Exhibit 1.1
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Depositor
Commercial Mortgage Pass-Through Certificates
June 18, 1998
UNDERWRITING AGREEMENT
(Standard Terms)
CREDIT SUISSE FIRST BOSTON CORPORATION
as representative of
the Underwriters named in the
Terms Agreement hereinafter described
c/o Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. Credit Suisse 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 Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates (the
"Certificates") in one or more series (each, a "Series"). Each Certificate will
evidence a fractional undivided, percentage interest or beneficial interest in
a Trust. The terms on which each Trust will issue a Series of Certificates will
be specified in the related Prospectus (as defined herein). 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 also may 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 "Loans") that are purchased by the Depositor or
one of its affiliates from one or more sellers (each, a "Seller") pursuant to
one or more Purchase Agreements (each, a "Purchase Agreement") and are serviced
by a servicer, which may be a Seller or an affiliate of a Seller (the
"Servicer"), and are also serviced by a special servicer, which may be an
affiliate of a Seller (the "Special Servicer"), pursuant to a Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of the
date set forth in the Terms Agreement (as identified herein), among the
Depositor, the Servicer, the Special Servicer, a trustee specified therein (the
"Trustee") and such other parties, as necessary, and certain related property
to be conveyed to the Trust by the Depositor (the
"Trust Fund"). The Loans in the Trust Fund for a Series will be transferred to
the related Trust, and the Certificates to which this agreement (the
"Agreement") and the Terms Agreement for such Series applies will be issued
pursuant to the related Pooling and Servicing Agreement.
Credit enhancement with respect to the 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
related 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 such 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 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 Certificates are more fully described in the Registration
Statement (hereinafter defined), 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 balance or aggregate stated principal balance, the
pass-through rate with respect to the 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 Loans included
in such 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 Loans in such Trust Fund, whether the Depositor
will elect to treat such Trust Fund as a "real estate mortgage investment
conduit" ("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.
Each offering of the Certificates to which this Agreement applies made
pursuant to the Registration Statement will be made through you as sole
underwriter, 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 (a "Terms Agreement," which, in
the case of the Terms Agreement dated the date hereof, will be substantially in
the form of Exhibit A hereto) providing for the sale of such Certificates to,
and the purchase and offering thereof by, either (i) you, (ii) you and such
other underwriters, if any, as execute a Terms Agreement and
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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 (you and,
collectively with the other underwriters referred to in clause (ii) or clause
(iii), as applicable, the "Underwriters" and, individually, an "Underwriter").
Each Terms Agreement shall specify the fractional undivided interest, principal
or notional balance, or stated principal balance, of each Class or Subclass of
the Certificates to be issued and any terms thereof 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. Any Terms Agreement 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 each of the other 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. 333-51771), 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"), in the form heretofore delivered to you, has been filed with the
Securities and Exchange Commission (the "Commission") and has become effective;
such registration statement, as amended (excluding any related Computational
Materials and ABS Term Sheets (each as defined in Section 8(a) below)
previously filed or to be filed and any Computational Materials and ABS Term
Sheets relating to securities other than the Certificates), and the prospectus
relating to the sale of the Certificates offered thereby by the Depositor and
constituting a part of such registration statement, as such prospectus is 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 "Base Prospectus";
provided, however, that a supplement to the Base Prospectus prepared pursuant
to Section 5(a) below (the "Prospectus Supplement" and, together with the Base
Prospectus, the "Prospectus") shall be deemed to have supplemented the Base
Prospectus only with respect to the offering of the Series of the Certificates
to which it relates; the conditions to the use 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; and no other amendment to the Registration
Statement will be filed which shall be reasonably disapproved by you promptly
after reasonable notice thereof;
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(b) there is no request by the Commission for any further amendment of
the Registration Statement or the Prospectus or for any additional information;
the Commission has not issued any stop order suspending the effectiveness of
the Registration Statement and the Depositor is not aware of any proceeding for
that purpose having been instituted or threatened; and there has been no
notification with respect to the suspension of the qualification for sale of
the Certificates for sale in any jurisdiction or any proceeding for such
purpose having been instituted or threatened;
(c) the Registration Statement (i) on its effective date and on the
date of the then most recently filed Prospectus Supplement conformed in all
respects to the requirements of the Act and the Rules and Regulations
thereunder and did not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading and (ii) on the date of each Terms
Agreement will conform in all respects to the requirements of the Act and the
Rules and Regulations thereunder and 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 not misleading; each Prospectus, on
the date of the related Terms Agreement, will conform in all respects to the
requirements of the Act and the Rules and Regulations thereunder and 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 the 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 the Registration Statement or any Prospectus to the
extent based upon and in conformity with (a) written information furnished to
the Depositor by any Underwriter specifically for use therein and (b) the
Seller's Information (as defined in the Indemnification Agreement, dated as of
the date hereof (the "Indemnification Agreement"), by and among the Depositor,
the Seller and you); provided, further, that the Depositor makes no
representations and warranties as to the information contained in or omitted
from any Current Report (as defined in Section 8(a) below), or in any amendment
or supplement thereto, incorporated by reference in the Registration Statement
or any Prospectus (or any amendment thereof or supplement thereto);
(d) 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;
(e) each applicable Pooling and Servicing Agreement and Purchase
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 or the Trustee, 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
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Terms Agreement, will be validly issued and outstanding and entitled to the
benefits and security afforded by the Pooling and Servicing Agreement;
(f) the issue and sale of the Certificates and the compliance by the
Depositor with all of the provisions of the Certificates, this Agreement, each
applicable Terms Agreement and each applicable Pooling and Servicing Agreement,
the execution and delivery by the Depositor of this Agreement, each applicable
Terms Agreement, each applicable Pooling and Servicing Agreement, each Purchase
Agreement and, if applicable, the Certificates of a Series related thereto, are
within the 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 material 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) except as contemplated
by each applicable Pooling and Servicing Agreement, result in the creation or
imposition of any lien, charge or encumbrance upon any of its property or
assets pursuant to the terms of any such indenture, mortgage, contract or other
instrument;
(g) this Agreement has been, and, at the date thereof, each applicable
Terms Agreement will have been, duly authorized, executed and delivered by the
Depositor;
(h) on each Specified Delivery Date, the related Pooling and Servicing
Agreement and Purchase Agreement will have been duly authorized, executed and
delivered by the Depositor and will be valid and binding agreements 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);
(i) all approvals, authorizations, consents, orders or other actions
of any person, corporation or other organizations, 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;
(j) 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
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you of the Certificates subject to this Agreement in the manner contemplated by
this Agreement, and the initial deposit of any 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 priority perfected security interest in such
Reserve Fund;
(k) at the Specified Delivery Date, each of the Loans included in the
related Trust Fund will meet the criteria for selection described in the
Prospectus Supplement; and
(l) 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"), and the related Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture 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 as 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 Credit Suisse First Boston Corporation, Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (or at some other location specified by the
Underwriters at least 48 hours prior to delivery), at least 24 hours prior to
the applicable Specified Delivery Date.
4. Offering by Underwriters. It is understood that the 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 Underwriters participating in the applicable offering of the
Certificates that:
(a) immediately following the execution of each Terms Agreement, the
Depositor shall prepare a Prospectus Supplement setting forth the amount of
Certificates covered thereby and the terms thereof not otherwise specified in
the Base 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 shall not file any
amendments to the Registration Statement as in effect with respect to the
Certificates, or any amendments or supplements to the Prospectus, unless it has
first delivered copies of such amendments or supplements to you and given you a
reasonable opportunity to review the same, or if you have reasonably objected
thereto promptly after receipt
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thereof; the Depositor shall immediately advise you or your counsel (i) when
notice is received from the Commission that any post-effective amendment to the
Registration Statement has been filed or has become or will become effective or
any supplement to the Prospectus or any amended Prospectus, in each case
relating to the Certificates of the Series specified in such Terms Agreement,
has been filed and will furnish you with copies thereof 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 shall 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 Underwriters'
compliance with their obligations set forth in Section 8 below, the Depositor
shall file with the Commission a Current Report on Form 8-K including any
Computational Materials and ABS Term Sheets provided to it by any Underwriter
pursuant to Section 8 below not later than the date on which such Current
Report is required to be filed with the Commission;
(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 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 shall 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 shall 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
shall 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 shall furnish to you copies of the Registration
Statement, the Prospectus, and all amendments and supplements to such documents
relating to the Certificates, in each case as soon as available and in such
quantities as you reasonably request;
(e) the Depositor shall 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 shall 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
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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 shall, 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 shall pay all expenses incident to the performance
of its obligations under this Agreement and the related Terms Agreement and
shall 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 Depositor shall 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 Securities Exchange Act of 1934, as amended
(the "Exchange Act").
6. Conditions to the Obligations of the Underwriters. The obligations
of the 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:
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(a) you shall have received a letter from E&Y Xxxxxxx Xxxxxxxxx Real
Estate Group dated the date of the applicable Terms Agreement and, if requested
by you, 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 applicable Specified Delivery
Date 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 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;
(e) 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;
(f) 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;
(g) you shall have received opinions of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx
LLP, special counsel to the Depositor, dated the Specified Delivery Date, in
substantially the same form as Exhibit B attached hereto;
(h) you shall have received an opinion of Xxxxxxx X. Xxxxxx, Esq.,
counsel to Credit Suisse First Boston Mortgage Capital LLC, one of the Sellers,
dated the Specified Delivery Date, in substantially the same form as Exhibit
C-1 attached hereto;
(i) you shall have received an opinion of White & Case, counsel to
Xxxxx Xxxxxx Real Estate Securities Inc., one of the Sellers, dated the
Specified Delivery Date, in substantially the same form as Exhibit C-2 attached
hereto;
(j) you shall have received an opinion of Peabody & Xxxxxx LLP,
special counsel to the Trustee, dated the Specified Delivery Date, in
substantially the same form as Exhibit D attached hereto;
(k) you shall have received an opinion of Squire, Xxxxxxx & Xxxxxxx,
L.L.P., counsel to the Servicer, dated the Specified Delivery Date, in
substantially the same form as Exhibit E attached hereto;
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(l) you shall have received an opinion of Rubin, Baum, Xxxxx,
Constant, Xxxxxxxx & Bilzin, counsel to the Special Servicer, dated the
Specified Delivery Date, in substantially the same form as Exhibit F attached
hereto;
(m) 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;
(n) 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 G hereto;
(o) you shall have received a certificate of the Trustee, signed by
one or more duly authorized officers of the Trustee, dated the applicable
Specified Delivery Date, in substantially the same form as Exhibit H hereto;
(p) 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 I hereto;
(q) you shall have received a certificate of the Special Servicer,
signed by one or more duly authorized officers of the Special Servicer, dated
the applicable Specified Delivery Date, in substantially the same form as
Exhibit J hereto;
(r) 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;
(s) 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;
(t) 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;
(u) the Sellers shall have sold the Loans to the Depositor pursuant to
the Purchase Agreements;
(v) the Certificates of a Series shall be rated at the time of
issuance by any nationally recognized statistical rating organization(s) in the
rating category as indicated in the applicable Terms Agreement, and shall not
have been lowered or placed on any credit watch with a negative implication for
downgrade;
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(w) you shall have received an opinion of counsel to the Letter of
Credit Bank, the Guarantor or 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; and
(x) you shall have received such other documents, certificates,
letters and opinions as you may reasonably request.
7. Indemnification.
(a) The Depositor shall indemnify and hold harmless each Underwriter,
each of its officers and each of its directors and each person, if any, that
controls any Underwriter within the meaning of the Act against any losses,
claims, damages or liabilities, joint or several, to which such 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 (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement or any
amendment or supplement thereto or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) any untrue statement or alleged
untrue statement of any material fact contained in any Prospectus or any
amendment or supplement thereto or 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 the Depositor shall 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 shall 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 from, any such documents in reliance upon and in
conformity with (i) written information furnished to the Depositor by an
Underwriter specifically for use therein or (ii) the Seller's Information and
except insofar as such losses, claims, damages or liabilities are caused by any
untrue statement or alleged untrue statement contained in, or any omission or
alleged untrue statement from, any Current Report or any amendment or
supplement thereof; provided, further, that the Depositor shall not be liable
to any Underwriter or any such controlling person under the indemnity agreement
in this Section 7(a) with respect to any untrue statement in, or omission from,
the Prospectus, to the extent that any such loss, claim, damage or liability of
such Underwriter or such controlling person results solely from the fact that
such Underwriter sold Certificates to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
Prospectus or a copy of the Prospectus as then amended or supplemented, if the
Depositor had previously furnished copies thereof to such Underwriter. This
indemnity agreement shall be in addition to any liability which the Depositor
may otherwise have.
(b) Each Underwriter shall severally, and not jointly, 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
11
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 (i) any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement or any
amendment or supplement thereto or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) any untrue statement or alleged untrue
statement of any material fact contained in any Prospectus or any amendment or
supplement thereto or 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 or (iii)(A) any untrue statement or alleged untrue statement of any
material fact contained in the Computational Materials or ABS Term Sheets, as
applicable, that such Underwriter provides to its respective potential
investors or (B) the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall 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 any 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 shall be in addition to any liability that
such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party shall, if
a claim in respect thereof is to be made against the indemnifying party under
this Section 7, notify the indemnifying party of the commencement thereof; but
the omission to so notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than in this
Section 7. In case any such action is brought against any indemnified party,
after such indemnifying party has been notified of the commencement thereof,
such indemnifying party shall be entitled to participate therein, and, to the
extent that it may wish, shall be entitled to assume the defense thereof
(jointly with any other indemnifying party similarly notified) with counsel
satisfactory to such indemnified party (which 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 to so assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
(d) If recovery is not available under the foregoing indemnification
provisions of this Section 7 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
12
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. The obligations of the Underwriters in this
subdivision (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Depositor under this Section 7 shall be in
addition to any liability which the Depositor may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 7 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Depositor and to
each person, if any, who controls the Depositor within the meaning of the Act.
8. Computational Materials.
(a) The Underwriters agree to provide to the Depositor not later than
10:30 a.m., New York time, on the Business Day before the date on which a
Current Report on Form 8-K is required to be filed by the Depositor with the
Commission pursuant to the No-Action Letters (as defined below) (each, a
"Current Report") five complete copies of all materials that have been provided
by the Underwriters to prospective investors in the related Certificates and
that constitute (i) "Computational Materials" within the meaning of the
no-action letter dated May 20, 1994 and issued by the Division of Corporation
Finance of the Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I, Xxxxxx,
Peabody & Co. Incorporated and Xxxxxx Structured Asset Corporation and the
no-action letter dated May 27, 1994 and issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (together, the
"Xxxxxx Letters") and (ii) "ABS Term Sheets" within the meaning of the
no-action letter dated February 17, 1995 and issued by the Division of
Corporation Finance of the Commission to the Public Securities Association
(together with the Xxxxxx Letters, the "No-Action Letters"), and the
Underwriters acknowledge that the filing of such materials is a condition of
relief granted in such letter (such materials, the "Computational Materials"
and the "ABS Term Sheets", respectively); provided, however, that any ABS Term
Sheets are subject to the review and approval of the Depositor prior to their
distribution to any prospective investors, and a copy of all such ABS Term
Sheets and Computational Materials as are delivered to prospective investors
shall, in addition to the foregoing delivery requirements, be delivered to the
Depositor simultaneously with delivery thereof to prospective investors. Each
delivery of Computational Materials and ABS Term Sheets to the Depositor
pursuant to this Section 8(a) shall be effected by delivering four copies of
such materials to counsel for the Depositor on behalf of the Depositor and one
copy of such materials to the Depositor.
(b) As of the date of this Agreement and as of the related Specified Delivery
Date, each of the Underwriters represents and warrants to, and agrees with, the
Depositor and with each other Underwriter that: (i) the Computational Materials
and ABS Term Sheets furnished to
13
the Depositor pursuant to Section 8(a) above, if any, constitute (either in
original, aggregated or consolidated form) all of the materials furnished to
prospective investors by such Underwriter that is required to be filed with the
Commission with respect to the related Certificates in accordance with the
No-Action Letters, and such Computational Materials and ABS Term Sheets comply
with the requirements of the No-Action Letters; (ii) on the date any such
Computational Materials and ABS Term Sheets with respect to such Certificates
(or any written or electronic materials furnished to prospective investors on
which such Computational Materials and ABS Term Sheets are based) were last
furnished to each prospective investor and on the date of delivery thereof to
the Depositor pursuant to Section 8(a) above and on such Specified Delivery
Date, such Computational Materials and ABS Term Sheets (or materials) were
accurate in all material respects when read in conjunction with the Prospectus
(taking into account the assumptions explicitly set forth in the Computational
Materials), except to the extent of any errors therein that are caused by
errors in the Seller's Information (as that term is defined in the
Indemnification Agreement); (iii) such Underwriter will not represent to
potential investors that any Computational Materials and ABS Term Sheets were
prepared or disseminated on behalf of the Depositor; and (iv) all Computational
Materials and ABS Term Sheets (or underlying materials distributed to
prospective investors on which the Computational Materials and ABS Term Sheets
were based) shall bear a legend substantially in the form attached hereto as
Exhibit K. Notwithstanding the foregoing, the Underwriters make no
representation or warranty as to whether any Computational Materials and ABS
Term Sheets (or any written or electronic materials furnished to prospective
investors on which the Computational Materials and ABS Term Sheets are based),
if any, included or will include any inaccurate statement resulting directly
from any error contained in the Seller's Information.
(c) In the event that any Computational Materials and ABS Term Sheets
that are required to be filed were based on assumptions with respect to the
Loans that are incorrect or that differ from the final Loans or Seller's
Information in any material respect or were based on Certificate structuring
terms that were revised in any material respect prior to the printing of the
Prospectus, the Underwriters shall prepare revised Computational Materials or
ABS Term Sheets, as the case may be, based on the final Seller's Information
and structuring assumptions, shall circulate such revised Computational
Materials and ABS Term Sheets to all recipients of the preliminary versions
thereof that indicated orally to the Underwriters they would purchase all or
any portion of the Certificates, and shall include such revised Computational
Materials or ABS Term Sheets (marked "as revised") in the materials delivered
to the Depositor pursuant to Section 8(a) above.
(d) Each Underwriter agrees, severally and not jointly, 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 and each other Underwriter 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 as such losses, claims,
damages or liabilities (or actions in respect thereof) (i) are based on, result
from or arise out of: (A) such Underwriter's use or delivery to any prospective
investor in the Certificates of any Computational Materials or ABS Term Sheet,
(B) such Underwriter's failure to comply with Section 8(a), 8(b) or 8(c) hereof
or (C) the filing by the Depositor with the Commission of any information
pursuant to the last sentence of Section 5(a) above or (ii) arise out of or are
based
14
upon any untrue statement or alleged untrue statement of a material fact
contained in any information required to be delivered to the Depositor by such
Underwriter pursuant to Section 8(a), 8(b) 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 Underwriters under this Section 8 shall be in addition to any liability
which the Underwriters may otherwise have.
The procedures set forth in Section 7(c) above 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 Section 8(d) above
is due in accordance with its terms but is for any reason held by a court to be
unavailable from the Underwriters on the grounds of policy or otherwise, the
Depositor and the Underwriters, severally and not jointly, 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 Underwriters may be subject in such
proportion as is appropriate to reflect the relative fault of the Underwriters
on the one hand and the Depositor on the other in connection with the actions,
statements or omissions that resulted in such loss, claims, damages or
liabilities. The relative fault of the Underwriters 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 Underwriters or by the Depositor and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Underwriters, severally and not jointly, 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 Section
8(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.
(f) Notwithstanding any other provision herein, the Underwriters,
severally and not jointly, agree to pay all costs and expenses of the Depositor
incurred in connection with (i) the filing by the Depositor of any
Computational Material or ABS Term Sheets with the Commission and (ii) any
action by the Depositor against the Underwriters to enforce any of its rights
set forth in this Section 8, including, without limitation, legal fees and
expenses if it prevails.
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 related 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
15
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 shall terminate
without liability on the part of any non-defaulting Underwriter or the
Depositor, except as provided in Section 11 below. As used in this Agreement,
the term "Underwriter" includes any person substituted for an Underwriter under
this Section 9. Nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. Termination of the Obligations of the Underwriters. The
obligations of the Underwriters to purchase on the related Specified Delivery
Date the Certificates described in the related Terms Agreement shall be
terminable by such Underwriters if (a) at any time on or prior to such
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 such 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 such Certificates or (iv) any change or any development involving a
prospective change occurs, materially and adversely affecting (A) the related
Trust Fund taken as a whole or (B) the business or properties of the Depositor,
which, in your reasonable judgment as representative of such 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 any material respect.
11. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements by the Depositor and of the several Underwriters set forth in or
made pursuant to this Agreement shall remain in full force and effect,
regardless of any investigation or statement as to the results thereof made by
or on behalf of such Underwriters, the Depositor or any of its officers or
directors or any controlling person, and shall survive delivery of and payment
of the related Certificates.
If this Agreement is terminated pursuant to Section 9 or Section 10
above or if for any reason the purchase by the Underwriters of the Certificates
described in the related Terms Agreement is not consummated, the Depositor
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5(g) above, and the obligations of the Depositor and such
Underwriters pursuant to Section 7 and Section 9 above shall remain in effect.
16
12. Notices. All communications hereunder shall be in writing and, if
sent to Credit Suisse First Boston Corporation, shall be mailed, delivered or
telecopied to it at Eleven Xxxxxxx 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, shall be mailed,
delivered or telecopied to it at Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 Attention: President; provided, however, that any notice to an
Underwriter pursuant to Section 7 shall be mailed, delivered or telegraphed to
such Underwriter at the address furnished by it.
13. Successors. This Agreement shall 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 above, and
their successors and assigns, and no other person shall have any right or
obligation hereunder. No purchaser of any Certificates from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
17
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.
Very truly yours,
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By: /s/ Xxxxx X. Xxxx
------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION,
as Underwriter
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
EXHIBIT A
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Commercial Mortgage Pass-Through Certificates,
Series 1998-C1
TERMS AGREEMENT
Dated: June 18, 1998
To: Credit Suisse First Boston Mortgage Securities Corp., as depositor
under the Pooling and Servicing Agreement dated as of
June 11, 1998
Re: Underwriting Agreement dated June 18, 1998
Registration Statement No. 333-51771
Base Prospectus dated June 11, 1998
Prospectus Supplement dated June 18, 1998 (together with the Base Prospectus,
the "Prospectus")
Title: Commercial Mortgage Pass-Through Certificates, Series 0000-X0
Xxxxxxxxx Xxxxxx: $2,197,390,000 (approximate)
Aggregate Purchase Price to be Paid by Credit Suisse First Boston Corporation:
$2,052,971,865, plus accrued interest
Aggregate Purchase Price to be Paid by PaineWebber Incorporated:
$375,966,459, plus accrued interest
Pooling and Servicing Agreement: By and among Credit Suisse First Boston
Mortgage Securities Corp. (the "Depositor"), Banc One Mortgage Capital Markets,
LLC (the "Servicer"), Lennar Partners, Inc. (the "Special Servicer") and State
Street Bank and Trust Company (the "Trustee", dated as of June 11, 1998
Underwriters: Credit Suisse First Boston Corporation and PaineWebber
Incorporated
Sellers: Credit Suisse First Boston Mortgage Capital LLC
Xxxxx Xxxxxx Real Estate Securities Inc.
CSFBMC Mortgage Loan Purchase Agreement: By and between the Depositor and
Credit Suisse First Boston Mortgage
Capital LLC, one of the Sellers,
dated as of June 25, 1998
PWRES Mortgage Loan Purchase Agreement: By and between the Depositor and
Xxxxx Xxxxxx Real Estate Securities
Inc., one of the Sellers, dated as
of June 25, 1998
A-1
(together with the CSFBMC Mortgage
Loan Purchase Agreement, the
"Mortgage Loan Purchase
Agreements")
Series Cut-off Date: June 11, 1998
Certificate Rating (Fitch / Xxxxx'x / S&P):
Class A-1A AAA/Aaa/AAA
Class A-1B AAA/Aaa/AAA
Class A-2MF AAA/Aaa/AAA
Class A-X AAA/Aaa/AAA
Class B AA/NR/AA
Class C A/NR/A
Class D BBB/NR/BBB
Class E BBB-/NR/BB-
Pass-Through Rate: Class A-1A 6.26%
Class A-1B 6.48%
Class A-2MF 6.42%
Class A-X Variable
Class B 6.59%
Class C 6.78%
Class D 7.17%
Class E Variable
Contracts: None
Distribution Dates: The 17th 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 July 1998; provided, however, that no Distribution
Date will fall on a date that is fewer than four business days after the
related Determination Date
Specified Delivery Date and Location: 10:00 a.m., New York time, on June 25,
1998, or at such other time not later than seven full business days thereafter
as may be agreed upon, at the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP,
New York, New York
The Class A-1A, Class A-1B2, Class A-2MF, Class A-X, Class B, Class C,
Class D and Class E Certificates will be issued as one or more certificates
registered in the name of Cede & Co., the nominee of The Depository Trust
Company ("DTC"). Beneficial owners will hold interests in the Class A-1A, Class
A-1B, Class A-2MF, Class B, Class C, Class D and Class E Certificates through
the book-entry facilities of DTC in minimum denominations of initial
Certificate Balance of $10,000 and in integral multiples of $1,000 in excess
thereof. Beneficial owners will hold interests in the Class A-X Certificates
through the book-entry facilities of DTC in minimum denominations of initial
Notional Balance of $100,000 and in integral multiples of $10,000 in excess
thereof.
A-2
The Class F, Class G, Class H, Class I, Class J, Class V-1, Class V-2,
Class R and Class LR Certificates issued pursuant to the Pooling and Servicing
Agreement are not subject to this Terms Agreement.
The parties hereto agree that this Terms Agreement does hereby
incorporate by reference, and they agree to be bound to the extent of their
respective obligations by, the terms and provisions of the Underwriting
Agreement (Standard Terms) dated June 18, 1998, between the Depositor and
Credit Suisse First Boston Corporation, as representative of the Underwriters
(the "Underwriting Agreement"), in the form attached hereto, including, without
limitation, Section 8 thereof.
In addition, the parties hereto agree that each Underwriter shall
provide a copy of any Computational Materials prepared by such Underwriter to
the other Underwriter at least [48 hours] prior to the time such Computational
Materials are delivered to prospective investors, and that no Computational
Materials shall be delivered to prospective investors unless and until the data
in such Computational Materials is reviewed and agreed by the other
Underwriter.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement, the Depositor agrees to cause to be issued and sold to
the Underwriters, and the Underwriters hereto agree, subject to the terms and
provisions of the Underwriting Agreement, which is incorporated by reference
herein and made a part hereof, to purchase the principal amount of the
Certificates.
A-3
Notwithstanding anything in the Underwriting Agreement or in this
Terms Agreement to the contrary, the Underwriting Agreement and this Terms
Agreement constitute the entire agreement and understanding among the parties
hereto with respect to the purchase and sale of the Offered Certificates. This
Terms Agreement may be amended only by written agreement of the parties hereto.
Capitalized terms not otherwise defined herein shall have the meanings assigned
to them in the Prospectus.
Very truly yours,
CREDIT SUISSE FIRST BOSTON
CORPORATION,
as Underwriter
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
PAINEWEBBER INCORPORATED,
as Underwriter
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Managing Director
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.,
as Depositor
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
A-4
ANNEX A
Certificates Purchased
Certificate Balances
Class A-1A Class A-1B Class A-2MF Class A-X Class B
Certificate Certificate Certificate Certificate Certificate
Underwriter Balance Balance Balance Balance Balance
------- ------- ------- ------- -------
Credit Suisse
First Boston
Corporation $ 364,400,000 $ 891,100,000 $ 222,890,000 $ 2,482,557,297 $ 115,600,000
PaineWebber
Incorporated 67,000,000 164,000,000 41,000,000 385,000 21,000,000
----------------- ------------------- ---------------- ------------------- ----------------
Total $ 431,400,000 $ 1,055,100,000 $ 263,890,000 $ 2,482,942,297 $ 136,600,000
================= =================== ================ =================== ================
Class C Class D Class E
Certificate Certificate Certificate
Underwriter Balance Balance Balance
------- ------- -------
Credit Suisse
First Boston
Corporation $ 115,600,000 $ 115,500,000 $ 34,300,000
PaineWebber
Incorporated 21,000,000 21,000,000 3,000,000
----------------- ----------------- ----------------
Total $ 136,600,000 $ 136,500,000 $ 37,300,000
================= ================= ================
EXHIBIT B
Form of Opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP,
Special Counsel to the Depositor
[To be provided]
EXHIBIT C-1
Form of Opinion of Xxxxxxx X. Xxxxxx,
Counsel to Credit Suisse First Boston Mortgage Capital LLC, one of the Sellers
[To be provided]
C-1-1
EXHIBIT C-2
Form of Opinion of White & Case,
Counsel to Xxxxx Xxxxxx Real Estate Securities Inc., one of the Sellers
[To be provided]
C-2-1
EXHIBIT D
Form of Opinion of Peabody & Xxxxxx LLP
Special Counsel to the Trustee
[To be provided]
D-1
EXHIBIT E
Form of Opinion of Squire, Xxxxxxx & Xxxxxxx, L.L.P.
Counsel to the Servicer
[To be provided]
E-1
EXHIBIT F
Form of Opinion of Rubin, Baum, Xxxxx, Constant, Xxxxxxxx & Bilzin,
Counsel to the Special Servicer
[To be provided]
F-1
EXHIBIT G
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Commercial Mortgage Pass-Through Certificates
Series 1998-C1
Form of Depositor
OFFICER'S CERTIFICATE
I, ___________________ , do hereby certify that I am the duly elected
Vice President of Credit Suisse First Boston Mortgage Securities Corp., a
Delaware corporation (the "Depositor"), and further certify as follows:
1. The representations and warranties of the Depositor in the
Underwriting Agreement and the Pooling and Servicing Agreement are true and
correct.
2. The Depositor 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 Depositor.
5. 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 Depositor or the transactions contemplated by the
Underwriting Agreement.
6. Nothing has come to my attention that would lead me to believe that
the Registration Statement, at the time it became effective and at the date
hereof, contains any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus at the date thereof and at the
date hereof, contains any untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
7. No proceedings looking toward merger, liquidation, dissolution or
bankruptcy of the Depositor are pending or contemplated.
8. The Depositor is in good standing (including the payment of all
franchise taxes and the filing of required reports) under the laws of the State
of Delaware and is duly qualified to do business in the State of New York,
which is the only jurisdiction in which the Depositor conducts material
operations.
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Capitalized terms used but otherwise not defined herein shall have the
meanings assigned to them in the Underwriting Agreement, dated June 18, 1998,
between the Depositor and Credit Suisse First Boston Corporation, as
representative of the several Underwriters, as amended by the Terms Agreement,
dated June 18, 1998, between the Depositor, Credit Suisse First Boston
Corporation and PaineWebber Incorporated (together, the "Underwriting
Agreement").
IN WITNESS WHEREOF, I have hereunto signed my name this day of June
1998.
By:
-----------------------------
Name:
Title:
G-2
EXHIBIT H
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Commercial Mortgage Pass-Through Certificates
Series 1998-C1
Form of Trustee
OFFICER'S CERTIFICATE
I, ______________________ , do hereby certify that I am the duly
elected [_________] of State Street Bank and Trust Company (the "Trustee"), a
Massachusetts trust company, and further certify as follows:
1. The Trustee has been duly organized and is validly existing and in
good standing under the laws of the Commonwealth of Massachusetts and is duly
qualified to do business and in good standing under the laws of each
jurisdiction in which the performance of its duties under the Agreement (as
defined herein) would require such qualification, or if not so qualified, will
appoint a co-trustee that is so qualified.
2. The Certificates have been duly authorized, executed and delivered
by the Trustee and are entitled to the benefits of the Pooling and Servicing
Agreement.
3. 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 enforcement thereof may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and the rights of creditors of banks,
and (B) general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
4. The execution and delivery by the Trustee of the Agreement is
within the power of the Trustee and has been duly authorized by all necessary
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 organization
certificate 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.
5. The Trustee holds all material licenses, certificates and permits
from all governmental authorities necessary for the performance of its
obligations under the Agreement or, if it does not hold any such license,
certificate or permit, will appoint a co-trustee that does hold such license,
certificate or permit, and the Trustee has received no notice of proceedings
relating to the revocation of any such license, certificate or permit, which
singly or in the
H-1
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 Trustee; and the Trustee has the
power and authority to perform its obligations under the Pooling and Servicing
Agreement.
6. The certificates issued pursuant to Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
1998-C1 (the "Certificates"), dated the date hereof and provided for by the
Pooling and Servicing Agreement, have been executed and authenticated on behalf
of the Trust by Responsible Officers of the Trustee.
7. The Certificates have on or before this date been delivered, by the
Trustee, to or on the order of the Depositor.
Capitalized terms used but otherwise not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement, dated as of
June 11, 1998 (the "Agreement"), among Credit Suisse First Boston Mortgage
Securities Corp., as Depositor, Banc One Mortgage Capital LLC, as Servicer,
Lennar Partners, Inc., as Special Servicer, and State Street Bank and Trust
Company, as Trustee.
IN WITNESS WHEREOF, I have hereunto signed my name, this day of June
1998.
By:
-----------------------------
Name:
Title:
H-2
EXHIBIT I
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Commercial Mortgage Pass-Through Certificates
Series 1998-C1
Form of Servicer
OFFICER'S CERTIFICATE
I, ________________, do hereby certify that I am the duly elected
__________ of Banc One Mortgage Capital Markets LLC ("Banc One") (in its
capacity as Servicer, the "Servicer"), a national banking association, and
further certify as follows:
1. The Servicer has been duly organized and is validly existing and in
good standing under the laws of the State of Delaware, and is in compliance
with the laws of each state in which any Mortgaged Property (as defined in the
Pooling and Servicing Agreement) is located to the extent necessary to perform
its obligations under the Pooling and Servicing Agreement.
2. The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Servicer and (assuming due authorization,
execution and delivery by the other parties thereto) is a valid and binding
agreement of the Servicer, enforceable against the Servicer in accordance with
its terms, except to the extent that enforcement thereof may be limited by (A)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (B) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity).
3. The Servicer has the power and authority to conduct its business as
contemplated by the Pooling and Servicing Agreement.
4. The execution and delivery by the Servicer of the Pooling and
Servicing Agreement is within the power of the Servicer and has been duly
authorized by all necessary action on the part of the Servicer; and neither the
execution and delivery of the Pooling and Servicing Agreement 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 articles of association 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.
5. The Servicer holds all material licenses, certificates and permits
from all governmental authorities necessary for the conduct of its business as
required by the Pooling and Servicing 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
I-1
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.
Capitalized terms used but otherwise not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement, dated as of
June 11, 1998, (the "Pooling and Servicing Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp., as Depositor, Banc One Mortgage Capital
Markets, LLC, as Servicer, Lennar Partners, Inc., as Special Servicer, and
State Street Bank and Trust Company, as Trustee.
IN WITNESS WHEREOF, I have hereunto signed my name (in my capacity as
officer of Banc One, and not individually) this day of June 1998.
By:
-----------------------------
Name:
Title:
I-2
EXHIBIT J
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Commercial Mortgage Pass-Through Certificates
Series 1998-C1
Form of Special Servicer
OFFICER'S CERTIFICATE
I, ________________ , do hereby certify that I am the duly elected
______________________ of Lennar Partners, Inc. (the "Special Servicer"), a
Florida corporation, and further certify as follows:
1. The Special Servicer has been duly incorporated and is validly
existing and in good standing under the laws of the State of Florida, and is
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 Pooling and Servicing Agreement would require such qualification.
2. The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Special Servicer and (assuming due authorization,
execution and delivery by the other parties thereto) is a valid and binding
agreement of the Special Servicer, enforceable against the Special Servicer in
accordance with its terms, except to the extent that enforcement thereof may be
limited by (A) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally, and (B) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity).
3. The Special Servicer has the corporate power and authority to
conduct its business as described in the Prospectus Supplement.
4. The execution and delivery by the Special Servicer of the Pooling
and Servicing Agreement is within the corporate power of the Special Servicer
and has been duly authorized by all necessary corporate action on the part of
the Special Servicer; and neither the execution and delivery of the Pooling and
Servicing Agreement by the Special Servicer, nor the consummation by the
Special Servicer of the transactions therein contemplated, nor compliance with
the provisions thereof by the Special Servicer, 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 bylaws of the Special Servicer or any law,
governmental rule or regulation, or any judgment, decree or order binding on
the Special Servicer or its properties, or any of the provisions of any
indenture, mortgage, deed of trust, contract or other instrument to which the
Special 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.
5. The Special Servicer holds all material licenses, certificates and
permits from all governmental authorities necessary for the conduct of its
business as described in the Prospectus
J-1
Supplement 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 Special Servicer.
Capitalized terms used but otherwise not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement, dated as of
June 11, 1998 (the "Pooling and Servicing Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp., as Depositor, Banc One Mortgage Capital
Markets, LLC, as Servicer, Lennar Partners, Inc., as Special Servicer, and
State Street Bank and Trust Company, as Trustee.
IN WITNESS WHEREOF, I have hereunto signed my name this day of June
1998.
By:
-----------------------------
Name:
Title:
J-2
EXHIBIT K
Form of Computational Material/ABS Term Sheet Legend
Prospective investors are advised to carefully read, and should rely solely on,
the final prospectus and prospectus supplement (the "Final Prospectus")
relating to the securities referred to herein in making their investment
decision. This Computational Material/ABS Term Sheet does not include all
relevant information relating to the securities and collateral described
herein, particularly with respect to the risks and special considerations
associated with an investment in such securities. All structural and collateral
information contained herein is preliminary and it is anticipated that such
information will change. Any information contained herein will be more fully
described in, and will be fully superseded by, the description of the
collateral and structure in the preliminary prospectus supplement and Final
Prospectus. Although the information contained in this Computational
Material/ABS Term Sheet is based on sources which PaineWebber Incorporated
("PaineWebber") believes to be reliable, PaineWebber makes no representation or
warranty that such information is accurate or complete. Such information should
not be viewed as projections, forecasts, predictions or opinions with respect
to value. PaineWebber and its affiliates may in the future have positions in
the securities discussed herein and may purchase or sell the same on a
principal basis or as agent for another person. In addition, PaineWebber may
act as an underwriter of such securities, and PaineWebber and certain of its
affiliates may currently be providing investment banking and other services to
the issuer of such securities and the borrowers described herein and their
affiliates. Prior to making any investment decision, a prospective investor
should fully review the Final Prospectus. NOTHING HEREIN SHOULD BE CONSIDERED
AN OFFER TO SELL OR SOLICITATION OF AN OFFER TO BUY ANY SECURITIES.
K-1
