Exhibit 4.1
$1,525,000,000
CONTIMORTGAGE HOME EQUITY LOAN TRUST 1997-4
Home Equity Loan Pass-Through Certificates,
Series 1997-4
UNDERWRITING AGREEMENT
September 18, 1997
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
As Representative of the Several Underwriters
World Financial Center
North Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
ContiSecurities Asset Funding Corp. (the "Depositor"), a Delaware
corporation, has authorized the issuance and sale of Home Equity Loan
Pass-Through Certificates, Series 1997-4, Class A-1, Class X-0, Xxxxx X-0, Class
A-4, Class A-5, Class A-6, Class A-7, Class A-8, Class A-9, and Class A-7IO,
(the "Class A Certificates") and Class B (the "Subordinate Certificates"). The
Class A Certificates and the Subordinate Certificates are collectively the
"Offered Certificates". Also issued are the Class C and the Class R Certificates
(the "Retained Certificates"). The Offered Certificates and the Retained
Certificates (collectively the "Certificates" ) evidence interests in a pool of
fixed and adjustable rate home equity loans (the "Home Equity Loans"). The Home
Equity Loans are secured primarily by first and second deeds of trust or
mortgages on one- to four-family residential properties.
Only the Offered Certificates are being purchased by the Underwriters named
in Schedule A hereto, and the Underwriters are purchasing, severally, only the
Offered Certificates set forth opposite their names in Schedule A, except that
the amounts purchased by the Underwriters may change in accordance with Section
X of this Agreement. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
("Xxxxxxx Xxxxx") is acting as representative of the several Underwriters and in
such capacity is hereinafter referred to as the "Representative."
The Certificates will be issued under a pooling and servicing agreement
(the "Pooling and Servicing Agreement"), to be dated as of September 1, 1997
among the Depositor, ContiMortgage Corporation ("ContiMortgage"), as the
servicer and a seller (in such capacity, the "Servicer" or a "Seller," as the
case may be), ContiWest Corporation ("ContiWest"), as a seller (a "Seller," and
collectively with ContiMortgage, the "Sellers") and Manufacturers and Traders
Trust Company, as.the trustee (the "Trustee"). Each of the Depositor, Xxxxx
Mortgage and ContiWest is a subsidiary of ContiFinancial Corporation
("ContiFinancial").
The Certificates will evidence fractional undivided interests in the trust
(the "Trust") formed pursuant to the Pooling and Servicing Agreement. The assets
of the Trust will initially include, among other things, a pool of f~xed and
adjustable rate home equity loans having a Cut-Off Date (as defined herein) as
of the close of business on September 12, 1997 (the "Home Equity Loans"), and
such amounts as may be held by the Trustee in any accounts held by the Trustee
for the Trust. A form of the Pooling and Servicing Agreement has been filed as
an exhibit to the Registration Statement (hereinafter defined).
The Certificates are more fully described in a Registration Statement which
the Depositor has furnished to the Underwriters. Capitalized terms used but not
defined herein shall have the meanings given to them in the Pooling and
Servicing Agreement.
The Class A Certificates will be entitled to the benefits of a certificate
guaranty insurance policy (the "Policy") issued by MBIA Insurance Corporation
("MBIA"). The Depositor, ContiMortgage and ContiWest will also enter into an
Indentification Agreement (the "Indemnification Agreement") dated as of
September 1, 1997 among the Underwriters, the Depositor, ContiMortgage,
ContiWest and MBIA, governing the liability of the several parties with respect
to the losses resulting from material misstatements or omissions contained in
the Prospectus Supplement.
Pursuant to Section 3.05 of the Pooling and Servicing Agreement and
concurrently with the execution thereof, ContiMortgage and ContiWest will
transfer to the Depositor all of their right, title and interest in and to the
unpaid principal balances of the Home Equity Loans as of the Cut-Off Date and
interest due after the Cut-Off Date and the collateral securing each Home Equity
Loan.
SECTION I. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The Depositor
represents and warrants to, and agrees with the Underwriters that:
A.__ A Registration Statement on Form S-3 (No. 333-19427), has (i) been
prepared by the Depositor in conformity with the requirements of the Securities
Act of 1933, as amended (the "Securities Act") and the rules and regulations
(the "Rules and Regulations") of the United States Securities and Exchange
Commission (the "Commission") thereunder, (ii) been filed with the Commission
under the Securities Act and (iii) become effective and is still effective as of
the date hereof under the Securities Act; Copies of such Registration Statement
have been delivered by the Depositor to the Underwriters. As used in this
Agreement, "Effective Time" means the date and the time as of which such
Registration Statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission; "Effective Date" means the date
of the Effective Time; "Registration Statement" means such registration
statement, at the Effective Time, including any documents incorporated by
reference therein at such time; "Basic Prospectus" means such final prospectus
dated February 19, 1997; and "Prospectus Supplement" means the final prospectus
supplement relating to the Offered Certificates, to be filed with the Commission
pursuant to paragraphs (2), (3) or (5) of Rule 424(b) of the Rules and
Regulations. "Prospectus" means the Basic Prospectus together with the
Prospectus Supplement. Reference made herein to the Prospectus shall be deemed
to refer to and include any documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the Securities Act, as of the date of the
Prospectus and any reference to any amendment or supplement to the Prospectus
shall be deemed to refer to and include any document filed under the Securities
Exchange Act of 1934 (the "Exchange Act") after the date of the Prospectus, and
incorporated by reference in the Prospectus and any reference to any amendment
to the Registration Statement shall be deemed to include any report of the
Depositor filed with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act after the Effective Time that is incorporated by reference in the
Registration Statement. The Commission has not issued any order preventing or
suspending the use of the Prospectus or the effectiveness of the Registration
Statement and no proceedings for such purpose are pending or, to the Depositor's
knowledge, threatened by the Commission. There are no contracts or documents of
the Depositor which are required to be filed as exhibits to the Registration
Statement pursuant to the Securities Act or the Rules and Regulations which have
not been so filed or incorporated by reference therein on or prior to the
Effective Date of the Registration Statement other than such documents or
materials, if any, as any Underwriter delivers to the Depositor pursuant to
Section VIII D hereof for filing on Form 8-K. The conditions for use of Form
S-3, as set forth in the General Instructions thereto, have been satisfied.
To the extent that any Underwriter has provided to the Depositor
Computational Materials that such Underwriter has provided to a prospective
investor, the Depositor will file or cause to be filed with the Commission a
report on Form 8-K containing such Computational Materials, as soon as
reasonably practicable after the date of this Agreement, but in any event, not
later than 11:00 a.m. New York time the date on which the Prospectus is made
available to the Underwriter and is filed with the Commission pursuant to Rule
424 of the Rules and Regulations.
B.__ The Registration Statement and the Prospectus conform, and any further
amendments or supplements to the Registration Statement or the Prospectus will
conform, when they become effective or are filed with the Commission, as the
case may be, in all respects to the requirements of the Securities Act and the
Rules and Regulations. The Registration Statement, as of the Effective Date
thereof and of any amendment thereto, did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus as of
its date, and as amended or supplemented as of the Closing Date does not and
will 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; provided that no
representation or warranty is made as to information contained in or omitted
from the Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Depositor in writing by any
Underwriters through the Representative expressly for use therein.
C.__ The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, when such
documents become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided that no representation
is made as to documents deemed to be incorporated by reference in the Prospectus
as the result of filing a Form 8-K at the request of the Underwriters except to
the extent such documents reflect information furnished by the Depositor to the
Underwriters for the purpose of preparing such documents.
D.__ Since the respective dates as of which information is given in the
Prospectus, there has not been any material adverse change in the general
affairs, management, financial condition, or results of operations of the
Depositor, otherwise than as set forth or contemplated in the Prospectus as
supplemented or amended as of the Closing Date.
E.__ The Depositor has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its 3urisdiction of incorporation
and is in good standing as a foreign corporation in each jurisdiction in which
its ownership or lease of property or the conduct of its business so requires
such standing. The Depositor has all power and authority necessary to own or
hold its properties, to conduct the business in which it is engaged and to enter
into and perform its obligations under this Agreement and the Pooling and
Servicing Agreement and to cause the Certificates to be issued.
F.__ There are no actions, proceedings or investigations pending with
respect to which the Depositor has received service of process before or
threatened by any court, administrative agency or other tribunal to which the
Depositor is a party or of which any of its properties is the subject (a) which
if determined adversely to the Depositor would have a material adverse effect on
the business or financial condition of the Depositor, (b) asserting the
invalidity of this Agreement, the Pooling and Servicing Agreement or the
Certificates (c) seeking to prevent the issuance of the Certificates or the
consummation by the Depositor of any of the transactions contemplated by the
Pooling and Servicing Agreement or this Agreement, as the case may be, or (d)
which might materially and adversely affect the performance by the Depositor of
its obligations under, or the validity or enforceability of, the Pooling and
Servicing Agreement, this Agreement or the Certificates.
G.__ This Agreement has been, and the Pooling and Servicing Agreement when
executed and delivered as contemplated hereby and thereby will have been, duly
authorized, executed and delivered by the Depositor, and this Agreement
constitutes, and the Pooling and Servicing Agreement when executed and delivered
as contemplated herein will constitute, legal, valid and binding instruments
enforceable against the Depositor in accordance with their respective terms,
subject as to enforceability to (x) applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting creditors' rights
generally, (y) general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law), and (z) with respect to rights
of indemnity under this Agreement and limitations of public policy under
applicable securities laws.
H.__ The execution, delivery and performance of this Agreement and the
Pooling and Servicing Agreement by the Depositor and the consummation of the
transactions contemplated hereby and thereby, and the issuance and delivery of
the Certificates do not and will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Depositor is a party, by which the Depositor is bound or
to which any of the properties or assets of the Depositor or any of its
subsidiaries is subject, which breach or violation would have a material adverse
effect on the business, operations or financial condition of the Depositor or
its ability to perform its obligations under this Agreement and the Pooling and
Servicing Agreement, nor will such actions result in any violation of the
provisions of the articles of incorporation or by-laws of the Depositor or any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Depositor or any of its properties or assets,
which breach or violation would have a material adverse effect on the business,
operations or financial condition of the Depositor or its ability to perform its
obligations under this Agreement and the Pooling and Servicing Agreement.
I.__ The Depositor has no reason to know that Xxxxxx Xxxxxxxx & Co. are not
independent public accountants with respect to the Depositor as required by the
Securities Act and the Rules and Regulations.
J.__ The execution of the Certificates by the Depositor and the direction
by the Depositor to the Trustee to authenticate, issue and deliver the
Certificates have been duly authorized by the Depositor, and, assuming the
Trustee has been duly authorized to do so, when executed by the Depositor, and
authenticated, issued and delivered by the Trustee in accordance with the
Pooling and Servicing Agreement, the Certificates will be validly issued and
outstanding and the holders of the Certificates will be entitled to the rights
and benefits of the Certificates as provided by the Pooling and Servicing
Agreement.
K.__ No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the United
States is required for the issuance of the Certificates and the sale of the
Offered Certificates to the Underwriters, or the consummation by the Depositor
of the other transactions contemplated by this Agreement and the Pooling and
Servicing Agreement except such consents, approvals, authorizations,
registrations or qualifications as may be required under State securities or
Blue Sky laws in connection with the purchase and distribution of the Offered
Certificates by the Underwriters or as have been obtained.
L.__ The Depositor possesses all material licenses, certificates,
authorities or permits issued by the appropriate State, Federal or foreign
regulatory agencies or bodies necessary to conduct the business now conducted by
it and as described in the Prospectus, and the Depositor has not received notice
of any proceedings relating to the revocation or modification of any such
license, certificate, authority or permit which if decided adversely to the
Depositor would, singly or in the aggregate, materially and adversely affect the
conduct of its business, operations or financial condition.
M.__ At the time of execution and delivery of the Pooling and Servicing
Agreement, the Depositor will: (i) have good title to the Home Equity Loans
conveyed by the Sellers, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively, "Liens");
(ii) not have assigned to any person any of its right or title in the Home
Equity Loans contemplated in the Pooling and Servicing Agreement or in the
Certificates being issued pursuant thereto; and (iii) have the power and
authority to sell its interest in the Home Equity Loans to the Trustee and to
sell the Offered Certificates to the Underwriters. Upon execution and delivery
of the Pooling and Servicing Agreement by the Trustee, the Trustee will have
acquired beneficial ownership of all of the Depositor's right, title and
interest in and to the Home Equity Loans. Upon delivery to the~Underwriters of
the Offered Certificates, the Underwriters will have good title to the Offered
Certificates, free of any Liens.
N.__ Reserved.
O.__ As of the Statistical Calculation Date, each of the Home Equity Loans
will meet the eligibility criteria described in the Prospectus and will conform
to the descriptions thereof contained in the Prospectus.
P.__ Reserved.
Q.__ Neither the Depositor nor the Trust created by the Pooling and
Servicing Agreement is an "investment company" within the meaning of such term
under the Investment Company Act of 1940 (the "1940 Act") and the rules and
regulations of the Commission thereunder.
R.__ At the Closing Date, the Offered Certificates and the Pooling and
Servicing Agreement will conform in all material respects to the descriptions
thereof contained in the Prospectus.
S.__ At the Closing Date, the Class A Certificates shall have been rated in
the highest rating category by Xxxxx'x Investors Service, Inc. ("Moody's"),
Standard & Poor's Ratings Services, a division of the XxXxxx-Xxxx Companies
("Standard & Poor's") and Fitch Investors Service, L.P. ("Fitch"), and the
Subordinate Certificates shall receive ratings of "Baa3" by Moody's, "BBB-" by
Standard & Poor's and "BBB" from Fitch.
T.__ Any taxes, fees and other governmental charges in connection with the
execution, delivery and issuance of this Agreement, the Pooling and Servicing
Agreement and the Certificates have been paid or will be paid at or prior to the
Closing Date.
U.__ At the Closing Date, each of the representations and warranties of the
Depositor set forth in the Pooling and Servicing Agreement will be true and
correct in all material respects.
V.__ Any certificate signed by an officer of the Depositor and delivered to
the Representative or counsel for the Representative in connection with an
offering of the Offered Certificates shall be deemed, and shall state that it
is, a representation and warranty as to the matters covered thereby to each
person to whom the representations and warranties in this Section I are made.
SECTION II. PURCHASE AND SALE. The commitment of the Underwriters to
purchase the Offered Certificates pursuant to this Agreement shall be deemed to
have been made on the basis of the representations and warranties herein
contained and shall be subject to the terms and conditions herein set forth. The
Depositor agrees to instruct the Trustee to issue the Offered Certificates and
agrees to sell to the Underwriters, and the Underwriters agree (except as
provided in Sections X and XI hereof) severally and not jointly to purchase from
the Depositor, the aggregate initial principal amounts or percentage interests
of the Offered Certificates of each Class, as set forth opposite their names on
Schedule A, at the purchase price or prices set forth on Schedule A.
SECTION III. DELIVERY AND PAVMENT. Delivery of and payment for the Offered
Certificates shall be made at the offices of Stroock & Stroock & Xxxxx, 000
Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed
upon by the Representative and the Depositor at 10:00 A.M. New York City time on
September 25, 1997 or at such other time or date as shall be agreed upon in
writing by the Representative and the Depositor (such date being referred to as
the "Closing Date"). Payment shall be made to the Depositor by wire transfer of
same day funds payable to the account of the Depositor. Delivery of the Offered
Certificates shall be made to the Representative for the accounts of the
Underwriters against payment of the purchase price thereof. The Certificates
shall be in such authorized denominations and registered in such names as the
Representative may request in writing at least two business days prior to the
Closing Date. The Offered Certificates will be made available for examination by
the Representative no later than 2:00 p.m. New York City time on the first
business day prior to the Closing Date.
SECTION IV. OFFERING BV THE UNDERWRITERS. It is understood that, subject to
the terms and conditions hereof, the Underwriters propose to offer the Offered
Certificates for sale to the public as set forth in the Prospectus.
SECTION V. COVENANTS OF THE DEPOSITOR. The Depositor and, to the extent the
provisions of Sections H. and I. below relate to ContiMortgage and ContiWest,
respectively, ContiMortgage and ContiWest agree as follows:
A.__ To prepare the Prospectus in a form approved by the Underwriters and
to file such Prospectus pursuant to Rule 424(b) under the Securities Act not
later than the Commission's close of business on the second business day
following the availability of the Prospectus to the Underwriters; to make no
further amendment or any supplement to the Registration Statement or to the
Prospectus prior to the Closing Date except as permitted herein; to advise the
Underwriters, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective
prior to the Closing Date or any supplement to the Prospectus or any amended
Prospectus has been filed prior to the Closing Date and to furnish the
Underwriters with copies thereof without charge; to file promptly all reports
and any definitive proxy or information statements required to be filed by the
Depositor with the Commission pursuant to Section 13(a), 13(c), 14 or lS(d) of
the Exchange Act subsequent to the date of the Prospectus and, for so long as
the delivery of a prospectus is required in connection with the offering or sale
of the Offered Certificates; to promptly advise the Underwriters of its receipt
of notice of the issuance by the Commission of any stop order or the institution
of or, to the knowledge of the Depositor, the threatening of any proceeding for
such purpose, or of: (i) any order preventing or suspending the use of the
Prospectus; (ii) the suspension of the qualification of the Offered Certificates
for offering or sale in any jurisdiction; (iii) the initiation of or threat of
any proceeding for any such purpose; or (iv) any request by the Commission for
the amending or supplementing of the Registration Statement or the Prospectus or
for additional information. In the event of the issuance of any stop order or of
any order preventing or suspending the use of the Prospectus or suspending any
such qualification, the Depositor promptly shall use its best efforts to obtain
the withdrawal of such order by the Commission.
B.__ To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally filed
with the Commission, and of each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith.
C.__ To deliver promptly to the Underwriters without charge such number of
the following documents as the Underwriters shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case including exhibits); (ii)
the Prospectus and any amended or supplemented Prospectus; and (iii) any
document incorporated by reference in the Prospectus (including exhibits
thereto). If the delivery of a prospectus is required at any time prior to the
expiration of nine months after the Closing Date in connection with the offering
or sale of the Offered Certificates, and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the Exchange
Act any document incorporated by reference in the Prospectus in order to comply
with the Securities Act or the Exchange Act, the Depositor shall notify the
Underwriters and, upon any Underwriters' request, shall file such document and
prepare and furnish without charge to the Underwriters and to any dealer in
securities as many copies as the Underwriters may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which
corrects such statement or omission or effects such compliance, and in case the
Underwriters are required to deliver a Prospectus in connection with sales of
any of the Offered Certificates at any time nine months or more after the
Effective Time, upon the request of the Underwriters but at their expense, the
Depositor shall prepare and deliver to the Underwriters as many copies as the
Underwriters may reasonably request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Securities Act.
D.__ To file promptly with the Commission any amendment to the Registration
Statement or the Prospectus or any supplement to the Prospectus that may, in the
judgment of the Depositor or the Underwriters, be required by the Securities Act
or requested by the Commission. Neither the Underwriters' consent to nor their
distribution of any amendment or supplement shall constitute a waiver of any of
the conditions set forth in Section VI.
E.__ To furnish the Underwriters and counsel for the Underwriters, prior to
filing with the Commission, and to obtain the consent of the Underwriters for
the filing of the following documents relating to the Certificates: (i) any
Post-Effective Amendment to the Registration Statement or supplement to the
Prospectus, or document incorporated by reference in the Prospectus, or (ii)
Prospectus pursuant to Rule 424 of the Rules and Regulations.
F.__ To make generally available to holders of the Offered Certificates as
soon as practicable, but in any event not later than 90 days after the close of
the period covered thereby, a statement of earnings of the Trust (which need not
be audited) complying with Section 1 l(a) of the Securities Act and the Rules
and Regulations (including, at the option of the Depositor, Rule 158) and
covering a period of at least twelve consecutive months beginning not later than
the first day of the first fiscal quarter following the Closing Date.
G.__ To use its best efforts, in cooperation with the Underwriters, to
qualify the Offered Certificates for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States or
elsewhere as the Underwriters may designate, and maintain or cause to be
maintained such qualifications in effect for as long as may be required for the
distribution of the Offered Certificates. The Depositor will file or cause the
filing of such statements and reports as may be required by the laws of each
jurisdiction in which the Offered Certificates have been so qualified.
H.__ Unless the Underwriters shall otherwise have given their written
consent, no collateralized mortgage obligations or other similar securities
representing interests in or secured by other mortgage-related assets originated
or owned by ContiMortgage shall be publicly offered or sold, nor shall
ContiMortgage enter into any contractual arrangements that contemplate the
public offering or sale of such securities, until the earlier to occur of the
termination of the syndicate or the Closing Date.
I.__ Unless the Underwriters shall otherwise have given their written
consent, no collateralized mortgage obligations or other similar securities
representing interests in or secured by other mortgage-related assets originated
or owned by ContiWest shall be publicly offered or sold, nor shall ContiWest
enter into any contractual arrangements that contemplate the public offering or
sale of such securities, until the earlier to occur of the termination of the
syndicate or the Closing Date.
J.__ Unless the Underwriters shall otherwise have given their written
consent (such consent not to be unreasonably withheld), no collateralized
mortgage obligations or other similar securities representing interests in or
secured by other mortgage-related assets that are similar to the Home Equity
Loans originated or owned by the Depositor shall be publicly offered or sold
until the earlier to occur of the termination of the syndicate or the Closing
Date.
K.__ So long as the Offered Certificates shall be outstanding the Depositor
shall cause the Trustee, pursuant to the Pooling and Servicing Agreement, to
deliver to the Underwriters as soon as such statements are furnished to the
Trustee: (i) the annual statement as to compliance delivered to the Trustee
pursuant to Section 8.16 of the Pooling and Servicing Agreement; (ii) the annual
statement of a firm of independent public accountants furnished to the Trustee
pursuant to Section 8.17 of the Pooling and Servicing Agreement; (iii) the
monthly servicing report furnished to the Trustee pursuant to Section 7.08 of
the Pooling and Servicing Agreement; and (iv) the monthly reports furnished to
the Certifcateholders pursuant to Section 7.09 of the Pooling and Servicing
Agreement.
L.__ To apply the net proceeds from the sale of the Offered Certificates in
the manner set forth in the Prospectus.
SECTION VI. CONDITIONS TO THE UNDERWRITERS' OBLIGATION. The obligations of
the Underwriters hereunder to purchase the Offered Certificates pursuant to the
Agreement are subject to: (i) the accuracy on and as of the Closing Date of the
representations and warranties on the part of the Depositor herein contained;
(ii) the performance by the Depositor of all of its obligations hereunder; and
(iii) the following conditions as of the Closing Date:
A.__ The Underwriters shall have received confirmation of the effectiveness
of the Registration Statement. No stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission. Any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus shall have been
complied with.
B.__ The Underwriters shall not have discovered and disclosed to the
Depositor on or prior to the Closing Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue statement
of a fact or omits to state a fact which, in the opinion of Xxxxx Xxxxxxxxxx,
counsel for the Underwriters, is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
C.__ All corporate proceedings and other legal matters relating to the
authorization, form and validity of this Agreement, the Pooling and Servicing
Agreement, the Certificates, the Registration Statement and the Prospectus, and
all other legal matters relating to this Agreement and the transactions
contemplated hereby shall be satisfactory in all respects to counsel for the
Underwriters, and the Depositor shall have furnished to such counsel all
documents and information that they may reasonably request to enable them to
pass upon such matters.
D.__ Stroock & Stroock & Xxxxx shall have furnished to the Underwriters
their written opinion, as counsel to the Depositor, addressed to the
Underwriters and dated the Closing Date, in form and substance satisfactory to
the Underwriters, to the effect that:
(i) The conditions to the use by the Depositor of a registration
statement on Form S-3 under the Securities Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the
Registration Statement and the Prospectus.
(ii) The Registration Statement and any amendments thereto have become
effective under the 1933 Act; to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration Statement has
been issued and not withdrawn and no proceedings for that purpose have been
instituted or threatened and not terminated; and the Registration
Statement, the Prospectus and each amendment or supplement thereto, as of
their respective effective or issue dates (other than the financial and
statistical information contained therein, as to which such counsel need
express no opinion), complied as to form in all material respects with the
applicable requirements of the 1933 Act and the rules and regulations
thereunder.
(iii) To the best of such counsel's knowledge, there are no material
contracts, indentures or other documents of a character required to be
described or referred to in the Registration Statement or the Prospectus or
to be filed as exhibits to the Registration Statement other than those
described or referred to therein or filed or incorporated by reference as
exhibits thereto.
(iv) The statements set forth in the Basic Prospectus under the
captions "Summary of Prospectus," "Description of The Certificates," "The
Trusts" and "The Pooling and Servicing Agreement" and in the Prospectus
Supplement under the captions "Description of The Offered Certificates" and
"The Pooling and Servicing Agreement," to the extent such statements
purport to summarize certain provisions of the Certificates or of the
Pooling and Servicing Agreement, are fair and accurate in all material
respects.
(v) The statements set forth in the Prospectus and the Prospectus
Supplement under the captions "ERISA Considerations," "Certain Legal
Aspects of the Mortgage Assets" and "Certain Federal Income Tax
Considerations" to the extent that they constitute matters of federal law,
provide a fair and accurate summary of such law or conclusions.
(vi) The Pooling and Servicing Agreement conforms in all material
respects to the description thereof contained in the Prospectus and is not
required to be qualified under the Trust Indenture Act of 1939, as amended,
and the Trust is not required to be registered under the Investment Company
Act of 1940, as amended.
(vii) Neither the Depositor nor the Trust is an "investment company"
or under the "control" of an "investment company" as such terms are defined
in the 1940 Act.
(viii) Assuming that (a) the Trustee causes certain assets of the
Trust Estate, as the Trustee has covenanted to do in the Pooling and
Servicing Agreement, to be treated as a "real estate mortgage investment
conduit" ("REMIC"), as such term is defined in the Internal Revenue Code of
1986, as amended (the "Code"), and (b) the parties to the Pooling and
Servicing Agreement comply with the terms thereof, the Lower-Tier REMIC and
the Upper-Tier REMIC will each be treated as a REMIC, each Class of the
Class A Certificates, the Subordinate Certificates and the Class C
Certificates will be treated as "regular interests" in the Upper-Tier REMIC
and the Upper-Tier REMIC Residual Class will be treated as the sole
"residual interest" in the Upper-Tier REMIC. The Lower-Tier Interests X-0,
X-0, X-0, X-0, X-0, X-0, X-0, X-0, X-0, and B will be treated as the
"regular interests" in the Lower-Tier REMIC and the Class R Certificates
will be treated as the sole "residual interest" in the Lower-Tier REMIC.
The Trust is not subject to tax upon its income or assets by any taxing
authority of the State of New York.
(ix) To the best of such counsel's knowledge, there are no actions,
proceedings or investigations pending that would adversely affect the
status of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC.
(x) As a consequence of the qualification of the Lower-Tier REMIC and
the UpperTier REMIC as a REMIC, the Offered Certificates will be treated as
"regular . . . interest(s) in a REMIC" under Section 7701(a)(19)(C) of the
Code and "real estate assets" under Section 856(c) of the Code in the same
proportion that the assets in the Trust consist of qualifying assets under
such Sections. In addition, as a consequence of the qualification of the
Lower-Tier REMIC and the Upper-Tier REMIC as a REMIC, interest on the
Offered Certificates will be treated as "interest on obligations secured by
mortgages on real property" under Section 856(c) of the Code to the extent
that such Offered Certificates are treated as "real estate assets" under
Section 856(c) of the Code.
(xi) The Class A-9 Certificates do not involve any "separate security"
not registered under the Registration Statement.
(xii) The Certificates have been duly executed and delivered by the
Depositor to the Trustee for authentication.
Such counsel shall also have furnished to the Underwriters a written statement,
addressed to the Underwriters and dated the Closing Date, in form and substance
satisfactory to the Underwriters to the effect that nothing has come to the
attention of such counsel which lead them to believe that: (a) the Registration
Statement, at the time such Registration Statement became effective, contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading (except as to financial or statistical data contained in the
Registration Statement); (b) the Prospectus, as of its date and as of the
Closing Date, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or (c) any document
incorporated by reference in the Prospectus or any further amendment or
supplement to any such incorporated document made by the Depositor prior to the
Closing Date (other than any document filed at the request of an Underwriter to
the extent such document relates to Computational Materials) contained, as of
the time it became effective or was filed with the Commission, as the case may
be, an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
E.__ The Underwriters shall have received the favorable opinion, dated the
Closing Date, of Stroock & Stroock & Xxxxx, special counsel to the Depositor,
addressed to the Depositor and satisfactory to Xxxxx'x, Standard & Poor's, Fitch
and the Underwriters, with respect to certain matters relating to the transfer
of the Home Equity Loans to the Depositor and from the Depositor to the Trust,
and such counsel shall have consented to reliance on such opinion by Xxxxx'x,
Standard & Poor's, Fitch and the Underwriters as though such opinion had been
addressed to each such party.
F.__ Stroock & Stroock & Xxxxx, counsel for ContiMortgage in its capacity
as both a Seller and the Servicer and ContiWest in its capacity as a Seller,
shall have furnished to the Underwriters their written opinion, as counsel to
ContiMortgage and ContiWest, addressed to the Underwriters and the Depositor and
dated the Closing Date, in form and substance satisfactory to the Underwriters,
to the effect that:
(i) ContiMortgage is duly organized, validly existing in good~standing
as a corporation under the laws of the State of Delaware.
(ii) ContiMortgage has full corporate power and authority to serve in
the capacity of a seller and the servicer of the Home Equity Loans as
contemplated in the Pooling and Servicing Agreement and to transfer the
Home Equity Loans to the Depositor as contemplated in the Pooling and
Servicing Agreement.
(iii) The Pooling and Servicing Agreement and this Agreement have been
duly authorized, executed and delivered by ContiMortgage, and, assuming the
due authorization, execution and delivery of such agreements by the other
parties thereto, constitute the legal, valid and binding agreements of
ContiMortgage, enforceable against ContiMortgage in accordance with their
respective terms, subject as to enforceability to (x) bankruptcy,
insolvency, reorganization, moratorium, receivership or other similar laws
now or hereafter in effect relating to creditors' rights generally and (y)
the qualification that the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable defenses
and to the discretion, with respect to such remedies, of the court before
which any proceedings with respect thereto may be brought.
(iv) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body having
jurisdiction over ContiMortgage is required for the consummation by
ContiMortgage of the transactions contemplated by the Pooling and Servicing
Agreement except such consents, approvals, authorizations, registrations
and qualifications as have been obtained.
(v) Neither the sale and transfer of the Home Equity Loans by
ContiMortgage to the Depositor, nor the execution, delivery or performance
by ContiMortgage of the Pooling and Servicing Agreement and the
transactions contemplated thereby (A) conflict with or result in a breach
of, or constitute a default under, (i) any term or provision of the
Certificate of Incorporation or By-Laws of ContiMortgage; (ii) any term or
provision of any material agreement, deed of trust, mortgage loan
agreement, contract, instrument or indenture, or other agreement to which
ContiMortgage is a party or is bound or to which any of the property or
assets of ContiMortgage or any of its subsidiaries is subject; (iii) to the
best of such firm's knowledge without independent investigation any order,
judgment, writ, injunction or decree of any court or governmental authority
having jurisdiction over ContiMortgage; or (iv) any law, rule or
regulation, applicable to ContiMortgage; or (B) to the best of such firm's
knowledge without independent investigation, results in the creation or
imposition of any lien, charge or encumbrance upon the Trust Estate or upon
the Certificates.
(vi) The execution of the Pooling and Servicing Agreement is
sufficient to convey all of ContiMortgage's, ContiWest's and the
Depositor's right, title and interest in the Home Equity Loans to the Trust
(except as otherwise specifically set forth in the Pooling and Servicing
Agreement) and following the consummation of the transaction contemplated
by Section 3.05 of the Pooling and Servicing Agreement, the transfers of
the Home Equity Loans by ContiMortgage and ContiWest to the Depositor and
by the Depositor to the Trust are sufficient to vest in the Trust all of
ContiMortgage's, ContiWest's and the Depositor's right, title and interest
in the Home Equity Loans (except as otherwise specifically set forth in the
Pooling and Servicing Agreement).
(vii) There are, to the best of such counsel's knowledge without
independent investigation, no actions, proceedings or investigations
pending with respect to which ContiMortgage has received service of process
or threatened against ContiMortgage before any court, administrative agency
or other tribunal (a) asserting the invalidity of the Pooling and Servicing
Agreement, the Underwriting Agreement or the Certificates, (b) seeking to
prevent the consummation of any of the transactions contemplated by the
Pooling and Servicing Agreement or (c) which would materially and adversely
affect the performance by ContiMortgage of its obligations under, or the
validity or enforceability of, the Pooling and Servicing Agreement or the
Underwriting Agreement.
G.__ Xxxxxxx X. Xxxxxxxx, Esq., Counsel for ContiWest, in its capacity as a
Seller, shall have furnished to the Underwriters his written opinion, addressed
to the Underwriters and dated as of the Closing Date, in form and substance
satisfactory to the Underwriters, to the effect that:
(i) ContiWest is duly organized, validly existing in good standing as
a corporation under the laws of the State of Nevada.
(ii) ContiWest has full corporate power and authority to serve in the
capacity of a seller of the Home Equity Loans as contemplated in the
Pooling and Servicing Agreement and to transfer the Home Equity Loans to
the Depositor as contemplated in the Pooling and Servicing Agreement.
(iii) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by ContiWest, and, assuming the due authorization,
execution and delivery of such agreement by the other parties thereto,
constitute the legal, valid and binding agreements of ContiWest,
enforceable against ContiWest in accordance with its terms, subject as to
enforceability to (x) bankruptcy, insolvency, reorganization, moratorium,
receivership or other similar laws now or hereafter in effect relating to
creditors' rights generally and (y) the qualification that the remedy of
specific performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion, with respect to
such remedies, of the court before which any proceedings with respect
thereto may be brought.
(iv) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body having
jurisdiction over ContiWest is required for the consummation by ContiWest
of the transactions contemplated by the Pooling and Servicing Agreement
except such consents, approvals, authorizations, registrations and
qualifications as have been obtained.
(v) Neither the sale and transfer of the Home Equity Loans by
ContiWest to the Depositor, nor the execution, delivery or performance by
ContiWest of the Pooling and Servicing Agreement and the transactions
contemplated thereby (A) conflict with or result in a breach of, or
constitute a default under, (i) any term or provision of the Articles of
Incorporation or By-Laws of ContiWest; (ii) any term or provision of any
material agreement, deed of trust, mortgage loan agreement, contract,
instrument or indenture, or other agreement to which ContiWest is a party
or is bound or to which any of the property or assets of ContiWest or any
of its subsidiaries is subject; (iii) to the best of such counsel's
knowledge without independent investigation any order, judgment, writ,
injunction or decree of any court or governmental authority having
jurisdiction over ContiWest; or (iv) any law, rule or regulation,
applicable to ContiWest; or (B) to the best of such counsel's knowledge
without independent investigation, results in the creation or imposition of
any lien, charge or encumbrance upon the Trust Estate or upon the
Certificates.
(vi) There are, to the best of such counsel's knowledge without
independent investigation, no actions, proceedings or investigations
pending with respect to which ContiWest has received service of process or
threatened against ContiWest before any court, administrative agency or
other tribunal (a) asserting the invalidity of the Pooling and Servicing
Agreement, the Underwriting Agreement or the Certificates, (b) seeking to
prevent the consummation of any of the transactions contemplated by the
Pooling and Servicing Agreement or (c) which would materially and adversely
affect the performance by ContiWest of its obligations under, or the
validity or enforceability of, the Pooling and Servicing Agreement or the
Underwriting Agreement.
H.__ Xxxxxxx X. Xxxxxxxx, Esq., Counsel for the Depositor, shall have
furnished to the Underwriters his written opinion, addressed to the Underwriters
and dated the Closing Date, in form and substance satisfactory to the
Underwriters, to the effect that:
(i) The Depositor has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware and is
in good standing as a foreign corporation in each jurisdiction in which its
ownership or lease of property or the conduct of its business so requires
such standing except where the failure to be in good standing would not
result in a material adverse change in the condition of the Depositor,
whether or not arising in the ordinary course of business. The Depositor
has all power and authority necessary to own or hold its properties and to
conduct the business in which it is engaged and to enter into and perform
its obligations under this Agreement and the Pooling and Servicing
Agreement and to cause the Certificates to be issued.
(ii) The Depositor is not in violation of its articles of
incorporation or by-laws or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Depositor is a party or by which it or its
properties may be bound, which default might result in any material adverse
changes in the financial condition, earnings, affairs or business of the
Depositor or which might materially and adversely affect the properties or
assets, taken as a whole, of the Depositor.
(iii) This Agreement and the Pooling and Servicing Agreement have been
duly authorized, executed and delivered by the Depositor and, assuming the
due authorization, execution and delivery of such agreements by the other
parties thereto, such agreements constitute valid and binding obligations,
enforceable against the Depositor in accordance with their respective
terms, subject as to enforceability to (x) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, (y) general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law) and (z) with respect to rights of indemnity under this Agreement,
limitations of public policy under applicable securities laws.
(iv) The execution, delivery and performance of this Agreement and the
Pooling and Servicing Agreement by the Depositor, the consummation of the
transactions contemplated hereby and thereby, and the issuance and delivery
of the Certificates do not and will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Depositor is a party or by which the
Depositor is bound or to which any of the property or assets of the
Depositor or any of its subsidiaries is subject, which breach or violation
would have a material adverse effect on the business, operations or
financial condition of the Depositor or its ability to perform its
obligations under this Agreement and the Pooling and Servicing Agreement
nor will such actions result in a violation of the provisions of the
articles of incorporation or by-laws of the Depositor or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Depositor or any of its properties or assets,
which breach or violation would have a material adverse effect on the
business, operations or financial condition of the Depositor or its ability
to perform its obligations under this Agreement and the Pooling and
Servicing Agreement.
(v) The execution of the Certificates by the Depositor and the
direction by the Depositor to the Trustee to issue, authenticate and
deliver the Certificates has been duly authorized by the Depositor and,
assuming that the Trustee has been duly authorized to do so, when executed
by the Depositor and authenticated and delivered by the Trustee in
accordance with the Pooling and Servicing Agreement, the Certificates will
be validly issued and outstanding and will be entitled to the benefits of
the Pooling and Servicing Agreement.
(vi) No consent, approval, authorization, order, registration or
qualification of or with any court or goverrunental agency or body is
required for the issuance of the Certificates, and the sale of the Offered
Certificates to the Underwriters, or the consummation by the Depositor of
the other transactions contemplated by this Agreement and the Pooling and
Servicing Agreement, except such consents, approvals, authorizations,
registrations or qualifications as may be required under the 1933 Act or
State securities or Blue Sky laws in connection with the purchase and
distribution of the Offered Certificates by the Underwriters or as have
been previously obtained.
(vii) There are not, to the best of his knowledge without independent
investigation, any actions, proceedings or investigations pending with
respect to which the Depositor has received service of process before or
threatened by any court, administrative agency or other tribunal to which
the Depositor is a party or of which any of its properties is the subject:
(a) which if determined adversely to the Depositor would have a material
adverse effect on the business, results of operations or financial
condition of the Depositor; (b) asserting the invalidity of the Pooling and
Servicing Agreement or the Certificates; (c) seeking to prevent the
issuance of the Certificates or the consummation by the Depositor of any of
the transactions contemplated by the Pooling and Servicing Agreement or
this Agreement, as the case may be; or (d) which might materially and
adversely affect the performance by the Depositor of its obligations under,
or the validity or enforceability of, the Pooling and Servicing Agreement,
this Agreement or the Certificates.
(viii) The Certificates have been duly and validly authorized and
issued and, immediately prior to the sale of the Offered Certificates to
the Underwriters, such Certificates are owned by the Depositor, free and
clear of all Liens.
I.__ The Underwriters shall have received the favorable opinion of counsel
to the Trustee, dated the Closing Date, addressed to the Underwriters and in
form and scope satisfactory to counsel to the Underwriters, to the effect that:
(i) The Trustee is a banking corporation duly incorporated and validly
existing under the law of the State of New York.
(ii) The Trustee has the full corporate trust power to execute,
deliver and perform its obligations under the Pooling and Servicing
Agreement.
(iii) The execution and delivery by the Trustee of the Pooling and
Servicing Agreement and the performance by the Trustee of its obligations
under the Pooling and Servicing Agreement have been duly authorized by all
necessary corporate action of the Trustee.
(iv) The Pooling and Servicing Agreement is a valid and legally
binding obligation of the Trustee enforceable against the Trustee.
(v) 5. The execution and delivery by the Trustee of the Pooling and
Servicing Agreement do not (a) violate the Organization Certificate of the
Trustee or the By-laws of the Trustee, (b) to such counsel's knowledge,
violate any judgment, decree or order of any New York or United States
federal court or other New York or United States federal governmental
authority by which the Trustee is bound or (c) assuming the non-existence
of any judgment, decree or order of any court or other governmental
authority that would be violated by such execution and delivery, violate
any New York or United States federal statute, rule or regulation or
require any consent, approval or authorization of any New York or United
States federal court or other New York or United States federal
governmental authority.
(vi) The Certificates have been duly authenticated and delivered by
the Trustee.
(vii) If the Trustee were acting as Servicer under the Pooling and
Servicing Agreement as of the date of such opinion, the Trustee would have
the full corporate trust power to perform the obligations of the Servicer
under the Pooling and Servicing Agreement; and
(viii) To the best of such counsel's knowledge, there are no actions,
proceedings or investigations pending or threatened against or affecting
the Trustee before or by any court, arbitrator, administrative agency or
other governmental authority which, if decided adversely to the Trustee,
would materially and adversely affect the ability of the Trustee to carry
out the transactions contemplated in the Pooling and Servicing Agreement.
J.__ The Underwriters shall have received the favorable opinion or
opinions, dated the Closing Date, of counsel for the Underwriters, with respect
to the issue and sale of the Offered Certificates, the Registration Statement,
this Agreement, the Prospectus and such other related matters as the
Underwriters may reasonably require.
K.__ The Underwriters shall have received executed copies of the
Broker-Dealer Agreement and the Auction Agent's Agreement with respect to the
Class A-9 Certificates.
L.__ The Depositor, ContiMortgage, ContiWest and ContiFinancial shall each
have furnished to the Underwriters a certificate, dated the Closing Date and
signed by the Chairman of the Board, the President or a Vice President of the
Depositor, ContiMortgage and ContiWest, respectively, stating as it relates to
each, as of the Closing Date:
(i) The representations and warranties of the Depositor, ContiMortgage
and ContiWest in this Agreement are true and correct as of the Closing
Date; and the Depositor, ContiMortgage and ContiWest have complied with
each of their respective agreements contained herein which are to have been
complied with on or prior to the Closing Date;
(ii) The information contained in the Prospectus relating to the
Depositor, ContiMortgage, ContiWest and the Home Equity Loans is true and
accurate in all material respects and nothing has come to his or her
attention that would lead such officer to believe that the Registration
Statement or the Prospectus includes any untrue statement of a material
fact or omits to state a material fact necessary to make the statements
therein not misleading;
(iii) There has been no amendment or other document filed affecting
the Certificate of Incorporation or bylaws of the Depositor since May 18,
1995 or the Certificate of Incorporation or bylaws of ContiMortgage since
October 19, 1990 or the Articles of Incorporation or bylaws of ContiWest
since January 1, 1997 and no such amendment has been authorized. No event
has occurred since June 30, 1997 which has affected the good standing of
the Depositor, ContiMortgage or ContiWest under the laws of the States of
Delaware and Nevada, as applicable; and
(iv) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, ftnancial or otherwise, or in the earnings, business or
operations of the Depositor, ContiMortgage, ContiWest or ContiFinancial
from June 30, 1997. No publicly-held debt of ContiFinancial shall have been
downgraded or put on credit watch for possible downgrade since June 30,
1997; there has been no suspension of trading in ContiFinancial's
publicly-held common stock since June 30, 1997.
M.__ The Trustee shall have furnished to the Underwriters a certificate of
the Trustee, signed by one or more duly authorized officers of the Trustee,
dated the Closing Date, as to the due authorization, execution and delivery of
the Pooling and Servicing Agreement by the Trustee and the acceptance by the
Trustee of the trusts created thereby and the due execution, authentication and
delivery of the Certificates by the Trustee thereunder and such other matters as
the Representative shall reasonably request.
N.__ [Reserved]
O.__ The Class A Certificates shall have been rated "Aaa" by Xxxxx'x and
"AAA" by Standard & Poor's and Fitch, and the Subordinate Certificates shall
have been rated "Baa3" by Xxxxx'x, "BBB-" by Standard & Poor's and "BBB" by
Fitch; no Class of Offered Certificates shall have been put on credit watch for
possible downgrade.
P.__ The Depositor shall have furnished to the Underwriters such further
information, certificates and documents as the Underwriters may reasonably have
requested not less than three full business days prior to the Closing Date.
Q.__ Prior to the Closing Date, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Certificates as herein contemplated and related proceedings or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained, and
all proceedings taken by the Depositor in connection with the issuance and sale
of the Certificates as herein contemplated shall be satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
R.__ Subsequent to the execution and delivery of this Agreement none of the
following shall have occurred: (i) trading in securities generally on the New
York Stock Exchange, the American Stock Exchange or the over-the counter market
shall have been suspended or minimum prices shall have been established on
either of such exchanges or such market by the Commission, by such exchange or
by any other regulatory body or goverurnental authority having jurisdiction;
(ii) a banking moratorium shall have been declared by Federal or state
authorities; (iii) the United States shall have become engaged in hostilities,
there shall have been an escalation of hostilities involving the United States
or there shall have been a declaration of a national emergency or war by the
United States; or (iv) there shall have occurred such a material adverse change
in general economic, political or f~nancial conditions (or the effect of
international conditions on the financial markets of the United States shall be
such) as to make it in each of the instances set forth in clauses (i), (ii),
(iii) and (iv) herein, in the reasonable judgment of the Underwriters,
impractical or inadvisable to proceed with the public offering or delivery of
the Certificates on the terms and in the manner contemplated in the Prospectus.
S.__ The Representative shall have received letters, including bring-down
letters, from Xxxxxx Xxxxxxxx LLP, dated on or before the Closing Date, in form
and substance satisfactory to the Representative and counsel for the
Underwriters, to the effect that they have performed certain specified
procedures requested by the Representative with respect to the information set
forth in the Prospectus and certain matters relating to ContiMortgage and
ContiWest.
T.__ The Underwriters shall have received any other opinions delivered to
the Ratings Agencies.
U.__ The Policy shall have been duly executed and issued at or prior to the
Closing Date and shall conform in all material respects to the description
thereof in the Prospectus. The Insurance Agreement and the Indemnification
Agreement shall each have been duly executed and delivered by MBIA and the other
parties thereto at or prior to the Closing Date.
V.__ The Underwriters shall have received a favorable opinion of Xxxxx
Xxxx, counsel to MBIA, dated the Closing Date and in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) MBIA is a stock insurance corporation, duly incorporated and
validly existing under the laws of the State of New York. MBIA is validly
licensed to do business in New York and is authorized to issue the Policy
and perform its obligations under the Policy in accordance with the terms
thereof.
(ii) The execution and delivery by MBIA of the Policy and the
Indemnification Agreement are within the corporate power of MBIA and have
been authorized by all necessary corporate action on the part of MBIA; the
Policy has been duly executed and is the valid and binding obligation of
the Insurer enforceable in accordance with its terms except that the
enforcement of the Policy may be limited by laws relating to bankruptcy,
insolvency, reorganization, moratorium, receivership and other similar laws
affecting creditors' rights generally and by general principles of equity.
(iii) MBIA is authorized to deliver the Indemnification Agreement, and
such agreement has been duly executed and delivered and constitute the
legal, valid and binding obligations of MBIA enforceable in accordance with
its terms except that the enforcement of the Indemnification Agreement may
be limited by laws relating to bankruptcy, insolvency, reorganization,
moratorium, receivership and other similar laws affecting creditors' rights
generally and by general principles of equity and by public policy
considerations relating to indemnification for securities law violations.
(iv) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required on the part of
MBIA, the lack of which would adversely affect the validity or
enforceability of the Policy; to the extent required by applicable legal
requirements that would adversely affect validity or enforceability of the
Policy, the form of the Policy has been filed with, and approved by, all
governmental authorities having jurisdiction over the Insurer in connection
with the Policy.
(v) The Policy is not required to be registered under the Securities
Act.
(vi) The information set forth in the Prospectus Supplement under the
caption "DESCRIPTION OF THE OFFERED CERTIFICATES - The Certificate
Insurance Policy," insofar as such statements constitute a description of
the Policy, accurately summarizes the Policy.
In rendering this opinion, such counsel may rely, as to matters of fact, on
certificates of responsible officers of MBIA and public officials. Such opinion
may assume the due authorization, execution and delivery of the instruments and
documents referred to therein by the parties thereto other than MBIA.
W.__ The Underwriters shall have received from MBIA a certificate, signed
by the president, a senior vice president or a vice president of MBIA, dated the
Closing Date, to the effect that the signer of such certificate has carefully
examined the Policy, the Indemnification Agreement and the related documents and
that, to the best of his or her knowledge based on reasonable investigation:
(i) There are no actions, suits or proceedings pending or threatened
against or affecting MBIA which, if adversely determined, individually or
in the aggregate, would adversely affect the Insurer's performance under
the Policy or the Indemnification Agreement;
(ii) Each person who as an officer or representative of MBIA, signed
or signs the Policy, the Indemnification Agreement or any other document
delivered pursuant hereto, on the date thereof, or on the Closing Date, in
connection with the transactions described in this Agreement was, at the
respective times of such signing and delivery, and is now, duly elected or
appointed, qualified and acting as such officer or representative, and the
signatures of such persons appearing on such documents are their genuine
signatures;
(iii) The information contained in the Prospectus Supplement under the
captions "DESCRIPTION OF THE OFFERED CERTIFICATES - The Certificate
Insurance Policy" and "THE CERTIFICATE INSURER" is true and correct in all
material respects and does not omit to state a material fact with respect
to the description of the Policy or the ability of MBIA to meet its payment
obligations under the Policy;
(iv) The tables regarding MBIA's capitalization set forth under the
caption "THE CERTIFICATE INSURER" presents fairly the capitalization of the
Insurer as of June 30, 1997;
(v) On or prior to the Closing Date, there has been no downgrading,
nor has any notice been given of (A) any intended or potential downgrading
or (B) any review or possible changes in rating the direction of which has
not been indicated, in the rating accorded the claims paying ability of
MBIA by any "nationally recognized statistical rating organization," as
such term is defined for purposes of the 1933 Act;
(vi) The audited balance sheet of MBIA as of December 31, 1996 and the
related statement of income and retained earnings for the fiscal year then
ended, and the accompanying footnotes, together with the related opinion of
an independent certificated public accountant, copies of which are
incorporated by reference in the Prospectus Supplement, fairly present in
all material respects the financial condition of MBIA as of such date and
for the period covered by such statements in accordance with generally
accepted accounting principles consistently applied; the unaudited balance
sheet of MBIA as of June 30, 1997 and the related statement of income and
retained earnings for the three-month period then ended, copies of which
are included in the Prospectus Supplement, fairly present in all material
respects the financial condition of MBIA as of such date and for the period
covered by such statements in accordance with generally accepted accounting
principles applied consistently with those principles applied in preparing
the December 31, 1996 audited statements.
(vii) to the best knowledge of such officer, since June 30, 1997, no
material adverse change has occurred in the financial position of MBIA
other than as set forth in the Prospectus Supplement.
The officer of MBIA certifying to items 5-7 shall be an officer in charge
of a principal financial function.
MBIA shall attach to such certificate a true and correct copy of its
certificate or articles of incorporation, as appropriate, and its bylaws, all of
which are in full force and effect on the date of such certificate.
If any condition specified in this Section VI shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriters by notice to the Depositor at any time at or prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Section VII.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
SECTION VII. PAYMENT OF EXPENSES. The Depositor agrees to pay:
A.__ the costs incident to the authorization, issuance, sale and delivery
of the Certificates and any taxes payable in connection therewith; (b) the costs
incident to the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), the Prospectus and any amendment or supplement to the Prospectus or
any document incorporated by reference therein, all as provided in this
Agreement; (d) the costs of reproducing and distributing this Agreement; (e) the
fees and expenses of Xxxxx Xxxxxxxxxx in qualifying the Certificates under the
securities laws of the several jurisdictions as provided in Section V(G) hereof
and of preparing, printing and distributing a Blue Sky Memorandum and a Legal
Investment Survey (including related fees and expenses of counsel to the
Representative); (f) any fees charged by securities rating services for rating
the Offered Certificates; (g) the cost of the accountants comfort letter
relating to the Prospectus; and (h) all other costs and expenses incidental to
the performance of the obligations of the Depositor (including costs and
expenses of counsel to the Depositor); provided that, except as provided in this
Section VII, the Underwriters shall pay their own costs and expenses, including
the costs and expenses of their counsel, any transfer taxes on the Offered
Certificates which they may sell and the expenses of advertising any offering of
the Offered Certificates made by the Underwriters, and the Underwriters shall
pay the cost of any accountant's comfort letters relating to any Computational
Materials (as defined herein).
If this Agreement is terminated by the Underwriters in accordance with the
provisions of Section VI or Section XI, the Depositor shall cause the
Underwriters to be reimbursed for all reasonable out-of-pocket expenses,
including fees and disbursements of Xxxxx Xxxxxxxxxx, counsel for the
Underwriters.
SECTION VIII. INDEMNIFICATION AND CONTRIBUTION.
A.__ The Depositor agrees to indemnify and hold harmless each Underwriter,
each Underwriter's respective officers and directors and each person, if any,
who controls such Underwriter within the meaning of Section 15 of the Securities
Act from and against any and all loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of the
Offered Certificates), to which such Underwriter or any such controlling person
may become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, or any amendment thereof or supplement thereto, (ii) 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, (iii)
any untrue statement or alleged untrue statement of a material fact contained in
the Prospectus, or any amendment thereof or supplement thereto, or (iv) 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 shall reimburse
such Underwriter and each such controlling person promptly upon demand for any
legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Depositor shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in the Prospectus, or any
amendment thereof or supplement thereto, or the Registration Statement, or any
amendment thereof or supplement thereto, in reliance upon and in conformity with
written information furnished to the Depositor by or on behalf of such
Underwriter through the Representative, specifically for inclusion therein. The
foregoing indemnity agreement is in addition to any liability which the
Depositor may otherwise have to any Underwriter or any such officer or director
or any controlling person of any such Underwriter.
B.__ Each Underwriter severally agrees to indemnify and hold harmless the
Depositor, each of its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Depositor
within the meaning of Section 15 of the Securities Act against any and all loss,
claim, damage or liability, or any action in respect thereof, to which the
Depositor or any such director, officer or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untn~e statement of a material &ct contained in the
Registration Statement, or any amendment thereof or supplement thereto, (ii) 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, (iii)
any untrue statement or alleged untrue statement of a material fact contained in
the Prospectus, or any amendment thereof or supplement thereto, or (iv) 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, but in each case only
to the extent that the 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 or on behalf of such Underwriter
specifically for inclusion therein, and shall reimburse the Depositor and any
such director, off~cer or controlling person for any legal or other expenses
reasonably incurred by the Depositor or any director, officer or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to the Depositor or any such director,
officer or controlling person.
C.__ Promptly after receipt by any indemnified party under this Section
VIII of notice of any claim or the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section VIII, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section VIII except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify any indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under this Section
VIII.
If any such claim or action shall be brought against an indemnified party,
and it shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, except to the extent provided in the
next following paragraph, the indemnifying party shall not be iable to the
indemnified party under this Section VII for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such inderonified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to one local counsel per jurisdiction) at any time for all such
indemnified parties, which firm shall be designated in writing by the related
Underwriter, if the indemnified parties under this Section VIII consist of one
or more Underwriters or any of its or their controlling persons, or the
Depositor, if the indemnified parties under this Section VIII consist of the
Depositor or any of the Depositor's directors, officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section VIII(A) and (B), shall use its reasonable best efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject of such action.
Notwithstanding the foregoing paragraph, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
D.__ Each Underwriter agrees to provide the Depositor no later than two
Business Days prior to the day on which the Prospectus Supplement is required to
be filed pursuant to Section I.A. hereof with a copy of any Computational
Materials (defined below) produced by such Underwriter for filing with the
Commission on Form 8-K.
E.__ Each Underwriter severally agrees, to the extent that all Seller
Provided Information is accurate and complete in all material respects, 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
Section 15 of the Securities Act against any and all losses, claims, damages or
liabilities, to which they may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement of a
material fact contained in the Computational Materials provided by such
Underwriter, or arise out of or are based upon the omission or alleged omission
to state therein a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading when
read in conjunction with the Prospectus, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by him,
her or it in connection with investigating or defending or preparing to defend
any such loss, claim, damage, liability or action as such expenses are incurred;
PROVIDED, HOWEVER, that in no event shall an Underwriter be liable to the
Depositor under this paragraph E in an amount in excess of the fees received by
such Underwriter in connection with the offering of the Offered Certificates.
The obligations of an Underwriter under this Section VII(E) shall be in addition
to any liability which such Underwriter may otherwise have.
The procedures set forth in Section VIII (C) shall be equally applicable to
this Section VII(E).
F.__ If the indemnification provided for in this Section VII shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section VIII(A), (B) or (E) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Depositor on the one hand and the Underwriters on the other from
the offering of the relevant class of Offered Certificates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law or if
the indemnified party failed to give the notice required under Section VIII (C),
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Depositor on
the one hand and the related Underwriter on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations.
The relative benefits of an Underwriter and the Depositor shall be deemed
to be in such proportion as the sum of the original principal amount of the
offering, plus the total proceeds to the Depositor from the sale of the Class
A-7IO Certificates (before deducting expenses) bears to the total underwriting
discounts and commissions received by the related Underwriter from time to time
in negotiated sales of the related Offered Certificates.
The relative fault of an Underwriter and the Depositor shall be determined
by reference to whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Depositor or by such Underwriter, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission and other equitable
considerations.
The Depositor and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section VIII(F) were to be
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purposes) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section
VIIIshall be deemed to include, for purposes of this Section VIII (F), any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
For purposes of this Section VIII, in no case shall any Underwriter (except
with respect to any document (other than the Computational Materials)
incorporated by reference into the Registration Statement or Prospectus at the
request of such Underwriter through the Representative and except as may be
provided in any agreement among the Underwriters relating to the offering of the
Offered Certificates) be responsible for any amount in excess of the amount by
which (x) the amount received by such Underwriter in connection with its sale of
the Offered Certificates exceeds (y) the amount paid by such Underwriter to the
Depositor for the Offered Certificates hereunder. No person guilty of fraudulent
misrepresentation (within the meaning of Section 1 l(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of
fraudulent misrepresentation.
G.__ For purposes of this Section vm, as to each Underwriter the term
"Computational Materials" means such portion, if any, of the information
delivered to the Depositor by such Underwriter pursuant to Section VIII(D) for
filing with the Commission on Form 8-K as:
(i) is not contained in the Prospectus without taking into account
information incorporated therein by reference; and
(ii) does not constitute Seller Provided Information.
"Seller Provided Information" means any computer tape (or other information)
furnished to any Underwriter by the Sellers concerning the assets comprising the
Trust.
H.__ The Underwriters confirm that the information set forth in the last
paragraph on the cover page of the Prospectus Supplement and the Computational
Materials are correct and constitute the only information furnished in writing
to the Depositor by or on behalf of any Underwriter specifically for inclusion
in the Registration Statement and the Prospectus.
SECTION IX. REPRESENTATIONS. WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERV.
All representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of the Depositor submitted pursuant hereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriters or controlling persons
thereof, or by or on behalf of the Depositor, and shall survive delivery of any
Offered Certificates to the Underwriters.
SECTION X. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of
the Underwriters participating in the public offering of the Offered
Certificates shall fail at the Closing Date to purchase the Offered Certificates
which it is (or they are) obligated to purchase hereunder (the "Defaulted
Certificates"), then the non-defaulting Underwriters shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non~efaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Certificates in such amounts as may be agreed
upon and upon the terms herein set forth. If, however, the Underwriters have not
completed such arrangements within such 24-hour period, then
(i) if the aggregate principal amount of Defaulted Certificates does
not exceed 10% of the aggregate principal amount of the Offered
Certificates to be purchased pursuant to this Agreement, the non-defaulting
Underwriters named in this Agreement shall be obligated to purchase the
full amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all such
non-defaulting Underwriters, or
(ii) if the aggregate principal amount of Defaulted Certificates
exceeds 10% of the aggregate principal amount of the Offered Certificates
to be purchased pursuant to this Agreement, this Agreement shall terminate,
without any liability on the part of any non-defaulting Underwriters.
No action taken pursuant to this Section X shall relieve any defaulting
Underwriter from the liability with respect to any default of such Underwriter
under this Agreement.
In the event of a default by any Underwriter as set forth in this Section
X, each of the Underwriters and the Depositors shall have the right to postpone
the Closing Date for a period not exceeding five Business Days in order that any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements may be effected.
SECTION XI. TERMINATION OF AGREEMENT. The Underwriters may terminate this
Agreement immediately upon notice to the Depositor, at any time at or prior to
the Closing Date if any of the events or conditions described in Section VI (R)
of this Agreement shall occur and be continuing, or if any other closing
condition set forth in Section VI shall not have been fulfilled when required to
be fulfilled. In the event of any such termination, the covenant set forth in
Section V(H), the provisions of Section VII, the indemnity and contribution
agreements set forth in Section VIII, and the provisions of Sections IX, XIV and
XVI shall remain in effect.
SECTION XII. NOTICES. All statements, requests, notices and agreements
hereunder shall be in writing, and:
A.__ if to the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission to Xxxxxxx Xxxxx & Co., World Financial Center, North
Tower, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Asset Finance
Group (Fax: 000-000-0000); and
B.__ if to the Depositor, shall be delivered or sent by mail, telex or
facsimile transmission to care of ContiSecurities Asset Funding Corporation, 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief Counsel (Fax:
000-000-0000).
SECTION XIII. PERSONS ENTITLED TO THE BENEFIT OF THIS AGREEMENT. This
Agreement shall inure to the benefit of and be binding upon the Underwriters and
the Depositor, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the representations, warranties, indemnities and agreements contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control any of the Underwriters within the meaning of Section 15 of
~e Securities Act, and for the benefit of each Underwriter's respective
offficers and directors and for the benefit of directors of the Depositor,
officers of the Depositor who have signed the Registration Statement and any
person controlling the Depositor within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section xm, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
SECTION XIV. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Depositor and the Underwriters contained in
this Agreement, or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Certificates and
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any of them or any person controlling any of them.
SECTION XV. DEFINITION OF THE TERM "BUSINESS DAY". For purposes of this
Agreement, "Business Day" means any day on which the New York Stock Exchange,
Inc. is open for trading.
SECTION XVI. GOVERNING LAW: SUBMISSION TO JURISDICTION; WAIVER OF JURV
TRIAL. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without giving effect to the principles of
conflicts of law thereof.
The parties hereto hereby submit to the jurisdiction of the United States
District Court for the Southern District of New York and any court in the State
of New York located in the City and County of New York, and appellate court from
any thereof, in any action, suit or proceeding brought against it or in
connection with this Agreement or any of the related documents or the
transactions contemplated hereunder or for recognition or enforcement of any
judgment, and the parties hereto hereby agree that all claims in respect of any
such action or proceeding may be heard or determined in New York State court or,
to the extent permitted by law, in such federal court.
The parties hereto hereby irrevocably waive, to the fullest extent
permitted by law, any and all rights to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
SECTION XVII. COUNTERPARTS. This Agreement may be executed in counterparts
and, if executed in more than one counterpart, the executed counterparts shall
each be deemed to be an original but all such counterparts shall together
constitute one and the same instrument.
SECTION XVIII. HEADINGS. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement between the Depositor
and the Underwriters, please indicate your acceptance in the space provided for
the purpose below.
Very truly yours,
CONTISECURITIES ASSET FUNDING CORP.
By:.......................................
Name:.....................................
Title:....................................
By:.......................................
Name:.....................................
Title:....................................
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
Acting on its own behalf and as
Representative of the Several Underwriters
referred to in the foregoing Agreement
By:....................................................
Name:..................................................
Title:.................................................
CONTIMORTGAGE CORPORATION CONTIWEST CORPORATION
Accepts and hereby agrees solely to the Accepts and hereby agrees solely
provisions of Section V.H. to the provisions of Section V.I.
By:.......................................... By:.............................
Name:........................................ Name:...........................
Title:....................................... Title:..........................
By:.......................................... By:.............................
Name:........................................ Name:...........................
Title:.........................................Title:..........................
SCHEDULE A
Name of Class of Certificates Initial Principal Dollar PRICE TO PUBLIC**
UNDERWRITER Purchased by the Amount of Certificates
UNDERWRITERS PURCHASED BY UNDERWRITERS
X-0
X-0
X-0
X-0
X-0
X-0
X-0
X-0
X-0
X-0XX
X-0X
TOTAL:
Bear Xxxxxxx & Co. Inc. X-0
X-0
X-0
X-0
X-0
X-0
X-0
X-0
X-0
X-0XX
X-0X
TOTAL:
ContiFinancial Services Corporation
TOTAL:
Credit Suisse First Boston X-0
X-0
X-0
X-0
X-0
X-0
X-0
X-0
X-0
X-0XX
X-0X
TOTAL:
Greenwich Capital Markets, Inc. X-0
X-0
X-0
X-0
X-0
X-0
X-0
X-0
X-0
X-0XX
X-0X
TOTAL:
Xxxxxx Brothers, Inc. X-0
X-0
X-0
X-0
X-0
X-0
X-0
X-0
X-0
X-0XX
X-0X
TOTAL:
Xxxxxx Xxxxxxx X-0
X-0
X-0
X-0
X-0
X-0
X-0
X-0
X-0
X-0XX
X-0X
TOTAL:
TOTAL:
--------------------
* = Notional Principal Balance
**= Plus accrued interest
SCHEDULE A
Class A-1 Certificates
UNDERWRITERS PRINCIPAL AMOUNT PRICE TO PUBLIC* UNDERWRITING
PLUS ACCRUED DISCOUNT
INTEREST.
Xxxxxxx Lynch, Pierce, Xxxxxx & $39,166,670 99.999976% .12%
Xxxxx Incorporated
Bear, Xxxxxxx & Co. Inc. $39,166,666 99.999976% .12%
Credit Suisse First Boston $39,166,666 99.999976% .12%
Greenwich Capital Markets, Inc. $39,166,666 99.999976% .12%
Xxxxxx Brothers Inc. $39,166,666 99.999976% .12%
Xxxxxx Xxxxxxx & Co. Incorporated $39,166,666 99.999976% .12%
Class A-2 Certificates
UNDERWRITERS PRINCIPAL AMOUNT PRICE TO PUBLIC* UNDERWRITING
DISCOUNT
Xxxxxxx Lynch, Pierce, Xxxxxx & $27,666,670 99.990406% .155%
Xxxxx Incorporated
Bear, Xxxxxxx & Co. Inc. $27,666,666 99.990406% .155%
Credit Suisse First Boston $27,666,666 99.990406% .155%
Greenwich Capital Markets, Inc. $27,666,666 99.990406% .155%
Xxxxxx Brothers Inc. $27,666,666 99.990406% .155%
Xxxxxx Xxxxxxx & Co. Incorporated $27,666,666 99.990406% .155%
Class A-3 Certificates
UNDERWRITERS PRINCIPAL AMOUNT PRICE TO PUBLIC* UNDERWRITING
DISCOUNT
Xxxxxxx Lynch, Pierce, Xxxxxx & $51,166,670 99.997032% .185%
Xxxxx Incorporated
Bear, Xxxxxxx & Co. Inc. $51,166,666 99.997032% .185%
Credit Suisse First Boston $51,166,666 99.997032% .185%
Greenwich Capital Markets, Inc. $51,166,666 99.997032% .185%
Xxxxxx Brothers Inc. $51,166,666 99.997032% .185%
Xxxxxx Xxxxxxx & Co. Incorporated $51,166,666 99.997032% .185%
Class A-4 Certificates
UNDERWRITERS PRINCIPAL AMOUNT PRICE TO PUBLIC* UNDERWRITING
DISCOUNT
Xxxxxxx Lynch, Pierce, Xxxxxx & $16,666,670 99.976871% .25%
Xxxxx Incorporated
Bear, Xxxxxxx & Co. Inc. $16,666,666 99.976871% .25%
Credit Suisse First Boston $16,666,666 99.976871% .25%
Greenwich Capital Markets, Inc. $16,666,666 99.976871% .25%
Xxxxxx Brothers Inc. $16,666,666 99.976871% .25%
Xxxxxx Xxxxxxx & Co. Incorporated $16,666,666 99.976871% .25%
Class A-5 Certificates
UNDERWRITERS PRINCIPAL AMOUNT PRICE TO PUBLIC* UNDERWRITING
DISCOUNT
Xxxxxxx Lynch, Pierce, Xxxxxx & $20,333,335 99.992328% .3%
Xxxxx Incorporated
Bear, Xxxxxxx & Co. Inc. $20,333,333 99.992328% .3%
ContiFinancial Services Corporation $10,000,000 99.992328% .3%
Credit Suisse First Boston $20,333,333 99.992328% .3%
Greenwich Capital Markets, Inc. $20,333,333 99.992328% .3%
Xxxxxx Brothers Inc. $20,333,333 99.992328% .3%
Xxxxxx Xxxxxxx & Co. Incorporated $20,333,333 99.992328% .3%
Class A-6 Certificates
UNDERWRITERS PRINCIPAL AMOUNT PRICE TO PUBLIC* UNDERWRITING
DISCOUNT
Xxxxxxx Lynch, Pierce, Xxxxxx & $6,500,000 99.966035% .325%
Xxxxx Incorporated
Bear, Xxxxxxx & Co. Inc. $6,500,000 99.966035% .325%
Credit Suisse First Boston $6,500,000 99.966035% .325%
Greenwich Capital Markets, Inc. $6,500,000 99.966035% .325%
Xxxxxx Brothers Inc. $6,500,000 99.966035% .325%
Xxxxxx Xxxxxxx & Co. Incorporated $6,500,000 99.966035% .325%
Class A-7 Certificates
UNDERWRITERS PRINCIPAL AMOUNT PRICE TO PUBLIC* UNDERWRITING
DISCOUNT
Xxxxxxx Lynch, Pierce, Xxxxxx & $15,875,000 99.959332% .35%
Xxxxx Incorporated
Bear, Xxxxxxx & Co. Inc. $15,875,000 99.959332% .35%
Credit Suisse First Boston $15,875,000 99.959332% .35%
Greenwich Capital Markets, Inc. $15,875,000 99.959332% .35%
Xxxxxx Brothers Inc. $15,875,000 99.959332% .35%
Xxxxxx Xxxxxxx & Co. Incorporated $15,875,000 99.959332% .35%
Class A-7 IO Certificates
UNDERWRITERS PRINCIPAL AMOUNT PRICE TO PUBLIC* UNDERWRITING
DISCOUNT
Xxxxxxx Lynch, Pierce, Xxxxxx & N/A 18.996566% .096588%
Xxxxx Incorporated
Class A-8 Certificates
UNDERWRITERS PRINCIPAL AMOUNT PRICE TO PUBLIC* UNDERWRITING
DISCOUNT
Xxxxxxx Lynch, Pierce, Xxxxxx & $22,916,670 100% .2%
Xxxxx Incorporated
Bear, Xxxxxxx & Co. Inc. $22,916,666 100% .2%
Credit Suisse First Boston $22,916,666 100% .2%
Greenwich Capital Markets, Inc. $22,916,666 100% .2%
Xxxxxx Brothers Inc. $22,916,666 100% .2%
Xxxxxx Xxxxxxx & Co. Incorporated $22,916,666 100% .2%
Class A-9 Certificates
UNDERWRITERS PRINCIPAL AMOUNT PRICE TO PUBLIC* UNDERWRITING
DISCOUNT
Xxxxxxx Lynch, Pierce, Xxxxxx & $160,500,000 100% .25%
Xxxxx Incorporated
Xxxxxx Brothers Inc. $107,000,000 100% .25%
Class B Certificates
UNDERWRITERS PRINCIPAL AMOUNT PRICE TO PUBLIC* UNDERWRITING
DISCOUNT
Xxxxxxx Lynch, Pierce, Xxxxxx & $7,625,000 99.984071% .6%
Xxxxx Incorporated
Bear, Xxxxxxx & Co. Inc. $7,625,000 99.984071% .6%
Credit Suisse First Boston $7,625,000 99.984071% .6%
Greenwich Capital Markets, Inc. $7,625,000 99.984071% .6%
Xxxxxx Brothers Inc. $7,625,000 99.984071% .6%
Xxxxxx Xxxxxxx & Co. Incorporated $7,625,000 99.984071% .6%
EXHIBIT A
[Letterhead of theCONTIFINANCIAL CORPORATION]
September 18, 1997
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated
As Representative of the Several Underwriters
World Financial Center
North Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This Guaranty is made by ContiFinancial Corporation, a Delaware corporation
with its principal office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("CFC"),
in favor of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated, as
Representative of the Several Underwriters, with its principal office at World
Financial Center, North Tower, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
As an inducement to you and in consideration of your entering into the
Underwriting Agreement referred to below, CFC hereby absolutely, unconditionally
and irrevocably guarantees the prompt performance of the obligations, including
any payment obligations, of ContiSecurities Asset Funding Corp., ("Depositor"),
a Delaware corporation with its principal office at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, under Section VIII of the Underwriting Agreement, dated
September 18, 1997, between Depositor and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx,
Incorporated, as Representative of the Several Underwriters. This Guaranty is a
guaranty of performance and payment and not of collection. The obligations of
CFC hereunder shall not be impaired by failure of Depositor to provide notice to
CFC of any modification or amendment of said contract agreed to by the parties
thereto. This Guaranty may be amended only by an instrument in writing executed
by the undersigned.
This Guaranty shall be governed by the laws of the State of New York
applicable to agreements made and to be performed in the State of New York
without giving effect to the conflict of law rules thereof.
IN WITNESS WHEREOF, CFC has caused this Guaranty to be executed by duly
authorized corporate officers the day and year first above written.
CONTIFINANCIAL CORPORATION
By:
Name:
Title:
By:
Name:
Title:
ACCEPTED
as of September 18, 1997
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX, INCORPORATED
as representative of the Several Underwriters
BY
Name:
Title:
