EXECUTION
GE CAPITAL MORTGAGE SERVICES, INC.
PASS-THROUGH CERTIFICATES
(Issuable in Series)
UNDERWRITING AGREEMENT
______________________
Salomon Brothers Inc New York, New York
Seven World Trade Center March 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 one or more pools 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
(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 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
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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 "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
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Date (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
contemplated, nor the fulfillment of the terms hereof
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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
Rule 15c6-1(a) of the Exchange Act.
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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 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, 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
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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
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
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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.
(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 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 the
Company determines to file in accordance therewith.
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(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,
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
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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
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
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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 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
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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 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".
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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
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
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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, 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.
- 14 -
(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 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
- 15 -
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
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
- 16 -
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 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
- 17 -
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.
(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"
- 18 -
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.
(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
- 19 -
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
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
- 20 -
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
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
- 21 -
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
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
- 22 -
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
(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
- 23 -
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 constitutes 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 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
- 24 -
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
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
- 25 -
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
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
- 26 -
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
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
- 27 -
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;
(iv) such Underwriter has not represented to any
prospective investor that any Computational Materials
or Structural Term Sheets with respect to any Series
were prepared or disseminated on behalf of the
Company, and all Computational Materials and
Structural Term Sheets furnished to prospective
investors by such Underwriter (and all written and
electronic materials furnished to prospective
investors by such Underwriter on which the
Computational Materials are based) included a
disclaimer to the effect set forth in Section 8(d);
and
(v) at the time any Computational Materials (or
any written or electronic materials furnished to
prospective investors by such Underwriter on which the
Computational Materials are based) with respect to
such Offered Certificates were furnished by such
Underwriter to a prospective investor and on the date
of the related Terms Agreement, such Underwriter
possessed, and on the date of delivery of such
materials to the Company pursuant to this Section 8
and on the related Closing Date, such Underwriter will
possess, the capability, knowledge, expertise,
resources and systems of internal control necessary to
ensure that such Computational Materials conform to
the representations and warranties of such Underwriter
contained in subparagraphs (i) and (iii) above of this
paragraph (b).
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 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).
- 28 -
(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 the
Company has not authorized and will not authorize the
distribution of any Computational Materials (or any written or
electronic materials on which the Computational Materials are
based) or Structural Term Sheets to any prospective investor, and
agrees that any Computational Materials or Structural Term Sheets
with respect to any Series of Certificates furnished to
prospective investors from and after March 13, 1997 included and
shall include a disclaimer in form satisfactory to the Company to
the effect that such materials have been prepared and
disseminated solely by and on behalf of such Underwriter, and
that the Company has not reviewed or participated in the
preparation or dissemination of such materials and is not
responsible for the contents or accuracy thereof. 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) 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 the Offered Certificates,
the Underwriters shall, in order to facilitate the timely filing
of such material with the Commission, 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,
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
- 30 -
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 8(d) and 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
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
- 31 -
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
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
- 32 -
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 any
of the Underwriters shall fail on the Closing Date to purchase
the Offered Certificates which it is 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.
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
- 33 -
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
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
- 34 -
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.
- 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.
SALOMON BROTHERS INC
as Representative of the Underwriters
named in the applicable Terms Agreement
By: _____________________________
Name:
Title:
EXHIBIT A
GE CAPITAL MORTGAGE SERVICES, INC.
REMIC MULTI-CLASS PASS-THROUGH CERTIFICATES
SERIES ____-__
TERMS AGREEMENT
_______________
(to Underwriting Agreement,
dated March 24, 1997
between the Company and the Underwriters)
GE Capital Mortgage Services, Inc. New York, New York
Three Executive Campus [Date]
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Each of Salomon Brothers Inc [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 [ ]%]:
A-1
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.
A-2
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,
SALOMON BROTHERS INC
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:
A-3