EXHIBIT 4.1(b)
MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement, dated as of -, 20-
(the
"Agreement"), is between GE Commercial Mortgage Corporation, a
Delaware
corporation (the "Company") and General Electric Capital
Corporation, a Delaware
corporation (the "Mortgage Loan Seller"). The Mortgage Loan Seller
agrees to
sell, and the Company agrees to purchase the mortgage loans (the
"Mortgage
Loans") described and set forth in the Mortgage Loan Schedule
attached as
Exhibit A to this Agreement (the "Mortgage Loan Schedule"). The
Company intends
to deposit the Mortgage Loans and other assets into a trust (the
"Trust") and
cause the creation of a series of certificates to be known as GE
Commercial
Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series
20--- (the "Certificates"), evidencing beneficial ownership
interests in the
Mortgage Loans and other assets (including, without limitation,
other mortgage
loans (the "Other Mortgage Loans")), under a Pooling and Servicing
Agreement, to
be dated as of -, 20- (the "Pooling and Servicing Agreement"),
among the
Company, as depositor, -, as servicer ("the "Servicer") and -, as
special
servicer (the "Special Servicer") with respect to the Mortgage
Loans and the
Other Mortgage Loans -, and -, a national banking association, as
trustee (the
"Trustee"). The Offered Certificates (as hereinafter defined) will
be offered
pursuant to a Prospectus Supplement dated -, 20- (the "Final
Prospectus
Supplement"), to a Prospectus, dated -, 20- (the "Base Prospectus"
and, together
with the Final Prospectus Supplement, the "Final Prospectus"), and
the
Non-Offered Certificates (as hereinafter defined) will be offered
pursuant to
one or more Private Placement Memoranda (the "Private Placement
Memoranda").
At or prior to the time when sales to investors of the Offered
Certificates were
first made (the "Time of Sale"), the Company had prepared the
following
information: (i) a [Preliminary] {Free Writing] Prospectus dated -,
20- (the
"Preliminary Prospectus"), (ii) a Term Sheet dated as of -, 20-
(the "Term
Sheet") and (iii) written materials prepared by the Underwriters
and provided to
the Company for filing with the Securities and Exchange Commission
(the "SEC")
prior to the Time of Sale (the "Company Filed Information" and,
together with
the Preliminary Prospectus and the Term Sheet, the "Time of Sale
Information").
A list of the Company Filed Information is included in Schedule I
hereto. If
subsequent to the date of the Underwriting Agreement, the Company
and the
Underwriters have determined that such information included an
untrue statement
of a material fact or omitted to state a material fact necessary in
order to
make the statement therein, in the light of the circumstances in
which they were
made, not misleading and have terminated their old purchase
contract and entered
into new purchase contracts with purchasers of the Offered
Certificates, then
"Time of Sale Information" will refer to the information provided
by the Company
or the Underwriters to purchasers at the time of entry into the
first such new
purchase contract, including any information that corrects such
material
misstatements or omissions ("Corrective Information")
Capitalized terms used but not otherwise defined herein shall have
the
respective meanings given to them in the Pooling and Servicing
Agreement.
1. Purchase Price; Purchase and Sale. In consideration of the
sale
of the Mortgage Loans from the Mortgage Loan Seller to the Company
on -, 20-
(the "Closing Date"), the Company agrees to pay to the Mortgage
Loan Seller on
the Closing Date by transfer of immediately available funds, after
the
allocation of deal expenses, credits and accrued interest,
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an amount equal to $. The closing for the purchase and sale of the
Mortgage
Loans shall take place [at the offices of Cadwalader, Wickersham
& Taft LLP, New
York, New York, at 10:00 a.m. (New York time)], on the Closing
Date.
On the Closing Date, the Mortgage Loan Seller shall sell,
transfer,
assign, set over and convey to the Company, and the Company shall
purchase, all
the right, title and interest of the Mortgage Loan Seller in and to
the Mortgage
Loans, including all payments of interest and principal due on each
Mortgage
Loan after the related Cut-off Date, together with all of the
Mortgage Loan
Seller's right, title and interest in and to the proceeds of any
related title,
hazard, primary mortgage or other insurance policies but subject to
the sale of
the servicing rights pursuant to the Servicing Rights Purchase
Agreement (as
defined herein). The Company hereby directs the Mortgage Loan
Seller, and the
Mortgage Loan Seller hereby agrees, to (1) promptly after the
Closing Date, but
in all events within three Business Days after the Closing Date,
transfer all
funds on deposit in escrow accounts maintained with respect to the
Mortgage
Loans in the name of the Mortgage Loan Seller or any other name to
the Servicer
(or a Sub-Servicer) for deposit into Servicing Accounts and (2)
deliver to the
Trustee on or prior to the Closing Date or, within [45] days
following the
Closing Date, as specified in the Pooling and Servicing Agreement,
the
documents, instruments and agreements required to be delivered by
the Company to
the Trustee under Section 2.01 of the Pooling and Servicing
Agreement, and
meeting all the requirements of such Section 2.01, and such other
documents,
instruments and agreements as the Company or the Trustee shall
reasonably
request.
2. Representations and Warranties. (a) The Mortgage Loan Seller
hereby represents and warrants to the Company as of the date hereof
and as of
Closing Date that:
(i) The Mortgage Loan Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State
of
Delaware, with full power and authority to own its assets and
conduct its business, is duly qualified as a foreign corporation
in
good standing in all jurisdictions in which the ownership or
lease
of its property or the conduct of its business requires such
qualification, except where the failure to be so qualified would
not
have a material adverse effect on the ability of the Mortgage
Loan
Seller to perform its obligations hereunder, and the Mortgage
Loan
Seller has taken all necessary action to authorize the
execution,
delivery and performance of this Agreement by it, and has the
power
and authority to execute, deliver and perform this Agreement and
all
the transactions contemplated hereby, including, but not limited
to,
the power and authority to sell, assign, transfer, set over and
convey the Mortgage Loans in accordance with this Agreement;
(ii) This Agreement has been duly authorized, executed and
delivered by the Mortgage Loan Seller and assuming its due
authorization, execution and delivery by the Company, will
constitute a legal, valid and binding obligation of the
Mortgage
Loan Seller, enforceable against the Mortgage Loan Seller in
accordance with the terms of this Agreement, except as such
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
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enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforceability
is
considered in a proceeding in equity or at law), and except that
the
enforcement of rights with respect to indemnification and
contribution obligations may be limited by applicable law;
(iii) The execution and delivery of this Agreement by the
Mortgage Loan Seller and the performance of its obligations
hereunder will not conflict with any provision of any law or
regulation to which the Mortgage Loan Seller is subject, or
conflict
with, result in a breach of or constitute a default under any of
the
terms, conditions or provisions of any of the Mortgage Loan
Seller's
organizational documents or any agreement or instrument to which
the
Mortgage Loan Seller is a party or by which it is bound, or any
order or decree applicable to the Mortgage Loan Seller, or result
in
the creation or imposition of any lien on any of the Mortgage
Loan
Seller's assets or property, in each case which would materially
and
adversely affect the ability of the Mortgage Loan Seller to
carry
out the transactions contemplated by this Agreement;
(iv) There is no action, suit, proceeding or investigation
pending or, to the knowledge of the Mortgage Loan Seller,
threatened
against the Mortgage Loan Seller in any court or by or before
any
other governmental agency or instrumentality which would
materially
and adversely affect the validity of the Mortgage Loans or the
ability of the Mortgage Loan Seller to carry out the
transactions
contemplated by this Agreement;
(v) The Mortgage Loan Seller is not in default with respect to
any order or decree of any court or any order, regulation or
demand
of any federal, state, municipal or governmental agency, which
default might have consequences that would materially and
adversely
affect the condition (financial or other) or operations of the
Mortgage Loan Seller or its properties or might have
consequences
that would materially and adversely affect its performance
hereunder;
(vi) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution,
delivery and performance by the Mortgage Loan Seller of or
compliance by the Mortgage Loan Seller with this Agreement or
the
consummation by the Mortgage Loan Seller of the transactions
contemplated by this Agreement, other than those which have
been
obtained by the Mortgage Loan Seller; and
(vii) The transfer, assignment and conveyance of the Mortgage
Loans by the Mortgage Loan Seller to the Company is not subject
to
bulk transfer laws or any similar statutory provisions in effect
in
any applicable jurisdiction.
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(b)
The Mortgage Loan Seller hereby makes each of the
representations and warranties set forth on Exhibit D hereto with
respect to
each Mortgage Loan, as of the date specified therein or, if no such
date is
specified, as of the Closing Date, except as set forth on the
Exhibit E hereto.
3. Notice of Breach; Cure and Repurchase or Substitution; Other
Mortgage Loan Costs.
(a) The Mortgage Loan Seller and the Company shall be given
prompt
written notice of any Breach or Document Defect, to the extent
required by
Section 2.03(b) of the Pooling and Servicing Agreement.
(b) With respect to each Mortgage Loan as to which the Mortgage
Loan
Seller has received notice referred in subsection (a) above, the
Mortgage Loan
Seller agrees to cure any Breach or Document Defect, as the case
may be, in all
material respects, repurchase the affected Mortgage Loan or
substitute a
Qualified Substitute Mortgage Loan for such affected Mortgage Loan
in accordance
with the terms of Section 2.03(b) of the Pooling and Servicing
Agreement.
(c) Upon any repurchase or substitution of a Mortgage Loan
contemplated by Section 3(b) above, the Trustee, the Servicer and
the Special
Servicer shall each tender to the Mortgage Loan Seller, all
portions of the
Mortgage File and other documents pertaining to such Mortgage Loan
possessed by
it, and each document that constitutes a part of the Mortgage File
that was
endorsed or assigned to the Trustee shall be endorsed or assigned,
as the case
may be, to the Mortgage Loan Seller.
(d) Without limiting the remedies of the Company, the
Certificateholders or the Trustee on behalf of the
Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and
warranties
are being made for risk allocation purposes. Subject to Section 7
of this
Agreement, this Section 3 provides the sole remedy available to
the
Certificateholders, or the Trustee on behalf of the
Certificateholders,
respecting any Document Defect in a Mortgage File or any Breach of
any
representation or warranty set forth in or required to be made
pursuant to
Section 2 of this Agreement.
(e) The Mortgage Loan Seller hereby acknowledges the assignment
by
the Company to the Trustee, as trustee under the Pooling and
Servicing
Agreement, for the benefit of the Certificateholders, of the
representations and
warranties contained herein and of the obligation of the Mortgage
Loan Seller to
repurchase a Mortgage Loan or substitute a Qualified Substitute
Mortgage Loan
pursuant to this Section. The Trustee or its designee may enforce
such
obligations as provided in Section 9 hereof.
(f) With respect to any action taken concerning "due-on-sale" or
a
"due-on-encumbrance" clause as set forth in Section [3.08(e)] of
the Pooling and
Servicing Agreement or a defeasance, any fees or expenses related
thereto
including any fee charged by a Rating Agency that is rendering a
written
confirmation, to the extent that the related Mortgage Loan
documents do not
permit the lender to require payment of such fees and expenses from
the
Mortgagor, shall be paid by the Mortgage Loan Seller.
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(g) Upon any repurchase or substitution of a Mortgage Loan
contemplated by Section 3(b) above, the Mortgage Loan Seller shall
either (i)
retain the Servicer for the repurchased or substituted Mortgage
Loan according
to substantially the same terms set forth in the Pooling and
Servicing Agreement
or (ii) repurchase the servicing rights for the repurchased or
substituted
Mortgage Loan from the Servicer at a purchase price based on the
formula set
forth in Section 6 of the Servicing Rights Purchase Agreement by
and between the
Mortgage Loan Seller and the Servicer dated as of -, 20- (the
"Servicing Rights
Purchase Agreement") to the extent the related Mortgage Loan is
subject to the
Servicing Rights Purchase Agreement.
4. Representations, Warranties and Agreements of Company.
(a) The Company hereby represents and warrants to the Mortgage
Loan
Seller, as of the date hereof (or such other date as is specified
in the related
representation or warranty), as follows:
(i) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware, with full corporate power and authority to own its
assets
and conduct its business, is duly qualified as a foreign
corporation
in good standing in all jurisdictions in which the ownership or
lease of its property or the conduct of its business requires
such
qualification, except where the failure to be so qualified would
not
have a material adverse effect on the ability of the Company to
perform its obligations hereunder, and the Company has taken
all
necessary action to authorize the execution, delivery and
performance of this Agreement by it, and has the power and
authority
to
execute, deliver and perform this Agreement and all the
transactions contemplated hereby;
(ii) This Agreement has been duly authorized, executed and
delivered by the Company and assuming due authorization,
execution
and delivery by the Mortgage Loan Seller, will constitute a
legal,
valid and binding obligation of the Company, enforceable against
the
Company in accordance with its terms, except as such enforcement
may
be limited by bankruptcy, reorganization, insolvency, moratorium
and
other similar laws affecting the enforcement of creditors'
rights
generally and to general principles of equity (regardless of
whether
such enforceability is considered in a proceeding in equity or
at
law);
(iii) The execution and delivery of this Agreement by the
Company and the performance of its obligations hereunder will
not
conflict with any provision of any law or regulation to which
the
Company is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or
provisions of any of the Company's organizational documents or
any
agreement or instrument to which the Company is a party or by
which
it is bound, or any order or decree applicable to the Company,
or
result in the creation or imposition of any lien on any of the
Company's assets or property, in each case which would
materially
and
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adversely affect the ability of the Company to carry out the
transactions contemplated by this Agreement;
(iv) There is no action, suit, proceeding or investigation
pending or to the knowledge of the Company, threatened against
the
Company in any court or by or before any other governmental
agency
or instrumentality which would materially and adversely affect
the
validity of this Agreement or any action taken in connection
with
the obligations of the Company contemplated herein, or which
would
be likely to impair materially the ability of the Company to
perform
under the terms of this Agreement;
(v) The Company is not in default with respect to any order or
decree of any court or any order, regulation or demand of any
federal, state, municipal or governmental agency, which default
might have consequences that would materially and adversely
affect
the condition (financial or other) or operations of the Company
or
its properties or might have consequences that would materially
and
adversely affect its performance hereunder; and
(vi) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution,
delivery and performance by the Company of or compliance by the
Company with this Agreement or the consummation of the
transactions
contemplated by this Agreement other than those that have been
obtained by the Company.
5. Company's Conditions to Closing.
The obligations of the Company under this Agreement shall be
subject
to the satisfaction, on the Closing Date, or such other date
specified herein,
of the following conditions:
(a) The obligations of the Mortgage Loan Seller required to be
performed by it at or prior to the Closing Date pursuant to the
terms of this
Agreement shall have been duly performed and complied with and all
of the
representations and warranties of the Mortgage Loan Seller under
this Agreement
shall be true and correct as of the date specified in such
representation and
warranty or, if no such date is specified, as of the Closing Date,
and no event
shall have occurred which, with notice or the passage of time, or
both, would
constitute a default under this Agreement, and the Company shall
have received a
certificate to that effect signed by an authorized officer of the
Mortgage Loan
Seller, upon which the Company and the Underwriters (as defined
hereinbelow) may
rely.
(b) The Company or its designee shall have received all of the
following closing documents, in such forms as are agreed upon and
acceptable to
the Company and in form and substance satisfactory to the Company,
the
Underwriters and their respective counsel, duly executed by all
signatories
other than the Company as required pursuant to the respective terms
thereof:
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(i) with respect to each Mortgage Loan, the related Mortgage
Note, which Mortgage Note shall be delivered to and held by the
Trustee on behalf of the Company;
(ii) the final Mortgage Loan Schedule;
(iii) an officer's certificate from the Mortgage Loan Seller
dated as of the Closing Date, in the form attached hereto as
Exhibit
B, upon which the Underwriters may rely;
(iv) a certificate of the Mortgage Loan Seller, dated the
Closing Date, and upon which the Company and the Underwriters
may
rely, to the effect that representatives of the Mortgage Loan
Seller
have carefully examined the Time of Sale Information and the
Final
Prospectus and nothing has come to the attention of the
Mortgage
Loan Seller that would lead the Mortgage Loan Seller to believe
that
the Time of Sale Information, as of the Time of Sale or as of
the
Closing Date, or the Final Prospectus, as of the Closing Date,
included or includes any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omits to state
therein
a material fact necessary in order to make the statements
therein
relating to the Mortgage Loans, in light of the circumstances
under
which they were made, not misleading;
(v) an opinion of Mortgage Loan Seller's counsel, subject to
customary exceptions and carve-outs, which states in substance
the
opinions set forth on Exhibit C hereto;
(vi) such other documents, certificates and opinions relating
to the Mortgage Loans or the Mortgage Loan Seller as may be
necessary to secure for the Certificates the following ratings
by
[Standard & Poor's Rating Services ("S&P")] [and] [Moody's
Investors
Service, Inc. ("Moody's")], [Fitch, Inc.] (together, the
"Rating
Agencies"): [insert ratings for each Class and agency]; and
(vii) a letter from the independent accounting firm of [name
of accountants] in form satisfactory to the Company, relating
to
certain information regarding the Mortgage Loans as set forth in
the
Prospectus.
(c) The Mortgage Loan Seller hereby agrees to furnish such
other
information, documents, certificates, letters or opinions with
respect to the
Mortgage Loans or itself as may be reasonably requested by the
Company in order
for the Company to perform any of its obligations or satisfy any of
the
conditions on its part to be performed or satisfied pursuant to the
Underwriting
Agreement, the Pooling and Servicing Agreement or this
Agreement.
6. Accountants' Letters.
The parties hereto shall cooperate with [name of accountants]
in
making available all information and taking all steps reasonably
necessary to
permit such accountants to deliver the letters required by the
Underwriting
Agreement.
7. Indemnification and Contribution. (a) The Mortgage Loan
Seller
shall indemnify and hold harmless the Company, [insert names of
underwriters]
(the "Underwriters"), their respective officers and directors, and
each person,
if any, who controls the Company or any Underwriter within the
meaning of either
Section 15 of the Securities Act of 1933, as amended (the "1933
Act") or Section
20 of the Securities Exchange Act of 1934, as amended (the
"1934
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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
1933 Act, the
1934 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) (i) arise out of or are based upon any untrue
statement or
alleged untrue statement of a material fact contained in (A) the
Final
Prospectus or in any revision or amendment thereof or supplement
thereto, (B)
the Time of Sale Information or any free writing prospectus (as
defined in Rule
405 of the 1933 Act, a "Free Writing Prospectus")(or any similar
item) prepared
by or on behalf of the Underwriters or the Company and that is not
Time of Sale
Information but was sent to investors prior to the Time of Sale, or
(C) the
Private Placement Memoranda and any items similar to a Free Writing
Prospectus,
Mortgage Files or ABS Informational and Computational Materials
forwarded to
prospective investors in the Non-Offered Certificates or to the
Rating Agencies,
or (ii) arise out of or are based upon the omission or alleged
omission to state
therein a material fact required to be stated therein or necessary
to make the
statements therein, in the light of the circumstances under which
they were
made, not misleading; but only if and to the extent that (I) any
such untrue
statement or alleged untrue statement or omission or alleged
omission arises out
of or is based upon an untrue statement or omission with respect to
the Mortgage
Loans, the related Mortgagors and/or the related Mortgaged
Properties contained
in the Master Tape (it being herein acknowledged that the Master
Tape was and
will be used to prepare the Final Prospectus including without
limitation
[specify Annexes] to the Final Prospectus Supplement, the Time of
Sale
Information, the Diskette, any ABS Informational and Computational
Materials
with respect to the Offered Certificates and any items similar to
ABS
Informational and Computational Materials forwarded to prospective
investors in
the Non-Offered Certificates), (II) any such untrue statement or
alleged untrue
statement or omission or alleged omission of a material fact is
with respect to,
or arises out of or is based upon, an untrue statement or omission
of a material
fact with respect to, the information regarding the Mortgage Loans,
the related
Mortgagors, the related Mortgaged Properties, the underwriting
standards of the
Mortgage Loan Seller and/or the Mortgage Loan Seller set forth (X)
in the Final
Prospectus Supplement or the Preliminary Prospectus (as
supplemented by the Time
of Sale Information) under the headings: ["SUMMARY OF
TERMS--Relevant Parties
and Dates--Mortgage Loan Sellers," "SUMMARY OF TERMS--The Mortgage
Loans," "RISK
FACTORS," "DESCRIPTION OF THE MORTGAGE POOL" and "SERVICING OF THE
MORTGAGE
LOANS"] [specify any other applicable sections] or in materials
provided by the
Mortgage Loan Seller to the Rating Agencies and (Y) on [specify
annexes] to the
Final Prospectus Supplement or the Preliminary Prospectus (as
supplemented by
the Time of Sale Information) and, to the extent consistent
therewith, on a
Diskette, (III) any such untrue statement or alleged untrue
statement or
omission or alleged omission arises out of or is based upon a
breach of the
representations and warranties of the Mortgage Loan Seller set
forth in or made
pursuant to Section 2; or (IV) any Free Writing Prospectus (or
similar item)
prepared by or on behalf of the Underwriters or the Company and
that is not Time
of Sale Information but was sent to investors prior to the Time of
Sale has been
prepared or has been reviewed and approved by, or has been
authorized (for
dissemination to prospective investors) by, the Mortgage Loan
Seller or has been
prepared in reliance upon and in conformity with the information
described in
(I), (II) or (III) above; provided that the indemnification
provided
by this Section 7 shall not apply to the extent that such untrue
statement or
omission of a material fact was made as a result of an error in the
manipulation
of, or in any calculations based upon, or in any
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aggregation of the information regarding the Mortgage Loans, the
related
Mortgagors and/or the related Mortgaged Properties set forth in the
Master Tape
and/or [specify Annexes] to the Final Prospectus Supplement or the
Preliminary
Prospectus (as supplemented by the Time of Sale Information),
including without
limitation the aggregation of such information with comparable
information
relating to the Other Mortgage Loans in the Trust Fund. The
information
described in clauses (I) through (IV) above is collectively
referred to herein
as the "Mortgage Loan Seller Information". This indemnity agreement
will be in
addition to any liability which the Mortgage Loan Seller may
otherwise have.
Notwithstanding anything contained herein, the Mortgage Loan
Seller
shall have no obligation to indemnify and hold harmless any Person
based on any
untrue statement or omission that is (a) contained in any Time of
Sale
Information or any Free Writing Prospectus (or similar item) that
was not Time
of Sale Information but was sent to investors prior to the Time of
Sale, to the
extent that (x) the Underwriter or the Company distributing such
information was
notified electronically or in writing of such untrue statement or
omission
within a reasonable period, and in any event not less than the
Business Day,
prior to the Time of Sale of any Certificates to the Person
alleging such untrue
statement or omission, (y) Corrective Information was delivered to
the
Underwriter or the Company distributing such information within
such period and
(z) such Underwriter or the Company failed to deliver such
Corrective
Information to such Person prior to the Time of Sale of any
Certificates to such
Person.
(b) The Company shall indemnify and hold harmless the Mortgage
Loan
Seller, its directors, officers, employees and agents, and each
person, if any,
who controls the Mortgage Loan Seller within the meaning of either
the 1933 Act
or the 1934 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 1933
Act, the 1934 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 Final
Prospectus, the Time of Sale Information, any Free Writing
Prospectus or the
Private Placement Memoranda, or in any amendment thereof or
supplement thereto,
or arise out of or are based upon the omission or alleged omission
to state
therein a material fact required to be stated therein or necessary
to make the
statements therein not misleading in the light of the circumstances
under which
they were made, except to the extent that such untrue statement,
alleged untrue
statement, omission or alleged omission is based upon the Mortgage
Loan Seller
Information, provided that the indemnification provided by this
Section 7 shall
not apply to the extent that such untrue statement or omission of a
material
fact was made as a result of an error in the manipulation of, or in
any
calculations based upon, or in any aggregation of the information
regarding the
Mortgage Loans, the related Mortgagors and/or the related Mortgaged
Properties
set forth in the Master Tape and/or [specify Annexes] to the
Prospectus
Supplement, including without limitation the aggregation of such
information
with comparable information relating to the Other Mortgage Loans in
the Trust
Fund. The Company shall reimburse each such indemnified party, as
incurred, for
any legal or other expenses reasonably incurred by them in
connection with
investigating or defending any such loss, claim, damage, liability
or action.
This indemnity agreement will be in addition to any liability which
the Company
may otherwise have.
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(c) Promptly after receipt by an indemnified party under this
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 the indemnifying party from any liability which it may
have to any
indemnified party under this Section 7, except to the extent that
it has been
prejudiced in any material respect, or from any liability which it
may have,
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 reasonably satisfactory
to such
indemnified party; provided that if the defendants in any such
action include
both the indemnified party and the indemnifying party and the
indemnified party
or parties shall have reasonably concluded that there may be legal
defenses
available to it or them 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 for
expenses
incurred by the 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 (together
with one local counsel, if applicable), approved by the Company and
the
Underwriters in the case of subsection (a), representing the
indemnified parties
under subsection (a) who are parties to such action), (ii) the
indemnifying
party shall not have employed counsel reasonably 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 in
writing 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 this Section 7 shall
for
any reason be unavailable in accordance with its terms to an
indemnified party
under this Section 7, then the Mortgage Loan Seller and the Company
shall
contribute to the amount paid or payable by such indemnified party
as a result
of the losses, claims, damages or liabilities referred to in
subsection (a) or
(b) above, in such proportion as is appropriate to reflect the
relative fault of
the indemnifying party on the one hand and the indemnified party on
the other in
connection with the statement or omission that resulted in such
losses, claims,
damages or liabilities, 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 relates to
information
supplied by the Mortgage Loan Seller or the Company and the
parties' relative
intent, knowledge, access to information and opportunity to correct
or prevent
such untrue statement or omission. The Mortgage Loan Seller and the
Company
agree that it would not be just and equitable if
B-10
<PAGE>
contribution pursuant to this subsection (d) were to be determined
by per capita
allocation or by any other method of allocation that does not take
account of
the equitable considerations referred to herein. The amount paid or
payable by
an indemnified party as a result of the losses, claims, damages or
liabilities
referred to in the first sentence of this subsection (d) shall be
deemed to
include any legal or other expenses reasonably incurred by such
indemnified
party in connection with investigating or defending against any
action or claim
which is the subject of this subsection (d) subject to the
limitations therein
provided under subsection (c). The indemnifying party shall pay
such expenses as
and when incurred, at the request of the indemnified party, and to
the extent
that the indemnifying party will be ultimately liable to pay such
expense. If
and to the extent any expenses so paid by the indemnifying party
are
subsequently determined to not be required to be borne by the
indemnifying party
hereunder, the indemnified party which received such payment shall
promptly
refund the amount so paid to the indemnifying party.
Notwithstanding the
foregoing, the contribution obligation of the Mortgage Loan Seller
or the
Company, as the case may be, under this Section 7(d) shall at all
times be such
that no Underwriter shall be responsible for any amount in excess
of the fees
received by such Underwriter in connection with the transaction
contemplated by
the Underwriting Agreement. 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 also guilty of such
fraudulent
misrepresentation.
(e) Without limiting the generality or applicability of any
other
provision of this Agreement, the Underwriters shall be third-party
beneficiaries
of the provisions of this Section 7.
(f) The indemnity and contribution agreements contained in this
Section 7 shall
