$______________________________
ABN AMRO MORTGAGE CORPORATION
MORTGAGE PASS-THROUGH
CERTIFICATES, CLASS A-__ and CLASS A-__
SERIES [199__]
FORM OF UNDERWRITING AGREEMENT
------------------------------
_____________, 199__
c/o __________________________
__________________________
__________________________
Dear Sirs:
1. ABN AMRO Mortgage Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell certificates entitled "Mortgage Pass-Through
Certificates, Class A-__, Series 199__-__" [Initial Pass-Through Rate (subject
to Adjustment)] (the "Class A-__ Certificates") and certificates entitled
"Mortgage Pass-Through Certificates, Class A-_, Series 199__-__" [Initial Pass-
Through Rate (subject to Adjustment)] (the "Class A-_ Certificates" and,
together with the Class A-__ Certificates, the "Class A Certificates") to you
[acting as representative of the] [as] underwriters (the "Underwriters"). The
Class A Certificates will evidence fractional undivided interests in a pool (the
"Pool") of mortgage loans (the "Mortgage Loans") and mortgage certificates (the
"Mortgage Certificates"). The Pool consists of Mortgage Loans with principal
balances aggregating approximately $___________ as of the close of business on
__________ 199__ (the "Cut-off Date") and the Class A Certificates in the
aggregate represent a ___% fractional undivided interest in the Pool equal to
approximately $___________ of the aggregate principal balance of the Mortgage
Loans as of the Cut-off Date. Simultaneously with the sale of the Class A
Certificates to the Underwriters, the Company will sell and transfer to the
Trustee referred to below the Mortgage Loans and other property related thereto
as described in the Pooling and Servicing Agreement (as defined herein)
(collectively, the "Trust Fund") [and shall sell and transfer to a separate
trust (the "Reserve Fund") the Initial Deposit and the right to certain
additional amounts to be contributed to the Reserve Fund pursuant to the terms
of the Pooling and Servicing Agreement.] The Underwriters intend to purchase
pursuant to the terms and
conditions hereof the Class [A] Certificates evidencing an interest in the Trust
Fund [and the Reserve Fund] and agree that the Class A Certificates do not
represent an interest in or debt obligation of the Company. Simultaneously with
the issuance and sale of the Class [A] Certificates as contemplated herein the
Company will issue certificates entitled "Mortgage Pass-Through Certificates,
Class B-_, Series 199__-__ [Initial Pass-Through Rate (subject to Adjustment)]
(the "Class B-_ Certificates") and certificates entitled "Mortgage Pass-Through
Certificates, Class B-_, Series 199__-__ [Initial Pass-Through Rate (subject to
Adjustment)] (the "Class B-__ Certificates" and, together with the Class B-_
Certificates, the "Class B Certificates" and the Class B Certificates, together
with the Class A Certificates, the "Certificates") evidencing an undivided
interest in the Pool of Mortgage Loans, payments in respect of which are, to the
extent specified in the Pooling and Servicing Agreement, subordinated to the
rights of the holders of the Class A Certificates. The Class B Certificates in
the aggregate represent a __% fractional undivided interest in the Pool equal to
approximately $_____________ of the aggregate principal balance of the Mortgage
Loans as of the Cut-off Date. The Certificates are to be issued pursuant to a
pooling and servicing agreement (the "Pooling and Servicing Agreement") to be
dated as of __________, 199__ between the Company, as Depositor, [LaSalle Home
Mortgage Corporation], as Master Servicer (the "Master Servicer") and, [LaSalle
National Bank], as Trustee (the "Trustee"), in denominations of $____________
and integral multiples of $_____________ in excess thereof [and, if necessary,
one odd denomination Class A Certificate]. Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement [and Amendment No.___] (No. 333-42127),
including a prospectus, relating to the Certificates and additional series of
mortgage pass-through certificates and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended (the
"Act"), has been filed with the Securities and Exchange Commission (the
"Commission") and delivered to each Underwriter and has become effective. Such
registration statement as amended [by Amendment No.___] thereto at the time
when it became effective is hereinafter referred to as the "Registration
Statement," and such prospectus constituting a part thereof, and as amended
through the date hereof, is hereinafter referred to as the "Shelf Prospectus";
the supplement to the Shelf Prospectus dated _______________ relating to the
offering of the Certificates is hereinafter referred to as the "Prospectus
Supplement"; the Shelf Prospectus as supplemented by the Prospectus Supplement
is hereinafter referred to as the "Prospectus"; and any supplement to the Shelf
Prospectus prepared with respect to the offering after the date hereof of other
series of certificates under the Registration Statement shall not be deemed to
have supplemented the Prospectus.
(b) When the Registration Statement and any amendments thereto became
effective, the Registration Statement and the Shelf Prospectus conformed in all
material respects to the requirements of the Act and the rules and regulations
of the Commission, and
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neither of such documents included or on the Closing Date referred to below will
include any untrue statement of a material fact or omitted or at any time
through the Closing Date will omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading,
except that the foregoing does not apply to statements or omissions in either of
such documents based upon written information furnished to the Company by you
specifically for use therein.
(c) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware with full corporate
power and authority to own its properties and conduct its business as presently
conducted by it, and to enter into and perform its obligations under this
Agreement, the Pooling and Servicing Agreement and the Certificates and is duly
qualified as a foreign corporation in good standing in all other jurisdictions
in which its activities as depositor of the Mortgage Loans requires such
qualification.
(d) This Agreement has been duly authorized, executed and delivered by
the Company, and the Pooling and Servicing Agreement will, at the Closing Date,
have been duly authorized, executed and delivered by the Company, and assuming
due authorization, execution and delivery of this Agreement by the Underwriters,
this Agreement constitutes and the Pooling and Servicing Agreement when duly
authorized, executed and delivered by the Trustee will constitute a valid and
legally binding agreement of the Company enforceable against the Company in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization or other similar laws of general applicability
relating to or affecting creditors' rights generally and to general equity
principles and except to the extent that the indemnification or waiver
provisions of this Agreement may be unenforceable under applicable law.
(e) The Certificates will conform in all material respects to the
descriptions thereof contained in the Registration Statement and the Prospectus
and the Certificates will be duly and validly authorized and, when duly and
validly executed by the Trustee and delivered in accordance with the Pooling and
Servicing Agreement and, in the case of the Class [A] Certificates, delivered to
and paid for by the Underwriters as provided herein, will be validly issued and
outstanding and entitled to the benefits of the Pooling and Servicing Agreement.
(f) The Class [A] Certificates will, when issued pursuant to the
Pooling and Servicing Agreement, be "mortgage related securities" as such term
is defined in Section 3(a) (41) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
[(g) Immediately upon transfer of the Initial Deposit to the Trustee
and execution of the Pooling and Servicing Agreement, the Reserve Fund will be
an express trust established by the Company in accordance with the Pooling and
Servicing Agreement and a UCC-1 financing statement in respect of the Initial
Deposit and the Reserve Fund naming the Company as debtor and the Trustee for
the benefit of the holders of the Certificates as secured party has been or on
the Closing Date will have been filed in the office of the Secretary of
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State of the State of [___________________] and, upon the purchase by you of the
Class [A] Certificates in the manner contemplated by this Agreement, the Trustee
for the benefit of the holders of the Certificates will on the date thereof have
a perfected security interest of first priority under the [________________]
Uniform Commercial Code ("UCC") in the Reserve Fund.]
(h) The issuance, delivery, sale, purchase or retention of the
Certificates by the Company, the consummation of any other of the transactions
herein contemplated, and the fulfillment of the terms of the Certificates, the
Pooling and Servicing Agreement or this Agreement, will not conflict with or
result in the breach of any of the terms or provisions of the charter or by-laws
of the Company, and the Company is not in breach or violation of or in default
(nor has an event occurred which with notice or lapse of time or both would
constitute a default) under the terms of (i) any indenture, mortgage, deed of
trust, loan agreement or other material agreement or instrument to which the
Company is a party or by which the Company or its property is bound or to which
any of the property or assets of the Company is subject, or (ii) any law,
decree, order, rule or regulation applicable to the Company of any court or
supervisory, regulatory, administrative or governmental agency, body or
authority, or arbitrator having jurisdiction over the Company or its properties,
the default in or the breach or violation of which would have a material adverse
effect on the Company or the ability of the Company to perform its obligations
under the Pooling and Servicing Agreement or the Certificates nor will the
consummation of any other of the transactions herein contemplated, nor the
fulfillment of the terms of the Certificates, the Pooling and Servicing
Agreement or this Agreement result in such a breach, violation or default which
would have such a materially adverse effect.
(i) No consent, approval, authorization, order, registration or
qualification of or with any United States or Illinois court or governmental
agency or body, including the Commission, is required for the solicitation of
offers to purchase Certificates and the issue and sale of the Certificates or
the consummation by the Company of the transactions contemplated by this
Agreement or the Pooling and Servicing Agreement, except such consents,
approvals, authorizations, orders, registrations or qualifications as may be
required under state securities or Blue Sky laws, or state banking laws (other
than those of the State of Illinois), in connection with the purchase of the
Class [A] Certificates by the Underwriters.
(j) Under generally accepted accounting principles, the Company will
report its transfer of the Mortgage Loans to the Trustee, on behalf of the
Certificateholders, pursuant hereto, as a sale of the interest in the Mortgage
Loans represented by the Class [A] Certificates. [The Company also will so
report the transfer in all financial statements and reports filed with
governmental entities.] For federal income tax purposes, the Company will treat
the transfer of the Mortgage Loans to the Trustee as a sale of the interest in
the Mortgage Loans represented by the Class [A] Certificates and an exchange of
the remaining interest in the Mortgage Loans for the Class B Certificates.
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(k) There are no actions, proceedings or investigations 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 Pooling and Servicing Agreement or the
Certificates, (ii) seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by this Agreement or the
Pooling and Servicing Agreement, or (iii) which might materially and adversely
affect the performance by the Company of its obligations under, or the validity
or enforceability of, this Agreement, the Pooling and Servicing Agreement or the
Certificates.
(l) Except as otherwise previously disclosed to you in writing, or
otherwise disclosed in public documents prepared by the Company, there has not
been any material adverse change or development involving a prospective material
adverse change in the business, financial condition, properties, prospects,
results of operations or assets of the Company [since ________________ 199__]
[other than as disclosed in the Prospectus].
[(m) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Company and constitutes valid and legally binding
agreement of the Company enforceable against Company in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles [or the rights of creditors of federal
savings bank deposit accounts of which are insured by the FSLIC (as defined
below)] and except to the extent that the indemnification or waiver provisions
of the Pooling and Servicing Agreement may be unenforceable under applicable
law).]
[(n) At the time of Delivery, any [Pool Insurance and any Special
Hazard Insurance Policy] described in the Prospectus will have been duly and
validly authorized, executed and delivered by, and will constitute legal, valid
and binding obligations of, [the Pool Insurer and the Special Hazard Insurer],
as the case may be.]
[(o) The [Trust Fund], as more fully described in the Pooling and
Servicing Agreement, will constitute a real estate mortgage investment conduit
("REMIC") within the meaning of Section 860D(a) of the Internal Revenue Code of
1986, as amended (the "Code") and the Regular Certificates will be treated for
federal income tax purposes as regular interests in a REMIC within the meaning
of Section 860G(a)(1) of the Code.]
(p) Any taxes, fees or other governmental charges that are assessed
and due in connection with the execution, delivery and issuance of this
Agreement, the Pooling and Servicing Agreement and the Class [A] Certificates
have been paid at or prior to the Closing Date.
(q) The Trust Fund is not required to be registered under the
provisions of the Investment Company Act of 1940, as amended.
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Any certificate signed by the Chairman of the Board, the President or a
Vice President or the Secretary of the Company and delivered to you or counsel
for the Underwriters pursuant to this Agreement shall be deemed a representation
and a warranty by the Company as to the matters covered thereby.
3. On the basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set forth, the Company
agrees to sell to the Underwriter[s], and the Underwriter[s] agree[s] [severally
and not jointly] to purchase from the Company, [all of the] [Class [A]
Certificates evidencing the respective principal balances of the Mortgage Loans
on the Cut-off Date set forth below opposite the names of the Underwriters] at
the applicable purchase prices of (a) such principal balances, plus (b) accrued
interest on the Class [A] Certificates at the initial Pass-Through Rate set
forth on the cover page of the Prospectus from _______________, 199__ to the
Closing Date.
Approximate
Principal
Amount of Purchase
Class [A] Price to
[Underwriters Certificates Underwriters Class
---------------- ------------ ------------ -----
_________________]
The Company will deliver such Class [A] Certificates to [you] [for the
accounts of the Underwriters] at the office of __________ or its agent in [New
York, New York] against payment of the purchase price by check or wire transfer
of immediately available Federal Funds to the Company, at 10:00 a.m., Chicago
time, on ____________ 199__, or at such other time and date not later than seven
full Business Days thereafter as you and the Company determine, such time and
date being herein referred to as the "Closing Date." The Certificates so to be
delivered will be in [definitive fully registered form] [definitive form
registered in the name of Cede & Co., as nominee of The Depositary Trust
Company, and] in such denominations and registered in such names as you request
(not less than two full Business Days prior to the Closing Date) [, and will be
made available for checking and packaging at the above office of
_____________________ or its agent at least 24 hours prior to the Closing Date].
4. After the execution of this Agreement the Underwriters propose to
offer the Certificates for sale to the public upon the terms and conditions as
set forth in the Prospectus.
5. The Company agrees with the several Underwriters that:
(a) Immediately following the execution of this Agreement, the Company
will prepare the Prospectus Supplement setting forth the principal amount of
Certificates
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covered thereby and the terms thereof not otherwise specified in Shelf
Prospectus, the initial public offering price at which the Certificates are to
be purchased by the Underwriter[s] from the Company, the selling concessions and
reallowance, if any, and such other information as the Underwriter[s] and the
Company deem appropriate in connection with the offering of the Certificates,
but the Company will not file any amendments to the Registration Statement as in
effect with respect to the Certificates, or any amendments or supplements to the
Prospectus, unless it shall first have delivered copies of such amendments or
supplements to the Underwriter[s]. The Company will immediately advise you by
telephone, confirming such advice in writing, (i) when notice is received from
the Commission that any post-effective amendment to the Registration Statement
has become or will become effective, (ii) a request by the Commission for
amending or supplementing or for additional information, and (iii) of any order
or communication suspending or preventing, or threatening to suspend or prevent,
the offer and sale of the Certificates or of any proceedings or examinations
that may lead to such an order or communication, whether by or of the Commission
or any authority administering any state securities or blue sky laws, as soon as
the Company is advised thereof, and will use its best efforts to prevent the
issuance of any such order or communication and to obtain as soon as possible
its lifting if issued.
(b) If, at any time when a prospectus relating to the Certificates is
required to be delivered under the Act, any event occurs 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 to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the Prospectus
to comply with the Act, the Company will promptly prepare and file with the
Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. In case the
Underwriters are required to deliver a prospectus nine months or more after the
effective date of the Registration Statement, the Company will, upon the
Underwriters' request, furnish such Underwriters with reasonable quantities of
prospectuses complying with Section 10(a)(3) of the Act. The Underwriters agree
to use the Prospectus, as amended and supplemented from time to time, in lieu of
the Prospectus theretofore in effect.
(c) The Company will furnish to you copies of the Registration
Statement (two of which will be signed and will include all exhibits), each
related preliminary prospectus, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in such
quantities as you reasonably request.
(d) The Company will cooperate, when and if requested by you, in the
qualification of the Certificates for sale and determination of their
eligibility for investment under the laws of such jurisdictions as you designate
and will continue such qualifications in effect so long as required for the
distribution of the Certificates; provided, however, that the Company shall not
be required to qualify to do business in any jurisdiction where it is not now so
qualified or to take any action which would subject it to general or unlimited
service of process in any jurisdiction where it is not now so subject.
7
(e) So long as the Certificates are outstanding, the Company will
furnish to you, upon request, (i) as soon as available, copies of the annual
independent public accountants' servicing report furnished to the Trustee
pursuant to Section 3.11 of the Pooling and Servicing Agreement and copies of
each report of the Company regarding the Certificates filed with the Commission
under the Exchange Act or mailed to the holders of the Certificates, and (ii)
from time to time, such other information concerning the Certificates as you may
reasonably request.
(f) Commencing on the date hereof and continuing through the Closing
Date, the Company will not, without your prior written consent, offer, sell or
contract to sell, or announce the offering of, in a public transaction, any
other series of Certificates to be issued under the Registration Statement
representing interests with similar terms to be sold [principally to
[institutional] [retail] investors] [for a period of __ [business] days].
6. The Company covenants and agrees with the Underwriters that the
Company will pay all expenses incident to the performance of its obligations
under this Agreement and will reimburse the Underwriters for any out-of-pocket
expenses (including fees and disbursements of their counsel) incurred by them in
connection with qualification of the Certificates for sale and determination of
their eligibility for investment under the laws of such jurisdictions as you may
reasonably designate and the printing of memoranda relating thereto, for any
fees charged by such investment rating agencies as are approved by the Company
for the rating of the Certificates and, to the extent previously agreed upon
with you, for expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to the
Underwriters.
7. The obligations of the several Underwriters to purchase and pay for
the Certificates will be subject to the accuracy in all material respects of the
representations and warranties on the part of the Company herein, to the
accuracy in all material respects of the statements of the Company's officers
made pursuant to the provisions hereof, to the performance by the Company in all
material respects of its obligations hereunder and to the following additional
conditions precedent:
(a) On or prior to the date hereof and on the Closing Date, the
Underwriters shall have received a letter, dated the date hereof and the Closing
Date, of [insert name of independent accountants], in form and substance
previously agreed upon by you.
(b) The Registration Statement shall have become effective and all
actions required to be taken and all filings required to be made by the Company
under the Act prior to the sale of the Certificates shall have been duly taken
or made; and prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted, or to the knowledge of
the Company or you, shall be contemplated by the Commission.
8
(c) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall have not occurred any of the following:
(i) any suspension or limitation of trading in securities generally on the New
York Stock Exchange, or any setting of minimum prices for trading on such
exchange; (ii) a general moratorium on commercial banking activities in New York
declared by either Federal, New York or Illinois authorities; or (iii) any
outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial national
or international calamity or emergency if, in the judgment of the Underwriters,
the effect of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with the completion of the sale
of and payment for the Certificates.
(d) The representations and warranties of the Company contained in
Section 2 hereof and, to the extent that they are not limited by their express
terms, those in Section 2.3 of the Pooling and Servicing Agreement shall be true
and correct on and as of the Closing Date with the same effect as though such
representations and warranties had been made on the Closing Date, and the
Company shall have delivered to you a certificate, dated the Closing Date, of
the President, a Vice President or a Secretary to the effect that each signer of
such certificate has carefully examined this Agreement, the Pooling and
Servicing Agreement and the Prospectus and that to the best of his knowledge:
(i) the representations and warranties of the Company in this Agreement and, to
the extent that they are not limited by their express terms, those in Section
2.03 of the Pooling and Servicing Agreement are true and correct in all material
respects at and as of the Closing Date, with the same effect as if made at the
Closing Date, (ii) the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at or
prior to the Closing Date, and (iii) nothing has come to his attention that
would lead him to believe that the Prospectus contains any untrue statement of
a material fact or omits to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
[(e) You shall have received from _____________, [in-house] counsel of
the Company [or any of its Affiliates], an opinion dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel to the
Underwriters to the effect that:
(i) The Company has been duly organized and is validly existing
and in good standing under the laws of the State of Delaware and has full
corporate power and authority to own its properties and conduct its
business as presently conducted by it and to enter into and perform its
obligations under this Agreement and the Certificates, and is duly
qualified to do business as a foreign corporation in all jurisdictions in
which its activities under the Pooling and Servicing Agreement requires
such qualification.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Company.
9
(iii) The Pooling and Servicing Agreement has been duly and
validly authorized, executed and delivered by the Company and assuming due
authorization, execution and delivery by the Trustee and the Master
Servicer, constitutes a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or other laws affecting enforcement of creditors' rights
generally or the rights of creditors of federal savings banks deposit
accounts of which are insured by the Federal Savings and Loan Insurance
Corporation (the "FSLIC") and except that no opinion need be expressed as
to the availability of equitable remedies whether brought at law or in
equity.
(iv) Neither the issuance and sale of the Certificates, nor the
fulfillment of the terms of the Certificates, the Pooling and Servicing
Agreement or this Agreement will result in a breach of the charter or by-
laws of the Company or result in a material breach or violation of any
statute, order or regulation or order known to such counsel presently
applicable to the Company.
(v) To the best knowledge of such counsel, after due inquiry,
neither the issuance, delivery, sale, purchase or retention of the
Certificates by the Company, nor the consummation of any other of the
transactions herein contemplated, nor the fulfillment of the terms of the
Certificates, the Pooling and Servicing Agreement or this Agreement, will
conflict with or result in the breach of any term or provision of the
charter or by-laws of the Company, and the Company is not in breach or
violation of or in default (nor has an event occurred which with notice or
lapse of time or both would constitute a default) under the terms of (i)
any indenture, contract, lease, mortgage, deed of trust, note, agreement or
other evidence of indebtedness or other agreement, obligation or instrument
to which the Company is a party or by which it or its property is bound or
affected, or (ii) any law, decree, order, rule or regulation applicable to
the Company of any court or supervisory, regulatory, administrative or
governmental agency, body or authority, or arbitrator having jurisdiction
over the Company or its properties, the default in or the breach or
violation of which would have a material adverse effect on the Company or
the ability of the Company to perform its obligations under the Pooling and
Servicing Agreement or the Certificates nor will the consummation of any
other of the transactions herein contemplated, nor the fulfillment of the
terms of the Certificates, the Pooling and Servicing Agreement or this
Agreement result in such a breach, violation or default which would have
such a materially adverse effect.
(vi) To the best knowledge of such counsel, after due inquiry,
there are no actions, proceedings or investigations pending against the
Company, or threatened against the Company, before any court,
administrative agency or other tribunal (A) asserting the invalidity of
this Agreement, the Pooling and Servicing Agreement or the Certificates,
(B) seeking to prevent the issuance of the Certificates or the consummation
of any of the transactions contemplated by this Agreement or the
10
Pooling and Servicing Agreement, or (C) which might materially and
adversely affect the performance by the Company of its obligations under,
or the validity or enforceability of, this Agreement, the Pooling and
Servicing Agreement or the Certificates.
[(f) You shall have received from __________, [in-house] counsel of
the Master Servicer [or any of its Affiliates], an opinion dated the Closing
Date and satisfactory in form and substance to the Underwriters and counsel to
the Underwriters to the effect that:
(i) The Master Servicer has been duly incorporated and is validly
existing in good standing under the laws of the jurisdiction of its
incorporation and is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction in which the
performance under its Pooling and Servicing Agreement would require such
qualification; the Master Servicer holds all material licenses,
certificates and permits from all governmental authorities necessary for
the conduct of its business as described in the Prospectus; and the Master
Servicer has the corporate power and authority to own its properties and
conduct its business as described in the Prospectus.
(ii) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Master Servicer and, assuming due
authorization, execution and delivery by the Trustee, constitutes a legal,
valid and binding instrument enforceable against the Master Servicer in
accordance with its terms (except as enforceability may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium or other
similar laws relating to or affecting creditors' rights generally from time
to time in effect or the rights of creditors of federal savings banks
deposit accounts of which are insured by the Federal Savings and Loan
Insurance Corporation (the "FSLIC") and except that no opinion need be
expressed as to the availability of equitable remedies whether brought at
law or in equity).
(g) You shall have received from Xxxxx, Xxxxx & Xxxxx, counsel for the
Company, an opinion, dated the Closing Date and in form satisfactory to the
Underwriters and counsel to the Underwriters, to the effect that:
(i) The Certificates have been duly and validly authorized by the
Company and, when the Certificates have been duly and validly executed and
delivered by the Trustee as specified in the Pooling and Servicing
Agreement and when the Class [A] Certificates have been delivered to and
paid for by the Underwriters pursuant to this Agreement, the Certificates
will be validly issued and outstanding and entitled to the benefits of the
Pooling and Servicing Agreement.
(ii) No consent, approval, authorization, order, registration or
qualification of or with any federal court or federal supervisory,
regulatory, administrative or governmental agency, body or authority is
required under federal law
11
in connection with the transactions contemplated in this Agreement, except
such as have been given or received or except as to any requirement under
the securities or blue sky laws of any jurisdiction in connection with the
underwriting of the Class [A] Certificates.
(iii) Assuming that the Class [A] Certificates shall be rated at
the time of issuance in one of the two highest rating categories by a
nationally recognized statistical rating organization, such Class [A]
Certificates at the time of issuance will be "mortgage related securities"
as such term is defined in Section 3(a)(41) of the Exchange Act.
(iv) To the best knowledge of such counsel, after due inquiry,
neither the execution and delivery of this Agreement or the Pooling and
Servicing Agreement, the issuance or sale of the Certificates nor the
transfer of the Mortgage Loans to the Trustee or the consummation of any
other of the transactions contemplated therein nor the fulfillment of the
terms thereof will violate any federal law, decree, order, rule or
regulation presently applicable to the Company of any court or supervisory,
regulatory, administrative or governmental agency, body or authority or
arbitrator having jurisdiction over the Company, or its properties, the
violation of which would have a material adverse effect on the Certificates
or the Company and its subsidiaries taken as a whole.
(v) The Registration Statement has become effective under the
Act, and, to the best knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the Registration Statement and the
Prospectus, and each amendment or supplement thereto relating to the
Certificates, as of their respective effective or issue dates, complied as
to form in all material respects with the requirements of the Act and the
rules and regulations under the Act.
(vi) The statements in the Shelf Prospectus as amended, modified
or supplemented in the Prospectus Supplement under the heading "Description
of the Certificates," insofar as they constitute summaries of certain
provisions of the Certificates and the Pooling and Servicing Agreement,
summarize fairly such provisions.
(vii) The statements in the Shelf Prospectus as amended, modified
or supplemented in the Prospectus Supplement under the heading "Certain
Legal Aspects of the Mortgage Loans," "ERISA Considerations" and "Certain
Federal Income Tax Consequences," insofar as they describe federal statutes
and regulations, have been prepared or reviewed by such counsel, and such
statements fairly summarize such statutes and regulations.
12
(viii) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as now in effect, and the
Trust Fund created by the Pooling and Servicing Agreement is not required
to be registered under the Investment Company Act of 1940, as amended.
[(ix) The [Trust Fund], as more fully described in the Pooling
and Servicing Agreement, will constitute a REMIC within the meaning of
Section 860D(a) of the Internal Revenue Code of 1986, as amended (the
"Code") and the Regular Certificates will be treated for federal income tax
purposes as regular interests in a REMIC within the meaning of Section
860G(a)(1) of the Code.]
(h) You shall have received from ______________________________,
counsel for the Underwriter[s] such opinion or opinions, dated the Closing Date
for such Certificates, with respect to the organization of the Company, the
validity of the Certificates, the Registration Statement, the Prospectus, the
Pooling and Servicing Agreement and other related matters as you may reasonably
require, and the Company shall have furnished to such counsel such documents as
they may reasonably request for the purpose of enabling them to pass upon such
matters.
[(i) You shall have received from Xxxxx, Xxxxx & Xxxxx a letter dated
the Closing Date stating that nothing has come to their attention which leads
them to believe that:
(a) the Registration Statement at the time it became effective
(except as to the financial statements and notes thereto and related
schedules and other financial and statistical data included therein,
as to which such counsel need make no comment) contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or (b) the Prospectus as of the date thereof
or as of the Closing Date (except as to the financial statements and
notes thereto and related schedules and other financial and
statistical data included therein, as to which such counsel need make
no comment) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in the light of the circumstance under which they were made,
not misleading.]
(j) You shall have received from Xxxxx, Xxxxx & Xxxxx, counsel for the
Company, an opinion, dated the Closing Date and satisfactory in form and
substance to the Underwriters and counsel to the Underwriters, to the effect
that the Trustee will have for the benefit of the Class [A] Certificateholders a
valid and perfected security interest in the [Initial Deposit and the Reserve
Fund] of the first priority under the UCC and no other action or filing need be
taken in order to perfect such interest, which may be satisfied pursuant to
paragraph (k) of this Section 7 below.
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[(k) To the extent Mortgage Pool information is to be supplied
pursuant to a Form 8-K, you shall have received on the Closing Date a letter
dated the Closing Date of [insert name of independent accountants], in the form
and substance previously agreed upon by you.]
[(l) The Reserve Fund shall have been established by the Company with
the Trustee and the Initial Deposit shall have been made therein as contemplated
by the Pooling and Servicing Agreement.]
(m) The Class [A] Certificates shall have been rated [[one of the two
highest rating categories] by Xxxxx'x Investors Service and [one of the two
highest rating categories] by Standard & Poor's Corporation].
(n) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be satisfactory in
form and substance to you and your counsel, and you and your counsel shall have
received such information, certificates and documents as you or they may
reasonably request.
(o) The Trustee shall have furnished the Underwriters and their
counsel an opinion of counsel for the Trustee dated the Closing Date, in a form
satisfactory to the Underwriters and their counsel, to the effect that:
(i) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Trustee and constitutes a valid and binding
obligation of the Trustee, enforceable in accordance with its terms,
subject to applicable bankruptcy, reorganization, insolvency, moratorium
and other laws affecting the rights of creditors generally and to general
principles of equity (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(ii) The Trustee has full power, authority and legal right to
execute and deliver and to perform and observe the provisions of the
Pooling and Servicing Agreement and to carry out the transactions
contemplated in the Pooling and Servicing Agreement.
(iii) To the best of such counsel's knowledge, there are no
actions, proceedings or investigations pending or threatened against or
affecting the Trustee before or by any court, arbitrator, administrative
agency or other governmental authority that, if adversely decided, would
materially and adversely affect the Trustee's ability to carry out the
transactions contemplated in the Pooling and Servicing Agreement.
(iv) No consent, approval or authorization of, or registration,
declaration or filing with, any court or government agency is required for
the
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execution, delivery or performance by the Trustee of the Pooling and
Servicing Agreement.
(v) The Certificates have been duly authenticated and delivered
by the Trustee.
8. (a) The Company will indemnify and hold harmless [each] [the]
Underwriter against any losses, claims, damages or liabilities, [joint or
several,] to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
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 not
misleading, and will reimburse [each] [such] Underwriter for any legal or other
expenses reasonably incurred by such Underwriter 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 the
Registration Statement, the Prospectus or any amendment or supplement thereto in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter specifically for use therein. The foregoing indemnity
with respect to any untrue statement contained in, or any omission from, the
Prospectus (or the Prospectus as amended or supplemented) shall not inure to the
benefit of any Underwriter from whom the person asserting any such loss,
liability, claim, damage or expense purchased any of the Certificates which are
the subject thereof if the Company delivers proof that such person did not
receive a copy of the Prospectus (or the Prospectus as amended or supplemented)
at or prior to the written confirmation of the sale of such Certificates to such
person.
(b) [Each] [The] Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages 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, the Prospectus or any amendment or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein 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 the Registration
Statement, the Prospectus or any amendment or supplement thereto in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter specifically for use therein; and will reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim.
15
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the 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 such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection 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.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages 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 the losses, claims, damages 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 or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, 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 bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company on the
one hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. 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
16
account of the equitable considerations referred to above 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
investigating 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 offered
to the public exceeds the amount of any damages which the Underwriters have
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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such Certificates and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act.
[9. (a) If any Underwriter shall default in its obligation to purchase
the Certificates which it has agreed to purchase hereunder, the non-defaulting
Underwriters may in their discretion arrange for themselves or another party or
other parties to purchase such Certificates on the terms contained herein. If
within thirty-six hours after such default by any Underwriter the non-defaulting
Underwriters do not arrange for the purchase of such Certificates, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to the non-defaulting
Underwriters to purchase such Certificates on such terms. In the event that,
within the respective prescribed period, the non-defaulting Underwriters notify
the Company that they have so arranged for the purchase of such Certificates, or
the Company notifies the non-defaulting Underwriters that it has so arranged for
the purchase of such Certificates, the non-defaulting Underwriters or the
Company shall have the right to postpone the Closing Date of such Certificates
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,
as amended or supplemented, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Underwriters may thereby be made 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 a party to this Agreement with
respect to such Certificates.]
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(b) If, after giving effect to any arrangements for the purchase of
the Certificates of a defaulting Underwriter or Underwriters by the non-
defaulting Underwriters and the Company as provided in subsection (a) above, the
aggregate principal amount of such Certificates which remains unpurchased does
not exceed [one-eleventh] of the aggregate principal amount of all the
Certificates being sold hereunder, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of
Certificates which such Underwriter agreed to purchase hereunder and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the principal amount of Certificates which such Underwriter
agreed to purchase hereunder) of Certificates of such 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 Certificates of a defaulting Underwriter or Underwriters by the non-
defaulting Underwriters and the Company as provided in subsection (a) above, the
aggregate principal amount of Certificates which remains unpurchased exceeds
[one-eleventh] of the aggregate principal amount of all the Certificates being
sold hereunder, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase
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 11 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements by the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, and will survive delivery of and payment for the Certificates.
11. If for any reason the purchase of the Certificates by the Underwriters
is not consummated, the Company shall remain responsible for the expenses to be
paid or reimbursed by it pursuant to Section 6, and the respective obligations
of the Company and the Underwriters pursuant to Section 8 shall remain in
effect. If the purchase of the Certificates by the Underwriters is not
consummated for any reason other than because of a default by the Underwriters
under the circumstances contemplated in [Section 9 or a failure to satisfy the
conditions to closing by virtue of Section 7(e)], the Company will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Class [A] Certificates.
12. All communications hereunder will be in writing and, if sent to the
Underwriters, will be mailed, delivered or telegraphed and confirmed to you, c/o
_______________________ New York, New York______, or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at ABN AMRO
Mortgage Corporation,
18
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000 Attention: Xxxxx Xxxxxxx
-- Director -- ABN AMRO Mortgage Operations.
13. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers and directors
and controlling persons referred to in Section 8, and no other person will have
any right or obligation hereunder.
14. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Illinois.
15. Any action under this Agreement taken by you jointly or by
_______________ will be binding upon all Underwriters.
16. The Company authorizes the Underwriters, all members of any selling
group which may be formed in connection with the distribution of the
Certificates and all dealers to whom any of the Certificates may be sold by the
Underwriters or by members of any selling group, to use in connection with the
sale of the Certificates, the Prospectus, the Pooling and Servicing Agreement
and the Certificates referred to in this Agreement.
17. The Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
19
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicate hereof, whereupon it will
become a binding agreement between the Company and the several Underwriters in
accordance with its terms.
Very truly yours,
ABN AMRO MORTGAGE CORPORATION
By:_______________________________
Name:_____________________________
Title:______________________________
Accepted as of the date hereof:
_________________________
[For itself and on behalf of
the other Underwriters
identified in ______________.]
By:_______________________
Name:_____________________
Title:______________________
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