Mortgage Capital Funding, Inc.
Multifamily/Commercial
Mortgage Pass-Through Certificates, Series 1996-MC2
Class X, Class F, Class G, Class H, Class R-I and Class R-II
Certificate Purchase Agreement
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as of December 11, 1996
NationsBanc Capital Markets, Inc.
NationsBank Corporate Center, 11th Floor
000 Xxxxx Xxxxx Xxxxxx
Mail Code: NC1-007-11-07
Charlotte, North Carolina 28255
Citibank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Mortgage Capital Funding, Inc., a Delaware corporation ("MCFI"),
proposes to sell to NationsBanc Capital Markets, Inc. ("NationsBanc") and
Citibank, N.A. ("Citibank"; NationsBanc and Citibank, in such capacity, each a
"Purchaser" and, together, the "Purchasers"), the respective classes of
Multifamily/Commercial Mortgage Pass-Through Certificates, Series 1996-MC2 which
are identified on Schedule I hereto (collectively, the "Privately Offered
Certificates"), in each case, having the initial aggregate stated principal
balance (a "Class Principal Balance") or, in the case of the Class X
Certificates, initial aggregate notional principal amount ( the "Class Notional
Amount") set forth on Schedule I. The Privately Offered Certificates, together
with the Class A-1, Class A-2, Class A-3, Class B, Class C, Class D and Class E
Certificates issued therewith (the "Registered Certificates" and, collectively
with the Privately Offered Certificates, the "Certificates"), evidence the
entire beneficial ownership interest in the assets of a trust fund (the "Trust
Fund") to be formed by MCFI and consisting primarily of a pool (the "Mortgage
Pool") of commercial and multifamily mortgage loans (the "Mortgage Loans") that
will have, as of the close of business on December 1, 1996 (the "Cut-off Date"),
after taking into account all payments of principal due on the Mortgage Loans on
or before such date, whether or not received, an aggregate principal balance of
$458,055,542, subject to a variance of plus or minus 5.0%. The Mortgage Loans
(or the right to have such transferred to the Trust Fund) will be acquired by
MCFI from Citicorp Real Estate, Inc. ("CREI"), pursuant to a mortgage loan
purchase agreement, dated as of the date hereof (the "Mortgage Loan Purchase
Agreement"), between MCFI and CREI. Certain of the Mortgage Loans will be
acquired by CREI from NationsBanc Mortgage Capital Corporation ("NMCC"; such
mortgage loans, the "NMCC Mortgage Loans), pursuant to a mortgage loan purchase
agreement, dated as of the date hereof (the "NMCC Purchase Agreement"), between
CREI and NMCC. Certain of the Mortgage Loans will be acquired by CREI from PNC
Bank, National Association ("PNC"; such Mortgage Loans, together with all other
Mortgage Loans other than the NMCC Mortgage Loans, the "CREI Mortgage Loans"),
pursuant to a mortgage loan purchase agreement, dated as of the date hereof (the
"PNC Purchase Agreement"), between CREI and PNC. Two separate real estate
mortgage investment conduit ("REMIC") elections will be made with respect to the
Trust Fund for federal income tax purposes. The
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Trust Fund is to be created and the Certificates are to be issued under a
pooling and servicing agreement, dated as of December 1, 1996 (the "Pooling and
Servicing Agreement"), among MCFI as sponsor, CREI as mortgage loan seller (in
such capacity, the "Mortgage Loan Seller"), NMCC, as an additional warranting
party, GMAC Commercial Mortgage Corporation as master servicer (in such
capacity, the "Master Servicer"), and as special servicer (in such capacity, the
"Special Servicer"), LaSalle National Bank as trustee (in such capacity, the
"Trustee") and REMIC administrator (in such capacity, the "REMIC Administrator")
and ABN AMRO Bank N.V. as fiscal agent (the "Fiscal Agent").
1. Representations, Warranties and Covenants.
(a) MCFI represents and warrants to, and covenants with, each of the
Purchasers that:
(i) As of the Closing Date (as defined in Section 3), the
Privately Offered Certificates will be duly authorized, executed and
delivered and, assuming authentication in the manner contemplated in
the Pooling and Servicing Agreement, will be validly issued and
outstanding and entitled to the benefits provided by the Pooling and
Servicing Agreement.
(ii) As of the Closing Date, the Pooling and Servicing Agreement
will have been duly authorized, executed and delivered by XXXX and,
assuming the valid authorization, execution and delivery thereof by
the other parties thereto, will constitute a valid and binding
agreement of MCFI enforceable in accordance with its terms, except as
the same may be limited by bankruptcy, insolvency, reorganization or
other laws relating to or affecting the enforcement of creditors'
rights and by general principles of equity.
(iii) This Agreement has been duly authorized, executed and
delivered by XXXX and, assuming the valid authorization, execution and
delivery hereof by each of the Purchasers, constitutes a valid and
binding obligation of MCFI enforceable in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting the enforcement
of creditors' rights, by general principles of equity and by public
policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement that purport to provide indemnification
for securities laws liabilities.
(iv) As of the Closing Date, the Privately Offered Certificates
and the Pooling and Servicing Agreement will conform in all material
respects to the descriptions thereof contained in the Private
Placement Memorandum (including the exhibits thereto, the "Private
Placement Memorandum"), dated December 11, 1996, relating to the Class
X, Class F, Class G and Class H Certificates.
(v) As of the Closing Date, the Private Placement Memorandum will
not include any untrue statement of a material fact and (when read
together with the other information referenced therein as being
available for review by prospective investors) will not 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 MCFI does not make any
representations, warranties or agreements as to the information
contained in or omitted from the Private Placement Memorandum in
reliance upon and in conformity with the information furnished in
writing to MCFI by or on behalf of such Purchaser (in whatever
capacity) specifically for use in connection with the preparation of
the Private Placement Memorandum.
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(vi) MCFI has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Private Placement Memorandum.
(vii) The issuance and sale of the Privately Offered Certificates
to the Purchasers pursuant to this Agreement, the compliance by MCFI
with the other provisions of this Agreement, the Pooling and Servicing
Agreement and the Privately Offered Certificates and the consummation
of the other transactions herein or therein contemplated do not, under
any statute, regulation or rule of general applicability or any
decision, order, decree or judgment of any judicial or other
governmental body specifically applicable to MCFI, require any
consent, approval, authorization, order, registration or qualification
of or with any court or governmental authority, except (A) such as
have been obtained or effected with respect to the Registered
Certificates under the Securities Act of 1933, as amended (the
"Securities Act") (provided that MCFI makes no representations or
warranties as to any consent, approval, authorization, registration or
qualification which may be required under state securities or Blue Sky
laws), (B) the recordation of the assignments of the Mortgage Loans to
the Trustee, which recordation is to be completed pursuant to the
Pooling and Servicing Agreement on or following the Closing Date and
(C) such other approvals as have been obtained.
(viii) Neither the execution and delivery of this Agreement and
the Pooling and Servicing Agreement, nor the issuance and delivery of
the Privately Offered Certificates, nor the consummation of any other
of the transactions contemplated herein or therein, nor the
fulfillment of the terms of this Agreement and the Pooling and
Servicing Agreement, will conflict with, violate, result in a breach
of or constitute a default under the certificate of incorporation or
by-laws of MCFI, any statute or regulation currently applicable to
MCFI, or any order currently applicable to MCFI of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over MCFI, or the terms of any indenture or other
agreement or instrument to which MCFI is a party or by which it or any
of its properties are bound.
(ix) There are no actions or proceedings against, or
investigations of, MCFI pending, or, to the knowledge of MCFI,
threatened, before any court, administrative agency or other tribunal
(A) asserting the invalidity of this Agreement, the Pooling and
Servicing Agreement or the Privately Offered Certificates, (B) seeking
to prevent the issuance of the Privately Offered Certificates or the
consummation of any of the transactions contemplated by this Agreement
or the Pooling and Servicing Agreement, (C) that might materially and
adversely affect the performance by MCFI of its obligations under, or
the validity or enforceability of, this Agreement, the Pooling and
Servicing Agreement or the Privately Offered Certificates or (D)
seeking to affect adversely the federal income tax attributes of the
Class X, Class F, Class G and Class H Certificates described in the
Private Placement Memorandum.
(x) MCFI is not, and the issuance and sale of the Privately
Offered Certificates in the manner contemplated by the Private
Placement Memorandum and this Agreement will not cause MCFI to be,
subject to registration or regulation as an investment company or
affiliate of an investment company under the Investment Company Act of
1940, as amended (the "Investment Company Act").
(xi) The transfer of the Mortgage Loans to the Trust Fund and the
sale of the Certificates to the Purchasers, at the Closing Date, will
be treated by MCFI for financial accounting and reporting purposes as
a sale of assets and not as a pledge of assets to secure debt.
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(xii) Any taxes, fees and other governmental charges (other than
income taxes, franchise taxes and recording and filing fees) that are
due and payable by MCFI as of the Closing Date in connection with the
execution, delivery and performance of this Agreement, the Pooling and
Servicing Agreement and the Privately Offered Certificates, will have
been paid at or prior to the Closing Date.
(xiii) At the Closing Date and at the direction of MCFI, the
Mortgage Loans will have been duly and validly assigned and delivered
by the Mortgage Loan Seller to the Trustee under the Pooling and
Servicing Agreement.
(xiv) Assuming the accuracy of the representations and warranties
and the performance of the covenants contained herein on the part of
the Purchasers, neither MCFI nor anyone acting on its behalf has
offered or sold any Privately Offered Certificate or interest therein
by any form of general solicitation or general advertising. In
addition, XXXX will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing
sentence with respect to the Privately Offered Certificates.
(b) Each Purchaser represents and warrants to, and agrees with, XXXX
that:
(i) Such Purchaser is acquiring its allotment of the Privately
Offered Certificates for its own account and not with a view to or for
sale or transfer in any manner except as contemplated herein and in
the Private Placement Memorandum.
(ii) Such Purchaser understands that the Privately Offered
Certificates have not and will not be registered under the Securities
Act or registered or qualified under any applicable state securities
laws, neither MCFI nor the Trustee is obligated to register or qualify
the Privately Offered Certificates and the Privately Offered
Certificates may not be resold or transferred unless they are (A)
registered pursuant to the Securities Act and registered and qualified
pursuant to any applicable state securities laws or (B) sold or
transferred in transactions which are exempt from such registration
and qualification and the Trustee or other registrar of the
Certificates (or, in the case of the Class X Certificates, which are
being delivered in book-entry form, the transferor) has received
either (1) certification(s) from the transferor and/or transferee
(substantially in the forms attached to the Pooling and Servicing
Agreement) setting forth the facts surrounding the transfer and
establishing that such transfer is being made in accordance with Rule
144A under the Securities Act or in another transaction that does not
require registration under the Securities Act or (2) an opinion of
counsel satisfactory to the Trustee or other registrar of the
Certificates (or, in the case of the Class X Certificates, which are
being delivered in book-entry form, to the transferor) with respect to
the availability of such exemption, together with copies of the
certification(s) from the transferor and/or transferee setting forth
the facts surrounding the transfer upon which such opinion is based.
(iii) Such Purchaser will not sell or otherwise transfer any
Privately Offered Certificate or interest therein except in compliance
with the provisions of Section 5.02 of the Pooling and Servicing
Agreement.
(iv) Neither such Purchaser nor anyone acting on its behalf has
offered or sold any Privately Offered Certificate or interest therein
by any form of general solicitation or general advertising. In
addition, such Purchaser will not act, nor has it authorized or will
it authorize any person to act, in any manner set forth in the prior
sentence with respect to the Privately Offered Certificates.
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(v) Such Purchaser has been furnished with all information
regarding (A) MCFI, (B) the Privately Offered Certificates, (C) the
nature, performance and servicing of the Mortgage Loans, (D) the
Pooling and Servicing Agreement and (E) any credit enhancement
mechanism associated with the Privately Offered Certificates, that it
has requested.
(vi) Such Purchaser is an "accredited investor", as such term is
defined in Rule 501(a) of Regulation D under the Securities Act.
(vii) In connection with its purchase of any Class R-I and R-II
Certificates, such Purchaser understands that it must, and hereby
agrees to, deliver a Transfer Affidavit and Agreement substantially in
the form of Exhibit C-1 to the Pooling and Servicing Agreement.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, MCFI agrees
to sell to each of Citibank and NationsBanc, and Citibank and NationsBanc each
agrees to purchase from MCFI, the respective portions of the Class Principal
Balance or Class Notional Amount, as the case may be, of each class of Privately
Offered Certificates set forth on Schedule I hereto, at the purchase price for
each such class as set forth on such Schedule I.
3. Delivery and Payment. Delivery of and payment for the Privately
Offered Certificates shall be made in the manner specified below, on the date
and at the time specified in Schedule I hereto, which date and time may be
changed by agreement among the Purchasers and MCFI (such date and time of
delivery of and payment for the Privately Offered Certificates being hereinafter
referred to as the "Closing Date"). Delivery of each Purchaser's allotment of
the Privately Offered Certificates shall be made to the related Purchaser
against payment by such Purchaser of the purchase price therefor to or upon the
order of MCFI in same-day funds by federal funds wire (or by such other method
as such Purchaser and MCFI may agree). Unless delivery is made through the
facilities of the Depository Trust Company (as will be the case with respect to
the Class X Certificates), the Privately Offered Certificates of each class
thereof shall be registered in such names and in such authorized denominations
as the related Purchaser may have requested not less than three full business
days prior to the Closing Date.
XXXX agrees to have the Privately Offered Certificates available for
inspection, checking and packaging in New York, New York, at any time before
3:00 p.m. New York City time on the business day prior to the Closing Date.
4. Offering by the Purchasers. It is understood that each of the
Purchasers proposes to privately place the Privately Offered Certificates with a
limited number of institutional investors as set forth in the Private Placement
Memorandum.
5. Conditions to the Obligations of each Purchaser and MCFI. The
obligation of each Purchaser to purchase, and the obligation of MCFI to sell to
such Purchaser, its allotment of the Privately Offered Certificates shall be
subject to the accuracy of the representations and warranties on the part of
MCFI and such Purchaser contained herein as of the date hereof and as of the
Closing Date, to the accuracy of the statements of MCFI and such Purchaser made
in any officer's certificate pursuant to the provisions hereof, to the
performance by XXXX and such Purchaser of their respective obligations hereunder
and to the following additional conditions:
(a) MCFI shall have furnished to such Purchaser:
(i) An executed copy of the Pooling and Servicing Agreement;
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(ii) An opinion of Xxxxxxx X. Xxxxx, Esq., counsel to XXXX, dated
the Closing Date, substantially to the effect that:
(A) MCFI is validly existing as a corporation in good
standing under the laws of the State of Delaware, with corporate
power and authority under such laws to own its properties and
assets and conduct its business as described in the Private
Placement Memorandum;
(B) The Privately Offered Certificates have been duly
authorized, executed and delivered and, assuming authentication
in the manner contemplated in the Pooling and Servicing
Agreement, are validly issued and outstanding and entitled to the
benefits provided by the Pooling and Servicing Agreement;
(C) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by XXXX;
(D) The Pooling and Servicing Agreement constitutes a valid
and legally binding agreement of MCFI and is enforceable against
it in accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, reorganization or other
similar laws relating to or affecting the enforcement of
creditor's rights generally and by general principles of equity;
(E) The Pooling and Servicing Agreement is not required to
be qualified under the Trust Indenture Act of 1939, as amended,
and the Trust Fund is not required to be registered under the
Investment Company Act of 1940, as amended;
(F) The descriptions in the Private Placement Memorandum, as
of the date hereof, of the Privately Offered Certificates and the
Pooling and Servicing Agreement are, to the extent that such
descriptions constitute statements of matters of law or legal
conclusions with respect thereto, accurate in all material
respects;
(G) This Agreement has been duly authorized, executed and
delivered by XXXX; and
(H) The issuance, offer and sale of the Privately Offered
Certificates by MCFI to the Purchasers in the manner contemplated
in the Private Placement Memorandum, this Agreement and the
Pooling and Servicing Agreement, assuming the accuracy of your
representations and warranties and the performance of your
covenants contained herein, is a transaction that does not
require registration of the Privately Offered Certificates under
the Securities Act.
Such opinion may express its reliance as to factual matters on
the representations and warranties made by, and on certificates or
other documents furnished by officers and/or authorized
representatives of, the parties to this Agreement and the Pooling and
Servicing Agreement and on certificates furnished by public officials.
Such opinion may assume the due authorization, execution and delivery
of the instruments and documents referred to therein by the parties
thereto other than MCFI. Such opinion may be qualified as an opinion
only on the General Corporation Law of the State of Delaware, the laws
of each state in which the writer of the opinion is admitted to
practice law and the federal law of the United States.
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(iii) One or more opinions, dated the Closing Date, of Xxxxxxx
Xxxxxxxx & Xxxx, special counsel to MCFI, substantially to the effect that:
(A) The statements in the Private Placement Memorandum under the
headings "ERISA Considerations", and "Certain Federal Income Tax
Consequences", to the extent that they constitute matters of New York
or federal law or legal conclusions with respect thereto that are
relevant to the Privately Offered Certificates, provide a fair and
accurate summary of such law and conclusions; and
(B) As described in the Prospectus Supplement and assuming
compliance with the provisions of the Pooling and Servicing Agreement,
(1) REMIC I will qualify as a real estate mortgage investment conduit
(a "REMIC") within the meaning of Sections 860A through 860G (the
"REMIC Provisions") of the Internal Revenue Code of 1986, and the
REMIC I Regular Interests will be "regular interests" and the Class
R-I Certificates will evidence the sole class of "residual interests"
in REMIC I (as both terms are defined in the REMIC Provisions in
effect on the Closing Date), and (2) REMIC II will qualify as a REMIC
within the meaning of the REMIC Provisions, and the Class X, Class
A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class E, Class
F, Class G and Class H Certificates will evidence "regular interests"
and the Class R-II Certificates will evidence the sole class of
"residual interests" in REMIC II.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other
documents furnished by officers and/or authorized representatives of, the
parties to this Agreement and the Pooling and Servicing Agreement and on
certificates furnished by public officials. Such opinion may assume the due
authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than MCFI. Such opinion
may be qualified as an opinion only on the General Corporation Law of the
State of Delaware, the laws of each state in which the writer of the
opinion is admitted to practice law and the federal law of the United
States.
(iv) Such Purchaser shall have received copies of all legal opinion
letters delivered by Xxxxxxx Xxxxxxxx & Xxxx to the Rating Agencies in
connection with the issuance of the Privately Offered Certificates,
accompanied in each case by a letter signed by Xxxxxxx Xxxxxxxx & Xxxx
stating that such Purchaser may rely on such opinion letter as if it were
addressed to such Purchaser as of the date thereof;
(v) A good standing certificate regarding MCFI from the Secretary of
State of the State of Delaware, dated not earlier than 30 days prior to the
Closing Date;
(vi) A certificate of MCFI, dated the Closing Date and signed by an
executive officer or authorized signatory of MCFI, to the effect that the
representations and warranties of MCFI herein are true and correct in all
material respects on and as of the Closing Date with the same effect as if
made on the Closing Date, and XXXX has complied in all material respects
with all agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date; and
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(vii) An officer's certificate, dated the Closing Date and signed by
the Secretary or an assistant secretary of MCFI, to the effect that each
individual who, as an officer or representative of MCFI, signed this
Agreement, the Pooling and Servicing Agreement or any other document or
certificate delivered on or before the Closing Date in connection with the
transactions contemplated herein or in the Pooling and Servicing Agreement,
was at the respective times of such signing and delivery, and is as of the
Closing Date, duly elected or appointed, qualified and acting as such
officer or representative, and the signatures of such persons appearing on
such documents and certificates are their genuine signatures. Such
certificate shall be accompanied by true and complete copies (certified as
such by the Secretary or an assistant secretary of MCFI) of the certificate
of incorporation and by-laws of MCFI, as in effect on the Closing Date, and
of the resolutions of MCFI and any required shareholder consent relating to
the transactions contemplated in this Agreement and the Pooling and
Servicing Agreement.
(b) The Purchasers shall have received, with respect to each of the
Mortgage Loan Seller, NMCC, the Master Servicer, the Special Servicer, the
Fiscal Agent, the Trustee and the REMIC Administrator, a favorable opinion of
counsel, dated the Closing Date, addressing the valid existence of such party
under the laws of the jurisdiction of its organization, the due authorization,
execution and delivery of the Pooling and Servicing Agreement by such party and,
subject to the same limitations as set forth in Section 5(a)(ii)(D), the
enforceability of the Pooling and Servicing Agreement against such party. Such
opinion may express its reliance as to factual matters on representations and
warranties made by, and on certificates or other documents furnished by officers
and/or authorized representatives of parties to this Agreement and the Pooling
and Servicing Agreement and on certificates furnished by public officials. Such
opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other than
the party on behalf of which such opinion is being rendered. Such opinion may be
qualified as an opinion only on the General Corporation Law of the State of
Delaware (if relevant), the laws of each state in which the writer of the
opinion is admitted to practice law and the federal law of the United States.
(c) MCFI and the Purchasers shall have received from KPMG Peat
Marwick, certified public accountants, a letter, dated the Closing Date, in form
and substance reasonably satisfactory to MCFI and the Purchasers, stating in
effect that they have performed certain specified procedures as a result of
which they have determined that the information of an accounting, financial or
statistical nature set forth in the Private Placement Memorandum agrees with the
data sheet or computer tape prepared by the Mortgage Loan Seller or NMCC, unless
otherwise noted in such letter.
(d) MCFI and the Purchasers shall have received from KPMG Peat
Marwick, certified public accountants, a letter dated the Closing Date, in form
and substance reasonably satisfactory to MCFI and the Purchasers, to the effect
that they have performed certain specified procedures, all of which have been
agreed to by MCFI and the Purchasers, as a result of which they confirmed the
information of an accounting, financial or statistical nature included in the
Private Placement Memorandum under the heading "Special Yield Considerations".
(e) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting the
business or properties of MCFI which such Purchaser concludes, in the judgment
of such Purchaser after consultation with MCFI, materially impairs the
investment quality of the Privately Offered Certificates so as to make it
impractical or inadvisable to proceed with the private placement or the delivery
of the Privately Offered Certificates as contemplated by the Private Placement
Memorandum and this Agreement.
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(f) The Privately Offered Certificates that have been assigned one or
more ratings shall have been assigned ratings not less than those set forth on
Schedule I, and such ratings shall not have been rescinded.
6. Indemnification and Contribution.
(a) MCFI agrees to indemnify and hold harmless each Purchaser and each
person who controls such Purchaser within the meaning of either the Securities
Act or the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
against any and all losses, claims, damages or liabilities, joint or several, to
which it or any of them may become subject under the Securities Act, the
Exchange Act, or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Private
Placement Memorandum, or in any revision or amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission
(when read together with the other information referenced therein as being
available for review by prospective investors) to state therein a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by it or
him in connection with investigating or defending any such loss, claim, damage,
liability or action; provided that MCFI will 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 (i) any such untrue statement or alleged untrue statement or omission
or alleged omission made in the Private Placement Memorandum or any revision or
amendment thereof or supplement thereto in reliance upon and in conformity with
written information furnished to MCFI by or on behalf of such Purchaser (in
whatever capacity) specifically for use in connection with the preparation
thereof or (ii) any such untrue statement or alleged untrue statement or
omission or alleged omission that is covered by the indemnification provided by
NMCC pursuant to the NMCC Purchase Agreement. This indemnity agreement will be
in addition to any liability which MCFI may otherwise have.
(b) Each Purchaser, severally and not jointly, agrees to indemnify and
hold harmless MCFI and each of its officers and directors, and each person who
controls MCFI within the meaning of either the Securities Act or the Exchange
Act, to the same extent as the foregoing indemnities from MCFI to the
Purchasers, but only with reference to written information furnished to MCFI by
or on behalf of such Purchaser (in whatever capacity) specifically for use in
connection with the preparation of the Private Placement Memorandum or any
revision or amendment thereof or supplement thereto. This indemnity agreement
will be in addition to any liability which either Purchaser may otherwise have.
MCFI acknowledges that with respect to Citibank and NationsBanc, the statements
set forth in the first, second and third sentences of the final paragraph of the
cover page of the Private Placement Memorandum and in the second and third
sentences of the first paragraph and the first sentence of the second paragraph
under the heading "Private Placement" in the Private Placement Memorandum,
constitute the only information furnished in writing by or on behalf of Citibank
or NationsBanc, as the case may be, for inclusion in the Private Placement
Memorandum or any revision or amendment thereof or supplement thereto, and each
Purchaser confirms that such statements attributable thereto are correct.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any indemnified party
otherwise than under this Section 6; provided, however, that any increase in
such liability as a result of such failure to notify
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shall not be an expense of the indemnifying party. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided that, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by the indemnified party or parties,
representing the indemnified party or parties who are parties to such action),
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 6 is due
in accordance with its terms but is for any reason held by a court to be
unavailable on grounds of policy or otherwise, MCFI and the related Purchaser
shall each contribute to the aggregate losses, claims, damages and liabilities
(including legal and other expenses reasonably incurred in connection with
investigating or defending same) to which MCFI and such Purchaser may be subject
in such proportion so that such Purchaser is responsible for 0.5% thereof and
MCFI is responsible for the balance; provided that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 6,
each person who controls a Purchaser within the meaning of either the Securities
Act or the Exchange Act shall have the same rights to contribution as such
Purchaser, and each person who controls MCFI within the meaning of either the
Securities Act or the Exchange Act and each officer and director of MCFI shall
have the same rights to contribution as MCFI. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
7. Termination. This Agreement shall be subject to termination by
notice given to MCFI, if the sale of the Privately Offered Certificates provided
for herein is not consummated because of any failure or refusal on the part of
MCFI to comply in all material respects with the terms or to fulfill in all
material respects any of the conditions of this Agreement, or if for any reason
MCFI shall be unable to perform in all material respects its obligations under
this Agreement. This Agreement shall also be subject to termination in the
absolute discretion of either of the Purchasers, by notice given to MCFI prior
to delivery of and payment for the Privately Offered Certificates, if prior to
such time (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited,
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(ii) a general moratorium on commercial banking activities in New York shall
have been declared by either federal or New York State authorities, or (iii)
there shall have 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 the reasonable judgment of either of the
Purchasers after consultation with MCFI, impracticable to market the Privately
Offered Certificates.
8. Default by a Purchaser. If either Purchaser shall fail to purchase
and pay for any of the Privately Offered Certificates agreed to be purchased by
such Purchaser hereunder and such failure to purchase shall constitute a default
in the performance of its obligations under this Agreement, the remaining
Purchaser shall be obligated to take up and pay for the Privately Offered
Certificates that the defaulting Purchaser agreed but failed to purchase;
provided, however, that in the event that the initial principal amount or
notional amount, as the case may be, of Privately Offered Certificates that the
defaulting Purchaser agreed but failed to purchase shall exceed 10% of (a) the
aggregate Class Principal Balance of the Class F, Class G and Class H
Certificates set forth in Schedule I hereto or (b) the Class Notional Amount of
the Class X Certificates set forth in Schedule I hereto, as the case may be, the
remaining Purchaser shall have the right to purchase all, but shall not be under
any obligation to purchase any, of the Privately Offered Certificates, and if
such nondefaulting Purchaser does not purchase all of the Privately Offered
Certificates, this Agreement will terminate without liability to the
nondefaulting Purchaser or MCFI. In the event of a default by any Purchaser as
set forth in this Section 8, the Closing Date for the Privately Offered
Certificates shall be postponed for such period, not exceeding seven days, as
the nondefaulting Purchaser shall determine in order that the required changes
in the Private Placement Memorandum or in any other documents or arrangements
may be effected. Nothing contained in this Agreement shall (x) relieve any
defaulting Purchaser of its liability, if any, to MCFI and to any nondefaulting
Purchaser for damages occasioned by its default hereunder or (y) relieve any
Purchaser of such Purchaser's obligations under the Agreement Among
Underwriters, dated as of October 30, 1996, between the Purchasers (the
"Agreement Among Underwriters"), including, without limitation, those set forth
in Sections 5(b) and 5(c) thereof.
9. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
MCFI, the Purchasers and their respective officers, directors, employees and
agents set forth in or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation made by or on behalf of either
Purchaser, MCFI or any of the officers, directors or controlling persons
referred to in Section 6 hereof, and will survive delivery of and payment for
the Privately Offered Certificates. The provisions of Section 6 hereof shall
survive the termination or cancellation of this Agreement.
10. Fees and Expenses. All costs and expenses in connection with the
transactions herein contemplated shall be allocated and borne as provided in the
Agreement Among Underwriters.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 6 hereof, and
no other person will have any right or obligation hereunder.
12. Applicable Law. This Agreement will be governed by and construed
in accordance with the substantive laws of the State of New York, applicable to
agreements made and to be performed entirely in said state.
13. Miscellaneous. This Agreement supersedes all prior or
contemporaneous agreements and understandings relating to the subject matter
hereof. Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated except by a writing signed by the party against whom
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enforcement of such change, waiver, discharge or termination is sought. This
Agreement may be signed in any number of counterparts, each of which shall be
deemed an original, which taken together shall constitute one and the same
instrument.
14. Notices. All communications hereunder will be in writing and
effective only upon receipt and, if sent to NationsBank, will be delivered to
NationsBanc Capital Markets, Inc., NationsBank Corporate Center, 000 Xxxxx Xxxxx
Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xx. Xxxxx X.
Xxxxxxx, with a copy to Xxxxxx X. Xxxx, Esq., at NationsBank Corporate Center,
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000; if sent to
Citibank, will be delivered to Citibank, N.A., 000 Xxxx Xxxxxx, 0xx xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xx. Xxxxxxx X. Xxxxxxx, Xx.; if sent to MCFI,
will be delivered to MCFI, at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xx. Xxxxxxx X. Xxxxxxx, Xx., with a copy to Xxxxxxx X. Xxxxx, Esq. at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among MCFI and the Purchasers.
Very truly yours,
MORTGAGE CAPITAL FUNDING, INC.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
----------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
NATIONSBANC CAPITAL MARKETS, INC.
By:
------------------------------
Name:
Title:
CITIBANK, N.A.
By:/s/ Xxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
SCHEDULE I
Title and Description of the Privately Offered Certificates:
------------------------------------------------------------
Multifamily/Commercial Mortgage Pass-Through Certificates, Series 1996-MC2,
Class X, Class F, Class G, Class H, Class R-I and Class R-II Certificates.
Certificate Purchase Agreement, dated as of December 11, 1996
Cut-off Date: December 1, 1996
--------------------------------------------------------------------------------------------------------------------------------
Portion of Class Portion of Class
Principal Balance Principal Balance
Initial Class (or, in the case of (or, in the case of
Principal Balance Class X, Class Notional Class X, Class Notional
(or, in the case of Amount) of, or Percentage Amount) of, or Percentage Initial
Class Class X, Class Interest in, Class to be Interest in, Class to be Pass-Through Purchase
Designation Notional Amount)(1) Purchased by Citibank (1) Purchased by NationsBanc (1) Rate Price(2) Rating(3)
----------- -------------------- ------------------------- ---------------------------- ------------ -------- ---------
Class X $458,055,542 $194,920,497 $263,135,045 2.095% 11.453% Aaa/AAA
Class F $25,193,054 $10,720,627 $14,472,427 5.750% 75.718% Ba2/NR
Class G $16,031,943 $6,822,217 $9,209,726 5.750% 61.951% B2/NR
Class H $13,741,671 $5,847,617 $7,894,054 5.750% 39.345% NR/NR
Class R-I N/A 100% 0% N/A N/A NR/NR
Class R-II N/A 100% 0% N/A N/A NR/NR
----------
(1) Subject to a variance of plus or minus 5.0%.
(2) Expressed as a percentage of the initial Class Principal Balance or Class Notional Amount, as the case may be, of the relevant
class of Certificates to be purchased. In addition, as to each class of Privately Offered Certificates, the Purchasers will pay
to MCFI accrued interest at the initial Pass- Through Rate therefor from the Cut-off Date to but not including the Closing
Date.
(3) By Xxxxx'x Investors Service, Inc. (Moody's) and/or Fitch Investors Service, L.P. ("Fitch"), respectively, as indicated; the
Class H, Class R-I and Class R-II Certificates will not be rated by either Moody's or Fitch.
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Closing Time, Date and Location: 10:00 a.m. New York City time on December 19,
1996 at the offices of Xxxxxxx Xxxxxxxx & Xxxx.
Issuance and delivery of Privately Offered Certificates: The Privately Offered
Certificates will be issued in fully registered, certificated form (in the case
of the Class F, Class G, Class H, Class R-I and Class R-II Certificates) and in
book entry form (in the case of the Class X Certificates) in minimum
denominations of initial principal balance or notional amount, as the case may
be, of $100,000 (or, in the case of the Class X Certificates, such amount as may
be agreed to) and integral multiples of $1 in excess thereof and, in the case of
the Class R-I and Class R-II Certificates, not less than 5% percentage interest
in the relevant class.
