[ ]].
(b) Original Terms to Maturity: The original term to maturity of each
Mortgage Loan included in the Mortgage Pool shall be between ___ and ___
years.
Section 2. The Certificates: The Offered Certificates shall be issued as
follows:
(a) Classes: The Offered Certificates shall be issued with the
following Class designations, interest rates and principal balances,
subject in the aggregate to the variance referred to in Section 1(a)[and,
as to any particular Class, to an upward or downward variance of up to [
]%]:
Principal Interest Class Purchase
Class Balance Rate Price Percentage
(b) The Offered Certificates shall have such other characteristics as
described in the related 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.
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
Underwriter and the Company.
Very truly yours,
▇▇▇▇▇▇ BROTHERS INC.
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:
Execution
GE CAPITAL MORTGAGE SERVICES, INC.
REMIC MULTI-CLASS PASS-THROUGH CERTIFICATES
SERIES 1999-6
TERMS AGREEMENT
(to Underwriting Agreement,
dated May 22, 1996,
between the Company and the Underwriter)
GE Capital Mortgage Services, Inc. New York, New York
Three Executive Campus April 22, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc. (the "Underwriter") agrees, subject to the terms and
provisions herein and of the captioned Underwriting Agreement (the "Underwriting
Agreement"), to purchase the Classes of Series 1999-6 Certificates specified in
Section 2(a) hereof (the "Offered Certificates"). This Terms Agreement
supplements and modifies the Underwriting Agreement solely as it relates to the
purchase and sale of the Offered Certificates described below. The Series 1999-6
Certificates are registered with the Securities and Exchange Commission by means
of an effective Registration Statement (Nos. 333-68951 and 333-68951-01).
Capitalized terms used and not defined herein have the meanings given them in
the Underwriting Agreement.
Section 1. The Mortgage Pools: The Series 1999-6 Certificates shall
evidence the entire beneficial ownership interest in two mortgage pools ("Pool
1" and "Pool 2," respectively, and each a "Mortgage Pool") of conventional,
fixed-rate, first-lien, fully-amortizing, one- to four-family residential
mortgage loans (the "Mortgage Loans") having the following characteristics as of
April 1, 1999 (the "Cut-off Date"):
(a) Aggregate Principal Amount of Pool 1: $451,582,304.25
aggregate principal balance as of the Cut-off Date, subject to a
permitted variance such that the aggregate original Certificate
Principal Balance of the Offered Certificates in Pool 1 will be not
less than $427,500,000 or greater than $472,500,000.
(b) Aggregate Principal Amount of Pool 2: $252,364,834.85
aggregate principal balance as of the Cut-off Date, subject to a
permitted variance such that the aggregate original Certificate
Principal Balance of the Offered Certificates in Pool 2 will be not
less than $237,500,000 or greater than $262,500,000.
(c) Original Terms to Maturity: The original term to maturity of
substantially all of the Mortgage Loans included in the Mortgage Pools
shall be between 20 and 30 years.
Section 2. The Certificates: The Offered Certificates shall be issued as
follows:
(a) Classes: The Offered Certificates shall be issued with the
following Class designations, interest rates and principal balances,
subject in the aggregate to the variance referred to in Section 1(a):
Class
Principal Interest Purchase Price
Class Balance Rate Percentage
Class 1-A1 $95,940,000 6.10% 99.031250%
Class 1-A2 96,506,000 6.35% 99.031250%
Class 1-A3 8,497,000 6.60% 99.031250%
Class 1-A4 131,909,000 6.35% 99.031250%
Class 1-A5 62,400,000 (2) 99.031250%
Class 1-A6 10,600,000 6.75% 99.031250%
Class 1-A7 1,071,571 7.00% 99.031250%
Class 1-A8 7,757,000 7.00% 99.031250%
Class 1-A9 6,568,500 7.00% 99.031250%
Class 1-A10 5,431,500 7.00% 99.031250%
Class 1-A11 771,429 0.00% 99.031250%
Class 1-A12 3,000,000 6.75% 99.031250%
Class 2-A1 171,397,000 6.75% 98.796875%
Class 2-A2 15,420,000 6.75% 98.796875%
Class 2-A3 27,000,000 6.50% 98.796875%
Class 2-A4 (3) 0.22% 98.796875%
Class 2-A5 27,000,000 6.75% 98.796875%
Class 2-A6 (3) 0.03% 98.796875%
Class M 13,022,000 6.75% 97.328125%
Class B1 5,280,000 6.75% 95.968750%
Class B2 3,042,000 6.75% 89.875000%
Class R-RL 100 6.75% 99.031250%
-------------
(1) The Class 1-A11 Certificates are principal-only Certificates and will not
accrue interest.
(2) Interest will accrue on the Class 1-A5 Certificates at a variable rate
as set forth in the Prospectus Supplement. The initial interest rate
for such Certificates will be 9.2340%.
(3) The Class 2-A4 and Class 2-A6 Certificates will each have a Notional
Principal Balance equal at all times to the Class Certificate Principal
Balance of the Class 2-A3 Certificates.
(b) The Offered Certificates shall have such other
characteristics as described in the related 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 Certificate Principal Balance
thereof plus accrued interest at the initial interest rate per annum from and
including the Cut-off Date up to, but not including, April 29, 1999 (the
"Closing Date").
Section 4. Required Ratings: The Offered Certificates, other than Class
1-A5, Class 1-A11, Class 2-A4 and Class 2-A6 Certificates, shall have received
Required Ratings of at least "AAA" from each of Fitch IBCA, Inc. ("Fitch") and
Standard and Poor's Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc. ("S&P"). The Class 1-A5, Class 1-A11, Class 2-A4 and Class 2-A6
Certificates shall have received Required Ratings of "AAA" from Fitch and "AAAr"
from S&P. The Class M, Class B1 and Class B2 Certificates shall have received
Required Ratings of "AA," "A" and "BBB," respectively, from Fitch.
Section 5. Tax Treatment: One or more elections will be made to treat the
assets of the Trust Fund as a REMIC.
Section 6. Rounding Account: On the Closing Date, the Underwriter shall
deliver to the Trustee by wire transfer or by certified check an amount equal to
$999.99 for deposit in each Rounding Account (as such term is defined in the
Prospectus Supplement).
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
Underwriter and the Company.
Very truly yours,
▇▇▇▇▇▇ BROTHERS INC.
By:______________________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
GE CAPITAL MORTGAGE SERVICES, INC.
By:______________________________________
Name:
Title: