EXHIBIT 1.1
FDIC REMIC TRUST 1996-C1
Commercial Mortgage Pass-Through Certificates
Series 1996-C1
UNDERWRITING AGREEMENT
----------------------
December 19, 1996
Xxxxxx Brothers Inc. Xxxxxxx, Sachs & Co.
Three World Financial Center 00 Xxxxx Xxxxxx
00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
FDIC REMIC Trust 1996-C1 (the "Trust"), a trust established under the laws of
the State of New York pursuant to a Declaration of Trust dated as of
November 13, 1996, which is to be restated and supplanted pursuant to the
Pooling and Servicing Agreement described below, proposes, subject to the terms
and conditions stated herein, to sell to the underwriters named in Schedule I
hereto (the "Underwriters"), its Commercial Mortgage Pass-Through Certificates
of the Series and Classes, in the aggregate principal amounts and bearing the
interest rates as specified in Schedule II hereto (the "Certificates"). The
Certificates will be issued pursuant to a Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of December 1, 1996 among the
Federal Deposit Insurance Corporation, acting both in its capacity as receiver
of certain failed banking institutions and in its corporate capacity as
administrator of the Bank Insurance Fund (in such capacity, the "Seller") and in
its corporate capacity (in such capacity, the "FDIC"), Banc One Management and
Consulting Corporation, as Servicer (the "Servicer"), and State Street Bank and
Trust Company, as Trustee (the "Trustee"). The Certificates will be
authenticated by the Trustee and will evidence beneficial ownership interests in
a trust fund (the "Trust Fund") that consists primarily of a mortgage pool (the
"Mortgage Pool") conveyed by the Seller to the Trustee. The Mortgage Pool
consists primarily of adjustable and fixed rate, amortizing and balloon payment,
conventional mortgage loans and participations in similar loans (such mortgage
loans, the "Mortgage Assets") conveyed by the Seller to the Trustee of the Trust
Fund and listed in an attachment to the Pooling and Servicing Agreement. The
Mortgage Loans are secured by first liens, second and more junior liens on
primarily commercial and multifamily real properties. The Class R Certificates
and the Class I-XS and II-XS Certificates also are to be issued pursuant to the
Pooling and Servicing Agreement, but are not being purchased and sold pursuant
to the provisions hereof. In connection with the issuance of the Certificates,
the Limited Guarantee Agreement (the "Guarantee Agreement") was entered into
between the FDIC and the Trustee. The Certificates are described more fully in
the Prospectus (as defined below) which the Seller is furnishing to you.
The Trust and the Seller offer to enter into the following agreement (the
"Agreement") with you ("you" or the "Underwriters"), which Agreement, upon your
written acceptance of this offer, will be binding on the Trust, the Seller and
the Underwriters. This offer is made subject to your acceptance of this
Agreement on or before 5:00 p.m. New York time on the date hereof and, if not so
accepted, will be subject to withdrawal by the Trust and the Seller on notice
delivered to you at any time prior to the acceptance hereof by you.
1. Representations and Warrants. The Seller represents and warrants to,
----------------------------
and agrees with, each Underwriter that:
(a) The Trustee on behalf of the Trust has filed with the Securities and
Exchange Commission (the "Commission") a Registration Statement (as
hereinafter defined), the file number of which is set forth in
Schedule II hereto, on Form S-11 for the registration of the
Certificates under the Securities Act of 1933, as amended (the "Act").
The Registration Statement has become effective and copies thereof
have heretofore been delivered to the Underwriters. The registration
statement whose file number is set forth in Schedule II hereto,
including the exhibits thereto, as amended at the date hereof is
hereinafter called the "Registration Statement". The prospectus,
dated the date specified in Schedule II hereto and in the form filed
with the Commission under the Act is hereinafter called the
"Prospectus." Any preliminary form of the Prospectus is hereinafter
called a "Preliminary Prospectus." The Trustee on behalf of the Trust
will not, without the prior consent of the Underwriters, (i) make any
change in the Prospectus or (ii) file any other amendment to the
Registration Statement until after the period in which a prospectus is
required to be delivered to purchasers of the Certificates under the
Act.
(b) As of the date hereof, when the Registration Statement became
effective and at the Closing Date, (i) the Registration Statement and
the Prospectus complied or will comply in all material respects with
the applicable requirements of the Act and the rules thereunder and
(ii) the Registration Statement, as amended as of any such time, did
not contain and will not contain any untrue statement of a material
fact and did not and will not omit to state any material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading
and the Prospectus did not contain and will not contain an untrue
statement of a material fact and did not omit and 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 the Seller makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Prospectus or any
amendment thereof or supplement thereto in reliance upon and in
conformity with written information furnished to the FDIC or the
Seller by you, or by any Underwriter through you, specifically for use
in the preparation thereof.
(c) The FDIC has been duly established and is validly existing, and has
full power and authority to enter into and perform its obligations
under the Pooling and Servicing Agreement, the Guarantee Agreement and
the guarantee provision set forth on the signature page of this
Agreement (the "Guarantee Provision").
(d) The Seller has been duly appointed as the receiver of each of the
Depository Institutions and as to those loans that it has acquired in
its corporate capacity, it has duly acquired such loans and has full
power and authority to enter into and perform its obligations under
this Agreement and the Pooling and Servicing Agreement.
(e) The Seller is not aware of (i) any request by the Commission for any
further amendment of the Registration Statement or the Prospectus or
for any additional information, (ii) the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement 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 Certificates for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose.
(f) At or prior to the Closing Date, the Seller will have entered into the
Pooling and Servicing Agreement; this Agreement has been duly
authorized, executed and delivered by the Seller, and the Pooling and
Servicing Agreement, when executed and delivered by the Seller, will
have been duly authorized, executed and delivered by the Seller, and
this Agreement constitutes, and the Pooling and Servicing Agreement,
when so executed and delivered, will constitute, valid and binding
agreements of the Seller; subject, however, to (i) limitations of
public policy under applicable securities laws with respect to rights
to indemnity under this Agreement and (ii) the effect of insolvency,
reorganization, receivership, moratorium and other similar laws
affecting creditors rights generally.
(g) At or prior to the Closing Date, the FDIC will have entered into the
Pooling and Servicing Agreement and the Guarantee Agreement; the
Pooling and Servicing Agreement and the Guarantee Agreement, when
executed and delivered by the FDIC, will have been authorized,
executed and delivered by the FDIC, and will constitute the valid and
binding agreements of the FDIC, enforceable against the FDIC in
accordance with their respective terms, except the enforceability
thereof may be subject to (i) general principles of equity regardless
of whether enforcement is sought in a proceeding in equity or at law
and (ii) the effect of insolvency, reorganization, receivership,
moratorium and other similar laws affecting creditors rights
generally.
-2-
(h) The Guarantee Provision has been duly authorized, executed and
delivered by the FDIC and constitutes the valid and binding agreement
of the FDIC, except that rights of indemnity under this Agreement may
be subject to limitations of public policy under applicable securities
laws.
(i) The Certificates, the Pooling and Servicing Agreement and the
Guarantee Agreement conform in all material respects to the
descriptions thereof contained in the Prospectus; the Certificates
have been duly and validly authorized by the Trustee and will, when
duly and validly executed and authenticated by the Trustee and issued
in accordance with the Pooling and Servicing Agreement, be entitled to
the benefits of the Pooling and Servicing Agreement.
(j) As of the date hereof and at the Closing Date, the statements in the
Prospectus set forth under the captions "The Federal Deposit Insurance
Corporation" and "The Bank Insurance Fund" are true, correct and
complete in all material respects.
(k) As of the Closing Date, the representations and warranties of the FDIC
set forth in Section 2.03(a)(i)-(v) inclusive of the Pooling and
Servicing Agreement will be true and correct.
(l) The issuance of the Certificates pursuant to the Pooling and Servicing
Agreement and the sale of the Certificates to the Underwriters
pursuant to this Agreement, the compliance by the Seller with the
other provisions of this Agreement and the Pooling and Servicing
Agreement and the Certificates, the compliance by the FDIC with the
provisions of the Pooling and Servicing Agreement, the Guarantee
Agreement and the Guarantee Provision, and the consummation of the
other transactions herein or therein contemplated do not, under any
statute, regulation or rule of general applicability or, to the
knowledge of the FDIC, any decision, order, decree or judgment of any
judicial or other governmental body specifically applicable to the
Seller or FDIC, as the case may be, require the consent, approval,
authorization, order, registration or qualification of or with any
court or governmental authority, except (i) such as have been obtained
or effected under the Act (provided that the Seller 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), (ii) any recordations of the
assignment of the Mortgage Loans to the Trustee pursuant to the
Pooling and Servicing Agreement that have not yet been completed and
(iii) such other approvals as have been obtained.
(m) Neither the execution nor the delivery of this Agreement nor the
Pooling and Servicing Agreement, nor the issuance nor delivery of the
Certificates, nor the consummation of any other of the transactions
contemplated herein or therein, nor the fulfillment of the terms of
the Certificates, this Agreement or the Pooling and Servicing
Agreement conflicts or will conflict with or violate, result in a
breach of or constitute a default under any terms of any statute
currently applicable to the Seller, or, to the knowledge of the
Seller, any order or regulation currently applicable to the Seller, or
of any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Seller, or the terms of any
indenture or other agreement or instrument to which the Seller is a
party or by which it or any of its properties are bound.
(n) Neither the execution nor the delivery of the Pooling and Servicing
Agreement, the Guarantee Agreement nor the Guarantee Provision, nor
the consummation of any other of the transactions contemplated
therein, nor the fulfillment of the terms thereof conflicts or will
conflict with or violate, result in a breach of or constitute a
default under any terms of any statute currently applicable to the
FDIC, or, to the knowledge of the FDIC, any order or regulation
currently applicable to the FDIC, or of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
the FDIC or the terms of any indenture or other agreement or
instrument to which the FDIC is a party or by which it or any of its
properties are bound.
-3-
(o) There are no actions or proceedings against, or investigations of, the
Seller pending, or, to the knowledge of the Seller, threatened, before
any court, administrative agency or other tribunal (i) asserting the
invalidity of this Agreement, the Pooling and Servicing Agreement or
the Certificates, (ii) seeking to prevent the sale of the Certificates
to the Underwriters or the consummation of any of the other
transactions contemplated by this Agreement or the Pooling and
Servicing Agreement, (iii) which might materially and adversely affect
the performance by the Seller of its obligations under, or the
validity of this Agreement, the Pooling and Servicing Agreement, or
the Certificates or (iv) seeking to affect adversely the federal
income tax attributes of the Certificates described in the Prospectus.
(p) There are no actions or proceedings against, or investigations of, the
FDIC pending, or, to the knowledge of the FDIC, threatened, before any
court, administrative agency or other tribunal (i) asserting the
invalidity of the Pooling and Servicing Agreement, the Guarantee
Agreement or the Guarantee Provision, (ii) seeking to prevent the
consummation of any of the other transactions contemplated by the
Pooling and Servicing Agreement, the Guarantee Agreement or the
Guarantee Provision or (iii) which might materially and adversely
affect the performance by the FDIC of its obligations under, or the
validity of the Guarantee Provision or the validity or enforceability
of, the Pooling and Servicing Agreement or the Guarantee Agreement.
(q) Any taxes, fees and other governmental charges in connection with the
execution and delivery of this Agreement and the Pooling and Servicing
Agreement and the execution, delivery and sale of the Certificates
have been or will be paid at or prior to the Closing Date.
2. Purchase and Sale. Subject to the terms and conditions and in
-----------------
reliance on the representations and warranties herein set forth, the Trust
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Trust, the principal amount of each Class of
Certificates set forth opposite each such Underwriter's name in Schedule I
hereto.
The purchase price for each Class of the Certificates as a percentage of
their respective Certificate Principal Amounts as of the Closing Date is set
forth in Schedule II hereof (the "Purchase Price"). There will be added to the
Purchase Price interest, in respect to each Class of the Certificates evidencing
an interest in Sub-Pool I (as defined in the Pooling and Servicing Agreement),
at the interest rate applicable to such Class from December 1, 1996 to, but not
including, the Closing Date.
3. Delivery and Payment. Delivery of and payment for the Certificates
--------------------
shall be made on December 23, 1996 and in the manner set forth in Schedule II
hereto, or such later date and time as the Underwriters shall designate, which
date and time may be postponed by agreement between the Underwriters and the
Seller or as provided in Section 10 hereof (such date and time of delivery and
payment for the Certificates being herein called the "Closing Date"). Delivery
of the Certificates, as set forth in Schedule II hereto, shall be made to the
Underwriters against payment by the Underwriters of the Purchase Price as
specified in Schedule II hereto. Unless delivery is made through the facilities
of The Depository Trust Company, the Certificates shall be registered in such
names and in such denominations as the Underwriters may request not less than
three full Business Days (as defined in the Pooling and Servicing Agreement) in
advance of the Closing Date.
If delivery of the Certificates is not being made through The Depository
Trust Company, the Trustee on behalf of the Trust agrees to have the
Certificates available for inspection, checking and packaging by the
Underwriters in New York, New York, not later than 1:00 p.m. on the Business Day
prior to the Closing Date.
4. Offering by Underwriters. It is understood that the Underwriters
------------------------
propose to offer the Certificates for sale to the public as set forth in the
Prospectus.
-4-
5. Agreements. The Seller agrees with the Underwriters that:
----------
(a) The Trustee on behalf of the Trust will promptly advise the
Underwriters: (i) when any amendment to the Registration Statement
shall have become effective; (ii) of any request by the Commission for
any amendment to the Registration Statement 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
Statement or the institution or threatening of any proceeding for that
purpose; and (iv) of the receipt by the Seller or the Trustee on
behalf of the Trust of any notification with respect to the suspension
of the qualification of the Certificates for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose.
In addition, the Trustee on behalf of the Trust will not: (i) file
any amendment to the Registration Statement or supplement to the
Prospectus unless the Seller or the Trustee on behalf of the Trust has
furnished the Underwriters a copy for its review prior to filing; (ii)
file any such proposed supplement to the Prospectus to which the
Underwriters reasonably objects; or (iii) file any such proposed
amendment to the Registration Statement to which the Underwriters
reasonably objects until after the period in which a prospectus is
required to be delivered to purchasers of the Certificates under the
Act. The Seller will use its best efforts to prevent the issuance of
any stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Certificates is
required to be delivered under the Act, 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 any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
shall be necessary to amend or supplement the Prospectus to comply
with the Act or the rules under the Act, the Trustee on behalf of the
Trust will promptly prepare and file with the Commission, subject to
paragraph (a) of this Section 5, an amendment or supplement that will
correct such statement or omission or an amendment that will effect
such compliance and, if such amendment or supplement is required to be
contained in a post-effective amendment to the Registration Statement,
will use its best efforts to cause such amendment of the Registration
Statement to be made effective as soon as possible.
(c) The Trustee on behalf of the Trust will furnish to the Underwriters
and counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of the Prospectus,
the Preliminary Prospectus, if any, and any amendments and supplements
thereto as the Underwriters may reasonably request. The Seller will
pay the expenses of printing all documents relating to the offering.
(d) The Trustee on behalf of the Trust and the Seller will furnish such
information, execute such instruments and take such action, if any, as
may be required to qualify the Certificates for sale under the laws of
such jurisdictions as the Underwriters may designate and will maintain
such qualification in effect so long as required for the distribution
of the Certificates.
(e) The Seller will pay or reimburse all costs and expenses in connection
with the transactions contemplated hereby, including, but not limited
to, the fees and disbursements of its counsel; the costs and expenses
of printing (or otherwise reproducing) and delivering the Pooling and
Servicing Agreement, the Guarantee Agreement and the Certificates;
accounting fees and disbursements; the costs and expenses in
connection with the qualification or exemption of the Certificates
under state securities or Blue Sky Laws, including filing fees and
reasonable fees and disbursements of counsel in connection therewith,
in connection with the preparation of any Blue Sky Survey and in
connection with any determination of the eligibility of the
Certificates for investment by
-5-
institutional investors and the preparation of any Legal Investment
Survey; the expenses of printing any such Blue Sky Survey and Legal
Investment Survey; the costs and expenses in connection with the
preparation, printing and filing of the Registration Statement
(including exhibits thereto), the Prospectus, and the Preliminary
Prospectus, if any (including the fees and expenses of any party
retained on behalf of the Seller to perform contract underwriting
services with respect to the Mortgage Loans), the preparation and
printing of this Agreement and the furnishing to the Underwriters of
such copies of each Preliminary Prospectus and Prospectus as the
Underwriters may reasonably request; the fees of rating agencies; and
the costs, expenses and filing fees in connection with any National
Association of Securities Dealers, Inc. filing required in connection
with the public offering of the Certificates. Except as provided
above with respect to a Blue Sky Survey and a Legal Investment Survey
and in Section 7 hereof, the Underwriters shall be responsible for
paying all costs and expenses incurred by them in connection with
their purchase and sale of the Certificates, including the fees of
counsel to the Underwriters.
6. Conditions to the Obligations of the Underwriters. The obligations of
-------------------------------------------------
the Underwriters to purchase the Certificates as provided in this Agreement
shall be subject to the accuracy of the representations and warranties on the
part of the Seller contained herein as of the date hereof and the Closing Date,
to the accuracy of the statements of the Seller made in any certificates
pursuant to the provisions hereof, to the performance by the Trustee on behalf
of the Trust and the Seller of their respective obligations hereunder and to the
following additional conditions with respect to the Certificates:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for the purpose
shall have been instituted or threatened.
(b) The Seller shall have delivered to the Underwriters a certificate,
dated the Closing Date, of the Senior Liquidation Specialist and the
Manager, Securitizations to the effect that: (i) the signer of such
certificate has carefully examined this Agreement and the Prospectus;
(ii) the representations and warranties of the Seller in this
Agreement are true and correct in all material respects at and as of
the Closing Date with the same effect as if made on the Closing Date;
(iii) the Seller has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or
prior to the Closing Date; (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the Seller's
knowledge, threatened; and (v) nothing has come to his attention that
would lead him to believe that the Prospectus contains any untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(c) The FDIC shall have executed and delivered the Guarantee Agreement.
(d) The FDIC shall have delivered to the Underwriters a certificate, dated
the Closing Date, of the Senior Liquidation Specialist, to the effect
that: (i) the FDIC has duly authorized, executed and delivered the
Pooling and Servicing Agreement, the Guarantee Agreement and the
Guarantee Provision; (ii) the Pooling and Servicing Agreement and the
Guarantee Agreement constitute legal, valid and binding obligations of
the FDIC, enforceable against the FDIC in accordance with their
respective terms, except that the enforceability thereof may be
subject to (A) general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and (B) the
effect of insolvency, reorganization, receivership, moratorium and
other similar laws affecting creditors rights generally, (iii) the
Guarantee Provision constitutes a legal, valid and binding obligation
of the FDIC, subject, however, to limitations of public policy under
applicable securities laws; (iv) the execution and delivery by the
FDIC of the Pooling and Servicing Agreement, the Guarantee Agreement
and the Guarantee Provision do not require the consent, approval or
authorization of any court or government authority except such as have
been obtained
-6-
or effected under the Act; and (v) neither the execution and delivery
by the FDIC of the Pooling and Servicing Agreement, the Guarantee
Agreement and the Guarantee Provision, nor the performance by the FDIC
of its obligations thereunder, will conflict with or violate, result
in a breach of or constitute a default under any terms of any statute
currently applicable to the FDIC or, to the knowledge of the FDIC, any
order or regulation currently applicable to the FDIC of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over the FDIC or the terms of any indenture or other
agreement or instrument to which the FDIC is a party or by which it or
any of its properties are bound.
(e) The Underwriters shall have received from Hunton & Xxxxxxxx, counsel
for the Seller and the FDIC, a favorable opinion, dated the Closing
Date and satisfactory in form and substance to counsel for the
Underwriters, to the effect that:
(i) The Registration Statement is effective under the Act, and, to
the best of the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, or proceeding
therefor instituted or threatened, by the Commission.
(ii) The Registration Statement as of its effective date and the
Prospectus as of the date thereof, other than financial statements,
schedules and other numerical, financial and statistical data contained
therein, as to which such counsel need express no opinion, complied as to
form in all material respects with the applicable requirements of the Act
and the rules thereunder.
(iii) The conditions to the use by the Trust of a registration
statement on Form S-11 under the Act, as set forth in the General
Instructions to Form S-11, have been satisfied with respect to the
Registration Statement and the Prospectus, and, to the best of the
knowledge of such counsel, based on inquiry of representatives of the
Seller and the FDIC, there are no contracts or documents that are required
to be filed as exhibits to the Registration Statement pursuant to the Act
or the regulations thereunder which have not been filed.
(iv) This Agreement constitutes a valid and binding agreement of the
Seller, enforceable against the Seller in accordance with its terms,
subject to (i) general principles of equity, regardless whether enforcement
is sought in a proceeding in equity or at law, (ii) the effect of
insolvency, reorganization, receivership, moratorium and other similar laws
affecting the rights of creditors generally and (iii) limitations of public
policy under applicable securities laws.
(v) The Pooling and Servicing Agreement constitutes a valid and
binding agreement of the Seller, enforceable against the Seller in
accordance with its terms, subject to (i) general principles of equity,
regardless whether enforcement is sought in a proceeding in equity or at
law and (ii) the effect of insolvency, reorganization, receivership,
moratorium and other similar laws affecting the rights of creditors
generally.
(vi) Each of the Pooling and Servicing Agreement, the Guarantee
Agreement and the Guarantee Provision constitutes a valid and binding
agreement of the FDIC, enforceable against the FDIC in accordance with its
respective terms, subject to (i) general principles of equity, regardless
whether enforcement is sought in a proceeding in equity or at law, (ii) the
effect of insolvency, reorganization, receivership, moratorium and other
similar laws affecting the rights of creditors generally and (iii), with
respect to the Guarantee Provision, limitations of public policy under
applicable securities laws.
(vii) The Certificates will, when the Mortgage Assets have been duly
conveyed to the Trustee in accordance with the Pooling and Servicing
Agreement and the Certificates have been duly executed and authenticated by
the Trustee and issued in accordance with the of the Pooling and Servicing
Agreement, be entitled to the benefits of the Pooling and Servicing
Agreement.
-7-
(viii) Assuming due authorization, execution and delivery of the
Declaration of Trust by the Trustee, the provisions of the Declaration of
Trust, as amended and restated in its entirety pursuant to the Pooling and
Servicing Agreement, are sufficient to establish the Trust under and
pursuant to the laws of the State of New York.
(ix) Assuming due authorization, execution and delivery of this
Agreement by the Trustee on behalf of the Trust, this Agreement constitutes
a valid and binding agreement of the Trust, enforceable against the Trust
in accordance with its terms, subject to (i) general principles of equity,
regardless whether enforcement is sought in a proceeding in equity or at
law and (ii) limitations of public policy under applicable securities laws.
(x) Assuming due authorization, execution and delivery of the
Pooling and Servicing Agreement by the Trustee, the Pooling and Servicing
Agreement constitutes a valid and binding agreement of the Trustee,
enforceable against the Trustee in accordance with its terms, subject to
(i) general principles of equity, regardless whether enforcement is sought
in a proceeding in equity or at law; (ii) the effect of insolvency,
reorganization, receivership, moratorium and other similar laws affecting
the rights of creditors generally; and (iii) limitations of public policy
under applicable securities laws.
(xi) The Certificates, the Pooling and Servicing Agreement and the
Guarantee Agreement conform in all material respects to the descriptions
thereof in the Prospectus.
(xii) The statements contained in the Prospectus under the headings
"Certain Federal Income Tax Consequences", "Certain Legal Aspects of the
Mortgage Loans", "ERISA Considerations" and "Legal Investment" to the
extent that they constitute matters of law or legal conclusions with
respect thereto, are a fair and accurate summary of the matters addressed
therein under existing law and the assumptions stated therein in all
material respects.
(xiii) Under existing law, assuming that the election required by
Section 860D(b) of the Internal Revenue Code of 1986, as amended (the
"Code"), is properly made and assuming compliance with the Pooling and
Servicing Agreement, as in effect on the Closing Date, the Trust Fund (as
defined in the Pooling and Servicing Agreement) will be treated for federal
income tax purposes as one or more "real estate mortgage investment
conduits" ("REMIC") within the meaning of Section 860D of the Code.
(xiv) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the Trust
Fund created by the Pooling and Servicing Agreement is not required to be
registered under the Investment Company Act of 1940, as amended.
(xv) The issuance of the Certificates pursuant to the Pooling and
Servicing Agreement and the sale of the Certificates to the Underwriters
pursuant to this Agreement, do not, under any statute, regulation or rule
of general applicability or, to the best of the knowledge of such counsel,
under any decision, order, decree or judgment of any judicial or other
governmental body require the consent, approval, authorization, order,
registration or qualification of or filing with any court or governmental
authority except such as have been obtained or effected under the Act (but
such counsel need express no opinion as to any consent, approval,
authorization, registration or qualification which may be required under
state securities or Blue Sky Laws), any recordations of the assignment of
the Mortgage Loans to the Trustee and the filing of any financial
statements required by the Pooling and Servicing Agreement that have not
yet been completed and such other approvals as have been obtained.
Such opinion: (a) may express its reliance as to factual matters on
(i) appropriate delegations of authority by the Seller or the FDIC, as the
case may be, (ii) a certificate regarding the prices received for the
Certificates and (iii) certificates of government and agency officials and
the representations and warranties made by, and on certificates or other
documents furnished by officers of, the parties to this
-8-
Agreement, the Pooling and Servicing Agreement, the Guarantee Provision and
the Guarantee Agreement; (b) may assume the due authorization, execution
and delivery of the instruments and documents referred to therein by the
parties thereto other than the Seller or the FDIC, as the case may be; (c)
may express its reliance as to the opinions in paragraphs (iv), (v) and
(vi) above regarding this Agreement, the Pooling and Servicing Agreement,
the Guarantee Agreement, the Guarantee Provision and the Certificates on
the opinion of the General Counsel of the FDIC; and (d) may be qualified as
an opinion only as to the laws of the State of New York and the United
States of America.
Such counsel shall also confirm that while they have endeavored to see
that the Registration Statement and the Prospectus comply with the Act and
the applicable rules and regulations thereunder relating to registration
statements on Form S-11 and related prospectuses, they cannot, of course,
make any representation to the Underwriters as to the accuracy or
completeness of statements of fact contained in the Registration Statement
or the Prospectus. However, such counsel shall confirm that nothing has
come to the attention of such counsel that would lead such counsel to
believe that the Registration Statement at the time it became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make statements
therein, in light of the circumstances under which they were made, not
misleading, or that the Prospectus, as of the date thereof, and at the
Closing Date, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (other than financial statements, schedules and other
numerical financial and statistical data contained therein, as to which
such counsel need express no opinion).
(f) The Underwriters shall have received from the General Counsel of the
FDIC a favorable opinion, dated the Closing Date and satisfactory in
form and substance to counsel for the Underwriters, to the effect
that:
(i) The FDIC has been duly established and is validly existing and
has statutory authority to enter into and perform its obligations under the
Pooling and Servicing Agreement, the Guarantee Agreement and the Guarantee
Provision and to consummate the transactions contemplated thereby.
(ii) The FDIC has been duly appointed as the receiver of each of the
Depository Institutions and as to those loans that it has acquired in its
receivership capacity, it has statutory authority to enter into and perform
its obligations under this Agreement and the Pooling and Servicing
Agreement, and as to those loans the Federal Deposit Insurance Corporation
has acquired in its corporate capacity, the FDIC has statutory authority to
enter into perform its obligations under this Agreement and the Pooling and
Servicing Agreement.
(iii) This Agreement has been duly authorized, executed and delivered
by the Seller and constitutes a valid and binding agreement of the Seller,
except as rights to indemnification thereunder may be limited by public
policy.
(iv) The Pooling and Servicing Agreement, the Guarantee Agreement and
the Guarantee Provision each have been duly authorized, executed and
delivered by the FDIC, and each constitutes a valid and binding agreement
enforceable against the FDIC in accordance with its terms, subject to (i)
general principles of equity, regardless of whether enforcement is sought
in a proceeding in equity or at law, (ii) the effect of insolvency,
reorganization, receivership, moratorium and other similar laws affecting
the rights of creditors generally, and (iii) limitations of public policy
under applicable securities laws with respect to the Guarantee Provision.
(v) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Seller and constitutes a valid and binding
agreement of the Seller, enforceable against the Seller in accordance with
its terms, subject to (i) general principles of equity regardless of
whether enforcement is
-9-
sought in a proceeding in equity or at law and (ii) the effect of
insolvency, reorganization, receivership, moratorium and other similar laws
affecting the rights of creditors generally.
(vi) The statements in the Prospectus set forth under the captions
"The Federal Deposit Insurance Corporation" and "The Bank Insurance Fund"
to the extent that they constitute matters of law or legal conclusions with
respect thereto are a fair and accurate summary of the matters addressed
therein, under existing law and the assumptions stated therein in all
material respects.
(vii) The execution and the delivery of this Agreement and the
Pooling and Servicing Agreement, and the consummation of the transactions
contemplated therein and the fulfillment of the terms of the Certificates,
this Agreement and the Pooling and Servicing Agreement do not conflict with
or violate any statute currently applicable to the Seller, nor, so far as
such counsel is aware, result in a breach of or constitute default under
any terms of any order, rule or regulation currently applicable to the
Seller of any regulatory body, administrative agency or governmental body
having jurisdiction over the Seller, or to any order of any court having
jurisdiction over the Seller, or the terms of any indenture or other
agreement or instrument to which the Seller is a party or by which its
properties are bound.
(viii) The execution and the delivery of the Guarantee Provision, the
Guarantee Agreement, and the Pooling and Servicing Agreement, the
consummation of the transactions contemplated therein and the fulfillment
of the terms of the Guarantee Provision, the Guarantee Agreement and the
Pooling and Servicing Agreement do not conflict with or violate any statute
currently applicable to the FDIC, nor result in a breach of or constitute
default under any terms of any order, rule or regulation currently
applicable to the FDIC of any regulatory body, administrative agency or
governmental body having jurisdiction over the FDIC, or, so far as such
counsel is aware, to any order of any court having jurisdiction over the
FDIC, or the terms of any indenture or other agreement or instrument to
which the FDIC is a party or by which its properties are bound.
(ix) There is no pending or, to the knowledge of such counsel,
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Seller or the
FDIC of a character required to be disclosed in the Registration Statement
which is not adequately disclosed in the Prospectus, and there is no
franchise, contract or other document of a character required to be
described in the Registration Statement or Prospectus, or to be filed as an
exhibit, which is not described or filed as required.
(x) No approval, authorization, consent or order, registration,
filing, qualification, license or permit of or with any court or government
agency or body is required for the consummation by the Seller or the FDIC,
as the case may be, of the transactions contemplated herein, in the
Pooling and Servicing Agreement, the Guarantee Agreement or in the
Guarantee Provision, except such as have been obtained under the Act and
such as may be required under the Blue Sky or similar laws of any
jurisdiction in connection with the purchase and distribution of the
Certificates by the Underwriters.
(g) The Underwriters shall have received from counsel to the Servicer,
which may be the General Counsel or any Assistant General Counsel of
the Servicer, a favorable opinion, dated the Closing Date, and
satisfactory in form and substance to counsel for the Underwriters, to
the effect that:
(i) The Servicer has been duly organized as a business corporation
and is validly existing and in good standing under the laws of the State of
Ohio and has full corporate power and authority to own its properties and
conduct its operations as described in the Prospectus, to enter into and
perform its obligations under the Pooling and Servicing Agreement and to
consummate the transactions contemplated thereby, is or will be in
compliance with the laws of each jurisdiction in which any Mortgaged
Property (as defined in the Pooling and Servicing Agreement) is located to
the extent such compliance is necessary to enforce each Mortgage Loan in
accordance with the terms of the Pooling and Servicing Agreement,
-10-
owns or possesses or has obtained all material governmental licenses,
permits, consents, orders, approvals and other authorizations necessary to
lease, own or license, as the case may be, and to operate its properties
and to carry on its operations as described in the Prospectus, and is
conducting its operations so as to comply in all material respects with all
applicable statutes, ordinances, rules and regulations of the jurisdictions
in which it is conducting operations.
(ii) The execution and delivery of the Pooling and Servicing
Agreement has been duly authorized by the Servicer and the Pooling and
Servicing Agreement has been duly executed and delivered by the Servicer
and constitutes a valid and binding agreement of the Servicer, enforceable
against the Servicer in accordance with its terms, subject to bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement
of creditors' rights generally and to general principles of equity
regardless of whether enforcement is sought in a proceeding in equity or at
law.
(iii) Neither the execution nor the delivery of the Pooling and
Servicing Agreement nor the consummation of any other of the transactions
contemplated therein, nor the fulfillment of the terms of the Pooling and
Servicing Agreement conflicts or will conflict with or violate, result in a
breach of or constitute a default under any terms or provisions of the
articles of incorporation or by-laws of the Servicer, any statute currently
applicable to the Servicer or any order, rule or regulation currently
applicable to the Servicer of any court, regulatory body, administrative
agency or governmental body having jurisdiction over the Servicer, or the
terms of any indenture or other agreement or instrument known to such
counsel to which the Servicer is a party or by which it or any of its
properties are bound.
(iv) There is no pending or, to the best knowledge of such counsel,
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Servicer of a
character required to be disclosed in the Registration Statement which is
not adequately disclosed in the Prospectus.
(v) No approval, authorization, consent or order, registration,
filing, qualification, license or permit of or with any court or government
agency or body which has not been obtained is required for the consummation
by the Servicer of the transactions contemplated in the Pooling and
Servicing Agreement.
Any such opinion delivered by counsel to the Servicer may: (a) express its
reliance as to factual matters on the representations and warranties made
by, and on the certificates or other documents furnished by officers of the
parties to this Agreement and the Pooling and Servicing Agreement; and (b)
assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than the
Servicer. Any such opinion delivered by counsel to the Servicer other than
the General Counsel or any Assistant General Counsel to the Servicer may:
(a) express its reliance as to the due authorization, execution and
delivery of the Pooling and Servicing Agreement on the Opinion of the
General Counsel or any Assistant General Counsel of the Servicer, and (b)
be qualified as an opinion only as to the laws of the jurisdiction(s)
wherein such counsel is admitted to practice law and the laws of the United
States of America.
(h) The Underwriters shall have received from counsel to the Trustee on
behalf of the Trust, a favorable opinion, dated the Closing Date and
satisfactory in form to and substance to counsel to the Underwriters,
to the effect that:
(i) The execution and delivery of the Declaration of Trust and this
Agreement has been duly authorized by the Trust and the Declaration of
Trust and this Agreement has been duly executed and delivered by the
Trustee on behalf of the Trust and each constitutes a valid and binding
agreement of the Trust enforceable against the Trust in accordance with its
terms, subject to general principles of equity regardless whether
enforcement is sought in a proceeding in equity or at law.
-11-
(ii) No approval, authorization, consent or order, registration,
filing, qualification, license or permit of or with any court or government
agency or body which has not been obtained is required for the consummation
by the Trust of the transactions contemplated in the Declaration of Trust,
this Agreement and the Pooling and Servicing Agreement.
(iii) The execution and delivery of the Declaration of Trust and the
Pooling and Servicing Agreement have each been duly authorized by the
Trustee, and the Declaration of Trust and the Pooling and Servicing
Agreement have each been duly executed and delivered by the Trustee and
each constitutes a valid and binding agreement of the Trustee enforceable
against the Trustee in accordance with its respective terms, subject to
general principles of equity regardless whether enforcement is sought in a
proceeding in equity or at law.
(iv) No approval, authorization, consent or order, registration,
filing, qualification, license or permit of or with any court or government
agency or body which has not been obtained is required for the consummation
by the Trustee of the transactions contemplated in the Pooling and
Servicing Agreement.
(v) Each of the Certificates has been executed, authenticated and
delivered by a duly authorized officer of the Trustee.
(vi) As of the date of this opinion, the Trustee is authorized to
make P&I Advances pursuant to the Pooling and Servicing Agreement.
Any such opinion delivered by counsel to the Trustee may: (a) express its
reliance as to factual matters on the representations and warranties made by,
and on the certificates or other documents furnished by officers of the parties
to this Agreement and the Pooling and Servicing Agreement; and (b) assume the
due authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than the Trust or the Trustee.
(i) The Underwriters shall have received from the Servicer a certificate,
dated the Closing Date, of a duly authorized officer of the Servicer,
to the effect that the information set forth in the Prospectus under
the heading "Servicing of the Mortgage Loans--The Servicer" is true
and correct in all material respects.
(j) The Underwriters shall have received from Xxxxxx & Xxxxxxx, counsel
for the Underwriters, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to the underwriters.
(k) The Underwriters shall have received from E&Y Xxxxxxx Xxxxxxxxx,
certified public accountants, letters dated December 11, 1996,
December 16,1996, the date hereof and the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for
the Underwriters to the effect that they have performed certain
specified procedures, all of which have been agreed to by the
Underwriters, as a result of which they have determined that certain
information set forth in the Prospectus under the headings "Summary of
Prospectus", "Risk Factors", "Description of the Certificates",
"Description of the Mortgage Loans", "Yield, Prepayment and Maturity
Considerations" and certain other headings agrees with the records of
the Seller.
(l) The Underwriters shall have received from Price Waterhouse LLP,
certified independent public accountants, a letter dated the date
hereof and satisfactory in form and substance to the Underwriters and
counsel for the Underwriters to the effect that they have performed
certain specified procedures, all of which have been agreed to by the
Underwriters, as a result of which they have determined that certain
information set forth in the Prospectus agrees with the records of the
FDIC.
-12-
(m) The Underwriters shall have received from Xxxxxx Xxxxxxxx LLP,
certified independent public accountants, letters dated the date
hereof and the Closing Date and satisfactory in form and substance to
the Underwriters and counsel for the Underwriters to the effect that
they have performed certain specified procedures, all of which have
been agreed to by the Underwriters, as a result of which they have
determined that certain information set forth in the Prospectus agrees
with the records of the FDIC.
(n) The Class I-A and Class II-A Certificates shall be rated no lower than
"Aaa" by Xxxxx'x Investors Service, Inc. ("Moodys") and "AAA" by Duff
& Xxxxxx Credit Rating Co. ("Duff & Xxxxxx"). The Class I-B and Class
II-B Certificates shall be rated no lower than "Aa2" by Moody's and
"AA" by Duff & Xxxxxx. The Class I-C and Class II-C Certificates shall
be rated no less than "A1" and "A2" by Moody's and "A" and "A-",
respectively, by Duff & Xxxxxx. The Class I-D Certificates shall be
rated no lower than "Baa2" by Moody's and "BBB" by Duff & Xxxxxx.
(o) All proceedings in connection with the transactions contemplated by
this Agreement, and all documents incident hereto and thereto, shall
be satisfactory in form and substance to the Underwriters and counsel
for the Underwriters, and the Underwriters and Counsel for the
Underwriters shall have received such information, certificates and
documents as they may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided by this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in
this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by
the Underwriters. Notice of such cancellation shall be given to the Trustee
on behalf of the Trust and the Seller in writing, or by telephone or
telegraph confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the sale of any
---------------------------------------
Certificates provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied
or because of any refusal, inability or failure on the part of the Trustee on
behalf of the Trust and the Seller to perform any agreement herein or therein or
comply with any provision hereof or thereof, other than by reason of a default
by any of the Underwriters, the Seller will reimburse the Underwriters severally
upon demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of such Certificates.
8. Indemnification and Contribution.
--------------------------------
(a) The Seller will indemnify and hold harmless each Underwriter against
losses, claims, damages, or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages, or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any part of
the Registration Statement when such part became effective, or in any
Preliminary Prospectus, the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by it in connection with investigating or
defending against such loss, claim, damage, liability, or action;
provided, however, (i) the Seller shall not be liable in any such case
--------- --------
to the extent that any such loss, claim, damage, or liability arises
out of or is based upon an untrue statement or alleged untrue
statement
-13-
or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Seller by you, or
by any Underwriter through you, specifically for use in the
preparation thereof, and (ii) such indemnity with respect to any
Preliminary Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling any Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased
the Certificates which are the subject thereof if such person did not
receive a copy of the Prospectus (or the Prospectus as amended or
supplemented) at or prior to the confirmation of the sale of such
Certificates to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material
fact contained in such Preliminary Prospectus was corrected in the
Prospectus (or the Prospectus as amended or supplemented).
(b) Each Underwriter will indemnify and hold harmless the Seller against
any losses, claims, damages, or liabilities to which the Seller may
become subject, under the Act or otherwise, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any part of the Registration
Statement when such part became effective, or in any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made
therein in reliance upon and in conformity with written information
furnished to the Seller by you, or by such Underwriter through you,
specifically for use in the preparation thereof, and will reimburse
the Seller for any legal or other expenses reasonably incurred by the
Seller in connection with investigating or defending against any such
loss, claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under this Section 8 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 8, 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 the indemnifying party may have to any indemnified
party otherwise than under this Section 8. 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 the
indemnifying party 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 (which may be counsel
representing the indemnifying party); provided, however, 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 the
indemnifying party's 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 under this Section
8 for any legal or other expenses subsequently incurred by 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 Underwriters in the
case of paragraph (a) of this Section
-14-
8, representing the indemnified parties under such paragraph (a) 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) If the indemnification provided for in this Section 8 is unavailable
or insufficient to hold harmless an indemnified party under subsection
(a) or (b) above, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of the
losses, claims, damages, or liabilities referred to in subsection (a)
or (b) above, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Seller on the one hand and the
Underwriters on the other from the offering of the Certificates, or
(ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also
the relative fault of the Seller on the one hand and the Underwriters
on the other in connection with the statement or omissions that
resulted in such losses, claims, damages, or liabilities, as well as
any other relevant equitable considerations. The relative benefits
received by the Seller on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total
proceeds from the offering of the Certificates (before deducting
expenses) received by the Seller bear to the total underwriting
discounts and commissions (before deducting expenses) received or
realized by the Underwriters from the purchase and resale, or
underwriting, of the Certificates. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue Statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Seller or the Underwriters and the parties' relative intent,
knowledge, access to information, and opportunity to correct or
prevent such untrue statement or omission. The Seller and the
Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were to be determined by
pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that
does not take account of the equitable considerations referred to in
the first sentence of this subsection (d). The amount paid by an
indemnified party as a result of the losses, claims, damages, or
liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending against any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection
(d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
Certificates underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such
untrue statement or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to
compensation from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute shall be several in proportion to their respective
underwriting obligations and not joint.
(e) The obligation of the Seller under this Section 8 shall be in
addition. to any liability which the Seller may otherwise have and
shall extend, upon, the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act or the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
-15-
9. Substitution of Underwriters.
----------------------------
(a) If either Underwriter shall fall to take up and pay for the amount of
the Certificates agreed by such Underwriter to be purchased under this
Agreement, upon tender of such Certificates in accordance with the
terms hereof, and if the amount of the Certificates not purchased does
not aggregate more than 10% of the total amount of the Certificates
set forth in Schedule I hereof, the remaining Underwriter shall be
obligated to take up and pay for the Certificates that the withdrawing
or defaulting Underwriter agreed but failed to purchase.
(b) If either Underwriter shall fail to take up and pay for the amount of
the Certificates agreed by such Underwriter to be purchased under this
Agreement (such Underwriter being hereinafter referred to as a
"Defaulting Underwriter"), upon tender of such Certificates in
accordance with the terms hereof, and if the amount of the
Certificates not purchased aggregates more than 10% of the total
amount of the Certificates set forth in Schedule I hereto, and
arrangements satisfactory to the remaining Persons are not made within
36 hours thereafter, this Agreement shall terminate. In the event of
any such termination the Seller shall not be under any liability to
any Underwriter (except to the extent provided in Section 5(e) and
Section 8 hereof) nor shall any Underwriter (other than an Underwriter
who shall have failed, otherwise than for some reason permitted under
this Agreement, to purchase the amount of the Certificates agreed by
such Underwriter to be purchased hereunder) be under any liability to
the Seller (except to the extent provided in Section 8 hereof).
Nothing herein shall be deemed to relieve any Defaulting Underwriter
from any liability it may have to the Seller or other Underwriter by
reason of its failure to take up and pay for Certificates as agreed by
such Defaulting Underwriter.
10. Termination. This Agreement shall be subject to termination in the
-----------
absolute discretion of the Underwriters by notice given to the Trustee on behalf
of the Trust and the Seller prior to delivery of any payment for the
Certificates if there has occurred any of the following: (i) a suspension or
material limitation in trading in securities generally on either the New York
Stock Exchange or the American Stock Exchange; (ii) a general moratorium on
commercial banking activities declared by either Federal or New York State
authorities; or (iii) any outbreak or escalation of hostilities involving the
United States or any other calamity or crisis the effect of which is such as to
make it, in the judgment of the Underwriters, impracticable to market the
Certificates on the terms and in the manner contemplated in the Prospectus.
11. Representation and Indemnities to Survive. The respective agreements,
-----------------------------------------
representations, warranties, indemnities and other statements of the Seller or
its officers and the Underwriters 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 the Seller, any Underwriter or any of the controlling
persons referred to in Section 8 hereof and will survive delivery of any payment
for the Certificates. The provisions of Sections 7 and 8 hereof shall survive
the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Underwriter, will be mailed,
delivered or telegraphed and confirmed to them at your address set forth at the
beginning of this Agreement; if sent to the Trustee on behalf of the Trust will
be mailed, delivered or telegraphed and confirmed to it at State Street Bank and
Trust Company, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attn: Xx.
Xxxxx Xxxxxx, Structured Finance Services Department; or, if sent to the Seller
will be mailed, delivered or telegraphed and confirmed to Federal Deposit
Insurance Corporation, 000 00xx Xx., X.X., Xxxxxxxxxx, X.X. 00000, Attn.: Asset
Disposition and Operations Branch.
13. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and the controlling persons referred to in
Section 8 hereof and their respective successors and assigns, and no other
person will have any right or obligation hereunder.
-16-
14. Applicable Law; Counterparts. This Agreement will be governed by and
----------------------------
construed in accordance with the laws of the State of New York without giving
effect to the provisions thereof concerning conflict of laws. This Agreement may
be executed in any number of counterparts, each of which shall for all purposes
be deemed to be an original and all of which shall together constitute but one
and the same instrument.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this letter and
your acceptance shall represent a binding agreement among the Trust, the Seller
and the several Underwriters.
FDIC REMIC TRUST 1996-C1
By: State Street Bank and Trust Company
--------------------------------------------
not in its individual capacity but solely as
Trustee on behalf of the Trust
By: /S/ Xxxxx Xxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Vice President
FEDERAL DEPOSIT INSURANCE
CORPORATION, as Seller
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Manager, Securitizations
Accepted at New York, New York
as of the date first written above.
By: XXXXXX BROTHERS INC.
By: /s/ Xxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
Accepted at New York, New York
as of the date first written above.
By: XXXXXXX, XXXXX & CO.
/s/ Xxxxxxx, Sachs & Co.
-------------------------------------------------------
-17-
Guarantee Provision
-------------------
The Federal Deposit Insurance Corporation, acting in its corporate capacity,
hereby guarantees the obligations of the Seller set forth in Section 8 of this
Agreement, without reference to the enforceability of this Agreement against the
Seller.
FEDERAL DEPOSIT INSURANCE CORPORATION,
acting in its corporate capacity
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Liquidation Specialist
-18-
Schedule I
Class I-A Class I-B Class I-C Class I-D Class II-A Class II-B Class II-C
Underwriters Certificates Certificates Certificates Certificates Certificates Certificates Certificates
------------ ------------ ------------ ------------ ------------ ------------ ------------ ------------
Xxxxxx Brothers...... 222,609,000 16,489,500 13,741,500 21,986,346.50 70,084,000 7,509,000 5,840,403
Xxxxxxx, Sachs & Co.. 222,609,000 16,489,500 13,741,500 21,986,346.50 70,084,000 7,509,000 5,840,403
Total............ 445,218,000 32,979,000 27,483,000 43,972,693 140,168,000 15,018,000 11,680,806
-19-
Schedule II
FDIC REMIC Trust 1996-C1
Commercial Mortgage Pass-Through
Certificates, Series 1996-C1 consisting
of the respective Classes, in the respective
aggregate Certificate Principal Amounts
and bearing the respective
interest rates as set forth below:
Aggregate Certificate Interest Purchase
Designation Principal Amount Rate Price *
----------- --------------------- -------- ---------
Class I-A $445,218,000 6.75% 99.9539%
Class I-B $ 32,979,000 7.125% 99.7787%
Class I-C $ 27,483,000 7.250% 99.5651%
Class I-D $ 43,972,693 7.250% 97.8889%
Class II-A $140,168,000 LIBOR + 0.30% 100%
Class II-B $ 15,018,000 LIBOR + 0.65% 100%
Class II-C $ 11,680,806 LIBOR + 1.25% 100%
; as more fully described in a Prospectus dated December 19, 1996 on
file with the Securities and Exchange Commission pursuant to registration
statement file No. 333-16397 on form S-11.
* Expressed as a percentage of the respective Certificate Principal
Amounts.
Delivery Instructions:
Delivery of the Certificates will be made in book-entry form only
through the Same Day Funds Settlement System of the Depository
Trust Company.
-20-
