AMAC, SERIES 1998-1
MORTGAGE PASS-THROUGH CERTIFICATES
UNDERWRITING AGREEMENT
March 27, 1998
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 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, Xxxxxxxxx, Lufkin
& 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.
333-42127), relating to the offering of Certificates from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended
(the "1933 Act"), and has filed, and proposes to file, such amendments
thereto as may have been required to the date hereof and the same has
become effective under the 1933 Act and the rules of the Commission
thereunder (the "Regulations") and no stop order suspending the
effectiveness of such registration statement has been issued and no
proceedings for that purpose have been initiated or, to the Company's
knowledge, threatened, by the Commission. Such registration statement,
including incorporated documents, exhibits and financial statements, as
amended at the time when it became effective under the 1933 Act, and the
prospectus relating to the sale of Certificates by the Company
constituting a part thereof, as from time to time each is amended or
supplemented pursuant to the 1933 Act or otherwise, are referred to
herein as the "Registration Statement" and the "Prospectus,"
respectively; provided, however, that a supplement to the Prospectus
contemplated by Section 3(a) hereof (a "Prospectus Supplement") shall be
deemed to have supplemented the Prospectus only with respect to the
offering or offerings of Certificates to which it relates. Any reference
herein to the Registration Statement, a preliminary
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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 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 Company which
are required to be described in the Registration Statement or
Prospectus or filed as exhibits to the Registration Statement pursuant
to the 1933 Act or the Regulations which have not been so described or
filed.
(2) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with corporate power and authority to enter into and perform its
obligations under this Agreement, the applicable Pooling and Servicing
Agreement, and with respect to a Series of Certificates, the Certificates
and the applicable Terms Agreement; and the Company is duly qualified or
registered as a foreign corporation to transact business and is in good
standing in each jurisdiction in which the ownership or lease of its
properties or the conduct of its business requires such qualification.
(3) The Company is not in violation of its certificate of
incorporation or by-laws or in default in the performance or observance
of any material obligation, agreement,
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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 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
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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.
(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
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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.
(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.
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(b) Standard Federal Bancorporation, Inc. ("Standard Federal")
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) Standard Federal 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 Standard Federal 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) Standard Federal 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 Standard Federal or which might materially and adversely affect the
properties or assets thereof or Standard Federal's ability to perform its
obligations under this Agreement or the applicable Terms Agreement.
(3) The execution and delivery by Standard Federal of this
Agreement and the applicable Terms Agreement are within the corporate
power of Standard Federal and have been duly authorized by all necessary
corporate action on the part of Standard Federal; and with respect to a
Series of Certificates described in the applicable Terms Agreement,
neither the execution and delivery by Standard Federal of this Agreement
and such Terms Agreement, nor the consummation by Standard Federal of the
transactions herein or therein contemplated, nor compliance by Standard
Federal 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 Standard
Federal, pursuant to any material indenture, mortgage, contract or other
material instrument to which Standard Federal is a party or by which it
is bound or to which the property or assets of Standard Federal are
subject, or result in the violation of the provisions of the certificate
of incorporation or by-laws of Standard Federal or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over Standard Federal 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 Standard
Federal, and each constitutes, or will constitute when
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so executed and delivered, a legal, valid and binding
instrument enforceable against Standard Federal 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 Standard Federal, and will constitute when so executed and delivered,
a legal, valid and binding instrument enforceable against Standard
Federal 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 Standard Federal or, to the knowledge of Standard
Federal, threatened against Standard Federal, 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 Standard Federal of its obligations under, or which
would if adversely determined materially and adversely affect the
validity or enforceability of, this Agreement, the applicable Terms
Agreement, or such Certificates or (iv) seeking to adversely affect the
federal income tax attributes of such Certificates described in the
Prospectus and the related Prospectus Supplement.
SECTION 2. PURCHASE AND SALE. The commitment of each Underwriter to
purchase Certificates pursuant to any Terms Agreement shall be several and not
joint and shall be deemed to have been made on the basis of the representations
and warranties herein contained and shall be subject to the terms and conditions
herein set forth.
Payment of the purchase price for, and delivery of, any Certificates to
be purchased by the Underwriters shall be made at the offices of Xxxxx, Xxxxx &
Xxxxx, Chicago, Illinois or at such other place as shall be agreed upon by you
and the Company, at such time or date as shall be agreed upon by you and the
Company in the Terms Agreement (each such time and date being referred to as a
"Closing Time"). Unless otherwise specified in the applicable Terms Agreement,
payment shall be made to the Company in immediately available Federal funds
wired to such bank as may be designated by the Company. Such Certificates shall
be in such denominations and registered in such names as you may request in
writing at least two business days prior to the applicable Closing Time.
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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 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
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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 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
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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:
(i) The Company is validly existing as a corporation in
good standing under the laws of the State of Delaware.
(ii) This Agreement and the applicable Terms Agreement
have been duly authorized, executed and delivered by the Company,
and each is a valid and binding obligation of the Company.
(iii) The applicable Pooling and Servicing Agreement has
been duly authorized, executed and delivered by the Company, and
is a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms,
except that (A) such enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally and (B) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
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(iv) The execution and delivery by the Company of this
Agreement, the applicable Terms Agreement and applicable Pooling
and Servicing Agreement and the signing of the Registration
Statement by the Company are within the corporate power of the
Company and have been duly authorized by all necessary corporate
action on the part of the Company; and neither the issue and sale
of the Certificates nor the consummation of the transactions
contemplated herein or therein nor the fulfillment of the terms
hereof or thereof will, conflict with or constitute a breach or
violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Company pursuant to, any contract, indenture, mortgage, or other
instrument to which the Company is a party or by which it may be
bound of which such counsel is aware, other than the lien or liens
created by the applicable Pooling and Servicing Agreement, nor
will such action result in any violation of the provisions of the
certificate of incorporation or by-laws of the Company or, any
statute, rule or regulation to which the Company is subject or by
which it is bound or any writ, injunction or decree of any court,
governmental authority or regulatory body to which it is subject
or by which it is bound of which such counsel is aware.
(v) The Certificates have been duly authorized and, when
executed and authenticated as specified in the related Pooling and
Servicing Agreement and delivered and paid for, will be validly
issued, fully paid, nonassessable and entitled to the benefits of
the related Pooling and Servicing Agreement.
(vi) Assuming strict compliance by the Underwriters with
the provisions of this Agreement, no filing or registration with
or notice to or consent, approval, authorization, order or
qualification of or with any court or governmental agency or body
is required for the issuance and sale of the Certificates or the
consummation by the Company of the transactions contemplated by
this Agreement, the applicable Pooling and Servicing Agreement or
the applicable Terms Agreement, except the registration under the
1933 Act of the Certificates, and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Certificates by the Underwriters.
(vii) Other than as may be set forth or contemplated in
the Prospectus, there is no action, suit or proceeding of which
such counsel is aware before or by any court or governmental
agency or body, domestic or foreign, now pending or, to 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 or the Pooling
and Servicing Agreement, or which is required to be disclosed in
the Registration Statement.
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(viii) The Registration Statement is effective under the
1933 Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(ix) The applicable Pooling and Servicing Agreement is
not required to be qualified under the Trust Indenture Act of
1939, as amended.
(x) The Registration Statement and the Prospectus (other
than the financial statements and other financial and statistical
information included therein, as to which no opinion need be
rendered) as of their respective effective or issue dates,
complied as to form in all material respects with the requirements
of the 1933 Act and the Regulations thereunder.
(xi) (A) The statements in the Prospectus under the
headings "ERISA Considerations" and "Certain Federal Income Tax
Consequences" and the statements in the applicable Prospectus
Supplement under the headings "Certain Federal Income Tax
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 and Servicing
Agreement, constitute a fair summary of the provisions purported
to be summarized.
(xiii) The Trust Funds created by the applicable Pooling
and Servicing Agreement is not, and will not as a result of the
offer and sale of the Certificates as contemplated in the
Prospectus and in this Agreement become, required to be registered
as an "investment company" under the 1940 Act.
(xiv) The Classes of Certificates so designated in the
Prospectus Supplement will be "mortgage related securities", as
defined in Section 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.
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(xv) Assuming (a) ongoing compliance with all of the
provisions of the Pooling and Servicing Agreement and (b) the
filing of elections, in accordance with the Pooling and Servicing
Agreement, to be treated as "real estate mortgage investment
conduits" ("REMICs") pursuant to Section 860D of the Internal
Revenue Code of 1986, as amended (the "Code") for Federal income
tax purposes, REMIC I and REMIC II of the Trust Fund will qualify
as REMICs as of the Closing Date and will continue to qualify as
REMICs for so long as there is compliance with amendments after
the date hereof to any applicable provisions of the Code and
applicable Treasury Regulations.
(xvi) Assuming that REMIC I and REMIC II of the Trust Fund
are treated as REMICs for Federal income tax purposes, neither of
them nor the Trust Fund will be subject as an entity to any tax
imposed on income, franchise or capital stock by the laws of
Illinois.
Such counsel shall deliver to you such additional opinions addressing the
transfer by the Company to the Trustee of its right, title and interest in and
to the Mortgage Loans and other property included in the Trust Fund at the
Closing Time as may be required by each Rating Agency rating the Certificates.
Such counsel shall state that it has participated in conferences with
officers and other representatives of the Company, your counsel, representatives
of the independent accountants for the Company and you at which the contents of
the Registration Statement and the Prospectus and related matters were discussed
and, although such counsel is not passing upon and does not assume
responsibility for, the factual accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as
stated in paragraphs (xi) and (xii) above) and has made no independent check or
verification thereof for the purpose of rendering its opinion, on the basis of
the foregoing, nothing has come to their attention that leads such counsel to
believe that either the Registration Statement, at the time it became effective
and at the applicable Closing Time, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or that the Prospectus
contained or contains as of the date thereof and at the applicable Closing Time
any untrue statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that such counsel need
express no view with respect to the financial statements, schedules and other
financial and statistical data included in or incorporated by reference into the
Registration Statement, the Prospectus or the Prospectus Supplement.
Such counsel may state that their opinions relate only to laws of the
State of New York, the Federal laws of the United States and the General
Corporation Law of the State of Delaware.
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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) 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 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.
(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.
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(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) To the knowledge of such counsel, the
execution, delivery and performance by the Servicer of the
applicable Pooling and Servicing Agreement do not require the
consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of any federal,
state or other governmental agency or authority which has not
previously been effected.
(v) To the knowledge of such counsel, 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 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.
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(5) The favorable opinion, dated the applicable Closing
Time of counsel for Standard Federal, 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 Standard Federal, dated as of such
Closing Time, to the effect that the representations and warranties of
the Company or Standard Federal, 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 Standard
Federal, as the case may be, has complied with all agreements and
satisfied all the conditions on its part to be performed or satisfied at
or prior to the Closing Time.
(d) You shall have received from Ernst & Young with respect to
certain information relating to the Company and from Deloitte & Touche
with respect to certain other information in the Prospectus Supplement,
or other independent certified public accountants acceptable to you,
letters, dated as of the date of the applicable Terms Agreement and as of
the applicable Closing Time, delivered at such times, in the form and
substance reasonably satisfactory to you.
(e) At the applicable Closing Time, with respect to a Series of
Certificates, each of the representations and warranties of the Servicer
set forth in the related Pooling and Servicing Agreement will be true and
correct and you shall have received a Certificate of an Executive Vice
President, Senior Vice President or Vice President of the Servicer, dated
as of such Closing Time, to such effect.
(f) At the applicable Closing Time, with respect to a Series of
Certificates, the Certificates shall have received the certificate rating
or ratings specified in the related Terms Agreement.
(g) At the applicable Closing Time, counsel for the
Underwriters shall have been furnished with such other documents and
opinions as they may reasonably require for the 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.
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SECTION 5. PAYMENT OF EXPENSES. 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 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 Standard Federal, jointly and severally,
will indemnify and hold harmless the Underwriters and each person, if
any, who controls the Underwriters within the meaning of the 1933 Act,
against any losses, claims, damages, expenses or liabilities, joint or
several, to which such Underwriter or such controlling person may become
subject, under the 1933 Act or otherwise, insofar as such losses, claims,
damages, expenses or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement
thereto), or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading in each case in
respect of the relevant Certificates, and will reimburse each such
indemnified party for any legal or other expenses reasonably incurred by
it in connection with investigating or defending any such action or
claim; provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any such document in
reliance upon and in conformity with written information furnished to the
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
-18-
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 last paragraph of the cover page, 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
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have the right to direct the defense of such action on behalf of the
indemnified party). Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any
settlement of any claim or action effected without its written
consent; provided, however, that such consent was not unreasonably
withheld.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages, expenses or liabilities (or actions in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages, expenses or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other
from the offering of the Certificates to which such loss, claim, damage,
expense or liability (or actions in respect thereof) relates. If,
however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
(or actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company 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 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
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take account of the equitable considerations referred to in this
subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigation or defending
any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Certificates underwritten by it and distributed to the public were
sold to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters to contribute
pursuant to this subsection (d) are several in proportion to their
respective underwriting obligations with respect to such Certificates
and not joint.
SECTION 7. REPRESENTATIONS, WARRANTIES, AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any termination of this Agreement, or the applicable Terms Agreement or any
investigation made by or on behalf of the Underwriters or any controlling person
thereof, or by or on behalf of the Company, its officers or directors and shall
survive delivery of any Certificates to the Underwriters.
SECTION 8. TERMINATION OF AGREEMENT. This Agreement may be terminated
for any reason at any time by either the Company or you upon the giving of
thirty days' notice of such termination to the other party hereto; provided,
however, that if a Terms Agreement has been entered into with respect to a
particular transaction, this Agreement and the Terms Agreement may not be
terminated in the manner set forth in this sentence with respect to such
particular transaction. You, as Representative of the Underwriters named in any
Terms Agreement may also terminate such Terms Agreement, immediately upon notice
to the Company, at any time at or prior to the applicable Closing Time (i) if
there has been, since the date of such Terms Agreement or since the respective
dates as of which information is given in the Registration Statement or
Prospectus, any change, or any development involving a prospective change, in or
affecting the condition, financial or otherwise, earnings, affairs or business
of the Company or Standard Federal, 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
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3 with respect to any offering of Certificates shall remain in effect so long
as the Underwriters own any such Certificates purchased from the Company
pursuant to the applicable Terms Agreement and (B) the covenant set forth in
Section 3(c), the provisions of Section 5, the indemnity agreement and
contribution provisions set forth in Section 6, and the provisions of
Sections 7 and 12 shall remain in effect.
SECTION 9. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS.
(a) If one or more of the Underwriters participating in an
offering of Certificates shall fail at the applicable Closing Time to
purchase the Certificates which it or they are obligated to purchase
hereunder and under the applicable Terms Agreement (the "Defaulted
Certificates"), then such of you as are named therein shall arrange for
you or another party or other parties to purchase the Defaulted
Certificates upon the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase
of such Defaulted Certificates, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another party
or other parties reasonably satisfactory to you to purchase such
Defaulted Certificates on the terms contained herein. In the event that,
within the respective prescribed periods, you notify the Company that you
have so arranged for the purchase of such Defaulted Certificates, or the
Company notifies you that it has so arranged for the purchase of such
Defaulted Certificates, you or the Company shall have the right to
postpone the Closing Time for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to
the Registration Statement or the Prospectus which in your opinion may
thereby be made reasonably necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section
with like effect as if such person had originally been party to this
Agreement with respect to the Certificate.
(b) If, after giving effect to any arrangements for the
purchase of Defaulted Certificates of a defaulting Underwriter or
Underwriters by you and the Company as provided in subsection (a)
above, the aggregate principal amount of such Defaulted Certificates
which remains unpurchased does not exceed 10% of the aggregate
principal amount of the Certificates to be purchased pursuant to the
applicable Terms Agreement, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal
amount of Certificates which such Underwriter agreed to purchase
hereunder and, in addition, to require each non-defaulting Underwriter
to purchase its pro rata share (based on the principal amount of
Certificates which such Underwriter 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
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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, 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 furnish, prepare or
use any Computational Materials, Structural Term Sheets or Collateral
Term Sheets in connection with the offering of Series 1998-1
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 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
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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.
(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.
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(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 MORTGAGE LOANS 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
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 DLJ 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 DLJ shall be directed to you at the
address set forth on the first page hereof, to the attention of Xxxx X.
Xxxxxxxx, 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, attention: Xxxx Xxxxx. Notices to the Company or to
Standard Federal shall be directed to ABN AMRO Mortgage Corporation
Securitization Department, c/o Standard Federal Bank, 0000 Xxxx Xxx Xxxxxx Xxxx,
Xxxx, Xxxxxxxx, attention: Xxxxxxx Xxxxxxx, with a copy to Legal Department, ABN
AMRO North America, 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
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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]
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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/
------------------------------
Name:
Title:
STANDARD FEDERAL BANCORPORATION, INC.
By: /s/
------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: /s/
---------------------------
Name:
Title:
ABN AMRO INCORPORATED
By: /s/
---------------------------
Name:
Title:
EXHIBIT A
PASS-THROUGH CERTIFICATES
ABN AMRO MORTGAGE CORPORATION, DEPOSITOR
TERMS AGREEMENT
Dated: _________, 19__
To: ABN AMRO MORTGAGE CORPORATION
Re: Underwriting Agreement, dated as of March __, 1998 (the "Underwriting
Agreement")
Ladies and Gentlemen:
The undersigned (being herein called the "Underwriters"), understand that
ABN AMRO Mortgage Corporation, a Delaware corporation (the "Company"), proposes
to issue and sell $_________ original principal amount of Pass-Through
Certificates described below (the "Certificates"). The Certificates will be
issued under a Pooling and Servicing Agreement dated as of _______________ among
the Company, as depositor, _______________, as servicer and _____________ as
trustee. The terms of the Certificates are summarized below and are more fully
described in the Company's Prospectus supplement prepared with respect to the
Certificates.
All the provisions (including defined terms) contained in the
Underwriting Agreement are incorporated by reference herein in their entirety
and shall be deemed to be part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein. The Closing Time referred to
in Section 2 of the Underwriting Agreement shall be _______ a.m., [Chicago,
Illinois] time, on _____________. Subject to the terms and conditions set forth
or incorporated by reference herein, the Company hereby agrees to sell and the
Underwriters agree to purchase [, severally and not jointly,] the [respective]
original principal amount[ s] of Certificates set forth opposite [its] [their]
name[s] in Exhibit I hereto at the purchase price set forth below.
The Underwriters will offer the Certificates for sale upon the terms and
conditions set forth in the Prospectus.
Subject to the terms and conditions set forth or incorporated by
reference herein, the Underwriters will pay for the Certificates at the time and
place and in the manner set forth in the Underwriting Agreement.
SERIES DESIGNATION: ____________
TERMS OF THE CERTIFICATES AND UNDERWRITING COMPENSATION:
-1-
Original
Principal Remittance Price to
Classes Amount* Rate Public
------- --------- ---------- --------
**
* Approximate. Subject to permitted variance in each case of plus
or minus 5%.
** The [Class 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 Mortgage 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__.
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.
-2-
UNDERWRITING COMMISSION:
Notwithstanding anything to the contrary in the Underwriting
Agreement, no additional underwriting commission shall be payable by the Company
to the Underwriter in connection with the purchase of the Certificates.
INFORMATION PROVIDED BY UNDERWRITER:
CLOSING DATE AND LOCATION:
__________ 19__ at the [Chicago, Illinois] offices of Xxxxx, Xxxxx
& Xxxxx
-3-
Please confirm your agreement by having an authorized Officer sign
a copy of this Agreement in the space set forth below and returning a signed
copy to us.
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: _____________________________
Name:
Title:
ABN AMRO INCORPORATED
By: ______________________________
Name:
Title:
ACCEPTED:
ABN AMRO MORTGAGE CORPORATION
By: ______________________________
Name:
Title:
STANDARD FEDERAL BANCORPORATION, INC.
By: ______________________________
Name:
Title:
-4-
Exhibit I
Original
Principal
Amount of
Name Certificates
---- ------------
Total ==============
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