AMAC, SERIES 1998-1
MORTGAGE PASS-THROUGH CERTIFICATES
UNDERWRITING AGREEMENT
March 27, 1998
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ABN AMRO Incorporated
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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, ▇▇▇▇▇▇▇▇▇, Lufkin
& ▇▇▇▇▇▇▇▇ Securities Corporation is sometimes referred to individually herein
as "DLJ" and ABN AMRO Incorporated is sometimes referred to individually herein
as "AAI"). The Terms Agreement relating to each offering of Certificates shall
specify, among other things, the stated balance or balances of Certificates to
be issued, the price or prices at which the Certificates are to be purchased by
the Underwriters from the Company and the initial public offering price or
prices or the method by which the price or prices at which such Certificates are
to be sold will be determined. A Terms Agreement, which shall be substantially
in the form of Exhibit A hereto, may take the form of an exchange of any
standard form of written telecommunication between you and the Company. Each
such offering of Certificates which the Company elects to make pursuant to this
Agreement will be governed by this Agreement, as supplemented by the applicable
Terms Agreement, and this Agreement and such Terms Agreement shall inure to the
benefit of and be binding upon the Underwriters participating in the offering of
such Certificates.
SECTION 1. REPRESENTATIONS AND WARRANTIES. (a) The Company represents
and warrants to you as of the date hereof, and to the Underwriters named in the
applicable Terms Agreement, all as of the date of such Terms Agreement (in each
case, the "Representation Date"), as follows (any representations and warranties
so made to the Underwriters named in an applicable Terms Agreement respecting
the Certificates being deemed to relate only to the Certificates described
therein):
(1) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-42127),
relating to the offering of Certificates from time to time in accordance
with Rule 415 under the Securities Act of 1933, as amended (the "1933
Act"), and has filed, and proposes to file, such amendments thereto as may
have been required to the date hereof and the same has become effective
under the 1933 Act and the rules of the Commission thereunder (the
"Regulations") and no stop order suspending the effectiveness of such
registration statement has been issued and no proceedings for that purpose
have been initiated or, to the Company's knowledge, threatened, by the
Commission. Such registration statement, including incorporated documents,
exhibits and financial statements, as amended at the time when it became
effective under the 1933 Act, and the prospectus relating to the sale of
Certificates by the Company constituting a part thereof, as from time to
time each is amended or supplemented pursuant to the 1933 Act or otherwise,
are referred to herein as the "Registration Statement" and the
"Prospectus," respectively; provided, however, that a supplement to the
Prospectus contemplated by Section 3(a) hereof (a "Prospectus Supplement")
shall be deemed to have supplemented the Prospectus only with respect to
the offering or offerings of Certificates to which it relates. Any
reference herein to the Registration Statement, a preliminary
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prospectus, the Prospectus or the Prospectus Supplement shall be deemed
to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the "1934 Act") on or before the date
on which the Registration Statement, as amended, became effective or the
issue date of such preliminary prospectus, Prospectus, or Prospectus
Supplement, as the case may be; and any reference herein to the terms
"amend," "amendment" or supplement with respect to the Registration
Statement, any preliminary prospectus, the Prospectus or the Prospectus
Supplement shall be deemed to refer to and include the filing of any
document under the 1934 Act after the date on which the Registration
Statement became effective or the issue date of any preliminary
prospectus, the Prospectus or the Prospectus Supplement, as the case may
be, deemed to be incorporated therein by reference. The Registration
Statement and Prospectus, at the time the Registration Statement became
effective did, and as of the applicable Representation Date will,
conform in all material respects to the requirements of the 1933 Act and
the Regulations. The Registration Statement, at the time it became
effective did not, and as of the applicable Representation Date and the
applicable Closing Time (as defined in Section 2 hereof) will not,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, as amended or
supplemented as of the applicable Representation Date and the applicable
Closing Time (as defined in Section 2 hereof), will not contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply to (i) statements in, or omissions from, the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by the
Underwriters expressly for use in the Registration Statement or
Prospectus or (ii) the DLJ Information (as defined in Section 10
hereof). The conditions to the use by the Company of a registration
statement on Form S-3 under the 1933 Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the
Registration Statement and the Prospectus. There are no contracts or
documents of the Company which are required to be described in the
Registration Statement or Prospectus or filed as exhibits to the
Registration Statement pursuant to the 1933 Act or the Regulations which
have not been so described or filed.
(2) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware with
corporate power and authority to enter into and perform its obligations
under this Agreement, the applicable Pooling and Servicing Agreement, and
with respect to a Series of Certificates, the Certificates and the
applicable Terms Agreement; and the Company is duly qualified or registered
as a foreign corporation to transact business and is in good standing in
each jurisdiction in which the ownership or lease of its properties or the
conduct of its business requires such qualification.
(3) The Company is not in violation of its certificate of
incorporation or by-laws or in default in the performance or observance of
any material obligation, agreement,
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covenant or condition contained in any material contract, indenture,
mortgage, loan agreement, note, lease or other material instrument to
which it is a party or by which it or its properties may be bound, which
default might result in any material adverse change in the financial
condition, earnings, affairs or business of the Company or which might
materially and adversely affect the properties or assets thereof or the
Company's ability to perform its obligations under this Agreement, the
applicable Terms Agreement or the applicable Pooling and Servicing
Agreement.
(4) The execution and delivery by the Company of this Agreement, the
applicable Terms Agreement and the applicable Pooling and Servicing
Agreement and the signing of the Registration Statement by the Company are
within the corporate power of the Company and have been duly authorized by
all necessary corporate action on the part of the Company; and with respect
to a Series of Certificates described in the applicable Terms Agreement,
neither the issuance and sale of the Certificates to the Underwriters, nor
the execution and delivery by the Company of this Agreement, such Terms
Agreement and the related Pooling and Servicing Agreement, nor the
consummation by the Company of the transactions herein or therein
contemplated, nor compliance by the Company with the provisions hereof or
thereof, will conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company other than as contemplated by a Pooling and
Servicing Agreement, pursuant to any material indenture, mortgage, contract
or other material instrument to which the Company is a party or by which it
is bound or to which the property or assets of the Company are subject, or
result in the violation of the provisions of the certificate of
incorporation or by-laws of the Company or any statute or any material
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its properties.
(5) This Agreement has been, and each applicable Terms Agreement when
executed and delivered as contemplated hereby and thereby will have been,
duly authorized, executed and delivered by the Company, and each
constitutes, or will constitute when so executed and delivered, a legal,
valid and binding instrument enforceable against the Company in accordance
with its terms (assuming due authorization, execution and delivery by the
other parties thereto), subject (a) to applicable bankruptcy, insolvency,
reorganization, moratorium, or other similar laws affecting creditors'
rights generally, (b) as to enforceability to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law) and (c) as to enforceability with respect to rights of indemnity
thereunder, to limitations of public policy under applicable securities
laws.
(6) Each applicable Pooling and Servicing Agreement when executed and
delivered as contemplated hereby and thereby will have been duly
authorized, executed and delivered by the Company, and will constitute when
so executed and delivered, a legal, valid and binding instrument
enforceable against the Company in accordance with its terms (assuming due
authorization, execution and delivery by the other parties thereto),
subject (a) to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws
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affecting creditors' rights generally and (b) as to enforceability to
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law); and as of the Closing Time,
the representations and warranties made by the Company in the applicable
Pooling and Servicing Agreement will be true and correct as of the date
made.
(7) As of the Closing Time (as defined in Section 2 hereof) with
respect to a Series of Certificates, the Certificates will have been duly
and validly authorized by the Company, and, when executed and authenticated
as specified in the related Pooling and Servicing Agreement, will be
validly issued and outstanding and will be entitled to the benefits of the
related Pooling and Servicing Agreement, and the Classes of Certificates so
designated in the related Prospectus Supplement will be "mortgage related
securities," as defined in Section 3(a)(41) of the ▇▇▇▇ ▇▇▇.
(8) There are no actions, proceedings or investigations now pending
against the Company or, to the knowledge of the Company, threatened against
the Company, before any court, administrative agency or other tribunal (i)
asserting the invalidity of this Agreement, the applicable Terms Agreement,
the applicable Pooling and Servicing Agreement or with respect to a Series
of Certificates, the Certificates, (ii) seeking to prevent the issuance of
such Certificates or the consummation of any of the transactions
contemplated by this Agreement, the applicable Terms Agreement or such
Pooling and Servicing Agreement, (iii) which would be likely to materially
and adversely affect the performance by the Company of its obligations
under, or which would if adversely determined materially and adversely
affect the validity or enforceability of, this Agreement, the applicable
Terms Agreement, such Pooling and Servicing Agreement or such Certificates
or (iv) seeking to adversely affect the federal income tax attributes of
such Certificates described in the Prospectus and the related Prospectus
Supplement.
(9) Any material taxes, fees and other governmental charges that are
assessed and due in connection with the execution, delivery and issuance of
this Agreement, the applicable Terms Agreement, the applicable Pooling and
Servicing Agreement and with respect to a Series of Certificates shall have
been paid at or prior to the Closing Time.
(10) No filing or registration with, notice to or consent, approval,
authorization, order or qualification of or with any court or governmental
agency or body is required for the issuance and sale of the Certificates or
the consummation by the Company of the transactions contemplated by this
Agreement, the applicable Pooling and Servicing Agreement or the applicable
Terms Agreement, except the registration under the 1933 Act of the
Certificates, and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Certificates
by the Underwriters.
(11) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies deemed by the Company to be reasonably
necessary to conduct the business now operated
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by it and as described in the Prospectus and the Company has received no
notice of proceedings relating to the revocation or modification of any
such license, certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would materially and adversely affect the conduct of the business,
operations, financial condition or income of the Company.
(12) No litigation is pending or, to the best of the Company's
knowledge, threatened, against the Company which would prohibit the
Company's entering into this Agreement or the applicable Pooling and
Servicing Agreement.
(13) As of the Closing Time, with respect to a Series of Certificates
described in the relevant Terms Agreement evidencing interests in a
Mortgage Pool, the Trustee will have either good and marketable title, free
and clear of all prior liens, charges, pledges, mortgages, security
interests and encumbrances, to or a validly perfected first priority
security interest in the Mortgage Notes and the related Mortgages included
in the Trust Fund, with respect to (a) the Mortgage Notes, upon delivery
thereof to the Trustee and (b) the Mortgages, upon delivery to the Trustee
of instruments of assignment in recordable form assigning each Mortgage to
the Trustee and the recording of each such instrument of assignment in the
appropriate recording office in which the Mortgaged Property is located, or
if supported by an opinion of counsel, without recording.
(14) As of the Closing Time, with respect to a Series of Certificates,
the Mortgage Pool will have substantially the characteristics described in
the Prospectus Supplement and in the Form 8-K of the Company prepared with
respect to such Certificates, if the Mortgage Pool is described in such
Form 8-K.
(15) Neither the Company nor the Trust Fund created by the applicable
Pooling and Servicing Agreement will be subject to registration as an
"investment company" under the Investment Company Act of 1940, as amended
(the "1940 Act").
(16) The Certificates, the applicable Pooling and Servicing Agreement,
the applicable Terms Agreement and any primary insurance policies, mortgage
pool insurance policies, standard hazard insurance policies, special hazard
insurance policies, mortgagor bankruptcy insurance and alternate credit
enhancement related to the Certificates described in the relevant Terms
Agreement conform in all material respects to the descriptions thereof
contained in the Prospectus.
(17) As of the Closing Time, the Mortgage Loans will have been duly
and validly assigned and delivered by the Company to the Trustee under the
related Pooling and Servicing Agreement.
(18) As of the Closing Time, the representations and warranties of the
Company contained in the applicable Pooling and Servicing Agreement are
true and correct in all material respects.
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(b) Standard Federal Bancorporation, Inc. ("Standard Federal") represents
and warrants to you as of the date hereof, and to the Underwriters named in the
applicable Terms Agreement, all as of the date of such Terms Agreement (in each
case, the "Representation Date"), as follows (any representations and warranties
so made to the Underwriters named in an applicable Terms Agreement respecting
the Certificates being deemed to relate only to the Certificates described
therein):
(1) Standard Federal has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Michigan with corporate power and authority to enter into and perform its
obligations under this Agreement, and with respect to a Series of
Certificates, the applicable Terms Agreement; and Standard Federal is duly
qualified or registered as a foreign corporation to transact business and
is in good standing in each jurisdiction in which the ownership or lease of
its properties or the conduct of its business requires such qualification.
(2) Standard Federal is not in violation of its certificate of
incorporation or by-laws or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
material contract, indenture, mortgage, loan agreement, note, lease or
other material instrument to which it is a party or by which it or its
properties may be bound, which default might result in any material adverse
change in the financial condition, earnings, affairs or business of
Standard Federal or which might materially and adversely affect the
properties or assets thereof or Standard Federal's ability to perform its
obligations under this Agreement or the applicable Terms Agreement.
(3) The execution and delivery by Standard Federal of this Agreement
and the applicable Terms Agreement are within the corporate power of
Standard Federal and have been duly authorized by all necessary corporate
action on the part of Standard Federal; and with respect to a Series of
Certificates described in the applicable Terms Agreement, neither the
execution and delivery by Standard Federal of this Agreement and such Terms
Agreement, nor the consummation by Standard Federal of the transactions
herein or therein contemplated, nor compliance by Standard Federal with the
provisions hereof or thereof, will conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of Standard Federal, pursuant to
any material indenture, mortgage, contract or other material instrument to
which Standard Federal is a party or by which it is bound or to which the
property or assets of Standard Federal are subject, or result in the
violation of the provisions of the certificate of incorporation or by-laws
of Standard Federal or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over Standard
Federal or any of its properties.
(4) This Agreement has been, and each applicable Terms Agreement when
executed and delivered as contemplated hereby and thereby will have been,
duly authorized, executed and delivered by Standard Federal, and each
constitutes, or will constitute when
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so executed and delivered, a legal, valid and binding instrument
enforceable against Standard Federal in accordance with its terms
(assuming due authorization, execution and delivery by the other parties
thereto), subject (a) to applicable bankruptcy, insolvency,
reorganization, moratorium, or other similar laws affecting creditors'
rights generally, (b) as to enforceability to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law) and (c) as to enforceability with respect to rights of
indemnity thereunder, to limitations of public policy under applicable
securities laws.
(5) This Agreement when executed and delivered as contemplated hereby
and thereby will have been duly authorized, executed and delivered by
Standard Federal, and will constitute when so executed and delivered, a
legal, valid and binding instrument enforceable against Standard Federal in
accordance with its terms (assuming due authorization, execution and
delivery by the other parties thereto), subject (a) to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and (b) as to enforceability to
general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law).
(6) There are no actions, proceedings or investigations now pending
against Standard Federal or, to the knowledge of Standard Federal,
threatened against Standard Federal, before any court, administrative
agency or other tribunal (i) asserting the invalidity of this Agreement or
the applicable Terms Agreement, (ii) seeking to prevent the issuance of
such Certificates or the consummation of any of the transactions
contemplated by this Agreement or the applicable Terms Agreement, (iii)
which would be likely to materially and adversely affect the performance by
Standard Federal of its obligations under, or which would if adversely
determined materially and adversely affect the validity or enforceability
of, this Agreement, the applicable Terms Agreement, or such Certificates or
(iv) seeking to adversely affect the federal income tax attributes of such
Certificates described in the Prospectus and the related Prospectus
Supplement.
SECTION 2. PURCHASE AND SALE. The commitment of each Underwriter to
purchase Certificates pursuant to any Terms Agreement shall be several and not
joint and shall be deemed to have been made on the basis of the representations
and warranties herein contained and shall be subject to the terms and conditions
herein set forth.
Payment of the purchase price for, and delivery of, any Certificates to be
purchased by the Underwriters shall be made at the offices of ▇▇▇▇▇, ▇▇▇▇▇ &
▇▇▇▇▇, Chicago, Illinois or at such other place as shall be agreed upon by you
and the Company, at such time or date as shall be agreed upon by you and the
Company in the Terms Agreement (each such time and date being referred to as a
"Closing Time"). Unless otherwise specified in the applicable Terms Agreement,
payment shall be made to the Company in immediately available Federal funds
wired to such bank as may be designated by the Company. Such Certificates shall
be in such denominations and registered in such names as you may request in
writing at least two business days prior to the applicable Closing Time.
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Such Certificates will be made available for examination and packaging by you no
later than 12:00 noon on the first business day prior to the applicable Closing
Time.
It is understood that the Underwriters intend to offer the Certificates for
sale to the public as set forth in the Prospectus Supplement.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each of
you and each Underwriter participating in an offering of Certificates pursuant
to a Terms Agreement, with respect to such Certificates and such offering, as
follows:
(a) Immediately following the execution of each Terms Agreement, the
Company will prepare a Prospectus Supplement setting forth the principal
amount of Certificates covered thereby, the price or prices at which the
Certificates are to be purchased by the Underwriters, either the initial
public offering price or prices or the method by which the price or prices
by which the Certificates are to be sold will be determined, the selling
concession(s) and reallowance(s), if any, any delayed delivery
arrangements, and such other information as you and the Company deem
appropriate in connection with the offering of the Certificates. The
Company will furnish you a copy of the Prospectus Supplement for your
review prior to filing such Prospectus Supplement with the Commission.
Thereafter, the Company will promptly transmit copies of the Prospectus
Supplement to the Commission for filing pursuant to Rule 424 under the 1933
Act and will furnish to the Underwriters as many copies of the Prospectus
and such Prospectus Supplement as you shall reasonably request.
(b) If the delivery of a prospectus is required at any time in
connection with the offering or sale of the Certificates described in the
relevant Terms Agreement and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such period of time to amend or supplement the Prospectus
in order to comply with the 1933 Act, the Company agrees to notify you
promptly and upon your request so to amend or supplement the Prospectus and
to prepare and furnish without charge to each Underwriter and to any dealer
in securities as many copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which
will correct such statement or omission or effect such compliance.
(c) During any period in which the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Certificates described in the relevant Terms Agreement the Company will
give you reasonable notice of its intention to file any amendment to the
Registration Statement or any amendment or supplement to the Prospectus,
whether pursuant to the 1933 Act or otherwise, and will furnish you with
copies
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of any such amendment or supplement or other documents proposed to be
filed a reasonable time in advance of filing.
(d) During any period in which the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Certificates described in the relevant Terms Agreement the Company will
notify you promptly (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the
Commission for filing of any supplement to the Prospectus or any document
other than quarterly and annual reports to be filed pursuant to the 1934
Act, (iii) of the receipt of any comments from the Commission with respect
to the Registration Statement, the Prospectus or any Prospectus Supplement,
(iv) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for
additional information, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Certificates for sale in any jurisdiction or the threat of any proceeding
for that purpose and (vi) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will use its
best efforts to prevent the issuance of any such stop order and, if any
stop order is issued, to obtain the lifting thereof as soon as possible.
(e) The Company agrees, so long as the Certificates shall be
outstanding, or until such time as you shall cease to maintain a secondary
market in the Certificates, whichever first occurs, to deliver to you the
annual statement as to compliance delivered to the Trustee pursuant to the
applicable Pooling and Servicing Agreement and the annual statement of a
firm of independent public accountants furnished to the Trustee pursuant to
the applicable Pooling and Servicing Agreement, as soon as such statements
are furnished to the Company.
(f) The Company will deliver to you as many conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein
and documents incorporated by reference in the Prospectus) as you may
reasonably request.
(g) The Company will endeavor, in cooperation with you, to qualify
the Certificates for offering and sale under the applicable securities laws
of such states and other jurisdictions of the United States as you may
reasonably designate, and will maintain or cause to be maintained such
qualifications in effect for as long as may be required for the
distribution of the Certificates, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction. The
Company will file or cause the filing of such statements and reports as may
be required by the laws of each jurisdiction in which the Certificates have
been qualified as above provided.
SECTION 4. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase Certificates pursuant to any Terms Agreement shall be
subject to the accuracy of the
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representations and warranties on the part of the Company herein contained, to
the accuracy of the statements of the Company's officers made pursuant hereto,
to the performance by the Company of all of its obligations hereunder and to
the following additional conditions precedent:
(a) At the applicable Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been initiated or threatened by the
Commission and the Prospectus Supplement shall have been filed or
transmitted for filing by means reasonably calculated to result in filing
with the Commission not later than the time required by Rule 424(b) under
the 1933 Act, (ii) the Certificates shall have received the rating or
ratings specified in the applicable Terms Agreement, and (iii) there shall
not have come to your attention any facts that would cause you to believe
that the Prospectus, together with the applicable Prospectus Supplement at
the time it was required to be delivered to a purchaser of the
Certificates, contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein,
in light of the circumstances existing at such time, not misleading. No
challenge by the Commission shall have been made to the accuracy or
adequacy of the Registration Statement and any request of the Commission
for inclusion of additional information in the Registration Statement or
the Prospectus or the Prospectus Supplement shall have been complied with
and the Company shall not have filed with the Commission any amendment or
supplement to the Registration Statement, the Prospectus or the Prospectus
Supplement without prior written notice to the Underwriters.
(b) At the applicable Closing Time you shall have received:
(1) The opinion, dated as of the applicable Closing Time, of
▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, in form and substance
satisfactory to such of you as may be named in the applicable Terms
Agreement, to the effect that:
(i) The Company is validly existing as a corporation in good
standing under the laws of the State of Delaware.
(ii) This Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company, and each
is a valid and binding obligation of the Company.
(iii) The applicable Pooling and Servicing Agreement has been
duly authorized, executed and delivered by the Company, and is a
legal, valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except that (A) such
enforceability thereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (B) the remedy of
specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
-11-
(iv) The execution and delivery by the Company of this
Agreement, the applicable Terms Agreement and applicable Pooling and
Servicing Agreement and the signing of the Registration Statement by
the Company are within the corporate power of the Company and have
been duly authorized by all necessary corporate action on the part of
the Company; and neither the issue and sale of the Certificates nor
the consummation of the transactions contemplated herein or therein
nor the fulfillment of the terms hereof or thereof will, conflict with
or constitute a breach or violation of any of the terms or provisions
of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to, any contract, indenture, mortgage,
or other instrument to which the Company is a party or by which it may
be bound of which such counsel is aware, other than the lien or liens
created by the applicable Pooling and Servicing Agreement, nor will
such action result in any violation of the provisions of the
certificate of incorporation or by-laws of the Company or, any
statute, rule or regulation to which the Company is subject or by
which it is bound or any writ, injunction or decree of any court,
governmental authority or regulatory body to which it is subject or by
which it is bound of which such counsel is aware.
(v) The Certificates have been duly authorized and, when
executed and authenticated as specified in the related Pooling and
Servicing Agreement and delivered and paid for, will be validly
issued, fully paid, nonassessable and entitled to the benefits of the
related Pooling and Servicing Agreement.
(vi) Assuming strict compliance by the Underwriters with the
provisions of this Agreement, no filing or registration with or notice
to or consent, approval, authorization, order or qualification of or
with any court or governmental agency or body is required for the
issuance and sale of the Certificates or the consummation by the
Company of the transactions contemplated by this Agreement, the
applicable Pooling and Servicing Agreement or the applicable Terms
Agreement, except the registration under the 1933 Act of the
Certificates, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Certificates by the Underwriters.
(vii) Other than as may be set forth or contemplated in the
Prospectus, there is no action, suit or proceeding of which such
counsel is aware before or by any court or governmental agency or
body, domestic or foreign, now pending or, to the best of such
counsel's knowledge, threatened against the Company which might result
in any material adverse change in the financial condition, earnings,
affairs or business of the Company, or which might materially and
adversely affect the properties or assets thereof or might materially
and adversely affect the performance by the Company of its obligations
under, or the validity or enforceability of, the Certificates, this
Agreement or the Pooling and Servicing Agreement, or which is required
to be disclosed in the Registration Statement.
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(viii) The Registration Statement is effective under the 1933
Act and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(ix) The applicable Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as
amended.
(x) The Registration Statement and the Prospectus (other than
the financial statements and other financial and statistical
information included therein, as to which no opinion need be rendered)
as of their respective effective or issue dates, complied as to form
in all material respects with the requirements of the 1933 Act and the
Regulations thereunder.
(xi) (A) The statements in the Prospectus under the headings
"ERISA Considerations" and "Certain Federal Income Tax Consequences"
and the statements in the applicable Prospectus Supplement under the
headings "Certain Federal Income Tax Considerations" and "ERISA
Considerations", to the extent that they describe matters of United
States federal income tax law or ERISA or legal conclusions with
respect thereto, have been prepared or reviewed by such counsel and
are accurate in all material respects and (B) the statements in the
Prospectus under the heading "Certain Legal Aspects of the Mortgage
Loans," to the extent they constitute matters of United States federal
law or legal conclusions with respect thereto, while not purporting to
discuss all possible consequences of investment in the Certificates,
are accurate in all material respects with respect to those
consequences or matters discussed therein.
(xii) The statements in the Prospectus and the applicable
Prospectus Supplement under the caption "Description of the
Certificates", insofar as they purport to summarize certain terms of
the Certificates and the applicable Pooling and Servicing Agreement,
constitute a fair summary of the provisions purported to be
summarized.
(xiii) The Trust Funds created by the applicable Pooling and
Servicing Agreement is not, and will not as a result of the offer and
sale of the Certificates as contemplated in the Prospectus and in this
Agreement become, required to be registered as an "investment company"
under the 1940 Act.
(xiv) The Classes of Certificates so designated in the
Prospectus Supplement will be "mortgage related securities", as
defined in Section 3(a)(41) of the 1934 Act, so long as the
Certificates are rated in one of the two highest grades by at least
one nationally recognized statistical rating organization.
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(xv) Assuming (a) ongoing compliance with all of the
provisions of the Pooling and Servicing Agreement and (b) the filing
of elections, in accordance with the Pooling and Servicing Agreement,
to be treated as "real estate mortgage investment conduits" ("REMICs")
pursuant to Section 860D of the Internal Revenue Code of 1986, as
amended (the "Code") for Federal income tax purposes, REMIC I and
REMIC II of the Trust Fund will qualify as REMICs as of the Closing
Date and will continue to qualify as REMICs for so long as there is
compliance with amendments after the date hereof to any applicable
provisions of the Code and applicable Treasury Regulations.
(xvi) Assuming that REMIC I and REMIC II of the Trust Fund are
treated as REMICs for Federal income tax purposes, neither of them nor
the Trust Fund will be subject as an entity to any tax imposed on
income, franchise or capital stock by the laws of Illinois.
Such counsel shall deliver to you such additional opinions addressing the
transfer by the Company to the Trustee of its right, title and interest in and
to the Mortgage Loans and other property included in the Trust Fund at the
Closing Time as may be required by each Rating Agency rating the Certificates.
Such counsel shall state that it has participated in conferences with
officers and other representatives of the Company, your counsel, representatives
of the independent accountants for the Company and you at which the contents of
the Registration Statement and the Prospectus and related matters were discussed
and, although such counsel is not passing upon and does not assume
responsibility for, the factual accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as
stated in paragraphs (xi) and (xii) above) and has made no independent check or
verification thereof for the purpose of rendering its opinion, on the basis of
the foregoing, nothing has come to their attention that leads such counsel to
believe that either the Registration Statement, at the time it became effective
and at the applicable Closing Time, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or that the Prospectus
contained or contains as of the date thereof and at the applicable Closing Time
any untrue statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that such counsel need
express no view with respect to the financial statements, schedules and other
financial and statistical data included in or incorporated by reference into the
Registration Statement, the Prospectus or the Prospectus Supplement.
Such counsel may state that their opinions relate only to laws of the State
of New York, the Federal laws of the United States and the General Corporation
Law of the State of Delaware.
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In rendering such opinions, such counsel may rely, as to matters of fact,
to the extent deemed proper and stated therein, on certificates of responsible
officers of the Company, the Trustee or public officials.
(2) The favorable opinion of counsel to the Trustee, dated as of
the applicable Closing Time, addressed to you and in form and scope
satisfactory to your counsel, to the effect that:
(i) The Trustee is a national association, duly
organized and validly existing in good standing under the laws of the
United States, and has all requisite power and authority to enter into
the Pooling and Servicing Agreement and to perform its obligations
thereunder.
(ii) To the knowledge of such counsel, there is no
action, suit, proceeding or investigation pending or threatened
against the Trustee that could materially adversely affect the ability
of the Trustee to perform its obligations under the Pooling and
Servicing Agreement.
(iii) The Trustee has duly authorized, executed and
delivered the applicable Pooling and Servicing Agreement and such
Pooling and Servicing Agreement will constitute the legal, valid and
binding obligation of the Trustee.
(iv) The Trustee has full power and authority to execute
and deliver the applicable Pooling and Servicing Agreement and to
perform its obligations thereunder.
(v) No consent, approval or authorization of, or
registration, declaration or filing with, any court or governmental
agency or body of the jurisdiction of its organization is required for
the execution, delivery or performance by the Trustee of the Pooling
and Servicing Agreement.
(vi) The Certificates have been duly and validly
executed, authenticated and delivered by the Trustee in accordance
with the Pooling and Servicing Agreement.
(vii) The performance by the Trustee of its duties
pursuant to the Pooling and Servicing Agreement does not conflict with
or result in a breach or violation of any term or provision of, or
constitute a default under, any statute or regulation currently
governing the Trustee.
In rendering such opinion, such counsel may rely, as to matters of
fact, to the extent deemed proper and stated therein, on certificates of
responsible officers of the Trustee or public officials.
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(3) The favorable opinion of counsel to the Servicer, dated as
of the applicable Closing Time, addressed to you and in form and scope
satisfactory to your counsel, to the effect that:
(i) The Servicer is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation.
(ii) The execution and delivery by the Servicer of the
applicable Pooling and Servicing Agreement is within the corporate
power of the Servicer and has been duly authorized by all necessary
corporate action on the part of the Servicer; and to the knowledge of
such counsel, neither the execution and delivery of either such
instrument, nor the consummation of the transactions provided for
therein, nor compliance with the provisions thereof, will conflict
with or constitute a breach of, or default under, any contract,
indenture, mortgage, loan agreement, note, lease, deed of trust, or
other instrument to which the Servicer is a party or by which it may
be bound, nor will such action result in any violation of the
provisions of the charter or by-laws of the Servicer or to the
knowledge of such counsel, any law, administrative regulation or
administrative or court decree.
(iii) The applicable Pooling and Servicing Agreement has
been duly executed and delivered by the Servicer and constitutes a
legal, valid and binding obligation of the Servicer enforceable
against the Servicer in accordance with its terms, except that such
enforceability thereof may be subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and subject, as to enforceability, to
general principles of equity (regardless whether enforcement is sought
in a proceeding in equity or at law).
(iv) To the knowledge of such counsel, the execution,
delivery and performance by the Servicer of the applicable Pooling and
Servicing Agreement do not require the consent or approval of, the
giving of notice to, the registration with, or the taking of any other
action in respect of any federal, state or other governmental agency
or authority which has not previously been effected.
(v) To the knowledge of such counsel, there is no
action, suit or proceeding of which such counsel is aware before or by
any court or governmental agency or body, domestic or foreign, now
pending or threatened against the Servicer which might materially and
adversely affect the performance by the Servicer under, or the
validity or enforceability of the applicable Pooling and Servicing
Agreement.
(vi) The description of the Servicer in the applicable
Prospectus Supplement is true and correct in all material respects.
(4) The favorable opinion or opinions, dated as of the
applicable Closing Time, of counsel for the Underwriters, acceptable
to the Underwriters.
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(5) The favorable opinion, dated the applicable Closing Time of
counsel for Standard Federal, acceptable to the Underwriters.
(c) At the applicable Closing Time you shall have received a
certificate of the President or a Vice President and the Treasurer or the
Secretary of each of the Company and Standard Federal, dated as of such
Closing Time, to the effect that the representations and warranties of the
Company or Standard Federal, as the case may be, contained in Section 1 are
true and correct with the same force and effect as though such Closing Time
were a Representation Date and that the Company or Standard Federal, as the
case may be, has complied with all agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Time.
(d) You shall have received from Ernst & Young with respect to
certain information relating to the Company and from Deloitte & Touche with
respect to certain other information in the Prospectus Supplement, or other
independent certified public accountants acceptable to you, letters, dated
as of the date of the applicable Terms Agreement and as of the applicable
Closing Time, delivered at such times, in the form and substance reasonably
satisfactory to you.
(e) At the applicable Closing Time, with respect to a Series of
Certificates, each of the representations and warranties of the Servicer
set forth in the related Pooling and Servicing Agreement will be true and
correct and you shall have received a Certificate of an Executive Vice
President, Senior Vice President or Vice President of the Servicer, dated
as of such Closing Time, to such effect.
(f) At the applicable Closing Time, with respect to a Series of
Certificates, the Certificates shall have received the certificate rating
or ratings specified in the related Terms Agreement.
(g) At the applicable Closing Time, counsel for the Underwriters
shall have been furnished with such other documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Certificates as herein contemplated and related
proceedings or in order to evidence the accuracy and completeness of any of
the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Certificates as herein
contemplated shall be reasonably satisfactory in form and substance to you
and counsel for the Underwriters.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled or, if any of the opinions and certificates
required hereby shall not be in all material respects reasonably satisfactory to
you and your counsel, the applicable Terms Agreement may be terminated by you by
notice to the Company at any time at or prior to the applicable Closing Time,
and such termination shall be without liability of any party to any other party
except as provided in Section 5.
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SECTION 5. PAYMENT OF EXPENSES. The Company covenants and agrees
with the Underwriters that the Company will pay or cause to be paid all expenses
incident to the performance of its obligations under this Agreement and all
other fees and expenses associated with the transactions referred to herein,
including, but not limited to, the fees and expenses of the Trustee, Rating
Agencies, printer, accounting firms, the fees and expenses relating to the
establishment of the Company's shelf registration statement and related ongoing
fees and expenses; provided, however, that the Underwriters covenant and agree
to pay all of their own costs and expenses, including underwriting and due
diligence expenses, the fees of their counsel, transfer taxes on resale of any
of the Certificates by them and any advertising expenses connected with any
offers they may make.
SECTION 6. INDEMNIFICATION.
(a) The Company and Standard Federal, jointly and severally, will
indemnify and hold harmless the Underwriters and each person, if any, who
controls the Underwriters within the meaning of the 1933 Act, against any
losses, claims, damages, expenses or liabilities, joint or several, to
which such Underwriter or such controlling person may become subject, under
the 1933 Act or otherwise, insofar as such losses, claims, damages,
expenses or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto), or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading in each case in respect of the relevant Certificates, and will
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by it in connection with investigating or defending any
such action or claim; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any such document
in reliance upon and in conformity with written information furnished to
the Company by or on behalf of the Underwriters expressly for use therein.
This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) The Underwriters, severally and not jointly, will indemnify and
hold harmless the Company, each of its officers who signed the Registration
Statement, its directors, and any person controlling the Company within the
meaning of the 1933 Act against any losses, claims, damages, expenses or
liabilities to which the Company or any such officer, director or
controlling person may become subject, under the 1933 Act or otherwise,
insofar as such losses, claims, damages, expenses or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto), or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make
-18-
the statements therein, in light of the circumstances under which they
were made, not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by or on behalf of the
Underwriters expressly for use therein and will reimburse the Company or
any such director, officer or controlling person for any legal or other
expenses reasonably incurred by the Company, any such officer, director
or controlling person in connection with investigating or defending any
such action or claim. This indemnity agreement is in addition to any
liability which the Underwriters may otherwise have. The Company
acknowledges that, unless otherwise set forth in the applicable Terms
Agreement, the statements set forth in the last paragraph of the cover
page, and fourth sentence of the first paragraph under the caption
"Method of Distribution" each as included in the applicable Prospectus
Supplement relating to a Series of Certificates, together with the DLJ
Information (as defined in Section 10 hereof) relating to a Series of
Certificates constitute the only information furnished in writing by or
on behalf of the Underwriters expressly for use in the Registration
Statement relating to such Series of Certificates as originally filed or
in any amendment thereof, any related preliminary prospectus or the
Prospectus or in any amendment thereof or supplement thereto, as the
case may be.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party shall,
if a claim in respect thereof is to be made against an indemnifying party
under this Section, notify such indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section. In case any such
action shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party); and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified
party under this Section for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs
of investigation. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
case and the fees and expenses of one such counsel shall be at the expense
of the indemnifying party if (i) the employment of such counsel shall have
been authorized in writing by the indemnifying party in connection with the
defense of such action, (ii) the indemnifying party shall not have employed
counsel to have charge of the defense of such action within a reasonable
time after notice of commencement of the action, or (iii) the indemnified
party or parties shall have reasonably concluded that there may be defenses
available to it or them and/or other indemnified parties which are
different from or additional to those available to the indemnifying party
(in which case the indemnifying party shall not
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have the right to direct the defense of such action on behalf of the
indemnified party). Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any
settlement of any claim or action effected without its written consent;
provided, however, that such consent was not unreasonably withheld.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages,
expenses or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, expenses or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other from the
offering of the Certificates to which such loss, claim, damage, expense or
liability (or actions in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted
by applicable law, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from
such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions (or in the case of a
public offering in negotiated transactions, the difference between the
proceeds to the Company and the aggregate price received from the public)
received by such Underwriters. The relative fault of the Company on the
one hand and the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission. Notwithstanding anything to the contrary in this Section
6(d), if the losses, claims, damages or liabilities (or actions in respect
thereof) referred to in this Section 6(d) arise out of an untrue statement
or alleged untrue statement of a material fact contained in any DLJ 8-K (as
such term is defined in Section 10 hereof) then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as
a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and the Underwriters on the
other (determined in accordance with the preceding sentence) in connection
with the statements or omissions in such DLJ 8-K which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other equitable considerations. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation even
if the Underwriters were treated as one entity for such purpose or by any
other method of allocation which does not
-20-
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
▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the
Underwriters to contribute pursuant to this subsection (d) are several
in proportion to their respective underwriting obligations with respect
to such Certificates and not joint.
SECTION 7. REPRESENTATIONS, WARRANTIES, AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any termination of this Agreement, or the applicable Terms Agreement or any
investigation made by or on behalf of the Underwriters or any controlling person
thereof, or by or on behalf of the Company, its officers or directors and shall
survive delivery of any Certificates to the Underwriters.
SECTION 8. TERMINATION OF AGREEMENT. This Agreement may be terminated for
any reason at any time by either the Company or you upon the giving of thirty
days' notice of such termination to the other party hereto; provided, however,
that if a Terms Agreement has been entered into with respect to a particular
transaction, this Agreement and the Terms Agreement may not be terminated in the
manner set forth in this sentence with respect to such particular transaction.
You, as Representative of the Underwriters named in any Terms Agreement may also
terminate such Terms Agreement, immediately upon notice to the Company, at any
time at or prior to the applicable Closing Time (i) if there has been, since the
date of such Terms Agreement or since the respective dates as of which
information is given in the Registration Statement or Prospectus, any change, or
any development involving a prospective change, in or affecting the condition,
financial or otherwise, earnings, affairs or business of the Company or Standard
Federal, whether or not arising in the ordinary course of business, which in
your judgment would materially impair the market for, or the investment quality
of, the Certificates, or (ii) if there has occurred any material outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in your reasonable
judgment, impracticable to market the Certificates or enforce contracts for the
sale of the Certificates, or (iii) if trading in securities generally on either
the New York Stock Exchange or the American Stock Exchange has been suspended or
materially limited or any setting of minimum prices shall have been established
or (iv) if a general moratorium of commercial banking activities has been
declared by either Federal or New York State authorities. In the event of any
such termination, (A) the covenants set forth in Section
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3 with respect to any offering of Certificates shall remain in effect so long
as the Underwriters own any such Certificates purchased from the Company
pursuant to the applicable Terms Agreement and (B) the covenant set forth in
Section 3(c), the provisions of Section 5, the indemnity agreement and
contribution provisions set forth in Section 6, and the provisions of
Sections 7 and 12 shall remain in effect.
SECTION 9. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS.
(a) If one or more of the Underwriters participating in an offering
of Certificates shall fail at the applicable Closing Time to purchase the
Certificates which it or they are obligated to purchase hereunder and under
the applicable Terms Agreement (the "Defaulted Certificates"), then such of
you as are named therein shall arrange for you or another party or other
parties to purchase the Defaulted Certificates upon the terms contained
herein. If within thirty-six hours after such default by any Underwriter
you do not arrange for the purchase of such Defaulted Certificates, then
the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties reasonably
satisfactory to you to purchase such Defaulted Certificates on the terms
contained herein. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase
of such Defaulted Certificates, or the Company notifies you that it has so
arranged for the purchase of such Defaulted Certificates, you or the
Company shall have the right to postpone the Closing Time for a period of
not more than seven days, in order to effect whatever changes may thereby
be made necessary in the Registration Statement or the Prospectus, or in
any other documents or arrangements, and the Company agrees to file
promptly any amendments to the Registration Statement or the Prospectus
which in your opinion may thereby be made reasonably necessary. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been party to this Agreement with respect to the Certificate.
(b) If, after giving effect to any arrangements for the purchase of
Defaulted Certificates of a defaulting Underwriter or Underwriters by you
and the Company as provided in subsection (a) above, the aggregate
principal amount of such Defaulted Certificates which remains unpurchased
does not exceed 10% of the aggregate principal amount of the Certificates
to be purchased pursuant to the applicable Terms Agreement, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Certificates which such Underwriter agreed
to purchase hereunder and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal amount
of Certificates which such Underwriter agreed to purchase pursuant to the
applicable Terms Agreement) of the Defaulted Certificates of the defaulting
Underwriter or Underwriters for which such arrangements have not been made;
but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Defaulted Certificates of the defaulting Underwriter or Underwriters by
you and the Company as
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provided in subsection (a) above, the aggregate principal amount of such
Defaulted Certificates which remains unpurchased exceeds 10% of the
aggregate principal amount of the Certificates to be purchased pursuant
to the applicable Terms Agreement, or if the Company shall not exercise
the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Defaulted Certificates of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 5 hereof and the
indemnity agreement and contribution provisions in Section 6 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for
its default.
SECTION 10. COMPUTATIONAL MATERIALS AND ABS TERM SHEETS.
(a) DLJ acknowledges that, subsequent to the date on which the
Registration Statement became effective and up to and including the date
on which the Prospectus Supplement and Prospectus with respect to a
Series of Certificates is first made available to DLJ, DLJ may furnish
to various potential investors in such Series of Certificates, in
writing: (i) "Computational Materials", as defined in a no-action
letter (the "▇▇▇▇▇▇ No-Action Letter") issued by the staff of the
Commission on May 20, 1994 to ▇▇▇▇▇▇, 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 ▇▇▇▇▇▇ No-Action Letter and the First PSA No-Action Letter, the
"No-Action Letters") issued by the staff of the Commission on February
17, 1995 to the PSA; (ii) "Structural Term Sheets" as defined in the
Second PSA No-Action Letter; and/or (iii) "Collateral Term Sheets" as
defined in the Second PSA No-Action Letter. AAI covenants and agrees
that it will not furnish, prepare or use any Computational Materials,
Structural Term Sheets or Collateral Term Sheets in connection with the
offering of Series 1998-1 Certificates.
(b) In connection with each Series of Certificates, DLJ shall furnish
to the Company (via hard copy), at least one (1) business day prior to the
time of filing of the Prospectus pursuant to Rule 424 under the 1933 Act,
all Computational Materials used by DLJ and required to be filed with the
Commission in accordance with the No-Action Letters (such Computational
Materials, the "DLJ Furnished Computational Materials").
(c) In connection with each Series of Certificates, DLJ shall furnish
to the Company (via hard copy), at least one (1) business day prior to the
time of filing of the Prospectus pursuant to Rule 424 under the Act, all
Structural Term Sheets used by DLJ and required to be filed with the
Commission in accordance with the No-Action Letters (such Structural Term
Sheets, the "DLJ Furnished Structural Term Sheets").
(d) In connection with each Series of Certificates, DLJ shall furnish
to the Company (via hard copy), within one (1) business day after the first
use thereof, all
-23-
Collateral Term Sheets used by DLJ and required to be filed with the
Commission in accordance with the No-Action Letters (such Collateral
Term Sheets, the "DLJ Furnished Collateral Term Sheets") and shall
advise the Company of the date on which each such Collateral Term Sheet
was first used.
(e) The Company shall prepare and file with the Commission, in
accordance with the No-Action Letters, one or more current reports on Form
8-K (collectively, together with any amendments and supplements thereto,
the "DLJ 8-K," and each a "DLJ 8-K") which shall include as one or more
exhibits thereto the DLJ Furnished Computational Materials, the DLJ
Furnished Structural Term Sheets and the DLJ Furnished Collateral Term
Sheets.
(f) DLJ shall cooperate with the Company and with Deloitte & Touche
in obtaining a letter, in form and substance satisfactory to the Company
and DLJ, of Deloitte & Touche regarding the information in any DLJ 8-K
consisting of DLJ Furnished Computational Materials and/or DLJ Furnished
Structural Term Sheets, in each case in ▇▇▇▇▇ format as formatted by the
Company.
(g) DLJ represents and warrants to, and covenants with, the Company
that the DLJ Information (defined below) is not misleading and not
inaccurate in any material respect and that any Pool Information (defined
below) contained in any DLJ 8-K which is not otherwise inaccurate in any
material respect is not presented in the DLJ 8-K in a way that is either
misleading or inaccurate in any material respect. DLJ further covenants
with the Company that if any Computational Materials or ABS Term Sheets (as
such term is defined in the Second PSA No-Action Letter) contained in any
DLJ 8-K are found to include any information that is misleading or
inaccurate in any material respect, DLJ promptly shall inform the Company
of such finding, provide the Company with revised and/or corrected
Computational Materials or ABS Term Sheets, as the case may be, and
promptly prepare and deliver to the Company (in hard copy) for filing with
the Commission in accordance herewith, revised and/or corrected
Computational Materials or ABS Term Sheets, as the case may be.
(h) DLJ covenants that all Computational Materials and ABS Term
Sheets used by it shall contain a legend substantially as set forth below:
"THIS INFORMATION IS FURNISHED TO YOU SOLELY BY ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ SECURITIES CORPORATION AND NOT BY THE ISSUER OR ANY OF ITS
AFFILIATES. NEITHER THE ISSUER NOR ANY OF ITS AFFILIATES MAKES ANY
REPRESENTATION AS TO THE ACCURACY OR COMPLETENESS OF THE INFORMATION
HEREIN. THE INFORMATION HEREIN IS PRELIMINARY, AND WILL BE SUPERSEDED
BY THE APPLICABLE PROSPECTUS SUPPLEMENT AND BY ANY OTHER INFORMATION
SUBSEQUENTLY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
-24-
(I) DLJ covenants that all Collateral Term Sheets used by it shall
contain an additional legend substantially as set forth below:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE
DESCRIPTION OF THE MORTGAGE LOANS CONTAINED IN THE PROSPECTUS
SUPPLEMENT."
(j) DLJ covenants that all Collateral Term Sheets (other than the
initial Collateral Term Sheet) shall contain the following additional
legend:
"THE INFORMATION CONTAINED HEREIN SUPERSEDES THE INFORMATION IN ALL
PRIOR COLLATERAL TERM SHEETS, IF ANY."
(k) For purposes of this Agreement, the term "DLJ Information" means
such portion, if any, of the information contained in the DLJ 8-K that is
not Pool Information. "Pool Information" means the information furnished
to the Underwriters by the Company regarding the Mortgage Loans; provided,
however, that if any information that would otherwise constitute Pool
Information is presented in the DLJ 8-K in a way that is either inaccurate
or misleading in any material respect, such information shall not be Pool
Information.
(l) If the Underwriters does not provide any Computational Materials
or ABS Term Sheets to the Company pursuant to subsections (b) - (d) above,
the Underwriters shall be deemed to have represented, as of the Closing
Time, that they did not provide any prospective investors with any
information in written or electronic form in connection with the offering
of the Certificates that is required to be filed with the Commission in
accordance with the No-Action Letters, and the Underwriters shall provide
the Company with a certification to that effect at the Closing Time.
SECTION 11. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed, delivered,
telexed, or telegraphed and confirmed or transmitted by any standard form of
telecommunication. Notices to DLJ shall be directed to you at the address set
forth on the first page hereof, to the attention of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, with a
copy to the General Counsel's office on the 23rd floor and notices to AAI shall
be directed to you at the address set forth on the first page hereof, to the
attention of Fixed Income Department--▇▇▇▇▇ ▇▇▇▇▇▇▇; with a copy to Legal
Department, ABN AMRO Incorporated, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇ ▇▇▇▇▇. Notices to the Company or to Standard
Federal shall be directed to ABN AMRO Mortgage Corporation Securitization
Department, c/o Standard Federal Bank, ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇,
▇▇▇▇▇▇▇▇, attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, with a copy to Legal Department, ABN AMRO
North America, ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
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
-25-
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/
----------------------------------
Name:
Title:
STANDARD FEDERAL BANCORPORATION, INC.
By: /s/
----------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: /s/
---------------------------------
Name:
Title:
ABN AMRO INCORPORATED
By: /s/
---------------------------------
Name:
Title:
EXHIBIT A
PASS-THROUGH CERTIFICATES
ABN AMRO MORTGAGE CORPORATION, DEPOSITOR
TERMS AGREEMENT
Dated: _________, 19__
To: ABN AMRO MORTGAGE CORPORATION
Re: Underwriting Agreement, dated as of March __, 1998 (the "Underwriting
Agreement")
Ladies and Gentlemen:
The undersigned (being herein called the "Underwriters"), understand that
ABN AMRO Mortgage Corporation, a Delaware corporation (the "Company"), proposes
to issue and sell $_________ original principal amount of Pass-Through
Certificates described below (the "Certificates"). The Certificates will be
issued under a Pooling and Servicing Agreement dated as of _______________ among
the Company, as depositor, _______________, as servicer and _____________ as
trustee. The terms of the Certificates are summarized below and are more fully
described in the Company's Prospectus supplement prepared with respect to the
Certificates.
All the provisions (including defined terms) contained in the Underwriting
Agreement are incorporated by reference herein in their entirety and shall be
deemed to be part of this Terms Agreement to the same extent as if such
provisions had been set forth in full herein. The Closing Time referred to in
Section 2 of the Underwriting Agreement shall be _______ a.m., [Chicago,
Illinois] time, on _____________. Subject to the terms and conditions set forth
or incorporated by reference herein, the Company hereby agrees to sell and the
Underwriters agree to purchase [, severally and not jointly,] the [respective]
original principal amount[ s] of Certificates set forth opposite [its] [their]
name[s] in Exhibit I hereto at the purchase price set forth below.
The Underwriters will offer the Certificates for sale upon the terms and
conditions set forth in the Prospectus.
Subject to the terms and conditions set forth or incorporated by reference
herein, the Underwriters will pay for the Certificates at the time and place and
in the manner set forth in the Underwriting Agreement.
SERIES DESIGNATION: ____________
TERMS OF THE CERTIFICATES AND UNDERWRITING COMPENSATION:
-1-
Original
Principal Remittance Price to
Classes Amount* Rate Public
------- --------- ---------- --------
**
* Approximate. Subject to permitted variance in each case of plus or
minus 5%.
** The [Class A] Certificates are being offered by the Underwriter from
time to time in negotiated transactions or otherwise at varying prices
to be determined, in each case, at the time of sale.
CERTIFICATE RATING:
_____ by [Rating Agency]
_____ by [Rating Agency]
REMIC ELECTION:
The Company [does not] intend[s] to cause the Mortgage Pool to be
treated as a REMIC.
CREDIT ENHANCEMENT:
CUT-OFF DATE:
The Cut-off Date is ___________, 19__.
REMITTANCE DATE:
The ____ day of each month (or, if such ____ day is not a business
day, the business day immediately following) commencing __________, 19__.
PURCHASE PRICE:
The purchase price payable by the Underwriter for the [Class A]
Certificates is ___% of the aggregate principal balance of the [Class A]
Certificates as of the Closing Date plus accrued interest at the per annum rate
of ___% from __________, 19__ up to but not including the Closing Date.
-2-
UNDERWRITING COMMISSION:
Notwithstanding anything to the contrary in the Underwriting
Agreement, no additional underwriting commission shall be payable by the Company
to the Underwriter in connection with the purchase of the Certificates.
INFORMATION PROVIDED BY UNDERWRITER:
CLOSING DATE AND LOCATION:
__________ 19__ at the [Chicago, Illinois] offices of ▇▇▇▇▇,
▇▇▇▇▇ & ▇▇▇▇▇
-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.
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By:
----------------------------------
Name:
Title:
ABN AMRO INCORPORATED
By:
----------------------------------
Name:
Title:
ACCEPTED:
ABN AMRO MORTGAGE CORPORATION
By:
-----------------------------------
Name:
Title:
STANDARD FEDERAL BANCORPORATION, INC.
By:
-----------------------------------
Name:
Title:
EXHIBIT I
Original
Principal
Amount of
Name Certificates
---- ------------
Total
--------------
--------------
-5-
