Form 3700/44 Leasing Representations and Certifications

Acquisition Services Information Requirements

3700-44

Leasing Representations and Certifications

OMB: 3064-0072

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FDIC
Leasing
Representations and
Certifications

FDIC 3700/44 (10-05) Page 1

FDIC LEASING REPRESENTATIONS AND CERTIFICATIONS
TABLE OF CONTENTS

Section

Page

Estimated Reporting Burden.........................................................................................................................
Privacy Act Statement...................................................................................................................................

3
3

Instructions to Lessors ..................................................................................................................................

Part I – Certifications Concerning the Premises and the Building ........................................................

1. Compliance with Laws ................................................................................................................
2. Environmental Condition.............................................................................................................
3. Building Condition .......................................................................................................................

5
5
6

Part II – Lessor Fitness and Integrity Certifications................................................................................

1. Conflicts of Interest .....................................................................................................................
2. Releases for Less than Full Amount Due ....................................................................................
3. Prohibited Communication with FDIC Employees .......................................................................
4. Certification and Disclosure Regarding Payments to Influence Certain Federal
Transactions.............................................................................................................................
5. Certificate of Independent Price Determination ...........................................................................
6. Lessor Identification and Information...........................................................................................

7
8
8

Signature Page .............................................................................................................................................

Policy Statement on the Fitness and Integrity of Lessors of Real Property to the FDIC
(Schedule A) .....................................................................................................................................................

I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.

Purpose........................................................................................................................................
Applicability ..................................................................................................................................
Definitions ....................................................................................................................................
Policy ............................................................................................................................................
Procedures ...................................................................................................................................
Lease Agreement Requirements..................................................................................................
Delayed Compliance in Emergencies ..........................................................................................
Finality of Determination...............................................................................................................
General.........................................................................................................................................

FDIC 3700/44 (10-05) Page 2

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ESTIMATED REPORTING BURDEN
Public reporting burden for this collection of information is estimated to average one-hour per response, including
the time for reviewing the instructions, searching existing data sources, gathering and maintaining the data needed,
and completing and reviewing the collection of information. Send comments regarding this burden estimate or any
other aspect of this collection of information, including suggestions for reducing this burden, to the Paperwork
Reduction Act Clearance Officer, Legal Division, Federal Deposit Insurance Corporation, Washington, D.C. 20429;
and to the Office of Management and Budget, Paperwork Reduction Project (3064-0072), Washington, D.C. 20503.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays
a currently valid OMB control number.

PRIVACY ACT STATEMENT
Collection of this information is authorized by the Federal Deposit Insurance Act, 12 U.S.C. §§ 1819, 1821, and Executive Order
9397. This information will be primarily used to review a potential lessor for fitness and integrity and the information provided
may be disclosed to licensing authorities by the FDIC in making a determination of fitness and integrity.
Information may also be disclosed to appropriate Federal, state, or local agencies for law enforcement purposes when a
violation or possible violation of a civil or criminal law is apparent; to individuals involved in judicial or administrative
proceedings; and to a Congressional office in response to an inquiry made at the individual’s request. Information may also be
disclosed in accordance with the other routine uses set forth in the FDIC’s Financial Information System 30-64-0012. Furnishing
the requested information, including your Social Security Number, is voluntary. However, failure to furnish all requested
information may preclude your property from being leased by the FDIC.

FDIC 3700/44 (10-05) Page 3

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OMB NUMBER: 3064-0072
EXPIRATION DATE: 08/31/2008

FDIC LEASING REPRESENTATIONS AND CERTIFICATIONS
INSTRUCTIONS TO LESSORS
This FDIC Leasing Representations and Certifications form (the “Certifications”) is comprised of two parts:
Part I – Certifications Concerning the Premises and the Building, and Part II – Lessor Fitness and Integrity Certifications.
The FDIC requires that all Lessors complete both Parts of the Certifications and submit them as part of any Offer to enter into a
Lease or a Lease Agreement. The Certifications shall be executed by an official authorized to bind the Lessor, and they shall be
attached to and made a part of any Lease or Lease Amendment. For purposes of the Certifications, the FDIC is considered an
agency of the United States with respect to its rights and remedies under Title 18 of the United States Code. The Certifications
concern matters within the jurisdiction of an agency of the United States, and the making of a false, fictitious, or
fraudulent certification may render the maker subject to prosecution under 18 U.S.C. §§ 1001, 1007, and 1014.
Pursuant to paragraph IV.A. of the FDIC’s Policy Statement on the Fitness and Integrity of Lessors of Real Property to the FDIC
(the “Policy Statement”), dated February 6, 1996 (published in the Federal Registrar on February 13, 1996, and amended in the
Federal Registrar on April 26, 1996), a copy of which is attached hereto as Schedule A, the FDIC will not consider Offers from
Lessors, award Leases to Lessors, or enter into Lease Amendments with Lessors that either (a) fail to provide any of the
information required by the Policy Statement, or (b) have Conflicts of Interest, unless such Conflicts of Interest are eliminated by
the Lessor or waived by the FDIC.
All items within the Certifications must be completed. If the Lessor cannot certify “True” to an entire statement, or if a statement
is partly “True” and partly “False” for the Lessor, the “False” box must be checked. Whenever the “False” box is checked, the
Lessor must attach a detailed description of the particular defect or situation and, if applicable, a description of the Lessor’s
plans to remedy or eliminate the defect or situation.
If at any time prior to the award of the Lease or Lease Amendment, or during the term of the Lease, the Lessor learns that one
or more of the representations or certifications made herein was erroneous when submitted or has become erroneous, the
Lessor shall notify the FDIC within five business days.
All capitalized terms not otherwise defined within the Certifications shall have the meaning set forth in the Policy Statement,
which is attached as Schedule A, unless noted otherwise within the Certifications.
In connection with its Offer to lease certain space (the “Premises”) to the FDIC, in the building (the “Building”), at the
, the undersigned Lessor, _____________________
following address: ________________________________
certifies as follows:

FDIC 3700/44 (10-05) Page 4

FDIC LEASING REPRESENTATIONS AND CERTIFICATIONS
PART I – CERTIFICATIONS CONCERNING THE PREMISES AND THE BUILDING
NOTE: If a “False” box is checked regarding any of the following statements, the Lessor must describe the situation and
delineate the steps that will be taken to address the situation.
1.

Compliance with Laws
a.

The Premises and the Building are in compliance with all existing health, safety, fire, zoning, building, and
environmental laws, rules and regulations applicable to the Premises and the Building.
True

The Premises and the Building comply with the provisions of the Americans with Disabilities Act, 42 U.S.C. 1201
et. seq. and any local enactment thereof.
True

False

Environmental Condition
a.

The Premises and the Building, including the air and water therein, do not contain any hazardous substances
(“Hazardous Substances”) (with the exception of normal amounts of customary solvents or other materials used in
cleaning and maintenance of the Premises or the Building, in amounts that would not be in violation of Hazardous
Substances Laws, as defined below) including: asbestos; Asbestos-Containing Materials (as defined below); lead;
polychlorinated biphenyls (“PCB’s”); chlorofluorocarbons (“CFC’s”); and hazardous, ignitable, reactive, corrosive, or
toxic substances; materials or waste that are subject to any Hazardous Substance Laws; or any other substances
defined or listed as Hazardous Substances from time to time by the Federal Environmental Protection Agency or any
agency having jurisdiction to establish such definition or listing. The term “Hazardous Substances Laws” includes the
Comprehensive Environmental Response, Compensation and Liability Act, as amended by the Superfund
Amendments and Reauthorization Act, 42 U.S.C. 9602 et. seq., and other Federal, state, and local laws, rules,
regulations and ordinances relating to Hazardous Substances. The term “Asbestos-Containing Materials” is defined as
any materials with a concentration of one percent greater by dry weight asbestos fibers.
True

There are no underground storage tanks, either active or abandoned, beneath the Building.
True

False

Neither the Lessor, nor any predecessor property owner has received any notice, demand, claim, citation, complaint,
summons, request for information, or similar communication from any entity, governmental body, or individual with
respect to Hazardous Substances associated with the Premises or the Building.
True

False

There is no investigation, administrative order, settlement, consent order, agreement or litigation with respect to any
Hazardous Substance proposed, threatened, anticipated, or in existence with respect to the Premises or the Building.
True

False

There are no above-ground storage tanks, either active or abandoned, located at the Building.
True

False

There are no Asbestos-Containing Materials in the Premises; spaces above suspended ceilings in the Premises; are
plenums elsewhere in the Building which service the Premises; engineering spaces in the same ventilation zones as
the Premises; or in public spaces or common use space (e.g., lobbies, hallways) serving the Premises.
True

FDIC 3700/44 (10-05) Page 5

False

FDIC LEASING REPRESENTATIONS AND CERTIFICATIONS
g.

The Heating, Ventilation and Air Conditioning system serving the Premises and the Building (a) is in compliance with
the Clean Air Act; and (b) is free of CFC and Hydrochloroflurocarbon compounds.
True

The Lessor has not received any complaints regarding, and is not aware of any problems with, the indoor air quality
within the Premises and the Building.
True

False

Attached hereto, and in support of the foregoing responses, are copies of all Environmental Information (which term
includes, without limitation, all inspections, reports, examinations, surveys, tests, samples, reviews, inquiries, requests,
investigations, and studies), if any, received by, or prepared for the Lessor with respect to the Premises and/or the
Building.
True

False

The drinking water available from all existing fountains, sinks, or other sources on the Premises, does not contain lead
in excess of levels permitted by law applicable to the Building or the Premises.
True

False

Building Condition
a.

There are no structural defects in the Building.
True

There are no electrical system defects in the Building.
True

False

There are no plumbing defects in the Building.
True

False

There are no sewer system defects in the Building.
True

False

There are no mechanical system defects in the Building.
True

False

The Building (including the systems listed in items a. through e. immediately above), has not been in any way affected
or damaged by seismic activity.
True

FDIC 3700/44 (10-05) Page 6

False

FDIC LEASING REPRESENTATIONS AND CERTIFICATIONS
PART II – LESSOR FITNESS AND INTEGRITY CERTIFICATIONS
1.

Conflicts of Interest

Important Note: The following pertain to this Conflict of Interest certification only.

•

The word “Lessor” encompasses both Lessors and Lessor’s Affiliates, as defined in the Policy Statement, Schedule A.

•

A check in any “False” box for 1.a. through e. below indicates that the Lessor has a Conflict of Interest, as defined
at Section III.B.(1) through (5) of the Policy Statement. In accordance with Section V.A.(1)(b) of the Policy Statement, a
Lessor with a Conflict of Interest shall, with its Offer, request that the Conflict of Interest be waived or propose how the
Conflict of Interest will be eliminated.
a.

The Lessor is not adverse to the FDIC, RTC, Federal Savings and Loan Insurance Corporation, or their successors in a
lawsuit.
True

The Lessor has not caused a Substantial Loss to Federal Deposit Insurance Funds within the ten year period
preceding the date of this certification.
True

False

The Lessor has never been removed from, or prohibited from participating in the affairs of any Insured Depository
Institution pursuant to any final enforcement action of the Office of the Comptroller of the Currency, the Office of Thrift
Supervision, the Board of Governors of the Federal Reserve System, or the FDIC or their successors.
True

False

The Lessor has not Defaulted on a Material Obligation within the last five years.
True

False

The Lessor has never been convicted of a Fraud Offense or of conspiring to commit a Fraud Offense, affecting any
Insured Depository Institution.
True

False

Releases for Less than Full Amount Due
The Lessor has never been released from any commitment to pay $50,000 or more to an Insurer for which the Insurer
received less than 100% (including interest, late charges, and other costs of collection) of the amount due.
True

False

Prohibited Communication with FDIC Employees
Neither the Lessor, nor any employee of the Lessor, nor any entity which will be awarded a subcontract as a result of the
award of the Lease or Lease Agreement, have at any time since the first public notification of the FDIC space requirement
described in the FDIC’s Request for Proposal associated with the Certifications, or at any time after becoming aware of this
pending Lease acquisition (if such awareness preceded public notification), (a) directly or indirectly offered any promise of
future employment or business opportunities to, or engaged in any discussion of future employment or business
opportunities with, any FDIC personnel responsible for this Lease acquisition; or (b) directly or indirectly solicited any
information concerning the FDIC space requirement described in the Request for Proposal associated with the
Certifications, other than information available to the general public.
True

FDIC 3700/44 (10-05) Page 7

False

FDIC LEASING REPRESENTATIONS AND CERTIFICATIONS
4.

Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions
a.

To the best of Lessor’s knowledge, no Federal appropriated funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress on its behalf in connection with the awarding of any
Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative
agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan,
or cooperative agreement (collectively, “covered Federal actions”).
True

False

To the best of Lessor’s knowledge, no nonappropriated funds (including profit or fee received under a covered Federal
action) have been paid, or will be paid, to any person for influencing or attempting to influence an officer or employee of
any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress on
his or her behalf in connection with the Request for Proposal associated with this certification.
True

False (If “False,” Lessor must complete and submit with its offer, an OMB Standard Form LLL
“Disclosure of Lobbying Activities” (available upon request).

NOTE: The Lessor must include the language of 4.a. and b. of this Certification and Disclosure in all
subcontract awards relating to the Offer or the Lease or the Building, at any tier, and require that all recipients
of subcontract awards in excess of $100,000 shall certify and disclose accordingly. Submission of this
Certification and Disclosure, and when required, a completed Standard Form LLL is a prerequisite for making
or entering into this Lease imposed by 31 U.S.C. § 1352.
5.

Certificate of Independent Price Determination
a.

The prices in this Offer (or proposed for the Lease Amendment) have been arrived at independently, without, for the
purposes of restricting competition, any consultation, communication, or agreement with any Lessor or competitor
relating to (a) those prices, (b) the intention to submit an Offer, or (c) the methods or factors used to calculate the
prices offered.
True

The prices in this Offer have not been and will not be knowingly disclosed by the Lessor, directly or indirectly, to any
other lessor or competitor before award of the Lease or Lease Amendment unless otherwise required by law.
True

False

No attempt has been made or will be made by the Lessor to induce any other individual or Company to submit or not
to submit an Offer for the purpose of restricting competition.
True

FDIC 3700/44 (10-05) Page 8

False

FDIC LEASING REPRESENTATIONS AND CERTIFICATIONS
6.

Lessor Identification and Information
a.

List the name, address, and Federal Taxpayer Identification Number of (1) the Lessor and, (2) if different, the record
owner of the Building:

NAME OF LESSOR (Please print or type)

TAXPAYER IDENTIFICATION NUMBER (TIN)

STREET ADDRESS
CITY

STATE

NAME OF RECORD OWNER (Please print or type)

ZIP CODE

TAXPAYER IDENTIFICATION NUMBER (TIN)

STREET ADDRESS
CITY

STATE

an individual,

ZIP CODE

a State or local agency, or

a Company.

Check one: Lessor operates as

Identify the following (If additional room is needed, please complete on 8-1/2 x 11-inch paper and attach it to the
Certifications.)
1.

If the Lessor is a Company provide:
(a) The state in which the Corporation or other organization is registered or organized:

(b) The name, addresses, and Federal Taxpayer ID Numbers of all general partners and/or all beneficial
owners of a 25% or greater equity interest in the Lessor. In addition, for those general partners and
beneficial owners who are individuals, provide the Social Security Number, birth date, and Birthplace (City,
State, Country):

FDIC 3700/44 (10-05) Page 9

FDIC LEASING REPRESENTATIONS AND CERTIFICATIONS
2.

The names, addresses, Federal Taxpayer ID Numbers, and state of incorporation or organization of any
Companies of which the Lessor is either the general partner or a beneficial owner of a 25% or greater equity
interest:

If the Lessor is an individual, list the name, address, Social Security Number, birth date, and Birthplace (City,
State, Country) of any Family Member:

By signature hereto, the undersigned certifies that he or she has full right, power and authority to execute these
Certifications on behalf of the Lessor without the consent of any other entity or individual and makes these
Certifications with the knowledge that the FDIC shall rely upon them. The undersigned also certifies that all of
the foregoing representations and certifications are true, complete, and accurate, and that he or she is aware of
the penalty prescribed in 18 U.S.C. § 1001 for making false statements to an agency of the United States
government. Further, the undersigned by signature hereto gives express authorization and consent to the FDIC
for the FDIC to release information contained herein to licensing authorities in making a determination of the
lessor’s fitness and integrity.
NOTE: THE SIGNATURE OF AN AGENT IS NOT ACCEPTABLE
NAME (Please print or type)
TITLE
NAME OF LESSOR

TAXPAYER IDENTIFICATION NUMBER (TIN)

SIGNATURE

DATE
Attachment (1): Schedule A, Policy Statement

FDIC 3700/44 (10-05) Page 10

SCHEDULE A

POLICY STATEMENT ON THE FITNESS AND INTEGRITY OF LESSORS OF REAL PROPERTY TO THE FDIC
I.

Purpose. To establish:
A. Minimum standards governing Conflicts of Interest and ethical responsibilities for Lessors who have entered into
Leases with the FDIC, or who seek to lease real property to the FDIC; and
B. Official written guidance for FDIC personnel including, without limitation, personnel in the Division of Administration,
the Division of Supervision, and the Office of the Executive Secretary, on the implementation of those minimum
standards.

II.

Applicability. This policy will apply to:
A. All Leases of 10, 000 square feet or more awarded as a result of Requests for Proposals issued after the date of
this policy; and
B. All Lease Amendments entered into after the date of this policy to (1) existing leases of 10,000 square feet or more,
or (2) existing Leases of less than 10,000 square feet where the total square footage of the Lease will be 10,000
square feet or more if the Lease Amendment is executed.

III. Definitions. As used in this policy statement:
A. Company means any corporation, firm, partnership, society, joint venture, business trust, association, or similar
organization, or any other trust, or any other organization or institution.
B. Conflict of Interest means a situation in which:
(1) A Lessor or a Lessor’s Affiliate is adverse to the FDIC, RTC, Federal Savings and Loan Insurance
Corporation (FSLIC), or their successors in a lawsuit, for which no final adjudication or settlement has
occurred; or
(2) A Lessor or a Lessor’s Affiliate has caused a Substantial Loss to Federal Deposit Insurance Funds within the
ten year period preceding the submission of its offer; or
(3) A Lessor or a Lessor’s Affiliate has been convicted of a Fraud Offense or of conspiring to commit a Fraud
Offence affecting any Insured Depository Institution; or
(4)

A Lessor or a Lessor’s Affiliate has Defaulted on a Material Obligation within the last five years; or

(5) A Lessor or a Lessor’s Affiliate has been removed from, or prohibited from participating in the affairs of any
Insured Depository Institution pursuant to any final enforcement action by the Office of the Comptroller of the
Currency, the Office of Thrift Supervision, the Board of Governors of the Federal Reserve System, or the FDIC or
their successors; or
(6) A situation in which the FDIC determines, in its sole discretion, that the FDIC’s award of a Lease to a Lessor
could cause a reasonable person to question the integrity of the FDIC’s operations. An example (without limitation)
of a Conflict of Interest determined by the FDIC is a situation in which an individual who is not a Lessor’s Affiliate,
but has a direct or indirect equity interest in the Lessor, or directly or indirectly controls the Lessor, has been
convicted of a Fraud Offense.
C. Default on a Material Obligation means a loan or advance from an Insured Depository Institution which has been
delinquent for 90 or more days as to payment of principal or interest, or a combination thereof, with a remaining
balance of principal, and accrued interest on the ninetieth day, or any time thereafter, in an amount in excess of
$1,000,000.

FDIC 3700/44 (10-05) Page 11

POLICY STATEMENT ON THE FITNESS AND INTEGRITY OF LESSORS OF REAL PROPERTY TO THE FDIC

D. Family Member means the Lessor’s spouse or dependent child.
E. FDIC means the Federal Deposit Insurance Corporation in its receivership and corporate capacities. It does not
mean the FDIC in its conservatorship capacity or when it is operating a bridge bank.
F. Fraud Offense means any felony offense under the sections of title 18 U.S. Code as listed in Part IX, or similar
offenses under state laws.
G. Insured Depository Institution means any bank or savings association the deposits of which are insured by the
FDIC.
H. Insurer means the FDIC, RTC, FSLIC or their successors; or the Bank Insurance Fund, the Savings and
Association Insurance Fund, the FSLIC Resolution Fund, or funds maintained by the RTC for the benefit of insured
depositors.
I. Lease means a lease or sublease of real property for the use of the FDIC (including its contractors) as tenant,
including but not limited to warehouse, office and retail space. As used herein, “Lease” does not include contracts for
storage services.
J. Lease Amendment means any change to a Lease which extends the term of a Lease, increases the rentable
square footage of the premises leased, or increases the rent paid under the Lease. As used herein, however, “Lease
Amendment” does not refer to the exercise of a priced renewal option or an expansion option at a predetermined rental
rate under any Lease entered into prior to the date of the policy.
K. Lessor means an individual or a Company which intends to or has submitted an Offer to lease or sublease real
property to the FDIC, or which has entered into a Lease or a sublease with the FDIC.
L. Lessor’s Affiliate means:
(1)

If the Lessor is a Company, (a) any general partner of the Lessor, or (b) any beneficial owner of a 25% or
greater equity interest in the Lessor; or

(2)

Any Company of which the Lessor is (a) a general partner, or (b) in which the Lessor is the beneficial owner of
a 25% or greater equity interest; or

(3)

If the Lessor is an individual, any Family Member of the Lessor.

A Lessor’s Affiliate may be either an individual or a Company.
M. Obligation means a commitment to pay money to an Insurer, that is currently owing to, and held by, an Insurer,
and which currently is not performing in accordance with the terms thereof (including any modifications thereto),
including, without limitation, (1) any unsatisfied final judgment, and (2) any guarantee of any Obligation.
N. Offer means a proposal to enter into a Lease.
O. RTC means the Resolution Trust Corporation in any of its capacities.
P. Substantial Loss to Federal Deposit Insurance Corporation Insurance Funds means: An Obligation that is or
has been delinquent for 90 or more days as to payment of principal, interest, or a combination thereof and on which
there remains a legal duty to pay an amount in excess of $50,000. A Substantial Loss to Federal Deposit Insurance
Funds does NOT include situations where the Obligation (1) has been fully resolved and the debtor has been released
in full by the applicable Insurer, or (2) has been sold or transferred by the applicable Insurer and Insurer retains no
interest therein.

FDIC 3700/44 (10-05) Page 12

POLICY STATEMENT ON THE FITNESS AND INTEGRITY OF LESSORS OF REAL PROPERTY TO THE FDIC

IV. Policy
A. General. The FDIC will not consider Offers from Lessors, award Leases to Lessors, or enter into Lease
Amendments with Lessors that either (a) fail to provide any of the information required by this policy; or (b) have
Conflicts of Interest, unless such Conflicts of Interest are eliminated by the Lessor or waived by the FDIC.
B. Waivers. Waivers of Conflicts of Interest will be granted only when, in light of all relevant circumstances, the
Executive Secretary, or the designee of the Executive Secretary determines in his or her discretion that the interests of
the FDIC in entering into a Lease or a Lease Amendment with the Lessor outweigh the concern that a reasonable
person may question the integrity of the FDIC’s operations.
V.

Procedures
A. Conflicts of Interest
(1) Conflicts of Interest in existence prior to submission of an Offer:
(a) A Lessor shall provide all information and certifications required in paragraph V.B. hereof at the time it
makes an Offer to the FDIC.
(b) A Lessor that has a Conflict of Interest as defined at paragraph III.B.(1) through (5) of this policy statement
shall, with its Offer, request that the Conflict of Interest be waived in accordance with paragraph IV.B., or
propose how the Lessor will eliminate the Conflict of Interest.
(c) The Executive Secretary or designee, at his or her discretion, may waive the Conflict of Interest in
accordance with paragraph IV.B., or may approve in writing a Lessor’s proposal to eliminate the Conflict of
Interest for purposes of the specific Lease.
(2) Conflicts of Interest arising after submission of an Offer but prior to entering into a Lease:
(a) If, after submitting its Offer, but prior to entering into a Lease, a Lessor discovers that it has a Conflict of
Interest, it must notify the FDIC in writing within five business days of such discovery. The Lessor shall include
with such notification a detailed description of the Conflict of Interest, and (i) a statement of how it intends to
eliminate the Conflict of Interest; or (ii) a request for a waiver of the Conflict of Interest.
(b) The Executive Secretary or designee, at his or her discretion, may waive the Conflict of Interest in
accordance with paragraph IV.B., or may approve in writing a Lessor’s proposal to eliminate the Conflict of
Interest for purposes of the specific Lease.
(3) Conflicts of Interest that arise after entering into a Lease. FDIC Lease agreements shall require that the
Lessor notify the FDIC in writing within five business days after discovering a Conflict of Interest that arises after the
Lessor and the FDIC have entered into a Lease. The Lessor shall include with such notification a detailed
description of the Conflict of Interest, and either (i) a statement of how it intends to eliminate the Conflict of Interest;
or (ii) a request for a waiver of the Conflict of Interest. After receipt of such notice from the Lessor, the FDIC shall
take such action as it determines is in the FDIC’s best interests, including:
(a) The FDIC shall notify the Lessor in writing of its findings as to whether a Conflict of Interest exists. If the
FDIC finds that a Conflict of Interest exists, the FDIC shall also notify the Lessor in writing of the basis for such
determination, and when applicable:
(i)

whether a waiver will be granted, and if so, the terms and conditions of such waiver; or

(ii) a description of the corrective actions, if any, that the Lessor will take in order to eliminate the Conflict
of Interest. Corrective actions must be completed by the Lessor not later than 30 days after notification is
mailed by the FDIC unless the FDIC, in its sole discretion, determines that it is in the best interests of the
FDIC to grant the Lessor an extension in which to complete such corrective action.
(b) Unless the FDIC waives the Conflict of Interest or the Lessor eliminates the Conflict of Interest, the FDIC
shall not enter into any Lease Amendments with the Lessor.

FDIC 3700/44 (10-05) Page 13

POLICY STATEMENT ON THE FITNESS AND INTEGRITY OF LESSORS OF REAL PROPERTY FOR THE FDIC

(4) Conflicts of Interest discovered by the FDIC. The FDIC will review all information provided by the Lessor
with its Offer, as well as information from other sources that the FDIC determines is relevant. If the FDIC, in its sole
discretion determines, based on such reviews, that a Conflict of Interest exists, an FDIC representative shall notify
the Lessor of the basis for such determination.
(a)

If the FDIC discovers a Conflict of Interest after submission of an Offer, but prior to entering into a Lease:
(i)

The Lessor must respond to the FDIC in writing, within five business days of the FDIC’s notification of
its determination in one of the following ways.
[1] stating how it intends to eliminate the Conflict of Interest; or
[2] requesting that the FDIC waive the Conflict of Interest; or
[3] if the FDIC’s determination was based solely on information from a source other than the Lessor,
and the Lessor can demonstrate that such information was incomplete or incorrect, the Lessor may
provide additional or corrected facts and request that the FDIC consider such facts and reevaluate its
determination that a Conflict of Interest exists. After reviewing the Lessor’s additional or corrected
information, the FDIC will notify the Lessor promptly whether it confirms its determination that a
Conflict of Interest exists.

(ii) If the Lessor does not respond in writing to the FDIC within five business days, the FDIC shall deem
the Lessor’s Offer to have been withdrawn.
(b) If the FDIC discovers a Conflict of Interest after entering into a Lease, the FDIC shall take such action as
it determines is in the FDIC’s best interest, including the actions described in V.A.(3)(a) and (b). As detailed at
V.A.(4)(a)(i)[3], the Lessor can request that the FDIC reevaluate its determination if the FDIC’s determination
was based soley on information from a source other than the Lessor, and the Lessor can demonstrate that
such information was incomplete or incorrect. After reviewing the Lessor’s additional or corrected information,
the FDIC will notify the Lessor promptly whether or not it will reverse its determination that a Conflict of Interest
exists.
(5) Reconsideration of decisions. The Lessor may request that the chairman or designee(s) reconsider FDIC
decisions regarding acceptance of a Lessor’s proposal for the elimination of a Conflict of Interest, or the issuance of
a requested waiver to a Conflict of Interest. Such requests must be in writing and contain the reasons for the
request. The Chairman or designee(s) shall have the right to decline reconsideration.
B. Information required to be submitted:
(1) Initial Submission. Every Lessor shall submit a completed “FDIC Leasing Representations and Certifications”
form, including Part II, “Lessor Fitness and Integrity Certifications” and such other information as the FDIC may
deem appropriate to permit it to make a determination with respect to Conflicts of Interest at the time the Lessor
submits an Offer and prior to entering into any Lease Amendment. Among other items, the form shall require that
the Lessor provide the following:
(a) Certifications that no Conflict of Interest, as defined in paragraph III.B(1) through (5) exists, or;
(b) In the event that one or more Conflicts of Interest exist, the following information:
(i)
When applicable, a description of any lawsuit in which the Lessor or any Lessor’s Affiliate is adverse
to the FDIC, RTC, FSLIC, or their successors and for which no final adjudication or settlement has
occurred;
(ii) When applicable, a list and description of any instance during the five years preceding the
submission of the Offer in which the Lessor or any Lessor’s Affiliate has caused a Substantial Loss to
Federal Deposit Insurance Funds;
(iii) When applicable, a list and description of any Fraud Offense of which the Lessor or any Lessor’s
Affiliate has been convicted;
(iv) When applicable, a list and description of any instance during the five years preceding the
submission of the Offer in which the Lessor or any Lessor’s Affiliate has Defaulted on a Material
Obligation;

FDIC 3700/44 (10-05) Page 14

POLICY STATEMENT ON THE FITNESS AND INTEGRITY OF REAL PROPERTY FOR THE FDIC
(v) When applicable, a list and description of any instances in which the Lessor or any Lessor’s Affiliate
has been removed from or prohibited from participating in the affairs of any Insured Depository Institution
pursuant to any final enforcement action by the Office of the Comptroller of the Currency, the Office of
Thrift Supervision, the Board of Governors of the Federal Reserve System, or the FDIC or their
successors; and
(vi) The Lessor’s request for waiver of such Conflicts of Interest or proposal for elimination of such
Conflicts of Interest.
(c) A description of any commitment to pay $50,000 or more to an Insurer that has been fully released by the
Insurer, but for which the Insurer received less then 100% (including interest, late charges, and other costs of
collection) of the amount due; and
(d) Any other information which the FDIC may deem appropriate.
(2) Subsequent Submissions. FDIC Lease agreements shall require that during the term of the Lease, the
Lessor shall:
(a) Immediately notify the FDIC if any of the information submitted pursuant to this policy was incorrect at the
time of submission or has subsequently become incorrect; and
b) At any time, submit such information as the FDIC requests in order to permit the FDIC to determine if a
Conflict of Interest exists.
(3) Failure to provide information. Any Lessor who fails to provide any of the information required by this policy
will neither be considered for, nor eligible for, the award of a Lease or a Lease Amendment.
(4) Misstatement of Material Fact. Any Lessor who misstates or fails to disclose to the FDIC a material fact or
any Conflict of Interest, as defined in paragraph III.B.(1) through (5), whether prior to or during the term of the
Lease, will not be considered eligible for the award of any Lease or Lease Amendment.
VI. Lease agreement requirements.
A. Retention of information. FDIC Lease agreements shall specify that the Lessor shall retain the information upon
which it relied in preparing its certification(s) during the term of the Lease and for a period of three years following the
termination or expiration of the Lease or any extension thereof, and shall make such information available for review by
the FDIC upon request.
B.

Response to requests for additional information. FDIC Lease agreements shall specify that any Lessor who
fails to respond to a request for information made by the FDIC pursuant to Section V.B.2.(b) of this policy, shall be
in default under the Lease for which such information was requested.

Additional Lease agreement provisions. In addition to the provisions of this policy, the FDIC may include in its
Lease agreements such provisions, conditions, and limitations as the FDIC deems necessary, including additional
standards for Lessor fitness and integrity, and minimum standards of ethical responsibility for Lessors.

VI. Lease agreement requirements.
D. Retention of information. FDIC Lease agreements shall specify that the Lessor shall retain the information upon
which it relied in preparing its certification(s) during the term of the Lease and for a period of three years following the
termination or expiration of the Lease or any extension thereof, and shall make such information available for review by
the FDIC upon request.
E.

FDIC 3700/44 (10-05) Page 15

POLICY STATEMENT ON THE FITNESS AND INTEGRITY OF LESSORS OF REAL PROPERTY FOR THE FDIC

VII. Delayed compliance in emergencies. In emergencies, when unforeseeable circumstances make it necessary to
enter into a Lease immediately in order to protect FDIC personnel or property, the FDIC may delay compliance with this
policy.
VIII. Finality of determination. Any determination made by the FDIC pursuant to this policy shall be in the FDIC’s sole
discretion and shall not be subject to further review, except as otherwise provided pursuant to a specific Lease agreement.
IX. General. Felony offenses as used in the standards set forth in this statement of policy mean the following statutes that
establish standards to which a Lessor’s conduct must conform and which shall not have been violated. The list is as follows:
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
L.
M.
N.
O.
P.
Q.
R.
S.

Bribery of Public Officials (18 U.S.C. 201).
Offer of a loan or gratuity to bank examiners (18 U.S.C. 212).
Continuing financial crimes enterprise (18 U.S.C. 225).
Taking or using papers relating to claims (18 U.S.C. 285).
Conspiracy to defraud the Government with respect to claims (18 U.S.C. 286).
False, fictitious, or fraudulent claims (18 U.S.C. 287).
Bonds and obligations or certain lending agencies (18 U.S.C. 493).
Contractors’ bonds, bids, and public records (18 U.S.C. 494).
Contracts, deeds, and powers of attorney (18 U.S.C. 495).
Chapter 31 Embezzlement and Theft (18 U.S.C. 642 through 668).
Statements or entries generally (18 U.S.C. 1001).
Possession of false papers to defraud the United States (18 U.S.C. 1002).
Bank entries, reports, and transactions (18 U.S.C. 1005).
Federal credit institution entries, reports and transactions (18 U.S.C. 1006).
Federal Deposit Insurance Corporation transactions (18 U.S.C. 1007).
Loans and credit applications generally (18 U.S.C. 1014).
Concealment of assets from a conservator, receiver, or liquidating agent of financial institution (18 U.S.C. 1032).
Chapter 63 Mail Fraud (18 U.S.C. 1341 through 1344).
Laundering of monetary instruments (18 U.S.C. 1956).

th
By order of the Board of Directors, dated at Washington, D.C., this 6 day of February 1996.

[Source: 61 Fed. Reg. 5554, February 13, 1996, effective February 6, 1996; 61 Fed. Reg. 19939, April 26, 1996]

FDIC 3700/44 (10-05) Page 16

File Type	application/pdf
File Title	FDIC 3700/44, FDIC Leasing Representations and Certifications
Subject	Leasing Representations and Certifications
Author	Jill Ballina
File Modified	2006-03-27
File Created	2005-10-12