MORTGAGE ASSET PURCHASE AGREEMENT
This Mortgage Asset Purchase Agreement (this "Agreement"), dated
and effective as of November 15, 1995, is made by and among Greystone Funding
Corporation (the "Seller"), Greystone Servicing Corporation, Inc. (the "Master
Servicer") and CS First Boston Mortgage Securities Corp. (the "Depositor").
The Depositor intends to create a trust fund (the "Trust Fund"),
the beneficial ownership of which will be evidenced by the Depositor's Mortgage
Pass-Through Certificates, Series 1995-FHA1 (the "Certificates"). The Seller,
the Master Servicer and the Depositor each intends for the Seller and the Master
Servicer to convey to LaSalle National Bank, as trustee for the Trust Fund (the
"Trustee"), (i) certain fixed-rate, level payment, fully-amortizing mortgage
loans (the "Mortgage Loans") insured by the Federal Housing Administration (the
"FHA") of the United States Department of Housing and Urban Development ("HUD")
under certain sections of the National Housing Act of 1934, as amended (the
"Housing Act"), and secured by liens on multifamily rental or cooperative
housing developments (collectively, "Multifamily Properties") or nursing homes,
intermediate care facilities, board and care homes or other nursing facilities
(collectively, "Nursing Facilities") and (ii) certain securities (the "GNMA
Certificates" and collectively with the Mortgage Loans, the "Mortgage Assets")
guaranteed by the Government National Mortgage Association ("GNMA") and backed
by fixed-rate, level payment, fully-amortizing mortgage loans (the "Underlying
Loans" and collectively with the Mortgage Loans, the "FHA Loans") insured by the
FHA and secured by liens on Multifamily Properties or Nursing Facilities. The
Trust Fund will be created, the Mortgage Assets will be conveyed and the
Certificates will be issued pursuant to a Pooling and Servicing Agreement (the
"Pooling and Servicing Agreement"), to be dated as of November 1, 1995 (the
"Cut-off Date"), among the Depositor, the Master Servicer, the Seller and the
Trustee. Capitalized terms used but not defined herein have the respective
meanings set forth in the Pooling and Servicing Agreement.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Sell and Assign the Mortgage Assets
and enter into the Pooling and Servicing Agreement.
(a) At the direction of the Depositor, in accordance with
the terms and conditions of the Pooling and Servicing Agreement, the Seller and
the Master Servicer agree to sell and assign to the Trustee without recourse for
the benefit of the Certificateholders all the right, title and interest of the
Seller and the Master Servicer in and to the Mortgage Assets identified on the
schedule annexed hereto as Exhibit A, as such schedule may be amended from time
to time pursuant to the terms hereof (the "Mortgage Asset Schedule") (exclusive
of the right to receive any Retained Yield in respect of any FHA Debentures
which may be acquired as part of the Trust Fund). The Mortgage Assets will have
an aggregate principal balance (the "Initial Pool Balance") as of the close of
business on the Cut-off Date, after giving effect to any payments due on or
before such date whether or not received, and subject to a variance of plus or
minus 5%, of $171,543,361. The sale and assignment of the Mortgage Assets shall
take
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place on November 21, 1995 or such other date as shall be mutually acceptable
to the parties hereto (the "Closing Date"). The consideration for the Seller's
and the Master Servicer's conveyance of the Mortgage Assets to the Trustee for
the benefit of the Certificateholders shall consist of (A) a cash amount equal
to $179,769,224, together with interest accrued on each Mortgage Asset at the
related Net Asset Rate for the period from and including November 1, 1995 up to
but not including the Closing Date (which cash amount shall be paid to the
Seller by or on behalf of the Depositor by wire transfer in immediately
available funds on the Closing Date), and (B) those Classes of Certificates
designated as the Class R-I and Class R-II Certificates (collectively, the
"Residual Certificates") (which Certificates shall be delivered to the Seller
by or on behalf of the Depositor on the Closing Date, registered in such names
and authorized denominations as the Seller may request at least three Business
Days prior to the Closing Date).
(b) The Trustee shall be entitled to receive all scheduled
payments of principal and interest due after the Cut-off Date, and all other
recoveries of principal and interest collected after the Cut-off Date (other
than in respect of principal and interest on the FHA Loans due on or before the
Cut-off Date and other than Retained Yield in respect of any Mortgage Loan
assigned to the FHA (an "FHA Assigned Mortgage Loan") and/or any FHA Debentures
acquired as part of the Trust Fund). All scheduled payments of principal and
interest due on the FHA Loans on or before the Cut-off Date but collected (and,
in the case of an Underlying Loan, passed through on the related GNMA
Certificate) after the Cut-off Date, and all recoveries of Retained Yield in
respect of any FHA Debentures acquired as part of the Trust Fund, shall belong
to, and be promptly remitted to, the Seller.
(c) In connection with the transactions contemplated by
this Agreement, the Seller and the Master Servicer each hereby agrees to
execute and deliver the Pooling and Servicing Agreement, substantially in the
form attached hereto as Exhibit B, with such changes and modifications as the
parties hereto may agree or as may be requested by the Trustee or as may be
required by Standard & Poor's Ratings Services ("S&P") in connection with
rating certain Classes of the Certificates.
SECTION 2. Examination of Mortgage Files and Due Diligence
Review. The Seller and the Master Servicer have delivered to the Depositor
magnetic tapes acceptable to the Depositor which contain such information about
the Mortgage Assets, the Underlying Loans and the Multifamily Properties and
Nursing Facilities securing the Mortgage Loans and the Underlying Loans (such
properties, the "Mortgaged Properties") as has been requested by the Depositor,
and shall otherwise continue to cooperate fully with the Depositor in its
examination of the credit files, underwriting documentation and Mortgage Files
for the Mortgage Loans and its general due diligence review of the Mortgage
Assets, the Seller and the Master Servicer. If the Depositor identifies any
Mortgage Assets that, in its sole reasonable discretion, do not conform to its
requirements, including, but not limited to, the Mortgage Loan document
delivery requirements as are set forth in Section 2.01 of the Pooling and
Servicing Agreement and are described in the Prospectus dated November 13, 1995
(the "Basic Prospectus") and the Prospectus Supplement dated November 15, 1995
(the "Prospectus Supplement"; together with the Basic Prospectus, the
"Prospectus") that describe the Class X-0, Xxxxx X-0, Class A-3, Class
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X-0, Class A-X-1, Class A-X-2, Class A-X-3 and Class A-X-4 Certificates
(collectively, the "Publicly Offered Certificates") and are used in connection
with a public offering thereof, or for any other reason decides, in its sole
reasonable discretion, to exclude any Mortgage Asset from this transaction,
then the Depositor shall inform the Seller of the reasons for the exclusion of
any Mortgage Asset from this transaction, and such Mortgage Asset shall be
deleted from the Mortgage Asset Schedule. The Depositor may, at its option and
without notice to the Seller, accept all or part of the Mortgage Assets without
conducting any partial or complete examination. The fact that the Depositor
has conducted or has failed to conduct any partial or complete examination of
the Mortgage Files for the Mortgage Loans or other general due diligence review
of the Mortgage Assets, the Seller or the Master Servicer shall not in any
manner impair or otherwise adversely affect the Depositor's, the Trustee's
and/or the Certificateholders' rights and remedies hereunder or under the
Pooling and Servicing Agreement or otherwise at law or in equity.
On or prior to the Closing Date, the Seller and the Master Servicer
shall allow representatives of the Depositor and CS First Boston Corporation
(the "Underwriter") to examine and audit all books, records and files
pertaining to the Mortgage Assets. Such examinations and audits shall take
place at one or more offices of the Seller and/or the Master Servicer during
normal business hours and shall not be conducted in a manner that is disruptive
to Seller's or Master Servicer's normal business operations. In the course of
such examinations and audits, the Seller and the Master Servicer shall make
available to such representatives of the Depositor and the Underwriter,
reasonably adequate facilities, as well as the assistance of a sufficient
number of knowledgeable and responsible individuals who are familiar with the
Mortgage Assets and the terms of this Agreement and the Pooling and Servicing
Agreement, and the Master Servicer and the Seller shall cooperate fully with
any such reasonable examination and audit in all respects. On or prior to the
Closing Date, the Master Servicer and the Seller agree to provide the Depositor
and the Underwriter with all material information regarding the respective
financial conditions thereof and the Master Servicer's servicing capabilities,
and to provide access to knowledgeable financial, accounting and servicing
officers for the purpose of answering questions with respect to the Master
Servicer's and the Seller's respective financial conditions, the Master
Servicer's and the Seller's respective financial statements as provided to the
Depositor and/or the Underwriter, the Master Servicer's servicing capabilities
or other relevant developments affecting the Master Servicer and/or the Seller.
SECTION 3. Representations, Warranties and Covenants of the
Seller and the Master Servicer.
(a) The Master Servicer hereby represents and warrants to,
and covenants with, the Depositor, as of the date hereof, that:
(i) the Master Servicer is a corporation, duly
organized, validly existing and in good standing under the laws
of the State of Georgia;
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(ii) the Master Servicer has the full corporate
power and authority to enter into and consummate the
transactions contemplated by this Agreement and the Pooling and
Servicing Agreement and has duly authorized by all necessary
corporate action on the part of the Master Servicer the
execution, delivery and performance of this Agreement and the
Pooling and Servicing Agreement; and, assuming the due
authorization, execution and delivery of this Agreement and the
Pooling and Servicing Agreement by the other parties hereto and
thereto, this Agreement constitutes, and the Pooling and
Servicing Agreement will constitute, a legal, valid and binding
obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with its respective terms, except
that (A) such enforceability may be limited by bankruptcy,
insolvency, moratorium, receivership and other similar laws
relating to creditors' rights generally and (B) the remedy of
specific performance and injunctive and other forms of
equitable relief may be subject to the equitable defenses and
to the discretion of the court before which any proceeding
therefor may be brought;
(iii) the execution and delivery by the Master
Servicer of this Agreement and the Pooling and Servicing
Agreement, the consummation of any other of the transactions
herein or therein contemplated, and the fulfillment of or
compliance with the terms hereof and thereof, are in the
ordinary course of business of the Master Servicer and will not
(A) result in a material breach of any term or provision of the
organizational documents of the Master Servicer or (B)
materially conflict with, result in a material breach,
violation or acceleration of, or result in a material default
under, the terms of any other material agreement or instrument
to which the Master Servicer is a party or by which it may be
bound, or any statute, order or regulation applicable to the
Master Servicer of any court, regulatory body, administrative
agency or governmental body having jurisdiction over the Master
Servicer; and the Master Servicer is not a party to, bound by,
or in breach or violation of any indenture or other agreement
or instrument, or subject to or in violation of any statute,
order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction
over it, which materially and adversely affects, or, in the
Master Servicer's good faith and reasonable judgment, would in
the future materially and adversely affect, (X) the ability of
the Master Servicer to perform its obligations under this
Agreement or the Pooling and Servicing Agreement or (Y) the
business, operations, financial condition, properties or assets
of the Master Servicer;
(iv) no litigation is pending or, to the best of the
Master Servicer's knowledge, threatened against the Master
Servicer that would adversely affect the execution, delivery or
enforceability of this Agreement or the ability of the Master
Servicer to perform any of its obligations hereunder or under
the Pooling and Servicing Agreement in accordance with the
terms hereof or thereof;
(v) no written information, certificate of an
officer, statement furnished in writing or written report
delivered to the Depositor, any affiliate of the Depositor or
the Trustee and prepared by the Master Servicer pursuant to
this Agreement or in connection with the transactions
contemplated by this Agreement contains any untrue
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statement of a material fact or omits to state a material fact
necessary to make the information, certificate, statement or
report not misleading;
(vi) no consent, approval, authorization or order of
any court or governmental agency or body is required for the
execution, delivery and performance by the Master Servicer of,
or compliance by the Master Servicer with, this Agreement or
the Pooling and Servicing Agreement or the consummation of the
transactions contemplated hereby or thereby, or if any such
consent, approval, authorization or order is required, the
Master Servicer has, or prior to the Closing Date will have,
obtained the same;
(vii) the Master Servicer is an FHA-Approved
Mortgagee; and
(viii) The "Greystone Information" (as defined in
Section 6(a) hereof) set forth in the Prospectus and in the
Private Placement Memorandum dated November 15, 1995 (including
all exhibits thereto, the "Memorandum") that describes the
Class B Certificates, does not contain any untrue statement of
a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(b) The Seller hereby represents and warrants to, and
covenants with, the Depositor, as of the date hereof, that:
(i) the Seller is a corporation, duly organized,
validly existing and in good standing under the laws of the
Commonwealth of Virginia;
(ii) the Seller has the full corporate power and
authority to transfer the Mortgage Assets, and to execute,
deliver and perform, and to enter into and consummate the
transactions contemplated by this Agreement and the Pooling and
Servicing Agreement and has duly authorized by all necessary
corporate action on the part of the Seller the execution,
delivery and performance of this Agreement and the Pooling and
Servicing Agreement; and, assuming the due authorization,
execution and delivery of this Agreement and the Pooling and
Servicing Agreement by the other parties hereto and thereto,
this Agreement constitutes, and the Pooling and Servicing
Agreement will constitute, a legal, valid and binding
obligation of the Seller, enforceable against the Seller in
accordance with its respective terms, except that (A) such
enforceability may be limited by bankruptcy, insolvency,
moratorium, receivership and other similar laws relating to
creditors' rights generally and (B) the remedy of specific
performance and injunctive and other forms of equitable relief
may be subject to the equitable defenses and to the discretion
of the court before which any proceeding therefor may be
brought;
(iii) the execution and delivery by the Seller of
this Agreement and the Pooling and Servicing Agreement, the
transfer of the Mortgage Assets by the Seller, the consummation
of any other of the transactions contemplated herein or in the
Pooling and Servicing Agreement, and the fulfillment of or
compliance with the terms hereof and of
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the Pooling and Servicing Agreement, are in the ordinary course
of business of the Seller and will not (A) result in a material
breach of any term or provision of the organizational documents
of the Seller or (B) materially conflict with, result in a
material breach, violation or acceleration of, or result in a
material default under, the terms of any other material
agreement or instrument to which the Seller is a party or by
which it may be bound, or any statute, order or regulation
applicable to the Seller of any court, regulatory body,
administrative agency or governmental body having jurisdiction
over the Seller; and the Seller is not a party to, bound by, or
in breach or violation of any indenture or other agreement or
instrument, or subject to or in violation of any statute, order
or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it, which
materially and adversely affects, or, in the Seller's good
faith and reasonable judgment, would in the future materially
and adversely affect, (X) the ability of the Seller to perform
its obligations under this Agreement or the Pooling and
Servicing Agreement or (Y) the business, operations, financial
condition, properties or assets of the Seller;
(iv) no litigation is pending or, to the best of the
Seller's knowledge, threatened against the Seller that would
adversely affect the execution, delivery or enforceability of
this Agreement or the ability of the Seller to transfer the
Mortgage Assets or to perform in all material respects any of
its other obligations hereunder or under the Pooling and
Servicing Agreement in accordance with the terms hereof or
thereof;
(v) no written information, certificate of an
officer, statement furnished in writing or written report
delivered to the Depositor, any affiliate of the Depositor or
the Trustee and prepared by the Seller pursuant to this
Agreement or in connection with the transactions contemplated
by this Agreement contains any untrue statement of a material
fact or omits to state a material fact necessary to make the
information, certificate, statement or report not misleading;
(vi) no consent, approval, authorization or order of
any court or governmental agency or body is required for the
execution, delivery and performance by the Seller of, or
compliance by the Seller with, this Agreement or the Pooling
and Servicing Agreement or the consummation of the transactions
contemplated hereby or thereby, or if any such consent,
approval, authorization or order is required, the Seller has,
or prior to the Closing Date will have, obtained the same;
(vii) the consummation of the transactions
contemplated by this Agreement and the Pooling and Servicing
Agreement are not subject to the bulk transfer or any similar
statutory provisions in effect in any applicable jurisdiction;
(viii) The Seller is acquiring the Residual
Certificates for its own account for investment and not with a
view to or for sale or transfer in connection with any
distribution thereof in any manner that would violate the
Securities Act of 1933, as amended (the "1933 Act"), or any
applicable state securities laws;
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(ix) The Seller understands that the Residual
Certificates have not and will not be registered under the 1933
Act or registered or qualified under any applicable state
securities laws, neither the Depositor nor the Trustee is
obligated so to register or qualify such Certificates, and such
Certificates may only be transferred by the Seller either (A)
to "qualified institutional buyers" within the meaning of Rule
144A under the 1933 Act ("QIBs") and only if the Trustee has
received the requisite certifications from the Seller and the
prospective transferee substantially in the forms attached to
the Pooling and Servicing Agreement or (B) pursuant to another
exemption from registration under the 1933 Act and only if the
Depositor and the Trustee have received an opinion of counsel
satisfactory to the Depositor and the Trustee that such
transfer may be made without such registration;
(x) The Seller will not sell or otherwise transfer
any portion of its interest in either Class of Residual
Certificates except in compliance with the provisions of the
Pooling and Servicing Agreement, which provisions it has
carefully reviewed;
(xi) Neither the Seller nor anyone acting on its
behalf has (A) offered, pledged, sold, disposed of or otherwise
transferred any Residual Certificate, any interest in any
Residual Certificate or any other similar security to any
person in any manner, (B) solicited any offer to buy or to
accept a pledge, disposition or other transfer of any Residual
Certificate, any interest in any Residual Certificate or any
other similar security from any person in any manner, (C)
otherwise approached or negotiated with respect to any Residual
Certificate, any interest in any Residual Certificate or any
other similar security with any person in any manner, (D) made
any general solicitation by means of general advertising or in
any other manner, or (E) taken any other action, that (in the
case of any of the acts described in clauses (A) through (E)
above) would constitute a distribution of the Residual
Certificates under the 1933 Act, or would render the
disposition of any Residual Certificate a violation of Section
5 of the 1933 Act or any state securities law or require
registration or qualification pursuant thereto. The Seller
will not act, nor has it authorized or will it authorize any
person to act, in any manner set forth in the foregoing
sentence with respect to the Residual Certificates;
(xii) The Seller has been furnished with all
information regarding (A) the Depositor, (B) the Residual
Certificates, (C) the Pooling and Servicing Agreement and (D)
all related matters, that it has requested;
(xiii) The Seller is an "accredited investor" as
defined in Rule 501(a) under the 1933 Act. The Seller has such
knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of an
investment in the Residual Certificates; the Seller has sought
such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision; and the
Seller is able to bear the economic risks of such an
investment;
(xiv) The Seller is not (A) a "Plan", defined as any
employee benefit plan or other retirement arrangement,
including individual retirement accounts and
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annuities, Xxxxx plans and collective investment funds and
separate accounts in which such plans, accounts or arrangements
are invested, that is subject to the Employee Retirement Income
Security Act of 1974, as amended, or Section 4975 of the
Internal Revenue Code of 1986, as amended, or (B) any person
who is directly or indirectly acquiring the Residual
Certificates on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan; and
(xv) The "Greystone Information" (as defined in
Section 6(a) hereof) set forth in the Prospectus and the
Memorandum does not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading.
SECTION 4. Closing. The closing of the sale of the
Mortgage Assets (the "Closing") shall be held at the offices of Xxxxxxx
Xxxxxxxx & Wood, Two Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00
A.M., New York time, on the Closing Date.
The Closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the Seller
and the Master Servicer set forth in this Agreement and/or the Pooling and
Servicing Agreement shall be true and correct in all material respects as of
the Closing Date;
(b) All documents specified in Section 5 of this Agreement
(the "Closing Documents"), in such forms as are agreed upon and acceptable to
the Depositor, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(c) All other terms and conditions of this Agreement and
the Pooling and Servicing Agreement required to be complied with on or before
the Closing Date shall have been complied with and the Seller and the Master
Servicer shall have the ability to comply with all terms and conditions and
perform all duties and obligations required to be complied with or performed
after the Closing Date;
(d) The Publicly Offered Certificates shall have been
assigned by S&P the ratings set forth in the Prospectus Supplement;
(e) The Seller shall have paid all fees and expenses
payable by it to the Depositor or otherwise pursuant to this Agreement; and
(f) the Seller shall be ready, willing and able to purchase
the Class A-X-1, Class A-X-2, Class A-X-3 and Class A-X-4 Certificates from the
Underwriter for $10,076,154, together with accrued interest thereon at the
respective Certificate Interest Rates from the Cut-off Date to but not
including the Closing Date.
All parties hereto agree to act in good faith and use their
best efforts to perform their respective obligations hereunder in a manner that
will enable the Seller to convey the
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Mortgage Assets on the Closing Date. If any of the foregoing conditions shall
not have been satisfied in all material respects as and when required under
this Agreement, other than by reason of a material breach of any covenants or
agreements contained herein on the part of the Depositor, or if the Master
Servicer or the Seller is in material breach of any covenants or agreements
contained herein, then the Depositor shall be entitled to terminate this
Agreement (exclusive of any payment or reimbursement obligations of the Master
Servicer and/or the Seller hereunder), cancel all of its obligations hereunder
and pursue any other right or remedy available at law or in equity.
SECTION 5. Closing Documents. The Closing Documents shall
consist of the following:
(a) This Agreement and the Pooling and Servicing Agreement
duly executed and delivered by the Master Servicer and the Seller;
(b) A Certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Depositor and the Underwriter may rely, to the effect that: (i) the
representations and warranties of the Seller in this Agreement and in the
Pooling and Servicing Agreement are true and correct in all material respects
at and as of the Closing Date with the same effect as if made on such date; and
(ii) the Seller has, in all material respects, complied with all the agreements
and satisfied all the conditions on its part that are required under this
Agreement or the Pooling and Servicing Agreement to be performed or satisfied
at or prior to the Closing Date;
(c) An Officer's Certificate from an officer of the Seller,
in his or her individual capacity, dated the Closing Date, and upon which the
Depositor and the Underwriter may rely, to the effect that each individual who,
as an officer or representative of the Seller, signed this Agreement, the
Pooling and Servicing Agreement or any other document or certificate delivered
on or before the Closing Date in connection with the transactions contemplated
herein or therein, was at the respective times of such signing and delivery,
and is as of the Closing Date, duly elected or appointed, qualified and acting
as such officer or representative, and the signatures of such persons appearing
on such documents and certificates are their genuine signatures;
(d) A Certificate of the Master Servicer, executed by a
duly authorized officer of the Master Servicer and dated the Closing Date, and
upon which the Depositor and the Underwriter may rely, to the effect that: (i)
the representations and warranties of the Master Servicer in this Agreement and
in the Pooling and Servicing Agreement are true and correct in all material
respects at and as of the Closing Date with the same effect as if made on such
date; and (ii) the Master Servicer has, in all material respects, complied with
all the agreements and satisfied all the conditions on its part that are
required under this Agreement or the Pooling and Servicing Agreement to be
performed or satisfied at or prior to the Closing Date;
(e) An Officer's Certificate from an officer of the Master
Servicer, in his or her individual capacity, dated the Closing Date, and upon
which the Depositor and the
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Underwriter may rely, to the effect that each individual who, as an officer or
representative of the Master Servicer, signed this Agreement, the Pooling and
Servicing Agreement or any other document or certificate delivered on or before
the Closing Date in connection with the transactions contemplated herein or
therein, was at the respective times of such signing and delivery, and is as of
the Closing Date, duly elected or appointed, qualified and acting as such
officer or representative, and the signatures of such persons appearing on such
documents and certificates are their genuine signatures;
(f) The resolutions of the board of directors of the Seller
and any requisite shareholder consent authorizing the Seller's entering into
the transactions contemplated by this Agreement, the certificate of
incorporation and by-laws of the Seller as in effect on the Closing Date, and a
certificate of good standing of the Seller issued by the Secretary of State of
Virginia not earlier than thirty (30) days prior to the Closing Date;
(g) The resolutions of the board of directors of the Master
Servicer and any requisite shareholder consent authorizing the Master
Servicer's entering into the transactions contemplated by this Agreement, the
certificate of incorporation and by-laws of the Master Servicer as in effect on
the Closing Date, and a certificate of good standing of the Master Servicer
issued by the Secretary of State of Georgia not earlier than thirty (30) days
prior to the Closing Date;
(h) One or more letters from a firm of certified public
accountants acceptable to the Depositor and the Seller, dated the date hereof,
to the effect that they have performed certain specified procedures as a result
of which they determined that certain information of an accounting, financial
or statistical nature constituting part of Greystone's Information (as defined
in Section 6(a) below) in the Prospectus and the Memorandum agrees with the
records of the Seller and the Master Servicer;
(i) Such written opinion or opinions of Xxxxxxx Xxxxx
Xxxxxxx & Xxxxxxxxx, counsel for the Seller and the Master Servicer, as may be
required by the Depositor and its counsel with respect to matters relating to
the Seller, the Master Servicer, this Agreement and the Pooling and Servicing
Agreement, in form and substance acceptable to the Depositor and its counsel,
with any modifications required by S&P, dated the Closing Date and addressed to
the Depositor, the Underwriter and S&P, together with such other written
opinions as may be required by the S&P;
(j) A Transfer Affidavit and Agreement (in the form of
Exhibit F-1 to the Pooling and Servicing Agreement), executed by a duly
authorized officer of the Seller and dated the Closing Date, and upon which the
Depositor and the Trustee may rely, relating to the transfer of the Residual
Certificates to the Seller; and
(k) Such further certificates, opinions and documents as
the Depositor may reasonably request.
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SECTION 6. Indemnification.
(a) The Seller and the Master Servicer agree to be jointly
and severally liable to indemnify and hold harmless the Depositor, the
Underwriter, their respective officers and directors, and each person, if any,
who controls the Depositor or the Underwriter within the meaning of either
Section 15 of the 1933 Act or Section 20 of the Securities Exchange Act of
1934, as amended (the "1934 Act"), against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the 1933 Act, the 1934 Act or other federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based in whole or in part, directly or indirectly, upon any untrue statement or
alleged untrue statement of a material fact set forth in the Prospectus
Supplement in the second paragraph on the cover page thereof, under the
captions "SUMMARY OF TERMS--Description of the Certificates "(other than the
second paragraph thereof), "--Seller", "--Master Servicer", "--The Mortgage
Assets", "--FHA Insurance and GNMA Guaranty" (other than information contained
therein regarding specific terms of the Pooling and Servicing Agreement), "--
Retained Yield" and "-Servicing Fees", "RISK FACTORS--The Mortgage Assets",
"DESCRIPTION OF THE MORTGAGE POOL", "FHA MORTGAGE INSURANCE PROGRAMS", "GNMA
MORTGAGE-BACKED SECURITIES PROGRAM", "GREYSTONE FUNDING CORPORATION" and
"SERVICING OF THE MORTGAGE LOANS--The Master Servicer" "--Master Servicer
Compensation and Payment of Expenses", and "--Sub-Servicers" or in Appendix A
thereto or elsewhere in the Prospectus Supplement with respect to specific
characteristics of the Mortgage Assets, the Mortgage Loans, the Mortgaged
Properties, the Seller and/or the Master Servicer (collectively, the "Greystone
Information"), or arise out of or are based upon any omission or alleged
omission to state in the Greystone Information a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading. The Seller and the
Master Servicer further agree to be jointly and severally liable to indemnify
and hold harmless the Depositor, the Underwriter, their respective officers and
directors, and each person, if any, who controls the Depositor or the
Underwriter within the meaning of either Section 15 of the 1933 Act or Section
20 of the 1934 Act, to the same extent as the foregoing indemnity with
reference to the inclusion of information in the Memorandum or any amendment
thereof or supplement thereto substantially identical to that included in the
Prospectus Supplement with respect to the Greystone Information (all such
substantially identical information included in the Memorandum also being
referred to herein as the "Greystone Information"). This indemnity agreement
will be in addition to any liability which the Seller or the Master Servicer
may otherwise have.
(b) Promptly after receipt by any person entitled to
indemnification under this Section 6 (an "indemnified party") of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the Seller and/or the Master Servicer
(collectively, the "indemnifying party") under this Section 6, notify the
indemnifying party in writing of the commencement thereof, but the omission so
to notify the indemnifying party will not relieve it from any liability that it
may have to any indemnified party otherwise than under this Section 6. In case
any such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
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will be entitled to participate therein, and to the extent that it may elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof,
with counsel satisfactory to such indemnified party; provided, however, that if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
indemnified parties that are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right
to select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party
or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will not
be liable for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel, approved by the
Depositor, representing all the indemnified parties under Section 6(a) who are
parties to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall only be in respect of
the counsel referred to in such clause (i) or (iii).
(c) If the indemnification provided for in this Section 6
is unavailable to an indemnified party under Section 6(a) hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities,
in such proportion as is appropriate to reflect the relative fault of the
indemnified and indemnifying parties in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of the
indemnified and indemnifying parties 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 such parties.
(d) The Depositor, the Seller and the Master Servicer agree
that it would not be just and equitable if contribution pursuant to Section
6(c) were determined by pro rata allocation or by any other method of
allocation that does not take account of the considerations referred to in
Section 6(c) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in this
Section 6 shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim,
except where the indemnified party is required to bear such expenses pursuant
to this Section 6, which expenses the indemnifying party shall pay as and when
incurred, at the request
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of the indemnified party, to the extent that the indemnifying party will be
ultimately obligated to pay such expenses. If any expenses so paid by the
indemnifying party are subsequently determined not to be required to be borne
by the indemnifying party hereunder, the party that received such payment shall
promptly refund the amount so paid to the party which made such payment. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in
this Section 6 shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by the
Depositor, the Underwriter, any of their respective directors or officers, or
any person controlling the Depositor or the Underwriter, and (iii) conveyance
of and payment for the Mortgage Assets.
SECTION 7. Costs. The Seller shall pay (or shall reimburse
the Depositor to the extent that the Depositor has paid) the aggregate of the
following amounts: (i) the costs and expenses of printing (or otherwise
reproducing) and delivering a final Prospectus and Memorandum relating to the
Certificates; (ii) the initial fees, costs and expenses of the Trustee
(including reasonable attorneys' fees); (iii) a fee of $175,000 in connection
with the registration of the Publicly Offered Certificates under the 1933 Act;
(iv) the fees charged by S&P to rate the Publicly Offered Certificates; (v) the
expense of recording any assignment of Mortgage or assignment of Assignment of
Leases; (vi) the fees (up to $165,000) and disbursements of Xxxxxxx Xxxxxxxx &
Wood, as counsel to the Depositor, and the fees (up to $10,000) and
disbursements of Milbank, Tweed, Xxxxxx & XxXxxx, as special counsel to the
Depositor; (vii) the cost of obtaining a "comfort letter or letters" from a
firm of certified public accountants selected by the Depositor with respect to
numerical information in respect of the Mortgage Assets and Certificates
included in the Prospectus and Memorandum; and (viii) miscellaneous expenses
not to exceed $20,000. All other costs and expenses in connection with the
transactions contemplated hereunder shall be borne by the party incurring such
expense.
SECTION 8. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered to or mailed, by registered mail, postage prepaid, or
transmitted by telex or telegraph and confirmed by a similar mailed writing:
if to the Depositor, addressed to the Depositor at 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: President, or to such other address as may
hereafter be furnished to the Seller and the Master Servicer in writing by the
Depositor; if to the Seller, addressed to the Seller at Greystone Funding
Corporation, 00 Xxxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xx.
Xxxxx X. XxXxxxx with a copy to Greystone & Co., Inc., 000 Xxxx 00xx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xx. Xxxx Xxxxxxx, or to such
address as the Seller may designate in writing to the Depositor; and if to the
Master Servicer, addressed to the Master Servicer at Greystone Servicing
Corporation, Inc., 00 Xxxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention:
Xx. Xxxxx X. XxXxxxx with a copy to Greystone & Co., Inc., 000 Xxxx 00xx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xx. Xxxx Xxxxxxx, or
to such address as the Master Servicer may designate in writing to the
Depositor.
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SECTION 9. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement, incorporated herein by reference or contained in the
certificates of officers of the Seller and the Master Servicer submitted
pursuant hereto or in connection with the transactions contemplated hereby,
shall remain operative and in full force and effect and shall survive delivery
of the Mortgage Assets by the Seller to the Trustee. To the extent not
expressly contradicted by the terms hereof, the provisions of the letter
agreement dated October 13, 1995 from the Underwriter to Greystone & Co., Inc.
shall survive the execution of this Agreement.
SECTION 10. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant
of this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereto waive any provision of law
which prohibits or renders void or unenforceable any provision hereof.
SECTION 11. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but which
together shall constitute one and the same agreement.
SECTION 12. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS,
DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE
GOVERNED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE
PARTIES HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 13. Further Assurances. The Seller, the Master
Servicer and the Depositor agree to execute and deliver such instruments and
take such further actions as the other party may, from time to time, reasonably
request in order to effectuate the purposes and to carry out the terms of this
Agreement.
SECTION 14. Successors and Assigns. The rights and obligations
of the Seller and the Master Servicer under this Agreement shall not be
assigned by the Seller or the Master Servicer, as the case may be, without the
prior written consent of the Depositor, except that any person into which the
Seller or the Master Servicer may be merged or consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Seller or
the Master Servicer is a party, or any person succeeding to all or
substantially all of the business of the Seller and the Master Servicer, shall
be the successor to the Seller or the Master Servicer, as the case may be,
hereunder. The Depositor has the right to assign its interest under this
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Agreement, in whole or in part, as may be required to effect the purposes of
the Pooling and Servicing Agreement, and the assignee shall, to the extent of
such assignment, succeed to the rights and obligations hereunder of the
Depositor. Subject to the foregoing, this Agreement shall bind and inure to
the benefit of and be enforceable by the Seller, the Master Servicer and the
Depositor, and their permitted successors and assigns, and the officers,
directors and controlling persons referred to in Section 6.
SECTION 15. Amendments. No term or provision of this Agreement
may be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party against whom such waiver or
modification is sought to be enforced.
IN WITNESS WHEREOF, the Seller, the Master Servicer and the Depositor
have caused their names to be signed hereto by their respective duly authorized
officers as of the date first above written.
SELLER
GREYSTONE FUNDING CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President
MASTER SERVICER
GREYSTONE SERVICING CORPORATION, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President
DEPOSITOR
CS FIRST BOSTON MORTGAGE SECURITIES
CORP.
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
