Exhibit 1.1
Underwriting Agreement
(attached hereto)
EXHIBIT 1.1
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AMAC, SERIES 2001-7
Mortgage Pass-Through Certificates
UNDERWRITING AGREEMENT
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October 26, 2001
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABN AMRO Incorporated
000 Xxxx Xxxxxxx Xxxxxx
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
Incorporated is sometimes referred to individually herein as "AAI"). The Terms
Agreement relating to each offering of Certificates shall specify, among other
things, the stated balance or balances of Certificates to be issued, the price
or prices at which the Certificates are to be purchased by the Underwriters
from the Company and the initial public offering price or prices or the method
by which the price or prices at which such Certificates are to be sold will be
determined. A Terms Agreement, which shall be substantially in the form of
Exhibit A hereto, may take the form of an exchange of any standard form of
written telecommunication between you and the Company. Each such offering of
Certificates which the Company elects to make pursuant to this Agreement will
be governed by this Agreement, as supplemented by the applicable Terms
Agreement, and this Agreement and such Terms Agreement shall inure to the
benefit of and be binding upon the Underwriters participating in the offering
of such Certificates.
SECTION 1. Representations and Warranties. (a) The Company represents and
warrants to you as of the date hereof, and to the Underwriters named in the
applicable Terms Agreement, all as of the date of such Terms Agreement (in each
case, the "Representation Date"), as follows (any representations and warranties
so made to the Underwriters named in an applicable Terms Agreement respecting
the Certificates being deemed to relate only to the Certificates described
therein):
(1) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-67584),
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
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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
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.
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(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
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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 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
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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. ("ABN AMRO North America") 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) ABN AMRO North America 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 ABN AMRO North America is
duly qualified or registered as a foreign corporation to transact
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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) ABN AMRO North America 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 ABN
AMRO North America or which might materially and adversely affect the
properties or assets thereof or ABN AMRO North America's ability to perform
its obligations under this Agreement or the applicable Terms Agreement.
(3) The execution and delivery by ABN AMRO North America of this
Agreement and the applicable Terms Agreement are within the corporate power
of ABN AMRO North America and have been duly authorized by all necessary
corporate action on the part of ABN AMRO North America; and with respect to
a Series of Certificates described in the applicable Terms Agreement,
neither the execution and delivery by ABN AMRO North America of this
Agreement and such Terms Agreement, nor the consummation by ABN AMRO North
America of the transactions herein or therein contemplated, nor compliance
by ABN AMRO North America 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 ABN AMRO North America, pursuant to any material indenture, mortgage,
contract or other material instrument to which ABN AMRO North America is a
party or by which it is bound or to which the property or assets of ABN
AMRO North America are subject, or result in the violation of the
provisions of the certificate of incorporation or by-laws of ABN AMRO North
America or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over ABN AMRO North America
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 ABN AMRO North America, and each
constitutes, or will constitute when so executed and delivered, a legal,
valid and binding instrument enforceable against ABN AMRO North America 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 ABN
AMRO North America, and will constitute when so executed and delivered, a
legal, valid and binding
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instrument enforceable against ABN AMRO North America 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 ABN AMRO North America or, to the knowledge of ABN AMRO North
America, threatened against ABN AMRO North America, 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 ABN AMRO North America 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 Xxxxx, Xxxxx &
Xxxxx, Chicago, Illinois or at such other place as shall be agreed upon by you
and the Company, at such time or date as shall be agreed upon by you and the
Company in the Terms Agreement (each such time and date being referred to as a
"Closing Time"). Unless otherwise specified in the applicable Terms Agreement,
payment shall be made to the Company in immediately available Federal funds
wired to such bank as may be designated by the Company. Such Certificates shall
be in such denominations and registered in such names as you may request in
writing at least two business days prior to the applicable Closing Time. 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
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Underwriters, either the initial public offering price or prices or the
method by which the price or prices by which the Certificates are to be
sold will be determined, the selling concession(s) and reallowance(s), if
any, any delayed delivery arrangements, and such other information as you
and the Company deem appropriate in connection with the offering of the
Certificates. The Company will furnish you a copy of the Prospectus
Supplement for your review prior to filing such Prospectus Supplement
with the Commission. Thereafter, the Company will promptly transmit
copies of the Prospectus Supplement to the Commission for filing pursuant
to Rule 424 under the 1933 Act and will furnish to the Underwriters as
many copies of the Prospectus and such Prospectus Supplement as you shall
reasonably request.
(b) If the delivery of a prospectus is required at any time in
connection with the offering or sale of the Certificates described in the
relevant Terms Agreement and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such period of time to amend or supplement the Prospectus
in order to comply with the 1933 Act, the Company agrees to notify you
promptly and upon your request so to amend or supplement the Prospectus and
to prepare and furnish without charge to each Underwriter and to any dealer
in securities as many copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which
will correct such statement or omission or effect such compliance.
(c) During any period in which the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Certificates described in the relevant Terms Agreement the Company will
give you reasonable notice of its intention to file any amendment to the
Registration Statement or any amendment or supplement to the Prospectus,
whether pursuant to the 1933 Act or otherwise, and will furnish you with
copies 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
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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
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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
Xxxxx, Xxxxx & Xxxxx, counsel for the Company, in form and substance
satisfactory to such of you as may be named in the applicable Terms
Agreement, to the effect that:
(i) The Company is validly existing as a corporation in good
standing under the laws of the State of Delaware.
(ii) This Agreement and the applicable Terms Agreement have been
duly authorized, executed and delivered by the Company, and each is a
valid and binding obligation of the Company.
(iii) The applicable Pooling and Servicing Agreement has been
duly authorized, executed and delivered by the Company, and is a
legal, valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except that (A) such
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (B) the remedy of
specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(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
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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
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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 Funds 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
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 Illinois.
Such counsel shall deliver to you such additional opinions addressing the
transfer by the Company to the Trustee of its right, title and interest in and
to the Mortgage Loans and other property included in the Trust Fund at the
Closing Time as may be required by each Rating Agency rating the Certificates.
Such counsel shall state that it has participated in conferences with
officers and other representatives of the Company, your counsel, representatives
of the independent accountants for the Company and you at which the contents of
the Registration Statement and the Prospectus and related matters were discussed
and, although such counsel is not passing upon and does not assume
responsibility for, the factual accuracy, completeness or fairness of the
statements contained in the
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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 a national association, duly organized
and validly existing in good standing under the laws of the United
States, and has all requisite power and authority to enter into the
Pooling and Servicing Agreement and to perform its obligations
thereunder.
(ii) No action, suit, proceeding or investigation is now
pending, or to the knowledge of such counsel, threatened, against the
Trustee that could materially adversely affect the ability of the
Trustee to perform its obligations under the Pooling and Servicing
Agreement.
(iii) The Trustee has duly authorized, executed and
delivered the applicable Pooling and Servicing Agreement and such
Pooling and Servicing Agreement will constitute the legal, valid and
binding obligation of the Trustee.
(iv) The Trustee has full power and authority to execute and
deliver the applicable Pooling and Servicing Agreement and to perform
its obligations thereunder.
(v) No consent, approval or authorization of, or
registration, declaration or filing with, any court or governmental
agency or body of the
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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
-15-
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 the applicable Closing Time of
counsel for ABN AMRO North America, 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 ABN AMRO North America, dated as of
such Closing Time, to the effect that the representations and warranties of
the Company or ABN AMRO North America, 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 ABN
AMRO North America, 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
-16-
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 ABN AMRO North America, jointly and severally, will
indemnify and hold harmless the Underwriters and each person, if any, who
controls the Underwriters within the meaning of the 1933 Act, against any
losses, claims, damages, expenses or liabilities, joint or several, to
which such Underwriter or such controlling person may become subject, under
the 1933 Act or otherwise, insofar as such losses, claims, damages,
expenses or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto), or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading in each case in respect of the relevant Certificates, and will
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by it in connection with investigating or defending any
such action or claim; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any such document
in reliance upon and in conformity with written information furnished to
the
-17
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 second
and third paragraphs up from the bottom of the cover page (other than the
first sentence of such second paragraph and the second and fifth sentences
of such third paragraph), and the first and fourth paragraphs under the
caption "Method of Distribution" (other than the first and second sentences
of such first paragraph) each as included in the applicable Prospectus
Supplement relating to a Series of Certificates, together with the 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 party); and, after notice
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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
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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 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
-20-
otherwise, earnings, affairs or business of the Company or ABN AMRO North
America, 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,
-22-
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) 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. AAI covenants and agrees that it will not prepare any
Computational Materials, Structural Term Sheets or Collateral Term Sheets
in connection with the offering of Certificates pursuant to this
Underwriting Agreement except as provided for in the Terms Agreement which
relates to an offering of Certificates.
(b) In connection with each Series of Certificates, 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").
-22-
(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 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
-23-
herewith, revised and/or corrected Computational Materials or ABS Term
Sheets, as the case may be.
(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
-24-
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 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
[__________________], with a copy to the General Counsel's office and notices to
AAI shall be directed to you at the address set forth on the first page hereof,
to the attention of Fixed Income Department Xxxxx Xxxxxxx; with a copy to Legal
Department, ABN AMRO Incorporated, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, attention: Xxxx Xxxxx. Notices to the Company or to ABN AMRO North
America 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.
-25-
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]
-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/ Xxx X. Xxxxxxx
----------------------------
Name: Xxx X. Xxxxxxx
Title: Vice President
ABN AMRO NORTH AMERICA, INC.
By: /s/ Xxxxxx Xxxxx
----------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
ABN AMRO NORTH AMERICA, INC.
By: /s/ Xxxxxx Xxxxx
----------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
CONFIRMED AND ACCEPTED, as of
the date first above written:
XXXXXXX, SACHS & CO.
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director
ABN AMRO INCORPORATED
By:/s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: First Vice President
EXHIBIT A
PASS-THROUGH CERTIFICATES
ABN AMRO MORTGAGE CORPORATION, DEPOSITOR
TERMS AGREEMENT
Dated: _________, ____
To: ABN AMRO MORTGAGE CORPORATION
Re: Underwriting Agreement, dated as of October 26, 2001
(the "Underwriting Agreement")
Ladies and Gentlemen:
The undersigned (being herein called the "Underwriters"), understand that
ABN AMRO Mortgage Corporation, a Delaware corporation (the "Company"), proposes
to issue and sell $_________ original principal amount of Pass-Through
Certificates described below (the "Certificates"). The Certificates will be
issued under a Pooling and Servicing Agreement dated as of _______________ among
the Company, as depositor, _______________, as servicer and _____________ as
trustee. The terms of the Certificates are summarized below and are more fully
described in the Company's Prospectus supplement prepared with respect to the
Certificates.
All the provisions (including defined terms) contained in the Underwriting
Agreement are incorporated by reference herein in their entirety and shall be
deemed to be part of this Terms Agreement to the same extent as if such
provisions had been set forth in full herein. The Closing Time referred to in
Section 2 of the Underwriting Agreement shall be _______ a.m., [Chicago,
Illinois] time, on _____________. Subject to the terms and conditions set forth
or incorporated by reference herein, the Company hereby agrees to sell and the
Underwriters agree to purchase [, severally and not jointly,] the [respective]
original principal amount[s] of Certificates set forth opposite [its] [their]
name[s] in Exhibit I hereto at the purchase price set forth below.
The Underwriters will offer the Certificates for sale upon the terms and
conditions set forth in the Prospectus.
Subject to the terms and conditions set forth or incorporated by reference
herein, the Underwriters will pay for the Certificates at the time and place and
in the manner set forth in the Underwriting Agreement.
Series Designation: ____________
Terms of the Certificates and Underwriting Compensation:
-1-
Original
Principal Remittance Price to
Classes Amount* Rate Public
------- --------- ---------- ---------
**
* Approximate. Subject to permitted variance in each case of plus or
minus 5%.
** The Class __ Certificates are being offered by the Underwriter from
time to time in negotiated transactions or otherwise at varying prices
to be determined, in each case, at the time of sale.
Certificate Rating:
------------------
_____ by [Rating Agency]
_____ by [Rating Agency]
REMIC Election:
--------------
The Company [does not] intend[s] to cause the Mortgage Pool to be
treated as a REMIC.
Credit Enhancement:
-------------------
Cut-off Date:
-------------
The Cut-off Date is ___________, ____.
Remittance Date:
---------------
The ____ day of each month (or, if such ____ day is not a business
day, the business day immediately following) commencing __________, ____.
Purchase Price:
---------------
The purchase price payable by the Underwriter for the Class __
Certificates is ___% of the aggregate principal balance of the Class __
Certificates as of the Closing Date plus accrued interest at the per annum rate
of ___% from __________, ____ up to but not including the Closing Date.
Underwriting Commission:
------------------------
-2-
Notwithstanding anything to the contrary in the Underwriting
Agreement, no additional underwriting commission shall be payable by the Company
to the Underwriter in connection with the purchase of the Certificates.
Information Provided by Underwriter:
-----------------------------------
Closing Date and Location:
--------------------------
__________ ____ at the [Chicago, Illinois] offices of Xxxxx, Xxxxx
& Xxxxx.
-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 INCORPORATED
By:
--------------------------------
Name:
Title:
ACCEPTED:
ABN AMRO MORTGAGE CORPORATION
By:
--------------------------
Name:
Title:
ABN AMRO NORTH AMERICA, INC.
By:
-------------------------
Name:
Title:
Exhibit I
Original
Principal
Amount of
Name Certificates
---- ------------
Total ==============
-5-
