EXECUTION COPY
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AMAC, SERIES 2001-1
MORTGAGE PASS-THROUGH CERTIFICATES
UNDERWRITING AGREEMENT
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April 27, 2001
Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABN AMRO Incorporated
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
ABN AMRO Mortgage Corporation (the "Company"), a Delaware corporation,
has authorized the issuance and sale of Mortgage Pass-Through Certificates (the
"Certificates") evidencing interests in pools of mortgage loans (the "Mortgage
Loans"). The Certificates may be issued in various series, and, within each
series, in one or more classes, and, within each class, in one or more
sub-classes, in one or more offerings on terms determined at the time of sale
(each such series, a "Series" and each such class, a "Class"). Each Series of
the Certificates will be issued under a separate Pooling and Servicing Agreement
(each, a "Pooling and Servicing Agreement") with respect to such Series among
the Company, as depositor, a servicer to be identified in the prospectus
supplement for each such Series (the "Servicer") and a trustee to be identified
in the prospectus supplement for each such Series (the "Trustee"). The
Certificates of each Series will evidence specified interests in separate pools
of Mortgage Loans (each a "Mortgage Pool"), and certain other property held in
trust with respect to such Series (each, a "Trust Fund").
The Certificates are more fully described in a Registration Statement
which the Company has furnished to you. Capitalized terms used but not defined
herein shall have the meanings given to them in the Pooling and Servicing
Agreement. The term "you" as used herein, unless the context otherwise requires,
shall mean you and such persons as are named as co-managers in the applicable
Terms Agreement (defined below).
Whenever the Company determines to make an offering of Certificates
pursuant to this Agreement through you or through an underwriting syndicate
managed by you it will enter into an agreement (the "Terms Agreement") providing
for the sale of such Certificates to, and the purchase and offering thereof by,
you and such other underwriters, if any, selected by you as have authorized you
to enter into such Terms Agreement on their behalf (the "Underwriters," which
term shall include you whether acting alone in the sale of Certificates or as a
member of an underwriting syndicate; as the context requires, Credit Suisse
First Boston Corporation is sometimes referred to individually herein as "CSFB"
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.
333-85443), relating to the offering of Certificates from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended (the
"1933 Act"), and has filed, and proposes to file, such amendments thereto
as may have been required to the date hereof and the same has become
effective under the 1933 Act and the rules of the Commission thereunder
(the "Regulations") and no stop order suspending the effectiveness of such
registration statement has been issued and no proceedings for that purpose
have been initiated or, to the Company's knowledge, threatened, by the
Commission. Such registration statement, including incorporated documents,
exhibits and financial statements, as amended at the time when it became
effective under the 1933 Act, and the prospectus relating to the sale of
Certificates by the Company constituting a part thereof, as from time to
time each is amended or supplemented pursuant to the 1933 Act or
otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus," respectively; provided, however, that a supplement to the
Prospectus contemplated by Section 3(a) hereof (a "Prospectus Supplement")
shall be deemed to have supplemented the Prospectus only with respect to
the offering or offerings of Certificates to
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which it relates. Any reference herein to the Registration Statement, a
preliminary prospectus, the Prospectus or the Prospectus Supplement shall
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Securities Exchange Act of 1934, as amended (the "1934 Act") on or before
the date on which the Registration Statement, as amended, became effective
or the issue date of such preliminary prospectus, Prospectus, or
Prospectus Supplement, as the case may be; and any reference herein to the
terms "amend," "amendment" or supplement with respect to the Registration
Statement, any preliminary prospectus, the Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the filing of any
document under the 1934 Act after the date on which the Registration
Statement became effective or the issue date of any preliminary
prospectus, the Prospectus or the Prospectus Supplement, as the case may
be, deemed to be incorporated therein by reference. The Registration
Statement and Prospectus, at the time the Registration Statement became
effective did, and as of the applicable Representation Date will, conform
in all material respects to the requirements of the 1933 Act and the
Regulations. The Registration Statement, at the time it became effective
did not, and as of the applicable Representation Date and the applicable
Closing Time (as defined in Section 2 hereof) will not, contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading. The Prospectus, as amended or supplemented as of the
applicable Representation Date and the applicable Closing Time (as defined
in Section 2 hereof), will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to (i) statements in, or
omissions from, the Registration Statement or Prospectus made in reliance
upon and in conformity with information furnished to the Company in
writing by the Underwriters expressly for use in the Registration
Statement or Prospectus or (ii) the CSFB Information (as defined in
Section 10 hereof). The conditions to the use by the Company of a
registration statement on Form S-3 under the 1933 Act, as set forth in the
General Instructions to Form S-3, have been satisfied with respect to the
Registration Statement and the Prospectus. There are no contracts or
documents of the Company which are required to be described in the
Registration Statement or Prospectus or filed as exhibits to the
Registration Statement pursuant to the 1933 Act or the Regulations which
have not been so described or filed.
(2) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware
with corporate power and authority to enter into and perform its
obligations under this Agreement, the applicable Pooling and Servicing
Agreement, and with respect to a Series of Certificates, the Certificates
and the applicable Terms Agreement; and the Company is duly qualified or
registered as a foreign corporation to transact business and is in good
standing in each jurisdiction in which the ownership or lease of its
properties or the conduct of its business requires such qualification.
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(3) The Company is not in violation of its certificate of
incorporation or by-laws or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
material contract, indenture, mortgage, loan agreement, note, lease or
other material instrument to which it is a party or by which it or its
properties may be bound, which default might result in any material
adverse change in the financial condition, earnings, affairs or business
of the Company or which might materially and adversely affect the
properties or assets thereof or the Company's ability to perform its
obligations under this Agreement, the applicable Terms Agreement or the
applicable Pooling and Servicing Agreement.
(4) The execution and delivery by the Company of this Agreement, the
applicable Terms Agreement and the applicable Pooling and Servicing
Agreement and the signing of the Registration Statement by the Company are
within the corporate power of the Company and have been duly authorized by
all necessary corporate action on the part of the Company; and with
respect to a Series of Certificates described in the applicable Terms
Agreement, neither the issuance and sale of the Certificates to the
Underwriters, nor the execution and delivery by the Company of this
Agreement, such Terms Agreement and the related Pooling and Servicing
Agreement, nor the consummation by the Company of the transactions herein
or therein contemplated, nor compliance by the Company with the provisions
hereof or thereof, will conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company other than as contemplated by a
Pooling and Servicing Agreement, pursuant to any material indenture,
mortgage, contract or other material instrument to which the Company is a
party or by which it is bound or to which the property or assets of the
Company are subject, or result in the violation of the provisions of the
certificate of incorporation or by-laws of the Company or any statute or
any material order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its properties.
(5) This Agreement has been, and each applicable Terms Agreement
when executed and delivered as contemplated hereby and thereby will have
been, duly authorized, executed and delivered by the Company, and each
constitutes, or will constitute when so executed and delivered, a legal,
valid and binding instrument enforceable against the Company in accordance
with its terms (assuming due authorization, execution and delivery by the
other parties thereto), subject (a) to applicable bankruptcy, insolvency,
reorganization, moratorium, or other similar laws affecting creditors'
rights generally, (b) as to enforceability to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law) and (c) as to enforceability with respect to rights of indemnity
thereunder, to limitations of public policy under applicable securities
laws.
(6) Each applicable Pooling and Servicing Agreement when executed
and delivered as contemplated hereby and thereby will have been duly
authorized, executed and delivered by the Company, and will constitute
when so executed and delivered, a legal, valid
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and binding instrument enforceable against the Company in accordance with
its terms (assuming due authorization, execution and delivery by the other
parties thereto), subject (a) to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and (b) as to enforceability to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law); and as of the Closing Time, the representations and
warranties made by the Company in the applicable Pooling and Servicing
Agreement will be true and correct as of the date made.
(7) As of the Closing Time (as defined in Section 2 hereof) with
respect to a Series of Certificates, the Certificates will have been duly
and validly authorized by the Company, and, when executed and
authenticated as specified in the related Pooling and Servicing Agreement,
will be validly issued and outstanding and will be entitled to the
benefits of the related Pooling and Servicing Agreement, and the Classes
of Certificates so designated in the related Prospectus Supplement will be
"mortgage related securities," as defined in Section 3(a)(41) of the 0000
Xxx.
(8) There are no actions, proceedings or investigations now pending
against the Company or, to the knowledge of the Company, threatened
against the Company, before any court, administrative agency or other
tribunal (i) asserting the invalidity of this Agreement, the applicable
Terms Agreement, the applicable Pooling and Servicing Agreement or with
respect to a Series of Certificates, the Certificates, (ii) seeking to
prevent the issuance of such Certificates or the consummation of any of
the transactions contemplated by this Agreement, the applicable Terms
Agreement or such Pooling and Servicing Agreement, (iii) which would be
likely to materially and adversely affect the performance by the Company
of its obligations under, or which would if adversely determined
materially and adversely affect the validity or enforceability of, this
Agreement, the applicable Terms Agreement, such Pooling and Servicing
Agreement or such Certificates or (iv) seeking to adversely affect the
federal income tax attributes of such Certificates described in the
Prospectus and the related Prospectus Supplement.
(9) Any material taxes, fees and other governmental charges that are
assessed and due in connection with the execution, delivery and issuance
of this Agreement, the applicable Terms Agreement, the applicable Pooling
and Servicing Agreement and with respect to a Series of Certificates shall
have been paid at or prior to the Closing Time.
(10) No filing or registration with, notice to or consent, approval,
authorization, order or qualification of or with any court or governmental
agency or body is required for the issuance and sale of the Certificates
or the consummation by the Company of the transactions contemplated by
this Agreement, the applicable Pooling and Servicing Agreement or the
applicable Terms Agreement, except the registration under the 1933 Act of
the Certificates, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the
Certificates by the Underwriters.
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(11) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies deemed by the Company to be reasonably
necessary to conduct the business now operated by it and as described in
the Prospectus and the Company has received no notice of proceedings
relating to the revocation or modification of any such license,
certificate, authority or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would materially
and adversely affect the conduct of the business, operations, financial
condition or income of the Company.
(12) No litigation is pending or, to the best of the Company's
knowledge, threatened, against the Company which would prohibit the
Company's entering into this Agreement or the applicable Pooling and
Servicing Agreement.
(13) As of the Closing Time, with respect to a Series of
Certificates described in the relevant Terms Agreement evidencing
interests in a Mortgage Pool, the Trustee will have either good and
marketable title, free and clear of all prior liens, charges, pledges,
mortgages, security interests and encumbrances, to or a validly perfected
first priority security interest in the Mortgage Notes and the related
Mortgages included in the Trust Fund, with respect to (a) the Mortgage
Notes, upon delivery thereof to the Trustee and (b) the Mortgages, upon
delivery to the Trustee of instruments of assignment in recordable form
assigning each Mortgage to the Trustee and the recording of each such
instrument of assignment in the appropriate recording office in which the
Mortgaged Property is located, or if supported by an opinion of counsel,
without recording.
(14) As of the Closing Time, with respect to a Series of
Certificates, the Mortgage Pool will have substantially the
characteristics described in the Prospectus Supplement and in the Form 8-K
of the Company prepared with respect to such Certificates, if the Mortgage
Pool is described in such Form 8-K.
(15) Neither the Company nor the Trust Fund created by the
applicable Pooling and Servicing Agreement will be subject to registration
as an "investment company" under the Investment Company Act of 1940, as
amended (the "1940 Act").
(16) The Certificates, the applicable Pooling and Servicing
Agreement, the applicable Terms Agreement and any primary insurance
policies, mortgage pool insurance policies, standard hazard insurance
policies, special hazard insurance policies, mortgagor bankruptcy
insurance and alternate credit enhancement related to the Certificates
described in the relevant Terms Agreement conform in all material respects
to the descriptions thereof contained in the Prospectus.
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(17) As of the Closing Time, the Mortgage Loans will have been duly
and validly assigned and delivered by the Company to the Trustee under the
related Pooling and Servicing Agreement.
(18) As of the Closing Time, the representations and warranties of
the Company contained in the applicable Pooling and Servicing Agreement
are true and correct in all material respects.
(b) Michigan National Corporation ("Michigan National") 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) Michigan National has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Michigan with corporate power and authority to enter into and perform its
obligations under this Agreement, and with respect to a Series of
Certificates, the applicable Terms Agreement; and Michigan National 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) Michigan National 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 Michigan National or which might materially and adversely affect the
properties or assets thereof or Michigan National's ability to perform its
obligations under this Agreement or the applicable Terms Agreement.
(3) The execution and delivery by Michigan National of this
Agreement and the applicable Terms Agreement are within the corporate
power of Michigan National and have been duly authorized by all necessary
corporate action on the part of Michigan National; and with respect to a
Series of Certificates described in the applicable Terms Agreement,
neither the execution and delivery by Michigan National of this Agreement
and such Terms Agreement, nor the consummation by Michigan National of the
transactions herein or therein contemplated, nor compliance by Michigan
National 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 Michigan
National, pursuant to any material indenture, mortgage, contract or other
material instrument to which Michigan National is a
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party or by which it is bound or to which the property or assets of
Michigan National are subject, or result in the violation of the
provisions of the certificate of incorporation or by-laws of Michigan
National or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over Michigan National 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 Michigan National, and
each constitutes, or will constitute when so executed and delivered, a
legal, valid and binding instrument enforceable against Michigan National
in accordance with its terms (assuming due authorization, execution and
delivery by the other parties thereto), subject (a) to applicable
bankruptcy, insolvency, reorganization, moratorium, or other similar laws
affecting creditors' rights generally, (b) as to enforceability to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (c) as to enforceability with respect
to rights of indemnity thereunder, to limitations of public policy under
applicable securities laws.
(5) This Agreement when executed and delivered as contemplated
hereby and thereby will have been duly authorized, executed and delivered
by Michigan National, and will constitute when so executed and delivered,
a legal, valid and binding instrument enforceable against Michigan
National in accordance with its terms (assuming due authorization,
execution and delivery by the other parties thereto), subject (a) to
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and (b) as to
enforceability to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
(6) There are no actions, proceedings or investigations now pending
against Michigan National or, to the knowledge of Michigan National,
threatened against Michigan National, 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 Michigan National 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.
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Payment of the purchase price for, and delivery of, any Certificates to
be purchased by the Underwriters shall be made at the offices of Xxxxx, Xxxxx &
Xxxxx, Chicago, Illinois or at such other place as shall be agreed upon by you
and the Company, at such time or date as shall be agreed upon by you and the
Company in the Terms Agreement (each such time and date being referred to as a
"Closing Time"). Unless otherwise specified in the applicable Terms Agreement,
payment shall be made to the Company in immediately available Federal funds
wired to such bank as may be designated by the Company. Such Certificates shall
be in such denominations and registered in such names as you may request in
writing at least two business days prior to the applicable Closing Time. Such
Certificates will be made available for examination and packaging by you no
later than 12:00 noon on the first business day prior to the applicable Closing
Time.
It is understood that the Underwriters intend to offer the Certificates
for sale to the public as set forth in the Prospectus Supplement.
SECTION 3. Covenants of the Company. The Company covenants with each of
you and each Underwriter participating in an offering of Certificates pursuant
to a Terms Agreement, with respect to such Certificates and such offering, as
follows:
(a) Immediately following the execution of each Terms Agreement, the
Company will prepare a Prospectus Supplement setting forth the principal
amount of Certificates covered thereby, the price or prices at which the
Certificates are to be purchased by the Underwriters, either the initial
public offering price or prices or the method by which the price or prices
by which the Certificates are to be sold will be determined, the selling
concession(s) and reallowance(s), if any, any delayed delivery
arrangements, and such other information as you and the Company deem
appropriate in connection with the offering of the Certificates. The
Company will furnish you a copy of the Prospectus Supplement for your
review prior to filing such Prospectus Supplement with the Commission.
Thereafter, the Company will promptly transmit copies of the Prospectus
Supplement to the Commission for filing pursuant to Rule 424 under the
1933 Act and will furnish to the Underwriters as many copies of the
Prospectus and such Prospectus Supplement as you shall reasonably request.
(b) If the delivery of a prospectus is required at any time in
connection with the offering or sale of the Certificates described in the
relevant Terms Agreement and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such period of time to amend or supplement the Prospectus
in order to comply with the 1933 Act, the Company agrees to notify you
promptly and upon your request so to amend or supplement the Prospectus
and to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as you may from time to time
reasonably request of an amended
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Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance.
(c) During any period in which the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Certificates described in the relevant Terms Agreement the Company will
give you reasonable notice of its intention to file any amendment to the
Registration Statement or any amendment or supplement to the Prospectus,
whether pursuant to the 1933 Act or otherwise, and will furnish you with
copies of any such amendment or supplement or other documents proposed to
be filed a reasonable time in advance of filing.
(d) During any period in which the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Certificates described in the relevant Terms Agreement the Company will
notify you promptly (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the
Commission for filing of any supplement to the Prospectus or any document
other than quarterly and annual reports to be filed pursuant to the 1934
Act, (iii) of the receipt of any comments from the Commission with respect
to the Registration Statement, the Prospectus or any Prospectus
Supplement, (iv) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for additional information, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Certificates for sale in any jurisdiction or the threat of any proceeding
for that purpose and (vi) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will use its
best efforts to prevent the issuance of any such stop order and, if any
stop order is issued, to obtain the lifting thereof as soon as possible.
(e) The Company agrees, so long as the Certificates shall be
outstanding, or until such time as you shall cease to maintain a secondary
market in the Certificates, whichever first occurs, to deliver to you the
annual statement as to compliance delivered to the Trustee pursuant to the
applicable Pooling and Servicing Agreement and the annual statement of a
firm of independent public accountants furnished to the Trustee pursuant
to the applicable Pooling and Servicing Agreement, as soon as such
statements are furnished to the Company.
(f) The Company will deliver to you as many conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein
and documents incorporated by reference in the Prospectus) as you may
reasonably request.
(g) The Company will endeavor, in cooperation with you, to qualify
the Certificates for offering and sale under the applicable securities
laws of such states and other jurisdictions of the United States as you
may reasonably designate, and will maintain or cause to be maintained such
qualifications in effect for as long as may be required for the
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distribution of the Certificates, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction. The
Company will file or cause the filing of such statements and reports as
may be required by the laws of each jurisdiction in which the Certificates
have been qualified as above provided.
SECTION 4. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase Certificates pursuant to any Terms Agreement shall be
subject to the accuracy of the representations and warranties on the part of the
Company herein contained, to the accuracy of the statements of the Company's
officers made pursuant hereto, to the performance by the Company of all of its
obligations hereunder and to the following additional conditions precedent:
(a) At the applicable Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been initiated or threatened by
the Commission and the Prospectus Supplement shall have been filed or
transmitted for filing by means reasonably calculated to result in filing
with the Commission not later than the time required by Rule 424(b) under
the 1933 Act, (ii) the Certificates shall have received the rating or
ratings specified in the applicable Terms Agreement, and (iii) there shall
not have come to your attention any facts that would cause you to believe
that the Prospectus, together with the applicable Prospectus Supplement at
the time it was required to be delivered to a purchaser of the
Certificates, contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at such time, not
misleading. No challenge by the Commission shall have been made to the
accuracy or adequacy of the Registration Statement and any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or the Prospectus Supplement shall have been
complied with and the Company shall not have filed with the Commission any
amendment or supplement to the Registration Statement, the Prospectus or
the Prospectus Supplement without prior written notice to the
Underwriters.
(b) At the applicable Closing Time you shall have received:
1) The opinion, dated as of the applicable Closing Time, of
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:
(ii) The Company is validly existing as a corporation in good
standing under the laws of the State of Delaware.
(iii) 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.
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(iv) The applicable Pooling and Servicing Agreement has been
duly authorized, executed and delivered by the Company, and is a
legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except that (A)
such enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (B)
the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
(v) The execution and delivery by the Company of this
Agreement, the applicable Terms Agreement and applicable Pooling and
Servicing Agreement and the signing of the Registration Statement by
the Company are within the corporate power of the Company and have
been duly authorized by all necessary corporate action on the part
of the Company; and neither the issue and sale of the Certificates
nor the consummation of the transactions contemplated herein or
therein nor the fulfillment of the terms hereof or thereof will,
conflict with or constitute a breach or violation of any of the
terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company pursuant to, any contract,
indenture, mortgage, or other instrument to which the Company is a
party or by which it may be bound of which such counsel is aware,
other than the lien or liens created by the applicable Pooling and
Servicing Agreement, nor will such action result in any violation of
the provisions of the certificate of incorporation or by-laws of the
Company or, any statute, rule or regulation to which the Company is
subject or by which it is bound or any writ, injunction or decree of
any court, governmental authority or regulatory body to which it is
subject or by which it is bound of which such counsel is aware.
(vi) The Certificates have been duly authorized and, when
executed and authenticated as specified in the related Pooling and
Servicing Agreement and delivered and paid for, will be validly
issued, fully paid, nonassessable and entitled to the benefits of
the related Pooling and Servicing Agreement.
(vii) Assuming strict compliance by the Underwriters with the
provisions of this Agreement, no filing or registration with or
notice to or consent, approval, authorization, order or
qualification of or with any court or governmental agency or body is
required for the issuance and sale of the Certificates or the
consummation by the Company of the transactions contemplated by this
Agreement, the applicable Pooling and Servicing Agreement or the
applicable Terms Agreement, except the registration under the 1933
Act of the Certificates, and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Certificates by the Underwriters.
12
(viii) Other than as may be set forth or contemplated in the
Prospectus, there is no action, suit or proceeding of which such
counsel is aware before or by any court or governmental agency or
body, domestic or foreign, now pending or, to such counsel's
knowledge, threatened against the Company which might result in any
material adverse change in the financial condition, earnings,
affairs or business of the Company, or which might materially and
adversely affect the properties or assets thereof or might
materially and adversely affect the performance by the Company of
its obligations under, or the validity or enforceability of, the
Certificates, this Agreement or the Pooling and Servicing Agreement,
or which is required to be disclosed in the Registration Statement.
(ix) 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.
(x) The applicable Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as
amended.
(xi) 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.
(xii) (A) The statements in the Prospectus under the headings
"ERISA Considerations" and "Federal Income Tax Consequences" and the
statements in the applicable Prospectus Supplement under the
headings "Federal Income Tax Consequences" and "ERISA
Considerations", to the extent that they describe matters of United
States federal income tax law or ERISA or legal conclusions with
respect thereto, have been prepared or reviewed by such counsel and
are accurate in all material respects and (B) the statements in the
Prospectus under the heading "Legal Aspects of the Mortgage Loans,"
to the extent they constitute matters of United States federal law
or legal conclusions with respect thereto, while not purporting to
discuss all possible consequences of investment in the Certificates,
are accurate in all material respects with respect to those
consequences or matters discussed therein.
(xiii) The statements in the Prospectus and the applicable
Prospectus Supplement under the caption "Description of the
Certificates", insofar as they purport to summarize certain terms of
the Certificates and the applicable Pooling and Servicing Agreement,
constitute a fair summary of the provisions purported to be
summarized.
13
(xiv) The Trust Funds created by the applicable Pooling and
Servicing Agreement is not, and will not as a result of the offer
and sale of the Certificates as contemplated in the Prospectus and
in this Agreement become, required to be registered as an
"investment company" under the 1940 Act.
(xv) The Classes of Certificates so designated in the
Prospectus Supplement will be "mortgage related securities", as
defined in ss.3(a)(41) of the 1934 Act, so long as the Certificates
are rated in one of the two highest grades by at least one
nationally recognized statistical rating organization.
(xvi) Assuming (a) ongoing compliance with all of the
provisions of the Pooling and Servicing Agreement and (b) the filing
of elections, in accordance with the Pooling and Servicing
Agreement, to be treated as "real estate mortgage investment
conduits" ("REMICs") pursuant to Section 860D of the Internal
Revenue Code of 1986, as amended (the "Code") for Federal income tax
purposes, REMIC I and REMIC II of the Trust Fund will qualify as
REMICs as of the Closing Date and will continue to qualify as REMICs
for so long as there is compliance with amendments after the date
hereof to any applicable provisions of the Code and applicable
Treasury Regulations.
(xvii) Assuming that REMIC I and REMIC II of the Trust Fund
are treated as REMICs for Federal income tax purposes, neither of
them nor the Trust Fund will be subject as an entity to any tax
imposed on income, franchise or capital stock by the laws of
Illinois.
Such counsel shall deliver to you such additional opinions addressing the
transfer by the Company to the Trustee of its right, title and interest in and
to the Mortgage Loans and other property included in the Trust Fund at the
Closing Time as may be required by each Rating Agency rating the Certificates.
Such counsel shall state that it has participated in conferences with
officers and other representatives of the Company, your counsel, representatives
of the independent accountants for the Company and you at which the contents of
the Registration Statement and the Prospectus and related matters were discussed
and, although such counsel is not passing upon and does not assume
responsibility for, the factual accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as
stated in paragraphs (xi) and (xii) above) and has made no independent check or
verification thereof for the purpose of rendering its opinion, on the basis of
the foregoing, nothing has come to their attention that leads such counsel to
believe that either the Registration Statement, at the time it became effective
and at the applicable Closing Time, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or that the Prospectus
contained or contains as of the
14
date thereof and at the applicable Closing Time any untrue statement of a
material fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that such counsel need express no view with respect
to the financial statements, schedules and other financial and statistical data
included in or incorporated by reference into the Registration Statement, the
Prospectus or the Prospectus Supplement.
Such counsel may state that their opinions relate only to laws of the
State of New York, the Federal laws of the United States and the General
Corporation Law of the State of Delaware.
In rendering such opinions, such counsel may rely, as to matters of fact,
to the extent deemed proper and stated therein, on certificates of responsible
officers of the Company, the Trustee or public officials.
2) The favorable opinion of counsel to the Trustee, dated as of the
applicable Closing Time, addressed to you and in form and scope
satisfactory to your counsel, to the effect that:
(i) The Trustee is a national association, duly organized and
validly existing in good standing under the laws of the United States, and
has all requisite power and authority to enter into the Pooling and
Servicing Agreement and to perform its obligations thereunder.
(ii) No action, suit, proceeding or investigation is now pending, or
to the knowledge of such counsel, threatened, against the Trustee that
could materially adversely affect the ability of the Trustee to perform its
obligations under the Pooling and Servicing Agreement.
(iii) The Trustee has duly authorized, executed and delivered the
applicable Pooling and Servicing Agreement and such Pooling and Servicing
Agreement will constitute the legal, valid and binding obligation of the
Trustee.
(iv) The Trustee has full power and authority to execute and deliver
the applicable Pooling and Servicing Agreement and to perform its
obligations thereunder.
(v) No consent, approval or authorization of, or registration,
declaration or filing with, any court or governmental agency or body of the
jurisdiction of its organization is required for the execution, delivery or
performance by the Trustee of the Pooling and Servicing Agreement.
15
(vi) The Certificates have been duly and validly executed,
authenticated and delivered by the Trustee in accordance with the Pooling
and Servicing Agreement.
(vii) The performance by the Trustee of its duties pursuant to the
Pooling and Servicing Agreement does not conflict with or result in a
breach or violation of any term or provision of, or constitute a default
under, any statute or regulation currently governing the Trustee.
In rendering such opinion, such counsel may rely, as to matters of fact,
to the extent deemed proper and stated therein, on certificates of responsible
officers of the Trustee or public officials.
3) The favorable opinion of counsel to the Servicer, dated as of the
applicable Closing Time, addressed to you and in form and scope
satisfactory to your counsel, to the effect that:
(i) The Servicer is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation.
(ii) The execution and delivery by the Servicer of the applicable
Pooling and Servicing Agreement is within the corporate power of the
Servicer and has been duly authorized by all necessary corporate action on
the part of the Servicer; and to the knowledge of such counsel, neither
the execution and delivery of either such instrument, nor the consummation
of the transactions provided for therein, nor compliance with the
provisions thereof, will conflict with or constitute a breach of, or
default under, any contract, indenture, mortgage, loan agreement, note,
lease, deed of trust, or other instrument to which the Servicer is a party
or by which it may be bound, nor will such action result in any violation
of the provisions of the charter or by-laws of the Servicer or to the
knowledge of such counsel, any law, administrative regulation or
administrative or court decree.
(iii) The applicable Pooling and Servicing Agreement has been duly
executed and delivered by the Servicer and constitutes a legal, valid and
binding obligation of the Servicer enforceable against the Servicer in
accordance with its terms, except that such enforceability thereof may be
subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally and subject,
as to enforceability, to general principles of equity (regardless whether
enforcement is sought in a proceeding in equity or at law).
(iv) The execution, delivery and performance by the Servicer of the
applicable Pooling and Servicing Agreement do not require the consent or
approval of, the giving of notice to, the registration with, or the taking
of any other action in
16
respect of any federal, state or other governmental agency or authority
which has not previously been effected.
(v) No action, suit or proceeding of which such counsel is aware is
before or by any court or governmental agency or body, domestic or
foreign, is now pending or, to the knowledge of such counsel, threatened,
against the Servicer which might materially and adversely affect the
performance by the Servicer under, or the validity or enforceability of
the applicable Pooling and Servicing Agreement.
(vi) The description of the Servicer in the applicable Prospectus
Supplement is true and correct in all material respects.
4) The favorable opinion or opinions, dated as of the applicable
Closing Time, of counsel for the Underwriters, acceptable to the
Underwriters.
5) The favorable opinion, dated as of the applicable Closing Time,
of counsel for Michigan National, acceptable to the Underwriters.
(c) At the applicable Closing Time you shall have received a certificate
of the President or a Vice President and the Treasurer or the Secretary of each
of the Company and Michigan National, dated as of such Closing Time, to the
effect that the representations and warranties of the Company or Michigan
National, 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 Michigan National, as the case may be, has complied with
all agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Time.
(d) You shall have received from Ernst & Young with respect to certain
information relating to the Company and from Deloitte & Touche with respect to
certain other information in the Prospectus Supplement, or other independent
certified public accountants acceptable to you, letters, dated as of the date of
the applicable Terms Agreement and as of the applicable Closing Time, delivered
at such times, in the form and substance reasonably satisfactory to you.
(e) At the applicable Closing Time, with respect to a Series of
Certificates, each of the representations and warranties of the Servicer set
forth in the related Pooling and Servicing Agreement will be true and correct
and you shall have received a Certificate of an Executive Vice President, Senior
Vice President or Vice President of the Servicer, dated as of such Closing Time,
to such effect.
(f) At the applicable Closing Time, with respect to a Series of
Certificates, the Certificates shall have received the certificate rating or
ratings specified in the related Terms Agreement.
17
(g) At the applicable Closing Time, counsel for the Underwriters shall
have been furnished with such other documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Certificates as herein contemplated and related proceedings or
in order to evidence the accuracy and completeness of any of the representations
and warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of the Certificates as herein contemplated shall be reasonably satisfactory
in form and substance to you and counsel for the Underwriters.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled or, if any of the opinions and certificates
required hereby shall not be in all material respects reasonably satisfactory to
you and your counsel, the applicable Terms Agreement may be terminated by you by
notice to the Company at any time at or prior to the applicable Closing Time,
and such termination shall be without liability of any party to any other party
except as provided in Section 5.
SECTION 5. Payment of Expenses. Except as otherwise provided in the
applicable Terms Agreement, the Company covenants and agrees with the
Underwriters that the Company will pay or cause to be paid all expenses incident
to the performance of its obligations under this Agreement and all other fees
and expenses associated with the transactions referred to herein, including, but
not limited to, the fees and expenses of the Trustee, Rating Agencies, printer,
accounting firms, the fees and expenses relating to the establishment of the
Company's shelf registration statement and related ongoing fees and expenses;
provided, however, that the Underwriters covenant and agree to pay all of their
own costs and expenses, including underwriting and due diligence expenses, the
fees of their counsel, transfer taxes on the resale of any of the Certificates
by them and any advertising expenses connected with any offers they may make,
and CSFB agrees to pay or cause to be paid all expenses as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Certificates by CSFB.
SECTION 6. Indemnification.
(a) Except as otherwise provided in the applicable Terms Agreement,
the Company and Michigan National, jointly and severally, will indemnify
and hold harmless the Underwriters and each person, if any, who controls
the Underwriters within the meaning of the 1933 Act, against any losses,
claims, damages, expenses or liabilities, joint or several, to which such
Underwriter or such controlling person may become subject, under the 1933
Act or otherwise, insofar as such losses, claims, damages, expenses or
liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto), including any errors
in the CSFB Information (as defined in Section 10 hereof) to the extent
caused by errors in the Pool Information, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
18
therein, in light of the circumstances under which they were made, not
misleading in each case in respect of the relevant Certificates, and will
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by it in connection with investigating or defending
any such action or claim; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any such document
in reliance upon and in conformity with written information furnished to
the Company by or on behalf of the Underwriters expressly for use therein.
This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) The Underwriters, severally and not jointly, will indemnify and
hold harmless the Company, each of its officers who signed the
Registration Statement, its directors, and any person controlling the
Company within the meaning of the 1933 Act against any losses, claims,
damages, expenses or liabilities to which the Company or any such officer,
director or controlling person may become subject, under the 1933 Act or
otherwise, insofar as such losses, claims, damages, expenses or
liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto), or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Underwriters
expressly for use therein and will reimburse the Company or any such
director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company, any such officer, director or
controlling person in connection with investigating or defending any such
action or claim. This indemnity agreement is in addition to any liability
which the Underwriters may otherwise have. The Company acknowledges that,
unless otherwise set forth in the applicable Terms Agreement, the
statements set forth in the first sentence of the third paragraph up from
the bottom of the cover page, and the first, second, third and sixth
paragraphs under the caption "Method of Distribution" (other than the
second sentence of such first paragraph) each as included in the
applicable Prospectus Supplement relating to a Series of Certificates,
together with the CSFB Information (as defined in Section 10 hereof) other
than any inaccuracies therein which are caused by errors in the Pool
Information relating to a Series of Certificates constitute the only
information furnished in writing by or on behalf of the Underwriters
expressly for use in the Registration Statement relating to such Series of
Certificates as originally filed or in any amendment thereof, any related
preliminary prospectus or the Prospectus or in any amendment thereof or
supplement thereto, as the case may be.
19
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an
indemnifying party under this Section, notify such indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may
have to any indemnified party otherwise than under this Section. In case
any such action shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party);
and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under this Section for any
legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation.
Notwithstanding the foregoing, the indemnified party or parties shall have
the right to employ its or their own counsel in any such case and the fees
and expenses of one such counsel shall be at the expense of the
indemnifying party if (i) the employment of such counsel shall have been
authorized in writing by the indemnifying party in connection with the
defense of such action, (ii) the indemnifying party shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) the
indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them and/or other indemnified parties
which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have
the right to direct the defense of such action on behalf of the
indemnified party). Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any
settlement of any claim or action effected without its written consent;
provided, however, that such consent was not unreasonably withheld.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages,
expenses or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, expenses or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and 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
20
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company to the total underwriting
discounts and commissions (or in the case of a public offering in
negotiated transactions, the difference between the proceeds to the
Company and the aggregate price received from the public) received by such
Underwriters. The relative fault of the Company on the one hand and the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such Underwriters
on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. Notwithstanding anything to the contrary in this Section 6(d),
if the losses, claims, damages or liabilities (or actions in 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 CSFB 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 CSFB 8-K
which resulted in such losses, claims, damages or liabilities (or actions
in respect thereof), as well as any other equitable considerations. The
Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were determined by pro
rata allocation even if the Underwriters were treated as one entity for
such purpose or by any other method of allocation which does not take
account of the equitable considerations referred to in this subsection
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigation or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Certificates underwritten by it and
distributed to the public were sold to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters to contribute
pursuant to this subsection (d) are several in proportion to their
respective underwriting obligations with respect to such Certificates and
not joint.
21
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
Michigan National, whether or not arising in the ordinary course of
business, which in your judgment would materially impair the market for,
or the investment quality of, the Certificates, or (ii) if there has
occurred any material outbreak or escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the
United States is such as to make it, in your reasonable judgment,
impracticable to market the Certificates or enforce contracts for the sale
of the Certificates, or (iii) if trading in securities generally on either
the New York Stock Exchange or the American Stock Exchange has been
suspended or materially limited or any setting of minimum prices shall
have been established or (iv) if a general moratorium of commercial
banking activities has been declared by either Federal or New York State
authorities. In the event of any such termination, (A) the covenants set
forth in Section 3 with respect to any offering of Certificates shall
remain in effect so long as the Underwriters own any such Certificates
purchased from the Company pursuant to the applicable Terms Agreement and
(B) the covenant set forth in Section 3(c), the provisions of Section 5,
the indemnity agreement and contribution provisions set forth in Section
6, and the provisions of Sections 7 and 12 shall remain in effect.
SECTION 9. Default by One or More of the Underwriters.
(a) If one or more of the Underwriters participating in an
offering of Certificates shall fail at the applicable Closing Time
to purchase the Certificates which it or they are obligated to
purchase hereunder and under the applicable Terms Agreement (the
"Defaulted Certificates"), then such of you as are named therein
shall arrange for you or another party or other parties to purchase
the Defaulted Certificates upon the terms contained herein. If
within thirty-six hours after such default by any Underwriter you do
not arrange for the purchase of such Defaulted Certificates, then
the Company shall be entitled to a further
22
period of thirty-six hours within which to procure another party or
other parties reasonably satisfactory to you to purchase such
Defaulted Certificates on the terms contained herein. In the event
that, within the respective prescribed periods, you notify the
Company that you have so arranged for the purchase of such Defaulted
Certificates, or the Company notifies you that it has so arranged
for the purchase of such Defaulted Certificates, you or the Company
shall have the right to postpone the Closing Time for a period of
not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration
Statement or the Prospectus which in your opinion may thereby be
made reasonably necessary. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section
with like effect as if such person had originally been party to this
Agreement with respect to the Certificate.
(b) If, after giving effect to any arrangements for the
purchase of Defaulted Certificates of a defaulting Underwriter or
Underwriters by you and the Company as provided in subsection (a)
above, the aggregate principal amount of such Defaulted Certificates
which remains unpurchased does not exceed 10% of the aggregate
principal amount of the Certificates to be purchased pursuant to the
applicable Terms Agreement, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal
amount of Certificates which such Underwriter agreed to purchase
hereunder and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal
amount of Certificates which such Underwriter agreed to purchase
pursuant to the applicable Terms Agreement) of the Defaulted
Certificates of the defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Defaulted Certificates of the defaulting Underwriter
or Underwriters by you and the Company as provided in subsection (a)
above, the aggregate principal amount of such Defaulted Certificates
which remains unpurchased exceeds 10% of the aggregate principal
amount of the Certificates to be purchased pursuant to the
applicable Terms Agreement, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting
Underwriters to purchase Defaulted Certificates of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by
the Company and the Underwriters as provided in Section 5 hereof and
the indemnity agreement and contribution provisions in Section 6
hereof; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
SECTION 10. Computational Materials and ABS Term Sheets.
23
(a) CSFB 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 CSFB,
CSFB 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, Peabody
Acceptance Corporation I, et al., as modified by a no-action letter
(the "First PSA No-Action Letter") issued by the staff of the
Commission on May 27, 1994 to the Public Securities Association (the
"PSA") and as further modified by a no-action letter (the "Second
PSA No-Action Letter", and together with the Xxxxxx No-Action Letter
and the First PSA No-Action Letter, the "No-Action Letters") issued
by the staff of the Commission on February 17, 1995 to the PSA; (ii)
"Structural Term Sheets" as defined in the Second PSA No-Action
Letter; and/or (iii) "Collateral Term Sheets" as defined in the
Second PSA No-Action Letter. AAI covenants and agrees that it will
not, prepare any Computational Materials, Structural Term Sheets or
Collateral Term Sheets in connection with the offering of
Certificates pursuant to this Underwriting Agreement except as
provided for in the Terms Agreement which relates to an offering of
Certificates.
(b) In connection with each Series of Certificates, CSFB 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 CSFB and
required to be filed with the Commission in accordance with the
No-Action Letters (such Computational Materials, the "CSFB Furnished
Computational Materials").
(c) In connection with each Series of Certificates, CSFB 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 CSFB and
required to be filed with the Commission in accordance with the
No-Action Letters (such Structural Term Sheets, the "CSFB Furnished
Structural Term Sheets").
(d) In connection with each Series of Certificates, CSFB shall
furnish to the Company (via hard copy), within one (1) business day
after the first use thereof, all Collateral Term Sheets used by CSFB
and required to be filed with the Commission in accordance with the
No-Action Letters (such Collateral Term Sheets, the "CSFB 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 "CSFB 8-K," and each a "CSFB 8-K") which
shall include as one or more exhibits thereto the CSFB Furnished
Computational Materials, the CSFB Furnished Structural Term Sheets
and the CSFB Furnished Collateral Term Sheets. Notwithstanding any
other provision in the Underwriting Agreement, CSFB agrees
24
to pay up to $500.00 to the Company for the reasonable and customary
costs and expenses of the Company incurred in connection with the
filing by the Company of any Computational Materials with the
Commission.
(f) CSFB shall cooperate with the Company and with Deloitte &
Touche in obtaining a letter, in form and substance satisfactory to
the Company and CSFB, of Deloitte & Touche regarding the information
in any CSFB 8-K consisting of CSFB Furnished Computational Materials
and/or CSFB Furnished Structural Term Sheets.
(g) CSFB represents and warrants to, and covenants with, the
Company that the CSFB Information (defined below) is not misleading
and not inaccurate in any material respect and that any Pool
Information (defined below) contained in any CSFB 8-K which is not
otherwise inaccurate in any material respect is not presented in the
CSFB 8-K in a way that is either misleading or inaccurate in any
material respect. CSFB 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 CSFB
8-K are found to include any information that is misleading or
inaccurate in any material respect, CSFB promptly shall inform the
Company of such finding, provide the Company with revised and/or
corrected Computational Materials or ABS Term Sheets, as the case
may be, and promptly prepare and deliver to the Company (in hard
copy) for filing with the Commission in accordance herewith, revised
and/or corrected Computational Materials or ABS Term Sheets, as the
case may be.
(h) CSFB covenants that all Computational Materials and CSFB
Term Sheets used by it shall contain a legend substantially as set
forth below:
"THIS INFORMATION IS FURNISHED TO YOU SOLELY BY CREDIT SUISSE
FIRST BOSTON 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) CSFB 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 MORTGAGE LOANS CONTAINED IN THE PROSPECTUS
SUPPLEMENT."
25
(j) CSFB 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 "CSFB
Information" means such portion, if any, of the information
contained in the CSFB 8-K that is not Pool Information. "Pool
Information" means the information furnished to the Underwriters by
the Company regarding the Mortgage Loans; provided, however, that if
any information that would otherwise constitute Pool Information is
presented in the CSFB 8-K in a way that is either inaccurate or
misleading in any material respect, such information shall not be
Pool Information.
(l) If the Underwriters do not provide any Computational
Materials or ABS Term Sheets to the Company pursuant to subsections
(b) - (d) above, the Underwriters shall be deemed to have
represented, as of the Closing Time, that they did not provide any
prospective investors with any information in written or electronic
form in connection with the offering of the Certificates that is
required to be filed with the Commission in accordance with the
No-Action Letters, and the Underwriters shall provide the Company
with a certification to that effect at the Closing Time.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed, delivered,
telexed, or telegraphed and confirmed or transmitted by any standard form of
telecommunication. Notices to CSFB shall be directed to you at the address set
forth on the first page hereof, to the attention of Xxxx Xxxxxxx, with a copy to
the General Counsel's office and notices to AAI shall be directed to you at the
address set forth on the first page hereof, to the attention of Fixed Income
Department--Xxxxx Xxxxxxx; with a copy to Legal Department, ABN AMRO
Incorporated, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention:
Xxxx Xxxxx. Notices to the Company or to Michigan National shall be directed to
ABN AMRO Mortgage Corporation Securitization Department, c/o Michigan National
Bank, 0000 Xxxx Xxx Xxxxxx Xxxx, Xxxx, Xxxxxxxx, attention: Xxxxxxx Xxxxxxx,
with a copy to ABN AMRO North America, Inc., 000 X. XxXxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxx, Attention: Xxxx Xxxxxx--Associate General Counsel.
SECTION 12. Parties. This Agreement shall be binding upon and inure solely
to the benefit of you and the Company and to the extent provided in Section 6
hereof, the officers and directors of the Company and each person who controls
the Company or any Underwriter and their respective heirs, executors,
administrators, successors and assigns and any Terms Agreement shall be binding
upon and inure solely to the benefit of the Company and any Underwriter who
becomes a party to a Terms Agreement and to the extent provided in Section 6
hereof, the officers and directors of the Company and each person who controls
the Company or any Underwriter and their respective heirs, executors,
administrators, successors and assigns. Nothing expressed or mentioned in this
26
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/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
MICHIGAN NATIONAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
----------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Senior Vice President and
Treasurer
CONFIRMED AND ACCEPTED, as of
the date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Director
ABN AMRO INCORPORATED
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: First Vice President
28
EXHIBIT A
PASS-THROUGH CERTIFICATES
ABN AMRO MORTGAGE CORPORATION, DEPOSITOR
TERMS AGREEMENT
Dated: _________, ____
To: ABN AMRO MORTGAGE CORPORATION
Re: Underwriting Agreement, dated as of April [___], 2001 (the "Underwriting
Agreement")
Ladies and Gentlemen:
The undersigned (being herein called the "Underwriters"), understand
that ABN AMRO Mortgage Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell $_________ original principal amount of Pass-Through
Certificates described below (the "Certificates"). The Certificates will be
issued under a Pooling and Servicing Agreement dated as of _______________ among
the Company, as depositor, _______________, as servicer and _____________ as
trustee. The terms of the Certificates are summarized below and are more fully
described in the Company's Prospectus supplement prepared with respect to the
Certificates.
All the provisions (including defined terms) contained in the
Underwriting Agreement are incorporated by reference herein in their entirety
and shall be deemed to be part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. The Closing Time referred to
in Section 2 of the Underwriting Agreement shall be _______ a.m., [Chicago,
Illinois] time, on _____________. Subject to the terms and conditions set forth
or incorporated by reference herein, the Company hereby agrees to sell and the
Underwriters agree to purchase [, severally and not jointly,] the [respective]
original principal amount[s] of Certificates set forth opposite [its] [their]
name[s] in Exhibit I hereto at the purchase price set forth below.
The Underwriters will offer the Certificates for sale upon the terms
and conditions set forth in the Prospectus.
Subject to the terms and conditions set forth or incorporated by
reference herein, the Underwriters will pay for the Certificates at the time and
place and in the manner set forth in the Underwriting Agreement.
Series Designation: ____________
A-1
Terms of the Certificates:
Original
Principal Remittance
Classes Amount* Rate
------- --------- ----------
* Approximate. Subject to permitted variance in each case of plus or minus 5%.
Certificate Rating:
_____ by [Rating Agency]
_____ by [Rating Agency]
REMIC Election:
The Company [does not] intend[s] to cause the Mortgage Pool to be treated
as a REMIC.
Credit Enhancement:
Cut-off Date:
The Cut-off Date is ___________, ____.
Remittance Date:
The ____ day of each month (or, if such ____ day is not a business day,
the business day immediately following) commencing __________, ____.
Purchase Price:
The purchase price payable by the Underwriter for the Class __
Certificates is ___% of the aggregate principal balance of the Class __
Certificates as of the Closing Date plus accrued interest at the per annum rate
of ___% from __________, ____ up to but not including the Closing Date.
Underwriting Commission:
A-2
Notwithstanding anything to the contrary in the Underwriting Agreement, no
additional underwriting commission shall be payable by the Company to the
Underwriter in connection with the purchase of the Certificates.
Information Provided by Underwriter:
Closing Date and Location:
__________ ____ at the [Chicago, Illinois] offices of Xxxxx, Xxxxx &
Xxxxx.
A-3
Please confirm your agreement by having an authorized Officer sign a copy
of this Agreement in the space set forth below and returning a signed copy to
us.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Director
ABN AMRO INCORPORATED
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: First Vice President
ACCEPTED:
ABN AMRO MORTGAGE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
MICHIGAN NATIONAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
---------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Senior Vice President and Treasurer
A-4
Exhibit I
Original
Principal
Amount of
Name Certificates
---- ------------
Total =============
A-5
