ABN AMRO MORTGAGE CORPORATION, SERIES 2002-4
MULTI-CLASS MORTGAGE PASS-THROUGH CERTIFICATES
UNDERWRITING AGREEMENT
April 22, 2002
Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABN AMRO Financial Services, Inc.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
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, Bear, Xxxxxxx &
Co. Inc. is sometimes referred to individually herein as "Bear Xxxxxxx" and ABN
AMRO Financial Services, Inc. is
sometimes referred to individually herein as "AAFS"). 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. 333-73036),
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 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 Bear Xxxxxxx 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 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 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 0000 Xxx.
(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, 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.
(b) ABN AMRO North America, Inc. ("AANA") 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) AANA 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, and with respect to a Series of Certificates, the
applicable Terms Agreement; and AANA 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) AANA 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
AANA or which might materially and adversely affect the properties or
assets thereof or AANA's ability to perform its obligations under this
Agreement or the applicable Terms Agreement.
(3) The execution and delivery by AANA of this Agreement and the
applicable Terms Agreement are within the corporate power of AANA and have
been duly authorized by all necessary corporate action on the part of AANA;
and with respect to a Series of Certificates described in the applicable
Terms Agreement, neither the execution and delivery by AANA of this
Agreement and such Terms Agreement, nor the consummation by AANA of the
transactions herein or therein contemplated, nor compliance by AANA 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 AANA, pursuant to any material
indenture, mortgage, contract or other material instrument to which AANA is
a party or by which it is bound or to which the property or assets of AANA
are subject, or result in the violation of the provisions of the
certificate of incorporation or by-laws of AANA or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over AANA 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 AANA, and each constitutes, or
will constitute when so executed and delivered, a legal, valid and binding
instrument enforceable against AANA 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 AANA,
and will constitute when so executed and delivered, a legal, valid and
binding instrument enforceable against AANA 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 AANA or, to the knowledge of AANA, threatened against AANA, 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 AANA 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 such 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. 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 with 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 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 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, substantially 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.
(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. (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 "Federal Income Tax Consequences" and the
statements in the applicable Prospectus Supplement under the headings
"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
"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
section 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.
(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 the jurisdiction
indicated in the opinion.
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.
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 duly organized and validly existing in good
standing under the laws of the United States or under the laws of the
jurisdiction in which it is organized, 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.
(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.
(5) The favorable opinion, dated as of the applicable Closing Time, of
counsel for AANA, 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 AANA, dated as of such Closing Time, to the effect that the
representations and warranties of the
Company or AANA, 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 AANA, 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.
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 the 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 AANA, 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),
including any errors in the Bear Xxxxxxx Information (as defined in Section 10
hereof) to the extent caused by errors in the Pool Information, 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 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 first sentence of the third paragraph
up from the bottom of the cover page, and the first, second, third and sixth
paragraphs under the caption "Method of Distribution" (other than the second
sentence of such first paragraph) each as included in the applicable Prospectus
Supplement relating to a Series of Certificates, together with the Bear Xxxxxxx
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 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 each Underwriter separately
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 each Underwriter separately 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 each Underwriter separately 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 each Underwriter
separately. The relative fault of the Company on the one hand and each
Underwriter separately 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 each Underwriter
separately 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 Bear Xxxxxxx 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
each Underwriter separately on the other (determined in accordance with the
preceding sentence) in connection with the statements or omissions in such Bear
Xxxxxxx 8-K which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other equitable considerations. The
Company and each Underwriter agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation even if each Underwriter was 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 each Underwriter separately 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 0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of each Underwriter
to contribute pursuant to this subsection (d) are several in proportion to each
Underwriter's 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 AANA,
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 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.
(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) Bear Xxxxxxx 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 Bear
Xxxxxxx, Bear Xxxxxxx may furnish to various potential investors in such Series
of Certificates, in writing: (i) "Computational Materials", as defined in a
no-action letter (the "Xxxxxx No-Action Letter") issued by the staff of the
Commission on May 20, 1994 to Xxxxxx, Xxxxxxx 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 Xxxxxx 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. AAFS 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, Bear Xxxxxxx 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 Bear Xxxxxxx and required to be filed with
the Commission in accordance with the No-Action Letters (such Computational
Materials, the "Bear Xxxxxxx Furnished Computational Materials").
(c) In connection with each Series of Certificates, Bear Xxxxxxx 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 Bear Xxxxxxx and required to be filed with the
Commission in accordance with the No-Action Letters (such Structural Term
Sheets, the "Bear Xxxxxxx Furnished Structural Term Sheets").
(d) In connection with each Series of Certificates, Bear Xxxxxxx shall
furnish to the Company (via hard copy), within one (1) business day after the
first use thereof, all Collateral Term Sheets used by Bear Xxxxxxx and required
to be filed with the Commission in accordance with the No-Action Letters (such
Collateral Term Sheets, the "Bear Xxxxxxx 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 "Bear
Xxxxxxx 8-K," and each a "Bear Xxxxxxx 8-K") which shall include as one or more
exhibits thereto the Bear Xxxxxxx Furnished Computational Materials, the Bear
Xxxxxxx Furnished Structural Term Sheets and the Bear Xxxxxxx Furnished
Collateral Term Sheets. Notwithstanding any other provision in the Underwriting
Agreement, Bear Xxxxxxx 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, Bear Xxxxxxx agrees that in the event that the
hardship exemption granted by the Commission allowing for the paper filing of
Computational Materials is no longer available, Bear Xxxxxxx will provide the
Company with the Computational Materials in an electronic format.
(f) Bear Xxxxxxx shall cooperate with the Company and with Deloitte &
Touche in obtaining a letter, in form and substance satisfactory to the Company
and Bear Xxxxxxx, of Deloitte & Touche regarding the information in any Bear
Xxxxxxx 8-K consisting of Bear Xxxxxxx Furnished Computational Materials and/or
Bear Xxxxxxx Furnished Structural Term Sheets.
(g) Bear Xxxxxxx represents and warrants to, and covenants with, the
Company that (i) subject to the accuracy of the Pool Information (defined
below), the Bear Xxxxxxx Information (defined below) is not misleading and not
inaccurate in any material respect and (ii) that any Pool Information (defined
below) contained in any Bear Xxxxxxx 8-K which is not otherwise inaccurate in
any material respect is not presented in the Bear Xxxxxxx 8-K in a way that is
either misleading or inaccurate in any material respect. Bear Xxxxxxx 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 Bear Xxxxxxx 8-K are found to include any information that is misleading or
inaccurate in any material respect, Bear Xxxxxxx 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.
(h) Bear Xxxxxxx covenants that all ABS Term Sheets and Computational
Materials used by it shall have an attached statement which states that
investors should base their investment decisions on the data contained in the
Prospectus and Prospectus Supplement.
(i) Bear Xxxxxxx covenants that all Collateral Term Sheets used by it shall
contain a legend substantially as set forth below:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE
DESCRIPTION OF THE COLLATERAL CONTAINED IN THE PROSPECTUS
SUPPLEMENT."
(j) For purposes of this Agreement, the term "Bear Xxxxxxx Information"
means such portion, if any, of the information contained in the Bear Xxxxxxx 8-K
that is not Pool Information. "Pool Information" means the information furnished
to the Underwriters by the Company regarding the Mortgage Loans; provided,
however, that if any information that would otherwise constitute Pool
Information is presented in the Bear Xxxxxxx 8-K in a way that is either
inaccurate or misleading in any material respect, such information shall not be
Pool Information.
(k) 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 Bear Xxxxxxx shall be directed to you at the address set forth on the first
page hereof, to the attention of the Mortgage Department, with a copy to the
General Counsel's office and notices to AAFS shall be directed to you at the
address set forth on the first page hereof, to the attention of Fixed Income
Department Xxxxx Xxxxxxx; with a copy to Legal Department, ABN AMRO Financial
Services, Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention: Xxxx Xxxxx. Notices to the Company or to AANA shall be directed to
ABN AMRO Mortgage Corporation Securitization Department, c/o Standard Federal
Bank, 0000 Xxxx Xxx Xxxxxx Xxxx, Xxxx, Xxxxxxxx, Attention: Xxxxxxx Xxxxxxx,
with a copy to Legal Department, ABN AMRO North America, Inc., 000 X. XxXxxxx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx, Attention: Xxxx Xxxxxx-Associate General
Counsel.
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.
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]
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: ______________________________
Name:
Title:
ABN AMRO NORTH AMERICA, INC.
By: ______________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
BEAR, XXXXXXX & CO. INC.
By: ______________________________
Name:
Title:
ABN AMRO FINANCIAL SERVICES, INC.
By: ______________________________
Name:
Title:
EXHIBIT A
PASS-THROUGH CERTIFICATES
ABN AMRO MORTGAGE CORPORATION, DEPOSITOR
TERMS AGREEMENT
---------------
Dated: __________, 20__
To: ABN AMRO MORTGAGE CORPORATION
Re: Underwriting Agreement, dated as of April 22, 2002 (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., [New York, New York]
[Chicago, Illinois] time, on ____________ and the location of the closing shall
be the [New York, New York] [Chicago, Illinois] offices of ____________________.
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.
A-1
Series Designation: _____________________
TERMS OF THE CERTIFICATES AND UNDERWRITING COMPENSATION:
Original
Principal Remittance
Classes Amount* Rate
------- ------- ----
* Approximate. Subject to permitted variance in each case of plus or minus 5%.
CERTIFICATE RATING:
______ by [Rating Agency]
______ by [Rating Agency]
REMIC ELECTION:
The Company [does not] intend[s] to cause the Mortgage to be treated as a
REMIC.
CREDIT ENHANCEMENT:
CUT-OFF DATE:
The Cut-off Date is __________, 20, __.
REMITTANCE DATE:
The ____ day of each month (or, if such ____ day is not a business day, the
business day immediately following) commencing __________, 20__.
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 ____________, 20 up to but not including the Closing Date.
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.
A-2
INFORMATION PROVIDED BY UNDERWRITER:
CLOSING DATE AND LOCATION:
__________________20 ____ at the [New York, New York] [Chicago, Illinois]
offices of ___________________.
A-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.
BEAR, XXXXXXX & CO. INC.
By: __________________________
Name: ___________________
Title: __________________
ACCEPTED:
ABN AMRO MORTGAGE CORPORATION
By: _______________________________
Name:
Title:
ABN AMRO NORTH AMERICA, INC.
By: _________________________________
Name:
Title:
A-4
EXHIBIT I
Original
Principal
Amount of
Name Certificates
---- ------------
Total:
==========
E-1
