ABN AMRO MORTGAGE CORPORATION, SERIES 2002-1A
MULTI-CLASS MORTGAGE PASS-THROUGH CERTIFICATES
UNDERWRITING AGREEMENT
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May 22, 2002
Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ABN AMRO Financial Services, Inc.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
ABN AMRO Mortgage Corporation (the "Company"), a Delaware corporation,
has authorized the issuance and sale of Mortgage Pass-Through Certificates (the
"Certificates") evidencing interests in pools of mortgage loans (the "Mortgage
Loans"). The Certificates may be issued in various series, and, within each
series, in one or more classes, and, within each class, in one or more
sub-classes, in one or more offerings on terms determined at the time of sale
(each such series, a "Series" and each such class, a "Class"). Each Series of
the Certificates will be issued under a separate Pooling and Servicing Agreement
(each, a "Pooling and Servicing Agreement") with respect to such Series among
the Company, as depositor, a servicer to be identified in the prospectus
supplement for each such Series (the "Servicer") and a trustee to be identified
in the prospectus supplement for each such Series (the "Trustee"). The
Certificates of each Series will evidence specified interests in separate pools
of Mortgage Loans (each a "Mortgage Pool"), and certain other property held in
trust with respect to such Series (each, a "Trust Fund").
The Certificates are more fully described in a Registration Statement
which the Company has furnished to you. Capitalized terms used but not defined
herein shall have the meanings given to them in the Pooling and Servicing
Agreement. The term "you" as used herein, unless the context otherwise requires,
shall mean you and such persons as are named as co-managers in the applicable
Terms Agreement (defined below).
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, Xxxxxx Brothers
Inc. is sometimes referred to individually herein
as "Xxxxxx Brothers" and ABN AMRO Financial Services, Inc. is sometimes referred
to individually herein as "AAFS"). The Terms Agreement relating to each offering
of Certificates shall specify, among other things, the stated balance or
balances of Certificates to be issued, the price or prices at which the
Certificates are to be purchased by the Underwriters from the Company and the
initial public offering price or prices or the method by which the price or
prices at which such Certificates are to be sold will be determined. A Terms
Agreement, which shall be substantially in the form of Exhibit A hereto, may
take the form of an exchange of any standard form of written telecommunication
between you and the Company. Each such offering of Certificates which the
Company elects to make pursuant to this Agreement will be governed by this
Agreement, as supplemented by the applicable Terms Agreement, and this Agreement
and such Terms Agreement shall inure to the benefit of and be binding upon the
Underwriters participating in the offering of such Certificates.
SECTION 1. REPRESENTATIONS AND WARRANTIES. (a) The Company represents
and warrants to you as of the date hereof, and to the Underwriters named in the
applicable Terms Agreement, all as of the date of such Terms Agreement (in each
case, the "Representation Date"), as follows (any representations and warranties
so made to the Underwriters named in an applicable Terms Agreement respecting
the Certificates being deemed to relate only to the Certificates described
therein):
(1) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-73036), relating to the offering of Certificates from time to time
in accordance with Rule 415 under the Securities Act of 1933, as
amended (the "1933 Act"), and has filed, and proposes to file, such
amendments thereto as may have been required to the date hereof and the
same has become effective under the 1933 Act and the rules of the
Commission thereunder (the "Regulations") and no stop order suspending
the effectiveness of such registration statement has been issued and no
proceedings for that purpose have been initiated or, to the Company's
knowledge, threatened, by the Commission. Such registration statement,
including incorporated documents, exhibits and financial statements, as
amended at the time when it became effective under the 1933 Act, and
the prospectus relating to the sale of Certificates by the Company
constituting a part thereof, as from time to time each is amended or
supplemented pursuant to the 1933 Act or otherwise, are referred to
herein as the "Registration Statement" and the "Prospectus,"
respectively; provided, however, that a supplement to the Prospectus
contemplated by Section 3(a) hereof (a "Prospectus Supplement") shall
be deemed to have supplemented the Prospectus only with respect to the
offering or offerings of Certificates to which it relates. Any
reference herein to the Registration Statement, a preliminary
prospectus, the Prospectus or the Prospectus Supplement shall be deemed
to refer to and include the documents incorporated by 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
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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 Xxxxxx
Brothers Information (as defined in Section 10 hereof). The conditions
to the use by the Company of a registration statement on Form S-3 under
the 1933 Act, as set forth in the General Instructions to Form S-3,
have been satisfied with respect to the Registration Statement and the
Prospectus. There are no contracts or documents of the Company which
are required to be described in the Registration Statement or
Prospectus or filed as exhibits to the Registration Statement pursuant
to the 1933 Act or the Regulations which have not been so described or
filed.
(2) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to enter into and
perform its obligations under this Agreement, the applicable Pooling
and Servicing Agreement, and with respect to a Series of Certificates,
the Certificates and the applicable Terms Agreement; and the Company is
duly qualified or registered as a foreign corporation to transact
business and is in good standing in each jurisdiction in which the
ownership or lease of its properties or the conduct of its business
requires such qualification.
(3) The Company is not in violation of its certificate of
incorporation or by-laws or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any material contract, indenture, mortgage, loan agreement, note,
lease or other material instrument to which it is a party 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
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and have been duly authorized by all necessary corporate action on the
part of the Company; and with respect to a Series of Certificates
described in the applicable Terms Agreement, neither the issuance and
sale of the Certificates to the Underwriters, nor the execution and
delivery by the Company of this Agreement, such Terms Agreement and the
related Pooling and Servicing Agreement, nor the consummation by the
Company of the transactions herein or therein contemplated, nor
compliance by the Company with the provisions hereof or thereof, will
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Company other than as contemplated by a Pooling and
Servicing Agreement, pursuant to any material indenture, mortgage,
contract or other material instrument to which the Company is a party
or by which it is bound or to which the property or assets of the
Company are subject, or result in the violation of the provisions of
the certificate of incorporation or by-laws of the Company or any
statute or any material order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of its properties.
(5) This Agreement has been, and each applicable Terms
Agreement when executed and delivered as contemplated hereby and
thereby will have been, duly authorized, executed and delivered by the
Company, and each constitutes, or will constitute when so executed and
delivered, a legal, valid and binding instrument enforceable against
the Company in accordance with its terms (assuming due authorization,
execution and delivery by the other parties thereto), subject (a) to
applicable bankruptcy, insolvency, reorganization, moratorium, or other
similar laws affecting creditors' rights generally, (b) as to
enforceability to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and (c) as
to enforceability with respect to rights of indemnity thereunder, to
limitations of public policy under applicable securities laws.
(6) Each applicable Pooling and Servicing Agreement when
executed and delivered as contemplated hereby and thereby will have
been duly authorized, executed and delivered by the Company, and will
constitute when so executed and delivered, a legal, valid and binding
instrument enforceable against the Company in accordance with its terms
(assuming due authorization, execution and delivery by the other
parties thereto), subject (a) to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
creditors'rights generally and (b) as to enforceability to general
principles of equity (regardless of whether enforcement is sought in a
proceeding 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 1934 Act.
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(8) There are no actions, proceedings or investigations now
pending against the Company or, to the knowledge of the Company,
threatened against the Company, before any court, administrative agency
or other tribunal (i) asserting the invalidity of this Agreement, the
applicable Terms Agreement, the applicable Pooling and Servicing
Agreement or with respect to a Series of Certificates, the
Certificates, (ii) seeking to prevent the issuance of such Certificates
or the consummation of any of the transactions contemplated by this
Agreement, the applicable Terms Agreement or such Pooling and Servicing
Agreement, (iii) which would be likely to materially and adversely
affect the performance by the Company of its obligations under, or
which would if adversely determined materially and adversely affect the
validity or enforceability of, this Agreement, the applicable Terms
Agreement, such Pooling and Servicing Agreement or such Certificates or
(iv) seeking to adversely affect the federal income tax attributes of
such Certificates described in the Prospectus and the related
Prospectus Supplement.
(9) Any material taxes, fees and other governmental charges
that are assessed and due in connection with the execution, delivery
and issuance of this Agreement, the applicable Terms Agreement, the
applicable Pooling and Servicing Agreement and with respect to a Series
of Certificates shall have been paid at or prior to the Closing Time.
(10) No filing or registration with, notice to or consent,
approval, authorization, order or qualification of or with any court or
governmental agency or body is required for the issuance and sale of
the Certificates or the consummation by the Company of the transactions
contemplated by this Agreement, the applicable Pooling and Servicing
Agreement or the applicable Terms Agreement, except the registration
under the 1933 Act of the Certificates, and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Certificates by the Underwriters.
(11) The Company possesses all material licenses,
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies deemed by the Company
to be reasonably necessary to conduct the business now operated by it
and as described in the Prospectus and the Company has received no
notice of proceedings relating to the revocation or modification of any
such license, certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable 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)
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the Mortgage Notes, upon delivery thereof to the Trustee and (b) the
Mortgages, upon delivery to the Trustee of instruments of assignment in
recordable form assigning each Mortgage to the Trustee and the
recording of each such instrument of assignment in the appropriate
recording office in which the Mortgaged Property is located, or if
supported by an opinion of counsel, without recording.
(14) As of the Closing Time, with respect to a Series of
Certificates, the Mortgage Pool will have substantially the
characteristics described in the Prospectus Supplement and in the Form
8-K of the Company prepared with respect to such Certificates, if the
Mortgage Pool is described in such Form 8-K.
(15) Neither the Company nor the Trust Fund created by the
applicable Pooling and Servicing Agreement will be subject to
registration as an "investment company" under the Investment Company
Act of 1940, as amended (the "1940 Act").
(16) The Certificates, the applicable Pooling and Servicing
Agreement, the applicable Terms Agreement and any primary insurance
policies, mortgage pool insurance policies, standard hazard insurance
policies, special hazard insurance policies, mortgagor bankruptcy
insurance and alternate credit enhancement related to the Certificates
described in the relevant Terms Agreement conform in all material
respects to the descriptions thereof contained in the Prospectus.
(17) As of the Closing Time, the Mortgage Loans will have been
duly and validly assigned and delivered by the Company to the Trustee
under the related Pooling and Servicing Agreement.
(18) As of the Closing Time, the representations and
warranties of the Company contained in the applicable Pooling and
Servicing Agreement are true and correct in all material respects.
(b) 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 Delaware with corporate power and authority to enter into
and perform its obligations under this Agreement, and with respect to a
Series of Certificates, the applicable Terms Agreement; and 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.
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(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.
(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
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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).
(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 such place and time or date as
shall be agreed upon by you and the Company in the Terms Agreement (each such
time and date being referred to as a "Closing Time"). Unless otherwise specified
in the applicable Terms Agreement, payment shall be made to the Company in
immediately available Federal funds wired to such bank as may be designated by
the Company. Such Certificates shall be in such denominations and registered in
such names as you may request in writing at least two business days prior to the
applicable Closing Time. Such Certificates will be made available for
examination and packaging by you no later than 12:00 noon on the first business
day prior to the applicable Closing Time.
It is understood that the Underwriters intend to offer the Certificates
for sale to the public as set forth in the Prospectus Supplement.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each of
you and each Underwriter participating in an offering of Certificates pursuant
to a Terms Agreement, with respect to such Certificates and such offering, as
follows:
(a) Immediately following the execution of each Terms
Agreement, the Company will prepare a Prospectus Supplement setting
forth the principal amount of Certificates covered thereby, the price
or prices at which the Certificates are to be purchased by the
Underwriters, either the initial public offering price or prices or the
method by which the price or prices by which the Certificates are to be
sold will be determined, the selling concession(s) and reallowance(s),
if any, any delayed delivery arrangements, and such other information
as you and the Company deem appropriate in connection with the offering
of the Certificates. The Company will furnish you with a copy of the
Prospectus Supplement for
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your review prior to filing such Prospectus Supplement with the
Commission. Thereafter, the Company will promptly transmit copies of
the Prospectus Supplement to the Commission for filing pursuant to Rule
424 under the 1933 Act and will furnish to the Underwriters as many
copies of the Prospectus and such Prospectus Supplement as you shall
reasonably request.
(b) If the delivery of a prospectus is required at any time in
connection with the offering or sale of the Certificates described in
the relevant Terms Agreement and if at such time any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such period of time to
amend or supplement the Prospectus in order to comply with the 1933
Act, the Company agrees to notify you promptly and upon your request so
to amend or supplement the Prospectus and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as
many copies as you may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance.
(c) During any period in which the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Certificates described in the relevant Terms Agreement the Company will
give you reasonable notice of its intention to file any amendment to
the Registration Statement or any amendment or supplement to the
Prospectus, whether pursuant to the 1933 Act or otherwise, and will
furnish you with copies of any such amendment or supplement or other
documents proposed to be filed a reasonable time in advance of filing.
(d) During any period in which the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Certificates described in the relevant Terms Agreement the Company will
notify you promptly (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the
Commission for filing of any supplement to the Prospectus or any
document other than quarterly and annual reports to be filed pursuant
to the 1934 Act, (iii) of the receipt of any 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
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first occurs, to deliver to you the annual statement as to compliance
delivered to the Trustee pursuant to the applicable Pooling and
Servicing Agreement and the annual statement of a firm of independent
public accountants furnished to the Trustee pursuant to the applicable
Pooling and Servicing Agreement, as soon as such statements are
furnished to the Company.
(f) The Company will deliver to you as many conformed copies
of the Registration Statement (as originally filed) and of each
amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated by reference in the
Prospectus) as you may reasonably request.
(g) The Company will endeavor, in cooperation with you, to
qualify the Certificates for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United
States as you may reasonably designate, and will maintain or cause to
be maintained such qualifications in effect for as long as may be
required for the distribution of the Certificates, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction. The Company will file or cause the filing of such
statements and reports as may be required by the laws of each
jurisdiction in which the Certificates have been qualified as above
provided.
SECTION 4. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters to purchase Certificates pursuant to any Terms Agreement shall
be subject to the accuracy of the representations and warranties on the part of
the Company herein contained, to the accuracy of the statements of the Company's
officers made pursuant hereto, to the performance by the Company of all of its
obligations hereunder and to the following additional conditions precedent:
(a) At the applicable Closing Time (i) no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
initiated or threatened by the Commission and the Prospectus Supplement
shall have been filed or transmitted for filing by means reasonably
calculated to result in filing with the Commission not later than the
time 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:
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(1) The opinion, dated as of the applicable Closing
Time, of counsel for the Company, in form and substance satisfactory to
such of you as may be named in the applicable Terms Agreement,
substantially to the effect that:
(i) The Company is validly existing as a corporation
in good standing under the laws of the State of Delaware.
(ii) This Agreement and the applicable Terms
Agreement have been duly authorized, executed and delivered by
the Company, and each is a valid and binding obligation of the
Company.
(iii) The applicable Pooling and Servicing Agreement
has been duly authorized, executed and delivered by the
Company, and is a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its
terms, except that (A) such enforceability thereof may be
subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to
creditors' rights generally and (B) the remedy of specific
performance and injunctive and other forms of equitable relief
may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought.
(iv) The execution and delivery by the Company of
this Agreement, the applicable Terms Agreement and applicable
Pooling and Servicing Agreement and the signing of the
Registration Statement by the Company are within the corporate
power of the Company and have been duly authorized by all
necessary corporate action on the part of the Company; and
neither the issue and sale of the Certificates nor the
consummation of the transactions contemplated herein or
therein nor the fulfillment of the terms hereof or thereof
will, conflict with or constitute a breach or violation of any
of the terms or provisions of, or constitute a default under,
or result in the creation or imposition of any lien, charge or
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,
-11-
authorization, order or qualification of or with any court or
governmental agency or body is required for the issuance and
sale of the Certificates or the consummation by the Company of
the transactions contemplated by this Agreement, the
applicable Pooling and Servicing Agreement or the applicable
Terms Agreement, except the registration under the 1933 Act of
the Certificates, and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Certificates by the
Underwriters.
(vii) Other than as may be set forth or contemplated
in the Prospectus, there is no action, suit or proceeding of
which such counsel is aware before or by any court or
governmental agency or body, domestic or foreign, now pending
or, to such counsel's knowledge, threatened against the
Company which might result in any material adverse change in
the financial condition, earnings, affairs or business of the
Company, or which might materially and adversely affect the
properties or assets thereof or might materially and adversely
affect the performance by the Company of its obligations
under, or the validity or enforceability of, the Certificates,
this Agreement or the Pooling and Servicing Agreement, or
which is required to be disclosed in the Registration
Statement.
(viii) The Registration Statement is effective under
the 1933 Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(ix) The applicable Pooling and Servicing Agreement
is not required to be qualified under the Trust Indenture Act
of 1939, as amended.
(x) The Registration Statement and the Prospectus
(other than the financial statements and other financial and
statistical information included therein, as to which no
opinion need be rendered) as of their respective effective or
issue dates, complied as to form in all material respects with
the requirements of the 1933 Act and the Regulations
thereunder.
(xi) (A) The statements in the Prospectus under the
headings "ERISA Considerations" and "Federal Income Tax
Consequences" and the statements in the applicable Prospectus
Supplement under the headings "Federal Income Tax
Consequences" and "ERISA Considerations", to the extent that
they describe matters of United States federal income tax law
or ERISA or legal conclusions with respect thereto, have been
prepared or reviewed by such counsel and are accurate in all
material respects and (B) the statements in the Prospectus
under the heading "Legal Aspects of the Mortgage Loans," to
the extent they constitute matters of United States federal
law or legal conclusions with respect thereto, while not
purporting to discuss all possible consequences of investment
in the Certificates, are accurate in all material respects
with respect to those consequences or matters discussed
therein.
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(xii) The statements in the Prospectus and the
applicable Prospectus Supplement under the caption
"Description of the Certificates", insofar as they purport to
summarize certain terms of the Certificates and the applicable
Pooling and Servicing Agreement, constitute a fair summary of
the provisions purported to be summarized.
(xiii) The Trust Fund created by the applicable
Pooling and Servicing Agreement is not, and will not as a
result of the offer and sale of the Certificates as
contemplated in the Prospectus and in this Agreement become,
required to be registered as an "investment company" under the
1940 Act.
(xiv) The Classes of Certificates so designated in
the Prospectus Supplement will be "mortgage related
securities", as defined in ss.3(a)(41) of the 1934 Act, so
long as the Certificates are rated in one of the two highest
grades by at least one nationally recognized statistical
rating organization.
(xv) Assuming (a) ongoing compliance with all of the
provisions of the Pooling and Servicing Agreement and (b) the
filing of elections, in accordance with the Pooling and
Servicing Agreement, to be treated as "real estate mortgage
investment conduits" ("REMICs") pursuant to Section 860D of
the Internal Revenue Code of 1986, as amended (the "Code") for
Federal income tax purposes, 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 the jurisdiction indicated in the
opinion.
Such counsel shall deliver to you such additional opinions addressing
the transfer by the Company to the Trustee of its right, title and interest in
and to the Mortgage Loans and other property included in the Trust Fund at the
Closing Time as may be required by each Rating Agency rating the Certificates.
Such counsel shall state that it has participated in conferences with
officers and other representatives of the Company, your counsel, representatives
of the independent accountants for the Company and you at which the contents of
the Registration Statement and the Prospectus and related matters were discussed
and, although such counsel is not passing upon and does not assume
responsibility for, the factual accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as
stated in paragraphs (xi) and (xii) above) and has made no independent check or
verification thereof for the purpose of rendering its opinion, on the basis of
the foregoing, nothing has come to their attention that leads such counsel to
believe that either the Registration Statement, at the time it became effective
and at the applicable Closing Time, contained an untrue statement of a material
fact or omitted to state a material fact required to be
-13-
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or that
the Prospectus contained or contains as of the date thereof and at the
applicable Closing Time any untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
that such counsel need express no view with respect to the financial statements,
schedules and other financial and statistical data included in or incorporated
by reference into the Registration Statement, the Prospectus or the Prospectus
Supplement.
Such counsel may state that their opinions relate only to laws of the
State of New York, the Federal laws of the United States and the General
Corporation Law of the State of Delaware.
In rendering such opinions, such counsel may rely, as to matters of
fact, to the extent deemed proper and stated therein, on certificates of
responsible officers of the Company, the Trustee or public officials.
(2) The favorable opinion of counsel to the Trustee,
dated as of the applicable Closing Time, addressed to you and
in form and scope satisfactory to your counsel, to the effect
that:
(i) The Trustee is duly organized and
validly existing in good standing under the laws of the United
States or under the laws of the jurisdiction in which it is
organized, and has all requisite power and authority to enter
into the Pooling and Servicing Agreement and to perform its
obligations thereunder.
(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.
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(vii) The performance by the Trustee of its
duties pursuant to the Pooling and Servicing Agreement does
not conflict with or result in a breach or violation of any
term or provision of, or constitute a default under, any
statute or regulation currently governing the Trustee.
In rendering such opinion, such counsel may rely, as to
matters of fact, to the extent deemed proper and stated therein, on certificates
of responsible officers of the Trustee or public officials.
(3) The favorable opinion of counsel to the Servicer,
dated as of the applicable Closing Time, addressed to you and
in form and scope satisfactory to your counsel, to the effect
that:
(i) The Servicer is validly existing as a
corporation in good standing under the laws of the
jurisdiction of its incorporation.
(ii) The execution and delivery by the
Servicer of the applicable Pooling and Servicing Agreement is
within the corporate power of the Servicer and has been duly
authorized by all necessary corporate action on the part of
the Servicer; and to the knowledge of such counsel, neither
the execution and delivery of either such instrument, nor the
consummation of the transactions provided for therein, nor
compliance with the provisions thereof, will conflict with or
constitute a breach of, or default under, any contract,
indenture, mortgage, loan agreement, note, lease, deed of
trust, or other instrument to which the Servicer is a party or
by which it may be bound, nor will such action result in any
violation of the provisions of the charter or by-laws of the
Servicer or to the knowledge of such counsel, any law,
administrative regulation or administrative or court decree.
(iii) The applicable Pooling and Servicing
Agreement has been duly executed and delivered by the Servicer
and constitutes a legal, valid and binding obligation of the
Servicer enforceable against the Servicer in accordance with
its terms, except that such enforceability thereof may be
subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights
generally and subject, as to enforceability, to general
principles of equity (regardless whether enforcement is sought
in a proceeding in equity or at law).
(iv) The execution, delivery and performance
by the Servicer of the applicable Pooling and Servicing
Agreement do not require the consent or approval of, the
giving of notice to, the registration with, or the taking of
any other action in respect of any federal, state or other
governmental agency or authority which has not previously been
effected.
(v) No action, suit or proceeding of which
such counsel is aware before or by any court or governmental
agency or body, domestic or foreign, is now pending or, to the
knowledge of such counsel, threatened, against the Servicer
which
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might materially and adversely affect the performance by the
Servicer under, or the validity or enforceability of the
applicable Pooling and Servicing Agreement.
(vi) The description of the Servicer in the
applicable Prospectus Supplement is true and correct in all
material respects.
(4) The favorable opinion or opinions, dated as of
the applicable Closing Time, of counsel for the Underwriters,
acceptable to the Underwriters.
(5) The favorable opinion, dated the applicable
Closing Time of counsel for 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.
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If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled or, if any of the opinions and
certificates required hereby shall not be in all material respects reasonably
satisfactory to you and your counsel, the applicable Terms Agreement may be
terminated by you by notice to the Company at any time at or prior to the
applicable Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 5.
SECTION 5. PAYMENT OF EXPENSES. Except as otherwise provided
in the applicable Terms Agreement, the Company covenants and agrees with the
Underwriters that the Company will pay or cause to be paid all expenses incident
to the performance of its obligations under this Agreement and all other fees
and expenses associated with the transactions referred to herein, including, but
not limited to, the fees and expenses of the Trustee, Rating Agencies, printer,
accounting firms, the fees and expenses relating to the establishment of the
Company's shelf registration statement and related ongoing fees and expenses;
provided, however, that the Underwriters covenant and agree to pay all of their
own costs and expenses, including underwriting and due diligence expenses, the
fees of their counsel, transfer taxes on the resale of any of the Certificates
by them and any advertising expenses connected with any offers they may make.
SECTION 6. INDEMNIFICATION.
(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), 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
-17-
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
Xxxxxx Brothers Information (as defined in Section 10 hereof) other
than any inaccuracies therein which are caused by errors in the Pool
Information relating to a Series of Certificates constitute the only
information furnished in writing by or on behalf of the Underwriters
expressly for use in the Registration Statement relating to such Series
of Certificates as originally filed or in any amendment thereof, any
related preliminary prospectus or the Prospectus or in any amendment
thereof or supplement thereto, as the case may be.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an
indemnifying party under this Section, notify such indemnifying party
in writing of the commencement thereof; but the omission so to notify
the indemnifying party shall not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section. In
case any such action shall be brought against any indemnified party and
it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying
party); and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under
this Section for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than reasonable costs of
investigation. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any
such case and the fees and expenses of one such counsel shall be at the
expense of the indemnifying party if (i) the employment of such counsel
shall have been authorized in writing by the indemnifying party in
connection with
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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,
-19-
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 Xxxxxx
Brothers 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 Xxxxxx Brothers 8-K which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any
other equitable considerations. The Company and the Underwriters agree
that it would not be just and equitable if contribution pursuant to
this subsection (d) were determined by pro rata allocation even if the
Underwriters were treated as one entity for such purpose or by any
other method of allocation which does not take account of the equitable
considerations referred to in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigation or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Certificates underwritten by it and
distributed to the public were sold to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled
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 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
-20-
(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 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
-21-
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) Xxxxxx Brothers 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
Xxxxxx Brothers, Xxxxxx Brothers 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, Xxxxxxx Acceptance Corporation I, et al., as
modified by a no-action letter (the "First PSA No-Action Letter")
issued by the staff of the Commission on May 27, 1994 to the Public
Securities Association (the "PSA") and as further modified by a
no-action letter (the "Second PSA No-Action Letter", and together with
the Xxxxxx No-Action Letter and the First PSA No-Action Letter, the
"No-Action Letters") issued by the staff of the Commission on February
17, 1995 to the PSA; (ii) "Structural Term Sheets" as defined in the
Second PSA No-Action Letter; and/or (iii) "Collateral Term Sheets" as
defined in the Second PSA No-Action Letter. AAFS covenants and agrees
that it will not prepare any Computational Materials, Structural Term
Sheets or Collateral Term Sheets in connection with the offering of
Certificates pursuant to this Underwriting Agreement except as provided
for in the Terms Agreement which relates to an offering of
Certificates.
(b) In connection with each Series of Certificates, Xxxxxx
Brothers 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 Xxxxxx
Brothers and required to be filed with the Commission in accordance
with the No-Action Letters (such Computational Materials, the "Xxxxxx
Brothers Furnished Computational Materials").
(c) In connection with each Series of Certificates, Xxxxxx
Brothers 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 Xxxxxx
Brothers and required to be filed with the Commission in accordance
with the No-Action Letters (such Structural Term Sheets, the "Xxxxxx
Brothers Furnished Structural Term Sheets").
-22-
(d) In connection with each Series of Certificates, Xxxxxx
Brothers shall furnish to the Company (via hard copy), within one (1)
business day after the first use thereof, all Collateral Term Sheets
used by Xxxxxx Brothers and required to be filed with the Commission in
accordance with the No-Action Letters (such Collateral Term Sheets, the
"Xxxxxx Brothers 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 "Xxxxxx Brothers 8-K," and each a "Xxxxxx Brothers 8-K")
which shall include as one or more exhibits thereto the Xxxxxx Brothers
Furnished Computational Materials, the Xxxxxx Brothers Furnished
Structural Term Sheets and the Xxxxxx Brothers Furnished Collateral
Term Sheets. Notwithstanding any other provision in the Underwriting
Agreement, Xxxxxx Brothers agrees to pay up to $500.00 to the Company
for the reasonable and customary costs and expenses of the Company
incurred in connection with the filing by the Company of any
Computational Materials with the Commission. In addition, in the event
that the hardship exemption granted by the Commission allowing for the
paper filing of Computational Materials is no longer available, Xxxxxx
Brothers will provide the Company with the Computational Materials in
an electronic format.
(f) Xxxxxx Brothers shall cooperate with the Company and with
Deloitte & Touche in obtaining a letter, in form and substance
satisfactory to the Company and Xxxxxx Brothers, of Deloitte & Touche
regarding the information in any Xxxxxx Brothers 8-K consisting of
Xxxxxx Brothers Furnished Computational Materials and/or Xxxxxx
Brothers Furnished Structural Term Sheets.
(g) Xxxxxx Brothers represents and warrants to, and covenants
with, the Company that the Xxxxxx Brothers Information (defined below)
is not misleading and not inaccurate in any material respect and that
any Pool Information (defined below) contained in any Xxxxxx Brothers
8-K which is not otherwise inaccurate in any material respect is not
presented in the Xxxxxx Brothers 8-K in a way that is either misleading
or inaccurate in any material respect. Xxxxxx Brothers 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 Xxxxxx Brothers 8-K are found to include any
information that is misleading or inaccurate in any material respect,
Xxxxxx Brothers 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) Xxxxxx Brothers covenants that all Computational Materials
and ABS Term Sheets used by it shall contain a legend substantially as
set forth below:
Collateral Term Sheets (other than the initial Collateral
Term Sheet):
-23-
"THIS INFORMATION DOES NOT CONSTITUTE EITHER AN OFFER TO SELL
OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES
REFERRED TO HEREIN. OFFERS TO SELL AND SOLICITATIONS OF OFFERS
TO BUY THE SECURITIES ARE MADE ONLY BY, AND THIS INFORMATION
MUST BE READ IN CONJUNCTION WITH, THE FINAL PROSPECTUS
SUPPLEMENT AND THE RELATED PROSPECTUS OR, IF NOT REGISTERED
UNDER THE SECURITIES LAWS, THE FINAL OFFERING MEMORANDUM (THE
"OFFERING DOCUMENT"). INFORMATION CONTAINED HEREIN DOES NOT
PURPORT TO BE COMPLETE AND IS SUBJECT TO THE SAME
QUALIFICATIONS AND ASSUMPTIONS, AND SHOULD BE CONSIDERED BY
INVESTORS ONLY IN THE LIGHT OF THE SAME WARNINGS, LACK OF
ASSURANCES AND REPRESENTATIONS AND OTHER PRECAUTIONARY
MATTERS, AS DISCLOSED IN THE OFFERING DOCUMENT. INFORMATION
REGARDING THE UNDERLYING ASSETS HAS BEEN PROVIDED BY THE
ISSUER OF THE SECURITIES OR AN AFFILIATE THEREOF AND HAS NOT
BEEN INDEPENDENTLY VERIFIED BY XXXXXX BROTHERS INC. OR ANY
AFFILIATE. THE ANALYSES CONTAINED HEREIN HAVE BEEN PREPARED
AND DISSEMINATED BY XXXXXX BROTHERS INC. AND THE CONTENTS AND
ACCURACY THEREOF HAVE NOT BEEN REVIEWED BY THE ISSUER. THIS
INFORMATION WAS PREPARED ON THE BASIS OF CERTAIN ASSUMPTIONS
(INCLUDING, IN CERTAIN CASES ASSUMPTIONS SPECIFIED BY THE
RECIPIENT HEREOF) REGARDING PAYMENTS, INTEREST RATES, WEIGHTED
AVERAGE LIVES AND WEIGHTED AVERAGE LOAN AGE, LOSS AND OTHER
MATTERS, INCLUDING, BUT NOT LIMITED TO, THE ASSUMPTIONS
DESCRIBED IN THE OFFERING DOCUMENT. XXXXXX BROTHERS INC., AND
ANY OF ITS AFFILIATES, MAKE NO REPRESENTATION OR WARRANTY AS
TO THE ACTUAL RATE OR TIMING OF PAYMENTS ON ANY OF THE
UNDERLYING ASSETS OR THE PAYMENTS OR YIELD ON THE SECURITIES.
THIS INFORMATION SUPERSEDES ANY PRIOR VERSIONS HEREOF AND WILL
BE DEEMED TO BE SUPERSEDED BY ANY SUBSEQUENT VERSIONS
(INCLUDING, WITH RESPECT TO ANY DESCRIPTION OF THE SECURITIES
OR THE UNDERLYING ASSETS, THE INFORMATION CONTAINED IN THE
OFFERING DOCUMENT)."
(i) For purposes of this Agreement, the term "Xxxxxx Brothers
Information" means such portion, if any, of the information contained
in the Xxxxxx Brothers 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 Xxxxxx Brothers 8-K in a way that is either inaccurate
or misleading in any material respect, such information shall not be
Pool Information.
-24-
(j) If the Underwriters do not provide any Computational
Materials or ABS Term Sheets to the Company pursuant to subsections (b)
- (d) above, the Underwriters shall be deemed to have represented, as
of the Closing Time, that they did not provide any prospective
investors with any information in written or electronic form in
connection with the offering of the Certificates that is required to be
filed with the Commission in accordance with the No-Action Letters, and
the Underwriters shall provide the Company with a certification to that
effect at the Closing Time.
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed,
delivered, telexed, or telegraphed and confirmed or transmitted by any standard
form of telecommunication. Notices to Xxxxxx Brothers shall be directed to you
at the address set forth on the first page hereof, to the attention of Xxxxxxx
X. Xxxxxxxxxx, with a copy to the General Counsel's office and notices to AAFS
shall be directed to you at the address set forth on the first page hereof, to
the attention of Fixed Income Department,Xxxxx Xxxxxxx; with a copy to Legal
Department, ABN AMRO Financial Services, Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, attention: Xxxx Xxxxx. Notices to the Company or to 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 Legal Department, 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]
-25-
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
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Executive Vice President
CONFIRMED AND ACCEPTED, as of
the date first above written:
XXXXXX BROTHERS INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
ABN AMRO FINANCIAL SERVICES, INC.
By: /s/ Xxxxx Xxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
EXHIBIT A
PASS-THROUGH CERTIFICATES
ABN AMRO MORTGAGE CORPORATION, DEPOSITOR
TERMS AGREEMENT
Dated: _________, 20__
To: ABN AMRO MORTGAGE CORPORATION
Re: Underwriting Agreement, dated as of May 22, 2002 (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., [New York, New
York] [Chicago, Illinois] time, on _____________ and the location of the closing
shall be the [New York, New York] [Chicago, Illinois] offices of
____________________. Subject to the terms and conditions set forth or
incorporated by reference herein, the Company hereby agrees to sell and the
Underwriters agree to purchase [, severally and not jointly,] the [respective]
original principal amount[s] of Certificates set forth opposite [its] [their]
name[s] in Exhibit I hereto at the purchase price set forth below.
The Underwriters will offer the Certificates for sale upon the terms
and conditions set forth in the Prospectus.
Subject to the terms and conditions set forth or incorporated by
reference herein, the Underwriters will pay for the Certificates at the time and
place and in the manner set forth in the Underwriting Agreement.
Series Designation: ____________
------------------
Terms of the Certificates and Underwriting Compensation:
-------------------------------------------------------
Original
Principal Remittance Price to
Classes Amount* Rate Public
------- --------- ---------- --------
**
* Approximate. Subject to permitted variance in each case of
plus or minus 5%.
** The Class __ Certificates are being offered by the Underwriter
from time to time in negotiated transactions or otherwise at
varying prices to be determined, in each case, at the time of
sale.
Certificate Rating:
------------------
_____ by [Rating Agency]
_____ by [Rating Agency]
REMIC Election:
--------------
The Company [does not] intend[s] to cause the Mortgage Pool to
be treated as a REMIC.
Credit Enhancement:
------------------
Cut-off Date:
------------
The Cut-off Date is ___________, 20__.
Remittance Date:
---------------
The ____ day of each month (or, if such ____ day is not a
business day, the business day immediately following) commencing __________,
20__.
Purchase Price:
--------------
The purchase price payable by the Underwriter for the Class __
Certificates is ___% of the aggregate principal balance of the Class __
Certificates as of the Closing Date plus accrued interest at the per annum rate
of ___% from __________, 20__ up to but not including the Closing Date.
Underwriting Commission:
-----------------------
-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:
-------------------------
__________, 20__ at the [New York, New York] [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.
XXXXXX BROTHERS INC.
By:
______________________________
Name:
Title:
ABN AMRO FINANCIAL SERVICES, INC.
By:_______________________________
Name:
Title:
ACCEPTED:
ABN AMRO MORTGAGE CORPORATION
By:
----------------------------------------
Name:
Title:
ABN AMRO NORTH AMERICA, INC.
By:
----------------------------------------
Name:
Title:
Exhibit I
---------
Original
Principal
Amount of
Name Certificates
---- ------------
Total ==============
