Exhibit 1.1
CS FIRST BOSTON MORTGAGE SECURITIES CORP.
Depositor
Commercial/Multifamily Mortgage Pass-Through Certificates
October 12, 1994
UNDERWRITING AGREEMENT
(Standard Terms)
CS FIRST XXXXXX XXXXXXXXXXX
Xxxx Xxxxxx Xxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. CS First Boston Mortgage Securities Corp.,
a Delaware corporation (the "Depositor"), proposes to form one or more grantor
trusts or real estate mortgage investment conduits (the "Trusts"), which will
issue, from time to time, securities entitled Commercial/Multifamily Mortgage
Pass-Through Certificates or other titles to be designated from time to time
(the "Certificates") in one or more series (the "Securities"). Each Certificate
will evidence a fractional undivided, percentage interest or beneficial interest
in a Trust. The Trusts, in the aggregate, will issue, on terms determined at the
time of sale, up to $640,693,943 of the Certificates on the terms specified in
the applicable Prospectus (as hereinafter defined). The property of each Trust
may consist of a pool of one or more mortgage loans secured by first or junior
liens on commercial real estate properties, multifamily residential properties
and/or mixed residential/commercial properties and may also include
participation interests in such types of mortgage loans, installment contracts
for the sale of such types of properties and/or mortgage pass-through
certificates (collectively, the "Mortgage Loans") that are purchased by the
Depositor from various sellers (each an "Unaffiliated Seller") pursuant to an
agreement regarding the sale of the Mortgage Loans (the "Sale Agreement"), dated
the date of the Terms Agreement (as hereinafter defined) or the applicable
Specified Delivery Date (as hereinafter defined), between the Unaffiliated
Seller and the Depositor and are serviced by the Unaffiliated Seller in its
capacity as servicer (the "Servicer") pursuant to, if specified in the Terms
Agreement, a Seller's Warranties and Servicing Agreement (the "Servicing
Agreement"), dated as of the date set forth in the Terms Agreement, between the
Depositor and the Unaffiliated Seller and a Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), dated as of the date set forth in the Terms
Agreement, between the Depositor and certain qualified national banking
associations or corporations, as Trustee (in each case, the "Trustee") and
certain related property to be conveyed to the Trust by the Depositor (the
"Trust Fund"). The Mortgage Loans in the Trust Fund for a Series will be
transferred to the related
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Trust and the Certificates to which this Agreement applies will be issued
pursuant to the Pooling and Servicing Agreement.
Credit enhancement with respect to the Mortgage Loans included
in the Trust Fund for a Series may be provided by a letter of credit issued
pursuant to a Letter of Credit Agreement, in each case, dated as of the date set
forth in the Terms Agreement, between the Depositor and a bank or financial
institution named therein (the "Letter of Credit Bank"), or a certificate
guarantee insurance policy (the "Guarantee Policy") issued pursuant to a
Certificate Guarantee Insurance Policy Agreement, in each case, dated as of the
date set forth in the Terms Agreement, by and between the Depositor and an
insurance company named therein (the "Guarantor"), which Guarantee Policy will
guarantee timely distributions of interest and full distributions of principal,
as specified in the Pooling and Servicing Agreement with respect to such Series.
If so specified in the Pooling and Servicing Agreement with respect to a Series,
in lieu of, or in addition to, the foregoing methods of credit enhancement,
credit support may be provided by the subordination of a class or subclass of
Certificates or a fund may be established (the "Reserve Fund") into which
payments on or with respect to a percentage of the Mortgage Loans included in
the Trust Fund, as specified in such Pooling and Servicing Agreement, will be
deposited. If so specified in the Pooling and Servicing Agreement with respect
to a Series, the Trust Fund for a Series of Certificates may also include one or
more accounts or funds established by the Depositor pursuant to such Pooling and
Servicing Agreement, or one or more methods of credit enhancement in lieu of, or
in addition to, the methods of credit enhancement specified above (the
"Alternative Credit Enhancement").
The performance of the obligations of the Servicer under each
Servicing Agreement may be guaranteed by a bond, insurance policy, corporate
guaranty or other form of insurance coverage (the "Performance Bond") issued by
the entity specified in the applicable Servicing Agreement.
The Certificates are more fully described in the Registration
Statement, which the Depositor has furnished to you. Each Series of Certificates
and any classes or subclasses of Certificates (each, a "Class" or "Subclass,"
respectively) within such Series may vary, among other things, as to the number
and types of Classes or Subclasses, the aggregate principal or notional amount
or aggregate stated principal balance, the pass-through rate with respect to the
Mortgage Loans in the related Trust Fund, the percentage interest, if any,
evidenced by each Class or Subclass in the payments of principal and interest
on, or with respect to, the Mortgage Loans included in the related Trust Fund,
the stated principal balance and interest rate, if any, the priority of payment
among Classes or Subclasses, the method of credit enhancement with respect to
the Mortgage Loans in the Trust Fund for such Series, whether the Depositor will
elect to treat the related Trust Fund as a "real estate mortgage investment
conduit" (a "REMIC") under the Internal Revenue Code of 1986, as amended (the
"Code"), the Classes or Subclasses of Certificates of such Series subject to
this Agreement, and any other variable terms contemplated by the Pooling and
Servicing Agreement and in the Certificates of such Series.
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Each offering of the Certificates to which this Agreement
applies made pursuant to the Registration Statement will be made through you,
through you and other underwriters for whom you are acting as representative or
through an underwriting syndicate managed by you. Whenever the Depositor
determines to form a Trust and to make such an offering of Certificates, it will
enter into an agreement (the "Terms Agreement") providing for the sale of such
Certificates to, and the purchase and offering thereof by, (i) you, (ii) you and
such other underwriters who execute the Terms Agreement and agree thereby to
become obligated to purchase Certificates from the Depositor, or (iii) you and
such other underwriters, if any, selected by you as have authorized you to enter
into such Terms Agreement on their behalf (in each case, the "Underwriters").
Such Terms Agreement shall specify the fractional undivided interest, principal
or notional amount, or stated principal balance, of each Class or Subclass of
the Certificates to be issued and their terms not otherwise specified in the
related Pooling and Servicing Agreement, the Classes or Subclasses of
Certificates subject to this Agreement, the price at which such Certificates are
to be purchased by the Underwriters from the Depositor, the aggregate amount of
Certificates to be purchased by you and any other Underwriter that is a party to
such Terms Agreement and the initial public offering price or the method by
which the price at which such Certificates are to be sold will be determined.
The Terms Agreement, which shall be substantially in the form of Exhibit A
hereto, may take the form of an exchange of any standard form of written
telecommunication between or among the Underwriters and the Depositor. Each such
offering of the Certificates will be governed by this Agreement, as supplemented
by the applicable Terms Agreement, and this Agreement and such Terms Agreement
shall inure to the benefit of and be binding upon the Underwriters participating
in the offering of such Certificates.
2. Representations and Warranties of the Depositor. The
Depositor represents and warrants to you as of the date hereof and to
Underwriters named in the applicable Terms Agreement as of the date of such
Terms Agreement, as follows:
(a) a registration statement on Form S-3 (No. 33-82354),
including a prospectus and such amendments thereto as may have been required to
the date hereof, relating to the Certificates and the offering thereof from time
to time in accordance with Rule 415 under the Securities Act of 1933, as amended
(the "Act"), has been filed with the Securities and Exchange Commission (the
"Commission") and such registration statement, as amended, has become effective;
such registration statement, as amended, and the prospectus relating to the sale
of the Certificates offered thereby by the Depositor constituting a part
thereof, as from time to time amended or supplemented (including any prospectus
filed with the Commission pursuant to Rule 424(b) of the rules and regulations
of the Commission (the "Rules and Regulations") under the Act), are respectively
referred to herein as the "Registration Statement" and the "Prospectus";
provided, however, that a supplement to the Prospectus prepared pursuant to
Section 5(a) hereof shall be deemed to have supplemented the Prospectus only
with respect to the offering of the Series of the Certificates to which it
relates; and the conditions to the use
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of a registration statement on Form S-3 under the Act, as set forth in the
General Instructions to Form S-3, and the conditions of Rule 415 under the Act,
have been satisfied with respect to the Registration Statement;
(b) on the effective date of the Registration Statement, the
Registration Statement and the Prospectus conformed in all respects to the
requirements of the Act and the Rules and Regulations, and the Registration
Statement 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 not misleading, and on the date of each Terms Agreement, the
Registration Statement and the Prospectus will conform in all respects to the
requirements of the Act and the Rules and Regulations, and the Prospectus 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
in or omissions from either of the documents based upon written information
(including Computational Materials (as defined herein)) furnished to the
Depositor by any Underwriter specifically for use therein;
(c) the Depositor has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with full corporate power and authority to own its assets and conduct
its business as described in the Prospectus, is duly qualified as a foreign
corporation in good standing in all jurisdictions in which the ownership or
lease of its property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the Depositor, and is conducting its business so as
to comply in all material respects with the applicable statutes, ordinances,
rules and regulations of the jurisdictions in which it is conducting business;
(d) each applicable Pooling and Servicing Agreement,
Servicing Agreement and Sale Agreement and the Certificates of a Series conform,
or will conform as of the Specified Delivery Date (as defined herein), to the
description thereof contained in the Registration Statement and the Prospectus;
and the Certificates of such Series, on the date of such Terms Agreement, will
have been duly and validly authorized and, when such Certificates are duly and
validly executed by the Depositor, authenticated by the Trustee and delivered in
accordance with such Pooling and Servicing Agreement and delivered and paid for
as provided herein and in such Terms Agreement, will be validly issued and
outstanding and entitled to the benefits and security afforded by the Pooling
and Servicing Agreement;
(e) the execution and delivery by the Depositor of this
Agreement, each applicable Terms Agreement, each applicable Pooling and
Servicing Agreement, Servicing Agreement, Sale Agreement and the Certificates of
a Series, are within the
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corporate power of the Depositor and have been, or will have been, duly
authorized by all necessary corporate action on the part of the Depositor; and
neither the execution and delivery by the Depositor of such instruments, nor the
consummation by the Depositor of the transactions herein or therein
contemplated, nor the compliance by the Depositor with the provisions hereof or
thereof, will (A) conflict with or result in a breach of, or constitute a
default under, any of the provisions of the certificate of incorporation or by-
laws of the Depositor, (B) conflict with any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the
Depositor or its properties, (C) conflict with any of the provisions of any
indenture, mortgage, contract or other instrument to which the Depositor is a
party or by which it is bound, or (D) result in the creation or imposition of
any lien, charge or encumbrance upon any of its property pursuant to the terms
of any such indenture, mortgage, contract or other instrument;
(f) this Agreement has been, and at the date thereof, each
applicable Terms Agreement will have been duly authorized, executed and
delivered by the Depositor;
(g) at the date thereof, each applicable Pooling and
Servicing Agreement, Servicing Agreement and Sale Agreement will have been duly
authorized, executed, and delivered by the Depositor and will be a valid and
binding agreement of the Depositor, enforceable against the Depositor in
accordance with its terms, except to the extent that enforcement thereof may be
limited by (1) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally,
and (2) general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity);
(h) all approvals, authorizations, consents, orders or other
actions of any person, corporation or other organization, or of any court,
governmental agency or body or official (except with respect to the state
securities or Blue Sky laws of various jurisdictions), required in connection
with the valid and proper authorization, issuance and sale of the Certificates
of a Series pursuant to this Agreement, the applicable Terms Agreement, and the
applicable Pooling and Servicing Agreement, have been or will be taken or
obtained on or prior to the Specified Delivery Date;
(i) the Reserve Fund, if any, with respect to a Series will
be established in accordance with the applicable Pooling and Servicing Agreement
on or prior to the Specified Delivery Date and a UCC-1 financing statement with
respect to such Reserve Fund naming the Trustee for the benefit of the holders
of the Certificates of such Series as secured party has been, or on the
Specified Delivery Date will have been, filed in the office of the Secretary of
State of the state in which the principal trust office of the Trustee is located
and, upon the purchase by you of the Certificates subject to this Agreement in
the manner contemplated by this Agreement, and the initial deposit of any
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amount required to be deposited therein pursuant to the applicable Pooling and
Servicing Agreement, the Trustee, for the benefit of the holders of the
Certificates will, on the date of such deposit, have a first perfected priority
security interest in such Reserve Fund;
(j) at the Specified Delivery Date, each of the Mortgage
Loans included in the related Trust Fund will meet the criteria for selection
described in the Prospectus;
(k) the characteristics of the Trust Fund with respect to
each Series will not subject the related Trust to registration as an investment
company under the Investment Company Act of 1940, as amended (the "Investment
Company Act").
3. Purchase, Sale and Delivery of Certificates. Delivery of
and payment for the Certificates to which this Agreement applies will be made at
such place and at such time or shall be specified in the applicable Terms
Agreement, or at such other time thereafter as set forth in the applicable Terms
Agreement or as you and the Depositor shall agree upon, each such time being
hereinafter referred to as a "Specified Delivery Date." Delivery of such
Certificates shall be made by the Depositor to the Underwriters against payment
of the purchase price specified in the applicable Terms Agreement in same day
funds wired to such bank as may be designated by the Depositor, or by such other
manner of payment as may be agreed upon by the Depositor and you. Unless
otherwise provided for, the Certificates to be so delivered will be in
definitive, fully registered form, in such denominations and registered in such
names as you request, and will be made available for checking and packaging at
the office of CS First Boston Corporation, Park Avenue Plaza, 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (or at some other location specified by
Underwriter at least 48 hours prior to delivery), at least 24 hours prior to the
applicable Closing Date.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Certificates subject to this Agreement
for sale to the public as set forth in
the Prospectus.
5. Covenants of the Depositor. The Depositor covenants and
agrees with you and the several Underwriters participating in the applicable
offering of the Certificates that:
(a) immediately following the execution of each Terms
Agreement, the Depositor will prepare a Prospectus Supplement setting forth the
amount of Certificates covered thereby and the terms thereof not otherwise
specified in the Prospectus, the price at which such Certificates are to be
purchased by the Underwriters from the Depositor, either the initial public
offering price or the method by which the price at which such Certificates are
to be sold will be determined, the selling concessions and reallowances, if any,
and such other information as you and the Depositor deem appropriate in
connection with the offering of such Certificates, but the Depositor will not
file any amendments to the Registration Statement as in effect with respect to
the Certificates, or
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any amendments or supplements to the Prospectus, unless it shall first have
delivered copies of such amendments or supplements to you, or if you shall have
reasonably objected thereto promptly after receipt thereof; the Depositor will
immediately advise you or your counsel (i) when notice is received from the
Commission that any post-effective amendment to the Registration Statement has
become or will become effective and (ii) of any order or communication
suspending or preventing, or threatening to suspend or prevent, the offer and
sale of the Certificates or of any proceedings or examinations that may lead to
such an order or communication, whether by or of the Commission or any authority
administering any state securities or Blue Sky law, as soon as the Depositor is
advised thereof, and will use its best efforts to prevent the issuance of any
such order or communication and to obtain as soon as possible its lifting, if
issued. Subject to the Underwriter's compliance with its obligations set forth
in Section 8 hereof, the Depositor shall file with the Commission a current
report on Form 8-K including any Computational Materials (as defined herein)
provided to it by the Underwriter pursuant to Section 8 hereof no later than the
date that the Prospectus Supplement is filed;
(b) if, at any time when a Prospectus relating to the
Certificates is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend or
supplement the Prospectus to comply with the Act or the Rules and Regulations,
the Depositor will promptly prepare and file with the Commission, an amendment
or supplement that will correct such statement or omission or an amendment that
will effect such compliance;
(c) the Depositor will make generally available to the
holders of the Certificates (the "Certificateholders") of the related Series, in
each case as soon as practicable, earning statements covering (i) a period of 12
months beginning not later than the first day of the related Trust's fiscal
quarter next following the effective date of the Registration Statement and (ii)
a period of 12 months beginning no later than the first day of such Trust's
fiscal quarter next following the date of the related Terms Agreement which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 of the
Commission with respect to the related Series of Certificates. The Depositor
will cause the Trustee to furnish or make available, within a reasonable time
after the end of each calendar year, to each holder of a Certificate at any time
during such year, such information as the Depositor deems necessary or desirable
to assist Certificateholders in preparing their federal income tax returns;
(d) the Depositor will furnish to you copies of the
Registration Statement, the Prospectus, and all amendments and supplements to
such documents relating to the
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Certificates, in each case as soon as available and in such quantities as you
reasonably request;
(e) the Depositor will arrange for the qualification of the
Certificates for sale and the determination of their eligibility for investment
under the laws of such jurisdictions as you designate and will continue such
qualifications in effect so long as required for the distribution; provided,
however that neither the Depositor nor the applicable Trust shall be required to
qualify to do business in any jurisdiction where it is now not qualified or to
take any action which would subject it to general or unlimited service of
process in any jurisdiction in which it is now not subject to service of
process;
(f) the Depositor will, while the Certificates of a Series
are outstanding:
(i) furnish to you, and upon request to each of the
other Underwriters, within 90 days after the close of each fiscal year,
appropriate annual financial statements of the related Trust, certified by a
nationally recognized firm of independent public accountants, in such form as to
disclose its financial condition at the end of, and the results of its
operations for, such fiscal year;
(ii) furnish to you, and upon request to each of the
other Underwriters, as soon as available, copies of all reports filed with the
Commission and copies of each notice published or mailed to holders of the
Certificates pursuant to the related Pooling and Servicing Agreement; and
(iii) furnish to you, and upon request to each of the
other Underwriters, such other information with respect to the related Trust or
its financial condition or results of operations, as you may reasonably request,
including but not limited to information necessary or appropriate to the
maintenance of a secondary market in the Certificates of such Series;
(g) the Depositor will pay all expenses incident to the
performance of its obligations under this Agreement and the related Terms
Agreement and will reimburse the Underwriters for any expenses (including fees
and disbursements of its counsel) incurred by them in connection with
qualification of the related Series of Certificates and determination of their
eligibility for investment under the laws of such jurisdictions as you may
designate and the printing of memoranda relating thereto, for any fees charged
by such investment rating agencies for the rating of such Certificates and, to
the extent previously agreed upon with you, for expenses incurred in
distributing the Prospectus (including any amendments and supplements thereto)
to the Underwriters; and
(h) during the period when a prospectus is required by law
to be delivered in connection with the sale of a Series of Certificates pursuant
to this Agreement, the
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Depositor will file, or cause the Trustee to file on behalf of the related
Trust, on a timely and complete basis, all documents that are required to be
filed by the related Trust with the Commission pursuant to Sections 13, 14 or
15(d) of the Exchange Act.
6. Conditions to the Obligations of the Underwriters. The
obligations of the several Underwriters named in any Terms Agreement to purchase
and pay for the Certificates of the related Series subject to this Agreement
will be subject to the accuracy of the representations and warranties on the
part of the Depositor as of the date hereof, the date of the applicable Terms
Agreement and the applicable Specified Delivery Date, to the accuracy of the
statements of the Depositor made pursuant to the provisions thereof, to the
performance by the Depositor in all material respects of its obligations
hereunder and to the following additional conditions precedent:
(a) you shall have received two letters of Xxxxxxx Xxxxxxxxx
& Co., one dated the date of the applicable Terms Agreement and the other dated
the date of the applicable Specified Delivery Date, each in the forms heretofore
agreed to;
(b) all actions required to be taken and all filings
required to be made by the Depositor under the Act prior to the sale of the
Certificates of such Series shall have been duly taken or made; and prior to the
applicable Specified Delivery Date, no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted, or to the knowledge of the Depositor or any
Underwriter, shall be contemplated by the Commission;
(c) unless otherwise specified in the applicable Terms
Agreement, the Certificates subject to this Agreement and offered by means of
the Registration Statement shall be rated the ratings specified in the
applicable Terms Agreement;
(d) you shall have received an opinion of Milbank, Tweed,
Xxxxxx & XxXxxx, counsel for the Depositor and the Underwriters, dated the
applicable Specified Delivery Date, substantially to the effect that:
(i) the Depositor has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, with full corporate power and authority to own its assets and
conduct its business as described in the Prospectus, and is duly qualified to do
business as a foreign corporation in the State of New York, which is the
jurisdiction which the Depositor has advised such counsel in writing as the
jurisdiction in which the Depositor owns or leases real property or conducts
material operations;
(ii) this Agreement and the Terms Agreement have been
duly authorized, executed and delivered by the Depositor;
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(iii) the applicable Pooling and Servicing Agreement
has been duly and validly authorized, executed and delivered by the Depositor
and (assuming the due authorization, execution and delivery of the other parties
thereto) is a valid and binding agreement of the Depositor, enforceable against
the Depositor in accordance with its terms, except to the extent that (a)
enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and (2) general principles of equity
regardless of whether enforceability is considered in a proceeding at law or in
equity), and (b) the exercise by the Trustee of certain remedial provisions
contained in the Pooling and Servicing Agreement may be unenforceable in whole
or in part, but the inclusion of such provisions does not affect the validity of
the Pooling and Servicing Agreement, taken as a whole, and the Pooling and
Servicing Agreement, taken as a whole, together with applicable law, contains
adequate provisions for the practical realization by the Trustee of the rights
and benefits purported to be afforded thereby, except for the economic
consequences of any delay that may arise from such unenforceability;
(iv) the applicable Servicing Agreement and Sale
Agreement have been duly authorized, executed and delivered by the Depositor and
(assuming due authorization, execution and delivery of the other parties
thereto) are valid and binding agreements of the Depositor, enforceable against
the Depositor in accordance with their terms, except to the extent that (a)
enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and (2) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or in
equity);
(v) the Certificates of a Series have been duly
authorized by the Depositor and, when the Certificates have been duly executed
and authenticated and issued in accordance with the terms of the Pooling and
Servicing Agreement and delivered to and paid for by you pursuant to this
Agreement and the Terms Agreement, will be entitled to the benefits provided by
the Pooling and Servicing Agreement, except to the extent that enforcement
thereof may be limited by (1) bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights
generally, and (2) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity);
(vi) to the knowledge of such counsel, no consent,
approval, authorization or order of any court or supervisory, regulatory,
administrative or governmental agency, body or official, is required in
connection with the consummation of the transactions contemplated by this
Agreement and the Terms
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Agreement, except such as may have been obtained under the Act and such as may
be required under the state securities or Blue Sky laws of any jurisdiction and
such other approvals as have been obtained;
(vii) 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, and will not become, as a result of the offer and sale of
the Certificates as contemplated in the Prospectus, in this Agreement and in the
Terms Agreement, required to be registered under the Investment Company Act of
1940, as amended;
(viii) the statements in the Prospectus under the
caption "Description of the Certificates" insofar as such statements constitute
a summary of certain terms of the Certificates and the Pooling and Servicing
Agreement, constitute a fair summary of such documents in all material respects;
and the statements in the Prospectus under the caption "ERISA Considerations,"
insofar as they describe federal statutes and regulations, have been prepared or
reviewed by such counsel, and such statements fairly summarize such statutes and
regulations; and the statements in the Prospectus contained under the caption
"Certain Federal Income Tax Consequences," insofar as they constitute matters of
law or legal conclusions with respect thereto, have been prepared or reviewed by
such counsel and are correct in all material respects; and
(ix) either (a) the Trust Fund created by the Pooling
and Servicing Agreement will not be classified as an association taxable as a
corporation for federal income tax purposes or (b) in the event that the
Depositor makes an election to treat the related Trust Fund as a REMIC pursuant
to Section 860D of the Code, the Trust Fund will qualify as a REMIC and each
Certificate will qualify as a regular or residual interest in the Trust Fund.
In addition, you shall have received an opinion of counsel to
the Unaffiliated Seller or an opinion of counsel to the Trustee to the effect
that for income, franchise or excise tax purposes of the State of Illinois, the
Trust will not be classified as an association taxable as a corporation; and
each holder of a Certificate will be treated in the same manner as for Federal
income tax purposes.
The Registration Statement was declared effective under the Act
on August 12, 1994, and to the best knowledge of such counsel, no stop order
suspending its effectiveness has been issued and no proceedings for that purpose
have been instituted or are pending or threatened under the Act.
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With respect to the matter specified in (x) above, the
applicable Terms Agreement shall specify the jurisdictions with respect to which
such opinion shall be rendered. Such opinions may be rendered by such counsel or
by such other counsel satisfactory to you and admitted to practice in such
jurisdiction and either such counsel may rely on Officers' Certificates,
certificates and records of public officials, certificates of the Trustee and
such other certificates as such counsel deems necessary and reasonable;
(e) you shall have received an opinion of counsel to the
Letter of Credit Bank, if any, dated the Specified Delivery Date, and in the
form agreed to on or prior to the date of the applicable Terms Agreement;
(f) you shall have received an opinion of counsel to the
Guarantor, if any, dated the Specified Delivery Date, and in the form agreed to
on or prior to the date of the applicable Terms Agreement;
(g) you shall have received an opinion of counsel to the
issuer of the Alternative Credit Enhancement, if any, dated the Specified
Delivery Date, and in the form agreed to on or prior to the date of the
applicable Terms Agreement;
(h) you shall have received an opinion of counsel to the
issuer of the Performance Bond, if any, dated the Specified Delivery Date, and
in the form agreed to on or prior to the date of the applicable Terms Agreement;
(i) you shall have received an opinion of counsel to the
Trustee, dated the Specified Delivery Date, and in the form agreed to on or
prior to the date of the applicable Terms Agreement;
(j) you shall have received an opinion of counsel to the
Servicer, dated the Specified Delivery Date, and in the form agreed to on or
prior to the date of the applicable Terms Agreement;
(k) you shall have received letters, dated the Specified
Delivery Date, from counsel rendering opinions to any nationally recognized
statistical rating organization rating the applicable Series of Certificates, to
the effect that you may rely upon their opinion to such rating organization, as
if such opinion were rendered to you;
(l) you shall have received a certificate or certificates
signed by such of the principal executive, financial and accounting officers of
the Depositor as you may request, dated the Specified Delivery Date, in
substantially the same form as Exhibit B hereto;
(m) you shall have received a certificate of the Trustee,
signed by one or more
13
duly authorized officers of the Trustee, dated the applicable Specified Delivery
Date, in substantially the same form as Exhibit C hereto;
(n) you shall have received a certificate of the Servicer,
signed by one or more duly authorized officers of the Servicer, dated the
applicable Specified Delivery Date in substantially the same form as Exhibit D
hereto;
(o) you shall have received a certificate of the Letter of
Credit Bank, if any, signed by one or more duly authorized officers of the
Letter of Credit Bank, dated the applicable Specified Delivery Date, and in the
form agreed to on or prior to the date of the applicable Terms Agreement;
(p) you shall have received a certificate of the Guarantor,
if any, signed by one or more duly authorized officers of the Guarantor, dated
the applicable Specified Delivery Date, and in the form agreed to on or prior to
the date of the applicable Terms Agreement;
(q) you shall have received a certificate of the issuer of
the Alternative Credit Enhancement, if any, signed by one or more duly
authorized officers of the issuer of the Alternative Credit Enhancement, dated
the applicable Specified Delivery Date, and in the form agreed to on or prior to
the date of the applicable Terms Agreement;
(r) you shall have received a certificate of the issuer of
the Performance Bond, if any, signed by one or more duly authorized officers of
the issuer of the Performance Bond, dated the applicable Specified Delivery
Date, and in the form agreed to on or prior to the date of the applicable Terms
Agreement; and
(s) the Unaffiliated Seller shall have sold the Mortgage
Loans to the Depositor pursuant to the Sale Agreement.
The Depositor will furnish you with such conformed copies of
such other opinions, certificates, letters and documents as you reasonably
request.
7. Indemnification.
(a) The Depositor will indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of the Act, against any losses, claims, damages or liabilities, joint or
several, to which the Underwriter or such controlling person may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus or any amendment or supplement
thereto, or arise out of or are based
14
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 will reimburse
each Underwriter and each such controlling person for any legal or other
expenses reasonably incurred by such Underwriter and each such controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Depositor 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 in or omission or alleged omission made in any such documents
in reliance upon and in conformity with written information furnished to the
Depositor by an Underwriter specifically for use therein. This indemnity
agreement will be in addition to any liability which the Depositor may otherwise
have;
(b) each Underwriter will indemnify and hold harmless the
Depositor, each of its directors, each of its officers who has signed the
Registration Statement and each person, if any, who controls the Depositor
within the meaning of the Act, against any losses, claims, damages or
liabilities to which the Depositor or any such director, officer, or controlling
person may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or arise out of or are based upon the omission or the
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 will reimburse any legal or other
expenses reasonably incurred by the Depositor or any such director, officer or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Depositor by such Underwriter specifically for use
therein. This indemnity agreement will be in addition to any liability that such
Underwriter may otherwise have;
(c) promptly after receipt by an indemnified party under
this Section 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, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than in this
Section. In case any such action is brought against any indemnified party, and
it notified the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and, to the extent that it may
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such
15
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; and
(d) if recovery is not available under the foregoing
indemnification provisions of this Section for any reason other than as
specified therein, the parties entitled to indemnification by the terms thereof
shall be entitled to contribution to liabilities and expenses, except to the
extent that contribution is not permitted under Section 11(f) of the Act. In
determining the amount of contribution to which the respective parties are
entitled, there shall be considered the relative benefits received by each party
from the offering of the Certificates subject to this Agreement (taking into
account the portion of the proceeds of the offering realized by each), the
parties' relative knowledge and access to information concerning the matter with
respect to which the claim was asserted, the opportunity to correct and prevent
any statement or omission, and any other equitable considerations appropriate
under the circumstances. The Depositor and the Underwriters agree that it would
not be equitable if the amount of such contribution were determined by pro rata
or per capita allocation (even if the Underwriters were treated as one entity
for such purpose). No Underwriter or person controlling such Underwriter shall
be obligated to make contribution hereunder which in the aggregate exceeds the
total public offering price of the Certificates purchased by such Underwriter
under this Agreement, less the aggregate amount of any damages which such
Underwriter and its controlling persons have otherwise been required to pay in
respect of the same claim or any substantially similar claim.
8. Computational Materials.
(a) The Underwriter agrees to provide to the Depositor no
less than two business days prior to the date on which the Prospectus is
proposed to be filed pursuant to Rule 424(b) under the Act, for the purpose of
permitting the Depositor to comply with the filing requirement set forth in
Section 5(a), all information (in such written or electronic format as required
by the Depositor) with respect to the Certificates which constitutes
"Computational Materials", as defined in the Commission's No-Action Letter,
dated May 20, 1994, addressed to Xxxxxx, Xxxxxxx Acceptance Corporation I,
Xxxxxx, Peabody & Co. Incorporated and Xxxxxx Structured Asset Corporation (the
"Xxxxxx Letter"), and that is required to be filed as described in the Xxxxxx
Letter.
(b) The Underwriter shall provide to the Depositor, together
with the information required to be provided to the Depositor pursuant to
Section 8(a) or 8(c)(ii) hereof, a letter, in form and substance acceptable to
the Depositor, of independent certified public accountants acceptable to
Depositor, stating in effect that such independent certified public accountants
have performed certain specified procedures, all of which have been agreed to by
the Depositor, and that they have verified or confirmed, as appropriate, the
financial, numerical or statistical information to be filed by the Depositor as
part of the Computational Materials and
16
have found such information to be accurate without exception. Such letter will
be obtained at the sole expense of the Underwriter.
(c) (i) The Underwriter represents and warrants to, and
covenants with, the Depositor that all information provided to the Depositor
pursuant to this Section 8, as of the date such information is so provided and
as of the date such information is filed by the Depositor with the Commission
will not include any untrue statements of a material fact and will not omit to
state any material facts required to be stated therein or necessary to make the
statements contained therein, in the light of the circumstances under which they
were made, not misleading.
(ii) The Underwriter further covenants with the
Depositor that if any Computational Materials required to be provided to the
Depositor pursuant to Section 8(a) are determined to contain any information
that is inaccurate or misleading, the Underwriter (whether or not such
Computational Materials were provided to the Depositor or filed by the Depositor
with the Commission) shall promptly prepare and deliver to the Depositor and
each prospective investor which received such Computational Materials corrected
Computational Materials. All information provided to the Depositor pursuant to
this Section 8(c)(ii) shall be provided within the time periods set forth in
Section 8(a) hereof.
(iii) The Underwriter represents and warrants to the
Depositor that the Underwriter has taken all necessary and required steps to
ensure that no written material of any kind relating to the Certificates (or any
certificates similar to the Certificates) will be delivered to potential
investors other than Computational Materials and that all Computational
Materials required to be filed pursuant to the Xxxxxx Letter will be provided to
the Depositor and to ensure that all such Computational Materials are accurate
and not misleading.
(iv) The Underwriter covenants with Depositor that
all Computational Materials delivered to prospective investors shall contain the
following legend:
"THIS INFORMATION IS FURNISHED TO YOU SOLELY BY CS FIRST BOSTON
CORPORATION AND NOT BY CS FIRST BOSTON MORTGAGE SECURITIES CORP. (THE
"DEPOSITOR") OR ANY OF ITS AFFILIATES (OTHER THAN THE UNDERWRITER). CS FIRST
BOSTON CORPORATION IS NOT ACTING AS AGENT FOR THE DEPOSITOR IN CONNECTION WITH
THE PROPOSED TRANSACTION."
(d) The Underwriter agrees to indemnify and hold harmless
the Depositor, each of the Depositor's officers and directors and each person
who controls the Depositor within the meaning of either the Act or the Exchange
Act against any and all losses, claims, damages or liabilities, joint or
several, to which they may become subject under the Act, the Exchange Act, or
other Federal or State statutory law or regulation, at common law or otherwise,
insofar
17
as such losses, claims, damages or liabilities (or actions in respect thereof)
(i) are based on, result from or arise out of: (A) the Underwriter's use or
delivery to any prospective investor in the Certificates of any Computational
Materials; (B) the Underwriter's failure to comply with Section 8(a) or 8(c)
hereof; (C) the filing by the Depositor with the Commission of any information
pursuant to the last sentence of Section 5(a); or (ii) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in any information required to be delivered to the Depositor pursuant
to Section 8(a) or 8(c) hereof, 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 the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by him, her or it in connection with investigating or defending any
such loss, claim, damage, liability or action. The obligations of the
Underwriter under this Section 8 shall be in addition to any liability which the
Underwriter may otherwise have.
The procedures set forth in Section 7(c) shall be equally
applicable to this Section 8(d).
(e) In order to provide for just and equitable contribution
in circumstances in which the indemnification provided for in paragraph (d) of
this Section 8 is due in accordance with its terms but is for any reason held by
a court to be unavailable from the Underwriter on the grounds of policy or
otherwise, the Depositor and the Underwriter shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to which
the Depositor and the Underwriter may be subject in such proportion as is
appropriate to reflect the relative fault of the Underwriter on the one hand and
the Depositor on the other in connection with the actions, statements or
omissions that resulted in such losses, claims, damages or liabilities. The
relative fault of the Underwriter on the one hand and the Depositor on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Underwriter or
by the Depositor and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriter and the Depositor agree that it would not be
just and equitable if contribution pursuant to this Section 8(e) were determined
by pro rata allocation or by any other method of allocation that does not take
into account the equitable contribution referred to in the immediately preceding
paragraph.
The right of contribution to which the Depositor is entitled
under this paragraph (e) shall be equally available to each of the Depositor's
officers and directors and each person who controls the Depositor within either
the meaning of the Act or the Exchange Act.
18
(f) Notwithstanding any other provision herein, the
Underwriter agrees to pay all costs and expenses of the Depositor incurred in
connection with (i) the filing by the Depositor of any Computational Material
with the Commission and (ii) any action by the Depositor against the Underwriter
to enforce any of its rights set forth in this Section 8, including, without
limitation, legal fees and expenses.
9. Default of Underwriters. If any Underwriter or
Underwriters participating in an offering of Certificates default in their
obligations to purchase Certificates hereunder and under the Terms Agreement and
the aggregate principal amount of such Certificates which such defaulting
Underwriter or Underwriters agreed, but failed, to purchase does not exceed 10%
of the total principal amount of the Certificates set forth in such Terms
Agreement, you may make arrangements satisfactory to the Depositor for the
purchase of such Certificates by other persons, including any of the
Underwriters participating in such offering, but if no such arrangements are
made within a period of 36 hours after the applicable Specified Delivery Date,
the non-defaulting Underwriters shall be obligated severally, in proportion to
their respective total commitments hereunder and under such Terms Agreement, to
purchase the Certificates which such defaulting Underwriter or Underwriters
agreed but failed to purchase. If any Underwriter or Underwriters so default and
the aggregate principal amount of Certificates with respect to which such
default or defaults occur is more than 10% of the total principal amount of the
Certificates set forth in such Terms Agreement and arrangements satisfactory to
you and the Depositor for the purchase of such Certificates by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any nondefaulting Underwriter or the Company,
except as provided in Section 10. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
10. Termination of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Certificates on the Specified
Delivery Date shall be terminable by the Underwriters if (a) at any time on or
prior to the Specified Delivery Date (i) trading in securities generally on the
New York Stock Exchange shall have been suspended or materially limited, or
there shall have been any setting of minimum prices for trading on such
exchange, (ii) a general moratorium on commercial banking activities in New York
shall have been declared by any Federal or New York State authorities, (iii)
there shall have occurred any material outbreak or escalation of hostilities or
other calamity or crisis, the effect of which on the financial markets of the
United States is such as to make it, in your judgment as representative of the
Underwriters, impracticable to consummate the transactions contemplated herein
or is such as would materially and adversely affect the marketability of or the
market price for the Certificates or (iv) any change or any development
involving a prospective change occurs, materially and adversely affecting (A)
the Trust Fund taken as a whole or (B) the business or properties of the
Depositor, which, in your reasonable judgment as representative of the
Underwriters, in the case of either (A) or (B), materially impairs the
investment quality of the Certificates or (b) any representation or warranty of
another party shall be incorrect in
19
any material respect.
11. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements by the Depositor or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation or statement as to the results thereof,
made by or on behalf of the Underwriters, the Depositor or any of its officers
or directors or any controlling person, and will survive delivery of and payment
of the Certificates.
If this Agreement is terminated pursuant to Section 9 or 10 or
if for any reason the purchase of the Certificates by the Underwriters is not
consummated, the Depositor shall remain responsible for the expenses to be paid
or reimbursed by it pursuant to Section 5(g), and the obligations of the
Depositor and the Underwriters pursuant to Section 7 or 8 shall remain in
effect.
12. Notices. All communications hereunder will be in writing
and, if sent to an Underwriter, will be mailed, delivered or telegraphed and
confirmed to Park Avenue Plaza, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
and to any other Underwriter at such address, if any, as is specified in writing
to the Depositor for notices hereunder, or if sent to the Depositor, will be
mailed, delivered or telegraphed and confirmed to it at Park Avenue Plaza, 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: President; provided,
however, that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or telegraphed to such Underwriter at the address furnished by it.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 7 hereof, and
their successors and assigns, and no other person will have any right or
obligation hereunder.
14. Representations of Underwriters. You will act for the
several Underwriters in connection with this financing, and any action under
this Agreement and any Terms Agreement taken by you will be binding upon all the
Underwriters identified in such Terms Agreement.
15. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon it will
become a binding agreement among the Depositor and the several Underwriters in
accordance with its terms. Alternatively, the execution of this Agreement by the
Depositor and its acceptance by or on behalf of the Underwriters may be
evidenced by an exchange of telegraphic or other written communications.
20
Very truly yours,
CS FIRST BOSTON MORTGAGE SECURITIES CORP.,
as Depositor
By: /s/ Xxxxx X. Xxxx
--------------------------------------
Name: Xxxxx X. Xxxx
Title: Director
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
CS FIRST BOSTON CORPORATION
as Underwriter
By: /s/ Xxxx X. Xxxxxx
--------------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
EXHIBIT A
CS FIRST BOSTON MORTGAGE SECURITIES CORP.
(DEPOSITOR)
COMMERCIAL/MULTIFAMILY MORTGAGE
PASS-THROUGH CERTIFICATES
TERMS AGREEMENT
Dated: , 1994
To: CS First Boston Mortgage Securities Corp., as Depositor under
the Pooling and Servicing Agreement dated as of , 1994.
Re: Underwriting Agreement dated , 1994.
Registration Statement No. 33-
Basic Prospectus dated , 1994
Prospectus Supplement dated , 1994
Title:Commercial/Multifamily Mortgage Pass-Through Certificates, Series 1994,
Class ______
Pooling and Servicing Agreement dated as of 1, 1994.
Seller's Warranties and Servicing Agreement dated as of 1, 1994.
Principal Amount:$ (approximate)
Class Designation Schedule:[insert relevant description of Classes of
Certificates]
Class [A] Certificate Rating:[" " by Xxxxx'x Investors Service, Inc.] [" " by
Standard & Poor's Corporation]
[Initial Pass-Through Rate: % per annum.
Terms of Sale: The purchase price for the Class [A] Certificates to the
Underwriters will be % of the aggregate principal amount of the Class
[A] Certificates as of , 19 , plus accrued interest at the initial
Pass-Through Rate from 19 , together with estimated expenses of
approximately $___________ [The Underwriters will offer the Class [A]
Certificates to the public from time to time, in negotiated transactions or
otherwise, at varying prices to be determined at the time of sale.] [The
Underwriters will offer the Class [A]
A-1
Certificates to the public at the following prices [(expressed as a percentage
of the original principal amount or notional amount of such Class,
respectively)]: Class A-[1], _% [; Class A-2, _%; Class A-3, _% [and] Class A-4,
_%]].
[The Class [B] Certificates issued pursuant to the Pooling and Servicing
Agreement are not subject to this Agreement.]
Contracts: [Insert description of Contracts], as more fully described in Exhibit
A hereto.
[Distribution Dates: .]
Opinion of Counsel: The jurisdiction specified in Paragraph (xi) of the opinion
of counsel to be delivered pursuant to Section 6(d) of the Underwriting
Agreement shall be the States of and .
Specified Delivery Date and Location: : A.M., New York Time, on , 19
or at such other time not later than seven full business days
thereafter as may be agreed upon, at the offices of [Milbank, Tweed, Xxxxxx
& XxXxxx, New York, New York 10005] [Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx, New York,
New York]
[The Certificates will be issued as one or more certificates registered in the
name of Cede & Co., the nominee of The Depository Trust Company. Beneficial
owners will hold interests in the Certificates through the book-entry facilities
of The Depository Trust Company in minimum denominations in initial Certificate
Principal Balance of $ and in integral multiples of $ in
excess thereof. No person acquiring an Offered Certificate will be entitled to
receive a physical certificate representing such Certificate.].
[The Certificates will be delivered in definitive, fully registered form.]
The Underwriters named in Schedule 1 hereto agree[s], severally
and not jointly], subject to the terms and provisions of the Agreement, which is
incorporated by reference herein and made a part hereof, to purchase the
[numbers of Single] Certificates [set forth opposite their names in Schedule 1].
Capitalized terms not otherwise defined herein shall have the
meanings assigned to them in the Prospectus Supplement.
CS FIRST BOSTON CORPORATION
By
----------------------------
Vice President
A-2
Accepted
CS FIRST BOSTON MORTGAGE
SECURITIES CORP.
By
-------------------------------
A-3
EXHIBIT B
CS FIRST BOSTON MORTGAGE SECURITIES CORP.
OFFICER'S CERTIFICATE
I, , do hereby certify that I
am the duly elected of CS First Boston Mortgage Securities
Corp., a Delaware corporation (the "Company") and further certify as follows.
Capitalized terms used but otherwise not defined herein shall have the meanings
ascribed to them in the Underwriting Agreement, dated , 1994,
between the Company and CS First Boston Corporation (the "Underwriting
Agreement").
1. The representations and warranties of the Company in the
Underwriting Agreement are true and correct.
2. The Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the Specified Delivery Date.
3. No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or, to my knowledge, are contemplated.
4. Subsequent to the respective dates as of which
information is given in the Prospectus, and except as set forth or contemplated
in the Prospectus, there has not been any material adverse change in the general
affairs, capitalization, financial condition or results of operations of the
Company.
5. Except as otherwise stated in the Prospectus, there are
no material actions, suits or proceedings pending before any court or
governmental agency, authority or body or, to my knowledge, threatened,
affecting the Company or the transactions contemplated by the Underwriting
Agreement, as supplemented by the Terms Agreement, dated , 1994,
between the Company and CS First Boston Corporation.
[6. Attached hereto are true and correct copies of a letter
from the rating agency or agencies rating the Certificates subject to the
Underwriting Agreement confirming that, unless otherwise specified in the
applicable Underwriting Agreement, the Class _ Certificates and the Class _
Certificates have been rated in one of the two highest rating categories
established by such agency or agencies and that such ratings have not been
lowered since the date of such letter.]
IN WITNESS WHEREOF, I have hereunto signed my name and affixed
the seal of the Company.
B-1
Dated: , 1995 CS FIRST BOSTON MORTGAGE SECURITIES
CORP.
By:
Name:
Title:
[Seal]
B-2
EXHIBIT C
LASALLE NATIONAL BANK
OFFICER'S CERTIFICATE
I, , do hereby certify that I am the duly
elected of (the "Trustee"), a National Banking Association
organized under the laws of the United States and further certify as follows.
Capitalized terms used but otherwise not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement, dated as of November 1,
1994 (the "Agreement"), among CS First Boston Mortgage Securities Corp., as
Depositor, the Trustee, as Trustee and Greystone Servicing Corporation, Inc., as
Master Servicer and Greystone Funding Corporation, as Seller.
1. The Trustee has been duly organized and is validly
existing and in good standing under the laws of the United States, duly
qualified to do business as a foreign corporation and in good standing under the
laws of each jurisdiction in which the performance of its duties under the
Agreement would require such qualification.
2. The Agreement has been duly authorized, executed and
delivered by the Trustee and (assuming the due authorization, execution and
delivery of the other parties thereto) is a valid and binding agreement of the
Trustee, enforceable against the Trustee in accordance with its terms, except to
the extent that (a) enforcement thereof may be limited by (1) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, and (2) general principles of
equity (regardless of whether enforceability is considered in a proceeding at
law or in equity).
3. The execution and delivery by the Trustee of the
Agreement is within the corporate power of the Trustee and has been duly
authorized by all necessary corporate action on the part of the Trustee; and
neither the execution and delivery of such instrument by the Trustee nor the
consummation by the Trustee of the transactions therein contemplated, nor
compliance with the provisions thereof by the Trustee, will (A) conflict with or
result in a breach of, or will constitute a default under, any of the provisions
of the articles of association or bylaws of the Trustee or any law, governmental
rule or regulation, or any judgment, decree or order binding on the Trustee or
its properties, or any of the provisions of any indenture, mortgage, deed of
trust, contract or other instrument to which the Trustee is a party or by which
it is bound or (B) result in the creation or imposition of any lien, charge or
encumbrance upon any of its properties pursuant to the terms of any such
indenture, mortgage, deed of trust, contract or other instrument.
4. The Trustee holds all material licenses, certificates
and permits from all governmental authorities necessary for the performance of
its obligations under the Agreement, and has received no notice of proceedings
relating to the revocation of any such license, certificate or permit, which
singly or in the aggregate, if the subject of any unfavorable decision,
C-1
ruling or finding, would materially affect the conduct of the business, results
of operations, net worth or condition (financial or otherwise) of the Trustee;
and the Trustee has the corporate power and authority to perform its obligations
under the Agreement.
IN WITNESS WHEREOF, the undersigned has caused this certificate
to be executed by its officer hereunto authorized, and its corporate seal to be
hereunto affixed this day of, 1995.
LASALLE NATIONAL BANK
By:
---------------------------
Name:
Title:
[Seal]
C-2
EXHIBIT D
GREYSTONE SERVICING CORPORATION, INC.
OFFICER'S CERTIFICATE
I, , do hereby certify that I am the duly
elected of Greystone Servicing Corporation, Inc. (the "Servicer"), a
corporation, and further certify as follows. Capitalized terms used
but otherwise not defined herein shall have the meanings ascribed to them in the
Underwriting Agreement, dated , 1994, between CS First Boston
Mortgage Securities Corp. and CS First Boston Corporation.
1. The Servicer has been duly incorporated and is validly
existing and in good standing under the laws of the State of , duly
qualified to do business as a foreign corporation and in good standing under the
laws of each jurisdiction in which the performance of its duties under the
Seller's Warranties and Servicing Agreement (the "Servicing
Agreement"), dated as of , 1994, between the Servicer and
CS First Boston Mortgage Securities Corp. ("FBMSC"), and the Sale Agreement,
dated , 1994, between the Servicer, [CS First Boston Mortgage
Capital Corp.] and FBMSC (the "Sale Agreement"), would require such
qualification.
2. The Servicing Agreement and the Sale Agreement have been
duly authorized, executed and delivered by the Servicer and (assuming due
authorization, execution and delivery by the other parties thereto) are valid
and binding agreements of the Servicer, enforceable against the Servicer in
accordance with their terms, except to the extent that enforcement thereof may
be limited by (1) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally,
and (2) general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
3. The Servicer has the corporate power and authority to
conduct its business as described in the Prospectus.
4. The execution and delivery by the Servicer of the
Servicing Agreement and the Sale Agreement is within the corporate power of the
Servicer and has been duly authorized by all necessary corporate action on the
part of the Servicer; and neither the execution and delivery of such instruments
by the Servicer, nor the consummation by the Servicer of the transactions
therein contemplated, nor compliance with the provisions thereof by the
Servicer, will (A) conflict with or result in a breach of, or will constitute a
default under, any of the provisions of the certificate of incorporation or
bylaws of the Servicer or any law, governmental rule or regulation, or any
judgment, decree or order binding on the Servicer or its properties, or any of
the provisions of any indenture, mortgage, deed of trust, contract or other
instrument to which the Servicer is a party or by which it is bound or (B)
result in the creation or imposition of any lien, charge or encumbrance upon any
of its properties pursuant to the terms of any such indenture, mortgage, deed of
trust, contract or other instrument.
D-1
5. The Servicer holds all material licenses, certificates
and permits from all governmental authorities necessary for the conduct of its
business as described in the Prospectus and has received no notice of
proceedings relating to the revocation of any such license, certificate or
permit, which singly or in the aggregate, if the subject of any unfavorable
decision, ruling or finding, would materially affect the conduct of the
business, results of operations, net worth or condition (financial or otherwise)
of the Servicer.
IN WITNESS WHEREOF, the undersigned has caused this certificate
to be executed by its officer hereunto authorized, and its corporate seal to be
hereunto affixed this day of , 1995.
GREYSTONE SERVICING CORPORATION, INC.
By:
--------------------------------------
Name:
Title:
[Seal]
D-2
CS FIRST BOSTON MORTGAGE SECURITIES CORP.
(DEPOSITOR)
MORTGAGE PASS-THROUGH CERTIFICATES
TERMS AGREEMENT
Dated: November 15, 1995
To: CS First Boston Mortgage Securities Corp., as Depositor under
the Pooling and Servicing Agreement dated as of November 1,
1995.
Re: Underwriting Agreement dated October 12, 1994.
Registration Statement No. 33-98604
Basic Prospectus dated November 13, 1995
Prospectus Supplement dated November 15, 1995
Title: Mortgage Pass-Through Certificates, Series 1995-FHA1, Class A-1, Class X-
0, Class A-3, Class A-4, Class A-X-1, Class A-X-2 Class A-X-3 and Class A-X-4
(together, the "Underwritten Certificates").
Pooling and Servicing Agreement dated as of November 1, 1995.
Aggregate Principal Amount: $167,488,346 (approximate)
Class Designation Schedule:
Initial Class Pass-
Series 1995-FHA1 Principal Balance Through S&P Selling Price
Class Designation (approximate) Rate Rating of the Securities
----------------- ----------------- ------------ ------ -----------------
Class A-1 $45,000,000 6.6650% AAA (3)
Class A-2 $20,000,000 6.8300% AAA (3)
Class A-3 $45,789,713 7.1940% AAA (3)
Class A-4 $56,698,633 7.6450% AAA (3)
Class A-X-1 (1) Variable(2) AAAr (3)
Class A-X-2 (1) Variable(2) AAAr (3)
Class A-X-3 (1) Variable(2) AAAr (3)
Class A-X-4 (1) Variable(2) AAAr (3)
---------------
(1) None of the Classes of Interest-Only Certificates will have a Class
Principal Balance. Interest will accrue on each Class of Interest-Only
Certificates at the respective variable Pass-Through Rates thereof on a Class
Notional Amount. The Class Notional Amount of the Class A-X-1 Certificates is
equal to the Class Principal Balance of the Class A-1 Certificates outstanding
from time to time. The Class Notional Amount of the Class A-X-2 Certificates is
equal to the Class Principal Balance of the Class A-2 Certificates outstanding
from time to time. The Class Notional Amount of the Class A-X-3 Certificates is
equal to the Class Principal Balance of the Class A-3 Certificates outstanding
from time to time. The Class Notional Amount of the Class A-X-4 Certificates is
equal to the Class Principal Balance of the Class A-4 Certificates outstanding
from time to time.
(2) The Pass-Through Rates applicable to the Interest-Only Certificates are
variable. The Pass-Through Rate applicable to the Class A-X-1 Certificates for
the initial Distribution Date will equal 2.9114% per annum and thereafter will
equal the excess, if any, of the weighted average of the Net Asset Rates of the
Mortgage Assets from time to time, over the Pass-Through Rate applicable to the
Class A-1 Certificates. The Pass-Through Rate applicable to the Class A-X-2
Certificates for the initial Distribution Date will equal 2.7464% per annum and
thereafter will equal the excess, if any, of the weighted average of the Net
Asset Rates of the Mortgage Assets from time to time, over the Pass-Through Rate
applicable to the Class A-2 Certificates. The Pass-Through Rate applicable to
the Class A-X-3 Certificates for the initial Distribution Date will equal
2.3824% per annum and thereafter will equal the excess, if any, of the weighted
average of the Net Asset Rates of the Mortgage Assets from time to time, over
the Pass-Through Rate applicable to the Class A-3 Certificates. The Pass-
Through Rate applicable to the Class A-X-4 Certificates for the initial
Distribution Date will equal 1.9314% per annum and thereafter will equal the
excess, if any, of the weighted average of the Net Asset Rates of the Mortgage
Assets from time to time, over the Pass-Through Rate applicable to the Class A-4
Certificates.
(3) The Underwriter proposes to offer the Underwritten Securities from time
to time to the public in negotiated transactions or otherwise at varying prices
to be determined at the price of sale.
Terms of Sale: The purchase price for the Class A-1, Class A-2, Class A-3,
Class A-4, Class A-X-1, Class A-X-2, Class A-X-3 and Class A-X-4 Certificates to
the Underwriter will be $176,525,213, plus accrued interest at the initial Pass-
Through Rate from November 1, 1995, together with expenses.
Distribution Dates: The 25th day of each month (unless such day is not a
Business Day, in which case distributions will be made on the next succeeding
Business Day) commencing in December 1995.
Specified Delivery Date and Location: 10:00 A.M., New York City time, on
November 21, 1995 or at such other time as may be agreed upon, at the offices of
Xxxxxxx Xxxxxxxx & Xxxx, New York, New York.
The Class A-1, Class A-2, Class A-3 and Class A-4 Certificates (the "Book-Entry
Certificates") will be issued as one or more certificates registered in the name
of Cede & Co., the nominee of The Depository Trust Company. Beneficial owners
will hold interests in the Book-Entry Certificates through the book-entry
facilities of The Depository Trust Company in minimum denominations in initial
Certificate Principal Balance of $25,000 and in integral multiples of $1 in
excess thereof. No person acquiring a Book-Entry Certificate will be entitled
to receive a physical certificate representing such Certificate.
It is hereby understood and agreed that the opinions listed in Section 6(d) of
the Underwriting Agreement will be rendered by one of Milbank, Tweed, Xxxxxx &
XxXxxx or Xxxxxxx Xxxxxxxx & Xxxx, each in case in its capacity as counsel to
the Depositor and the Underwriter.
