EXECUTION
ABN AMRO MORTGAGE CORPORATION
MULTI-CLASS MORTGAGE PASS-THROUGH CERTIFICATES
UNDERWRITING AGREEMENT
----------------------
June 24, 2003
UBS Securities LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABN AMRO Financial Services, Inc.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
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).
ABN AMRO Underwriting Agreement
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, UBS Securities LLC
is sometimes referred to individually herein as "UBS" and ABN AMRO Financial
Services, Inc. is sometimes referred to individually herein as "AAFS"). 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. 333-101550),
relating to the offering of Certificates from time to time in accordance
with Rule 415 under the Securities Act of 1933, as amended (the "1933
Act"), and has filed, and proposes to file, such amendments thereto as may
have been required to the date hereof and the same has become effective
under the 1933 Act and the rules of the Commission thereunder (the
"Regulations") and no stop order suspending the effectiveness of such
registration statement has been issued and no proceedings for that purpose
have been initiated or, to the Company's knowledge, threatened, by the
Commission. Such registration statement, including incorporated documents,
exhibits and financial statements, as amended at the time when it became
effective under the 1933 Act, and the prospectus relating to the sale of
Certificates by the Company constituting a part thereof, as from time to
time each is amended or supplemented pursuant to the 1933 Act or otherwise,
are referred to herein as the "Registration Statement" and the
"Prospectus," respectively; provided, however, that a supplement to the
Prospectus contemplated by Section 3(a) hereof (a "Prospectus Supplement")
shall be deemed to have supplemented the Prospectus only with respect to
the offering or offerings of Certificates to which it relates. Any
reference herein to the Registration Statement, a preliminary prospectus,
the Prospectus or the Prospectus Supplement shall be deemed to refer to and
include the documents incorporated by
ABN AMRO Underwriting Agreement
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 UBS Information (as defined in Section 10 hereof). The
conditions to the use by the Company of a registration statement on Form
S-3 under the 1933 Act, as set forth in the General Instructions to Form
S-3, have been satisfied with respect to the Registration Statement and the
Prospectus. There are no contracts or documents of the Company which are
required to be described in the Registration Statement or Prospectus or
filed as exhibits to the Registration Statement pursuant to the 1933 Act or
the Regulations which have not been so described or filed.
(2) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware with
corporate power and authority to enter into and perform its obligations
under this Agreement, the applicable Pooling and Servicing Agreement, and
with respect to a Series of Certificates, the Certificates and the
applicable Terms Agreement; and the Company is duly qualified or registered
as a foreign corporation to transact business and is in good standing in
each jurisdiction in which the ownership or lease of its properties or the
conduct of its business requires such qualification.
(3) The Company is not in violation of its certificate of
incorporation or by-laws or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
material contract, indenture, mortgage, loan agreement, note, lease or
other material instrument to which it is a party
ABN AMRO Underwriting Agreement
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 affecting creditors' rights generally and
(b) as to enforceability to general principles of equity (regardless of
whether enforcement is sought in a proceeding
ABN AMRO Underwriting Agreement
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 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
ABN AMRO Underwriting Agreement
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.
(b) LaSalle Bank Corporation ("LaSalle") 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
ABN AMRO Underwriting Agreement
Agreement respecting the Certificates being deemed to relate only to the
Certificates described therein):
(1) LaSalle has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to enter into and perform its obligations
under this Agreement, and with respect to a Series of Certificates, the
applicable Terms Agreement; and LaSalle 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) LaSalle 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 LaSalle or which
might materially and adversely affect the properties or assets thereof or
LaSalle's ability to perform its obligations under this Agreement or the
applicable Terms Agreement.
(3) The execution and delivery by LaSalle of this Agreement and the
applicable Terms Agreement are within the corporate power of LaSalle and
have been duly authorized by all necessary corporate action on the part of
LaSalle; and with respect to a Series of Certificates described in the
applicable Terms Agreement, neither the execution and delivery by LaSalle
of this Agreement and such Terms Agreement, nor the consummation by LaSalle
of the transactions herein or therein contemplated, nor compliance by
LaSalle 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 LaSalle,
pursuant to any material indenture, mortgage, contract or other material
instrument to which LaSalle is a party or by which it is bound or to which
the property or assets of LaSalle are subject, or result in the violation
of the provisions of the certificate of incorporation or by-laws of LaSalle
or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over LaSalle 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 LaSalle, and each constitutes,
or will constitute when so executed and delivered, a legal, valid and
binding instrument enforceable against LaSalle 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
ABN AMRO Underwriting Agreement
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
LaSalle, and will constitute when so executed and delivered, a legal, valid
and binding instrument enforceable against LaSalle 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 LaSalle or, to the knowledge of LaSalle, threatened against
LaSalle, 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 LaSalle 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 either Mayer,
Brown, Xxxx & Maw, Chicago, Illinois, Xxxxxxx Xxxxxxxx & Wood, New York, New
York 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.
ABN AMRO Underwriting Agreement
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 with a copy of the Prospectus Supplement for your
review prior to filing such Prospectus Supplement with the Commission.
Thereafter, the Company will promptly transmit copies of the Prospectus
Supplement to the Commission for filing pursuant to Rule 424 under the 1933
Act and will furnish to the Underwriters as many copies of the Prospectus
and such Prospectus Supplement as you shall reasonably request.
(b) If the delivery of a prospectus is required at any time in
connection with the offering or sale of the Certificates described in the
relevant Terms Agreement and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such period of time to amend or supplement the Prospectus
in order to comply with the 1933 Act, the Company agrees to notify you
promptly and upon your request so to amend or supplement the Prospectus and
to prepare and furnish without charge to each Underwriter and to any dealer
in securities as many copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which
will correct such statement or omission or effect such compliance.
(c) During any period in which the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Certificates described in the relevant Terms Agreement the Company will
give you reasonable notice of its intention to file any amendment to the
Registration Statement or any amendment or supplement to the Prospectus,
whether pursuant to the 1933 Act or otherwise, and will furnish you with
copies of any such amendment or supplement or other documents proposed to
be filed a reasonable time in advance of filing.
(d) During any period in which the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Certificates described in the relevant Terms Agreement the Company will
notify you promptly (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the
Commission for filing of any supplement to the Prospectus or any document
other than quarterly and annual reports to be filed pursuant to the 1934
Act, (iii) of the receipt of any
ABN AMRO Underwriting Agreement
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 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
ABN AMRO Underwriting Agreement
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
counsel for the Company, in form and substance satisfactory to such of you
as may be named in the applicable Terms Agreement, substantially to the
effect that:
(i) The Company is validly existing as a corporation in good
standing under the laws of the State of Delaware.
(ii) This Agreement and the applicable Terms Agreement have been
duly authorized, executed and delivered by the Company, and each is a
valid and binding obligation of the Company.
(iii) The applicable Pooling and Servicing Agreement has been
duly authorized, executed and delivered by the Company, and is a
legal, valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except that (A) such
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (B) the remedy of
specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(iv) The execution and delivery by the Company of this Agreement,
the applicable Terms Agreement and applicable Pooling and Servicing
Agreement and the signing of the Registration Statement by the Company
are within the corporate power of the Company and have been duly
authorized by all necessary corporate action on the part of the
Company; and neither the issue and sale of the Certificates nor the
consummation of the transactions contemplated herein or therein nor
the fulfillment of the terms hereof or thereof will, conflict with or
constitute a breach or violation of any of the terms or provisions of,
or constitute a default under, or result in the creation or imposition
of any lien, charge or
ABN AMRO Underwriting Agreement
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 such counsel's
knowledge, threatened against the Company which might result in any
material adverse change in the financial condition, earnings, affairs
or business of the Company, or which might materially and adversely
affect the properties or assets thereof or might materially and
adversely affect the performance by the Company of its obligations
under, or the validity or enforceability of, the Certificates, this
Agreement or the Pooling and Servicing Agreement, or which is required
to be disclosed in the Registration Statement.
(viii) The Registration Statement is effective under the 1933 Act
and, to the best of such counsel's knowledge, no stop order suspending
the effectiveness of the Registration Statement has been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission.
(ix) The applicable Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as
amended.
ABN AMRO Underwriting Agreement
(x) The Registration Statement and the Prospectus (other than the
financial statements and other financial and statistical information
included therein, as to which no opinion need be rendered) as of their
respective effective or issue dates, complied as to form in all
material respects with the requirements of the 1933 Act and the
Regulations thereunder.
(xi) (A) The statements in the Prospectus under the headings
"ERISA Considerations" and "Federal Income Tax Consequences" and the
statements in the applicable Prospectus Supplement under the headings
"Federal Income Tax Consequences" and "ERISA Considerations," to the
extent that they describe matters of United States federal income tax
law or ERISA or legal conclusions with respect thereto, have been
prepared or reviewed by such counsel and are accurate in all material
respects and (B) the statements in the Prospectus under the heading
"Legal 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 Fund 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
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.
(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, each of the
REMICs created pursuant to the Pooling and Servicing Agreement will
qualify as a REMIC as of the Closing Date and will continue to qualify
as a REMIC for so long as there is compliance with amendments after
the date hereof to any applicable provisions of the Code and
applicable Treasury Regulations.
ABN AMRO Underwriting Agreement
(xvi) Assuming that each of the REMICs of the Trust Fund are
treated as REMICs for Federal income tax purposes, none 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 the jurisdiction
indicated in the opinion.
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.
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 duly organized and validly existing in
good standing under the laws of the United States or under the laws of
the jurisdiction in which it is organized, and has all requisite power
and authority to enter into the Pooling and Servicing Agreement and to
perform its obligations thereunder.
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(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.
(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
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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 respect of any federal,
state or other governmental agency or authority which has not
previously been effected.
(v) No action, suit or proceeding of which such counsel is
aware before or by any court or governmental agency or body, domestic
or foreign, is now pending or, to the knowledge of such counsel,
threatened, against the Servicer which might materially and adversely
affect the performance by the Servicer under, or the validity or
enforceability of the applicable Pooling and Servicing Agreement.
(vi) The description of the Servicer in the applicable
Prospectus Supplement is true and correct in all material respects.
(4) The favorable opinion or opinions, dated as of the applicable
Closing Time, of counsel for the Underwriters, acceptable to the
Underwriters.
(5) The favorable opinion, dated the applicable Closing Time of
counsel for LaSalle, 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 LaSalle, dated as of such Closing
Time, to the effect that the representations and warranties of the Company
or LaSalle, 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 LaSalle, 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.
ABN AMRO Underwriting Agreement
(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.
SECTION 5. PAYMENT OF EXPENSES. Except as otherwise provided in the
applicable Terms Agreement, the Company covenants and agrees with the
Underwriters that the Company will pay or cause to be paid all expenses incident
to the performance of its obligations under this Agreement and all other fees
and expenses associated with the transactions referred to herein, including, but
not limited to, the fees and expenses of the Trustee, Rating Agencies, printer,
accounting firms, the fees and expenses relating to the establishment of the
Company's shelf registration statement and related ongoing fees and expenses;
provided, however, that the Underwriters covenant and agree to pay all of their
own costs and expenses, including underwriting and due diligence expenses, the
fees of their counsel, transfer taxes on the resale of any of the Certificates
by them and any advertising expenses connected with any offers they may make.
SECTION 6. INDEMNIFICATION.
ABN AMRO Underwriting Agreement
(a) Except as otherwise provided in the applicable Terms Agreement,
the Company, and LaSalle, 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 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 that 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
in the first paragraph and the first sentence of the sixth paragraph under
the caption "Method of Distribution"
ABN AMRO Underwriting Agreement
(other than the first and second sentences of such first paragraph) each as
included in the applicable Prospectus Supplement relating to a Series of
Certificates, together with the UBS Information (as defined in Section 10
hereof) other than any inaccuracies therein which are caused by errors in
the Pool Information relating to a Series of Certificates constitute the
only information furnished in writing by or on behalf of the Underwriters
expressly for use in the Registration Statement relating to such Series of
Certificates as originally filed or in any amendment thereof, any related
preliminary prospectus or the Prospectus or in any amendment thereof or
supplement thereto, as the case may be.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party shall,
if a claim in respect thereof is to be made against an indemnifying party
under this Section, notify such indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section. In case any such
action shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party); and, after notice 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
ABN AMRO Underwriting Agreement
to reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other from the offering of the Certificates to
which such loss, claim, damage, expense or liability (or actions in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the
one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company to the total underwriting
discounts and commissions (or in the case of a public offering in
negotiated transactions, the difference between the proceeds to the Company
and the aggregate price received from the public) received by such
Underwriters. The relative fault of the Company on the one hand and the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such Underwriters on
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. Notwithstanding anything to the contrary in this Section 6(d), if
the losses, claims, damages 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 UBS 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 UBS 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
1933 Act) shall be entitled
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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 LaSalle,
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
ABN AMRO Underwriting Agreement
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 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.
ABN AMRO Underwriting Agreement
(a) UBS 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 UBS, UBS 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.
AAFS 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, UBS 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 UBS and required to be filed with the
Commission in accordance with the No-Action Letters (such Computational
Materials, the "UBS Furnished Computational Materials").
(c) In connection with each Series of Certificates, UBS 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 UBS and required to be filed with the
Commission in accordance with the No-Action Letters (such Structural Term
Sheets, the "UBS Furnished Structural Term Sheets").
(d) In connection with each Series of Certificates, UBS shall furnish
to the Company (via hard copy), within one (1) business day after the first
use thereof, all Collateral Term Sheets used by UBS and required to be
filed with the Commission in accordance with the No-Action Letters (such
Collateral Term Sheets, the "UBS 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 "UBS 8-K," and each a "UBS 8-K") which shall include as one or more
exhibits thereto the UBS Furnished Computational Materials, the UBS
Furnished Structural Term Sheets and the UBS Furnished Collateral Term
Sheets. Notwithstanding any other provision in the Underwriting Agreement,
UBS agrees to pay up to $500.00 to the Company for the reasonable and
customary costs and expenses of the Company incurred in connection with the
filing by the Company of any Computational Materials with the Commission.
In
ABN AMRO Underwriting Agreement
addition, in the event that the hardship exemption granted by the
Commission allowing for the paper filing of Computational Materials is no
longer available, UBS will provide the Company with the Computational
Materials in an electronic format.
(f) UBS shall cooperate with the Company and with Deloitte & Touche in
obtaining a letter, in form and substance satisfactory to the Company and
UBS, of Deloitte & Touche regarding the information in any UBS 8-K
consisting of UBS Furnished Computational Materials and/or UBS Furnished
Structural Term Sheets.
(g) UBS represents and warrants to, and covenants with, the Company
that the UBS Information (defined below) is not misleading and not
inaccurate in any material respect and that any Pool Information (defined
below) contained in any UBS 8-K which is not otherwise inaccurate in any
material respect is not presented in the UBS 8-K in a way that is either
misleading or inaccurate in any material respect. UBS 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
UBS 8-K are found to include any information that is misleading or
inaccurate in any material respect, UBS 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) UBS covenants that all Computational Materials and ABS Term Sheets
used by it shall contain a legend substantially as set forth below:
Collateral Term Sheets (other than the initial Collateral Term
Sheet):
"THIS INFORMATION DOES NOT CONSTITUTE EITHER AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES REFERRED TO
HEREIN. OFFERS TO SELL AND SOLICITATIONS OF OFFERS TO BUY THE
SECURITIES ARE MADE ONLY BY, AND THIS INFORMATION MUST BE READ IN
CONJUNCTION WITH, THE FINAL PROSPECTUS SUPPLEMENT AND THE RELATED
PROSPECTUS OR, IF NOT REGISTERED UNDER THE SECURITIES LAWS, THE FINAL
OFFERING MEMORANDUM (THE "OFFERING DOCUMENT"). INFORMATION CONTAINED
HEREIN DOES NOT PURPORT TO BE COMPLETE AND IS SUBJECT TO THE SAME
QUALIFICATIONS AND ASSUMPTIONS, AND SHOULD BE CONSIDERED BY INVESTORS
ONLY IN THE LIGHT OF THE SAME WARNINGS, LACK OF ASSURANCES AND
REPRESENTATIONS AND OTHER PRECAUTIONARY MATTERS, AS DISCLOSED IN THE
OFFERING DOCUMENT. INFORMATION REGARDING THE UNDERLYING ASSETS HAS
BEEN PROVIDED BY THE ISSUER OF THE SECURITIES OR AN AFFILIATE THEREOF
AND HAS NOT BEEN INDEPENDENTLY VERIFIED BY UBS SECURITIES LLC OR ANY
ABN AMRO Underwriting Agreement
AFFILIATE. THE ANALYSES CONTAINED HEREIN HAVE BEEN PREPARED AND
DISSEMINATED BY UBS SECURITIES LLC AND THE CONTENTS AND ACCURACY
THEREOF HAVE NOT BEEN REVIEWED BY THE ISSUER. THIS INFORMATION WAS
PREPARED ON THE BASIS OF CERTAIN ASSUMPTIONS (INCLUDING, IN CERTAIN
CASES ASSUMPTIONS SPECIFIED BY THE RECIPIENT HEREOF) REGARDING
PAYMENTS, INTEREST RATES, WEIGHTED AVERAGE LIVES AND WEIGHTED AVERAGE
LOAN AGE, LOSS AND OTHER MATTERS, INCLUDING, BUT NOT LIMITED TO, THE
ASSUMPTIONS DESCRIBED IN THE OFFERING DOCUMENT. UBS SECURITIES LLC AND
ANY OF ITS AFFILIATES MAKE NO REPRESENTATION OR WARRANTY AS TO THE
ACTUAL RATE OR TIMING OF PAYMENTS ON ANY OF THE UNDERLYING ASSETS OR
THE PAYMENTS OR YIELD ON THE SECURITIES. THIS INFORMATION SUPERSEDES
ANY PRIOR VERSIONS HEREOF AND WILL BE DEEMED TO BE SUPERSEDED BY ANY
SUBSEQUENT VERSIONS (INCLUDING, WITH RESPECT TO ANY DESCRIPTION OF THE
SECURITIES OR THE UNDERLYING ASSETS, THE INFORMATION CONTAINED IN THE
OFFERING DOCUMENT)."
(i) For purposes of this Agreement, the term "UBS Information" means
such portion, if any, of the information contained in the UBS 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 UBS 8-K in a way that is either inaccurate
or misleading in any material respect, such information shall not be Pool
Information.
(j) If the Underwriters do not provide any Computational Materials or
ABS Term Sheets to the Company pursuant to subsections (b) - (d) above, the
Underwriters shall be deemed to have represented, as of the Closing Time,
that they did not provide any prospective investors with any information in
written or electronic form in connection with the offering of the
Certificates that is required to be filed with the Commission in accordance
with the No-Action Letters, and the Underwriters shall provide the Company
with a certification to that effect at the Closing Time.
SECTION 11. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed, delivered,
telexed, or telegraphed and confirmed or transmitted by any standard form of
telecommunication. Notices to UBS shall be directed to you at the address set
forth on the first page hereof, to the attention of MBS Trading, with a copy to
Legal Department and notices to AAFS 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 Financial
Services, Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention: Xxxx Xxxxx. Notices to the Company or to LaSalle shall be directed to
ABN AMRO Mortgage Corporation Securitization Department, c/o Standard Federal
Bank, 0000 Xxxx Xxx Xxxxxx Xxxx, Xxxx, Xxxxxxxx, attention: Xxxxxxx
ABN AMRO Underwriting Agreement
Xxxxxxx, with a copy to Legal Department, LaSalle Bank Corporation 000 X.
XxXxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx, Attention: Xxxxxxx X.
Xxxxx--Assistant Counsel.
SECTION 12. PARTIES. This Agreement shall be binding upon and inure solely
to the benefit of you and the Company and to the extent provided in Section 6
hereof, the officers and directors of the Company and each person who controls
the Company or any Underwriter and their respective heirs, executors,
administrators, successors and assigns and any Terms Agreement shall be binding
upon and inure solely to the benefit of the Company and any Underwriter who
becomes a party to a Terms Agreement and to the extent provided in Section 6
hereof, the officers and directors of the Company and each person who controls
the Company or any Underwriter and their respective heirs, executors,
administrators, successors and assigns. Nothing expressed or mentioned in this
Agreement or a Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto or thereto and their
respective successors and the controlling person and officers and directors
referred to in Section 6 hereof and their heirs any legal or equitable right,
remedy or claim under or with respect to this Agreement or a Terms Agreement or
any provision herein or therein contained.
SECTION 13. GOVERNING LAW AND TIME. This Agreement and each Terms Agreement
shall be governed by and construed in accordance with the laws of the State of
New York. Specified times of day refer to New York City time.
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]
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
LASALLE BANK CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Executive Vice President
CONFIRMED AND ACCEPTED, as of the date first above written:
UBS SECURITIES LLC
By: /s/ Xxxxx Ma
-------------------------------
Name: Xxxxx Ma
Title: Director
By: /s/ Xxxx Xxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxx
Title: Managing Director
ABN AMRO FINANCIAL SERVICES, INC.
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
ABN AMRO Underwriting Agreement
EXHIBIT A
PASS-THROUGH CERTIFICATES
ABN AMRO MORTGAGE CORPORATION, DEPOSITOR
TERMS AGREEMENT
---------------
Dated: _________, ____
To: ABN AMRO MORTGAGE CORPORATION
Re: Underwriting Agreement, dated as of June [[ ]], 2003 (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] [New York, New York] time, on _____________ and the location of the
closing shall be the [Chicago, Illinois] [New York, New York] offices of
______________. 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:
-------------------------------------------------------
Original
Principal Remittance Price to
Classes Amount* Rate Public
------- --------- ---------- --------
**
* Approximate. Subject to permitted variance in each case of plus
or minus 5%.
** The Class __ Certificates are being offered by the Underwriter
from time to time in negotiated transactions or otherwise at varying
prices to be determined, in each case, at the time of sale.
Certificate Rating:
------------------
_____ by [Rating Agency]
_____ by [Rating Agency]
Remic Election:
--------------
The Company [does not] intend[s] to cause the Mortgage Pool to be
treated as a REMIC.
Credit Enhancement:
------------------
Cut-off Date:
------------
The Cut-off Date is ___________, 20__.
Remittance Date:
---------------
The ____ day of each month (or, if such ____ day is not a business
day, the business day immediately following) commencing __________, 20__.
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 __________, 20__ up to but not including the Closing Date.
Underwriting Commission:
-----------------------
Notwithstanding anything to the contrary in the Underwriting
Agreement, no additional underwriting commission shall be payable by the Company
to the Underwriter in connection with the purchase of the Certificates.
Information Provided by Underwriter:
-----------------------------------
Closing Date and Location:
-------------------------
__________, 20__ at the [Chicago, Illinois] [New York, New York]
offices of _________________.
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.
UBS SECURITIES LLC
By:______________________________
Name:
Title:
ABN AMRO FINANCIAL SERVICES, INC.
By:_______________________________
Name:
Title:
ACCEPTED:
ABN AMRO MORTGAGE CORPORATION
By:_________________________________
Name:
Title:
LASALLE BANK CORPORATION
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
Exhibit I
---------
Original
Principal
Amount of
Name Certificates
---- ------------
Total =============
