EXECUTION COPY
GE CAPITAL MORTGAGE SERVICES, INC.
PASS-THROUGH CERTIFICATES
(Issuable in Series)
UNDERWRITING AGREEMENT
Merrill Lynch, Pierce, Fenner & Smith New York, New York
Incorporated January 22, 1998
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1201
Ladies and Gentlemen:
GE Capital Mortgage Services, Inc., a corporation organized and existing
under the laws of the State of New Jersey (the "Company"), may offer for sale to
you (the "Underwriter") from time to time its Pass-Through Certificates
evidencing interests in pools of mortgage loans (the "Certificates"). The
Certificates may be issued in various series, and within each series, in one or
more classes, in one or more offerings on terms determined at the time of sale
(each such series, a "Series" and each such class, a "Class"). Each Series of
the Certificates will be issued under a separate Pooling and Servicing Agreement
(each, a "Pooling and Servicing Agreement") to be dated as of the respective
cut-off date (each, a "Cut-off Date") between the Company, as seller and
servicer, and State Street Bank and Trust Company, as trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given to
them in the related Pooling and Servicing Agreement.
The Certificates issued under each Pooling and Servicing Agreement will
represent the entire beneficial ownership interest in a trust fund (the "Trust
Fund") established by such Pooling and Servicing Agreement. The assets of each
Trust Fund will consist primarily of one or more pools of conventional, fixed
rate, first lien, fully amortizing, one- to four-family residential mortgage
loans (the "Mortgage Loans") having the original terms to maturity specified in
the related Terms Agreement referred to hereinbelow. If so specified in the
related Terms Agreement, one or more elections may be made to treat the assets
of each Trust Fund as a real estate mortgage investment conduit (each, a
"REMIC") for federal income tax purposes.
Whenever the Company determines to make an offering of Certificates (each,
a "Certificate Offering") pursuant to this Agreement through you, it will enter
into an agreement with you (the "Terms Agreement") providing for the sale of
specified Classes of Offered Certificates (as defined below) to, and the
purchase and public offering thereof by, you. Each such Certificate Offering
which the Company elects to make pursuant to this Agreement shall be governed by
this Agreement, as supplemented by the related Terms Agreement. Each Terms
Agreement, which shall be substantially in the form of Exhibit A hereto, shall
specify, among other things, the Classes of Certificates to be purchased by the
Underwriter (the "Offered Certificates"), the principal balance or balances of
the Offered Certificates, each subject to any stated variance, and the price or
prices at which such Offered Certificates are to be purchased by the Underwriter
from the Company.
1. Representations and Warranties. (a) The Company represents and warrants
to and agrees with the Underwriter, as of the date of the related Terms
Agreement, that:
(i) The registration statement specified in the related Terms
Agreement, on Form S-3, including a prospectus, has been filed with the
Securities and Exchange Commission (the "Commission") for the registration
under the Securities Act of 1933, as amended (the "Act"), of pass-through
certificates issuable in series, which registration statement has been
declared effective by the Commission. Such registration statement, as
amended to the date of the related Terms Agreement, including any documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Act which were filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), on or before the effective date of the Registration
Statement, is hereinafter called the "Registration Statement", and such
prospectus, as such prospectus is supplemented by a prospectus supplement
relating to the Offered Certificates of the related Series, each in the
form first filed after the date of the related Terms Agreement pursuant to
Rule 424(b) under the Act, including any documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act which were
filed under the Exchange Act on or before the date of such prospectus
supplement (other than any such incorporated documents that relate to
Collateral Term Sheets (as defined herein))(such prospectus supplement,
including such incorporated documents (other than those that relate to
Collateral Term Sheets), in the form first filed after the date of the
related Terms Agreement pursuant to Rule 424(b) is hereinafter called the
"Prospectus Supplement"), is hereinafter called the "Prospectus". Any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the filing of any
document under the Exchange Act after the effective date of the
Registration Statement or the issue date of the Prospectus or Prospectus
Supplement, as the case may be, deemed to be incorporated therein by
reference pursuant to Item 12 of Form S-3 under the Act.
(ii) The related Registration Statement, at the time it became
effective, and the Prospectus contained therein, and any amendments thereof
and supplements thereto filed prior to the date of the related Terms
Agreement, conformed in all material respects to the requirements of the
Act and the rules and regulations of the Commission thereunder; on the date
of the related Terms Agreement and on each Closing Date (as defined in
Section 3 below), the related Registration Statement and the related
Prospectus, and any amendments thereof and supplements thereto, will
conform in all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder; such Registration
Statement, at the time it became effective, did not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading; such Prospectus, on the date of any filing pursuant to Rule
424(b) and on each Closing Date, will not include any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they are
made, not misleading; and the Detailed Description referred to in such
Prospectus, on each Closing Date and the date of any filing thereof under
cover of Form 8-K, will not include any untrue statement of a material fact
or omit to state any information which such Prospectus states will be
included in such Detailed Description; provided, however, that the Company
makes no representations or warranties as to the information contained in
or omitted from (A) such Registration Statement or such Prospectus (or any
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Underwriter
specifically for use in the preparation thereof or (B) any Current Report
(as defined in Section 5(b) below), or in any amendment thereof or
supplement thereto, incorporated by reference in such Registration
Statement or such Prospectus (or any amendment thereof or supplement
thereto).
(iii) The Certificates of the related Series will conform to the
description thereof contained in the related Prospectus; will each, if
rated at the time of issuance in one of the two highest rating categories
by a nationally recognized statistical rating organization, be when issued
a "mortgage related security" as such term is defined in Section 3(a)(41)
of the Exchange Act, and will each on the related Closing Date be duly and
validly authorized, and, when validly executed, countersigned, issued and
delivered in accordance with the related Pooling and Servicing Agreement
and sold to you as provided herein and in the related Terms Agreement, will
each be validly issued and outstanding and entitled to the benefits of the
related Pooling and Servicing Agreement.
(iv) Neither the issuance nor sale of the Certificates of the related
Series nor the consummation of any other of the transactions herein
contemplated, nor the fulfillment of the terms hereof or of the related
Terms Agreement, will conflict with any statute, order or regulation
applicable to the Company of any court, regulatory body, administrative
agency or governmental body having jurisdiction over the Company or with
any organizational document of the Company or any instrument or any
agreement under which the Company is bound or to which it is a party.
(v) This Agreement and the related Terms Agreement have been duly
authorized, executed and delivered by the Company.
(vi) At or prior to the related Closing Date, the Company will have
entered into the related Pooling and Servicing Agreement and, assuming the
due authorization, execution and delivery thereof by the Trustee, such
Pooling and Servicing Agreement (on such Closing Date) will constitute the
valid and binding agreement of the Company enforceable in accordance with
its terms, subject as to enforceability, to bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights and to
general principles of equity (regardless of whether the enforceability of
such Pooling and Servicing Agreement is considered in a proceeding in
equity or at law).
2. Purchase and Sale. Subject to the execution of the Terms Agreement for a
particular Certificate Offering and subject to the terms and conditions and in
reliance upon the representations and warranties set forth in this Agreement and
such Terms Agreement, the Company agrees to sell to the Underwriter, and the
Underwriter agrees to purchase from the Company, all, but not less than all, of
the related Offered Certificates at the purchase price therefor set forth in
such Terms Agreement (the "Purchase Price").
The parties hereto agree that settlement for all securities sold pursuant
to this Agreement and the applicable Terms Agreement shall take place on the
settlement date agreed upon at the time of the related transaction and set forth
as the "Closing Date" in such Terms Agreement and not as set forth in Rule
15c6-1(a) of the Exchange Act.
3. Delivery and Payment. Delivery of and payment for the Offered
Certificates of a Series shall be made at the offices of Cleary, Gottlieb, Steen
& Hamilton, New York, New York, at 10:00 A.M., New York City time, on the
Closing Date specified in the related Terms Agreement, which date and time may
be postponed by agreement between the Underwriter and the Company (such date and
time being herein called the "Closing Date"). Delivery of such Offered
Certificates shall be made to the Underwriter against payment by the Underwriter
of the Purchase Price thereof to or upon the order of the Company by wire
transfer in federal or other immediately available funds or by check payable in
federal funds, as the Company shall specify no later than five full business
days prior to such Closing Date. Unless delivery is made through the facilities
of The Depository Trust Company, the Offered Certificates shall be registered in
such names and in such authorized denominations as the Underwriter may request
not less than two full business days in advance of each Closing Date.
The Company agrees to notify the Underwriter at least two business days
before each Closing Date of the exact principal balance evidenced by the Offered
Certificates and to have such Offered Certificates available for inspection,
checking and packaging in New York, New York, no later than 12:00 noon on the
business day prior to such Closing Date.
4. Offering by the Underwriter. It is understood that the Underwriter
proposes to offer the Offered Certificates of the related Series for sale to the
public as set forth in the related Prospectus.
5. Agreements. The Company agrees with the Underwriter that:
(a) The Company will cause the Prospectus as supplemented by a
Prospectus Supplement relating to the Offered Certificates to be filed
pursuant to Rule 424 under the Act and will promptly advise the Underwriter
when such Prospectus as so supplemented has been so filed, and prior to the
termination of the Certificate Offering to which such Prospectus relates
also will promptly advise the Underwriter (i) when any amendment to the
related Registration Statement specifically relating to such Offered
Certificates shall have become effective or any further supplement to such
Prospectus has been filed, (ii) of any request by the Commission for any
amendment of such Registration Statement or Prospectus or for any
additional information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of such Registration Statement or the
institution or threatening of any proceeding for that purpose and (iv) of
the receipt by the Company of any written notification with respect to the
suspension of the qualification of such Offered Certificates for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will not file any amendment of the related
Registration Statement or supplement to the related Prospectus (other than
any amendment or supplement specifically relating to one or more Series of
pass-through certificates other than the Series that includes the related
Offered Certificates) unless the Company has furnished the Underwriter with
a copy for its review prior to filing. The Company will use its best
efforts to prevent the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) The Company will cause any Computational Materials and any
Structural Term Sheets (each as defined in Section 8 below) with respect to
the Offered Certificates of a Series that are delivered by the Underwriter
to the Company pursuant to Section 8 to be filed with the Commission on a
Current Report on Form 8-K (each such filing of such materials, a "Current
Report") pursuant to Rule 13a- 11 under the Exchange Act on the business
day immediately following the later of (i) the day on which such
Computational Materials and Structural Term Sheets are delivered to counsel
for the Company by the Underwriter prior to 10:30 a.m. and (ii) the date on
which this Agreement is executed and delivered. The Company will cause one
Collateral Term Sheet (as defined in Section 9 below) with respect to the
Offered Certificates of a Series that is delivered by the Underwriter to
the Company in accordance with the provisions of Section 9 to be filed with
the Commission on a Current Report pursuant to Rule 13a-11 under the
Exchange Act on the business day immediately following the day on which
such Collateral Term Sheet is delivered to counsel for the Company by the
Underwriter prior to 10:30 a.m. In addition, if at any time prior to the
availability of the related Prospectus Supplement the Underwriter has
delivered to any prospective investor a Collateral Term Sheet that
reflects, in the reasonable judgment of the Underwriter and the Company, a
material change in the characteristics of the Mortgage Loans for the
related Series from those on which a Collateral Term Sheet with respect to
the related Series previously filed with the Commission was based, the
Company will cause any such Collateral Term Sheet that is delivered by the
Underwriter to the Company in accordance with the provisions of Section 9
to be filed with the Commission on a Current Report on the business day
immediately following the day on which such Collateral Term Sheet is
delivered to counsel for the Company by the Underwriter prior to 10:30 a.m.
In each case, the Company will promptly advise the Underwriter when such
Current Report has been so filed. Each such Current Report shall be
incorporated by reference in the related Prospectus and the related
Registration Statement. Notwithstanding the five preceding sentences, the
Company shall have no obligation to file any materials provided by the
Underwriter pursuant to Sections 8 and 9 which, in the reasonable
determination of the Company after making reasonable efforts to consult
with the Underwriter, are not required to be filed pursuant to the Kidder
Letters or the PSA Letter (each as defined in Section 8 below), or which
contain erroneous information or contain any untrue statement of a material
fact or, when read in conjunction with the Prospectus and Prospectus
Supplement, omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; it being
understood, however, that the Company shall have no obligation to review or
pass upon the accuracy or adequacy of, or to correct, any Computational
Materials, Structural Term Sheets or Collateral Term Sheets provided by the
Underwriter to the Company pursuant to Section 8 or Section 9 hereof.
(c) If, at any time when a prospectus relating to the Offered
Certificates of a Series is required to be delivered under the Act, any
event occurs as a result of which the related Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein in
light of the circumstances under which they were made not misleading, or if
it shall be necessary at any time to amend or supplement the related
Prospectus to comply with the Act or the rules thereunder, the Company
promptly will prepare and file with the Commission, subject to paragraph
(a) of this Section 5, an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance;
provided, however, that the Company will not be required to file any such
amendment or supplement with respect to any Computational Materials,
Structural Term Sheets or Collateral Term Sheets incorporated by reference
in the Prospectus other than any amendments or supplements of such
Computational Materials or Structural Term Sheets that are furnished to the
Company by the Underwriter pursuant to Section 8(e) hereof or any
amendments or supplements of such Collateral Term Sheets that are furnished
to the Company by the Underwriter pursuant to Section 9(d) hereof which the
Company determines to file in accordance therewith.
(d) The Company will furnish to the Underwriter and counsel for the
Underwriter, without charge, as many signed copies of the related
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by the Underwriter or dealer may be required by
the Act, as many copies of the related Prospectus and any supplements
thereto (other than exhibits to the related Current Report) as the
Underwriter may reasonably request.
(e) The Company will furnish such information, execute such
instruments and take such actions as may be reasonably requested by the
Underwriter to qualify the Offered Certificates of a Series for sale under
the laws of such jurisdictions as the Underwriter may designate, to
maintain such qualifications in effect so long as required for the
distribution of such Offered Certificates and to determine the legality of
such Offered Certificates for purchase by institutional investors;
provided, however, that the Company shall not be required to qualify to do
business in any jurisdiction where it is not qualified on the date of the
related Terms Agreement or to take any action which would subject it to
general or unlimited service of process in any jurisdiction in which it is
not, on the date of the related Terms Agreement, subject to such service of
process.
(f) So long as the Offered Certificates of a Series are outstanding,
the Company will furnish to the Underwriter copies of the annual
independent public accountants' servicing report furnished to the Trustee
pursuant to Section 3.13 of the related Pooling and Servicing Agreement.
(g) Whether or not the transactions contemplated hereby and by the
related Terms Agreement shall be consummated, the Company shall be
responsible for the payment of any costs and expenses for which details are
submitted, in connection with the performance of its obligations under this
Agreement and the related Terms Agreement, including, without limitation,
(a) the cost and expenses of printing or otherwise reproducing the related
Registration Statement or Prospectus, this Agreement, the related Terms
Agreement, the related Pooling and Servicing Agreement and the Offered
Certificates, and (b) the cost of delivering the related Offered
Certificates to the office of the Underwriter, insured to the satisfaction
of the Underwriter (it being understood that, except as provided in this
paragraph (g) and in Section 7 hereof, the Underwriter will pay all its own
costs and expenses, including the fees of Brown & Wood LLP, counsel for the
Underwriter, transfer taxes on resale of any Offered Certificates by it,
advertising expenses connected with any offers that it may make, the fees
of KPMG Peat Marwick LLP with respect to its letters furnished pursuant to
Section 6(i) of this Agreement and any letter furnished pursuant to the
last sentence of Section 6(h) hereof, the fees of any firm of public
accountants selected by the Underwriter with respect to their letter
furnished pursuant to Section 8(c) of this Agreement, any other costs and
expenses specified in the related Terms Agreement as "Additional Expenses",
and all expenses (e.g., shipping, postage and courier costs) associated
with the delivery of the related Prospectus to prospective investors and
investors, other than the costs of delivery to the Underwriter's
facilities, provided, that if courier services (other than overnight
delivery services utilized in the ordinary course of business) are required
to ensure that such Prospectus is delivered to investors on the day
immediately preceding the related Closing Date, the Company will pay such
courier expenses).
6. Conditions to the Obligations of the Underwriter. The obligations of the
Underwriter to purchase the Offered Certificates of any Series shall be subject
to the accuracy in all material respects of the representations and warranties
on the part of the Company contained in this Agreement, as supplemented by the
related Terms Agreement, as of the respective dates thereof and the related
Closing Date, to the accuracy of the statements of the Company made in any
applicable officers' certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations under this Agreement and such
Terms Agreement and to the following additional conditions applicable to the
related Certificate Offering:
(a) No stop order suspending the effectiveness of the related
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) Cleary, Gottlieb, Steen & Hamilton, counsel for the Company, shall
have furnished to the Underwriter an opinion, dated the related Closing
Date, to the effect that:
(i) this Agreement and the related Terms Agreement have been duly
executed and delivered by the Company under the law of the State of
New York;
(ii) the related Pooling and Servicing Agreement has been duly
executed and delivered by the Company under the law of the State of
New York and is a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms;
(iii) the Offered Certificates, when duly executed and
countersigned by the Trustee in accordance with the related Pooling
and Servicing Agreement, will be validly issued and outstanding and
entitled to the benefits of such Pooling and Servicing Agreement;
(iv) the related Pooling and Servicing Agreement is not required
to be qualified under the Trust Indenture Act of 1939, as amended, and
the trust created thereunder is not required to be registered under
the Investment Company Act of 1940, as amended;
(v) such counsel confirms that (based solely upon telephone
confirmation from a representative of the Commission) the related
Registration Statement is effective under the Act and, to the best of
such counsel's knowledge, no stop order with respect thereto has been
issued, and no proceeding for that purpose has been instituted or
threatened by the Commission; such Registration Statement (except the
financial statements and schedules and other financial and statistical
data included therein and the documents incorporated by reference
therein, as to which such counsel need express no view), at the time
it became effective and the related Prospectus (except the financial
statements and schedules and the other financial and statistical data
included therein, the documents incorporated by reference therein), as
of the date of the Prospectus Supplement appeared on their face to be
appropriately responsive in all material respects to the requirements
of the Act and the rules and regulations thereunder; and no
information has come to the attention of such counsel that causes it
to believe that (A) such Registration Statement (except the financial
statements and schedules and the other financial and statistical data
included therein and the documents incorporated by reference therein,
as to which such counsel need express no view) at the time it became
effective, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or (B) such Prospectus or
any amendment or supplement thereto (except the financial statements
and schedules and the other financial and statistical data included
therein, the documents incorporated by reference therein and the
information included in the second sentence of the antepenultimate
paragraph, the first sentence of the penultimate paragraph, and the
last paragraph of the cover page of such Prospectus Supplement and in
the second and fourth sentences of the first paragraph under the
heading "Plan of Distribution" therein, as to which such counsel need
express no view), as of the date of the Prospectus Supplement, or at
the related Closing Date, contained or contains an untrue statement of
a material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(vi) the statements set forth under the heading "Description of
the Certificates" in the related Prospectus, insofar as such
statements purport to summarize certain provisions of the related
Pooling and Servicing Agreement and the related Offered Certificates,
provide a fair summary of such provisions;
(vii) the statements set forth in the related Prospectus under
the headings "Certain Legal Aspects of the Mortgage Loans and
Contracts -- The Mortgage Loans", "Certain Federal Income Tax
Consequences" (insofar as they relate specifically to the purchase,
ownership and disposition of the related Offered Certificates) and
"ERISA Considerations" (insofar as they relate specifically to the
purchase, ownership and disposition of such Offered Certificates), to
the extent that they constitute matters of law or legal conclusions,
provide a fair summary of such law or conclusions;
(viii) assuming compliance with all provisions of the related
Pooling and Servicing Agreement, for federal income tax purposes, (A)
if any election is made to treat the assets of the Trust Fund as a
REMIC: the related Trust Fund (and any specified subgrouping therein)
will qualify as a REMIC pursuant to Section 860D of the Internal
Revenue Code of 1986, as amended (the "Code"), each Class of
Certificates of the related Series, other than the related Residual
Class or Classes, will constitute a class of "regular interests" in
the related REMIC within the meaning of the Code, and each Class of
such Certificates specified in the related Prospectus as a Class of
Residual Certificates will constitute the "residual interest" in the
related REMIC within the meaning of the Code; (B) if no such REMIC
election is made: the Trust Fund will be treated as a "grantor trust";
and
(ix) assuming that some or all of the Offered Certificates of the
related Series shall be rated at the time of issuance in one of the
two highest rating categories by a nationally recognized statistical
rating organization, each Offered Certificate so rated will be at the
time of issuance, a "mortgage related security" as such term is
defined in Section 3(a)(41) of the Exchange Act.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other
documents furnished by, officers of the parties to this Agreement, the
related Terms Agreement or the related Pooling and Servicing
Agreement. Such opinion may assume the due authorization, execution
and delivery of the instruments and documents referred to therein by
the parties thereto other than the Company. Such opinion may be
qualified, insofar as it concerns the enforceability of the documents
referred to therein, to the extent that such enforceability may be
limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights in general and by
general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law). Such opinion may be
further qualified as expressing no opinion as to (x) the statements in
the related Prospectus under the heading "Certain Legal Aspects of the
Mortgage Loans and Contracts -- The Mortgage Loans" except insofar as
such statements relate to the laws of the State of New York and the
laws of the United States, and (y) the statements in such Prospectus
under the headings "ERISA Considerations" and "Certain Federal Income
Tax Consequences" except insofar as such statements relate to the laws
of the United States. In addition, such opinion may be qualified as an
opinion only on the law of the State of New York and the federal law
of the United States of America.
(c) The General Counsel for the Company shall have furnished to the
Underwriter an opinion, dated the related Closing Date, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of New Jersey, with corporate power to own its properties, to conduct
its business as described in the related Prospectus and to enter into
and perform its obligations under this Agreement, the related Terms
Agreement, the related Pooling and Servicing Agreement and the
Certificates of the related Series;
(ii) The Company has full power and authority to sell and service
the related Mortgage Loans as contemplated herein and in the related
Pooling and Servicing Agreement;
(iii) This Agreement, the related Terms Agreement and the related
Pooling and Servicing Agreement have been duly authorized, executed
and delivered by the Company under the law of the State of New Jersey;
(iv) The issuance and sale of the Offered Certificates have been
duly authorized by the Company;
(v) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the
Company of the transactions contemplated herein or in the related
Pooling and Servicing Agreement, except such as may be required under
the blue sky laws of any jurisdiction and such other approvals as have
been obtained;
(vi) Neither the issuance of the Certificates of the related
Series nor delivery of the related Offered Certificates, nor the
consummation of any other of the transactions contemplated in this
Agreement, the related Terms Agreement or the related Pooling and
Servicing Agreement, nor the fulfillment of the terms of the related
Certificates, the related Pooling and Servicing Agreement, this
Agreement or the related Terms Agreement will conflict with or violate
any term or provision of the articles of incorporation or by-laws of
the Company or any statute, order or regulation applicable to the
Company of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Company and will not
conflict with, result in a breach or violation or the acceleration of
or constitute a default under the terms of any indenture or other
agreement or instrument known to such counsel to which the Company is
a party or by which it is bound; and
(vii) There are no actions, proceedings or investigations pending
or, to the best knowledge of such counsel, threatened before any
court, administrative agency or other tribunal (i) asserting the
invalidity of this Agreement, the related Terms Agreement, the related
Pooling and Servicing Agreement or the related Certificates, (ii)
seeking to prevent the issuance of the Certificates of the related
Series or the consummation by the Company of any of the transactions
contemplated by this Agreement, such Terms Agreement or such Pooling
and Servicing Agreement, or (iii) which might materially and adversely
affect the performance by the Company of its obligations under, or the
validity or enforceability of, this Agreement, such Terms Agreement,
such Pooling and Servicing Agreement or the related Certificates.
In rendering his or her opinion such counsel may rely as to matters of
fact, to the extent deemed proper and as stated therein, on
certificates of responsible officers of the Company or public
officials. In addition, such opinion may be qualified as an opinion
only on the laws of the State of New Jersey.
(d) The Underwriter shall have received from Brown & Wood LLP, counsel
for the Underwriter, such opinion or opinions, dated the related Closing
Date, with respect to the issuance and sale of the Certificates of the
related Series, the related Registration Statement, the related Prospectus
and such other related matters as the Underwriter may reasonably require,
and the Company shall have furnished to such counsel such documents as the
Underwriter may reasonably request for the purpose of enabling them to pass
upon such matters.
(e) The Company shall have furnished to the Underwriter a certificate
of the Company, signed by the President or any Vice President and the
Senior Vice President-Finance or the principal financial or accounting
officer of the Company, dated the related Closing Date, to the effect that
the signers of such certificate have carefully examined the related
Registration Statement (excluding any Current Reports and any other
documents incorporated by reference therein), the related Prospectus, the
Detailed Description referred to in such Prospectus (excluding any related
Current Report), this Agreement and the related Terms Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the related Closing Date with the same effect as if made on such
Closing Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to such Closing Date;
(ii) no stop order suspending the effectiveness of such
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to their knowledge, threatened; and
(iii) nothing has come to their attention that would lead them to
believe that such Registration Statement (excluding any Current
Report) contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, that the related
Prospectus (excluding any related Current Report) contains any untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or that the Detailed Description referred to in such
Prospectus includes any untrue statement of a material fact or omits
to state any information which the Prospectus states will be included
in such Detailed Description.
(f) Peabody & Arnold, counsel for the Trustee, shall have furnished to
the Underwriter an opinion, dated the related Closing Date, to the effect
that:
(i) the Trustee has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Massachusetts with corporate power to own its
properties and conduct its business as presently conducted by it, to
conduct business as a trustee and to enter into and perform its
obligations under the related Pooling and Servicing Agreement;
(ii) the related Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Trustee and constitutes the
legal, valid and binding agreement of the Trustee enforceable against
the Trustee in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyance, reorganization or other similar
laws affecting the enforcement of creditors' rights generally and to
judicial discretion, and general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law);
(iii) the Trustee has duly accepted its appointment as trustee
under the related Pooling and Servicing Agreement;
(iv) no consent, approval, authorization or order of any
Massachusetts or federal court or government agency or body is
required on the part of the Trustee for the consummation of the
transactions contemplated in the related Pooling and Servicing
Agreement, except such as may be required under any federal or state
securities law; and
(v) the performance on the part of the Trustee of any of the
transactions contemplated in the related Pooling and Servicing
Agreement does not conflict with or result in a breach or violation of
any term or provision of, or constitute a default under, the Articles
of Organization, as amended, or By-Laws of the Trustee, or any
Massachusetts or federal statute or regulation applicable to the
Trustee, or to such counsel's knowledge, any indenture or other
agreement or instrument to which the Trustee is a party or by which it
is bound, or, to such counsel's knowledge, any order of any state or
federal court, regulatory body, administrative agency or governmental
body having jurisdiction over the Trustee.
In addition, such counsel shall furnish to the Underwriter such
opinions as to the treatment of the Trust Fund for purposes of
Massachusetts tax law as are reasonably satisfactory to the
Underwriter.
(g) KPMG Peat Marwick LLP shall have furnished to the Underwriter a
letter, dated as of the date of the related Terms Agreement, in form and
substance satisfactory to the Underwriter, stating in effect that they have
performed certain specified procedures as a result of which they have
determined that such information as the Underwriter may reasonably request
of an accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the general
accounting records of the Company) set forth in the related Prospectus
Supplement under the caption "Delinquency and Foreclosure Experience of the
Company" agrees with the accounting records of the Company, excluding any
questions of legal interpretation.
(h) KPMG Peat Marwick LLP shall have furnished to the Underwriter a
letter, dated as of the related Closing Date, in form and substance
satisfactory to the Underwriter, stating in effect that they have performed
certain specified procedures as a result of which they have determined that
such information as the Underwriter may reasonably request of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the general
accounting records of the Company and which is obtained from an analysis of
a sample of the Mortgage Loans included in the related pool) set forth in
the related Prospectus Supplement under the caption "Description of the
Mortgage Pool and the Mortgaged Properties" or "Description of the Mortgage
Pools and the Mortgaged Properties", as the case may be, and in the
Detailed Description relating to such Prospectus Supplement is mutually
consistent and agrees with the accounting records of the Company and, where
applicable, the related Mortgage Loan files of the Company, excluding any
questions of legal interpretation. In addition, if applicable, such
accountants shall have furnished to the Underwriter a letter, dated as of
the related Closing Date, which shall include a statement or statements to
the effect that based upon the assumptions and methodology agreed to by the
Company (and which is consistent with the manner in which any final PAC
Balances, TAC Balances, Scheduled Balances, Maximum and Minimum Scheduled
Balances or any other scheduled balances are to be calculated as set forth
in the related Prospectus), all of which shall be described by reference in
such letter, such accountants shall have verified the mathematical accuracy
of any final PAC Balances Table, TAC Balances Table, Scheduled Balances
Table, Maximum or Minimum Scheduled Balances Table or other scheduled
balances table attached as an exhibit to the related Pooling and Servicing
Agreement.
(i) KPMG Peat Marwick LLP shall have furnished to the Underwriter and
the Company a letter or letters, dated as of the date of the related Terms
Agreement, in form and substance satisfactory to the Underwriter and the
Company, including, without limitation, statements, if applicable, to the
effect that:
(i) based upon the assumptions and methodology set forth in the
related Prospectus, all of which shall be described by reference in
such letter, they recomputed the percentages of initial principal
balance outstanding as of each of the Distribution Dates (as defined
in such Prospectus) indicated and the weighted average lives of each
Class of Offered Certificates at each of the indicated percentages of
the applicable Prepayment Assumption, and they compared the recomputed
percentages and weighted average lives to the corresponding
percentages and weighted average lives set forth in the related tables
and found them to be in agreement;
(ii) based upon the assumptions and methodology set forth in such
Prospectus, all of which shall be described by reference in such
letter, they have verified the mathematical accuracy of any Scheduled
Final Distribution Dates for the Offered Certificates, PAC Balances,
TAC Balances, Scheduled Balances, Maximum and Minimum Scheduled
Balances or any other scheduled balances set forth in such Prospectus
for each indicated Distribution Date, and have verified the
mathematical accuracy of any initial Effective Ranges of any PAC
Certificates, Scheduled Certificates or other scheduled Certificates
set forth in such Prospectus; and
(iii) based upon the assumptions and methodology set forth in
such Prospectus, all of which shall be described by reference in such
letter, they have verified the mathematical accuracy of the pre-tax
yields to maturity and, if applicable, aggregate cash flows of any
Class of Certificates for which such pre-tax yields and, if
applicable, aggregate cash flows are set forth in such Prospectus at
the indicated percentages of the Prepayment Assumption and, if
applicable, at the indicated values of COFI, LIBOR or any other index,
as applicable.
(j) The Offered Certificates of the related Series shall have received
the ratings specified in the related Terms Agreement (the "Required
Ratings").
(k) Prior to the related Closing Date, the Company shall have
furnished to the Underwriter such further information, certificates and
documents as the Underwriter may reasonably request.
(l) If any Certificates of the related Series are to be sold to any
other underwriter and/or offered in reliance upon an exemption from the
registration requirements of the Act, the sale at or prior to the related
Closing Date of such Certificates to the purchaser thereof shall have
occurred.
(m) Subsequent to the date of the related Terms Agreement, there shall
not have been any change, or any development involving a prospective
change, in or affecting the business or properties of the Company which the
Underwriter concludes in its judgment, after consultation with the Company,
materially impairs the investment quality of the Offered Certificates of
the related Series so as to make it impractical or inadvisable to proceed
with the public offering or the delivery of such Offered Certificates as
contemplated by the related Prospectus.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects with respect to the particular
Offered Certificates of a Series when and as provided in this Agreement and
the related Terms Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement and the related Terms
Agreement shall not be in all material respects reasonably satisfactory in
form and substance to the Underwriter and its counsel, this Agreement (with
respect to the related Offered Certificates) and the related Terms
Agreement and all obligations of the Underwriter hereunder (with respect to
the related Offered Certificates) and thereunder may be canceled at, or at
any time prior to, the related Closing Date by the Underwriter. Notice of
such cancellation shall be given to the Company in writing, or by telephone
or telegraph confirmed in writing.
7. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless the Underwriter and each person who controls the Underwriter
within the meaning of the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act, or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement relating to the Offered
Certificates of the applicable Series as it became effective or in any amendment
or supplement thereof, or in such Registration Statement or the related
Prospectus, or in any amendment thereof, or in the Detailed Description referred
to in such Prospectus or arise out of or are based upon the omission or alleged
omission (in the case of any Computational Materials or ABS Term Sheets (in each
case, as defined herein) in respect of which the Company agrees to indemnify the
Underwriter, as set forth below, when such are read in conjunction with the
related Prospectus and Prospectus Supplement) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein (A) in reliance upon and in conformity with written information
furnished to the Company as herein stated by or on behalf of the Underwriter
specifically for use in connection with the preparation thereof or (B) in any
Current Report or any amendment or supplement thereof, except to the extent that
any untrue statement or alleged untrue statement therein or omission therefrom
results (or is alleged to have resulted) directly from an error (a "Mortgage
Pool Error") in the information concerning the characteristics of the Mortgage
Loans furnished by the Company to the Underwriter in writing or by electronic
transmission that was used in the preparation of either (x) any Computational
Materials or ABS Term Sheets (or amendments or supplements thereof) included in
such Current Report (or amendment or supplement thereof) or (y) any written or
electronic materials furnished to prospective investors on which the
Computational Materials (or amendments or supplements) were based, (ii) such
indemnity with respect to any Corrected Statement (as defined below) in such
Prospectus (or supplement thereto) shall not inure to the benefit of the
Underwriter (or any person controlling the Underwriter) from whom the person
asserting any loss, claim, damage or liability purchased the Certificates of the
related Series that are the subject thereof if such person did not receive a
copy of a supplement to such Prospectus at or prior to the confirmation of the
sale of such Certificates and the untrue statement or omission of a material
fact contained in such Prospectus (or supplement thereto) was corrected (a
"Corrected Statement") in such other supplement and such supplement was
furnished by the Company to the Underwriter prior to the delivery of such
confirmation, and (iii) such indemnity with respect to any Mortgage Pool Error
shall not inure to the benefit of the Underwriter (or any person controlling the
Underwriter) from whom the person asserting any loss, claim, damage or liability
received any Computational Materials (or any written or electronic materials on
which the Computational Materials are based) or ABS Term Sheets that were
prepared on the basis of such Mortgage Pool Error, if, prior to the time of
confirmation of the sale of the applicable Certificates to such person, the
Company notified the Underwriter in writing of the Mortgage Pool Error or
provided in written or electronic form information superseding or correcting
such Mortgage Pool Error (in any such case, a "Corrected Mortgage Pool Error"),
and the Underwriter failed to notify such person thereof or to deliver to such
person corrected Computational Materials (or underlying written or electronic
materials) or ABS Term Sheets. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs the Registration
Statement relating to the Offered Certificates of the applicable Series,
and each person who controls the Company within the meaning of the Act or
the Exchange Act to the same extent as the foregoing indemnities from the
Company to the Underwriter, but only with reference to (A) written
information furnished to the Company by or on behalf of the Underwriter
specifically for use in the preparation of the documents referred to in the
foregoing indemnity with respect to the related Series, or (B) any
Computational Materials or ABS Term Sheets (or amendments or supplements
thereof) furnished to the Company by the Underwriter pursuant to Section 8
or Section 9 and incorporated by reference in such Registration Statement
or the related Prospectus or any amendment or supplement thereof (except
that no such indemnity shall be available for any losses, claims, damages
or liabilities, or actions in respect thereof, resulting from any Mortgage
Pool Error, other than a Corrected Mortgage Pool Error). This indemnity
agreement will be in addition to any liability which the Underwriter may
otherwise have. The Company acknowledges that the statements set forth in
the second sentence of the ante-penultimate paragraph, the first sentence
of the penultimate paragraph, and in the last paragraph appearing on the
cover page of the related Prospectus Supplement as such statements relate
to such Offered Certificates and the second sentence of the first paragraph
under the heading "Plan of Distribution" in such Prospectus Supplement as
such statements relate to such Offered Certificates constitute the only
information furnished in writing by or on behalf of the Underwriter for
inclusion in the related Prospectus (other than any Computational Materials
or ABS Term Sheets (or amendments or supplements thereof) furnished to the
Company by the Underwriter), and the Underwriter confirms that such
statements are correct.
(c) Promptly after receipt by an indemnified party under Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under this Section 7. In case any such action is
brought against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to participate therein, and to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert
such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel approved by the indemnified
party in the case of subparagraph (a) or (b), representing the indemnified
parties under subparagraph (a) or (b), who are parties to such action),
(ii) the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(d) If the indemnification provided for in paragraph (a) or (b) of
this Section 7 is due in accordance with its terms but is for any reason
held by a court to be unavailable from the Company or the Underwriter, on
grounds of policy or otherwise, or if the indemnified party failed to give
notice under paragraph (c) of this Section 7 in respect of a claim
otherwise subject to indemnification in accordance with paragraph (a) or
(b) of this Section 7, the Company and the Underwriter shall contribute to
the aggregate losses, claims, damages and liabilities (including legal and
other expenses reasonably incurred in connection with investigating or
defending same) to which the Company and the Underwriter may be subject, as
follows:
(i) in the case of any losses, claims, damages and liabilities
(or actions in respect thereof) which do not arise out of or are not
based upon any untrue statement or omission of a material fact in any
Computational Materials or ABS Term Sheets (or any amendments or
supplements thereof), in such proportion so that the Underwriter is
responsible for that portion represented by the difference between the
proceeds to the Company in respect of the Offered Certificates
appearing on the cover page of the Prospectus Supplement for the
related Series and the total proceeds received by the Underwriter from
the sale of such Offered Certificates (the "Underwriting Discount"),
and the Company is responsible for the balance; provided, however,
that in no case shall the Underwriter be responsible under this
subparagraph (i) for any amount in excess of such Underwriting
Discount applicable to the Offered Certificates purchased by the
Underwriter pursuant to this Agreement and the related Terms
Agreement; and
(ii) in the case of any losses, claims, damages and liabilities
(or actions in respect thereof) which arise out of or are based upon
any untrue statement or omission of a material fact in any
Computational Materials or ABS Term Sheets (or any amendments or
supplements thereof) or in any written or electronic materials
distributed to prospective investors on which the Computational
Materials are based, in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and the Underwriter
on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable
considerations; provided, however, that in no case shall the
Underwriter be responsible under this subparagraph (ii) for any amount
in excess of the aggregate Purchase Price for the Offered
Certificates. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a
material fact in such Computational Materials or ABS Term Sheets (or
any amendments or supplements thereof or such written or electronic
materials) results from information prepared by the Company on the one
hand or the Underwriter on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
Notwithstanding anything to the contrary in this Section 7(d), no
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 7, each person who controls the Underwriter
within the meaning of either the Act or the Exchange Act shall have
the same rights to contribution as the Underwriter, and each person
who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the
same rights to contribution as the Company, subject in each case to
the immediately preceding sentence of this paragraph (d).
8. Computational Materials and Structural Term Sheets. (a) Not later than
10:30 a.m., New York time, on the business day before the date on which the
Current Report relating to the Offered Certificates of a Series is required to
be filed by the Company with the Commission pursuant to Section 5(b) hereof, the
Underwriter shall deliver to the Company five complete copies of all materials
provided by the Underwriter to prospective investors in such Offered
Certificates that constitute (i) "Computational Materials" within the meaning of
the no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Commission to Kidder, Peabody Acceptance Corporation I, Kidder,
Peabody & Co. Incorporated, and Kidder 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
"Kidder Letters"), the filing of which material is a condition of the relief
granted in such letter (such materials being the "Computational Materials"), and
(ii) "Structural Term Sheets" within the meaning of the no-action letter dated
February 17, 1995 issued by the Division of Corporation Finance of the
Commission to the Public Securities Association (the "PSA Letter"), the filing
of which material is a condition of the relief granted in such letter (such
materials being the "Structural Term Sheets"). Each delivery of Computational
Materials and Structural Term Sheets to the Company pursuant to this paragraph
(a) shall be effected by delivering four copies of such materials to counsel for
the Company on behalf of the Company at the address specified in Section 3
hereof and one copy of such materials to the Company.
(b) The Underwriter represents and warrants to and agrees with the
Company, as of the date of the related Terms Agreement and as of the
Closing Date, that:
(i) the Computational Materials furnished to the Company pursuant
to Section 8(a) constitute (either in original, aggregated or
consolidated form) all of the materials furnished to prospective
investors by the Underwriter prior to the time of delivery thereof to
the Company that are required to be filed with the Commission with
respect to the related Offered Certificates in accordance with the
Kidder Letters, and such Computational Materials comply with the
requirements of the Kidder Letters;
(ii) the Structural Term Sheets furnished to the Company pursuant
to Section 8(a) constitute all of the materials furnished to
prospective investors by the Underwriter prior to the time of delivery
thereof to the Company that are required to be filed with the
Commission as "Structural Term Sheets" with respect to the related
Offered Certificates in accordance with the PSA Letter, and such
Structural Term Sheets comply with the requirements of the PSA Letter;
and
(iii) on the date any such Computational Materials or Structural
Term Sheets with respect to such Offered Certificates (or any written
or electronic materials furnished to prospective investors on which
the Computational Materials are based) were last furnished to each
prospective investor and on the date of delivery thereof to the
Company pursuant to Section 8(a) and on the related Closing Date, such
Computational Materials (or such other materials) or Structural Term
Sheets did not and will not include any untrue statement of a material
fact or, when read in conjunction with the related Prospectus and
Prospectus Supplement, omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading.
Notwithstanding the foregoing, the Underwriter makes no representation
or warranty as to whether any Computational Materials or Structural
Term Sheets (or any written or electronic materials on which the
Computational Materials are based) included or will include any untrue
statement resulting directly from any Mortgage Pool Error (except any
Corrected Mortgage Pool Error, with respect to materials prepared
after the receipt by the Underwriter from the Company of notice of
such Corrected Mortgage Pool Error or materials superseding or
correcting such Corrected Mortgage Pool Error).
(c) The Underwriter shall cause a firm of public accountants to
furnish to the Company a letter, dated as of the date on which the
Underwriter delivers any Computational Materials (which term shall be
deemed to include, for purposes of this paragraph (c), calculated
statistical information delivered to prospective investors in the form of a
Structural Term Sheet) to the Company pursuant to Section 8(a), in form and
substance satisfactory to the Company, stating in effect that they have
verified the mathematical accuracy of any calculations performed by the
Underwriter and set forth in such Computational Materials.
(d) The Underwriter acknowledges and agrees that any Computational
Materials or Structural Term Sheets with respect to Series 1998-1 and any
subsequent Series of Certificates as to which it acts as Underwriter have
been prepared and disseminated by the Underwriter and not by or on behalf
of the Company, and that such materials included and shall include a
disclaimer in form satisfactory to the Company to the effect that such
materials have been prepared and disseminated by the Underwriter, and that
the content and accuracy of such materials have not been reviewed by the
Company.
(e) If, at any time when a prospectus relating to the Offered
Certificates of a Series is required to be delivered under the Act, it
shall be necessary to amend or supplement the related Prospectus as a
result of an untrue statement of a material fact contained in any
Computational Materials or Structural Term Sheets provided by the
Underwriter pursuant to this Section 8 or the omission to state therein a
material fact required, when considered in conjunction with the related
Prospectus and Prospectus Supplement, to be stated therein or necessary to
make the statements therein, when read in conjunction with the related
Prospectus and Prospectus Supplement, not misleading, or if it shall be
necessary to amend or supplement any Current Report relating to any
Computational Materials or Structural Term Sheets to comply with the Act or
the rules thereunder, the Underwriter promptly will prepare and furnish to
the Company for filing with the Commission an amendment or supplement which
will correct such statement or omission or an amendment which will effect
such compliance. The Underwriter represents and warrants to the Company, as
of the date of delivery of such amendment or supplement to the Company,
that such amendment or supplement will not include any untrue statement of
a material fact or, when read in conjunction with the related Prospectus
and Prospectus Supplement, omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that the Underwriter makes no representation or warranty
as to whether any such amendment or supplement will include any untrue
statement resulting directly from any Mortgage Pool Error (except any
Corrected Mortgage Pool Error, with respect to any such amendment or
supplement prepared after the receipt by the Underwriter from the Company
of notice of such Corrected Mortgage Pool Error or materials superseding or
correcting such Corrected Mortgage Pool Error). The Company shall have no
obligation to file such amendment or supplement if the Company determines
that (i) such amendment or supplement contains any untrue statement of a
material fact or, when read in conjunction with the related Prospectus and
Prospectus Supplement, omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; it
being understood, however, that the Company shall have no obligation to
review or pass upon the accuracy or adequacy of, or to correct, any such
amendment or supplement provided by the Underwriter to the Company pursuant
to this paragraph (e) or (ii) such filing is not required under the Act.
9. Collateral Term Sheets. (a) Prior to the delivery of any "Collateral
Term Sheet" within the meaning of the PSA Letter, the filing of which material
is a condition of the relief granted in such letter (such material being the
"Collateral Term Sheets"), to a prospective investor in any Offered
Certificates, the Underwriter shall, in order to facilitate the timely filing of
such material with the Commission, notify the Company and its counsel by
telephone of its intention to deliver such materials and the approximate date on
which the first such delivery of such materials is expected to occur. Not later
than 10:30 a.m., New York time, on the business day immediately following the
date on which any Collateral Term Sheet was first delivered to a prospective
investor in such Offered Certificates, the Underwriter shall deliver to the
Company five complete copies of all materials provided by the Underwriter to
prospective investors in the Offered Certificates that constitute "Collateral
Term Sheets." Each delivery of a Collateral Term Sheet to the Company pursuant
to this paragraph
(a) shall be effected by delivering four copies of such materials to
counsel for the Company on behalf of the Company at the address specified
in Section 3 hereof and one copy of such materials to the Company.
(Collateral Term Sheets and Structural Term Sheets are, together, referred
to herein as "ABS Term Sheets.") At the time of each such delivery, the
Underwriter shall indicate in writing that the materials being delivered
constitute Collateral Term Sheets, and, if there has been any prior such
delivery with respect to the related Series, shall indicate whether such
materials differ in any material respect from any Collateral Term Sheets
previously delivered to the Company with respect to such Series pursuant to
this Section 9(a) as a result of the occurrence of a material change in the
characteristics of the related Mortgage Loans.
(b) The Underwriter represents and warrants to and agrees with the
Company as of the date of the related Terms Agreement and as of the Closing
Date, that:
(i) The Collateral Term Sheets furnished to the Company pursuant
to Section 9(a) constitute all of the materials furnished to
prospective investors by the Underwriter prior to time of delivery
thereof to the Company that are required to be filed with the
Commission as "Collateral Term Sheets" with respect to the related
Offered Certificates in accordance with the PSA Letter, and such
Collateral Term Sheets comply with the requirements of the PSA Letter;
and
(ii) On the date any such Collateral Term Sheets with respect to
such Offered Certificates were last furnished to each prospective
investor and on the date of delivery thereof to the Company pursuant
to Section 9(a) and on the related Closing Date, such Collateral Term
Sheets did not and will not include any untrue statement of a material
fact or, when read in conjunction with the Prospectus and Prospectus
Supplement, omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Notwithstanding the foregoing, the Underwriter makes no representation
or warranty as to whether any Collateral Term Sheet included or will
include any untrue statement or material omission resulting directly
from any Mortgage Pool Error (except any Corrected Mortgage Pool
Error, with respect to materials prepared after the receipt by the
Underwriter from the Company of notice of such Corrected Mortgage Pool
Error or materials superseding or correcting such Corrected Mortgage
Pool Error).
(c) The Underwriter acknowledges and agrees that any Collateral Term
Sheets with respect to any Series of Certificates furnished to prospective
investors from and after the date hereof will have been prepared and
disseminated by the Underwriter and not by or on behalf of the Company, and
that such materials shall include a disclaimer in form satisfactory to the
Company to the effect set forth in Section 8(d) hereof, and to the effect
that the information contained in such materials supersedes the information
contained in any prior Collateral Term Sheet with respect to such Series of
Offered Certificates and will be superseded by the description of the
related Mortgage Loans in the related Prospectus Supplement and in the
Detailed Description relating to such Prospectus Supplement to be filed
under cover of Form 8-K. The Underwriter agrees that it will not represent
to prospective investors that any Collateral Term Sheets were prepared or
disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the Offered
Certificates of a Series is required to be delivered under the Act, it
shall be necessary to amend or supplement the related Prospectus as a
result of an untrue statement of a material fact contained in any
Collateral Term Sheets provided by the Underwriter pursuant to this Section
9 or the omission to state therein a material fact required, when
considered in conjunction with the related Prospectus and Prospectus
Supplement, to be stated therein or necessary to make the statements
therein, when read in conjunction with the related Prospectus and
Prospectus Supplement, not misleading, or if it shall be necessary to amend
or supplement any Current Report relating to any Collateral Term Sheets to
comply with the Act or the rules thereunder, the Underwriter promptly will
prepare and furnish to the Company for filing with the Commission an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance. The Underwriter represents and
warrants to the Company, as of the date of delivery of such amendment or
supplement to the Company, that such amendment or supplement will not
include any untrue statement of a material fact or, when read in
conjunction with the related Prospectus and Prospectus Supplement, omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, the Underwriter
makes no representation or warranty as to whether any such amendment or
supplement will include any untrue statement resulting directly from any
Mortgage Pool Error (except any Corrected Mortgage Pool Error, with respect
to any such amendment or supplement prepared after the receipt by the
Underwriter from the Company of notice of such Corrected Mortgage Pool
Error or materials superseding or correcting such Corrected Mortgage Pool
Error). The Company shall have no obligation to file such amendment or
supplement if the Company determines that (i) such amendment or supplement
contains any untrue statement of a material fact or, when read in
conjunction with the related Prospectus and Prospectus Supplement, omits to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading; it being understood, however, that
the Company shall have no obligation to review or pass upon the accuracy or
adequacy of, or to correct, any such amendment or supplement provided by
the Underwriter to the Company pursuant to this paragraph (d) or (ii) such
filing is not required under the Act.
10. Termination. This Agreement (with respect to a particular Certificate
Offering) and the related Terms Agreement shall be subject to termination in the
absolute discretion of the Underwriter, by notice given to the Company prior to
delivery of and payment for the related Offered Certificates, if prior to the
related Closing Date (i) trading in securities generally on the New York Stock
Exchange shall have been suspended or materially limited, (ii) a general
moratorium on commercial banking activities in New York shall have been declared
by either federal or New York State authorities, or (iii) there shall have
occurred any outbreak or material escalation of hostilities or other calamity or
crisis the effect of which on the financial markets of the United States is such
as to make it, in the reasonable judgment of the Underwriter, impracticable to
market such Offered Certificates.
11. Representations and Indemnities to Survive Delivery. The agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriter set forth in or made pursuant to this
Agreement and the related Terms Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of the Underwriter or the
Company or any of the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the related
Offered Certificates. The provisions of Section 7 hereof shall survive the
termination or cancellation of this Agreement and the related Terms Agreement.
12. Successors. This Agreement and the related Terms Agreement will inure
to the benefit of and be binding upon the parties hereto and thereto and their
respective successors and the officers, directors and controlling persons
referred to in Section 7 hereof, and their successors and assigns, and no other
person will have any right or obligation hereunder or thereunder. No purchaser
of any Offered Certificate from the Underwriter shall be deemed a successor or
assign by reason of such purchase.
13. APPLICABLE LAW. THIS AGREEMENT AND THE RELATED TERMS AGREEMENT WILL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN.
14. Miscellaneous. This Agreement, as supplemented by the related Terms
Agreement, supersedes all prior and contemporaneous agreements and
understandings relating to the subject matter hereof. This Agreement and the
related Terms Agreement or any term of each may not be changed, waived,
discharged or terminated except by an affirmative written agreement made by the
party against whom enforcement of the change, waiver, discharge or termination
is sought. The headings in this Agreement and the related Terms Agreement are
for purposes of reference only and shall not limit or otherwise affect the
meaning hereof or thereof.
15. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Underwriter, will be delivered to it at the
address first above written; or if sent to the Company, will be delivered to GE
Capital Mortgage Services, Inc., Three Executive Campus, Cherry Hill, New Jersey
08002, Attention: General Counsel.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the undersigned a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and the Underwriter.
Very truly yours,
GE CAPITAL MORTGAGE SERVICES, INC.
By: _____________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: ________________________________
Name:
Title:
EXHIBIT A
GE CAPITAL MORTGAGE SERVICES, INC.
REMIC MULTI-CLASS PASS-THROUGH CERTIFICATES
SERIES ____-__
TERMS AGREEMENT
(to Underwriting Agreement,
dated January 22, 1998
between the Company and the Underwriter)
GE Capital Mortgage Services, Inc. New York, New York
Three Executive Campus [Date]
Cherry Hill, NJ 08002
Merrill Lynch, Pierce, Fenner & Smith Incorporated (the "Underwriter")
agrees, subject to the terms and provisions herein and of the captioned
Underwriting Agreement (the "Underwriting Agreement"), to purchase such Classes
of Series ____-__ Certificates specified in Section 2(a) hereof (the "Offered
Certificates"). This letter supplements and modifies the Underwriting Agreement
solely as it relates to the purchase and sale of the Offered Certificates
described below. The Series ____-__ Certificates are registered with the
Securities and Exchange Commission by means of an effective Registration
Statement (No. 33-___). Capitalized terms used and not defined herein have the
meanings given them in the Underwriting Agreement.
Section 1. The Mortgage Pool: The Series ____-__ Certificates shall
evidence the entire beneficial ownership interest in a mortgage pool (the
"Mortgage Pool") of conventional, fixed rate, fully amortizing one- to
four-family residential mortgage loans (the "Mortgage Loans") having the
following characteristics as of ________ __, ____ (the "Cut-off Date"):
(a) Aggregate Principal Amount of the Mortgage Pool: $[ ] aggregate
principal balance as of the Cutoff Date, subject to [an upward or downward
variance of up to [ ]%, the precise aggregate principal balance to be
determined by the Company][a permitted variance such that the aggregate
Scheduled Principal Balance thereof will be not less than $[ ] or greater
than $[ ]].
(b) Original Terms to Maturity: The original term to maturity of each
Mortgage Loan included in the Mortgage Pool shall be between ___ and ___
years.
Section 2. The Certificates: The Offered Certificates shall be issued as
follows:
(a) Classes: The Offered Certificates shall be issued with the
following Class designations, interest rates and principal balances,
subject in the aggregate to the variance referred to in Section 1(a)[and,
as to any particular Class, to an upward or downward variance of up to [
]%]:
Principal Interest Class Purchase
Class Balance Rate Price Percentage
----- ------- ---- ----------------
(b) The Offered Certificates shall have such other characteristics as
described in the related Prospectus.
Section 3. Purchase Price: The Purchase Price for each Class of the Offered
Certificates shall be the Class Purchase Price Percentage therefor (as set forth
in Section 2(a) above) of the initial Class Certificates Principal Balance
thereof plus accrued interest at the rate of [ ]% per annum from and including
the Cut-off Date up to, but not including, _________ __, ____ (the "Closing
Date").
Section 4. Required Ratings: The Offered Certificates shall have received
Required Ratings of at least [ ] from [ ].
Section 5. Tax Treatment: [One or more elections will be made to treat the
assets of the Trust Fund as a REMIC.] [The Trust Fund will be treated as a
"grantor trust" for federal income tax purposes.]
[Section 6. Additional Expenses:]*
- --------
* to be inserted if applicable.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the undersigned a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Underwriter and the Company.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: ________________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
GE CAPITAL MORTGAGE SERVICES, INC.
By: _____________________________
Name:
Title:
Execution
GE CAPITAL MORTGAGE SERVICES, INC.
REMIC MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 1999-16
TERMS AGREEMENT
(to Underwriting Agreement,
dated January 22, 1998,
between the Company and the Underwriter)
GE Capital Mortgage Services, Inc. New York, New York
Three Executive Campus July 22, 1999
Cherry Hill, NJ 08002
Merrill Lynch, Pierce, Fenner & Smith Incorporated (the "Underwriter")
agrees, subject to the terms and provisions herein and of the captioned
Underwriting Agreement (the "Underwriting Agreement"), to purchase the Classes
of Series 1999-16 Certificates specified in Section 2(a) hereof (the "Offered
Certificates"). This Terms Agreement supplements and modifies the Underwriting
Agreement solely as it relates to the purchase and sale of the Offered
Certificates described below. The Series 1999-16 Certificates are registered
with the Securities and Exchange Commission by means of an effective
Registration Statement (Nos. 333-68951 and 333-68951-01). Capitalized terms used
and not defined herein have the meanings given them in the Underwriting
Agreement.
Section 1. The Mortgage Pool: The Series 1999-16 Certificates shall
evidence the entire beneficial ownership interest in a mortgage pool (the
"Mortgage Pool") of conventional, fixed-rate, first-lien, fully-amortizing, one-
to four-family residential mortgage loans (the "Mortgage Loans") having the
following characteristics as of July 1, 1999 (the "Cut-off Date"):
(a) Aggregate Principal Amount of the Mortgage Pool: $201,331,572.71
aggregate principal balance as of the Cut-off Date, subject to a permitted
variance such that the aggregate original Certificate Principal Balance
will be not less than $190,000,000 or greater than $210,000,000.
(b) Original Terms to Maturity: The original term to maturity of
substantially all of the Mortgage Loans included in the Mortgage Pool shall
be between 10 and 15 years.
Section 2. The Certificates: The Offered Certificates shall be issued as
follows:
(a) Classes: The Offered Certificates shall be issued with the
following Class designations, interest rates and principal balances,
subject in the aggregate to the variance referred to in Section 1(a):
Class
Principal Interest Purchase Price
Class Balance Rate Percentage
- ----- ------- ---- ----------
Class M $1,631,000.00 6.50% 96.21875%
Class B1 598,000.00 6.50 95.15625
Class B2 598,000.00 6.50 90.43750
(b) The Offered Certificates shall have such other characteristics as
described in the related Prospectus.
Section 3. Purchase Price: The Purchase Price for each Class of the Offered
Certificates shall be the Class Purchase Price Percentage therefor (as set forth
in Section 2(a) above) of the initial Class Certificate Principal Balance
thereof plus accrued interest at the initial interest rate per annum from and
including the Cut-off Date up to, but not including, July 29, 1999 (the "Closing
Date").
Section 4. Required Ratings: The Class M, Class B1 and Class B2
Certificates shall have received Required Ratings of "AA," "A" and "BBB,"
respectively, from Fitch IBCA, Inc.
Section 5. Tax Treatment: One or more elections will be made to treat the
assets of the Trust Fund as a REMIC.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the undersigned a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Underwriter and the Company.
Very truly yours,
MERRILL LYNCH, PIERCE FENNER & SMITH
INCORPORATED
By:_______________________________
Name:
Title:
The foregoing Agreement
is hereby confirmed and accepted
as of the date hereof.
GE CAPITAL MORTGAGE SERVICES, INC.
By:______________________________
Name:
Title: