Mortgage Capital Funding, Inc.
$582,809,379 (Approximate)
Multifamily/Commercial
Mortgage Pass-Through Certificates, Series 1997-MC1
Class A-1, Class A-2, Class A-3, Class B, Class C, Class D and Class E
Underwriting Agreement
as of June 11, 1997
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 an
"Underwriter" and, together, the "Underwriters"), pursuant to this Underwriting
Agreement (this "Agreement"), the respective classes of Multifamily/Commercial
Mortgage Pass-Through Certificates, Series 1997-MC1 which are identified on
Schedule I hereto (collectively, the "Registered Certificates"), in each case,
having the initial aggregate stated principal amount (the initial "Class
Principal Balance") set forth on Schedule I. The Registered Certificates,
together with the Class X, Class F, Class G, Class H, Class R-I and Class R-II
Certificates issued therewith (the "Privately Offered Certificates" and,
collectively with the Registered 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 June 1, 1997 (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
$658,541,674 (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"; and such
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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"; and 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 Trust Fund is to be
created and the Certificates are to be issued under a pooling and servicing
agreement, dated as of June 1, 1997, (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, CRIIMI MAE
Services Limited Partnership as master servicer (in such capacity, the "Master
Servicer") and 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. XXXX represents and
warrants to, and covenants with, each of the Underwriters that:
(a) A registration statement (File No. 333-24489) on Form S-3, a
registration statement (File No. 33-63924) on Form S-3 and a registration
statement (File No. 33-25068) on Form S-11 have been filed with the Securities
and Exchange Commission (the "Commission"), and each has become effective under
the Securities Act of 1933, as amended (the "Securities Act"); such registration
statements include a prospectus which, as supplemented, shall be, and may
include a preliminary prospectus supplement which, as completed, is proposed to
be, used in connection with the sale of the Registered Certificates. The
registration statements, as amended to the date of this Agreement, are
collectively hereinafter referred to as the "Registration Statements"; such
prospectus (which shall be in the form in which it has most recently been filed,
as the same is proposed to be added to or changed), as first supplemented by a
prospectus supplement relating to the Registered Certificates, filed, or
transmitted for filing, with the Commission pursuant to Rule 424(b) under the
Securities Act and used in connection with the sale of the Registered
Certificates, is hereinafter referred to as the "Prospectus"; and such
prospectus supplement is hereinafter referred to as the "Prospectus Supplement".
Any preliminary form of Prospectus which has heretofore been filed pursuant to
Rule 424 hereinafter is called the "Preliminary Prospectus". Any reference
herein to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statements or the Prospectus shall be deemed to refer to and
include the filing of any document under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), deemed to be incorporated by reference therein
after the date hereof. MCFI will file with the Commission (i) within fifteen
(15) days of the issuance of the Certificates a Current Report on Form 8-K (for
purposes of filing the Pooling and Servicing Agreement and other material
contracts) and (ii) in the time period specified in Section 5(e) hereof, a
Current Report on Form 8-K (for purposes of filing certain Computational
Materials and ABS Term Sheets as described in Section 5(e) hereof).
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(b) The Registration Statements, as of the respective dates they became
effective, and the Prospectus, as of the date of the Prospectus Supplement, and
any revisions or amendments thereof or supplements thereto filed prior to the
termination of the offering of the Registered Certificates, as of their
respective effective or issue dates, conformed or will conform in all material
respects to the requirements of the Securities Act and the rules and regulations
of the Commission thereunder applicable to the use of such documents as of such
respective dates, and the Registration Statements and the Prospectus, as
revised, amended or supplemented as of the Closing Date (as defined in Section
3), will conform in all material respects to the requirements of the Securities
Act and the rules and regulations of the Commission thereunder applicable to the
use of such documents as of the Closing Date; and no such document, as of such
respective dates and, in the case of the Prospectus and any revisions or
amendments thereof or supplements thereto filed prior to the Closing Date, as of
the Closing Date, included or will include any untrue statement of a material
fact or omitted or will omit to state a material fact required to be stated
therein or necessary 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 (i) to
Citibank as to (A) the information contained in or omitted from the Prospectus
or any revision or amendment thereof or supplement thereto in reliance upon and
in conformity with information furnished in writing by or on behalf of Citibank
or CREI specifically for use in connection with the preparation of the
Prospectus or any revision or amendment thereof or supplement thereto or (B) any
information in any Computational Materials and ABS Term Sheets (each as defined
in Section 9) provided by or on behalf of Citibank specifically for use in the
preparation thereof in connection with the sale of the Registered Certificates
or (ii) to NationsBanc as to (A) the information contained in or omitted from
the Prospectus or any revision or amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing by or on
behalf of NationsBanc or NMCC specifically for use in connection with the
preparation of the Prospectus or any revision or amendment thereof or supplement
thereto or (B) any information in any Computational Materials and ABS Term
Sheets provided by or on behalf of NationsBanc specifically for use in the
preparation thereof in connection with the sale of the Registered Certificates.
There are no contracts or other documents relating to MCFI of a character
required to be described in or to be filed as exhibits to the Registration
Statements, as of the date of the Prospectus Supplement, which were not
described or filed as required.
(c) As of the Closing Date, the Registered 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.
(d) KPMG Peat Marwick is an independent public accountant with respect
to MCFI as required by the Securities Act and the rules and regulations
thereunder.
(e) 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
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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.
(f) This Agreement has been duly authorized, executed and delivered by
XXXX and, assuming the valid authorization, execution and delivery hereof by
each of the Underwriters, 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.
(g) 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 Prospectus.
(h) MCFI is not aware of (i) any request by the Commission for any
further amendment of the Registration Statements or the Prospectus or for any
additional information, (ii) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statements or the institution
or threatening of any proceeding for that purpose or (iii) any notification with
respect to the suspension of the qualification of the Registered Certificates
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose.
(i) MCFI is not, and the issuance and sale of the Registered
Certificates in the manner contemplated by the Prospectus 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").
(j) The transfer of the Mortgage Loans to the Trust Fund and the sale of
the Certificates to the Underwriters, 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.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance on 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 portions of the Class Principal Balances of
the respective classes of Registered Certificates set forth on Schedule I
hereto, at the purchase price for each such class as set forth on Schedule I.
3. Delivery and Payment. Delivery of and payment for the Registered
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 Underwriters and MCFI (such date and time of delivery of and
payment for the Registered Certificates being hereinafter referred to as
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the "Closing Date"). Delivery of each Underwriter's allotment of the Registered
Certificates shall be made to the related Underwriter against payment by such
Underwriter 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
Underwriter and XXXX may agree). Unless delivery is made through the facilities
of The Depository Trust Company, the Registered Certificates of each class
thereof shall be registered in such names and in such authorized denominations
as the related Underwriter may have requested not less than three (3) full
business days prior to the Closing Date.
XXXX agrees to have the Registered 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 Underwriters. It is understood that the Underwriters
propose to offer the Registered Certificates for sale as set forth in the
Prospectus, and each Underwriter covenants and agrees that all offers and sales
by such Underwriter shall be made in compliance with the terms of the No-Action
Letters (as defined in Section 9 below). It is further understood that XXXX, in
reliance upon a no-filing letter from the Attorney General of the State of New
York granted pursuant to Policy Statement 105, has not filed and will not file
an offering statement pursuant to Section 352-c of the General Business Law of
the State of New York with respect to the Registered Certificates. As required
by Policy Statement 105, each Underwriter therefore covenants and agrees with
MCFI that sales of the Registered Certificates made by such Underwriter in and
from the State of New York will be made only to institutional investors within
the meaning of Policy Statement 105.
5. Agreements. XXXX agrees with each of the Underwriters that:
(a) MCFI will not file any amendment to the Registration Statements
prior to the Closing Date, and will not file any supplement to the Prospectus
relating to or affecting the Registered Certificates at any time, except as
contemplated by Section 5(e) or unless MCFI has furnished a copy to each
Underwriter for its review prior to filing, and will not file any such proposed
amendment or supplement to which either Underwriter reasonably objects. Subject
to the foregoing sentence, MCFI will cause the Prospectus to be filed, or
transmitted for filing, with the Commission pursuant to Rule 424(b) under the
Securities Act and will promptly advise each Underwriter when the Prospectus has
been so filed, or transmitted for filing, and, prior to the termination of the
offering of the Registered Certificates, will also promptly advise each
Underwriter (i) when any amendment to the Registration Statements relating to
the Registered Certificates has become effective or any revision of or
supplement to the Prospectus has been so filed or transmitted for filing, (ii)
of any request by the Commission for any amendment of the Registration
Statements or the Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statements or the institution or threatening of any proceeding for
that purpose and (iv) of the receipt by MCFI of any notification with respect to
the suspension of the qualification of the Registered Certificates for sale in
any jurisdiction or the institution or threatening of any proceeding for such
purpose. MCFI will use its best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the withdrawal thereof.
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(b) If, at any time when a prospectus relating to the Registered
Certificates is required to be delivered under the Securities Act, (i) any event
occurs as a result of which the Prospectus, as then amended or supplemented,
would include any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or (ii) it shall be
necessary to revise, amend or supplement the Prospectus to comply with the
Securities Act or the rules and regulations of the Commission thereunder, MCFI
promptly will prepare and file with the Commission, subject to paragraph (a) of
this Section 5, a revision, amendment or supplement which will correct such
statement or omission or effect such compliance.
(c) MCFI will furnish to each Underwriter and counsel for such
Underwriter, without charge, signed (if available) copies of the Registration
Statements (including exhibits thereto) and, so long as delivery of a prospectus
relating to the Registered Certificates is required under the Securities Act, as
many copies of the Prospectus and any revisions or amendments thereof or
supplements thereto as may be reasonably requested.
(d) MCFI will use its best efforts to arrange for the qualification of
the Registered Certificates for sale under the laws of such jurisdictions as the
Underwriters may designate, to maintain such qualifications in effect so long as
required for the distribution of the Registered Certificates and to arrange for
the determination of the legality of the Registered Certificates for purchase by
institutional investors; provided, however, that MCFI shall not be required to
qualify to do business in any jurisdiction where it is not now so qualified or
to take any action which would subject it to general or unlimited service of
process in any jurisdiction where it is not now so subject.
(e) MCFI will cause or, if appropriate, has caused any Computational
Materials and ABS Term Sheets (each as defined in Section 9) with respect to the
Registered Certificates, which are or have been delivered by the Underwriters to
MCFI pursuant to or as contemplated by Section 9, to be filed with the
Commission on a Current Report on Form 8-K (the "Current Report") pursuant to
Rule 13a-11 under the Exchange Act not later than, in each such case, the
business day immediately following the later of (i) the day on which such
Computational Materials or ABS Term Sheets are delivered to counsel for MCFI by
the Underwriters (it being understood that any such material that is delivered
after 10:30 a.m., New York City time, on a business day shall be deemed to have
been delivered on the next business day) and (ii) the date hereof; and, if such
filing is subsequent to the date hereof, MCFI will promptly advise the
Underwriters when each such Current Report has been so filed. Each such Current
Report shall be incorporated by reference in the Prospectus and the Registration
Statements. Notwithstanding the two preceding sentences, MCFI shall have no
obligation to file materials provided by the Underwriters pursuant to or as
contemplated by Section 9 which, in the reasonable determination of MCFI after
making reasonable efforts to consult with the Underwriters, are not required to
be filed pursuant to the No-Action Letters (as defined in Section 9 below), or
which contain erroneous information or contain any untrue statement of a
material fact, or which, when read in conjunction with the Prospectus, omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; it being understood, however, that MCFI shall
have no obligation to review or pass upon the accuracy or adequacy of,
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or to correct, any Computational Materials or ABS Term Sheets provided by the
Underwriters to MCFI pursuant to or as contemplated by Section 9 hereof.
(f) MCFI will make generally available to Registered Certificateholders
as soon as practicable, but in any event not later than eighteen months after
the filing of the Prospectus pursuant to Rule 424(b) under the Securities Act,
an earnings statement (which need not be audited) with respect to the Mortgage
Pool complying with Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder (including at the option of MCFI, Rule
158 of the Securities Act) which may be the annual report filed with the
Commission and delivered to Registered Certificateholders pursuant to the
Pooling and Servicing Agreement.
6. Conditions to the Obligations of each Underwriter and MCFI. The
obligation of each Underwriter to purchase, and the obligation of MCFI to sell
to such Underwriter, its allotment of the Registered Certificates shall be
subject to the accuracy of the representations and warranties on the part of
MCFI and such Underwriter contained herein as of the date hereof and as of the
Closing Date, to the accuracy of the statements of MCFI and such Underwriter
made in any officer's certificate pursuant to the provisions hereof, to the
performance by XXXX and such Underwriter of their respective obligations
hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statements shall have been issued and no proceedings for that purpose shall have
been instituted and be pending or shall have been threatened.
(b) MCFI shall have furnished to such Underwriter:
(i) An executed copy of the Pooling and Servicing Agreement;
(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 Prospectus;
(B) The Registered 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 and, upon the due
authorization, execution and delivery by the other parties thereto,
will constitute a valid, legal and binding
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agreement of MCFI, enforceable against MCFI in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization or other similar laws
relating to or affecting the enforcement of creditors' rights
generally and by general principles of equity, whether enforcement
is sought in a proceeding in equity or at law;
(D) 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;
(E) The Registration Statements have become effective under
the Securities Act, and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of any of the Registration
Statements has been issued and no proceedings for that purpose have
been instituted and are pending or have been threatened under the
Securities Act;
(F) Each of the Registration Statements, at the time such
Registration Statement became effective, and the Prospectus, as of
the date of the Prospectus Supplement, and each revision or
amendment thereof or supplement thereto relating to the Registered
Certificates, as of its effective or issue date (except in each case
for accounting, financial and statistical statements included
therein or omitted therefrom, as to which such counsel has not been
requested to comment), appeared on their respective faces to be
appropriately responsive in all material respects to the
requirements of the Securities Act and the rules and regulations of
the Commission thereunder applicable to such documents as of such
respective dates; and the Prospectus, as revised, amended or
supplemented as of the date hereof (except for accounting, financial
and statistical statements included therein or omitted therefrom, as
to which such counsel has not been requested to comment), conforms
in all material respects to the requirements of the Securities Act
and the rules and regulations of the Commission thereunder
applicable to use of the Prospectus (as so revised, amended or
supplemented) as of the date hereof;
(G) The descriptions in the Prospectus, as of the date hereof,
of the Registered 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;
(H) Such counsel does not know of any contracts or other
documents relating to MCFI of a character required to be described
in or to be filed as exhibits to the Registration Statements, which
were not described or filed as required; and
(I) This Agreement has been duly authorized, executed and
delivered by XXXX.
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In giving his opinion, counsel to XXXX, Xxxxxxx X. Xxxxx, Esq.,
shall additionally state that, based on his review (or review by
attorneys under his supervision) of, the statements contained in the
Registration Statements or the Prospectus mentioned in Paragraph (F)
above and conferences and telephone conversations with representatives
of CREI, NMCC, PNC Bank, the Underwriters, MCFI, the Trustee, the REMIC
Administrator, the Fiscal Agent, the Master Servicer, the Special
Servicer and their respective counsel, and without having reviewed any
of the mortgage notes, mortgages or other documents relating to the
Mortgage Loans or made any inquiry of any originator of any Mortgage
Loan not referenced above, nothing has come to such counsel's attention
that would lead him to believe that the Prospectus (except for: any
accounting, financial or statistical information included therein;
information relating to the Master Servicer, the Special Servicer, the
REMIC Administrator, the Trustee and the Fiscal Agent contained in or
omitted from the Prospectus; and information with respect to the NMCC
Mortgage Loans contained in or omitted from the Prospectus, all as to
which such counsel has not been requested to comment), at the date of
the Prospectus Supplement or at the Closing Date, included or includes
an untrue statement of a material fact or omitted or omits 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.
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 rely
on the opinion of Xxxxxx & Xxxxxx referred to in Section 6(b)(iii) below
that relates to the sections of the Prospectus Supplement under the
headings "Certain Federal Income Tax Consequences" and "ERISA
Considerations" and of the accompanying prospectus under the headings
"Material Federal Income Tax Consequences" and "ERISA Considerations".
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 and XXXX. Such opinion may be qualified as an opinion
only on the General Corporation Law of the State of Delaware, the laws
of the State of New York and the federal law of the United States.
(iii) One or more opinions, dated the Closing Date, of Xxxxxx &
Xxxxxx, special counsel to MCFI, substantially to the effect that:
(A) The statements in the Prospectus under the headings
"ERISA Considerations", "Material Federal Income Tax
Consequences" 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, 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
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as 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.
In giving its opinions, special counsel to XXXX, Xxxxxx & Austin,
shall additionally state that, based on conferences and telephone
conversations with representatives of CREI, NMCC, PNC Bank, the
Underwriters, MCFI, the Trustee, the Fiscal Agent, the REMIC
Administrator, the Master Servicer, the Special Servicer and their
respective counsel, and (with limited exception) without having reviewed
any of the mortgage notes, mortgages or other documents relating to the
Mortgage Loans or made any inquiry of any originator of any Mortgage Loan
not referenced above, nothing has come to such special counsel's attention
that would lead it to believe that the Prospectus (other than: any
accounting, financial or statistical information included therein;
information relating to the Master Servicer, the Special Servicer, the
REMIC Administrator, the Trustee and the Fiscal Agent contained in or
omitted from the Prospectus; and information with respect to the NMCC
Mortgage Loans contained in or omitted from the Prospectus, all as to
which such counsel has not been requested to comment), at the date of the
Prospectus Supplement or at the Closing Date, included or includes an
untrue statement of a material fact or omitted or omits 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.
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 the State of New York and the federal law
of the United States.
(iv) Such Underwriter shall have received copies of all legal
opinion letters delivered by Xxxxxx & Xxxxxx to the Rating Agencies in
connection with the issuance of the Registered Certificates, accompanied
in each case by a letter signed by Xxxxxx & Xxxxxx stating that such
Underwriter may rely on such opinion letter as if it were addressed to
such Underwriter as of the date thereof;
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(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
(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.
(c) The Underwriters 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 6(b)(ii)(C), 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.
(d) MCFI and the Underwriters shall have received from KPMG Peat
Marwick, certified public accountants, various comfort letters, dated, as
applicable, the date of the preliminary Prospectus Supplement, the date of the
Prospectus Supplement or other date acceptable to MCFI and
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the Underwriters, in form and substance reasonably satisfactory to MCFI and the
Underwriters, stating in effect that:
(i) 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 Prospectus Supplement
under the caption "Description of the Mortgage Pool" and on Annex A
thereto agrees with the data sheet or computer tape prepared by the
Mortgage Loan Seller and NMCC, unless otherwise noted in such letter(s);
and
(ii) They have compared the data contained in the data sheet or
computer tape referred to in the immediately preceding clause (i) to
information contained in an agreed upon sampling of the Mortgage Loan
files and in such other sources as shall be specified by them, and found
such data and information to be in agreement, unless otherwise noted in
such letter.
(e) MCFI and the Underwriters shall have received from KPMG Peat
Marwick, certified public accountants, a letter dated June 11, 1997, in form and
substance reasonably satisfactory to MCFI and the Underwriters, to the effect
that they have performed certain specified procedures, all of which have been
agreed to by MCFI and the Underwriters, as a result of which they confirmed the
information of an accounting, financial or statistical nature included in the
Prospectus Supplement under the caption "Yield and Maturity Considerations".
(f) Such Underwriter shall have delivered to MCFI and to the other
Underwriter an officer's certificate (i) stating that attached thereto are all
of the information, tables, charts and other items that constitute
"Computational Materials" or "ABS Term Sheets" prepared by such Underwriter
which are required to be filed with the Commission pursuant to the terms of the
No-Action Letters and stating that such Underwriter has otherwise complied with
the terms of the No-Action Letters and (ii) representing that (A) other than the
items described in clause (i), no term sheets, collateral information or other
data in written form that would be required to be filed with the Commission
pursuant to the No-Action Letters were furnished by such Underwriter to actual
or potential investors for the Registered Certificates prior to the Closing Date
and (B) to the best knowledge of such officer, the items described in clause (i)
do not include any untrue or misleading statement of a material fact nor, when
taken together with the Prospectus, and in the light of the circumstances in
which the statements in such items were made, omit to state any material fact
required to be stated in such items or necessary to make the statements
contained in such items not misleading.
(g) KPMG Peat Marwick shall have furnished to MCFI and such Underwriter
a letter or letters, each in form and substance satisfactory to MCFI, relating
to the Computational Materials and ABS Terms Sheets of such Underwriter filed in
accordance with Section 5(e) and dated the date of the related Current Report on
Form 8-K and stating in effect that:
(i) using the assumptions and methodology used by such Underwriter,
all of which shall be described by reference in the letter, they have
recalculated the numerical data and dates set forth in such Computational
Materials and ABS Term Sheets of such
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Underwriter (or portions thereof) attached to such letter, compared the
results of their calculations to the corresponding items in such
Computational Materials and ABS Term Sheets (or portions thereof) and
found such items to be in agreement with the respective results of such
calculation;
(ii) if such Computational Materials and ABS Term Sheets include
data reflecting the distribution of interest at other than a fixed rate,
or reflecting other characteristics which give rise to the use of tables
in such Computational Materials and ABS Term Sheets, such letter shall
also set forth such other statements as are customarily set forth by KPMG
Peat Marwick in such letter with respect to such data; and
(iii) 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 such Computational Materials
and ABS Term Sheets agrees with the data sheet or computer tape prepared
by the Mortgage Loan Seller or NMCC, unless otherwise indicated in such
letter.
(h) MCFI and the Underwriters shall have received an opinion of counsel,
dated the Closing Date, from Xxxxxxxxxx, Xxxxxxxxxx & Xxxx, stating that, based
on conferences and telephone conversations with representatives of CREI, NMCC,
PNC Bank, the Underwriters, MCFI, the Trustee, the REMIC Administrator, the
Fiscal Agent, the Master Servicer, the Special Servicer and their respective
counsel, and (with limited exception) without having reviewed any of the
mortgage notes, mortgages or other documents relating to the Mortgage Loans or
made any inquiry of any originator of any Mortgage Loan not referenced above,
nothing has come to such counsel's attention that would lead him to believe that
the Prospectus (except for: any accounting, financial or statistical information
included therein; information relating to the Master Servicer, the Special
Servicer, the REMIC Administrator, the Fiscal Agent and the Trustee contained in
or omitted from the Prospectus; and information with respect to the CREI
Mortgage Loans contained in or omitted from the Prospectus, all as to which such
counsel has not been requested to comment), at the date of the Prospectus
Supplement or at the Closing Date, included or includes an untrue statement of a
material fact or omitted or omits 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.
(i) 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 Underwriter concludes, in the judgment
of such Underwriter after consultation with MCFI, materially impairs the
investment quality of the Registered Certificates so as to make it impractical
or inadvisable to proceed with the public offering or the delivery of the
Registered Certificates as contemplated by the Prospectus.
(j) The Registered Certificates shall have been assigned ratings no less
than those set forth on Schedule I and such ratings shall not have been
rescinded.
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7. Indemnification and Contribution. (a) MCFI agrees to indemnify and
hold harmless each Underwriter and each person who controls such Underwriter
within the meaning of either the Securities Act or 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 Registration Statements or in the
Prospectus, or in any revision or amendment thereof or supplement thereto, or in
any other filing incorporated by reference therein, or arise out of or are based
upon the omission or alleged omission (in the case of any Computational
Materials or ABS Term Sheets in respect of which MCFI agrees to indemnify any
Underwriter, as set forth below, when such are read in conjunction with the
Prospectus) to state therein a material fact required to be stated therein or
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 Prospectus 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 Underwriter specifically
for use in connection with the preparation thereof, (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 or covered by the indemnification provided by CREI pursuant to the
Mortgage Loan Purchase Agreement, (iii) any such untrue statement or alleged
untrue statement made in Computational Materials or ABS Term Sheets of either
Underwriter incorporated therein as a result of any filing pursuant to Section
5(e) (except to the extent any such untrue statement or alleged untrue statement
therein results (or is alleged to have resulted) directly from an error (a
"Collateral Error") in the information concerning the Mortgage Loans furnished
by MCFI to any Underwriter in writing or by electronic transmission that was
used in the preparation of such Computational Materials or ABS Term Sheets),
(iv) any omission or alleged omission to state in Computational Materials or ABS
Term Sheets of either Underwriter incorporated by reference into the
Registration Statements or Prospectus as a result of any filing pursuant to
Section 5(e), a material fact that, when read in conjunction with the
Prospectus, is required to be stated therein or necessary to make the statements
therein not misleading, or (v) any breach, inaccuracy or untruth of any of the
statements, representations, warranties and/or covenants made by such
Underwriter and set forth in Section 6(f) and/or Section 9(b); and provided
further that such indemnity with respect to any Collateral Error shall not inure
to the benefit of any Underwriter (or any person controlling any Underwriter)
from whom the person asserting any loss, claim, damage or liability received any
Computational Materials or ABS Term Sheets that were prepared on the basis of
such Collateral Error, if, prior to the time of confirmation of the sale of
Registered Certificates to such person, MCFI notified such Underwriter in
writing of the Collateral Error or provided in written or electronic form
information superseding or correcting such Collateral Error (in any such case, a
"Corrected Collateral Error"), and such Underwriter failed to notify such person
thereof or to deliver such person corrected Computational
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Materials and/or ABS Term Sheets, as applicable. This indemnity agreement will
be in addition to any liability which MCFI may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and
hold harmless MCFI and each of its directors, each of its officers who signed
the Registration Statements or any amendments thereof, 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
Underwriters, but only with reference to (i) written information furnished to
MCFI by or on behalf of such Underwriter, specifically for use in connection
with the preparation of the Prospectus or any revision or amendment thereof or
supplement thereto, (ii) any untrue statement or alleged untrue statement or
omission or alleged omission made in Computational Materials or ABS Term Sheets
of such Underwriter incorporated by reference into the Registration Statements
or Prospectus as a result of any filing pursuant to Section 5(e) (except that no
such indemnity shall be available for any losses, claims, damages or
liabilities, or actions in respect thereof, resulting from any Collateral Error,
other than a Corrected Collateral Error) and (iii) any breach, inaccuracy or
untruth of any of the statements, representations, warranties and/or covenants
set forth in Section 6(f) and/or Section 9(b). This indemnity agreement will be
in addition to any liability which the Underwriters may otherwise have. MCFI
acknowledges that with respect to Citibank and NationsBanc, the statements set
forth in the first, third and fourth sentences of the final paragraph of the
cover page of the Prospectus Supplement and in the first sentence of the second
paragraph and the first two sentences of the third paragraph under the heading
"Method of Distribution" in the Prospectus Supplement, constitute the only
information furnished in writing by or on behalf of Citibank or NationsBanc, as
the case may be, for inclusion in the Prospectus or any revision or amendment
thereof or supplement thereto, and each Underwriter confirms that such
statements attributable thereto are correct.
(c) Promptly after receipt by an indemnified party under this Section 7
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 7, 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 7; provided, however, that any increase in
such liability as a result of such failure to notify 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 reasonably 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
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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 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 reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time period 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 7 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 Underwriter
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 Underwriter may be
subject in such proportion so that such Underwriter is responsible for 0.5%
thereof and XXXX 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 7,
each person who controls an Underwriter within the meaning of either the
Securities Act or the Exchange Act shall have the same rights to contribution as
such Underwriter, and each person who controls MCFI within the meaning of either
the Securities Act or the Exchange Act, each officer of MCFI who shall have
signed the Registration Statements or any amendments thereof and each 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).
(e) The Underwriters further agree as follows:
(i) Citibank will indemnify and hold harmless NationsBanc against
any losses, claims, damages or liabilities to which NationsBanc may become
subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities arise out of or are based upon any untrue
statements or misstatements in Computational Materials or ABS Term Sheets
prepared by Citibank and will reimburse NationsBanc for any legal or other
expenses reasonably incurred thereby in connection with investigating or
defending any such action or claim as such expenses are incurred.
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(ii) NationsBanc will indemnify and hold harmless Citibank against
any losses, claims, damages or liabilities to which Citibank may become
subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities arise out of or are based upon any untrue
statements or misstatements in Computational Materials or ABS Term Sheets
prepared by NationsBanc and will reimburse Citibank for any legal or other
expenses reasonably incurred thereby in connection with investigating or
defending any such action or claim as such expenses are incurred.
(iii) Promptly after receipt by an indemnified party under clause
(i) or clause (ii) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such clause, notify the indemnifying
party in writing of the commencement thereof; but the omission to so
notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under such
clause; provided, however, that any increase in such liability as a result
of such failure to notify shall not be an expense of the indemnifying
party. 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, to assume the defense thereof, with
counsel satisfactory to such indemnified 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 clause (i) or clause (ii) above 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; 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. No indemnifying party shall,
without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (a) includes an
unconditional release of the indemnified party from all liability arising
out of such action or claim and (b) does not include a statement as to or
an admission of fault, culpability or a failure to act, by or on behalf of
the indemnified party.
(iv) If the indemnification provided in clause (i) or clause (ii)
above, as the case may be, is unavailable to or insufficient to hold
harmless an indemnified party under such clause in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then the 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
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in respect thereof) in such proportion as is appropriate to reflect both
the relative benefits received by Citibank on the one hand and NationsBanc
on the other, in each case as Underwriter, from the offering of the
Registered Certificates, and the relative fault of Citibank on the one
hand and NationsBanc on the other in connection with the statements which
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations.
The relative benefits received by Citibank on the one hand and NationsBanc
on the other shall be deemed to be in the same proportion to the amount of
Registered Certificates underwritten by each such party. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact relates to
information supplied by Citibank on the one hand or NationsBanc on the
other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
parties hereto agree that it would not be just and equitable if
contribution pursuant to this clause (iv) were determined by pro rata
allocation or by any other method of allocation which does not take into
account the equitable considerations referred to above in this clause
(iv). 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 clause (iv) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this clause (iv), neither Citibank nor
NationsBanc shall be required to contribute any amount in excess of the
amount by which the total price at which the Registered Certificates
underwritten by it and distributed to the public, were sold, exceeds the
amount of any damages which such party 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(v) The obligations of Citibank under clauses (i), (iii) and (iv)
above shall be in addition to any liability which Citibank may otherwise
have and shall extend, upon the same terms and conditions, to each person,
if any, who controls NationsBanc within the meaning of the Securities Act
or the Exchange Act and to each director and officer of NationsBanc, and
the obligations of NationsBanc under clauses (ii), (iii) and (iv) above
shall be in addition to any liability which NationsBanc may otherwise have
and shall extend, upon the same terms and conditions, to each person, if
any, who controls Citibank within the meaning of the Securities Act or the
Exchange Act and to each officer and director of Citibank.
8. Fees and Expenses. All costs and expenses in connection with the
transactions herein contemplated shall be allocated and borne as provided in
that certain Agreement Among Underwriters, dated May 21, 1997 (the "Agreement
Among Underwriters"), between the Underwriters.
9. Computational Materials and ABS Term Sheets. (a) Not later than 10:30
a.m., New York City time, on the date hereof, the Underwriters shall deliver to
MCFI five (5) complete
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copies of all materials provided by the Underwriters to prospective investors in
the Registered Certificates which constitute either (i) "Computational
Materials" within the meaning of the no-action letter dated May 20, 1994 issued
by the Division of Corporation Finance of the Commission to Xxxxxx, Xxxxxxx
Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated, and Xxxxxx
Structured Asset Corporation and the no-action letter dated May 27, 1994 issued
by the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "Xxxxxx Letters") or (ii) "ABS Term
Sheets" within the meaning of the no-action letter dated February 17, 1995
issued by the Division of Corporation Finance of the Commission to the Public
Securities Association (the "PSA Letter", and together with the Xxxxxx Letters,
the "No-Action Letters"), if the filing of such materials with the Commission is
a condition of the relief granted in such letters and, in the case of any such
materials that constitute "Collateral Term Sheets" within the meaning of the PSA
Letter, such Collateral Term Sheets have not previously been delivered to MCFI
as contemplated by Section 9(b)(i) below. Each delivery of Computational
Materials and/or ABS Term Sheets to MCFI pursuant to this paragraph (a) shall be
effected by delivering four (4) copies of such materials to counsel for MCFI on
behalf of MCFI at the address specified in Section 16 hereof and one copy of
such materials to MCFI.
(b) Each Underwriter represents and warrants to and agrees with XXXX, as
of the date hereof and as of the Closing Date, as applicable, that:
(i) if such Underwriter has provided any Collateral Term Sheets to
potential investors in the Registered Certificates prior to the date
hereof and if the filing of such materials with the Commission is a
condition of the relief granted in the PSA Letter, then in each such case
such Underwriter delivered four (4) copies of such materials to counsel
for MCFI on behalf of MCFI at the address specified in Section 16 hereof
and one copy of such materials to MCFI no later than 10:30 a.m., New York
City time, on the first business day following the date on which such
materials were initially provided to a potential investor;
(ii) the Computational Materials (either in original, aggregated or
consolidated form) and ABS Term Sheets furnished to MCFI pursuant to
Section 9(a) or as contemplated in Section 9(b)(i) constitute all of the
materials relating to the Registered Certificates furnished by such
Underwriter (whether in written, electronic or other format) to
prospective investors in the Registered Certificates prior to the date
hereof, except for any Preliminary Prospectus and any Computational
Materials and ABS Term sheets which are not required to be filed with the
Commission in accordance with the No-Action Letters, and all Computational
Materials and ABS Term Sheets provided by such Underwriter to potential
investors in the Registered Certificates comply with the requirements of
the No-Action Letters;
(iii) on the respective dates any such Computational Materials
and/or ABS Term Sheets with respect to the Registered Certificates
referred to in Section 9(b)(ii) were last furnished by such Underwriter to
each prospective investor, on the date of delivery thereof to MCFI
pursuant to or as contemplated by this Section 9 and on the Closing Date,
such
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Computational Materials and/or ABS Term Sheets did not and will not
include any untrue statement of a material fact, or, when read in
conjunction with the Prospectus, omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading;
(iv) at the time any Computational Materials or ABS Term Sheets with
respect to the Registered Certificates were furnished to a prospective
investor and on the date hereof, the Underwriters possessed, and on the
date of delivery of such materials to MCFI pursuant to or as contemplated
by this Section 9 and on the Closing Date, the Underwriters will possess,
the capability, knowledge, expertise, resources and systems of internal
control necessary to ensure that such Computational Materials and/or ABS
Term Sheets conform to the representations and warranties of the
Underwriters contained in subparagraphs (ii) and (iii) above of this
paragraph (b);
(v) all Computational Materials and ABS Term Sheets with respect to
the Registered Certificates furnished by such Underwriter to potential
investors contained and will contain a legend, prominently displayed on
the first page thereof, to the effect that MCFI has not prepared, reviewed
or participated in the preparation of such Computational Materials or ABS
Term Sheets, is not responsible for the accuracy thereof and has not
authorized the dissemination thereof;
(vi) all Collateral Term Sheets with respect to the Registered
Certificates furnished by such Underwriter to potential investors
contained and will contain a legend, prominently displayed on the first
page thereof, indicating that the information contained therein will be
superseded by the description of the Mortgage Loans contained in the
Prospectus and, except in the case of the initial Collateral Term Sheet,
that such information supersedes the information in all prior Collateral
Term Sheets; and
(vii) on and after the date hereof, such Underwriter shall not
deliver or authorize the delivery of any Computational Materials, ABS Term
Sheets or other materials relating to the Registered Certificates (whether
in written, electronic or other format) to any potential investor unless
such potential investor has received a Prospectus prior to or at the same
time as the delivery of such Computational Materials, ABS Term Sheets or
other materials.
Notwithstanding the foregoing, neither Underwriter makes any
representation or warranty as to whether any Computational Materials or ABS Term
Sheets with respect to the Registered Certificates included or will include any
untrue statement resulting directly from any Collateral Error (except any
Corrected Collateral Error, with respect to materials prepared after the receipt
by the Underwriters from MCFI of notice of such Corrected Collateral Error or
materials superseding or correcting such Corrected Collateral Error).
(c) The Underwriters acknowledge and agree that XXXX has not
authorized and will not authorize the distribution of any Computational
Materials or ABS Term Sheets with respect to the
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Registered Certificates to any prospective investor, and agree that any such
Computational Materials and/or ABS Term Sheets furnished to prospective
investors shall include a disclaimer in the form set forth in paragraph (b)(v)
above. The Underwriters agree that they will not represent to potential
investors that any Computational Materials and/or ABS Term Sheets with respect
to the Registered Certificates were prepared or disseminated on behalf of MCFI.
(d) If, at any time when a prospectus relating to the Registered
Certificates is required to be delivered under the Securities Act prior to
90 days from the date hereof, it shall be necessary in the opinion of the
Underwriters or their counsel to amend or supplement the Prospectus as a
result of an untrue statement of a material fact contained in any
Computational Materials or ABS Term Sheets provided by the Underwriters
pursuant to or as contemplated by this Section 9 or the omission to state a
material fact required, when considered in conjunction with the Prospectus,
to be stated therein or necessary to make the statements therein, when read
in conjunction with the Prospectus, not misleading, or if it shall be
necessary to amend or supplement any Current Report to comply with the
Securities Act or the rules thereunder, the Underwriters, at their expense,
allocated between them in accordance with the NCMI Expense Allocation
Percentage and the Citibank Expense Allocation Percentage (as such terms
are defined in the Agreement Among Underwriters), promptly will prepare and
furnish to MCFI for filing with the Commission an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance and shall distribute such amendment or supplement to
each prospective investor in the Registered Certificates that received such
information being amended or supplemented. Each Underwriter represents and
warrants to MCFI, as of the date of delivery of such amendment or
supplement to MCFI, that such amendment or supplement will not include any
untrue statement of a material fact or, when read in conjunction with the
Prospectus, omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. MCFI shall have no
obligation to file such amendment or supplement if MCFI determines that (i)
such amendment or supplement contains any untrue statement of a material
fact or, when read in conjunction with the Prospectus, omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading (it being understood, however, that MCFI
shall have no obligation to review or pass upon the accuracy or adequacy
of, or to correct, any such amendment or supplement provided by the
Underwriters to MCFI pursuant to this paragraph (d)) or (ii) such filing is
not required under the Securities Act. Notwithstanding the foregoing,
neither Underwriter makes any representation or warranty as to whether any
such amendment or supplement of Computational Materials or ABS Term Sheets
with respect to the Registered Certificates included or will include any
untrue statement resulting directly from any Collateral Error (except any
Corrected Collateral Error, with respect to materials prepared after the
receipt by the Underwriters from MCFI of notice of such Corrected
Collateral Error or materials superseding or correcting such Corrected
Collateral Error).
(e) If, at any time when a prospectus relating to the Registered
Certificates is required to be delivered under the Securities Act prior to
90 days from the date hereof, it shall be necessary in the opinion of MCFI
or its counsel to amend or supplement the Prospectus as a result of an
untrue statement of a material fact contained in any Computational
Materials or ABS Term Sheets provided by the Underwriters pursuant to or as
contemplated by this Section 9 or the omission to state therein
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a material fact required, when considered in conjunction with the Prospectus, to
be stated therein or necessary to make the statements therein, when read in
conjunction with the Prospectus, not misleading, or if it shall be necessary to
amend or supplement any Current Report to comply with the Securities Act or the
rules thereunder, MCFI promptly will notify each Underwriter of the necessity of
such amendment or supplement, and the Underwriters, at their expense (such
expense to be allocated between them based on the relative fault of the
Underwriters) (or, if such amendment or supplement is necessary due to a
Collateral Error (except any Corrected Collateral Error, with respect to
materials prepared after the receipt by the Underwriters from MCFI of notice of
such Corrected Collateral Error or materials superseding or correcting such
Corrected Collateral Error), at the expense of MCFI), shall prepare and furnish
to MCFI for filing with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance and shall distribute such amendment or supplement to each prospective
investor in the Registered Certificates that received such information being
amended or supplemented. Notwithstanding the foregoing, neither Underwriter
makes any representation or warranty as to whether any such amendment or
supplement of Computational Materials or ABS Term Sheets with respect to the
Registered Certificates included or will include any untrue statement resulting
directly from any Collateral Error (except any Corrected Collateral Error, with
respect to materials prepared after the receipt by the Underwriters from MCFI of
notice of such Corrected Collateral Error or materials superseding or correcting
such Corrected Collateral Error).
(f) The Underwriters (at their own expense) further agree to provide
to MCFI any accountants' letters obtained relating to the Computational
Materials and/or ABS Term Sheets, which accountants' letters shall be
addressed to MCFI or shall state that MCFI may rely thereon; provided that
the Underwriters shall have no obligation to procure such letter.
10. Termination. This Agreement shall be subject to termination by
notice given to MCFI, if the sale of the Registered 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 Underwriters, by notice given to MCFI prior to
delivery of and payment for the Certificates, if prior to such time (i) trading
in securities generally on the New York Stock Exchange shall have been suspended
or materially limited, (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 Underwriters after consultation with MCFI,
impracticable to market the Registered Certificates.
11. Default by an Underwriter. If either Underwriter shall fail to
purchase and pay for any of the Registered Certificates agreed to be purchased
by such Underwriter hereunder and such failure to purchase shall constitute a
default in the performance of its obligations under this Agreement, the
remaining Underwriter shall be obligated to take up and pay for the Registered
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Certificates that the defaulting Underwriter agreed but failed to purchase;
provided, however, that in the event that the initial principal amount of
Registered Certificates that the defaulting Underwriter agreed but failed to
purchase shall exceed 10% of the aggregate Class Principal Balance of all of the
Registered Certificates set forth in Schedule I hereto, the remaining
Underwriter shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Registered Certificates, and if such
nondefaulting Underwriter does not purchase all of the Registered Certificates,
this Agreement will terminate without liability to the nondefaulting Underwriter
or MCFI. In the event of a default by any Underwriter as set forth in this
Section 11, the Closing Date for the Registered Certificates shall be postponed
for such period, not exceeding seven (7) days, as the nondefaulting Underwriter
shall determine in order that the required changes in the Registration
Statement, the Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall (a) relieve any defaulting
Underwriter of its liability, if any, to MCFI and to any nondefaulting
Underwriter for damages occasioned by its default hereunder or (b) relieve any
Underwriter of such Underwriter's obligations under the Agreement Among
Underwriters.
12. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
MCFI, the Underwriters 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
Underwriter, MCFI or any of the officers, directors or controlling persons
referred to in Section 7 hereof, and will survive delivery of and payment for
the Registered Certificates. The provisions of Section 7 hereof shall survive
the termination or cancellation of this Agreement.
13. 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 7 hereof, and
no other person will have any right or obligation hereunder.
14. 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.
15. Miscellaneous. This Agreement supersedes all prior or
contemporaneous agreements and understandings relating to the subject matter
hereof (other than the Agreement Among Underwriters). Neither this Agreement nor
any term hereof may be changed, waived, discharged or terminated except by a
writing signed by the party against whom 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.
16. Notices. All communications hereunder will be in writing and
effective only upon receipt and, if sent to NationsBanc, 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
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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.; and 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; or, in each
such case, to such other address as may be forwarded by any such party to the
other parties hereto in writing.
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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 Underwriters.
Very truly yours,
MORTGAGE CAPITAL FUNDING, INC.
By: /s/ Xxxx Xxxxxxxxx
----------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
NATIONSBANC CAPITAL MARKETS, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
CITIBANK, N.A.
By: /s/ Xxxx Xxxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxxx
Title: Authorized Signatory
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SCHEDULE I
As used in this Agreement, the term "Registration Statements" refers to the
registration statement Nos. 33-25068, 33-63924 and 333-24489 filed by MCFI on
Form S-11, Form S-3 and Form S-3, respectively, and declared effective by the
Commission.
Title and Description of the Registered Certificates:
Multifamily/Commercial Mortgage Pass-Through Certificates, Series 1997-MC1,
Class A-1, Class A-2, Class A-3, Class B, Class C, Class D and Class E
Certificates.
Underwriting Agreement, dated as of June 11, 1997
Cut-off Date: June 1, 1997
Portion of Class Portion of Class
Principal Balance of Principal Balance of
Initial Class Class to be Class to be
Class Principal Purchased by Purchased by Initial Purchase
Designation Balance (1) Citibank(1) NationsBanc(1) Pass-Through Rate Price(2) Rating(3)
----------- ------------- -------------------- -------------------- ----------------- -------- -----------
Class A-1 $108,659,000 $49,617,720 $59,041,280 7.154% 101.000% Aaa/AAA/AAA
Class A-2 $26,341,000 $12,028,275 $14,312,725 7.223% 101.000% Aaa/AAA/AAA
Class A-3 $325,979,171 $148,854,151 $177,125,020 7.288% 101.000% Aaa/AAA/AAA
Class B $39,512,500 $18,042,869 $21,469,631 7.334% 101.000% Aa2/AA/AA
Class C $36,219,792 $16,539,297 $19,680,495 7.413% 101.000% A2/A/A
Class D $32,927,083 $15,035,724 $17,891,359 7.531% 101.000% Baa2/BBB/NR
Class E $13,170,833 $6,014,290 $7,156,543 7.915% 101.000% Baa3/NR/NR
------------------------
(1) Subject to a variance of plus or minus 5.0%.
(2) Expressed as a percentage of the Class Principal Balance of the relevant
class of Registered Certificates to be purchased. In addition, as to each
class of the Registered Certificates, the Underwriters will pay MCFI
accrued interest at the initial Pass-Through Rate therefor from the
Cut-off Date to but not including the Closing Date.
(3) By each of Xxxxx'x Investors Service, Inc. ("Moody's"), Fitch Investors
Service, L.P. and Xxxx & Xxxxxx Credit Rating Co. (except with respect to
the Class E Certificates, which are rated solely by Moody's).
Closing Time, Date and Location: 10:00 a.m. New York City time on June 20, 1997
at the offices of Sidley & Austin, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Issuance and delivery of Registered Certificates: Each class of Registered
Certificates will be issued as one or more Certificates registered in the name
of Cede & Co., as nominee of The Depository Trust Company. Beneficial owners
will hold interests in such Certificates through the book-entry facilities of
The Depository Trust Company in minimum denominations of initial principal
balance of $100,000 (or in the case of Class A-3, in minimum denominations of
initial principal balance of $25,000) and integral multiples of $1 in excess
thereof.
S-1
