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