EXHIBIT 1.1
FIRST UNION COMMERCIAL MORTGAGE SECURITIES, INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
FUNB SERIES ▇▇▇▇-▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
December 6, 2001
FIRST UNION SECURITIES, INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
Four World Financial Center
New York, New York 10281
GREENWICH CAPITAL MARKETS, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
First Union Commercial Mortgage Securities, Inc., a North Carolina
corporation (the "Company"), has issued its Commercial Mortgage Pass-Through
Certificates, First Union National Bank Commercial Mortgage Trust Series
2001-C4 (the "Certificates"), in 23 classes (each, a "Class") as designated in
the Prospectus Supplement (as defined below). The Company further proposes to
sell to First Union Securities, Inc. ("FUS"),
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("MLPF&S") and Greenwich
Capital Markets, Inc. ("GCM") (each an "Underwriter" and together, the
"Underwriters") the Certificates set forth in Schedule I hereto (the
"Underwritten Certificates") in the respective original principal amounts set
forth in Schedule I. The Certificates represent in the aggregate the entire
beneficial ownership interest in a trust fund (the "Trust Fund") consisting of
a segregated pool (the "Mortgage Pool") of 137 mortgage loans having an
aggregate principal balance of $978,559,069 as of the Cut-Off Date (the
"Mortgage Loans") secured by first liens on the borrowers' fee or leasehold
interests in multifamily and commercial properties (the "Mortgaged
Properties"). The Certificates will be issued on December 20, 2001 (the
"Closing Date") pursuant to a pooling and servicing agreement (the "Pooling and
Servicing Agreement"), dated as of December 1, 2001 (the "Cut-Off Date"), among
the Company, First Union National Bank ("FUNB"), as master servicer (the
"Master Servicer"), Lennar Partners, Inc., as special servicer (the "Special
Servicer") and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as trustee (the "Trustee").
The Mortgage Loans will be acquired by the Company from FUNB, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage Lending, Inc., and Artesia Mortgage Capital Corporation (each a
"Mortgage Loan Seller" and together, the "Mortgage Loan Sellers") on the
Closing Date pursuant to separate mortgage loan purchase agreements (each a
"Mortgage Loan Purchase Agreement" and together, the "Mortgage Loan Purchase
Agreements"), dated as of December 1, 2001, between each of the Mortgage Loan
Sellers and the Company. The Underwritten Certificates and the Mortgage Pool
are described more fully in Schedule I hereto and in a registration statement
furnished to you by the Company.
Capitalized terms used but not otherwise defined herein shall have
the respective meanings assigned to them in the Pooling and Servicing
Agreement.
1. REPRESENTATIONS AND WARRANTIES. (a) The Company represents
and warrants to, and agrees with, each Underwriter that:
(i) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement (No.
333-68246) on Form S-3 for the registration of Commercial Mortgage
Pass-Through Certificates, issuable in series, including the
Underwritten Certificates, under the Securities Act of 1933, as
amended (the "1933 Act"), which registration statement has become
effective and a copy of which, as amended to the date hereof, has
heretofore been delivered to you. The Company meets the requirements
for use of Form S-3 under the 1933 Act, and such registration
statement, as amended at the date hereof, meets the requirements set
forth in Rule 415(a)(1)(x) under the 1933 Act and complies in all
other material respects with the 1933 Act and the rules and
regulations thereunder. The Company proposes to file with the
Commission, with your consent, pursuant to Rule 424 under the 1933
Act, a supplement dated December 6, 2001 (the "Prospectus Supplement")
to the prospectus dated November 28, 2001 (the "Basic Prospectus"),
relating to the Underwritten Certificates and the method of
distribution thereof, and has
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previously advised you of all further information (financial and
other) with respect to the Underwritten Certificates and the Mortgage
Pool to be set forth therein. Such registration statement (No.
333-68246), including all exhibits thereto, is referred to herein as
the "Registration Statement"; and the Basic Prospectus and the
Prospectus Supplement, together with any amendment thereof or
supplement thereto authorized by the Company prior to the Closing Date
for use in connection with the offering of the Underwritten
Certificates, are hereinafter called the "Prospectus". Any preliminary
form of the Prospectus Supplement that has heretofore been filed
pursuant to Rule 424 or, prior to the effective date of the
Registration Statement, pursuant to Rule 402(a) or 424(a), is
hereinafter called a "Preliminary Prospectus Supplement". If so stated
in the Prospectus Supplement, the Company will file with the
Commission within fifteen days of the issuance of the Underwritten
Certificates a report on Form 8-K ("8-K") setting forth specific
information concerning the Mortgage Pool and the Underwritten
Certificates to the extent that such information is not set forth in
the Prospectus Supplement. As used herein, "Pool Information" means
the mortgage pool information reflected in the Master Tape and the
Prospectus Supplement. The "Master Tape" shall mean the compilation of
information and data regarding the Mortgage Loans covered by the
letters rendered by KPMG LLP (a "hard copy" of which Master Tape was
produced on behalf of the Mortgage Loan Sellers) described in Section
6(i) of this Agreement.
(ii) As of the date hereof, as of the date on which the
Prospectus Supplement is first filed pursuant to Rule 424 under the
1933 Act, as of the date on which, prior to the Closing Date, any
amendment to the Registration Statement becomes effective, as of the
date on which any supplement to the Prospectus Supplement is filed
with the Commission, and as of the Closing Date, (i) the Registration
Statement, as amended as of any such time, and the Prospectus, as
amended or supplemented as of any such time, complies and will comply
in all material respects with the applicable requirements of the 1933
Act and the rules and regulations thereunder, (ii) the Registration
Statement, as amended as of any such time, does not contain and will
not contain any untrue statement of a material fact and does not omit
and will not omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading, and (iii) the Prospectus, as amended or supplemented as of
any such time, does not contain and will not contain any untrue
statement of a material fact and does not omit and will not omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representations or warranties as to (x) statements contained in or
omitted from the Registration Statement or the Prospectus or any
amendment or supplement thereto made in reliance upon and in
conformity with information furnished in writing to the Company by or
on behalf of any Underwriter through you specifically for use in the
Registration Statement and the Prospectus (such
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information being identified in Section 8(b)) or (y) the Mortgage Loan
Seller Covered Information (as defined in Section 8 hereof).
(iii) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of North Carolina with corporate power and authority to own,
lease or operate its properties and to conduct its business as now
conducted by it and to enter into and perform its obligations under
this Agreement and the Pooling and Servicing Agreement; and the
Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business.
(iv) As of the date hereof, as of the date on which the
Prospectus Supplement is first filed pursuant to Rule 424 under the
1933 Act, as of the date on which, prior to the Closing Date, any
amendment to the Registration Statement becomes effective, as of the
date on which any supplement to the Prospectus Supplement is filed
with the Commission, and as of the Closing Date, there has not and
will not have been (i) any request by the Commission for any further
amendment to the Registration Statement or the Prospectus or for any
additional information, (ii) any issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the institution or threat of any proceeding for that purpose or
(iii) any notification with respect to the suspension of the
qualification of the Underwritten Certificates for sale in any
jurisdiction or any initiation or threat of any proceeding for such
purpose.
(v) Each of this Agreement, the Pooling and Servicing
Agreement and each Mortgage Loan Purchase Agreement has been duly
authorized, executed and delivered by the Company and each of this
Agreement, the Pooling and Servicing Agreement and each Mortgage Loan
Purchase Agreement constitutes legal, valid and binding agreements of
the Company, enforceable against the Company in accordance with their
respective terms, except as enforceability may be limited by (i)
bankruptcy, insolvency, reorganization, receivership, moratorium or
other similar laws affecting the enforcement of the rights of
creditors generally, (ii) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law, and (iii)
public policy considerations underlying the securities laws, to the
extent that such public policy considerations limit the enforceability
of the provisions of this Agreement, the Pooling and Servicing
Agreement or any Mortgage Loan Purchase Agreement that purport to
provide indemnification from securities law liabilities.
(vi) As of the Closing Date, the Underwritten
Certificates, the Pooling and Servicing Agreement and the Mortgage
Loan Purchase Agreements will conform in all material respects to the
respective descriptions thereof contained in
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the Prospectus. As of the Closing Date, the Underwritten Certificates
will be duly and validly authorized and, when delivered in accordance
with the Pooling and Servicing Agreement to you against payment
therefor as provided herein, will be duly and validly issued and
outstanding and entitled to the benefits of the Pooling and Servicing
Agreement.
(vii) [Reserved]
(viii) The Company is not in violation of its certificate
of incorporation or by-laws or in default under any agreement,
indenture or instrument the effect of which violation or default would
be material to the Company or which violation or default would have a
material adverse affect on the performance of its obligations under
this Agreement, the Pooling and Servicing Agreement or the Mortgage
Loan Purchase Agreements. Neither the issuance and sale of the
Underwritten Certificates, nor the execution and delivery by the
Company of this Agreement, the Pooling and Servicing Agreement or the
Mortgage Loan Purchase Agreements, nor the consummation by the Company
of any of the transactions herein or therein contemplated, nor
compliance by the Company with the provisions hereof or thereof, did,
does or will conflict with or result in a breach of any term or
provision of the certificate of incorporation or by-laws of the
Company or conflict with, result in a breach, violation or
acceleration of, or constitute a default under, the terms of any
indenture or other agreement or instrument to which the Company is a
party or by which it or any material asset is bound, or any statute,
order or regulation applicable to the Company of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over the Company.
(ix) There is no action, suit or proceeding against the
Company pending, or, to the knowledge of the Company, threatened,
before any court, arbitrator, administrative agency or other tribunal
(i) asserting the invalidity of this Agreement, the Pooling and
Servicing Agreement, the Mortgage Loan Purchase Agreements or the
Underwritten Certificates, (ii) seeking to prevent the issuance of the
Underwritten Certificates or the consummation of any of the
transactions contemplated by this Agreement (iii) that might
materially and adversely affect the performance by the Company of its
obligations under, or the validity or enforceability of, this
Agreement, the Pooling and Servicing Agreement, the Mortgage Loan
Purchase Agreements or the Underwritten Certificates or (iv) seeking
to affect adversely the federal income tax attributes of the
Underwritten Certificates as described in the Prospectus.
(x) There are no contracts, indentures or other
documents of a character required by the 1933 Act or by the rules and
regulations thereunder to be described or referred to in the
Registration Statement or the Prospectus or to be
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filed as exhibits to the Registration Statement which have not been so
described or referred to therein or so filed or incorporated by
reference as exhibits thereto.
(xi) No authorization, approval or consent of any court
or governmental authority or agency is necessary in connection with
the offering or sale of the Underwritten Certificates pursuant to this
Agreement, except such as have been, or as of the Closing Date will
have been, obtained or such as may otherwise be required under
applicable state securities laws in connection with the purchase and
offer and sale of the Underwritten Certificates by the Underwriters
and any recordation of the respective assignments of the Mortgage
Loans to the Trustee pursuant to the Pooling and Servicing Agreement
that have not been completed.
(xii) The Company possesses all material licenses,
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct
the business now operated by it, and the Company has not received any
notice of proceedings relating to the revocation or modification of
any such license, certificate, authority or permit which, singly or in
the aggregate, if the subject of any unfavorable decision, ruling or
finding, would materially and adversely affect the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company.
(xiii) Any taxes, fees and other governmental charges in
connection with the execution and delivery of this Agreement and the
delivery and sale of the Underwritten Certificates (other than such
federal, state and local taxes as may be payable on the income or gain
recognized therefrom) have been or will be paid at or prior to the
Closing Date.
(xiv) Neither the Company nor the Trust Fund is, and
neither the sale of the Underwritten Certificates in the manner
contemplated by the Prospectus nor the activities of the Trust Fund
pursuant to the Pooling and Servicing Agreement will cause the Company
or the Trust Fund to be, an "investment company" or under the control
of an "investment company" as such terms are defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act").
(xv) Under generally accepted accounting principles
("GAAP") and for federal income tax purposes, the Company reported the
transfer of the Mortgage Loans to the Trustee in exchange for the
Underwritten Certificates and will report the sale of the Underwritten
Certificates to the Underwriters pursuant to this Agreement as a sale
of the interests in the Mortgage Loans evidenced by the Underwritten
Certificates. The consideration received by the Company upon the sale
of the Underwritten Certificates to the Underwriters will constitute
reasonably equivalent value and fair consideration for the
Underwritten Certificates. The Company will be solvent at all relevant
times prior to, and will not be rendered insolvent by, the sale of the
Underwritten Certificates to the
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Underwriters. In addition, the Company was solvent at all relevant
times prior to, and was not rendered insolvent by, the transfer of the
Mortgage Loans to the Trustee on behalf of the Trust Fund. The Company
is not selling the Underwritten Certificates to the Underwriters and
did not transfer the Mortgage Loans to the Trustee on behalf of the
Trust Fund with any intent to hinder, delay or defraud any of the
creditors of the Company.
(xvi) At the Closing Date, the respective classes of
Underwritten Certificates shall continue to have maintained ratings no
lower than those set forth in Schedule I hereto by the nationally
recognized statistical rating organizations identified in Schedule I
hereto (individually and collectively, the "Rating Agency").
(b) FUNB represents and warrants to, and agrees with, each
Underwriter, that:
(i) FUNB is a national banking association validly
existing under the laws of the United States of America and possesses
all requisite authority, power, licenses, permits and franchises to
carry on its business as currently conducted by it and to execute,
deliver and comply with its obligations under the terms of this
Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by FUNB and, assuming due authorization,
execution and delivery hereof by the Company and the Underwriters,
constitutes a legal, valid and binding obligation of FUNB, enforceable
against FUNB in accordance with its terms, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium
and other laws affecting the enforcement of creditors' rights in
general, as they may be applied in the context of the insolvency of a
national banking association, and by general equity principles
(regardless of whether such enforcement is considered in a proceeding
in equity or at law), 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 which purport to provide indemnification from liabilities
under applicable securities laws.
(iii) The execution and delivery of this Agreement by FUNB
and FUNB's performance and compliance with the terms of this Agreement
will not (A) violate FUNB's articles of association or By-Laws, (B)
violate any law or regulation or any administrative decree or order to
which it is subject or (C) constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any contract, agreement or other
instrument to which FUNB is a party or by which FUNB is bound.
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(iv) FUNB is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal,
state, municipal or other governmental agency or body, which default
might have consequences that would materially and adversely affect the
condition (financial or other) or operations of FUNB or its properties
or have consequences that would materially and adversely affect its
performance hereunder.
(v) FUNB is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any
other corporate restriction or any judgment, order, writ, injunction,
decree, law or regulation that would materially and adversely affect
the ability of FUNB to perform its obligations under this Agreement or
that requires the consent of any third person to the execution of this
Agreement or the performance by FUNB of its obligations under this
Agreement (except to the extent such consent has been obtained).
(vi) No consent, approval, authorization or order of any
court or governmental agency or body is required for the execution,
delivery and performance by FUNB of or compliance by FUNB with this
Agreement or the consummation of the transactions contemplated by this
Agreement except as have previously been obtained.
(vii) No litigation is pending or, to the best of FUNB's
knowledge, threatened against FUNB that would prohibit its entering
into this Agreement or materially and adversely affect the performance
by FUNB of its obligations under this Agreement.
(viii) Each representation and warranty of the Company set
forth in Section 1(a) hereof is true and correct as of the date hereof
or as of the date specified in such representation and warranty.
(c) Each Underwriter represents and warrants to the Company that,
as of the date hereof and as of the Closing Date, (i) such Underwriter has
complied in all material respects with all of its obligations under Section 4
hereof and (ii) with respect to all Computational Materials and Term Sheets (as
such terms are defined in Section 4 hereof), if any, provided by such
Underwriter to the Company pursuant to Section 4(b)(iv), such Computational
Materials and Term Sheets are accurate in all material respects (taking into
account the assumptions explicitly set forth or otherwise referred to in the
Computational Materials or in the Prospectus Supplement or Term Sheets or the
Preliminary Prospectus Supplement, and provided that the underlying data
regarding the Mortgage Loans, and the related Mortgagors and Mortgaged
Properties, provided to the Underwriters by the Mortgage Loan Sellers is
accurate and complete in all material respects) and constitute a complete set
of all Computational Materials and Term Sheets that are required to be filed
with the Commission pursuant to the No-Action Letters (as defined herein).
8
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties set forth herein, the Company
agrees to sell to the Underwriters, and the Underwriters agree, severally and
not jointly, to purchase from the Company, at the applicable purchase prices
set forth in Schedule I hereto, the respective principal amounts of the
Underwritten Certificates set forth opposite the name of each Underwriter set
forth in Schedule II hereto, and any additional portions of the Underwritten
Certificates that any such Underwriter may be obligated to purchase pursuant to
Section 10, in all cases plus accrued interest as set forth in Schedule I.
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Underwritten Certificates shall be made in the manner, at the location(s), on
the Closing Date at the time specified in Schedule I hereto (or such later date
not later than ten business days after such specified date as you shall
designate), which date and time may be changed by agreement between you and the
Company or as provided in Section 10 hereof. Delivery of the Underwritten
Certificates shall be made either directly to you or through the facilities of
The Depository Trust Company ("DTC"), as specified in Schedule I hereto, for
the respective accounts of the Underwriters against payment by the respective
Underwriters of the purchase price therefor in immediately available funds
wired to such bank as may be designated by the Company, or such other manner of
payment as may be agreed upon by the Company and you. Any Class of Underwritten
Certificates to be delivered through the facilities of DTC shall be represented
by one or more global Certificates registered in the name of Cede & Co., as
nominee of DTC, which global Certificate(s) shall be placed in the custody of
DTC not later than 10:00 a.m. (New York City time) on the Closing Date pursuant
to a custodial arrangement to be entered into between the Trustee or its agent
and DTC. Unless delivered through the facilities of DTC, the Underwritten
Certificates shall be in fully registered certificated form, in such
denominations and registered in such names as you may have requested in writing
not less than one full business day in advance of the Closing Date.
The Company agrees to have the Underwritten Certificates, including
the global Certificates representing the Underwritten Certificates to be
delivered through the facilities of DTC, available for inspection, checking
and, if applicable, packaging by you in New York, New York, not later than the
close of business (New York City time) on the business day preceding the
Closing Date.
References herein, including, without limitation, in the Schedules
hereto, to actions taken or to be taken following the Closing Date with respect
to any Underwritten Certificates that are to be delivered through the
facilities of DTC shall include, if the context so permits, actions taken or to
be taken with respect to the interests in such Certificates as reflected on the
books and records of DTC.
4. OFFERING BY UNDERWRITERS.
(a) It is understood that the Underwriters propose to offer the
Underwritten Certificates for sale to the public, including, without
limitation, in and from the State of
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New York, as set forth in the Prospectus Supplement. It is further understood
that the Company, in reliance upon an exemption from the Attorney General of
the State of New York to be granted pursuant to Policy Statement 104 and 105,
has not and will not file the offering pursuant to Section 352-e of the General
Business Law of the State of New York with respect to the Underwritten
Certificates.
(b) Each Underwriter may prepare and provide to prospective
investors certain Computational Materials, ABS Term Sheets, Structural Term
Sheets or Collateral Term Sheets in connection with its offering of the
Certificates, subject to the following conditions:
(i) Such Underwriter shall comply with the requirements
of the no-action letter, dated May 20, 1994, issued by the Commission
to ▇▇▇▇▇▇, Peabody Acceptance Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co.
Incorporated and ▇▇▇▇▇▇ Structured Asset Corporation, as made
applicable to other issuers and underwriters by the Commission in
response to the request of the Public Securities Association, dated
May 25, 1994 (collectively, the "▇▇▇▇▇▇/PSA Letter"), and the
requirements of the no-action letter, dated February 17, 1995, issued
by the Commission to the Public Securities Association (the "PSA
Letter" and, together with the ▇▇▇▇▇▇/PSA Letter, the "No-Action
Letters").
(ii) For purposes hereof, "Computational Materials" shall
have the meaning given such term in the No-Action Letters, but shall
include only (x) the Computational Materials attached hereto as
Exhibit A and (y) such other Computational Materials that have been
prepared or delivered to prospective investors by or at the direction
of such Underwriter. For purposes hereof, "ABS Term Sheets,"
"Structural Term Sheets" and "Collateral Term Sheets" shall have the
meanings given such terms in the PSA Letter but shall include only (x)
the ABS Term Sheets attached hereto as Exhibit B and (y) those other
ABS Term Sheets, Structural Term Sheets or Collateral Term Sheets that
have been prepared for or delivered to prospective investors by or at
the direction of such Underwriter. As used herein, "Term Sheets" means
any ABS Term Sheets, Structural Term Sheets and/or Collateral Term
Sheets.
(iii) All Computational Materials and ABS Term Sheets
provided to prospective investors shall bear a legend in a form
previously approved by the Company or its counsel.
(iv) Such Underwriter shall not distribute any such
Computational Materials or Term Sheets unless the forms and
methodology thereof are in accordance with this Agreement. Such
Underwriter shall provide to the Company, for filing on Form 8-K as
provided in Section 5(g), copies (in such format as required by the
Company) of all Computational Materials and Term Sheets. The
Underwriter may provide copies of the foregoing in a consolidated or
aggregated form including all information required to be filed. All
Computational
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Materials and Term Sheets described in this subsection (iv) must be
provided to the Company (a) in paper or electronic format suitable for
filing with the Commission and (b) not later than 10:00 a.m. (New York
City time) on a business day that is not less than one business day
before filing thereof is required pursuant to the terms of the
No-Action Letters.
(v) All information included in the Computational
Materials and Term Sheets shall be generated based on substantially
the same methodology and assumptions as are used to generate the
information in the Prospectus Supplement as set forth therein;
provided that the Computational Materials and Term Sheets may include
information based on alternative methodologies or assumptions if
specified therein. If any Computational Materials or Term Sheets were
based on assumptions with respect to the Mortgage Pool that differ
from the final Pool Information in any material respect or on
Underwritten Certificate structuring assumptions (except in the case
of Computational Materials when the different structuring terms were
hypothesized and so described) that were revised in any material
respect prior to the printing of the Prospectus, then to the extent
that it has not already done so, such Underwriter shall immediately
inform the Company and, upon the direction of the Company, and if not
corrected by the Prospectus, shall prepare revised Computational
Materials and Term Sheets, as the case may be, based on the final
collateral information and structuring assumptions, circulate such
revised Computational Materials and Term Sheets to all recipients of
the preliminary versions thereof, and include such revised
Computational Materials and Term Sheets (marked, "as revised") in the
materials delivered to the Company pursuant to subsection (iv) above.
(vi) If, within the period during which the Prospectus
relating to the Underwritten Certificates is required to be delivered
under the 1933 Act, any Computational Materials or Term Sheets are
determined, in the reasonable judgment of the Company or such
Underwriter, to contain a material error or, when read together with
the Prospectus, a material omission, then (unless the material error
or omission was corrected in the Prospectus) the Underwriter shall
prepare a corrected version of such Computational Materials or Term
Sheets, shall circulate such corrected Computational Materials or Term
Sheets to all recipients of the prior versions thereof, and shall
deliver copies of such corrected Computational Materials or Term
Sheets (marked, "as corrected") to the Company for filing with the
Commission in a subsequent Form 8-K submission (subject to the
Company's obtaining an accountant's comfort letter in respect of such
corrected Computational Materials and Term Sheets, which shall be at
the expense of such Underwriter).
(vii) Such Underwriter shall be deemed to have
represented, as of the Closing Date, that except for Computational
Materials and/or Term Sheets provided to the Company pursuant to
subsection (iv) above, such Underwriter did
11
not provide any prospective investors with any information in written
or electronic form in connection with the offering of the Underwritten
Certificates that is required to be filed with the Commission in
accordance with the No-Action Letters.
(viii) In the event of any delay in the delivery by such
Underwriter to the Company of all Computational Materials and Term
Sheets required to be delivered in accordance with subsection (iv)
above, the Company shall have the right to delay the release of the
Prospectus to investors or to the Underwriter, to delay the Closing
Date and to take other appropriate actions in each case as necessary
in order to allow the Company to comply with its agreement set forth
in Section 5(g) to file the Computational Materials and Term Sheets by
the time specified therein.
(ix) Computational Materials and Term Sheets may be
distributed by the Underwriter through electronic means in accordance
with SEC Release No. 33-7233 or other applicable laws or regulations.
(c) Each Underwriter further agrees that it shall promptly
provide the Company with such information as to matters of fact as the Company
may reasonably request to enable it to comply with its reporting requirements
with respect to each class of Underwritten Certificates to the extent such
information can in the good faith judgment of the Underwriter be determined by
it.
5. COVENANTS OF THE COMPANY. The Company covenants and agrees
with the Underwriters that:
(a) The Company will not file any amendment to the Registration
Statement (other than by reason of Rule 429 under the ▇▇▇▇ ▇▇▇) or any
supplement to the Basic Prospectus relating to or affecting the Underwritten
Certificates, unless the Company has furnished a copy to you for your review
prior to filing, and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, the Company
will cause the Prospectus Supplement to be transmitted to the Commission for
filing pursuant to Rule 424 under the 1933 Act or will cause the Prospectus
Supplement to be filed with the Commission pursuant to said Rule 424. The
Company promptly will advise you or counsel for the Underwriters (i) when the
Prospectus Supplement shall have been filed or transmitted to the Commission
for filing pursuant to Rule 424, (ii) when any amendment to the Registration
Statement shall have become effective, (iii) of any request by the Commission
to amend the Registration Statement or supplement the Prospectus Supplement or
for any additional information in respect of the offering contemplated hereby,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereto which shall have become effective on or prior to the Closing Date or
the institution or threatening of any proceeding for that purpose, and (v) of
the receipt by the Company of any notification with respect to the suspension
of the
12
qualification of the Underwritten Certificates for sale in any jurisdiction or
the institution or threatening of any proceeding for that purpose. The Company
will use its best efforts to prevent the issuance of any such stop order or
suspension and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the
Underwritten Certificates is required to be delivered under the 1933 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
1933 Act or the rules and regulations thereunder, the Company promptly will
prepare and file with the Commission, at the expense of the Company, 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, the Company will use
its best efforts to cause such amendment to the Registration Statement to be
made effective as soon as possible.
(c) The Company will furnish to you and to counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date, and so long as delivery of a
prospectus by an Underwriter or dealer may be required by the 1933 Act, as many
copies of any Preliminary Prospectus Supplement, the Prospectus Supplement and
the Basic Prospectus and any amendments and supplements thereto as you may
reasonably request.
(d) The Company will furnish such information, execute such
instruments and take such action, if any, as may be required to qualify the
Underwritten Certificates for sale under the laws of such jurisdictions as you
may designate and will maintain such qualifications in effect so long as
required for the distribution of the Underwritten Certificates; provided,
however, that the Company shall not be required to qualify to do business in
any jurisdiction where it is not now qualified or to take any action that would
subject it to general or unlimited service of process in any jurisdiction where
it is not now subject to such service of process.
(e) The Company will pay, or cause to be paid, all costs and
expenses in connection with the transactions herein contemplated, 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 and the Underwritten Certificates; the fees and
disbursements of accountants for the Company; the reasonable out-of-pocket
costs and expenses in connection with the qualification or exemption of the
Underwritten Certificates under state securities or "blue sky" laws, including
filing fees and reasonable fees and disbursements of counsel in connection
therewith, in connection
13
with the preparation of any blue sky survey and in connection with any
determination of the eligibility of the Underwritten Certificates for
investment by institutional investors and the preparation of any legal
investment survey; the expenses of printing any such blue sky survey and legal
investment survey; the cost and expenses in connection with the preparation,
printing and filing of the Registration Statement (including exhibits thereto),
the Basic Prospectus, the Preliminary Prospectus Supplement, if any, and the
Prospectus Supplement, the preparation and printing of this Agreement and the
delivery to the Underwriters of such copies of the Basic Prospectus and each
Preliminary Prospectus Supplement, if any, and Prospectus Supplement as you may
reasonably request; the fees of the Rating Agencies that are rating the
Underwritten Certificates; and the reasonable fees and disbursements of counsel
to the Underwriters. Except as provided above or in Section 7, the Underwriters
shall be responsible for paying all other costs and expenses incurred by them
in connection with the purchase and sale of the Underwritten Certificates.
(f) To the extent that the Pooling and Servicing Agreement
provides that the Underwriters are to receive any notices or reports, or have
any other rights thereunder, the Company will enforce the rights of the
Underwriters under the Pooling and Servicing Agreement and will not consent to
any amendment of the Pooling and Servicing Agreement that would adversely
affect such rights of the Underwriters.
(g) The Company shall, as to itself, and the Company, or pursuant
to the Pooling and Servicing Agreement the Trustee, will be required to, as to
the Trust Fund, satisfy and comply with all reporting requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and the rules and
regulations thereunder. The Company will also file with the Commission a report
on Form 8-K setting forth all Computational Materials and Term Sheets provided
to the Company by an Underwriter and identified by it as such within the time
period allotted for such filing pursuant to the No-Action Letters; provided,
however, that prior to such filing of the Computational Materials and Term
Sheets by the Company, each Underwriter must comply with its obligations
pursuant to Section 4(b). The Company shall file any corrected Computational
Materials described in Section 4(b)(vi) as soon as practicable following
receipt thereof.
(h) The Company shall take all reasonable action necessary to
enable the Rating Agencies to provide their respective credit ratings of the
Certificates as described in the Prospectus.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligation of each Underwriter hereunder to purchase its allocated share of the
Underwritten Certificates shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as
of the date hereof, as of the date of the effectiveness of any amendment to the
Registration Statement filed prior to the Closing Date, as of the date the
Prospectus Supplement or any supplement thereto is filed with the
14
Commission and as of the Closing Date, to the accuracy of the statements of the
Company made in any certificates delivered pursuant to the provisions hereof,
to the performance by the Company of its obligations hereunder and to the
following additional conditions:
(a) The Registration Statement shall have become effective and no
stop order suspending the effectiveness of the Registration Statement, as
amended from time to time, shall have been issued and not withdrawn and no
proceedings for that purpose shall have been instituted or, to the Company's
knowledge, threatened; and the Prospectus Supplement shall have been filed or
transmitted for filing with the Commission in accordance with Rule 424 under
the 1933 Act;
(b) You shall have received from ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for
the Underwriters, an opinion, dated the Closing Date, that, subject to the
limitations and qualifications set forth therein, no information has come to
the attention of such counsel that causes such counsel to believe that (i) the
Prospectus Supplement, as of the date of the Prospectus Supplement or as of the
date of such opinion, or (ii) the Prospectus, as of the date of the Prospectus
Supplement or as of the date of such opinion, contained an untrue statement of
a material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (provided that no statement will be made with respect to
financial statements or supporting schedules and statistical and/or accounting
information included therein).
(c) The Company shall have delivered to you a certificate of the
Company, signed by an authorized officer of the Company and dated the Closing
Date, to the effect that: (i) the representations and warranties of the Company
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; and (ii)
the Company has in all material respects complied with all the agreements and
satisfied all the conditions on its part that are required hereby to be
performed or satisfied at or prior to the Closing Date; and FUNB shall have
delivered to you a certificate of FUNB, signed by an authorized officer of FUNB
and dated the Closing Date, of the President, a Senior Vice President or a Vice
President of FUNB to the effect that: (i) the representations and warranties of
FUNB in this Agreement are true and correct in all material respects at and as
of the Closing Date and with the same effect as if made on the Closing Date;
and (ii) FUNB has, in all material respects, complied with all the agreements
and satisfied all the conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date;
(d) You shall have received (i) with respect to FUNB, a
certificate of the Office of the Comptroller of the Currency and (ii) with
respect to the Company a good standing certificate from the Secretary of State
of the State of North Carolina, each dated not earlier than 30 days prior to
the Closing Date;
(e) (i) You shall have received from the Secretary or an
assistant secretary of the Company, in his individual capacity, a certificate,
dated the Closing Date, to the
15
effect that: (x) each individual who, as an officer or representative of the
Company, signed this Agreement, or any other document or certificate delivered
on or before the Closing Date in connection with the transactions contemplated
herein, 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; and (y) no event
(including, without limitation, any act or omission on the part of the Company)
has occurred since the date of the good standing certificate referred to in
paragraph 6(d) above which has affected the good standing of the Company under
the laws of the State of North Carolina. Such certificate shall be accompanied
by true and complete copies (certified as such by the Secretary or an assistant
secretary of the Company) of the certificate of incorporation and by-laws of
the Company, as in effect on the Closing Date, and of the resolutions of the
Company and any required shareholder consent relating to the transactions
contemplated in this Agreement; and (ii) you shall have received from the
Secretary or an assistant secretary of FUNB, in his individual capacity, a
certificate, dated the Closing Date, to the effect that: (x) each individual
who, as an officer or representative of FUNB, signed this Agreement or any
other document or certificate delivered on or before the Closing Date in
connection with the transactions contemplated herein, 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; and (y) no event (including, without limitation, any
act or omission on the part of FUNB) has occurred since the date of the
certificate referred to in paragraph 6(d) above which has affected the
existence of FUNB under the laws of the United States of America. Such
certificate shall be accompanied by true and complete copies (certified as such
by the Secretary or an assistant secretary of FUNB) of the articles of
association and by-laws of FUNB, as in effect on the Closing Date, and of the
resolutions of FUNB and any required shareholder consent relating to the
transactions contemplated in this Agreement;
(f) You shall have received from ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, special
counsel for the Company, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to you and counsel for the Underwriters, to
the effect that:
(i) The Registration Statement and any amendments
thereto have become effective under the 1933 Act; to the best
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement, as amended, has been issued and not
withdrawn, no proceedings for that purpose have been instituted or
threatened and not terminated; and the Registration Statement, the
Basic Prospectus, the Prospectus Supplement and each amendment or
supplement thereto, as of their respective effective or issue dates
(other than the financial statements, schedules and other financial
and statistical information 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 1933 Act
16
and the rules and regulations thereunder; and such counsel has no reason to
believe that (A) the Registration Statement (which, for purposes of this
clause, shall be deemed not to include any exhibits filed therewith), or any
amendment thereto, at the time it became effective, contained or, as of the
date of such opinion, contains any untrue statement of a material fact or
omitted or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, or that (B) the
Prospectus, as amended or supplemented, as of the respective date thereof and
at the date hereof, contained or contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading (other than the financial statements, schedules and other
financial and statistical information contained therein as to which such
counsel need express no opinion);
(ii) To the best knowledge of such counsel, there are no
material contracts, indentures or other documents of a character
required to be described or referred to in the Registration Statement,
as amended, or the Prospectus or to be filed as exhibits to the
Registration Statement, as amended, other than those described or
referred to therein or filed or incorporated by reference as exhibits
thereto;
(iii) Assuming this Agreement has been duly authorized,
executed and delivered by the Company and FUNB, it constitutes a
valid, legal, binding and enforceable agreement of each of the Company
and FUNB, subject, as to enforceability, to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally, to general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or at law and
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 purports to provide
indemnification from securities law liabilities;
(iv) [Reserved]
(v) The statements set forth in the Prospectus
Supplement under the heading "Description of the Certificates",
insofar as such statements purport to summarize material terms of the
Underwritten Certificates, are correct in all material respects;
(vi) The statements set forth in the Basic Prospectus and
the Prospectus Supplement under the headings "Material Federal Income
Tax Consequences", "ERISA Considerations" and "Legal Investment", to
the extent that they constitute matters of federal law or legal
conclusions with respect thereto, are correct in all material respects
with respect to those consequences or aspects that are discussed;
(vii) [Reserved]
17
(viii) [Reserved]
(ix) No consent, approval, authorization or order of any
State of New York or federal court or governmental agency or body is
required for the consummation by the Company of the transactions
contemplated herein, except (A) such as have been obtained under the
1933 Act; (B) such as may be required under the blue sky laws of any
jurisdiction in connection with the offer and sale of the Underwritten
Certificates by the Underwriters, as to which such counsel need
express no opinion; and (C) any recordation of the assignments of the
Mortgage Loans pursuant to the Pooling and Servicing Agreement that
has not yet been completed; and
(x) Assuming compliance with all provisions of the
Pooling and Servicing Agreement, (i) REMIC I and REMIC II will each
qualify as a real estate mortgage investment conduit (a "REMIC")
within the meaning of Sections 860A through 860G (the "REMIC
Provisions") of the Internal Revenue Code of 1986, as amended, (the
"Code"), (ii) the REMIC I Regular Interests and the Regular
Certificates will be "regular interests" (within the meaning of
Section 860G(a)(1) of the Code) in REMIC I and REMIC II, respectively,
(iii) the Class R-I Certificates and the Class R-II Certificates will
be the sole class of "residual interests" (within the meaning of
Section 860G(a)(2) of the Code) in REMIC I and REMIC II, respectively,
and (iv) the portion of the Trust Fund consisting of Grantor Trust
Assets will be treated as a grantor trust for federal income tax
purposes and the Class Z-I Certificates and the Class Z-II
Certificates will represent undivided beneficial interests in the
Grantor Trust Assets.
With respect to such opinion, such counsel may express its reliance as
to factual matters on the representations and warranties made by, and on
certificates or other documents furnished by officers of, the parties to this
Agreement and the Pooling and Servicing Agreement; may assume the due
authorization, execution and delivery of the instruments and documents referred
to therein by the parties thereto other than the Company; may qualify such
opinion only as to the federal laws of the United States of America, the laws
of the State of New York, the laws of the State of North Carolina and the
corporation law of the State of Delaware; and may, to the extent deemed
necessary by such counsel, rely on the opinion of counsel in the regular employ
of the Company or any affiliate of the Company or independent North Carolina
counsel. Such counsel shall also confirm that the Underwriters may rely, on and
as of the Closing Date, on any opinion or opinions of such counsel submitted to
any Rating Agency as if addressed to the Underwriters and dated the Closing
Date;
(g) You shall have received from Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP,
counsel for Artesia Mortgage Capital Corporation, a favorable opinion, dated
the Closing Date and satisfactory in form and substance to you and counsel for
the Underwriters, to the effect that the Loan REMIC will qualify as a REMIC
under the REMIC Provisions;
18
(h) You shall have received from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, counsel for
the Company and FUNB, a favorable opinion, dated the Closing Date and
satisfactory in form and substance to you and counsel for the Underwriters, to
the effect that:
(i) The Company is a corporation in good standing under
the laws of the State of North Carolina and has the corporate power
and authority to enter into and perform its obligations under this
Agreement.
(ii) Neither the sale of the Underwritten Certificates,
nor the execution or delivery of or performance under this Agreement,
nor the consummation of any other of the transactions contemplated
herein will conflict with or result in a breach or violation of any
term or provision of, or constitute a default (or an event which with
the passing of time or notification, or both, would constitute a
default) under, the certificate of incorporation or by-laws of the
Company, or, to the knowledge of such counsel, any indenture or other
agreement or instrument to which the Company is a party or by which it
is bound, or any State of North Carolina or federal statute or
regulation applicable to the Company, or, to the knowledge of such
counsel, any order of any State of North Carolina or federal court,
regulatory body, administrative agency or governmental body having
jurisdiction over the Company.
(iii) FUNB is a national banking association validly
existing under the laws of the United States of America and possesses
all requisite power and authority to enter into and perform its
obligations under this Agreement.
(iv) To the best knowledge of such counsel, there are no
actions, proceedings or investigations pending before or threatened by
any court, administrative agency or other tribunal to which the
Company is a party or of which any of its properties is the subject
(a) which if determined adversely to the Company would have a material
adverse effect on the business or financial condition of the Company,
(b) asserting the invalidity of this Agreement or the Underwritten
Certificates, (c) seeking to prevent the sale of the Underwritten
Certificates or the consummation by the Company of any of the
transactions contemplated by this Agreement, as the case may be, or
(d) which might materially and adversely affect the performance by the
Company of its obligations under, or the validity or enforceability
of, this Agreement or the Underwritten Certificates;
(v) This Agreement has been duly authorized, executed
and delivered by each of the Company and FUNB.
(vi) No consent, approval, authorization or order of any
federal or state court or governmental agency or body is required for
the consummation by FUNB or the Company of the transactions
contemplated by this Agreement, except those consents, approvals,
authorizations or orders that previously have been obtained
19
or as may be required under federal or state securities laws, as to
which such counsel expresses no opinion.
(vii) The fulfillment of the terms of this Agreement will
not conflict with or result in a breach or violation of any term or
provision of, or constitute a default (or an event which with the
passing of time or notification, or both, would constitute a material
default) under, the articles of association or by-laws of FUNB or, to
such counsel's knowledge, any contract, agreement or other instrument
to which FUNB is a party or by which it is bound, or any federal
statute or regulation applicable to FUNB or, to such counsel's
knowledge, any order of any federal court, regulatory body,
administrative agency or governmental body having jurisdiction over
FUNB.
(viii) To the best knowledge of such counsel, there are no
actions, proceedings or investigations pending before or threatened by
any court, administrative agency or other tribunal to which FUNB is a
party or of which any of its properties is the subject (a) which, if
determined adversely to FUNB, would have a material adverse effect on
the business or financial condition of FUNB, (b) asserting the
invalidity of this Agreement, (c) seeking to prevent the consummation
by FUNB of any of the transactions contemplated by this Agreement or
(d) which might materially and adversely affect the performance by
FUNB of its obligations under, or the validity or enforceability of
this Agreement.
(i) You shall have received from KPMG LLP, certified public
accountants, a letter satisfactory in form and substance to you and counsel for
the Underwriters, to the following effect:
(1) 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 captions "Summary of the
Prospectus Supplement," "Description of the Mortgage
Pool" and "Yield and Maturity Considerations" and on
Annex A agrees with the Master Tape prepared by or
on behalf of the Mortgage Loan Sellers, unless
non-material deviations are otherwise noted in such
letter; and
(2) they have compared the data contained in the Master
Tape referred to in the immediately preceding clause
(1) 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
in all material respects, unless non-material
deviations are otherwise noted in such letter;
20
(j) You shall have received written confirmation from the Rating
Agencies that the ratings assigned to the Underwritten Certificates on the
Closing Date are as described on Schedule I hereto and that, as of the Closing
Date, no notice has been given of (i) any intended or possible downgrading or
(ii) any review or possible changes in such ratings;
(k) [Reserved]
(l) You shall have received from the Secretary or an assistant
secretary of the Trustee, in his individual capacity, a certificate, dated the
Closing Date, to the effect that the information under the heading "Description
of the Certificates - The Trustee" in the Prospectus Supplement is true and
correct in all material respects;
(m) You shall have received from Kennedy, Covington, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel for the Trustee, a favorable opinion, dated the Closing Date,
in form and substance satisfactory to the Underwriters and counsel for the
Underwriters;
(n) [Reserved]
(o) You shall have received from the Secretary or an assistant
secretary of the Master Servicer, in his individual capacity, a certificate,
dated the Closing Date, to the effect that the information relating to the
Master Servicer under the heading "Servicing of the Mortgage Loans--The Master
Servicer and the Special Servicer" in the Prospectus Supplement, is true and
correct in all material respects;
(p) You shall have received from Parker, Poe, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
L.L.P., counsel for the Master Servicer, a favorable opinion, dated the Closing
Date, in form and substance satisfactory to the Underwriters and counsel for
the Underwriters;
(q) [Reserved]
(r) You shall have received from the Secretary or an assistant
secretary of the Special Servicer, in his individual capacity, a certificate,
dated the Closing Date, to the effect that the information relating to the
Special Servicer under the heading "Servicing of the Mortgage Loans--The Master
Servicer and the Special Servicer" in the Prospectus Supplement, is true and
correct in all material respects;
(s) You shall have received from Bilzin ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Price
& ▇▇▇▇▇▇▇ LLP, counsel for the Special Servicer, a favorable opinion, dated the
Closing Date, in form and substance satisfactory to the Underwriters and
counsel for the Underwriters;
(t) You shall have received from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, counsel for
FUNB, as Mortgage Loan Seller, a favorable opinion, dated the Closing Date, in
form the substance satisfactory to the Underwriters and counsel for the
Underwriters;
21
(u) You shall have received from ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, special
counsel to the Company, any opinions supplied to the Rating Agencies relating
to certain matters with respect to the Underwritten Certificates, the transfer
of the Mortgage Loans and any other matters related thereto. Any such opinions
shall be dated the Closing Date and addressed to the Underwriters; and
(v) All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto shall be
satisfactory in form and substance to you and counsel for the Underwriters, and
you and such counsel shall have received such additional information,
certificates and documents as you or they may have reasonably requested.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
if the Company is in breach of any covenants or agreements contained herein or
if any of the opinions and certificates referred to above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to you 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 you. Notice of such cancellation shall be given
to the Company in writing, or by telephone or telegraph confirmed in writing.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Underwritten Certificates provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth in Section 6 is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof,
other than by reason of a default by any of the Underwriters, the Company 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
the Underwritten Certificates.
8. INDEMNIFICATION.
(a) The Company and FUNB, jointly and severally, agree to
indemnify and hold harmless each Underwriter, its directors and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Basic Prospectus, any Preliminary
Prospectus
22
Supplement or the Prospectus Supplement (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of 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 the foregoing indemnity shall not inure to the
benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting claims
giving rise to any such losses, claims, damages, expenses or
liabilities purchased Underwritten Certificates if such untrue
statement or omission or alleged untrue statement or omission made in
any Preliminary Prospectus Supplement or Prospectus is eliminated or
remedied in the Prospectus or a corrected and amended Prospectus, as
applicable, and, if required by law, a copy of the Prospectus shall
not have been furnished to such person at or prior to the written
confirmation of the sale of such Certificates to such person;
provided, however, that this indemnity agreement shall not apply to
any loss, liability, claim, damage or expense to the extent any such
untrue statement or alleged untrue statement or omission or alleged
omission arises out of or is based upon an untrue statement or
omission with respect to information subject to the provisions of
Section 7 of each of the related Mortgage Loan Purchase Agreements
(the "Mortgage Loan Seller Covered Information"); provided further
that, the indemnification provided by this Section 8 shall not apply
to the extent that such untrue statement or omission of a material
fact was made as a result of an error in the manipulation of, or in
any calculations based upon, or in any aggregation of the information
regarding the Mortgage Loans, the related Mortgagors and/or the
related Mortgaged Properties set forth in the Master Tape or Annex A
to the Prospectus Supplement to the extent such information was
materially incorrect in the Master Tape or such Annex A, as
applicable, including without limitation the aggregation of such
information relating to the Mortgage Loans in the Trust Fund or the
information provided by the related Mortgage Loan Sellers
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by such
Underwriter), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
23
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information (as specified in Section 8(b)
below) furnished to the Company by such Underwriter expressly for use in the
Registration Statement (or any amendment thereto) or in the Basic Prospectus,
any Preliminary Prospectus Supplement or the Prospectus Supplement (or any
amendment or supplement thereto).
(b) Each Underwriter, severally but not jointly, agrees to
indemnify and hold harmless the Company, its directors, each of its officers
who signed the Registration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or in the Basic Prospectus, any Preliminary Prospectus
Supplement or the Prospectus Supplement (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter expressly for use in the Registration
Statement (or any amendment thereto) or in the Basic Prospectus, such
Preliminary Prospectus Supplement or the Prospectus Supplement (or any
amendment or supplement thereto); in addition, each Underwriter, severally but
not jointly, shall indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of either Section 15 of the 1933
Act or Section 20 of the 1934 Act, against any and all losses, liabilities,
claims and damages as incurred arising out of any untrue statement or alleged
untrue statement of a material fact or omission or alleged omission of a
material fact contained in any Term Sheets or Computational Materials which,
when read together with any Preliminary Prospectus Supplement and the
Prospectus Supplement, was required to be stated therein or necessary to make
the statements therein not misleading; provided, that no such material
misstatement or omission arises from an error or omission in information
relating to the underlying data regarding the Mortgage Loans or the related
Mortgagors or Mortgaged Properties provided by the Company to such Underwriter;
and provided, further, that any such Term Sheets or Computational Materials
were prepared by such Underwriter and distributed by such Underwriter.
It is hereby acknowledged that (i) the statements set forth in the first,
second, third fourth and sixth sentences of the second to last paragraph on the
cover of the Prospectus Supplement, (ii) the statements in the second
paragraph, the third paragraph and the first sentence of the seventh paragraph
under the caption "Method of Distribution" in the Prospectus Supplement and
(iii) the statements in any Computational Materials and Term Sheets delivered
by the Underwriters to the Company for filing with the Commission pursuant to
this Agreement and the No-Action Letters, constitute the only written
information furnished to the Company by the Underwriters expressly for use in
the
24
Registration Statement (or any amendment thereto) or in the Basic Prospectus,
the Preliminary Prospectus Supplement or the Prospectus Supplement (or any
amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account of this
indemnity agreement. An indemnifying party may participate at its own expense
in the defense of any such action and, to the extent that it may elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from the indemnified party, to assume the defense thereof,
with counsel satisfactory to such indemnified party. In any such proceeding,
any indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have
agreed to the retention of such counsel, or (ii) the indemnifying party shall
not have assumed the defe nse of such action, with counsel satisfactory to the
indemnified party, within a reasonable period following the indemnifying
party's receiving notice of such action, or (iii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. In no event shall the indemnifying party or parties be liable for
fees and expenses of more than one counsel (or, in the event the Company is the
indemnifying party, one counsel for each Underwriter) (in addition to any local
counsel) separate from its or their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. Unless it shall assume the defense of any proceeding, an
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but, if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party shall
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. If an indemnifying party assumes the
defense of any proceeding, it shall be entitled to settle such proceeding with
the consent of the indemnified party or, if such settlement provides for
release of the indemnified party in connection with all matters relating to the
proceeding that have been asserted against the indemnified party in such
proceeding by the other parties to such settlement, without the consent of the
indemnified party.
(d) The indemnity agreements contained in this Section 8 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by the Company, the
Underwriters, any of their respective directors or officers, or any person
controlling the Company or the Underwriters, and (iii) acceptance of and
payment for any of the Underwritten Certificates.
25
(e) Each Underwriter, severally but not jointly, will indemnify
and hold harmless any other Underwriter and each person, if any, who controls
such Underwriter within the meaning of either the 1933 Act or the 1934 Act
(collectively, the "Non-Indemnifying Underwriter") from and against any and all
loss, liability, claim, damage and expense whatsoever, as incurred that arise
out of or are based upon (i) any untrue statement of material fact contained in
any Computational Materials or Term Sheets (other than the Computational
Materials and Term Sheets attached hereto as Exhibit A and Exhibit B) prepared
by such indemnifying Underwriter or any member of its selling group, in
connection with the Underwritten Certificates or in any revision or amendment
thereof or supplement thereto or (ii) the failure of such indemnifying
Underwriter, or any member of its selling group, to comply with any provision
of Section 4(b) hereof, and agrees to reimburse each such Non-Indemnifying
Underwriter, as incurred for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, liability,
claim, damage or expense; provided, that the indemnity provided by this Section
8(e) shall not apply to the extent that such indemnifying Underwriter is
entitled under any Mortgage Loan Purchase Agreement to seek indemnity for such
loss, liability, claim, damage or expense from a Mortgage Loan Seller
affiliated with the Underwriter seeking indemnification. This indemnity
agreement will be in addition to any liability that any Underwriter may
otherwise have.
9. CONTRIBUTION.
(a) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, or if such indemnification provided
for in Section 8 hereof is insufficient in respect of any losses, liabilities,
claims or damages referred to therein, the Company and the Underwriters shall
contribute to the aggregate losses, liabilities, claims, damages and expenses
of the nature contemplated by said indemnity agreement incurred by the Company
and the Underwriters, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and each
Underwriter on the other from the offering of the Underwritten 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 Company on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission; provided, however, that no person guilty of
fraudulent
26
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation; and provided, further, that in no event shall any
Underwriter be obligated to contribute more than its share of the underwriting
discounts and commissions pertaining to the Underwritten Certificates less any
damages otherwise paid by such Underwriter with respect to such loss,
liability, claim, damage or expense. It is hereby acknowledged that the
respective Underwriters' obligations under this Section 9 shall be several and
not joint. For purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, and such Underwriter's directors, shall have the same rights to
contribution as such Underwriter, and each director of the Company, each
officer of the Company who signed the Registration Statement, and each person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company.
(b) The parties hereto agree that it would not be just and
equitable if contribution were determined by pro rata allocation or by any
other method of allocation that does not take account of the considerations
referred to in subsection (a) above. The amount paid or payable by an
indemnified party as a result of the losses, liabilities, claims or damages
referred to in Section 8 or this Section 9 shall be deemed to include any legal
fees and disbursements or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such claim
except where the indemnified party is required to bear such expenses, which
expenses the indemnifying party shall pay as and when incurred, at the request
of the indemnified party, to the extent that it is reasonable to believe that
the indemnifying party will be ultimately obligated to pay such expenses. In
the event that any expenses so paid by the indemnifying party are subsequently
determined to not be required to be borne by the indemnifying party hereunder,
the party which received such payment shall promptly refund the amount so paid
to the party which made such payment. The remedies provided for in Section 8
and this Section 9 are not exclusive and shall not limit any rights or remedies
that may otherwise be available to any indemnified party at law or in equity.
(c) The contribution agreements contained in this Section 9 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by the Company, the
Underwriters, any of their respective directors or officers, or any person
controlling the Company or the Underwriters, and (iii) acceptance of and
payment for any of the Underwritten Certificates.
10. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters
shall fail to purchase and pay for any of the Underwritten Certificates agreed
to be purchased by such Underwriter or Underwriters hereunder and such failure
to purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally (in the respective proportions which the portion
27
of the Underwritten Certificates set forth opposite their names in Schedule II
hereto bears to the aggregate amount of Underwritten Certificates set forth
opposite the names of all the remaining Underwriters) to purchase the
Underwritten Certificates that the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that in the event that the
amount of Underwritten Certificates that the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of Underwritten Certificates set forth in Schedule II hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Underwritten Certificates, and
if such nondefaulting Underwriters do not purchase all of the Underwritten
Certificates, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company, except as provided in Section 11 or
Section 12. In the event of a default by any Underwriter as set forth in this
Section 10, the Closing Date for the Underwritten Certificates shall be
postponed for such period, not exceeding ten business days, as you shall
determine in order that the required changes in the Registration Statement and
the Prospectus Supplement or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter, or by
or on behalf of the Company, or by or on behalf of any of the controlling
persons and officers and directors referred to in Sections 8 and 9, and shall
survive delivery of the Underwritten Certificates to the Underwriters.
12. TERMINATION OF AGREEMENT; SURVIVAL.
(a) The Underwriters may terminate this Agreement, by notice to
the Company, at any time at or prior to the Closing Date (i) if there has
occurred, since the date of this Agreement or since the respective dates as of
which information is given in the Registration Statement and the Prospectus,
any material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company or of any
Mortgage Loan Seller, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any outbreak of hostilities or
escalation thereof or other calamity or crisis, the effect of which is such as
to make it, in the reasonable judgment of any Underwriter, impracticable or
inadvisable to market the Underwritten Certificates or to enforce contracts for
the sale of the Underwritten Certificates, or (iii) if trading in any
securities of the Company or of any Mortgage Loan Seller has been suspended or
limited by the Commission, the New York Stock Exchange or the Nasdaq National
Market, or if trading generally on the American Stock Exchange or the New York
Stock Exchange or on the Nasdaq National Market has been suspended or limited,
or minimum or maximum prices for trading have been fixed, or maximum
28
ranges for prices have been required, by any of said exchanges or by such
system or by order of the Commission, the National Association of Securities
Dealers, Inc. or any other governmental authority, or a material disruption has
occurred in securities settlement or clearance services in the United States or
with respect to Clearstream or Euroclear systems in Europe, or (iv) if a
banking moratorium has been declared by either federal or New York authorities
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party,
except as provided in Section 11 or Section 12 (c).
(c) The provisions of Section 5(e) regarding the payment of costs
and expenses and the provisions of Sections 8 and 9 hereof shall survive the
termination of this Agreement.
29
13. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to One First Union Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: R. ▇▇▇▇ ▇▇▇▇▇▇▇▇, to
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Real Estate Investment
Banking, and to Greenwich Capital Markets, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇; notices to FUNB shall be
directed to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. Cohone and notices to the Company shall be directed to it
at First Union Commercial Mortgage Securities, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: President; or, in either case,
such other address as may hereafter be furnished by the Underwriters, FUNB or
the Company to the other such parties in writing.
14. PARTIES. This Agreement shall inure to the benefit of and be
binding upon each of the Underwriters, the Company and FUNB and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Company and FUNB and their respective successors and
the controlling persons and officers and directors referred to in Sections 8
and 9 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Company and
FUNB and their respective successors, and said controlling persons and officers
and directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Underwritten Certificates
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
15. APPLICABLE LAW; COUNTERPARTS. This Agreement will be governed
by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed entirely in said State. 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.
30
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
Company, FUNB and the several Underwriters.
Very truly yours,
FIRST UNION COMMERCIAL
MORTGAGE SECURITIES, INC.
By:
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Title: Director/Vice President
-------------------------------------
FIRST UNION NATIONAL BANK
By:
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Title: Vice President
-------------------------------------
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
FIRST UNION SECURITIES, INC.
By:
----------------------------------------
Name: F. ▇▇▇▇▇ ▇'▇▇▇▇▇▇
--------------------------------------
Title: Vice President
-------------------------------------
31
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
GREENWICH CAPITAL MARKETS, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
32
SCHEDULE I
UNDERWRITING AGREEMENT DATED DECEMBER 6, 2001:
As used in this Schedule I, the term "Registration Statement" refers to
registration statement No. 333-68246 filed by the Company on Form S-3 and
declared effective on November 14, 2001. The term "Basic Prospectus" refers to
the form of prospectus in the Registration Statement or such later form as most
recently filed by the Company pursuant to Rule 424(b) under the Securities Act
of 1933, as amended. The term "Prospectus Supplement" refers to the supplement
dated December 6, 2001 to the Basic Prospectus, relating to the mortgage
pass-through certificates being sold pursuant to the Underwriting Agreement
(the "Underwritten Certificates").
MORTGAGE POOL:
One hundred thirty-seven commercial and multifamily mortgage loans, having an
aggregate principal balance, after giving effect to payments of principal due
on or before December 1, 2001, and with respect to one Mortgage Loan, December
10, 2001, (the "Cut-Off Date") of $978,559,069, as described in the Prospectus
Supplement, and otherwise complying in all material respects with the
description thereof set forth in the Prospectus Supplement.
TITLE, PURCHASE PRICE AND DESCRIPTION OF UNDERWRITTEN CERTIFICATES:
First Union Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates FUNB Series 2001-C4, Class A-1, Class A-2, Class B, Class C, Class
D and Class E.
Closing Date Purchase
Aggregate Pass- Price
Certificate Through ▇▇▇▇▇'▇/S&P Percentage
Designation Principal Balance Rate Rating(1) (2)
----------- ----------------- ------- ----------- ----------
Class A-1 $286,136,000 5.673% Aaa/AAA 100.0029
Class A-2 $469,800,000 6.223% Aaa/AAA 100.5039
Class B $ 36,696,000 6.417% Aa2/AA 100.5007
Class C $ 12,232,000 6.538% Aa3/AA- 100.5027
Class D $ 12,232,000 6.617% A1/A+ 100.5061
Class E $ 17,125,000 6.667% A2/A 100.5037
---------
(1) By each of ▇▇▇▇▇'▇ Rating Services, Inc. and Standard & Poor's Ratings
Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
(2) There shall be added to the purchase price for each Class of
Underwritten Certificates accrued interest, if any, at the initial
Pass-Through Rate for such Class from December 1, 2001, up to, but not
including, the Closing Date.
Credit Support and Other Terms and Conditions of the Underwritten
Certificates: As described in the Prospectus Supplement.
Closing Date and Location: 10:00 a.m. (New York City time) on December
20, 2001 at the offices of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, Charlotte, North Carolina;
except that delivery of the Underwritten Certificates shall be made through the
facilities of The Depository Trust Company.
Initial Public Offering Price: The Underwritten Certificates will be offered to
the public in negotiated transactions or otherwise at varying prices to be
determined at the time of sale.
-2-
SCHEDULE II
Underwriting Agreement dated December 6, 2001
Approximate Aggregate Principal Amount of Certificates to Underwriters
Class to be Purchased by First Union Securities, Inc.
Class A-1 $208,401,962
Class A-2 $317,170,302
Class B $ 26,726,865
Class C $ 8,908,955
Class D $ 8,908,955
Class E $ 12,472,683
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
Class A-1 $ 77,734,038
Class A-2 $127,629,698
Class B $ 9,969,135
Class C $ 3,323,045
Class D $ 3,323,045
Class E $ 4,652,317
Greenwich Capital Markets, Inc.
Class A-2 $25,000,000
-3-