EXHIBIT 1.1
Execution Copy
ABN AMRO MORTGAGE CORPORATION,
RESECURITIZATION PASS-THROUGH CERTIFICATES,
SERIES 1999-RS1
UNDERWRITING AGREEMENT
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July 27, 1999
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx, 0xx 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 pass-through
certificates (the "Underlying Certificates"). 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 Agreement (each, a "Pooling Agreement") with respect to such
Series among the Company, as depositor 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 Underlying
Certificates (each a "Pool"), and certain other property held in trust with
respect to such Series (each, a "Trust Fund"). The Underlying Certificates
relating to each Series will be conveyed to the Company under a separate Pooled
Securities Purchase Agreement (each, a "Securities Purchase Agreement").
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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 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, Xxxxxxxxx, Xxxxxx
& Xxxxxxxx Securities Corporation is sometimes referred to individually herein
as "DLJ" and ABN AMRO Incorporated is sometimes referred to individually herein
as "AAI"). The Terms Agreement relating to each offering of Certificates shall
specify, among other things, the stated balance or balances of Certificates to
be issued, the price or prices at which the Certificates are to be purchased by
the Underwriters from the Company and the initial public offering price or
prices or the method by which the price or prices at which such Certificates are
to be sold will be determined. A Terms Agreement, which shall be substantially
in the form of Exhibit A hereto, may take the form of an exchange of any
standard form of written telecommunication between you and the Company. Each
such offering of Certificates which the Company elects to make pursuant to this
Agreement will be governed by this Agreement, as supplemented by the applicable
Terms Agreement, and this Agreement and such Terms Agreement shall inure to the
benefit of and be binding upon the Underwriters participating in the offering of
such Certificates.
SECTION 1. Representations and Warranties. (a) The Company represents
and warrants to you as of the date hereof, and to the Underwriters named in the
applicable Terms Agreement, all as of the date of such Terms Agreement (in each
case, the "Representation Date"), as follows (any representations and warranties
so made to the Underwriters named in an applicable Terms Agreement respecting
the Certificates being deemed to relate only to the Certificates described
therein):
(1) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-57027), relating to the offering of Certificates from time to time
in accordance with Rule 415 under the Securities Act of 1933, as
amended (the "1933 Act"), and has filed, and proposes to file, such
amendments thereto as may have been required to the date hereof and the
same has become effective under the 1933 Act and the rules of the
Commission thereunder (the "Regulations") and no stop order suspending
the effectiveness of such registration statement has been issued and no
proceedings for that purpose have been initiated or, to
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the Company's knowledge, threatened, by the Commission. Such
registration statement, including incorporated documents, exhibits and
financial statements, as amended at the time when it became effective
under the 1933 Act, and the prospectus relating to the sale of
Certificates by the Company constituting a part thereof, as from time
to time each is amended or supplemented pursuant to the 1933 Act or
otherwise, are referred to herein as the "Registration Statement" and
the "Prospectus," respectively; provided, however, that a supplement to
the Prospectus contemplated by Section 3(a) hereof (a "Prospectus
Supplement") shall be deemed to have supplemented the Prospectus only
with respect to the offering or offerings of Certificates to which it
relates. Any reference herein to the Registration Statement, a
preliminary prospectus, the Prospectus or the Prospectus Supplement
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed
under the Securities Exchange Act of 1934, as amended (the "1934 Act")
on or before the date on which the Registration Statement, as amended,
became effective or the issue date of such preliminary prospectus,
Prospectus, or Prospectus Supplement, as the case may be; and any
reference herein to the terms "amend," "amendment" or supplement with
respect to the Registration Statement, any preliminary prospectus, the
Prospectus or the Prospectus Supplement shall be deemed to refer to and
include the filing of any document under the 1934 Act after the date on
which the Registration Statement became effective or the issue date of
any preliminary prospectus, the Prospectus or the Prospectus
Supplement, as the case may be, deemed to be incorporated therein by
reference. The Registration Statement and Prospectus, at the time the
Registration Statement became effective did, and as of the applicable
Representation Date will, conform in all material respects to the
requirements of the 1933 Act and the Regulations and any further
supplements to the Prospectus will, when they are filed with the
Commission, conform in all 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 DLJ 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
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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 documents incorporated by reference in the Registration
Statement and the Prospectus (which, for clarification, only includes
documents filed pursuant to registration statement No. 333-57027), when
they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the
1933 Act or the 1934 Act, as applicable, and the rules and regulations
of the Commission thereunder, and none of such documents 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, and any further document so filed and
incorporated by reference in the Registration Statement and the
Prospectus (which, for clarification, only includes documents filed
pursuant to registration statement No. 333-57027), when such documents
become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the 1933
Act or the 1934 Act, as applicable, and the rules and regulations of
the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the
representation or warranty in this subsection shall not apply to (i)
the DLJ Information (as defined in Section 10 hereof) and (ii) the
information contained in or omitted from such documents in reliance
upon and in conformity with written information furnished to the
Company in writing by the Underwriters expressly for use therein.
(3) 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 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.
(4) 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
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to perform its obligations under the applicable Securities Purchase
Agreement, this Agreement, the applicable Terms Agreement or the
applicable Pooling Agreement.
(5) The execution and delivery by the Company of the applicable
Securities Purchase Agreement, this Agreement, the applicable Terms
Agreement and the applicable Pooling 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 the applicable Securities
Purchase Agreement, this Agreement, such Terms Agreement and the
related Pooling 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 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.
(6) 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.
(7) Each applicable Securities Purchase Agreement and Pooling
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
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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 Agreement will be true and correct as of the date made.
(8) 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 Agreement, will be
validly issued and outstanding and will be entitled to the benefits of
the related Pooling Agreement, and the Classes of Certificates so
designated in the related Prospectus Supplement, if any, will be
"mortgage related securities," as defined in Section 3(a)(41) of the
1934 Act.
(9) 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 the applicable
Securities Purchase Agreement, this Agreement, the applicable Terms
Agreement, the applicable Pooling 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 the applicable Securities Purchase Agreement, this
Agreement, the applicable Terms Agreement or such Pooling 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, the applicable Securities Purchase Agreement, this
Agreement, the applicable Terms Agreement, such Pooling 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.
(10) Any material taxes, fees and other governmental charges that
are assessed and due in connection with the execution, delivery and
issuance of the applicable Securities Purchase Agreement, this
Agreement, the applicable Terms Agreement, the applicable Pooling
Agreement and with respect to a Series of Certificates shall have been
paid at or prior to the Closing Time.
(11) 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 the applicable Securities Purchase Agreement, this
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Agreement, the applicable Pooling 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.
(12) 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.
(13) 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 the applicable Securities Purchase Agreement,
this Agreement or the applicable Pooling Agreement.
(14) As of the Closing Time, with respect to a Series of
Certificates described in the relevant Terms Agreement evidencing
interests in a Pool, the Company has conveyed all of its right, title
and interest in and to the Underlying Certificate included in the Trust
Fund, free and clear of all prior liens, charges, pledges, mortgages,
security interests and encumbrances of anyone claiming by, through or
under the Company.
(15) As of the Closing Time, with respect to a Series of
Certificates, the 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 Pool is
described in such Form 8-K.
(16) Neither the Company nor the Trust Fund created by the
applicable Pooling Agreement will be subject to registration as an
"investment company" under the Investment Company Act of 1940, as
amended (the "1940 Act").
(17) The Certificates, the applicable Pooling Agreement, the
applicable Terms Agreement and any 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.
(18) 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 Agreement.
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(19) As of the Closing Time, the representations and warranties of
the Company contained in the applicable Pooling Agreement are true and
correct in all material respects.
(20) The Classes of Certificates indicated in the applicable Terms
Agreement has been duly authorized for listing, subject to official
notice of issuance, on the New York Stock Exchange ("NYSE").
(b) ABN AMRO North America, Inc. ("AANA") represents and warrants to
you as of the date hereof, and to the Underwriters named in the applicable Terms
Agreement, all as of the date of such Terms Agreement (in each case, the
"Representation Date"), as follows (any representations and warranties so made
to the Underwriters named in an applicable Terms Agreement respecting the
Certificates being deemed to relate only to the Certificates described therein):
(1) AANA has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware
with corporate power and authority to enter into and perform its
obligations under this Agreement, and with respect to a Series of
Certificates, the applicable Terms Agreement; and AANA is duly
qualified or registered as a foreign corporation to transact business
and is in good standing in each jurisdiction in which the ownership or
lease of its properties or the conduct of its business requires such
qualification.
(2) AANA is not in violation of its certificate of incorporation
or by-laws or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
material contract, indenture, mortgage, loan agreement, note, lease or
other material instrument to which it is a party or by which it or its
properties may be bound, which default might result in any material
adverse change in the financial condition, earnings, affairs or
business of AANA or which might materially and adversely affect the
properties or assets thereof or AANA's ability to perform its
obligations under this Agreement or the applicable Terms Agreement.
(3) The execution and delivery by AANA of this Agreement and the
applicable Terms Agreement are within the corporate power of AANA and
have been duly authorized by all necessary corporate action on the part
of AANA; and with respect to a Series of Certificates described in the
applicable Terms Agreement, neither the execution and delivery by AANA
of this Agreement and such Terms Agreement, nor the consummation by
AANA of the transactions herein or therein contemplated, nor compliance
by AANA with the provisions hereof or thereof, will conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of AANA,
pursuant to any material indenture, mortgage, contract or
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other material instrument to which AANA is a party or by which it
is bound or to which the property or assets of AANA are subject, or
result in the violation of the provisions of the certificate of
incorporation or by-laws of AANA or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over AANA or any of its properties.
(4) This Agreement has been, and each applicable Terms Agreement
when executed and delivered as contemplated hereby and thereby will
have been, duly authorized, executed and delivered by AANA, and each
constitutes, or will constitute when so executed and delivered, a
legal, valid and binding instrument enforceable against AANA in
accordance with its terms (assuming due authorization, execution and
delivery by the other parties thereto), subject (a) to applicable
bankruptcy, insolvency, reorganization, moratorium, or other similar
laws affecting creditors' rights generally, (b) as to enforceability to
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and (c) as to
enforceability with respect to rights of indemnity thereunder, to
limitations of public policy under applicable securities laws.
(5) 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 consummation by AANA
of the transactions contemplated by this Agreement or the applicable
Terms Agreement, except as already have been obtained.
(6) There are no actions, proceedings or investigations now
pending against AANA or, to the knowledge of AANA, threatened against
AANA, before any court, administrative agency or other tribunal (i)
asserting the invalidity of this Agreement or the applicable Terms
Agreement, (ii) seeking to prevent the issuance of such Certificates or
the consummation of any of the transactions contemplated by this
Agreement or the applicable Terms Agreement, (iii) which would be
likely to materially and adversely affect the performance by AANA of
its obligations under, or which would if adversely determined
materially and adversely affect the validity or enforceability of, this
Agreement, the applicable Terms Agreement, or such Certificates or (iv)
seeking to adversely affect the federal income tax attributes of such
Certificates described in the Prospectus and the related Prospectus
Supplement.
SECTION 2. Purchase and Sale. The commitment of each Underwriter to
purchase Certificates pursuant to any Terms Agreement shall be several and not
joint and shall be deemed to have been made on the basis of the representations
and warranties herein contained and shall be subject to the terms and conditions
herein set forth.
Payment of the purchase price for, and delivery of, any Certificates to
be purchased by the Underwriters shall be made at the offices of Xxxxx, Brown &
Xxxxx, 000 Xxxxx Xx Xxxxx
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Street, Chicago, Illinois 60603-3441 or at such other place as shall be agreed
upon by you and the Company, at such time or date as shall be agreed upon by you
and the Company in the Terms Agreement (each such time and date being referred
to as a "Closing Time"). Unless otherwise specified in the applicable Terms
Agreement, payment shall be made to the Company in immediately available Federal
funds wired to such bank as may be designated by the Company. Such Certificates
shall be in such denominations and registered in such names as you may request
in writing at least two business days prior to the applicable Closing Time. Such
Certificates will be made available for examination and packaging by you no
later than 12:00 noon on the first business day prior to the applicable Closing
Time.
It is understood that the Underwriters intend to offer the Certificates
for sale to the public as set forth in the Prospectus Supplement.
SECTION 3. Covenants of the Company. The Company covenants with each of
you and each Underwriter participating in an offering of Certificates pursuant
to a Terms Agreement, with respect to such Certificates and such offering, as
follows:
(a) Immediately following the execution of each Terms Agreement,
the Company will prepare a Prospectus Supplement setting forth the
principal amount of Certificates covered thereby, the price or prices
at which the Certificates are to be purchased by the Underwriters,
either the initial public offering price or prices or the method by
which the price or prices by which the Certificates are to be sold will
be determined, the selling concession(s) and reallowance(s), if any,
any delayed delivery arrangements, and such other information as you
and the Company deem appropriate in connection with the offering of the
Certificates. The Company will furnish you a copy of the Prospectus
Supplement for your review prior to filing such Prospectus Supplement
with 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
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dealer in securities as many copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance.
(c) During any period in which the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Certificates described in the relevant Terms Agreement the Company will
give you reasonable notice of its intention to file any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus, whether pursuant to the 1933 Act or otherwise, and will
furnish you with copies of any such amendment or supplement or other
documents proposed to be filed a reasonable time in advance of filing.
(d) During any period in which the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Certificates described in the relevant Terms Agreement the Company will
notify you promptly (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the
Commission for filing of any supplement to the Prospectus or any
document other than quarterly and annual reports to be filed pursuant
to the 1934 Act, (iii) of the receipt of any comments from the
Commission with respect to the Registration Statement, the Prospectus
or any Prospectus Supplement, (iv) of any request by the Commission for
any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, (v) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Certificates for sale in any
jurisdiction or the threat of any proceeding for that purpose and (vi)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if any stop order is
issued, to obtain the lifting thereof as soon as possible.
(e) The Company agrees, so long as the Certificates shall be
outstanding, or until such time as you shall cease to maintain a
secondary market in the Certificates, whichever first occurs, to
deliver to you the annual statement as to compliance delivered to the
Trustee pursuant to the applicable Pooling Agreement and the annual
statement of a firm of independent public accountants furnished to the
Trustee pursuant to the applicable Pooling 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
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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.
(h) The Company will use its best efforts to effect the listing of
the Classes of Certificates indicated in the applicable Terms Agreement
prior to the applicable Closing Time on the NYSE.
(i) The Company will file all documents required to be filed by
the Commission pursuant to the 1934 Act within the time periods
required by the 1934 Act and the rules and regulations thereunder.
SECTION 4. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase Certificates pursuant to any Terms Agreement shall
be subject to the accuracy of the representations and warranties on the part of
the Company herein contained, to the accuracy of the statements of the Company's
officers made pursuant hereto, to the performance by the Company of all of its
obligations hereunder and to the following additional conditions precedent:
(a) At the applicable Closing Time (i) no stop order suspending
the effectiveness of the Registration Statement shall have been issued
and no proceedings for that purpose shall have been initiated or
threatened by the Commission and the Prospectus Supplement shall have
been filed or transmitted for filing by means reasonably calculated to
result in filing with the Commission not later than the time required
by Rule 424(b) under the 1933 Act, (ii) the Certificates shall have
received the rating or ratings specified in the applicable Terms
Agreement, and (iii) there shall not have come to your attention any
facts that would cause you to believe that the Prospectus, together
with the applicable Prospectus Supplement at the time it was required
to be delivered to a purchaser of the Certificates, contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances existing at such time, not misleading. No challenge by
the Commission shall have been made to the accuracy or adequacy of the
Registration Statement and any request of the Commission for inclusion
of additional information in the Registration Statement or the
Prospectus or the Prospectus Supplement shall have been complied with
and the Company shall not have filed with the Commission any amendment
or supplement to the Registration Statement, the Prospectus or the
Prospectus Supplement without prior written notice to the Underwriters.
(b) At the applicable Closing Time you shall have received:
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(1) The opinion, dated as of the applicable Closing Time, of
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 has been duly authorized and is validly
existing as a corporation in good standing under the laws of
the State of Delaware.
(ii) The applicable Pooling Agreement, the applicable
Securities Purchase Agreement, 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) Each of the applicable Securities Purchase
Agreement and the applicable Pooling 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 Securities Purchase Agreement,
the applicable Terms Agreement and applicable Pooling
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 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
Agreement and delivered and paid for,
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will be validly issued, fully paid, nonassessable and
entitled to the benefits of the related Pooling 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
Securities Purchase Agreement, the applicable Pooling
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 the best of 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, the
applicable Securities Purchase Agreement, or the applicable
Pooling 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 Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as
amended.
(x) The Registration Statement and the Prospectus (other
than the financial statements and other financial and
statistical information included therein, as to which no
opinion need be rendered) as of their respective effective or
issue dates, complied as to form in all material respects
with the requirements of the 1933 Act and the Regulations
thereunder.
(xi) (A) The statements in the Prospectus under the
headings "ERISA Considerations" and "Certain Federal Income
Tax Consequences" and the statements in the applicable
Prospectus Supplement under the headings "Certain Federal
Income Tax
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Considerations" and "ERISA Considerations", to the extent that they
describe matters of United States federal income tax law or ERISA or
legal conclusions with respect thereto, have been prepared or reviewed
by such counsel and are accurate in all material respects and (B) the
statements in the Prospectus under the heading "Certain Legal Aspects
of the Mortgage Loans," to the extent they constitute matters of United
States federal law or legal conclusions with respect thereto, while not
purporting to discuss all possible consequences of investment in the
Certificates, are accurate in all material respects with respect to
those consequences or matters discussed therein.
(xii) The statements in the Prospectus and the applicable
Prospectus Supplement under the caption "Description of the
Certificates", insofar as they purport to summarize certain
terms of the Certificates and the applicable Pooling
Agreement, constitute a fair summary of the provisions
purported to be summarized.
(xiii) Neither the Company nor the Trust Fund created by
the applicable Pooling 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) Assuming (a) ongoing compliance with all of the
provisions of the Pooling Agreement and (b) the filing of
elections, in accordance with the Pooling 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, the Trust Fund will qualify as a REMIC as of the
Closing Date and will continue to qualify as a REMIC for so
long as there is compliance with amendments after the date
hereof to any applicable provisions of the Code and
applicable Treasury Regulations.
(xv) Assuming that the Trust Fund is treated as a REMIC
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 the NYSE the opinions set forth in
paragraphs (i), (v), (viii) and (ix).
Notwithstanding the foregoing, the opinions set forth in paragraphs
(i), (ii), (iv) and (vii) may be rendered by Xxxx X. Xxxxxx, counsel of AANA.
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 Underlying Certificates and other property included in the Trust Fund
at the Closing Time as may be required by each Rating Agency rating the
Certificates.
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Such counsel shall state that it has participated in conferences with
officers and other representatives of the Company, your counsel, representatives
of the independent accountants for the Company and you at which the contents of
the Registration Statement and the Prospectus and related matters were discussed
and, although such counsel is not passing upon and does not assume
responsibility for, the factual accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as
stated in paragraphs (xi) and (xii) above) and has made no independent check or
verification thereof for the purpose of rendering its opinion, on the basis of
the foregoing, nothing has come to their attention that leads such counsel to
believe that either the Registration Statement, at the time it became effective
and at the applicable Closing Time, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein 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 Agreement and to perform its
obligations thereunder.
(ii) To the knowledge of such counsel, there is no action,
suit, proceeding or investigation pending or threatened
against the Trustee that could materially adversely affect
the ability of the Trustee to perform its obligations under
the Pooling Agreement.
(iii) The Trustee has duly authorized, executed and
delivered the applicable Pooling Agreement and such Pooling
Agreement will constitute the legal, valid and binding
obligation of the Trustee.
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(iv) The Trustee has full power and authority to execute
and deliver the applicable Pooling Agreement and to perform
its obligations thereunder.
(v) No consent, approval or authorization of, or
registration, declaration or filing with, any court or
governmental agency or body of the jurisdiction of its
organization is required for the execution, delivery or
performance by the Trustee of the Pooling Agreement.
(vi) The Certificates have been duly and validly executed,
authenticated and delivered by the Trustee in accordance with
the Pooling Agreement.
(vii) The performance by the Trustee of its duties
pursuant to the Pooling 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.
(3) The favorable opinion or opinions, dated as of the
applicable Closing Time, of counsel for the Underwriters,
acceptable to the Underwriters.
(4) The favorable opinions, dated the applicable Closing
Time of counsel for AANA, acceptable to the Underwriters.
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.
Such counsel shall deliver such additional opinions addressing the
transfer by DLJ to the Company of its right, title and interest in and to the
Underlying Certificates at the Closing Time as may be required by each Rating
Agency rating the Certificates.
(c) At the applicable Closing Time you shall have received a
certificate of the President or a Vice President and the Treasurer or
the Secretary of each of the Company and AANA, dated as of such Closing
Time, to the effect that the representations and warranties of the
Company or AANA, as the case may be, contained in Section 1 are true
and correct with the same force and effect as though such Closing Time
were a Representation Date and that the Company or AANA, as the case
may be, has complied with all agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Time.
(d) You shall have received from Deloitte & Touche LLP with
respect to certain information in the Prospectus Supplement, or other
independent certified public accountants acceptable to you, letters,
dated as of the date of the applicable Terms
-17-
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, the Certificates shall have received the certificate
rating or ratings specified in the related Terms Agreement.
(f) At the applicable Closing Time, the Classes of Certificates
indicated in the applicable Terms Agreement shall have been approved
for listing, subject only to official notice of issuance, if and as
specified in the applicable Terms Agreement.
(g) At the applicable Closing Time, counsel for the Underwriters
shall have been furnished with such other documents and opinions as
they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Certificates as herein contemplated
and related proceedings or in order to evidence the accuracy and
completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Certificates as herein contemplated shall be reasonably
satisfactory in form and substance to you and counsel for the
Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled or, if any of the opinions and
certificates required hereby shall not be in all material respects reasonably
satisfactory to you and your counsel, the applicable Terms Agreement may be
terminated by you by notice to the Company at any time at or prior to the
applicable Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 5.
SECTION 5. Payment of Expenses. DLJ covenants and agrees with the
Company that DLJ will pay or cause to be paid all expenses incident to the
performance of the Company's 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, and the fees and expenses relating to the establishment of the
Company's shelf registration statement as set forth in the applicable Terms
Agreement. The Underwriters covenant and agree to pay all of their own costs and
expenses, including underwriting and due diligence expenses, the fees of their
counsel, transfer taxes on resale of any of the Certificates by them and any
advertising expenses connected with any offers they may make.
SECTION 6. Indemnification.
(a) The Company and AANA, jointly and severally, will indemnify
and hold harmless the Underwriters and each person, if any, who
controls the Underwriters within
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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 (x) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment thereto)
or the omission or alleged omission to state in the Registration
Statement (or any amendment thereto) a material fact required to be
stated therein or necessary to make the statements therein not
misleading or (y) any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or supplement thereto), or
the omission or alleged omission to state in the Prospectus (or any
supplement thereto) a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
in which they were made, not misleading, 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 unless otherwise specified in the
applicable Terms Agreement, 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 (a) the Prospectus
under the heading "Description of the Pool", any Pool Information and
in Appendix I to the Prospectus or (b) any such document in reliance
upon and in conformity with written information furnished to the
Company by or on behalf of the Underwriters expressly for use therein.
This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Underwriter, 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 (x) any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission to state in the
Registration Statement (or any amendment thereto) a material fact
required to be stated therein or necessary to make the statements
therein, not misleading or (y) any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (or any
supplement thereto), or the omission or alleged omission to state in
the Prospectus (or any supplement thereto) a material fact required to
be stated therein or necessary to make the statements therein, in light
of the circumstances in 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
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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 last paragraph of the cover page, such paragraph beginning with
"The underwriters'", and fourth sentence of the first paragraph under
the caption "Method of Distribution" each as included in the applicable
Prospectus Supplement relating to a Series of Certificates, together
with the DLJ Information (as defined in Section 10 hereof) relating to
a Series of Certificates constitute the only information furnished in
writing by or on behalf of the Underwriters expressly for use in the
Registration Statement relating to such Series of Certificates as
originally filed or in any amendment thereof, any related preliminary
prospectus or the Prospectus or in any amendment thereof or supplement
thereto, as the case may be.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an
indemnifying party under this Section, notify such indemnifying party
in writing of the commencement thereof; but the omission so to notify
the indemnifying party shall not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section. In
case any such action shall be brought against any indemnified party and
it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying
party); and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under
this Section for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than reasonable costs of
investigation. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any
such case and the fees and expenses of one such counsel shall be at the
expense of the indemnifying party if (i) the employment of such counsel
shall have been authorized in writing by the indemnifying party in
connection with the defense of such action, (ii) the indemnifying party
shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the
action, or (iii) the indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them and/or
other indemnified parties which are different from or additional to
those available to the indemnifying party (in which case the
indemnifying party shall not have the right to direct the defense of
such action on behalf of the indemnified party). Anything in this
subsection to the contrary notwithstanding, an indemnifying party shall
not be liable for
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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 bear to the total underwriting discounts and commissions
(or in the case of a public offering in negotiated transactions, the
difference between the proceeds to the Company and the aggregate price
received from the public) received by such Underwriters. The relative
fault of the Company on the one hand and the Underwriters on the other
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Underwriters on the
other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. Notwithstanding anything to the contrary in this Section
6(d), if the losses, claims, damages or liabilities (or actions in
respect thereof) referred to in this Section 6(d) arise out of an
untrue statement or alleged untrue statement of a material fact
contained in any DLJ 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 DLJ 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
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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 1933 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The obligations of the
Underwriters to contribute pursuant to this subsection (d) are several
in proportion to their respective underwriting obligations with respect
to such Certificates and not joint.
SECTION 7. Representations, Warranties, and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any termination of this Agreement, or the applicable Terms Agreement or any
investigation made by or on behalf of the Underwriters or any controlling person
thereof, or by or on behalf of the Company, its officers or directors and shall
survive delivery of any Certificates to the Underwriters.
SECTION 8. Termination of Agreement. This Agreement may be terminated
for any reason at any time by either the Company or you upon the giving of
thirty days' notice of such termination to the other party hereto; provided,
however, that if a Terms Agreement has been entered into with respect to a
particular transaction, this Agreement and the Terms Agreement may not be
terminated in the manner set forth in this sentence with respect to such
particular transaction. You, as Representative of the Underwriters named in any
Terms Agreement may also terminate such Terms Agreement, immediately upon notice
to the Company, at any time at or prior to the applicable Closing Time (i) if
there has been, since the date of such Terms Agreement or since the respective
dates as of which information is given in the Registration Statement or
Prospectus, any change, or any development involving a prospective change, in or
affecting the condition, financial or otherwise, earnings, affairs or business
of the Company or AANA, whether or not arising in the ordinary course of
business, which in your judgment would materially impair the market for, or the
investment quality of, the Certificates, or (ii) if there has occurred any
material outbreak or escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to make
it, in your reasonable judgment, impracticable to
-22-
market the Certificates or enforce contracts for the sale of the Certificates,
or (iii) if trading in securities generally on either the NYSE 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) 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
-23-
hereunder and, in addition, to require each non-defaulting Underwriter
to purchase its pro rata share (based on the principal amount of
Certificates which such Underwriter agreed to purchase pursuant to the
applicable Terms Agreement) of the Defaulted Certificates of the
defaulting Underwriter or Underwriters for which such arrangements have
not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Defaulted Certificates of the defaulting Underwriter or
Underwriters by you and the Company as provided in subsection (a)
above, the aggregate principal amount of such Defaulted Certificates
which remains unpurchased exceeds 10% of the aggregate principal amount
of the Certificates to be purchased pursuant to the applicable Terms
Agreement, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase
Defaulted Certificates of a defaulting Underwriter or Underwriters,
then this Agreement shall thereupon terminate, without liability on the
part of any non-defaulting Underwriter or the Company, except for the
expenses to be borne by the Company and the Underwriters as provided in
Section 5 hereof and the indemnity agreement and contribution
provisions in Section 6 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
SECTION 10. Computational Materials and ABS Term Sheets.
(a) DLJ 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 DLJ, DLJ 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 furnish, prepare or use any Computational Materials,
Structural Term Sheets or Collateral Term Sheets in connection with the
offering of Series 1999-RS1 Certificates.
(b) In connection with each Series of Certificates, DLJ 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 DLJ and
-24-
required to be filed with the Commission in accordance with the
No-Action Letters (such Computational Materials, the "DLJ Furnished
Computational Materials").
(c) In connection with each Series of Certificates, DLJ 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 DLJ and required to
be filed with the Commission in accordance with the No-Action Letters
(such Structural Term Sheets, the "DLJ Furnished Structural Term
Sheets").
(d) In connection with each Series of Certificates, DLJ shall
furnish to the Company (via hard copy), within one (1) business day
after the first use thereof, all Collateral Term Sheets used by DLJ and
required to be filed with the Commission in accordance with the
No-Action Letters (such Collateral Term Sheets, the "DLJ 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 "DLJ 8-K," and each a "DLJ 8-K") which shall include as
one or more exhibits thereto the DLJ Furnished Computational Materials,
the DLJ Furnished Structural Term Sheets and the DLJ Furnished
Collateral Term Sheets.
(f) DLJ shall cooperate with the Company and with Deloitte &
Touche in obtaining a letter, in form and substance satisfactory to the
Company and DLJ, of Deloitte & Touche regarding the information in any
DLJ 8-K consisting of DLJ Furnished Computational Materials and/or DLJ
Furnished Structural Term Sheets, in each case in XXXXX format as
formatted by the Company.
(g) DLJ represents and warrants to, and covenants with, the
Company that the DLJ Information (defined below) is not misleading and
not inaccurate in any material respect and that any Pool Information
(defined below) contained in any DLJ 8-K which is not otherwise
inaccurate in any material respect is not presented in the DLJ 8-K in a
way that is either misleading or inaccurate in any material respect.
DLJ 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 DLJ 8-K are found to include any
information that is misleading or inaccurate in any material respect,
DLJ promptly shall inform the Company of such finding, provide the
Company with revised and/or corrected Computational Materials or ABS
Term Sheets, as the case may be, and promptly prepare and deliver to
the Company (in hard copy) for filing with the Commission in accordance
herewith, revised and/or corrected Computational Materials or ABS Term
Sheets, as the case may be.
-25-
(h) DLJ covenants that all Computational Materials and ABS Term
Sheets used by it shall contain a legend substantially as set forth
below:
"THIS INFORMATION IS FURNISHED TO YOU SOLELY BY XXXXXXXXX, XXXXXX
& XXXXXXXX SECURITIES CORPORATION AND NOT BY THE ISSUER OR ANY OF
ITS AFFILIATES. NEITHER THE ISSUER NOR ANY OF ITS AFFILIATES MAKES
ANY REPRESENTATION AS TO THE ACCURACY OR COMPLETENESS OF THE
INFORMATION HEREIN. THE INFORMATION HEREIN IS PRELIMINARY, AND
WILL BE SUPERSEDED BY THE APPLICABLE PROSPECTUS SUPPLEMENT AND BY
ANY OTHER INFORMATION SUBSEQUENTLY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
(i) DLJ covenants that all Collateral Term Sheets used by it shall
contain an additional legend substantially as set forth below:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE
DESCRIPTION OF THE UNDERLYING CERTIFICATES CONTAINED IN THE
PROSPECTUS SUPPLEMENT."
(j) DLJ covenants that all Collateral Term Sheets (other than the
initial Collateral Term Sheet) shall contain the following additional
legend:
"THE INFORMATION CONTAINED HEREIN SUPERSEDES THE INFORMATION IN
ALL PRIOR COLLATERAL TERM SHEETS, IF ANY."
(k) For purposes of this Agreement, the term "DLJ Information"
means such portion, if any, of the information contained in the DLJ 8-K
that is not Pool Information. "Pool Information" means the information
regarding the characteristics (e.g. balance, rate, maturity etc.) of
the Underlying Certificates; provided, however, that if any information
that would otherwise constitute Pool Information is not information
appearing in the monthly remittance report specified in the applicable
Terms Agreement or the data tape referred to in Section 5.07(c) of the
applicable Securities Purchase Agreement or accurately derived
therefrom, such information shall not be Pool Information.
(l) If the Underwriters does 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
-26-
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 DLJ shall be directed to you at the
address set forth on the first page hereof, to the attention of Xxxxxxx Xxxxx,
with a copy to the General Counsel's office on the 23rd floor 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, xxxxxxxxx: Xxxx Xxxxx. Notices to the Company or to AANA shall be
directed to ABN AMRO Mortgage Corporation Securitization Department, c/o ABN
AMRO North America, Inc., 000 X. XxXxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx,
attention: Xxxxxxx Xxxxxxx, with a copy to Legal Department, ABN AMRO North
America, Inc., 000 X. XxXxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx.
SECTION 12. Parties. This Agreement shall be binding upon and inure
solely to the benefit of you and the Company and to the extent provided in
Section 6 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter and their respective heirs, executors,
administrators, successors and assigns and any Terms Agreement shall be binding
upon and inure solely to the benefit of the Company and any Underwriter who
becomes a party to a Terms Agreement and to the extent provided in Section 6
hereof, the officers and directors of the Company and each person who controls
the Company or any Underwriter and their respective heirs, executors,
administrators, successors and assigns. Nothing expressed or mentioned in this
Agreement or a Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto or thereto and their
respective successors and the controlling person and officers and directors
referred to in Section 6 hereof and their heirs any legal or equitable right,
remedy or claim under or with respect to this Agreement or a Terms Agreement or
any provision herein or therein contained.
SECTION 13. Governing Law and Time. This Agreement and each Terms
Agreement shall be governed by and construed in accordance with the laws of the
State of New York. Specified times of day refer to New York City time.
SECTION 14. Counterparts. This Agreement and any Terms Agreement may be
executed in any number of counterparts (which execution may take the form of an
exchange of any standard form of written telecommunication between you and the
Company), each of which shall constitute an original of any party whose
signature appears on it, and all of which shall together constitute a single
instrument.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
-27-
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/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
ABN AMRO NORTH AMERICA, INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
CONFIRMED AND ACCEPTED, as of
the date first above written:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: /s/ Xxxxxxx Xxxxx
--------------------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Vice President
ABN AMRO INCORPORATED
-28-
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: First Vice President
-29-
EXHIBIT A
RESECURITIZATION PASS-THROUGH CERTIFICATES
ABN AMRO MORTGAGE CORPORATION, DEPOSITOR
TERMS AGREEMENT
---------------
Dated: _________, 19__
To: ABN AMRO MORTGAGE CORPORATION
Re: Underwriting Agreement, dated as of July __, 1999
(the "Underwriting Agreement")
Ladies and Gentlemen:
The undersigned (being herein called the "Underwriters"), understand
that ABN AMRO Mortgage Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell $_________ original principal amount of
Resecuritization Pass-Through Certificates described below (the "Certificates").
The Certificates will be issued under a Pooling Agreement dated as of
_______________ among the Company, as depositor, 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.
-30-
Series Designation: __________________
Terms of the Certificates and Underwriting Compensation:
Original
Principal Remittance Price to
Classes Amount* Rate Public
------- --------- ---------- --------
**
* Approximate. Subject to permitted variance in each case of plus
or minus 5%.
** The [Class A] 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 Pool to be
treated as a REMIC.
Credit Enhancement:
Cut-off Date:
The Cut-off Date is ___________, 19__.
Remittance Date:
The ____ day of each month (or, if such ____ day is not a
business day, the business day immediately following) commencing __________,
19__.
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Purchase Price:
The purchase price payable by the Underwriter for the [Class A]
Certificates is ___% of the aggregate principal balance of the [Class A]
Certificates as of the Closing Date plus accrued interest at the per annum rate
of ___% from __________, 19__ up to but not including the Closing Date.
Underwriting Commission:
Notwithstanding anything to the contrary in the Underwriting Agreement,
no additional underwriting commission shall be payable by the Company to the
Underwriter in connection with the purchase of the Certificates.
Information Provided by Underwriter: [Reference to DEC/YIELD Tables in Pro.
Supp.]
Closing Date and Location:
__________ 19__ at the [Chicago, Illinois] offices of Xxxxx, Brown &
Xxxxx
Classes To Be Listed on New York Stock Exchange:
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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.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
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:
-33-
Exhibit I
Original
Principal
Amount of
Name Certificates
---- ------------
Total ==============
