EXECUTION
ABN AMRO MORTGAGE CORPORATION
Multi-Class Mortgage Pass-Through Certificates
UNDERWRITING AGREEMENT
February 23, 2003
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx, 00xx Xxxxx
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, Xxxxxxx, Sachs & Co. is sometimes referred to individually herein as
"Xxxxxxx Xxxxx" 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.
333-101550), 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
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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 Xxxxxxx Sachs 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
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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 1934
Act.
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(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 best of 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
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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) LaSalle Bank Corporation ("LaSalle") 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) LaSalle 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 LaSalle 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.
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(2) LaSalle 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 LaSalle or which might materially and adversely affect the properties
or assets thereof or LaSalle's ability to perform its obligations under
this Agreement or the applicable Terms Agreement.
(3) The execution and delivery by LaSalle of this Agreement and the
applicable Terms Agreement are within the corporate power of LaSalle and
have been duly authorized by all necessary corporate action on the part of
LaSalle; and with respect to a Series of Certificates described in the
applicable Terms Agreement, neither the execution and delivery by LaSalle
of this Agreement and such Terms Agreement, nor the consummation by
LaSalle of the transactions herein or therein contemplated, nor compliance
by LaSalle 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 LaSalle,
pursuant to any material indenture, mortgage, contract or other material
instrument to which LaSalle is a party or by which it is bound or to which
the property or assets of LaSalle are subject, or result in the violation
of the provisions of the certificate of incorporation or by-laws of
LaSalle or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over LaSalle 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 LaSalle, and each
constitutes, or will constitute when so executed and delivered, a legal,
valid and binding instrument enforceable against LaSalle 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 LaSalle, and will constitute when so executed and delivered, a legal,
valid and binding instrument enforceable against LaSalle 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).
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(6) There are no actions, proceedings or investigations now pending
against LaSalle or, to the knowledge of LaSalle, threatened against
LaSalle, 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 LaSalle 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 either Mayer,
Brown, Xxxx & Maw, Chicago, Illinois, Xxxxxxx Xxxxxxxx & Wood, New York, New
York 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. 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
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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
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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:
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(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.
-11-
(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
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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.
(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, each of the REMICs created pursuant to the Pooling and
Servicing Agreement will qualify as a REMIC as of the Closing Date
and will continue to qualify as a REMIC 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 each of the REMICs of the Trust Fund are
treated as REMICs for Federal income tax purposes, none 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
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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.
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(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
-15-
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 the applicable Closing Time
of counsel for LaSalle, 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 LaSalle, dated as of such Closing
Time, to the effect that the representations and warranties of the Company
or LaSalle, 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 LaSalle, 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.
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(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. Except as otherwise provided in the
applicable Terms Agreement, 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) Except as otherwise provided in the applicable Terms Agreement,
the Company, and LaSalle, 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
-17-
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 in the first paragraph and the first
sentence of the sixth paragraph 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 Xxxxxxx Xxxxx 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
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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 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
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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
Xxxxxxx Xxxxx 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
Xxxxxxx Sachs 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 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 0000 Xxx) 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 LaSalle,
whether or not arising in the
-20-
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
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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) Xxxxxxx Xxxxx 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 Xxxxxxx Sachs, Xxxxxxx
Xxxxx 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, Xxxxxxx Xxxxx
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 Xxxxxxx Sachs and
required to be filed with the Commission in accordance with the No-Action
Letters (such Computational Materials, the "Xxxxxxx Xxxxx Furnished
Computational Materials").
(c) In connection with each Series of Certificates, Xxxxxxx Sachs
shall furnish to the Company (via hard copy), at least one (1) business
day prior to the time of filing of the Prospectus
-22-
pursuant to Rule 424 under the Act, all Structural Term Sheets used by
Xxxxxxx Xxxxx and required to be filed with the Commission in accordance
with the No-Action Letters (such Structural Term Sheets, the "Xxxxxxx
Sachs Furnished Structural Term Sheets").
(d) In connection with each Series of Certificates, Xxxxxxx Xxxxx
shall furnish to the Company (via hard copy), within one (1) business day
after the first use thereof, all Collateral Term Sheets used by Xxxxxxx
Sachs and required to be filed with the Commission in accordance with the
No-Action Letters (such Collateral Term Sheets, the "Xxxxxxx Xxxxx
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 "Xxxxxxx Sachs 8-K," and each a "Xxxxxxx Xxxxx 8-K") which shall
include as one or more exhibits thereto the Xxxxxxx Sachs Furnished
Computational Materials, the Xxxxxxx Xxxxx Furnished Structural Term
Sheets and the Xxxxxxx Sachs Furnished Collateral Term Sheets.
Notwithstanding any other provision in the Underwriting Agreement, Xxxxxxx
Xxxxx 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, Xxxxxxx Sachs will provide the Company with the
Computational Materials in an electronic format.
(f) Xxxxxxx Xxxxx shall cooperate with the Company and with Deloitte
& Touche in obtaining a letter, in form and substance satisfactory to the
Company and Xxxxxxx Sachs, of Deloitte & Touche regarding the information
in any Xxxxxxx Xxxxx 8-K consisting of Xxxxxxx Sachs Furnished
Computational Materials and/or Xxxxxxx Xxxxx Furnished Structural Term
Sheets.
(g) Xxxxxxx Sachs represents and warrants to, and covenants with,
the Company that the Xxxxxxx Xxxxx Information (defined below) is not
misleading and not inaccurate in any material respect and that any Pool
Information (defined below) contained in any Xxxxxxx Sachs 8-K which is
not otherwise inaccurate in any material respect is not presented in the
Xxxxxxx Xxxxx 8-K in a way that is either misleading or inaccurate in any
material respect. Xxxxxxx Sachs 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 Xxxxxxx Xxxxx 8-K are
found to include any information that is misleading or inaccurate in any
material respect, Xxxxxxx Sachs 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.
-23-
(h) Xxxxxxx Xxxxx 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 XXXXXXX, SACHS &
CO. OR ANY AFFILIATE. THE ANALYSES CONTAINED HEREIN HAVE BEEN
PREPARED AND DISSEMINATED BY XXXXXXX, XXXXX & CO. 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. XXXXXXX, SACHS & CO., 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 "Xxxxxxx Xxxxx
Information" means such portion, if any, of the information contained in
the Xxxxxxx Sachs 8-K that is not Pool Information. "Pool Information"
means the information furnished to the Underwriters by the
-24-
Company regarding the Mortgage Loans; provided, however, that if any
information that would otherwise constitute Pool Information is presented
in the Xxxxxxx Xxxxx 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 Xxxxxxx Sachs shall be directed to you at the
address set forth on the first page hereof, to the attention of Xxxxx Xxxxxxxxx,
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
LaSalle 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, LaSalle
Bank Corporation 000 X. XxXxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx, Attention:
Xxxxxxx X. Xxxxx--Assistant 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
-25-
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]
-26-
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/ Xxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
LASALLE BANK CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
By: /s/ Xxxxx Xxxxxxxx
------------------------
Name: Xxxxx Xxxxxxxx
Title: Executive Vice President
CONFIRMED AND ACCEPTED, as of
the date first above written:
XXXXXXX, SACHS & CO.
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
ABN AMRO FINANCIAL SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: Group Senior 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 January 23, 2003 (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] [New York, New York] time, on _____________ and the location of the
closing shall be the [Chicago, Illinois] [New York, New York] 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.
Series Designation: ____________
-1-
Terms of the Certificates and Underwriting Compensation:
-------------------------------------------------------
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] [New York, New York] 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.
XXXXXXX, XXXXX & CO.
By:
-------------------------------
Name:
Title:
ABN AMRO FINANCIAL SERVICES, INC.
By:
-------------------------------
Name:
Title:
ACCEPTED:
ABN AMRO MORTGAGE CORPORATION
By:
----------------------------------------
Name:
Title:
LASALLE BANK CORPORATION
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
Exhibit I
Original
Principal
Amount of
Name Certificates
---- ------------
Total ==============
-5-
