AMAC, SERIES 1999-2
Mortgage Pass-Through Certificates
UNDERWRITING AGREEMENT
--------------------------
March 19, 1999
▇▇▇▇▇▇ Brothers Inc.
Three World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ABN AMRO Incorporated
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
ABN AMRO Mortgage Corporation (the "Company"), a Delaware corporation, has
authorized the issuance and sale of Mortgage Pass-Through Certificates (the
"Certificates") evidencing interests in pools of mortgage loans (the "Mortgage
Loans"). The Certificates may be issued in various series, and, within each
series, in one or more classes, and, within each class, in one or more
sub-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") with respect to such Series among
the Company, as depositor, a servicer to be identified in the prospectus
supplement for each such Series (the "Servicer") and a trustee to be identified
in the prospectus supplement for each such Series (the "Trustee"). The
Certificates of each Series will evidence specified interests in separate pools
of Mortgage Loans (each a "Mortgage Pool"), and certain other property held in
trust with respect to such Series (each, a "Trust Fund").
The Certificates are more fully described in a Registration Statement which
the Company has furnished to you. Capitalized terms used but not defined herein
shall have the meanings given to them in the Pooling and Servicing Agreement.
The term "you" as used herein, unless the context otherwise requires, shall mean
you and such persons as are named as co-managers in the applicable Terms
Agreement (defined below).
Whenever the Company determines to make an offering of Certificates
pursuant to this Agreement through you or through an underwriting syndicate
managed by you it will enter into an agreement (the "Terms Agreement") providing
for the sale of such Certificates to, and the purchase
and offering thereof by, you and such other underwriters, if any, selected by
you as have authorized you to enter into such Terms Agreement on their behalf
(the "Underwriters," which term shall include you whether acting alone in the
sale of Certificates or as a member of an underwriting syndicate; as the context
requires, ▇▇▇▇▇▇ Brothers Inc. is sometimes referred to individually herein as
"▇▇▇▇▇▇ Brothers" and ABN AMRO Incorporated is sometimes referred to
individually herein as "AAI"). The Terms Agreement relating to each offering of
Certificates shall specify, among other things, the stated balance or balances
of Certificates to be issued, the price or prices at which the Certificates are
to be purchased by the Underwriters from the Company and the initial public
offering price or prices or the method by which the price or prices at which
such Certificates are to be sold will be determined. A Terms Agreement, which
shall be substantially in the form of Exhibit A hereto, may take the form of an
exchange of any standard form of written telecommunication between you and the
Company. Each such offering of Certificates which the Company elects to make
pursuant to this Agreement will be governed by this Agreement, as supplemented
by the applicable Terms Agreement, and this Agreement and such Terms Agreement
shall inure to the benefit of and be binding upon the Underwriters participating
in the offering of such Certificates.
SECTION 1. Representations and Warranties. (a) The Company represents and
warrants to you as of the date hereof, and to the Underwriters named in the
applicable Terms Agreement, all as of the date of such Terms Agreement (in each
case, the "Representation Date"), as follows (any representations and warranties
so made to the Underwriters named in an applicable Terms Agreement respecting
the Certificates being deemed to relate only to the Certificates described
therein):
(1) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-57027),
relating to the offering of Certificates from time to time in accordance
with Rule 415 under the Securities Act of 1933, as amended (the "1933
Act"), and has filed, and proposes to file, such amendments thereto as may
have been required to the date hereof and the same has become effective
under the 1933 Act and the rules of the Commission thereunder (the
"Regulations") and no stop order suspending the effectiveness of such
registration statement has been issued and no proceedings for that purpose
have been initiated or, to the Company's knowledge, threatened, by the
Commission. Such registration statement, including incorporated documents,
exhibits and financial statements, as amended at the time when it became
effective under the 1933 Act, and the prospectus relating to the sale of
Certificates by the Company constituting a part thereof, as from time to
time each is amended or supplemented pursuant to the 1933 Act or otherwise,
are referred to herein as the "Registration Statement" and the
"Prospectus," respectively; provided, however, that a supplement to the
Prospectus contemplated by Section 3(a) hereof (a "Prospectus Supplement")
shall be deemed to have supplemented the Prospectus only with respect to
the offering or offerings of Certificates to which it relates. Any
reference herein to the Registration Statement, a preliminary prospectus,
the Prospectus or the Prospectus Supplement shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the "1934 Act") on or before the date on which the Registration
Statement, as amended, became effective or
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the issue date of such preliminary prospectus, Prospectus, or Prospectus
Supplement, as the case may be; and any reference herein to the terms
"amend," "amendment" or supplement with respect to the Registration
Statement, any preliminary prospectus, the Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the filing of any
document under the 1934 Act after the date on which the Registration
Statement became effective or the issue date of any preliminary prospectus,
the Prospectus or the Prospectus Supplement, as the case may be, deemed to
be incorporated therein by reference. The Registration Statement and
Prospectus, at the time the Registration Statement became effective did,
and as of the applicable Representation Date will, conform in all material
respects to the requirements of the 1933 Act and the Regulations. The
Registration Statement, at the time it became effective did not, and as of
the applicable Representation Date and the applicable Closing Time (as
defined in Section 2 hereof) will not, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus, as amended or supplemented as of the applicable Representation
Date and the applicable Closing Time (as defined in Section 2 hereof), will
not contain any untrue statement of a material fact or omit 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;
provided, however, that the representations and warranties in this
subsection shall not apply to (i) statements in, or omissions from, the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by the
Underwriters expressly for use in the Registration Statement or Prospectus
or (ii) the ▇▇▇▇▇▇ Brothers Information (as defined in Section 10 hereof).
The conditions to the use by the Company of a registration statement on
Form S-3 under the 1933 Act, as set forth in the General Instructions to
Form S-3, have been satisfied with respect to the Registration Statement
and the Prospectus. There are no contracts or documents of the Company
which are required to be described in the Registration Statement or
Prospectus or filed as exhibits to the Registration Statement pursuant to
the 1933 Act or the Regulations which have not been so described or filed.
(2) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware with
corporate power and authority to enter into and perform its obligations
under this Agreement, the applicable Pooling and Servicing Agreement, and
with respect to a Series of Certificates, the Certificates and the
applicable Terms Agreement; and the Company is duly qualified or registered
as a foreign corporation to transact business and is in good standing in
each jurisdiction in which the ownership or lease of its properties or the
conduct of its business requires such qualification.
(3) The Company is not in violation of its certificate of
incorporation or by-laws or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
material contract, indenture, mortgage, loan agreement, note, lease or
other material instrument to which it is a party or by which it or its
properties may be bound, which default might result in any material adverse
change in the
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financial condition, earnings, affairs or business of the Company or which
might materially and adversely affect the properties or assets thereof or
the Company's ability to perform its obligations under this Agreement, the
applicable Terms Agreement or the applicable Pooling and Servicing
Agreement.
(4) The execution and delivery by the Company of this Agreement, the
applicable Terms Agreement and the applicable Pooling and Servicing
Agreement and the signing of the Registration Statement by the Company are
within the corporate power of the Company and have been duly authorized by
all necessary corporate action on the part of the Company; and with respect
to a Series of Certificates described in the applicable Terms Agreement,
neither the issuance and sale of the Certificates to the Underwriters, nor
the execution and delivery by the Company of this Agreement, such Terms
Agreement and the related Pooling and Servicing Agreement, nor the
consummation by the Company of the transactions herein or therein
contemplated, nor compliance by the Company with the provisions hereof or
thereof, will conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company other than as contemplated by a Pooling and
Servicing Agreement, pursuant to any material indenture, mortgage, contract
or other material instrument to which the Company is a party or by which it
is bound or to which the property or assets of the Company are subject, or
result in the violation of the provisions of the certificate of
incorporation or by-laws of the Company or any statute or any material
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its properties.
(5) This Agreement has been, and each applicable Terms Agreement when
executed and delivered as contemplated hereby and thereby will have been,
duly authorized, executed and delivered by the Company, and each
constitutes, or will constitute when so executed and delivered, a legal,
valid and binding instrument enforceable against the Company in accordance
with its terms (assuming due authorization, execution and delivery by the
other parties thereto), subject (a) to applicable bankruptcy, insolvency,
reorganization, moratorium, or other similar laws affecting creditors'
rights generally, (b) as to enforceability to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law) and (c) as to enforceability with respect to rights of indemnity
thereunder, to limitations of public policy under applicable securities
laws.
(6) Each applicable Pooling and Servicing Agreement when executed and
delivered as contemplated hereby and thereby will have been duly
authorized, executed and delivered by the Company, and will constitute when
so executed and delivered, a legal, valid and binding instrument
enforceable against the Company in accordance with its terms (assuming due
authorization, execution and delivery by the other parties thereto),
subject (a) to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and
(b) as to enforceability to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law); and as
of
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the Closing Time, the representations and warranties made by the Company in
the applicable Pooling and Servicing Agreement will be true and correct as
of the date made.
(7) As of the Closing Time (as defined in Section 2 hereof) with
respect to a Series of Certificates, the Certificates will have been duly
and validly authorized by the Company, and, when executed and authenticated
as specified in the related Pooling and Servicing Agreement, will be
validly issued and outstanding and will be entitled to the benefits of the
related Pooling and Servicing Agreement, and the Classes of Certificates so
designated in the related Prospectus Supplement will be "mortgage related
securities," as defined in Section 3(a)(41) of the ▇▇▇▇ ▇▇▇.
(8) There are no actions, proceedings or investigations now pending
against the Company or, to the knowledge of the Company, threatened against
the Company, before any court, administrative agency or other tribunal (i)
asserting the invalidity of this Agreement, the applicable Terms Agreement,
the applicable Pooling and Servicing Agreement or with respect to a Series
of Certificates, the Certificates, (ii) seeking to prevent the issuance of
such Certificates or the consummation of any of the transactions
contemplated by this Agreement, the applicable Terms Agreement or such
Pooling and Servicing Agreement, (iii) which would be likely to materially
and adversely affect the performance by the Company of its obligations
under, or which would if adversely determined materially and adversely
affect the validity or enforceability of, this Agreement, the applicable
Terms Agreement, such Pooling and Servicing Agreement or such Certificates
or (iv) seeking to adversely affect the federal income tax attributes of
such Certificates described in the Prospectus and the related Prospectus
Supplement.
(9) Any material taxes, fees and other governmental charges that are
assessed and due in connection with the execution, delivery and issuance of
this Agreement, the applicable Terms Agreement, the applicable Pooling and
Servicing Agreement and with respect to a Series of Certificates shall have
been paid at or prior to the Closing Time.
(10) No filing or registration with, notice to or consent, approval,
authorization, order or qualification of or with any court or governmental
agency or body is required for the issuance and sale of the Certificates or
the consummation by the Company of the transactions contemplated by this
Agreement, the applicable Pooling and Servicing Agreement or the applicable
Terms Agreement, except the registration under the 1933 Act of the
Certificates, and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Certificates
by the Underwriters.
(11) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies deemed by the Company to be reasonably
necessary to conduct the business now operated by it and as described in
the Prospectus and the Company has received no notice of proceedings
relating to the revocation or modification of any such license,
certificate,
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authority or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and adversely
affect the conduct of the business, operations, financial condition or
income of the Company.
(12) No litigation is pending or, to the Company's knowledge,
threatened, against the Company which would prohibit the Company's entering
into this Agreement or the applicable Pooling and Servicing Agreement.
(13) As of the Closing Time, with respect to a Series of Certificates
described in the relevant Terms Agreement evidencing interests in a
Mortgage Pool, the Trustee will have either good and marketable title, free
and clear of all prior liens, charges, pledges, mortgages, security
interests and encumbrances, to or a validly perfected first priority
security interest in the Mortgage Notes and the related Mortgages included
in the Trust Fund, with respect to (a) the Mortgage Notes, upon delivery
thereof to the Trustee and (b) the Mortgages, upon delivery to the Trustee
of instruments of assignment in recordable form assigning each Mortgage to
the Trustee and the recording of each such instrument of assignment in the
appropriate recording office in which the Mortgaged Property is located, or
if supported by an opinion of counsel, without recording.
(14) As of the Closing Time, with respect to a Series of Certificates,
the Mortgage Pool will have substantially the characteristics described in
the Prospectus Supplement and in the Form 8-K of the Company prepared with
respect to such Certificates, if the Mortgage Pool is described in such
Form 8-K.
(15) Neither the Company nor the Trust Fund created by the applicable
Pooling and Servicing Agreement will be subject to registration as an
"investment company" under the Investment Company Act of 1940, as amended
(the "1940 Act").
(16) The Certificates, the applicable Pooling and Servicing Agreement,
the applicable Terms Agreement and any primary insurance policies, mortgage
pool insurance policies, standard hazard insurance policies, special hazard
insurance policies, mortgagor bankruptcy insurance and alternate credit
enhancement related to the Certificates described in the relevant Terms
Agreement conform in all material respects to the descriptions thereof
contained in the Prospectus.
(17) As of the Closing Time, the Mortgage Loans will have been duly
and validly assigned and delivered by the Company to the Trustee under the
related Pooling and Servicing Agreement.
(18) As of the Closing Time, the representations and warranties of the
Company contained in the applicable Pooling and Servicing Agreement are
true and correct in all material respects.
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(b) Standard Federal Bancorporation, Inc. ("Standard Federal") represents
and warrants to you as of the date hereof, and to the Underwriters named in the
applicable Terms Agreement, all as of the date of such Terms Agreement (in each
case, the "Representation Date"), as follows (any representations and warranties
so made to the Underwriters named in an applicable Terms Agreement respecting
the Certificates being deemed to relate only to the Certificates described
therein):
(1) Standard Federal has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Michigan with corporate power and authority to enter into and perform its
obligations under this Agreement, and with respect to a Series of
Certificates, the applicable Terms Agreement; and Standard Federal is duly
qualified or registered as a foreign corporation to transact business and
is in good standing in each jurisdiction in which the ownership or lease of
its properties or the conduct of its business requires such qualification.
(2) Standard Federal is not in violation of its certificate of
incorporation or by-laws or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
material contract, indenture, mortgage, loan agreement, note, lease or
other material instrument to which it is a party or by which it or its
properties may be bound, which default might result in any material adverse
change in the financial condition, earnings, affairs or business of
Standard Federal or which might materially and adversely affect the
properties or assets thereof or Standard Federal's ability to perform its
obligations under this Agreement or the applicable Terms Agreement.
(3) The execution and delivery by Standard Federal of this Agreement
and the applicable Terms Agreement are within the corporate power of
Standard Federal and have been duly authorized by all necessary corporate
action on the part of Standard Federal; and with respect to a Series of
Certificates described in the applicable Terms Agreement, neither the
execution and delivery by Standard Federal of this Agreement and such Terms
Agreement, nor the consummation by Standard Federal of the transactions
herein or therein contemplated, nor compliance by Standard Federal with the
provisions hereof or thereof, will conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of Standard Federal, pursuant to
any material indenture, mortgage, contract or other material instrument to
which Standard Federal is a party or by which it is bound or to which the
property or assets of Standard Federal are subject, or result in the
violation of the provisions of the certificate of incorporation or by-laws
of Standard Federal or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over Standard
Federal or any of its properties.
(4) This Agreement has been, and each applicable Terms Agreement when
executed and delivered as contemplated hereby and thereby will have been,
duly authorized, executed and delivered by Standard Federal, and each
constitutes, or will constitute when
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so executed and delivered, a legal, valid and binding instrument
enforceable against Standard Federal in accordance with its terms (assuming
due authorization, execution and delivery by the other parties thereto),
subject (a) to applicable bankruptcy, insolvency, reorganization,
moratorium, or other similar laws affecting creditors' rights generally,
(b) as to enforceability to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law) and (c)
as to enforceability with respect to rights of indemnity thereunder, to
limitations of public policy under applicable securities laws.
(5) This Agreement when executed and delivered as contemplated hereby
and thereby will have been duly authorized, executed and delivered by
Standard Federal, and will constitute when so executed and delivered, a
legal, valid and binding instrument enforceable against Standard Federal in
accordance with its terms (assuming due authorization, execution and
delivery by the other parties thereto), subject (a) to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and (b) as to enforceability to
general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law).
(6) There are no actions, proceedings or investigations now pending
against Standard Federal or, to the knowledge of Standard Federal,
threatened against Standard Federal, before any court, administrative
agency or other tribunal (i) asserting the invalidity of this Agreement or
the applicable Terms Agreement, (ii) seeking to prevent the issuance of
such Certificates or the consummation of any of the transactions
contemplated by this Agreement or the applicable Terms Agreement, (iii)
which would be likely to materially and adversely affect the performance by
Standard Federal of its obligations under, or which would if adversely
determined materially and adversely affect the validity or enforceability
of, this Agreement, the applicable Terms Agreement, or such Certificates or
(iv) seeking to adversely affect the federal income tax attributes of such
Certificates described in the Prospectus and the related Prospectus
Supplement.
SECTION 2. Purchase and Sale. The commitment of each Underwriter to
purchase Certificates pursuant to any Terms Agreement shall be several and not
joint and shall be deemed to have been made on the basis of the representations
and warranties herein contained and shall be subject to the terms and conditions
herein set forth.
Payment of the purchase price for, and delivery of, any Certificates to be
purchased by the Underwriters shall be made at the offices of ▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇, Chicago, Illinois or at such other place as shall be agreed upon by you
and the Company, at such time or date as shall be agreed upon by you and the
Company in the Terms Agreement (each such time and date being referred to as a
"Closing Time"). Unless otherwise specified in the applicable Terms Agreement,
payment shall be made to the Company in immediately available Federal funds
wired to such bank as may be designated by the Company. Such Certificates shall
be in such denominations and registered in such names as you may request in
writing at least two business days prior to the applicable Closing Time.
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Such Certificates will be made available for examination and packaging by you no
later than 12:00 noon on the first business day prior to the applicable Closing
Time.
It is understood that the Underwriters intend to offer the Certificates for
sale to the public as set forth in the Prospectus Supplement.
SECTION 3. Covenants of the Company. The Company covenants with each of you
and each Underwriter participating in an offering of Certificates pursuant to a
Terms Agreement, with respect to such Certificates and such offering, as
follows:
(a) Immediately following the execution of each Terms Agreement, the
Company will prepare a Prospectus Supplement setting forth the principal
amount of Certificates covered thereby, the price or prices at which the
Certificates are to be purchased by the Underwriters, either the initial
public offering price or prices or the method by which the price or prices
by which the Certificates are to be sold will be determined, the selling
concession(s) and reallowance(s), if any, any delayed delivery
arrangements, and such other information as you and the Company deem
appropriate in connection with the offering of the Certificates. The
Company will furnish you a copy of the Prospectus Supplement for your
review prior to filing such Prospectus Supplement with the Commission.
Thereafter, the Company will promptly transmit copies of the Prospectus
Supplement to the Commission for filing pursuant to Rule 424 under the 1933
Act and will furnish to the Underwriters as many copies of the Prospectus
and such Prospectus Supplement as you shall reasonably request.
(b) If the delivery of a prospectus is required at any time in
connection with the offering or sale of the Certificates described in the
relevant Terms Agreement and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such period of time to amend or supplement the Prospectus
in order to comply with the 1933 Act, the Company agrees to notify you
promptly and upon your request so to amend or supplement the Prospectus and
to prepare and furnish without charge to each Underwriter and to any dealer
in securities as many copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which
will correct such statement or omission or effect such compliance.
(c) During any period in which the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Certificates described in the relevant Terms Agreement the Company will
give you reasonable notice of its intention to file any amendment to the
Registration Statement or any amendment or supplement to the Prospectus,
whether pursuant to the 1933 Act or otherwise, and will furnish you with
copies
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of any such amendment or supplement or other documents proposed to be filed
a reasonable time in advance of filing.
(d) During any period in which the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Certificates described in the relevant Terms Agreement the Company will
notify you promptly (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the
Commission for filing of any supplement to the Prospectus or any document
other than quarterly and annual reports to be filed pursuant to the 1934
Act, (iii) of the receipt of any comments from the Commission with respect
to the Registration Statement, the Prospectus or any Prospectus Supplement,
(iv) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Certificates for sale in any jurisdiction or the threat of any proceeding
for that purpose and (vi) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will use its
best efforts to prevent the issuance of any such stop order and, if any
stop order is issued, to obtain the lifting thereof as soon as possible.
(e) The Company agrees, so long as the Certificates shall be
outstanding, or until such time as you shall cease to maintain a secondary
market in the Certificates, whichever first occurs, to deliver to you the
annual statement as to compliance delivered to the Trustee pursuant to the
applicable Pooling and Servicing Agreement and the annual statement of a
firm of independent public accountants furnished to the Trustee pursuant to
the applicable Pooling and Servicing Agreement, as soon as such statements
are furnished to the Company.
(f) The Company will deliver to you as many conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein
and documents incorporated by reference in the Prospectus) as you may
reasonably request.
(g) The Company will endeavor, in cooperation with you, to qualify the
Certificates for offering and sale under the applicable securities laws of
such states and other jurisdictions of the United States as you may
reasonably designate, and will maintain or cause to be maintained such
qualifications in effect for as long as may be required for the
distribution of the Certificates, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction. The
Company will file or cause the filing of such statements and reports as may
be required by the laws of each jurisdiction in which the Certificates have
been qualified as above provided.
SECTION 4. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase Certificates pursuant to any Terms Agreement shall be
subject to the accuracy of the
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representations and warranties on the part of the Company herein contained, to
the accuracy of the statements of the Company's officers made pursuant hereto,
to the performance by the Company of all of its obligations hereunder and to the
following additional conditions precedent:
(a) At the applicable Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been initiated or threatened by the
Commission and the Prospectus Supplement shall have been filed or
transmitted for filing by means reasonably calculated to result in filing
with the Commission not later than the time required by Rule 424(b) under
the 1933 Act, (ii) the Certificates shall have received the rating or
ratings specified in the applicable Terms Agreement, and (iii) there shall
not have come to your attention any facts that would cause you to believe
that the Prospectus, together with the applicable Prospectus Supplement at
the time it was required to be delivered to a purchaser of the
Certificates, contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein,
in light of the circumstances existing at such time, not misleading. No
challenge by the Commission shall have been made to the accuracy or
adequacy of the Registration Statement and any request of the Commission
for inclusion of additional information in the Registration Statement or
the Prospectus or the Prospectus Supplement shall have been complied with
and the Company shall not have filed with the Commission any amendment or
supplement to the Registration Statement, the Prospectus or the Prospectus
Supplement without prior written notice to the Underwriters.
(b) At the applicable Closing Time you shall have received:
(1) The opinion, dated as of the applicable Closing Time, of
▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, in form and substance
satisfactory to such of you as may be named in the applicable Terms
Agreement, to the effect that:
(i) The Company is validly existing as a corporation in good
standing under the laws of the State of Delaware.
(ii) This Agreement and the applicable Terms Agreement have been
duly authorized, executed and delivered by the Company, and each is a
valid and binding obligation of the Company.
(iii) The applicable Pooling and Servicing Agreement has been
duly authorized, executed and delivered by the Company, and is a
legal, valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except that (A) such
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (B) the remedy of
specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
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(iv) The execution and delivery by the Company of this Agreement,
the applicable Terms Agreement and applicable Pooling and Servicing
Agreement and the signing of the Registration Statement by the Company
are within the corporate power of the Company and have been duly
authorized by all necessary corporate action on the part of the
Company; and neither the issue and sale of the Certificates nor the
consummation of the transactions contemplated herein or therein nor
the fulfillment of the terms hereof or thereof will, conflict with or
constitute a breach or violation of any of the terms or provisions of,
or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to, any contract, indenture, mortgage, or other
instrument to which the Company is a party or by which it may be bound
of which such counsel is aware, other than the lien or liens created
by the applicable Pooling and Servicing Agreement, nor will such
action result in any violation of the provisions of the certificate of
incorporation or by-laws of the Company or, any statute, rule or
regulation to which the Company is subject or by which it is bound or
any writ, injunction or decree of any court, governmental authority or
regulatory body to which it is subject or by which it is bound of
which such counsel is aware.
(v) The Certificates have been duly authorized and, when executed
and authenticated as specified in the related Pooling and Servicing
Agreement and delivered and paid for, will be validly issued, fully
paid, nonassessable and entitled to the benefits of the related
Pooling and Servicing Agreement.
(vi) Assuming strict compliance by the Underwriters with the
provisions of this Agreement, no filing or registration with or notice
to or consent, approval, authorization, order or qualification of or
with any court or governmental agency or body is required for the
issuance and sale of the Certificates or the consummation by the
Company of the transactions contemplated by this Agreement, the
applicable Pooling and Servicing Agreement or the applicable Terms
Agreement, except the registration under the 1933 Act of the
Certificates, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Certificates by the Underwriters.
(vii) Other than as may be set forth or contemplated in the
Prospectus, there is no action, suit or proceeding of which such
counsel is aware before or by any court or governmental agency or
body, domestic or foreign, now pending or, to such counsel's
knowledge, threatened against the Company which might result in any
material adverse change in the financial condition, earnings, affairs
or business of the Company, or which might materially and adversely
affect the properties or assets thereof or might materially and
adversely affect the performance by the Company of its obligations
under, or the validity or enforceability of, the Certificates, this
Agreement or the Pooling and Servicing Agreement, or which is required
to be disclosed in the Registration Statement.
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(viii) The Registration Statement is effective under the 1933 Act
and, to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission.
(ix) The applicable Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as
amended.
(x) The Registration Statement and the Prospectus (other than the
financial statements and other financial and statistical information
included therein, as to which no opinion need be rendered) as of their
respective effective or issue dates, complied as to form in all
material respects with the requirements of the 1933 Act and the
Regulations thereunder.
(xi) (A) The statements in the Prospectus under the headings
"ERISA Considerations" and "Certain Federal Income Tax Consequences"
and the statements in the applicable Prospectus Supplement under the
headings "Certain Federal Income Tax Consequences" and "ERISA
Considerations", to the extent that they describe matters of United
States federal income tax law or ERISA or legal conclusions with
respect thereto, have been prepared or reviewed by such counsel and
are accurate in all material respects and (B) the statements in the
Prospectus under the heading "Certain Legal Aspects of the Mortgage
Loans," to the extent they constitute matters of United States federal
law or legal conclusions with respect thereto, while not purporting to
discuss all possible consequences of investment in the Certificates,
are accurate in all material respects with respect to those
consequences or matters discussed therein.
(xii) The statements in the Prospectus and the applicable
Prospectus Supplement under the caption "Description of the
Certificates", insofar as they purport to summarize certain terms of
the Certificates and the applicable Pooling and Servicing Agreement,
constitute a fair summary of the provisions purported to be
summarized.
(xiii) The Trust Fund created by the applicable Pooling and
Servicing Agreement is not, and will not as a result of the offer and
sale of the Certificates as contemplated in the Prospectus and in this
Agreement become, required to be registered as an "investment company"
under the 1940 Act.
(xiv) The Classes of Certificates so designated in the Prospectus
Supplement will be "mortgage related securities", as defined in
ss.3(a)(41) of the 1934 Act, so long as the Certificates are rated in
one of the two highest grades by at least one nationally recognized
statistical rating organization.
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(xv) Assuming (a) ongoing compliance with all of the provisions
of the Pooling and Servicing Agreement and (b) the filing of
elections, in accordance with the Pooling and Servicing Agreement, to
be treated as "real estate mortgage investment conduits" ("REMICs")
pursuant to Section 860D of the Internal Revenue Code of 1986, as
amended (the "Code") for Federal income tax purposes, REMIC I and
REMIC II of the Trust Fund will qualify as REMICs as of the Closing
Date and will continue to qualify as REMICs for so long as there is
compliance with amendments after the date hereof to any applicable
provisions of the Code and applicable Treasury Regulations.
(xvi) Assuming that REMIC I and REMIC II of the Trust Fund are
treated as REMICs for Federal income tax purposes, neither of them nor
the Trust Fund will be subject as an entity to any tax imposed on
income, franchise or capital stock by the laws of Illinois.
Such counsel shall deliver to you such additional opinions addressing the
transfer by the Company to the Trustee of its right, title and interest in and
to the Mortgage Loans and other property included in the Trust Fund at the
Closing Time as may be required by each Rating Agency rating the Certificates.
Such counsel shall state that it has participated in conferences with
officers and other representatives of the Company, your counsel, representatives
of the independent accountants for the Company and you at which the contents of
the Registration Statement and the Prospectus and related matters were discussed
and, although such counsel is not passing upon and does not assume
responsibility for, the factual accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as
stated in paragraphs (xi) and (xii) above) and has made no independent check or
verification thereof for the purpose of rendering its opinion, on the basis of
the foregoing, nothing has come to their attention that leads such counsel to
believe that either the Registration Statement, at the time it became effective
and at the applicable Closing Time, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or that the Prospectus
contained or contains as of the date thereof and at the applicable Closing Time
any untrue statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that such counsel need
express no view with respect to the financial statements, schedules and other
financial and statistical data included in or incorporated by reference into the
Registration Statement, the Prospectus or the Prospectus Supplement.
Such counsel may state that their opinions relate only to laws of the State
of New York, the Federal laws of the United States and the General Corporation
Law of the State of Delaware.
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In rendering such opinions, such counsel may rely, as to matters of fact,
to the extent deemed proper and stated therein, on certificates of responsible
officers of the Company, the Trustee or public officials.
(2) The favorable opinion of counsel to the Trustee, dated as of
the applicable Closing Time, addressed to you and in form and scope
satisfactory to your counsel, to the effect that:
(i) The Trustee is a national association, duly organized and
validly existing in good standing under the laws of the United States,
and has all requisite power and authority to enter into the Pooling
and Servicing Agreement and to perform its obligations thereunder.
(ii) No action, suit, proceeding or investigation is now pending
or, to the knowledge of such counsel, threatened, against the Trustee
that could materially adversely affect the ability of the Trustee to
perform its obligations under the Pooling and Servicing Agreement.
(iii) The Trustee has duly authorized, executed and delivered the
applicable Pooling and Servicing Agreement and such Pooling and
Servicing Agreement will constitute the legal, valid and binding
obligation of the Trustee.
(iv) The Trustee has full power and authority to execute and
deliver the applicable Pooling and Servicing Agreement and to perform
its obligations thereunder.
(v) No consent, approval or authorization of, or registration,
declaration or filing with, any court or governmental agency or body
of the jurisdiction of its organization is required for the execution,
delivery or performance by the Trustee of the Pooling and Servicing
Agreement.
(vi) The Certificates have been duly and validly executed,
authenticated and delivered by the Trustee in accordance with the
Pooling and Servicing Agreement.
(vii) The performance by the Trustee of its duties pursuant to
the 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, any statute or regulation currently governing the
Trustee.
In rendering such opinion, such counsel may rely, as to matters of fact, to
the extent deemed proper and stated therein, on certificates of responsible
officers of the Trustee or public officials.
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(3) The favorable opinion of counsel to the Servicer, dated as of
the applicable Closing Time, addressed to you and in form and scope
satisfactory to your counsel, to the effect that:
(i) The Servicer is validly existing as a corporation in
good standing under the laws of the jurisdiction of its
incorporation.
(ii) The execution and delivery by the Servicer of the
applicable Pooling and Servicing Agreement is within the
corporate power of the Servicer and has been duly authorized by
all necessary corporate action on the part of the Servicer; and
to the knowledge of such counsel, neither the execution and
delivery of either such instrument, nor the consummation of the
transactions provided for therein, nor compliance with the
provisions thereof, will conflict with or constitute a breach of,
or default under, any contract, indenture, mortgage, loan
agreement, note, lease, deed of trust, or other instrument to
which the Servicer is a party or by which it may be bound, nor
will such action result in any violation of the provisions of the
charter or by-laws of the Servicer or to the knowledge of such
counsel, any law, administrative regulation or administrative or
court decree.
(iii) The applicable Pooling and Servicing Agreement has
been duly executed and delivered by the Servicer and constitutes
a legal, valid and binding obligation of the Servicer enforceable
against the Servicer in accordance with its terms, except that
such enforceability thereof may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and subject,
as to enforceability, to general principles of equity (regardless
whether enforcement is sought in a proceeding in equity or at
law).
(iv) The execution, delivery and performance by the Servicer
of the applicable Pooling and Servicing Agreement do not require
the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect
of any federal, state or other governmental agency or authority
which has not previously been effected.
(v) No action, suit or proceeding of which such counsel is
aware before or by any court or governmental agency or body,
domestic or foreign, is now pending or, to the knowledge of such
counsel, threatened, against the Servicer which might materially
and adversely affect the performance by the Servicer under, or
the validity or enforceability of the applicable Pooling and
Servicing Agreement.
(vi) The description of the Servicer in the applicable
Prospectus Supplement is true and correct in all material
respects.
(4) The favorable opinion or opinions, dated as of the applicable
Closing Time, of counsel for the Underwriters, acceptable to the
Underwriters.
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(5) The favorable opinion, dated the applicable Closing Time of
counsel for Standard Federal, acceptable to the Underwriters.
(c) At the applicable Closing Time you shall have received a
certificate of the President or a Vice President and the Treasurer or the
Secretary of each of the Company and Standard Federal, dated as of such
Closing Time, to the effect that the representations and warranties of the
Company or Standard Federal, as the case may be, contained in Section 1 are
true and correct with the same force and effect as though such Closing Time
were a Representation Date and that the Company or Standard Federal, as the
case may be, has complied with all agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Time.
(d) You shall have received from Ernst & Young with respect to certain
information relating to the Company and from Deloitte & Touche with respect
to certain other information in the Prospectus Supplement, or other
independent certified public accountants acceptable to you, letters, dated
as of the date of the applicable Terms Agreement and as of the applicable
Closing Time, delivered at such times, in the form and substance reasonably
satisfactory to you.
(e) At the applicable Closing Time, with respect to a Series of
Certificates, each of the representations and warranties of the Servicer
set forth in the related Pooling and Servicing Agreement will be true and
correct and you shall have received a Certificate of an Executive Vice
President, Senior Vice President or Vice President of the Servicer, dated
as of such Closing Time, to such effect.
(f) At the applicable Closing Time, with respect to a Series of
Certificates, the Certificates shall have received the certificate rating
or ratings specified in the related Terms Agreement.
(g) At the applicable Closing Time, counsel for the Underwriters shall
have been furnished with such other documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Certificates as herein contemplated and related
proceedings or in order to evidence the accuracy and completeness of any of
the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Certificates as herein
contemplated shall be reasonably satisfactory in form and substance to you
and counsel for the Underwriters.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled or, if any of the opinions and certificates
required hereby shall not be in all material respects reasonably satisfactory to
you and your counsel, the applicable Terms Agreement may be terminated by you by
notice to the Company at any time at or prior to the applicable Closing Time,
and such termination shall be without liability of any party to any other party
except as provided in Section 5.
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SECTION 5. Payment of Expenses. The Company covenants and agrees with the
Underwriters that the Company will pay or cause to be paid all expenses incident
to the performance of its obligations under this Agreement and all other fees
and expenses associated with the transactions referred to herein, including, but
not limited to, the fees and expenses of the Trustee, Rating Agencies, printer,
accounting firms, the fees and expenses relating to the establishment of the
Company's shelf registration statement and related ongoing fees and expenses;
provided, however, that the Underwriters covenant and agree to pay all of their
own costs and expenses, including underwriting and due diligence expenses, the
fees of their counsel, transfer taxes on resale of any of the Certificates by
them and any advertising expenses connected with any offers they may make.
SECTION 6. Indemnification.
(a) The Company and Standard Federal, jointly and severally,
will indemnify and hold harmless the Underwriters and each person, if
any, who controls the Underwriters within the meaning of the 1933 Act,
against any losses, claims, damages, expenses or liabilities, joint or
several, to which such Underwriter or such controlling person may
become subject, under the 1933 Act or otherwise, insofar as such
losses, claims, damages, expenses or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto) or the Prospectus (or any
amendment 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, in
light of the circumstances under which they were made, not misleading
in each case in respect of the relevant Certificates, and will
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by it in connection with investigating or defending
any such action or claim; provided, however, that the Company shall 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 an untrue statement
or alleged untrue statement or omission or alleged omission made in any
such document in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the
Underwriters expressly for use therein. This indemnity agreement will
be in addition to any liability which the Company may otherwise have.
(b) The Underwriters, severally and not jointly, will
indemnify and hold harmless the Company, each of its officers who
signed the Registration Statement, its directors, and any person
controlling the Company within the meaning of the 1933 Act against any
losses, claims, damages, expenses or liabilities to which the Company
or any such officer, director or controlling person may become subject,
under the 1933 Act or otherwise, insofar as such losses, claims,
damages, expenses or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment 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
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the statements therein, in light of the circumstances under which they
were made, not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of the Underwriters expressly for use therein and will reimburse
the Company or any such director, officer or controlling person for any
legal or other expenses reasonably incurred by the Company, any such
officer, director or controlling person in connection with
investigating or defending any such action or claim. This indemnity
agreement is in addition to any liability which the Underwriters may
otherwise have. The Company acknowledges that, unless otherwise set
forth in the applicable Terms Agreement, the statements set forth in
the second and third paragraphs up from the bottom of the cover page
(other than the first sentence of such second paragraph and the second
and fifth sentences of such third paragraph), and the first and fourth
paragraphs under the caption "Method of Distribution" (other than the
first and second sentences of such first paragraph) each as included in
the applicable Prospectus Supplement relating to a Series of
Certificates, together with the ▇▇▇▇▇▇ Brothers Information (as defined
in Section 10 hereof) other than any inaccuracies therein which are
caused by errors in the Pool Information relating to a Series of
Certificates constitute the only information furnished in writing by or
on behalf of the Underwriters expressly for use in the Registration
Statement relating to such Series of Certificates as originally filed
or in any amendment thereof, any related preliminary prospectus or the
Prospectus or in any amendment thereof or supplement thereto, as the
case may be.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an
indemnifying party under this Section, notify such indemnifying party
in writing of the commencement thereof; but the omission so to notify
the indemnifying party shall not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section. In
case any such action shall be brought against any indemnified party and
it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying
party); and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under
this Section for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than reasonable costs of
investigation. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any
such case and the fees and expenses of one such counsel shall be at the
expense of the indemnifying party if (i) the employment of such counsel
shall have been authorized in writing by the indemnifying party in
connection with the defense of such action, (ii) the indemnifying party
shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the
action, or (iii) the
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indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them and/or other indemnified
parties which are different from or additional to those available to
the indemnifying party (in which case the indemnifying party shall not
have the right to direct the defense of such action on behalf of the
indemnified party). Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any
settlement of any claim or action effected without its written consent;
provided, however, that such consent was not unreasonably withheld.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages, expenses or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of
such losses, claims, damages, expenses or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Certificates to
which such loss, claim, damage, expense or liability (or actions in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then
each indemnifying party shall contribute to such amount paid or payable
by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of
the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total
net proceeds from such offering (before deducting expenses) received by
the Company to the total underwriting discounts and commissions (or in
the case of a public offering in negotiated transactions, the
difference between the proceeds to the Company and the aggregate price
received from the public) received by such Underwriters. The relative
fault of the Company on the one hand and the Underwriters on the other
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 Company on the one hand or such Underwriters 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
6(d), if the losses, claims, damages or liabilities (or actions in
respect thereof) referred to in this Section 6(d) arise out of an
untrue statement or alleged untrue statement of a material fact
contained in any ▇▇▇▇▇▇ Brothers 8-K (as such term is defined in
Section 10 hereof) then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative fault of
the Company on the one hand and the Underwriters on the other
(determined in accordance with the preceding sentence) in connection
with the statements or omissions in such ▇▇▇▇▇▇ Brothers 8-K which
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other equitable
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considerations. The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro rata allocation even if the Underwriters
were treated as one entity for such purpose or by any other method of
allocation which does not take account of the equitable considerations
referred to in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigation or defending any such action or claim. Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required
to contribute any amount in excess of the amount by which the total
price at which the Certificates underwritten by it and distributed to
the public were sold to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters to contribute
pursuant to this subsection (d) are several in proportion to their
respective underwriting obligations with respect to such Certificates
and not joint.
SECTION 7. Representations, Warranties, and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any termination of this Agreement, or the applicable Terms Agreement or any
investigation made by or on behalf of the Underwriters or any controlling person
thereof, or by or on behalf of the Company, its officers or directors and shall
survive delivery of any Certificates to the Underwriters.
SECTION 8. Termination of Agreement. This Agreement may be terminated
for any reason at any time by either the Company or you upon the giving of
thirty days' notice of such termination to the other party hereto; provided,
however, that if a Terms Agreement has been entered into with respect to a
particular transaction, this Agreement and the Terms Agreement may not be
terminated in the manner set forth in this sentence with respect to such
particular transaction. You, as Representative of the Underwriters named in any
Terms Agreement may also terminate such Terms Agreement, immediately upon notice
to the Company, at any time at or prior to the applicable Closing Time (i) if
there has been, since the date of such Terms Agreement or since the respective
dates as of which information is given in the Registration Statement or
Prospectus, any change, or any development involving a prospective change, in or
affecting the condition, financial or otherwise, earnings, affairs or business
of the Company or Standard Federal, whether or not arising in the ordinary
course of business, which in your judgment would materially impair the market
for, or the investment quality of, the Certificates, or (ii) if there has
occurred any material outbreak or 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 your reasonable judgment, impracticable to market the
Certificates or enforce contracts for the sale of the Certificates, or (iii) if
trading in securities generally on either the New York Stock Exchange or the
American Stock Exchange has been
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suspended or materially limited or any setting of minimum prices shall have been
established or (iv) if a general moratorium of commercial banking activities has
been declared by either Federal or New York State authorities. In the event of
any such termination, (A) the covenants set forth in Section 3 with respect to
any offering of Certificates shall remain in effect so long as the Underwriters
own any such Certificates purchased from the Company pursuant to the applicable
Terms Agreement and (B) the covenant set forth in Section 3(c), the provisions
of Section 5, the indemnity agreement and contribution provisions set forth in
Section 6, and the provisions of Sections 7 and 12 shall remain in effect.
SECTION 9. Default by One or More of the Underwriters.
(a) If one or more of the Underwriters participating in an
offering of Certificates shall fail at the applicable Closing Time to
purchase the Certificates which it or they are obligated to purchase
hereunder and under the applicable Terms Agreement (the "Defaulted
Certificates"), then such of you as are named therein shall arrange
for you or another party or other parties to purchase the Defaulted
Certificates upon the terms contained herein. If within thirty-six
hours after such default by any Underwriter you do not arrange for the
purchase of such Defaulted Certificates, then the Company shall be
entitled to a further period of thirty-six hours within which to
procure another party or other parties reasonably satisfactory to you
to purchase such Defaulted Certificates on the terms contained herein.
In the event that, within the respective prescribed periods, you
notify the Company that you have so arranged for the purchase of such
Defaulted Certificates, or the Company notifies you that it has so
arranged for the purchase of such Defaulted Certificates, you or the
Company shall have the right to postpone the Closing Time for a period
of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement
or the Prospectus which in your opinion may thereby be made reasonably
necessary. The term "Underwriter" as used in this Agreement shall
include any person substituted under this Section with like effect as
if such person had originally been party to this Agreement with
respect to the Certificate.
(b) If, after giving effect to any arrangements for the purchase
of Defaulted Certificates of a defaulting Underwriter or Underwriters
by you and the Company as provided in subsection (a) above, the
aggregate principal amount of such Defaulted Certificates which
remains unpurchased does not exceed 10% of the aggregate principal
amount of the Certificates to be purchased pursuant to the applicable
Terms Agreement, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of
Certificates which such Underwriter agreed to purchase hereunder and,
in addition, to require each non-defaulting Underwriter to purchase
its pro rata share (based on the principal amount of Certificates
which such Underwriter agreed to purchase pursuant to the applicable
Terms Agreement) of the Defaulted Certificates of the defaulting
Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
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(c) If, after giving effect to any arrangements for the purchase
of the Defaulted Certificates of the defaulting Underwriter or
Underwriters by you and the Company as provided in subsection (a)
above, the aggregate principal amount of such Defaulted Certificates
which remains unpurchased exceeds 10% of the aggregate principal
amount of the Certificates to be purchased pursuant to the applicable
Terms Agreement, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting
Underwriters to purchase Defaulted Certificates of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 5 hereof and the
indemnity agreement and contribution provisions in Section 6 hereof;
but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
SECTION 10. Computational Materials and ABS Term Sheets.
(a) ▇▇▇▇▇▇ Brothers acknowledges that, subsequent to the date on
which the Registration Statement became effective and up to and
including the date on which the Prospectus Supplement and Prospectus
with respect to a Series of Certificates is first made available to
▇▇▇▇▇▇ Brothers, ▇▇▇▇▇▇ Brothers may furnish to various potential
investors in such Series of Certificates, in writing: (i)
"Computational Materials", as defined in a no-action letter (the
"▇▇▇▇▇▇ No-Action Letter") issued by the staff of the Commission on
May 20, 1994 to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, et al., as
modified by a no-action letter (the "First PSA No-Action Letter")
issued by the staff of the Commission on May 27, 1994 to the Public
Securities Association (the "PSA") and as further modified by a
no-action letter (the "Second PSA No-Action Letter", and together with
the ▇▇▇▇▇▇ No-Action Letter and the First PSA No-Action Letter, the
"No-Action Letters") issued by the staff of the Commission on February
17, 1995 to the PSA; (ii) "Structural Term Sheets" as defined in the
Second PSA No-Action Letter; and/or (iii) "Collateral Term Sheets" as
defined in the Second PSA No-Action Letter. AAI covenants and agrees
that it will not prepare any Computational Materials, Structural Term
Sheets or Collateral Term Sheets in connection with the offering of
Certificates pursuant to this Underwriting Agreement except as
provided for in the Terms Agreement which relates to an offering of
Certificates.
(b) In connection with each Series of Certificates, ▇▇▇▇▇▇
Brothers shall furnish to the Company (via hard copy), at least one
(1) business day prior to the time of filing of the Prospectus
pursuant to Rule 424 under the 1933 Act, all Computational Materials
used by ▇▇▇▇▇▇ Brothers and required to be filed with the Commission
in accordance with the No-Action Letters (such Computational
Materials, the "▇▇▇▇▇▇ Brothers Furnished Computational Materials").
(c) In connection with each Series of Certificates, ▇▇▇▇▇▇
Brothers shall furnish to the Company (via hard copy), at least one
(1) business day prior to the time of filing of the Prospectus
pursuant to Rule 424 under the Act, all Structural Term Sheets used by
▇▇▇▇▇▇ Brothers and required to be filed with the Commission in
accordance with the No-
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Action Letters (such Structural Term Sheets, the "▇▇▇▇▇▇ Brothers
Furnished Structural Term Sheets").
(d) In connection with each Series of Certificates, ▇▇▇▇▇▇
Brothers shall furnish to the Company (via hard copy), within one (1)
business day after the first use thereof, all Collateral Term Sheets
used by ▇▇▇▇▇▇ Brothers and required to be filed with the Commission
in accordance with the No-Action Letters (such Collateral Term Sheets,
the "▇▇▇▇▇▇ Brothers Furnished Collateral Term Sheets") and shall
advise the Company of the date on which each such Collateral Term
Sheet was first used.
(e) The Company shall prepare and file with the Commission, in
accordance with the No-Action Letters, one or more current reports on
Form 8-K (collectively, together with any amendments and supplements
thereto, the "▇▇▇▇▇▇ Brothers 8-K," and each a "▇▇▇▇▇▇ Brothers 8-K")
which shall include as one or more exhibits thereto the ▇▇▇▇▇▇
Brothers Furnished Computational Materials, the ▇▇▇▇▇▇ Brothers
Furnished Structural Term Sheets and the ▇▇▇▇▇▇ Brothers Furnished
Collateral Term Sheets. Notwithstanding any other provision in the
Underwriting Agreement, ▇▇▇▇▇▇ Brothers agrees to pay up to $500.00 to
the Company for the reasonable and customary costs and expenses of the
Company incurred in connection with the filing by the Company of any
Computational Materials with the Commission. In addition, in the event
that the hardship exemption granted by the Commission allowing for the
paper filing of Computational Materials is no longer available, ▇▇▇▇▇▇
Brothers will provide the Company with the Computational Materials in
an electronic format.
(f) ▇▇▇▇▇▇ Brothers shall cooperate with the Company and with
Deloitte & Touche in obtaining a letter, in form and substance
satisfactory to the Company and ▇▇▇▇▇▇ Brothers, of Deloitte & Touche
regarding the information in any ▇▇▇▇▇▇ Brothers 8-K consisting of
▇▇▇▇▇▇ Brothers Furnished Computational Materials and/or ▇▇▇▇▇▇
Brothers Furnished Structural Term Sheets.
(g) ▇▇▇▇▇▇ Brothers represents and warrants to, and covenants
with, the Company that the ▇▇▇▇▇▇ Brothers Information (defined below)
is not misleading and not inaccurate in any material respect and that
any Pool Information (defined below) contained in any ▇▇▇▇▇▇ Brothers
8-K which is not otherwise inaccurate in any material respect is not
presented in the ▇▇▇▇▇▇ Brothers 8-K in a way that is either
misleading or inaccurate in any material respect. ▇▇▇▇▇▇ Brothers
further covenants with the Company that if any Computational Materials
or ABS Term Sheets (as such term is defined in the Second PSA
No-Action Letter) contained in any ▇▇▇▇▇▇ Brothers 8-K are found to
include any information that is misleading or inaccurate in any
material respect, ▇▇▇▇▇▇ Brothers promptly shall inform the Company of
such finding, provide the Company with revised and/or corrected
Computational Materials or ABS Term Sheets, as the case may be, and
promptly prepare and deliver to the Company (in hard copy) for filing
with the Commission in accordance herewith, revised and/or corrected
Computational Materials or ABS Term Sheets, as the case may be.
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(h) ▇▇▇▇▇▇ Brothers covenants that all Computational Materials
and ABS Term Sheets used by it shall contain a legend substantially as
set forth below:
Collateral Term Sheets (other than the initial Collateral Term Sheet):
"THIS INFORMATION DOES NOT CONSTITUTE EITHER AN OFFER TO SELL OR
A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES REFERRED
TO HEREIN. OFFERS TO SELL AND SOLICITATIONS OF OFFERS TO BUY THE
SECURITIES ARE MADE ONLY BY, AND THIS INFORMATION MUST BE READ IN
CONJUNCTION WITH, THE FINAL PROSPECTUS SUPPLEMENT AND THE RELATED
PROSPECTUS OR, IF NOT REGISTERED UNDER THE SECURITIES LAWS, THE
FINAL OFFERING MEMORANDUM (THE "OFFERING DOCUMENT"). INFORMATION
CONTAINED HEREIN DOES NOT PURPORT TO BE COMPLETE AND IS SUBJECT
TO THE SAME QUALIFICATIONS AND ASSUMPTIONS, AND SHOULD BE
CONSIDERED BY INVESTORS ONLY IN THE LIGHT OF THE SAME WARNINGS,
LACK OF ASSURANCES AND REPRESENTATIONS AND OTHER PRECAUTIONARY
MATTERS, AS DISCLOSED IN THE OFFERING DOCUMENT. INFORMATION
REGARDING THE UNDERLYING ASSETS HAS BEEN PROVIDED BY THE ISSUER
OF THE SECURITIES OR AN AFFILIATE THEREOF AND HAS NOT BEEN
INDEPENDENTLY VERIFIED BY ▇▇▇▇▇▇ BROTHERS INC. OR ANY AFFILIATE.
THE ANALYSES CONTAINED HEREIN HAVE BEEN PREPARED AND DISSEMINATED
BY ▇▇▇▇▇▇ BROTHERS INC. AND THE CONTENTS AND ACCURACY THEREOF
HAVE NOT BEEN REVIEWED BY THE ISSUER. THIS INFORMATION WAS
PREPARED ON THE BASIS OF CERTAIN ASSUMPTIONS (INCLUDING, IN
CERTAIN CASES ASSUMPTIONS SPECIFIED BY THE RECIPIENT HEREOF)
REGARDING PAYMENTS, INTEREST RATES, WEIGHTED AVERAGE LIVES AND
WEIGHTED AVERAGE LOAN AGE, LOSS AND OTHER MATTERS, INCLUDING, BUT
NOT LIMITED TO, THE ASSUMPTIONS DESCRIBED IN THE OFFERING
DOCUMENT. ▇▇▇▇▇▇ BROTHERS INC., AND ANY OF ITS AFFILIATES, MAKE
NO REPRESENTATION OR WARRANTY AS TO THE ACTUAL RATE OR TIMING OF
PAYMENTS ON ANY OF THE UNDERLYING ASSETS OR THE PAYMENTS OR YIELD
ON THE SECURITIES. THIS INFORMATION SUPERSEDES ANY PRIOR VERSIONS
HEREOF AND WILL BE DEEMED TO BE SUPERSEDED BY ANY SUBSEQUENT
VERSIONS (INCLUDING, WITH RESPECT TO ANY DESCRIPTION OF THE
SECURITIES OR THE UNDERLYING ASSETS, THE INFORMATION CONTAINED IN
THE OFFERING DOCUMENT)."
(i) For purposes of this Agreement, the term "▇▇▇▇▇▇ Brothers
Information" means such portion, if any, of the information contained
in the ▇▇▇▇▇▇ Brothers 8-K that is not Pool Information. "Pool
Information" means the information furnished to the
-25-
Underwriters by the Company regarding the Mortgage Loans; provided,
however, that if any information that would otherwise constitute Pool
Information is presented in the ▇▇▇▇▇▇ Brothers 8-K in a way that is
either inaccurate or misleading in any material respect, such
information shall not be Pool Information.
(j) If the Underwriters do not provide any Computational
Materials or ABS Term Sheets to the Company pursuant to subsections
(b) - (d) above, the Underwriters shall be deemed to have represented,
as of the Closing Time, that they did not provide any prospective
investors with any information in written or electronic form in
connection with the offering of the Certificates that is required to
be filed with the Commission in accordance with the No-Action Letters,
and the Underwriters shall provide the Company with a certification to
that effect at the Closing Time.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed,
delivered, telexed, or telegraphed and confirmed or transmitted by any
standard form of telecommunication. Notices to ▇▇▇▇▇▇ Brothers shall be
directed to you at the address set forth on the first page hereof, to the
attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, with a copy to the General Counsel's
office and notices to AAI shall be directed to you at the address set forth
on the first page hereof, to the attention of Fixed Income
Department--▇▇▇▇▇ ▇▇▇▇▇▇▇; with a copy to Legal Department, ABN AMRO
Incorporated, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
attention: ▇▇▇▇ ▇▇▇▇▇. Notices to the Company or to Standard Federal shall
be directed to ABN AMRO Mortgage Corporation Securitization Department, c/o
Standard Federal Bank, ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇,
attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, with a copy to Legal Department, ABN AMRO North
America, ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
SECTION 12. Parties. This Agreement shall be binding upon and inure
solely to the benefit of you and the Company and to the extent provided in
Section 6 hereof, the officers and directors of the Company and each person
who controls the Company or any Underwriter and their respective heirs,
executors, administrators, successors and assigns and any Terms Agreement
shall be binding upon and inure solely to the benefit of the Company and
any Underwriter who becomes a party to a Terms Agreement and to the extent
provided in Section 6 hereof, the officers and directors of the Company and
each person who controls the Company or any Underwriter and their
respective heirs, executors, administrators, successors and assigns.
Nothing expressed or mentioned in this Agreement or a Terms Agreement is
intended or shall be construed to give any person, firm or corporation,
other than the parties hereto or thereto and their respective successors
and the controlling person and officers and directors referred to in
Section 6 hereof and their heirs any legal or equitable right, remedy or
claim under or with respect to this Agreement or a Terms Agreement or any
provision herein or therein contained.
SECTION 13. Governing Law and Time. This Agreement and each Terms
Agreement shall be governed by and construed in accordance with the laws of
the State of New York. Specified times of day refer to New York City time.
-26-
SECTION 14. Counterparts. This Agreement and any Terms Agreement may
be executed in any number of counterparts (which execution may take the
form of an exchange of any standard form of written telecommunication
between you and the Company), each of which shall constitute an original of
any party whose signature appears on it, and all of which shall together
constitute a single instrument.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
along with all counterparts will become a binding agreement between you and the
Company in accordance with its terms.
Very truly yours,
ABN AMRO MORTGAGE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
STANDARD FEDERAL BANCORPORATION, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
CONFIRMED AND ACCEPTED, as of
the date first above written:
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
ABN AMRO INCORPORATED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: First Vice President
EXHIBIT A
PASS-THROUGH CERTIFICATES
ABN AMRO MORTGAGE CORPORATION, DEPOSITOR
TERMS AGREEMENT
---------------
Dated: _________, ____
To: ABN AMRO MORTGAGE CORPORATION
Re: Underwriting Agreement, dated as of March 19, 1999 (the "Underwriting
Agreement")
Ladies and Gentlemen:
The undersigned (being herein called the "Underwriters"), understand that
ABN AMRO Mortgage Corporation, a Delaware corporation (the "Company"), proposes
to issue and sell $_________ original principal amount of Pass-Through
Certificates described below (the "Certificates"). The Certificates will be
issued under a Pooling and Servicing Agreement dated as of _______________ among
the Company, as depositor, _______________, as servicer and _____________ as
trustee. The terms of the Certificates are summarized below and are more fully
described in the Company's Prospectus supplement prepared with respect to the
Certificates.
All the provisions (including defined terms) contained in the Underwriting
Agreement are incorporated by reference herein in their entirety and shall be
deemed to be part of this Terms Agreement to the same extent as if such
provisions had been set forth in full herein. The Closing Time referred to in
Section 2 of the Underwriting Agreement shall be _______ a.m., [Chicago,
Illinois] time, on _____________. Subject to the terms and conditions set forth
or incorporated by reference herein, the Company hereby agrees to sell and the
Underwriters agree to purchase [, severally and not jointly,] the [respective]
original principal amount[s] of Certificates set forth opposite [its] [their]
name[s] in Exhibit I hereto at the purchase price set forth below.
The Underwriters will offer the Certificates for sale upon the terms and
conditions set forth in the Prospectus.
Subject to the terms and conditions set forth or incorporated by reference
herein, the Underwriters will pay for the Certificates at the time and place and
in the manner set forth in the Underwriting Agreement.
Series Designation: ____________
Terms of the Certificates and Underwriting Compensation:
-1-
Original
Principal Remittance Price to
Classes Amount* Rate Public
------- --------- ---------- ---------
**
* Approximate. Subject to permitted variance in each case of
plus or minus 5%.
** The Class __ Certificates are being offered by the Underwriter
from time to time in negotiated transactions or otherwise at
varying prices to be determined, in each case, at the time of
sale.
Certificate Rating:
_____ by [Rating Agency]
_____ by [Rating Agency]
REMIC Election:
The Company [does not] intend[s] to cause the Mortgage Pool
to be treated as a REMIC.
Credit Enhancement:
Cut-off Date:
The Cut-off Date is ___________, ____.
Remittance Date:
The ____ day of each month (or, if such ____ day is not a
business day, the business day immediately following) commencing __________,
____.
Purchase Price:
The purchase price payable by the Underwriter for the Class __
Certificates is ___% of the aggregate principal balance of the Class __
Certificates as of the Closing Date plus accrued interest at the per annum rate
of ___% from __________, ____ up to but not including the Closing Date.
-2-
Underwriting Commission:
Notwithstanding anything to the contrary in the Underwriting Agreement, no
additional underwriting commission shall be payable by the Company to the
Underwriter in connection with the purchase of the Certificates.
Information Provided by Underwriter:
Closing Date and Location:
__________ ____ at the [Chicago, Illinois] offices of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇.
-3-
Please confirm your agreement by having an authorized Officer sign a copy
of this Agreement in the space set forth below and returning a signed copy to
us.
▇▇▇▇▇▇ BROTHERS INC.
By:
-------------------------------
Name:
Title:
ABN AMRO INCORPORATED
By:
-------------------------------
Name:
Title:
ACCEPTED:
ABN AMRO MORTGAGE CORPORATION
By:
-------------------------------
Name:
Title:
STANDARD FEDERAL BANCORPORATION, INC.
By:
-------------------------------
Name:
Title:
-4-
Exhibit I
Original
Principal
Amount of
Name Certificates
---- ------------
Total ==============
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