EXECUTION
MIDLAND REALTY ACCEPTANCE CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-C1, CLASS A-1, CLASS A-2, CLASS A-3, CLASS B,
CLASS C, CLASS D, CLASS E AND CLASS F
UNDERWRITING AGREEMENT
New York, New York
As of September 23, 1996
Prudential Securities Incorporated
One New York Plaza, 18th Floor
New York, New York 10292-2015
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Midland Realty Acceptance Corp., a Missouri corporation (the "Company"),
proposes to issue and sell, pursuant to the terms of this Underwriting Agreement
(this "Underwriting Agreement") to Prudential Securities Incorporated ("PSI")
and to ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ("SBI"), as underwriters (PSI and SBI each, an
"Underwriter" and together, the "Underwriters"), the Midland Realty Acceptance
Corp., Commercial Mortgage Pass-Through Certificates, Series 1996-C1, Class A-1,
Class A-2, Class A-3, Class B, Class C, Class D, Class E and Class F
(collectively, the "Publicly Offered Certificates"). The Publicly Offered
Certificates constitute a portion of the Midland Realty Acceptance Corp.,
Commercial Mortgage Pass-Through Certificates, Series 1996-C1 (the
"Certificates"), consisting of seventeen classes, Class A-1, Class A-2, Class
A-3, Class A-EC, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K-1, Class K-2, Class R-I, Class R-II and Class R-III. The
Certificates are being issued pursuant to that certain Pooling and Servicing
Agreement, dated as of September 1, 1996 (the "Pooling and Servicing Agreement";
capitalized terms used herein without definitions shall have the meanings given
such terms in the Pooling and Servicing Agreement), by and among the Company, as
the Depositor, Midland Loan Services, L.P., a Missouri limited partnership
("Midland"), as Servicer and as Special Servicer, LaSalle National Bank, as
Trustee, and ABN AMRO Bank N.V., as Fiscal Agent, and the Publicly Offered
Certificates
NY1-453808
1
have the respective initial aggregate approximate Certificate Balances set forth
on Schedule I hereto. The Certificates will represent, in the aggregate, the
entire beneficial ownership interest in a separate trust fund (the "Trust Fund")
to be created by the Depositor. The Trust Fund will consist primarily of a pool
(the "Mortgage Pool") of 143 "whole" mortgage loans (the "Mortgage Loans"),
secured by first liens on commercial and multifamily residential properties
(each, a "Mortgaged Property"). The Mortgaged Properties consist of multifamily
residential housing, nursing homes, congregate care facilities, retail
properties, office buildings, mini warehouse facilities, industrial properties,
hotels, mobile home parks and mixed use properties.
The sale of the Publicly Offered Certificates is to occur simultaneously
with the separate offering of the Midland Realty Acceptance Corp., Commercial
Mortgage Pass-Through Certificates, Series 1996-C1, Class A-EC, Class G, Class
H, Class J, Class K-1, Class K-2, Class R-I, Class R-II and Class R-III (the
"Privately Placed Certificates"), which are being issued pursuant to the Pooling
and Servicing Agreement and sold to PSI and SBI, as placement agents (PSI and
SBI each, a "Placement Agent" and together, the "Placement Agents"), pursuant to
that certain Certificate Purchase Agreement, dated as of the date hereof (the
"Certificate Purchase Agreement") among the Company and the Placement Agents.
The Placement Agents will privately offer such Privately Placed Certificates
pursuant to the exemption from registration provided by Section 4(2) of the
Securities Act of 1933, as amended (the "1933 Act") and Regulation D thereunder,
as further described in that certain Private Placement Memorandum dated
September 24, 1996 (the "Private Placement Memorandum").
The MCFC Loans will be purchased by the Company from MCFC pursuant to that
certain Mortgage Loan Purchase and Sale Agreement, dated September 25, 1996 (the
"MCFC Mortgage Loan Purchase and Sale Agreement"), among MCFC, Midland and the
Company. The Midland Loans will be purchased by the Company pursuant to that
certain Mortgage Loan Purchase and Sale Agreement, dated September 25, 1996 (the
"Midland Mortgage Loan Purchase and Sale Agreement"), between Midland and the
Company. The ▇▇▇▇▇ ▇▇▇▇▇▇ Loans will be purchased by Midland from SBMCG pursuant
to that certain Mortgage Loan Purchase and Sale Agreement, dated September 25,
1996 (the "SBMCG Mortgage Loan Purchase and Sale Agreement"), between SBMCG and
Midland, and Midland will transfer the ▇▇▇▇▇ ▇▇▇▇▇▇ Loans to the Company
pursuant to that certain Mortgage Loan Purchase and Sale Agreement, dated
September 25, 1996 (the "Midland/SBMCG Mortgage Loan Purchase and Sale
Agreement"), between Midland and the Company. Pursuant to the Pooling and
Servicing Agreement, the Mortgage Loans will be transferred by the Depositor to
the Trustee, for the benefit of the Certificateholders, in exchange for the
Certificates.
Subject to the terms and conditions and in reliance on the representations
and warranties herein set forth, the Company agrees to sell to each Underwriter,
and each Underwriter agrees to purchase from the Company, the percentage
interests set forth by its name on Schedule I hereto in the respective Classes
of Publicly Offered Certificates, at the purchase price for each such Class as
set forth on Schedule I.
NY1-453808
2
1. Offering by the Underwriters. Upon the execution of this Underwriting
Agreement and the authorization by the Underwriters of the release of the
Publicly Offered Certificates, the Underwriters propose to offer for sale to the
public the Publicly Offered Certificates at the price and upon the terms set
forth in the Final Prospectus (as hereinafter defined).
2. Conditions of the Underwriters' Obligations. The obligation of the
Underwriters hereunder to purchase the Publicly Offered 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 and as of the Closing Date, to
the accuracy of the statements of the Company, Midland and any of their
Affiliates, made in any certificate pursuant to the provisions hereof, to the
performance by the Company in all material respects of its obligations hereunder
and to the following additional conditions:
(a) All actions required to be taken and all filings required to be
made by or on behalf of the Company under the 1933 Act and the Securities
Exchange Act of 1934, as amended (the "1934 Act"), prior to the sale of the
Publicly Offered Certificates shall have been duly taken or made.
(b) The Underwriters shall have received on the Closing Date an
Officer's Certificate of the Company, dated the Closing Date, to the effect
that: (i) no stop order suspending the effectiveness of the Company's
registration statement (Registration No. 333-3885) (the "Registration
Statement") shall be in effect, (ii) no proceedings for such purpose shall
be pending before or threatened by the Securities and Exchange Commission
(the "Commission"), or by any authority administering any state securities
or "Blue Sky" laws, (iii) any requests for additional information on the
part of the Commission shall have been complied with to the Underwriter's
reasonable satisfaction, (iv) since the respective dates as of which
information is given in the Registration Statement, the Prospectus, dated
as of September 23, 1996 (the "Prospectus") and the Prospectus Supplement,
dated as of September 23, 1996 (the "Prospectus Supplement"; together with
the Prospectus, the "Final Prospectus") and except as otherwise stated
therein, there shall have been no material adverse change in the condition,
financial or otherwise, earnings, affairs, regulatory situation or business
prospects of the Company, (v) there are no material actions, suits or
proceedings pending (or, to the best knowledge of the Company, threatened)
before any court or governmental agency, authority or body, affecting the
Company or the transactions contemplated by this Underwriting Agreement and
(vi) the Company is not in violation of its Articles of Incorporation, as
amended, or its by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
pooling and servicing agreement, indenture, mortgage, loan agreement, note,
lease or other instrument to which it is a party or by which it or its
properties may be bound, which violations or defaults separately or in the
aggregate would have a material adverse effect on the Company.
NY1-453808
3
(c) Subsequent to the execution of this Underwriting Agreement, there
shall not have occurred any of the following: (i) if at or prior to the
Closing Date, trading in securities on the New York Stock Exchange, London
Stock Exchange or Tokyo Stock Exchange shall have been suspended or any
material limitation in trading in securities generally shall have been
established on such exchange, or a banking moratorium shall have been
declared by New York or United States authorities or (ii) if at or prior to
the Closing Date, there shall have been an outbreak of hostilities between
the United States and any foreign power, or of any other insurrection or
armed conflict involving the United States which results in the declaration
of a national emergency or war, and, in the reasonable opinion of the
Underwriters, makes it impracticable or inadvisable to offer or sell the
Publicly Offered Certificates.
(d) The Underwriters shall have received written notification from each
of S&P and Duff & ▇▇▇▇▇▇ to the effect that the Publicly Offered
Certificates have been rated no lower than the required ratings set forth
in Schedule I hereto, and as of the Closing Date, such rating or ratings
shall not have been rescinded and there shall not have been any
downgrading, or public notification of a possible downgrading, or public
notification of a possible change without indication of direction.
(e) The Publicly Offered Certificates, the MCFC Mortgage Loan Purchase
and Sale Agreement, the Midland Mortgage Loan Purchase and Sale Agreement,
the SBMCG Mortgage Loan Purchase and Sale Agreement, Midland/SBMCG Mortgage
Loan Purchase and Sale Agreement, the Pooling and Servicing Agreement and
this Underwriting Agreement shall have been duly authorized, executed and
delivered by the respective parties thereto and shall be in full force and
effect.
(f) The Company shall have delivered to the Underwriters an Officer's
Certificate of the Company, dated the Closing Date, to the effect that the
signer of such certificate has carefully examined the Final Prospectus and
this Underwriting Agreement and that: (i) the representations and
warranties of the Company in this Underwriting 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, (ii) the Company has complied
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date and (iii) nothing
has come to the attention of the signer that would lead the signer to
believe that the Final Prospectus contains any untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except
that no such representation or warranty shall be required as to statements
contained in or omitted from the Final Prospectus in reliance upon and in
conformity with information furnished in writing (including electronic
media) to the Company by the Underwriters specifically identified in
writing(including electronic media) as being furnished for use in the
Final Prospectus as set forth in that certain letter agreement, dated the
date hereof (the "Letter Agreement"),
NY1-453808
4
from the Underwriters and agreed to by the Company (except to the extent
that any untrue statement or alleged untrue statement or omission or
alleged omission is a result of Seller Provided Information (as hereinafter
defined) which is not accurate and complete in all material respects).
(g) [Reserved]
(h) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.,
counsel to the Company, a favorable opinion, dated the Closing Date, and
satisfactory in form and substance to counsel for the Underwriters. With
respect to such opinion, such counsel (i) may express its reliance as to
factual matters on the representations and warranties in this Underwriting
Agreement, the Pooling and Servicing Agreement, the MCFC Mortgage Loan
Purchase and Sale Agreement, the Midland Mortgage Loan Purchase and Sale
Agreement, the SBMCG Mortgage Loan Purchase and Sale Agreement and the
Midland/SBMCG Mortgage Loan Purchase and Sale Agreement made by, and on
certificates or other documents furnished by officers of, the parties to
such agreements, (ii) may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the
parties thereto other than the Company, Midland, MCFC and any of their
Affiliates, and (iii) may render such opinion only as to the federal laws
of the United States of America, the laws of the State of Missouri and the
State of New York.
(i) The Underwriters shall have received from O'Melveny & ▇▇▇▇▇ LLP,
counsel to the Underwriters, such opinion, dated the Closing Date, with
respect to the issuance and sale of the Publicly Offered Certificates, the
Final Prospectus and other related matters as the Underwriters may
reasonably require, and the Company shall have furnished to such counsel
such documents as they reasonably request for the purpose of enabling them
to pass upon such matters.
(j) The Underwriters shall have received from Ernst & Young, LLP,
certified public accountants, a letter dated the Closing Date and
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, to the effect that such accountants have performed certain
specified procedures as a result of which they confirmed certain
information of an accounting, financial or statistical nature set forth in
the Final Prospectus.
(k) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.,
counsel to Midland and MCFC, a favorable opinion, dated the Closing Date,
in form and substance satisfactory to the Underwriters and counsel for the
Underwriters, to the effect that (1) the Pooling and Servicing Agreement
has been duly authorized, executed and delivered by Midland, as the
Servicer and the Special Servicer, and constitutes the legal, valid,
binding and enforceable agreement of Midland, and (2) each of the MCFC
Mortgage Loan Purchase and Sale Agreement, the Midland Mortgage Loan
Purchase and
NY1-453808
5
Sale Agreement, the Midland/SBMCG Mortgage Loan Purchase and Sale Agreement
and the SBMCG Mortgage Loan Purchase and Sale Agreement has been duly
authorized, executed and delivered by Midland or MCFC, as applicable, and
each such agreement constitutes the legal, valid, binding and enforceable
agreement of Midland or MCFC, as applicable, in each case subject, as to
enforceability, to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights in general and by general
principles of equity regardless of whether enforcement is considered in a
proceeding in equity or at law, and as to such other matters as may be
agreed upon by the Underwriters, Midland and MCFC. With respect to such
opinion, such counsel (i) may express its reliance as to factual matters on
the representations and warranties made in such agreements by, and on
certificates or other documents furnished to the Underwriters by officers
of the parties to the Pooling and Servicing Agreement, (ii) may assume the
due authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than the Company, Midland,
MCFC and any of their Affiliates and (iii) may render such opinion only as
to the federal laws of the United States of America, the laws of the State
of Missouri and the State of New York.
(l) The Underwriters shall have received from ▇▇▇▇▇ ▇▇▇▇▇, Esq.,
counsel to SBMCG in connection with the SBMCG Mortgage Loan Purchase and
Sale Agreement, a favorable opinion, dated the Closing Date, in form and
substance satisfactory to the Underwriters and counsel for the
Underwriters, to the effect that the SBMCG Mortgage Loan Purchase and Sale
Agreement has been duly authorized, executed and delivered by SBMCG and
constitutes the legal, valid, binding and enforceable agreement of SBMCG,
subject, as to enforceability, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights in general and
by general principles of equity regardless of whether enforcement is
considered in a proceeding in equity or at law, and as to such other
matters as may be agreed upon by the Underwriters and SBMCG. With respect
to such opinion, such counsel (i) may express its reliance as to factual
matters on the representations and warranties in the SBMCG Mortgage Loan
Purchase and Sale Agreement made by, and on certificates or other documents
furnished by officers of the parties to such agreement, (ii) may assume the
due authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than SBMCG and its
Affiliates, and (iii) may render such opinion only as to the laws of the
State of New York, the General Corporation Law of the State of Delaware and
the federal laws of the United States of America.
(m) The Underwriters shall have received from each of (i) ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, Esq., Senior Counsel of the Trustee and the Fiscal Agent and (ii)
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to the Trustee and the Fiscal Agent, a favorable
opinion, dated the Closing Date, in form and substance satisfactory to the
Underwriters and counsel for the Underwriters, to the effect that the
Pooling and Servicing Agreement has been duly authorized, executed and
delivered by each of the Trustee and the Fiscal Agent, and constitutes the
legal, valid, binding and enforceable agreement of each of the Trustee and
NY1-453808
6
the Fiscal Agent, subject, as to enforceability, to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights in general and by general principles of equity regardless of whether
enforcement is considered in a proceeding in equity or at law, and as to
such other matters as may be agreed upon by the Underwriters, the Trustee
and the Fiscal Agent.
(n) All proceedings in connection with the transactions contemplated by
this Underwriting Agreement and all documents incident hereto shall be
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, and the Underwriters and such counsel shall have received
such information, certificates and documents as the Underwriters or such
counsel may have reasonably requested.
(o) The Underwriters shall have received a copy of the Letter of
Representations of the Company to The Depository Trust Company with respect
to the Publicly Offered Certificates.
(p) All conditions to the obligation of the Placement Agents pursuant
to Section 4 of the Certificate Purchase Agreement shall have been
satisfied.
(q) The Company shall have furnished such further information,
certificates, documents and opinions as the Underwriters may reasonably
request.
If any of the conditions specified in this Section 2 shall not have been
fulfilled in all material respects when and as provided in this Underwriting
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 Underwriting Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, this Underwriting Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date by the Underwriters.
3. Covenants of the Company. In further
consideration of the agreements of the Underwriters
contained in this Underwriting Agreement, the Company
covenants as follows:
(a) The Company shall furnish each Underwriter, without charge, copies
of the Registration Statement and any amendments thereto including exhibits
and as many copies of the Final Prospectus and any supplements and
amendments thereto as such Underwriter may from time to time reasonably
request.
(b) The Company will not file any amendment to the Registration
Statement or any supplement to the Prospectus of which each Underwriter
shall not previously have been advised and furnished with a copy a
reasonable time prior to the proposed filing or to which either Underwriter
shall have reasonably objected. The Company will use its best efforts to
cause any post-effective amendment to the Registration Statement to
NY1-453808
7
become effective as promptly as possible. During the time when a prospectus
is required to be delivered under the 1933 Act, the Company will comply so
far as it is able with all requirements imposed upon it by the 1933 Act and
the rules and regulations thereunder to the extent necessary to permit the
continuance of sales or of dealings in the Publicly Offered Certificates in
accordance with the provisions hereof and of the Final Prospectus, and the
Company will prepare and file with the Commission, promptly upon request by
either Underwriter, any amendments to the Registration Statement or
amendments or supplements to the Prospectus which may be necessary or
advisable in connection with the distribution of the Publicly Offered
Certificates by the Underwriters, and will use its best efforts to cause
the same to become effective as promptly as possible. The Company will
advise the Underwriters, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement or any amended
Registration Statement has become effective or any amendment or supplement
to the Final Prospectus or any amended Prospectus has been filed. The
Company will advise the Underwriters, promptly after it receives notice or
obtains knowledge thereof, of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or any
order preventing or suspending the use of any preliminary prospectus
supplement or the Final Prospectus, or the suspension of the qualification
of the Publicly Offered Certificates for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding for any
such purpose, or of any request made by the Commission for the amending or
supplementing of the Registration Statement or the Final Prospectus or for
additional information, and the Company will use its best efforts to
prevent the issuance of any such stop order or any order suspending any
such qualification, and if any such order is issued, to obtain the lifting
thereof as promptly as possible.
(c) If, at any time when a prospectus relating to the Publicly Offered
Certificates is required to be delivered under the 1933 Act, any event
occurs as a result of which the Final Prospectus would include any untrue
statement of a material fact, or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or
if it is necessary for any other reason to amend or supplement the Final
Prospectus to comply with the 1933 Act, to promptly notify the Underwriters
thereof and upon either Underwriter's request to prepare and file with the
Commission, at the Company's own expense, an amendment or supplement which
will correct such statement or omission or any amendment which will effect
such compliance.
(d) During the period when a prospectus is required by law to be
delivered in connection with the sale of the Publicly Offered Certificates
pursuant to this Underwriting Agreement, the Company will file, on a timely
and complete basis, all documents that are required to be filed by the
Company with the Commission pursuant to Sections 13, 14 or 15(d) of the
1934 Act.
NY1-453808
8
(e) The Company shall qualify the Publicly Offered Certificates for
offer and sale under the securities or "Blue Sky" laws of such
jurisdictions as the Underwriters shall reasonably request and to pay all
expenses (including fees and disbursements of counsel) in connection with
such qualification of the eligibility of the Publicly Offered Certificates
for investment under the laws of such jurisdictions as the Underwriters may
designate; provided that in connection therewith the Company shall not be
required to qualify to do business or to file a general consent to service
of process in any jurisdiction.
(f) For so long as any of the Publicly Offered Certificates remain
outstanding, to furnish to each Underwriter upon request in writing copies
of such financial statements and other periodic and special reports as the
Company may from time to time distribute generally to its creditors or the
holders of the Publicly Offered Certificates and to furnish to each
Underwriter copies of each annual or other report the Company shall be
required to file with the Commission.
(g) To the extent, if any, that the rating provided with respect to the
Publicly Offered Certificates by the rating agency or agencies that
initially rate the Publicly Offered Certificates is conditional upon the
furnishing of documents or the taking of any other actions by the Company,
the Company shall use its best efforts to furnish such documents and take
any such other actions.
(h) The Company will enter into the MCFC Mortgage Loan Purchase and
Sale Agreement, the Midland Mortgage Loan Purchase and Sale Agreement, the
Midland/SBMCG Mortgage Loan Purchase and Sale Agreement and the Pooling and
Servicing Agreement on
or prior to the Closing Date.
4. Representations and Warranties of the Company.
The Company represents and warrants to each Underwriter
that:
(a) The Registration Statement on Form S-3 (No. 333-3885) including the
Prospectus, has become effective. No stop order suspending the
effectiveness of such Registration Statement has been issued and no
proceeding for that purpose has been initiated or, to the best knowledge of
the Company, threatened by the Commission. The Prospectus Supplement will
be filed with the Commission pursuant to Rule 424 under the 1933 Act. The
conditions to the use of a registration statement on Form S-3 under the
1933 Act, as set forth in the General Instructions on Form S-3, and the
conditions of Rule 415 under the 1933 Act, have been satisfied with respect
to the Company and the Registration Statement. There are no contracts or
documents of the Company that are required to be filed as exhibits to the
Registration Statement pursuant to the 1933 Act or the rules and
regulations thereunder that have not been so filed.
NY1-453808
9
(b) (i) On the effective date of the Registration Statement, the
Registration Statement and the Prospectus conformed in all material
respects to the requirements of the 1933 Act and the rules and regulations
thereunder, and did not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading; (ii) on the date of this Underwriting
Agreement, the Registration Statement and the Final Prospectus conform, and
as of the Closing Date, the Registration Statement and the Final
Prospectus, as amended or supplemented, if applicable, will conform in all
material respects to the requirements of the 1933 Act and the rules and
regulations thereunder; and (iii) on the date of this Underwriting
Agreement, the Final Prospectus does not include, and as of the Closing
Date, the Final Prospectus, as amended or supplemented, if applicable, will
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the foregoing does not apply
to statements or omissions in any of such documents made in reliance upon
and in conformity with information furnished in writing (including
electronic media) to the Company by the Underwriters specifically
identified in writing (including electronic media) as being furnished for
use in the Final Prospectus as set forth in the Letter Agreement (except to
the extent that any untrue statement or alleged untrue statement or
omission or alleged omission is a result of Seller Provided Information
which is not accurate and complete in all material respects).
(c) Since the respective dates as of which information is given in the
Registration Statement and the Final Prospectus, except as otherwise stated
therein, there has been no material adverse change in the condition,
financial or otherwise, earnings, affairs, regulatory situation or business
prospects of the Company, whether or not arising in the ordinary course of
business of the Company.
(d) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Missouri. The
Company has all requisite power and authority (corporate and other) and all
requisite authorizations, approvals, order, licenses, certificates and
permits of and from all governmental or regulatory officials and bodies to
own its properties, to conduct its business as described in the
Registration Statement and the Final Prospectus and to execute, deliver and
perform this Underwriting Agreement, the Pooling and Servicing Agreement,
the MCFC Mortgage Loan Purchase and Sale Agreement, the Midland Mortgage
Loan Purchase and Sale Agreement and the Midland/SBMCG Mortgage Loan
Purchase and Sale Agreement, except (i) such as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution by the Underwriters of the Publicly Offered Certificates and
by the Placement Agents of the Privately Placed Certificates and (ii) for
such authorizations, approvals, orders, licenses, certificates and permits
the failure of which to obtain would not have a material adverse affect on
the Company. All such
NY1-453808
10
authorizations, approvals, orders, licenses, certificates and permits are
in full force and effect and contain no unduly burdensome provisions and,
except as set forth or contemplated in the Registration Statement or the
Final Prospectus, there are no legal or governmental proceedings pending
or, to the best knowledge of the Company, threatened that would result in a
modification, suspension or revocation thereof that would have a material
adverse affect on the Company.
(e) The Publicly Offered Certificates have been duly authorized, and
when they are issued and delivered pursuant to this Underwriting Agreement
in exchange for the purchase price thereof, they will have been duly
executed, issued and delivered and will be entitled to the benefits
provided by the Pooling and Servicing Agreement, subject, as to
enforcement, to applicable bankruptcy, reorganization, insolvency,
moratorium and other laws affecting the rights of creditors generally, and
to general principles of equity (regardless of whether considered in a
proceeding in equity or at law), and will conform in substance to the
description thereof contained in the Registration Statement and the Final
Prospectus, and will in all material respects be in the form contemplated
by the Pooling and Servicing Agreement.
(f) This Underwriting Agreement has been duly authorized, executed and
delivered by the Company. Each of the Pooling and Servicing Agreement, the
MCFC Mortgage Loan Purchase and Sale Agreement, the Midland Mortgage Loan
Purchase and Sale Agreement and the Midland/SBMCG Mortgage Loan Purchase
and Sale Agreement, when executed and delivered as contemplated hereby,
will have been duly authorized, executed and delivered by the Company. This
Underwriting Agreement constitutes, and each of the Pooling and Servicing
Agreement, the MCFC Mortgage Loan Purchase and Sale Agreement, the Midland
Mortgage Loan Purchase and Sale Agreement and the Midland/SBMCG Mortgage
Loan Purchase and Sale Agreement when so executed and delivered will
constitute, a legal, valid, binding and enforceable agreement of the
Company, subject, as to enforceability, to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and to general principles of equity regardless of whether
enforcement is sought in a proceeding in equity or at law.
(g) As of the Closing Date, the Publicly Offered Certificates, the
Pooling and Servicing Agreement, the MCFC Mortgage Loan Purchase and Sale
Agreement, the Midland Mortgage Loan Purchase and Sale Agreement, the SBMCG
Mortgage Loan Purchase and Sale Agreement, the Midland/SBMCG Mortgage Loan
Purchase and Sale Agreement and each of the Mortgage Loans will each
conform in all material respects to the respective descriptions thereof
contained in the Prospectus Supplement, and on the Closing Date, the
Company (pursuant to the Pooling and Servicing Agreement) will assign to
the Trustee for the benefit of the Certificateholders of the Publicly
Offered Certificates, certain representations and warranties with respect
to the Mortgage Loans
NY1-453808
11
made by the related Mortgage Loan Seller to the Company in the applicable
Mortgage Loan Purchase and Sale Agreement.
(h) No filing or registration with, or notice to, or consent, approval,
non- disapproval, authorization or order or other action of, any court or
governmental authority or agency is required for the consummation by the
Company of the transactions contemplated by this Underwriting Agreement or
the Pooling and Servicing Agreement, except (i) such as have been obtained,
(ii) such as may be required under the 1933 Act, the rules and regulations
thereunder, or state securities or "Blue Sky" laws, in connection with the
purchase and distribution of the Publicly Offered Certificates by the
Underwriters or of the Privately Placed Certificates by the Placement Agent
and (iii) any the failure of which to obtain would not have a material
adverse affect on the Company.
(i) Other than as set forth or contemplated in the Final Prospectus,
there are no legal or governmental proceedings pending to which the Company
is a party or of which any property of the Company is the subject which, if
determined adversely to the Company would individually or in the aggregate
have a material adverse effect on the condition (financial or otherwise),
earnings, affairs, business or business prospects of the Company and, to
the Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others.
(j) As of the Closing Date, each of the Mortgage Loans will meet the
criteria for selection described in the Final Prospectus, and at the
Closing Date, the representations and warranties made by the Company in the
Pooling and Servicing Agreement will be true and correct as of the date
made.
(k) At the time of execution and delivery of the Pooling and Servicing
Agreement, (i) the Company will have good and marketable title to the
Mortgage Loans, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively
"Liens"), and will not have assigned to any person any of its right, title
or interest in the Mortgage Loans or in the Pooling and Servicing Agreement
or the Publicly Offered Certificates, (ii) the Company will have the power
and authority to transfer the Publicly Offered Certificates to the
Underwriters and (iii) upon execution and delivery to the Trustee of the
Pooling and Servicing Agreement and delivery to the Underwriters of the
Publicly Offered Certificates, and delivery to the Placement Agents of the
Privately Placed Certificates, the Trustee will have good and marketable
title to the Mortgage Loans and the Underwriters will have good and
marketable title to the Publicly Offered Certificates, in each case free
and clear of any Liens.
(l) Neither the Company nor the Trust Fund is, and neither (i) the
issuance and sale of the Publicly Offered Certificates in the manner
contemplated by the Final Prospectus, nor (ii) the activities of the Trust
Fund pursuant to the Pooling and Servicing
NY1-453808
12
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.
(m) The Pooling and Servicing Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended, and the Trust Fund is
not required to be registered under the Investment Company Act of 1940, as
amended.
(n) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of this Underwriting Agreement, the
Pooling and Servicing Agreement and the Publicly Offered Certificates have
been or will be paid at or
prior to the Closing.
5. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all losses, claims, damages or liabilities, joint
or several, to which they may become liable under the 1933 Act, the 1934 Act, or
other federal or state law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Final Prospectus or in any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and agrees to reimburse such indemnified
party for any legal or other expenses reasonably incurred by it in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that (i) the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information (including in electronic media) furnished to the
Company by the Underwriters specifically identified in writing (including
electronic media) as being furnished for use therein as set forth in the Letter
Agreement (except to the extent that any untrue statement or alleged untrue
statement or omission or alleged omission is a result of Seller Provided
Information which is not accurate and complete in all material respects), and
(ii) such indemnity with respect to the preliminary Final Prospectus shall not
inure to the benefit of the Underwriters (or any person controlling the
Underwriters) with respect to any person asserting any such loss, claim, damage
or liability who purchased the Publicly Offered Certificates that are the
subject thereof if such person did not receive a copy of the Final Prospectus
prior to the confirmation of the sale of such Publicly Offered Certificates to
such person in any case where such delivery is required by the 1933 Act and the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact contained in the preliminary Final
Prospectus (or other written material prepared in lieu thereof) was corrected in
the Final Prospectus. This indemnity will be in addition to any liability that
the Company may otherwise have.
NY1-453808
13
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Company 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, to the
same extent as the foregoing indemnity from the Company to the Underwriters, but
only with reference to written information furnished to the Company by or on
behalf of such Underwriter (including in electronic media) specifically
identified in writing (including electronic media) as being furnished for use in
the documents referred to in the foregoing indemnity as set forth in the Letter
Agreement (except to the extent that any untrue statement or alleged untrue
statement or omission or alleged omission is a result of Seller Provided
Information which is not accurate and complete in all material respects). This
indemnity will be in addition to any liability that such Underwriter may
otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 5 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 5, notify the indemnifying party in writing of the commencement thereof,
but failure to notify the indemnifying party of any such claims shall not
relieve the indemnifying party of any liability that it may have to any
indemnified party except to the extent that the indemnifying party was
prejudiced by such failure. The indemnifying party will be entitled to
participate at its own expense in the defense or, if it so elects, to assume the
defense of any suit brought to enforce any such liability, but, if the
indemnifying party elects to assume the defense, such defense shall be conducted
by legal counsel reasonably acceptable to the indemnified party. In the event
the indemnifying party elects to assume the defense of any such suit and retain
such legal counsel, any indemnified party that is a defendant in the suit may
retain additional legal counsel but shall bear the legal fees and disbursements
of such legal counsel unless (i) the indemnifying party and such indemnified
party shall have mutually agreed to the retention of such legal counsel or (ii)
the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and such indemnified party, and
representation of both such parties by the same legal counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
legal fees and disbursements of more than one legal counsel for all the
indemnified parties and that all such legal fees and disbursements shall be
reimbursed by the indemnifying party as they are incurred. The indemnifying
party shall not be liable to indemnify any person for any settlement of any
claim effected without its prior written consent. The indemnifying party shall
not, without the prior written consent of any indemnified party, which consent
will not be unreasonably withheld, effect any settlement of any pending or
threatened proceeding in respect of which such indemnified party is a party and
indemnity is or could have been sought hereunder by such indemnified party.
(d) Not later than 10:30 a.m. Kansas City time, on the business day before
the date on which a Current Report on Form 8-K relating to the Certificates is
required to be filed by the Company with the Commission pursuant to Section 3(d)
hereof, each Underwriter shall deliver to the Company one complete copy in
electronic format of all materials, if any, provided
NY1-453808
14
by such Underwriter to prospective investors in such Certificates which
constitute "Computational Materials" within the meaning of the no-action letter
dated May 20, 1994, issued by the Division of Corporation Finance of the
Commission to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co.
Incorporated, and ▇▇▇▇▇▇ Structured Asset Corporation, the no-action letter
dated May 27, 1994, issued by the Division of Corporation Finance of the
Commission to the Public Securities Association and the no-action letter of
February 17, 1995 issued by the Commission to the Public Securities Association
(collectively, the "▇▇▇▇▇▇/PSA Letters") and the filing of which is a condition
of the relief granted in such letters (such materials being the "Computational
Materials"). Each delivery of Computational Materials to the Company pursuant to
this paragraph (d) shall be effected by delivering one copy of such material in
electronic format to counsel for the Company.
(e) Each Underwriter severally and not jointly agrees, except to the extent
that the Seller Provided Information is not accurate and complete in all
material respects, to indemnify and hold harmless the Company, each of the
Company's officers and directors and each person who controls the Company within
the meaning of Section 15 of the 1933 Act and Section 12 of the 1934 Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of the Offered Certificates), arise out of or
are based upon any untrue statement of a material fact contained in the
Computational Materials provided by such Underwriter, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, when
considered in conjunction with the Prospectus, and in the light of the
circumstances under which they were made, not misleading, except to the extent
that such untrue statement or omission is based upon the Seller Provided
Information and agrees to reimburse each such indemnified party for any legal or
other expenses reasonably incurred by him, her or it in connection with
investigating or defending or preparing to defend any such loss, claim, damage,
liability or action as such expenses are incurred. The obligations of an
Underwriter under this Section 5(e) shall be in addition to any liability which
such Underwriter may otherwise have.
The procedures set forth in Section 5(c) shall be equally applicable to
this Section 5(e).
(f) If the indemnification provided for in this Section 5 shall for any
reason be unavailable to an indemnified party under this Section 5, then the
Company and the Underwriters shall contribute to the amount paid or payable by
such indemnified party as a result of the aggregate losses, claims, damages and
liabilities referred to in paragraph (a), (b) or (e) above, in such proportion
as is appropriate to reflect (i) the relative benefits received by the Company
on the one hand and the Underwriters on the other from the placement of the
Publicly Offered Certificates, and (ii) the relative fault of the Company on the
one hand and the Underwriters on the other in connection with the statement or
omission that resulted in such losses, claims,
NY1-453808
15
damages and liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Underwriters shall be
deemed to be in the same proportion as the purchase price paid by the
Underwriters pursuant to Schedule I hereto bears to the difference between (i)
the total price at which the Publicly Offered Certificates were sold by the
Underwriters and (ii) the purchase price paid by the Underwriters pursuant to
Schedule I hereto. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
paragraph (f) were to be determined by pro rata allocation or by any other
method of allocation that does not take account of the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this paragraph (f) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending against any action or claim which is the subject of
this paragraph (f). Notwithstanding the provisions of this paragraph (f), the
Underwriters shall not be required to contribute any amount in excess of the
amount by which the total price at which the Publicly Offered Certificates
placed by it exceeds the amount of any damages that the Underwriters have
otherwise been required to pay or have become liable to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 5,
each person, if any, who controls the Underwriters within the meaning of either
the 1933 Act or the 1934 Act shall have the same rights to contribution as the
Underwriters, and each person, if any, who controls the Company within the
meaning of either the 1933 Act or the 1934 Act, each director and each officer
of the Company shall have the same rights to contribution as the Company. Any
party entitled to contribution will promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this paragraph (f), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any other
obligation it or they may have to a party entitled to contribution except to the
extent the party obligated to make such contribution was prejudiced by such
failure.
"Seller Provided Information" means (a) the information appearing under
the caption "DESCRIPTION OF THE MORTGAGE POOL" in the Prospectus Supplement, (b)
Annex A to the Prospectus Supplement and (c) with respect to Computational
Materials only, a collateral asset book relating to each property securing the
Mortgage Loans.
6. Survival of Certain Representations and
Obligations. The respective representations, warranties,
agreements, covenants, indemnities and other statements of
the
NY1-453808
16
Company, its officers and the Underwriters set forth in, or made pursuant to,
this Underwriting Agreement shall remain in full force and effect, regardless of
any investigation, or statement as to the result thereof, made by or on behalf
of any Underwriters, the Company, or any of the offices or directors or any
controlling person of any of the foregoing, and shall survive the delivery of
and payment for the Publicly Offered Certificates.
7. Termination. (a) This Underwriting Agreement may
be terminated by the Company by notice to the Underwriters
in the event that a stop order suspending the
effectiveness of the Registration Statement shall have
been issued or proceedings for that purpose shall have
been instituted or threatened.
(b) This Underwriting Agreement may be terminated by either Underwriter by
notice to the Company and the other Underwriter in the event that the Company or
the Servicer shall have failed, refused or been unable to perform all
obligations and satisfy all conditions to be performed or satisfied hereunder by
the Company or the Servicer, respectively, at or prior to the Closing Date.
(c) Termination of this Underwriting Agreement pursuant to this Section 7
shall be without liability of any party to any other party other than as
provided in Section 8 hereof.
8. Default of the Underwriters. If the Underwriters default in their
obligation to purchase the Publicly Offered Certificates as provided in this
Underwriting Agreement and the aggregate principal amount of the Publicly
Offered Certificates with respect to which such default occurs is more than ten
percent of the aggregate principal amount or notional amount as applicable, of
such Publicly Offered Certificates, as the case may be, and arrangements
satisfactory to the Underwriters and the Company for the purchase of such
Publicly Offered Certificates by other persons are not made within 36 hours
after any such default, this Underwriting Agreement will terminate without
liability on the part of the Company except for the expenses to be paid or
reimbursed by the Company pursuant to Section 9 hereof. As used in this
Underwriting Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section 8.
9. Expenses. The Company agrees with the Underwriters that: (a) whether or
not the transactions contemplated in this Underwriting Agreement are consummated
or this Underwriting Agreement is terminated, the Company will pay all fees and
expenses incident to the performance of its obligations under this Underwriting
Agreement, including but not limited to, (i) the Commission's registration fee,
(ii) the expenses of printing and distributing the Registration Statement, any
preliminary prospectus, the Prospectus Supplement, any amendments or supplements
to the Registration Statement or the Prospectus Supplement, and any Blue Sky
memorandum or legal investment survey and any supplements thereto, (iii) fees
and expenses of rating agencies, accountants and counsel for the Company, (iv)
the expenses referred to in Section 3(e) hereof, and (v) all miscellaneous
expenses referred to in Item 14 of the Registration Statement; (b) all
out-of-pocket expenses, including counsel fees, disbursements and expenses,
NY1-453808
17
reasonably incurred by the Underwriters in connection with investigating,
preparing to market and marketing the Publicly Offered Certificates and
proposing to purchase and purchasing the Publicly Offered Certificates under
this Underwriting Agreement will be borne and paid by the Company if this
Underwriting Agreement is terminated by the Company pursuant to Section 8 hereof
or by the Underwriters on account of the failure, refusal or inability on the
part of the Company to perform all obligations and satisfy all conditions on the
part of the Company to be performed or satisfied hereunder; and (c) the Company
will pay the cost of preparing the certificates for the Publicly Offered
Certificates.
Except as otherwise provided in this Section 9, the Underwriters agrees to
pay all of its expenses in connection with investigating, preparing to market
and marketing the Publicly Offered Certificates and proposing to purchase and
purchasing the Publicly Offered Certificates under this Underwriting Agreement,
including the fees and expenses of their counsel and any advertising expenses
incurred by it in making offers and sales of the Publicly Offered Certificates.
10. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to PSI, will be mailed, delivered or telecopied
and confirmed to it at One New York Plaza, 18th Floor, New York, New York
10292-2015, attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇,
if sent to SBI, will be mailed, delivered or telecopied and confirmed to it at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, attention: ▇▇▇▇▇
▇▇▇▇, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇ or, if sent to the Company, will be
mailed, delivered or telecopied and confirmed to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, facsimile
number (▇▇▇) ▇▇▇-▇▇▇▇.
11. Successors. This Underwriting Agreement shall inure to the benefit of
and shall be binding upon each Underwriter, the Company and their respective
successors and legal representatives, and nothing expressed or mentioned in this
Underwriting Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Underwriting Agreement, or any provisions herein contained; the Underwriting
Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of such persons and for the benefit of
no other person, except that (i) the representations and warranties of the
Company contained in this Underwriting Agreement shall also be for the benefit
of any person or persons who controls or control any Underwriter within the
meaning of Section 15 of the 1933 Act, and (ii) the indemnities by the
Underwriters shall also be for the benefit of the directors of the Company, the
officers of the Company who have signed the Registration Statement and any
person or persons who controls or control the Company within the meaning of
Section 15 of the 1933 Act. No purchaser of the Publicly Offered Certificates
from the Underwriters shall be deemed a successor because of such purchase.
12. Applicable Law; Counterparts. This Underwriting
Agreement will be governed by and construed in accordance
with the laws of the State of New York (without regard to
NY1-453808
18
conflict of laws principles). This Underwriting 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.
13. Time of the Essence. Time shall be of the
essence of this Underwriting Agreement.
[Remainder of Page Intentionally Left Blank]
NY1-453808
19
If the foregoing is in accordance with your understanding, please sign and
return two counterparts hereof.
Very truly yours,
MIDLAND REALTY ACCEPTANCE CORP.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Executive Vice President
AGREED AND ACCEPTED AS OF THE
DATE FIRST WRITTEN ABOVE
PRUDENTIAL SECURITIES
INCORPORATED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Director
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
Director
PJRES0DW.KCM
NY1-453808
S-1
SCHEDULE I
[UNDERWRITERS TO DELIVER BREAKDOWN OF PURCHASE PRICE]
Title of Publicly Offered Certificates:
Midland Realty Acceptance Corp., Commercial Mortgage Pass-Through Certificates,
Series 1996-C1, Class A-1, Class A-2, Class A-3, Class B, Class C, Class D,
Class E and Class F
Terms and Conditions:
Specified funds for payment of purchase price:
Wire transfer of immediately available Federal Funds.
Certificate Balances and Required Ratings:
As described in the Prospectus Supplement.
Time of Delivery:
September 25, 1996 at 10:00 a.m. Kansas City time
Closing Location:
Offices of:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Names and address of Underwriters:
Address for Notices, etc: Prudential Securities
Incorporated
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-2015
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
NY1-453808
