Exhibit 1.1
$1,265,000,000
CONTIMORTGAGE HOME EQUITY LOAN TRUST 1997-3
Home Equity Loan Pass-Through Certificates,
Series 1997-3
UNDERWRITING AGREEMENT
June 5, 1997
Xxxxxx Xxxxxxx & Co. Incorporated
As Representative of the Several Underwriters
0000 Xxxxxxxx
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 1997-3, Class A-1, Class A-2, Class A-3, Class
A-4, Class A-5, Class A-6, Class A-7, Class A-8, Class A-9, Class A-10, Class
A-11IO (the "Class A Certificates"), Class M-1F and Class M-1A (the "Class M-1
Certificates"), Class M-2F and Class M-2A (the "Class M-2 Certificates" and,
collectively with the Class M-1 Certificates, the "Mezzanine Certificates"),
Class B-1F and Class B-1A (the "Class B Certificates" and, collectively with the
Mezzanine Certificates, 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. Xxxxxx Xxxxxxx & Co. Incorporated ("Xxxxxx Xxxxxxx") 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 June 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"). 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
fixed and adjustable rate home equity loans having a Cut-Off Date (as defined
herein) as of the close of business on May 31, 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. The pool of Home Equity Loans will be divided into two
groups (each, a "Group"), with all fixed rate Home Equity Loans assigned to
Group I and all adjustable rate Home Equity Loans assigned to Group II. 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.
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
2
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
3
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 jurisdiction 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
4
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
5
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"). In addition,
each Class of the Class M-1 Certificates shall receive ratings of "Aa2", the
Class M-2F Certificates shall receive a rating of "A2", the Class M-2A shall
receive a rating of "A3" and each Class of the Class B Certificates shall
receive ratings of "Baa3", from Moody's, each Class of the Class M-1, Class M-2
and Class B Certificates shall receive ratings of "AA", "A-" and "BBB-",
respectively, from Standard & Poor's and each Class of the Class M-1
Certificates shall receive ratings of "AA+", the Class M-2F Certificates shall
receive a rating of "A", the Class M-2A shall receive a rating of "A+" and each
Class of the Class B shall receive ratings of "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.
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
6
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 Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class
A-7, Class A-8, Class A-9, Class A-10, Class A-11IO, Class M-1F, Class M-1A,
Class M-2F, Class M-2A, Class B-1F and Class B-1A Certificates set forth
opposite their names on Schedule A, at the purchase price or prices set forth on
Schedule A.
SECTION III. Delivery and Payment. Delivery of and payment for the Class
A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6 Class A-7, Class A-8,
Class A-9, Class A-10, Class A-11IO, Class M-1F, Class M-1A, Class M-2F, Class
M-2A, Class B-1F and Class B-1A Certificates shall be made at the offices of
Xxxxx Xxxxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, 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 June 12, 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 by 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
7
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 15(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 Effective Time 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.
8
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 11(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
9
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 Certificateholders 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' Obligations. 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.
X. Xxxxx & Xxxxxx 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:
10
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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, each Class of the Subordinate
Certificates and the Class C Certificates will be treated as "regular interests"
in the
11
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
A-1, A-2, A-3, A-4, A-5, A-6, A-7, A-8, A-9, A-10, A-11IO, M-1F, M-1A, M-2F,
M-2A, B-1F and B-1A 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.
9. 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.
10. As a consequence of the qualification of the Lower-Tier REMIC and the
Upper-Tier 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.
11. Assuming that the Class A-10 Certificates and the Class M-1A
Certificates are rated at the time of issuance in one of the two highest rating
categories by a nationally recognized statistical rating organization, such
Certificates at such time will be a "mortgage related security" as such term is
defined in Section 3(a)(41) of the Securities Exchange Act of 1934, as amended.
12. Assuming that the Class A-10 Certificates and the Class M-1A
Certificates are rated at the time of issuance in one of the two highest rating
categories by a nationally recognized statistical
13. 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
12
(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 Xxxxx & Xxxxxx, 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.
X. Xxxxx & Xxxxxx, 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:
1. ContiMortgage is duly organized, validly existing in good standing as a
corporation under the laws of the State of Delaware.
2. 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.
3. The Pooling and Servicing Agreement has been duly authorized, executed
and delivered by ContiMortgage, and, assuming the due authorization, execution
and delivery of such agreement by the other parties thereto, constitute the
legal, valid and binding agreements of ContiMortgage, enforceable against
ContiMortgage 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.
4. 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.
13
5. 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.
6. The execution of the Pooling and Servicing Agreement is sufficient to
convey all of ContiMortgage's and ContiWest's right, title and interest in their
respective Home Equity Loans to the Depositor and following the consummation of
the transaction contemplated by Section 3.05 of the Pooling and Servicing
Agreement, the transfers of the respective Home Equity Loans by ContiMortgage
and ContiWest to the Depositor are both a sale thereof.
7. 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.
X. 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:
1. ContiWest is duly organized, validly existing in good standing as a
corporation under the laws of the State of Nevada.
2. 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.
3. The Pooling and Servicing Agreement has been duly authorized, executed
and delivered by ContiWest, and, assuming the due authorization, execution and
delivery of such
14
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.
4. 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.
5. 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.
6. 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.
X. 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:
1. 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
15
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.
2. 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.
3. 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.
4. 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.
5. 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
16
and Servicing Agreement, the Certificates will be validly issued and
outstanding and will be entitled to the benefits of the Pooling and Servicing
Agreement.
6. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental 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.
7. 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.
8. 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:
1. The Trustee is a banking corporation duly incorporated and validly
existing under the law of the State of New York.
2. The Trustee has the full corporate trust power to execute, deliver and
perform its obligations under the Pooling and Servicing Agreement.
3. 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.
4. The Pooling and Servicing Agreement is a valid and legally binding
obligation of the Trustee enforceable against the Trustee.
17
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.
6. The Certificates have been duly authenticated and delivered by the
Trustee.
7. 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
8. 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. Reserved.
L. The Depositor, ContiMortgage and ContiWest 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:
1. The representations and warranties of the Depositor in this Agreement
are true and correct as of the Closing Date; and the Depositor has complied with
all agreements contained herein which are to have been complied with on or prior
to the Closing Date;
2. The information contained in the Prospectus relating to 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;
18
3. 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
March 31, 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
4. There has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Depositor,
ContiMortgage or ContiWest from March 31, 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. Each Class of the Class M-1 shall have
been rated "Aa2", the Class M-2F shall have been rated "A2", the Class M-2A
shall have been rated "A3" and each Class of the Class B Certificates shall have
been rated "BBB", by Xxxxx'x, each Class of the Class M-1, Class M-2 and Class B
Certificates shall have been rated "AA," "A-" and "BBB-," respectively, by
Standard & Poor's and each Class of Class M-1 Certificates shall have been rated
"AA+", the Class M-2F shall have been rated "A", the Class M-2A shall have been
rated "A+" and each Class of Class B Certificates shall have been rated "BBB" by
Fitch and shall not 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.
19
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 governmental 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 financial 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.
T. The Underwriters shall have received any other opinions delivered to the
Ratings Agencies.
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 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
20
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,
21
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 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, 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, officer 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 liable to the
indemnified party under this Section VIII 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 indemnified party shall have been
22
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
23
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 VIII (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 VIII (E).
F. If the indemnification provided for in this Section VIII 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 total net proceeds from the offering (before
deducting expenses) received by the Depositor bear 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.
24
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
VIII (F) shall 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 11(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 VIII, 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 Delivery.
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.
25
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-defaulting 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. In the event of any such
termination, the covenant set forth in Section V (G), the provisions of Section
VII, the indemnity agreement set forth in Section VIII, and the provisions of
Sections IX and XIV 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 Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Asset Finance Group (Fax: 212/000-0000); 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).
26
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
the Securities Act, and for the benefit of each Underwriter's respective
officers 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 XIII, 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 Jury
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.
27
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.
28
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: /s/ X. Xxxx Xxxx
--------------------------------
Name: X. Xxxx Xxxx
Title: Authorized Signatory
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
Acting on its own behalf and as
Representative of the Several
Underwriters referred to in the
foregoing Agreement
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Principal
CONTIMORTGAGE CORPORATION CONTIWEST CORPORATION
Accepts and hereby agrees solely Accepts and xxxxxx agrees solely
to the provisions of Section V.H. to the provisions of Section V.I.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxxx
--------------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxx Xxxxxx
Title: Executive Vice President & COO Title: President
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxx
--------------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxxx
Title: Senior Vice President & CFO Title: Secretary
SCHEDULE A
Class of Certificates Initial Principal Dollar
Name of Purchased by the Amount of Certificates Price to
Underwriter Underwriters Purchased by Underwriters Public**
----------- ------------ ------------------------- --------
Xxxxxx Xxxxxxx
A-1 $21,666,670 99.984375%
A-2 22,500,000 100.000000
A-3 34,166,670 99.968750
A-4 12,166,670 100.000000
A-5 11,833,335 99.968750
A-6 6,000,000 99.984375
A-7 10,833,335 99.937500
A-8 6,433,335 100.000000
A-9 11,333,335 99.953125
A-10 43,200,000 100.000000
A-1110 10,090 19.259600
M-1F 9,056,170 99.984375
M-1A 4,266,670 100.000000
M-2F 8,268,835 99.953125
M-2A 3,333,335 100.000000
B-1F 1,575,000 100.000000
B-1A 2,533,335 100.000000
TOTAL:
Bear Xxxxxxx & Co. Inc.
A-1 21,666,666 99.984375%
A-2 22,500,000 100.000000
A-3 34,166,666 99.968750
A-4 12,166,666 100.000000
A-5 11,833,333 99.968750
A-6 6,000,000 99.984375
A-7 10,833,333 99.937500
A-8 6,433,333 100.000000
A-9 11,333,333 99.953125
A-10 43,200,000 100.000000
M-1F 9,056,166 99.984375
M-1A 4,266,666 100.000000
M-2F 8,268,833 99.953125
M-2A 3,333,333 100.000000
B-1F 1,575,000 100.000000
B-1A 2,533,333 100.000000
TOTAL:
ContiFinancial Services
Corporation
A-3 10,000,000 99.818750%
TOTAL:
Class of Certificates Initial Principal Dollar
Name of Purchased by the Amount of Certificates Price to
Underwriter Underwriters Purchased by Underwriters Public**
----------- ------------ ------------------------- --------
Credit Suisse First Boston
A-1 21,666,666 99.984375%
A-2 22,500,000 100.000000
A-3 34,166,666 99.968750
A-4 12,166,666 100.000000
A-5 11,833,333 99.968750
A-6 6,000,000 99.984375
A-7 10,833,333 99.937500
A-8 6,433,333 100.000000
A-9 11,333,333 99.953125
A-10 43,200,000 100.000000
M-1F 9,056,166 99.984375
M-1A 4,266,666 100.000000
M-2F 8,268,833 99.953125
M-2A 3,333,333 100.000000
B-1F 1,575,000 100.000000
B-1A 2,533,333 100.000000
TOTAL:
Greenwich Capital Markets,
Inc.
A-1 21,666,666 99.984375%
A-2 22,500,000 100.000000
A-3 34,166,666 99.968750
A-4 12,166,666 100.000000
A-5 11,833,333 99.968750
A-6 6,000,000 99.984375
A-7 10,833,333 99.937500
A-8 6,433,333 100.000000
A-9 11,333,333 99.953125
A-10 43,200,000 100.000000
M-1F 9,056,166 99.984375
M-1A 4,266,666 100.000000
M-2F 8,268,833 99.953125
M-2A 3,333,333 100.000000
B-1F 1,575,000 100.000000
B-1A 2,533,333 100.000000
TOTAL:
Xxxxxx Brothers, Inc.
A-1 21,666,666 99.984375%
A-2 22,500,000 100.000000
A-3 34,166,666 99.968750
A-4 12,166,666 100.000000
A-5 11,833,333 99.968750
A-6 6,000,000 99.984375
A-7 10,833,333 99.937500
A-8 6,433,333 100.000000
A-9 11,333,333 99.953125
Class of Certificates Initial Principal Dollar
Name of Purchased by the Amount of Certificates Price to
Underwriter Underwriters Purchased by Underwriters Public**
----------- ------------ ------------------------- --------
A-10 43,200,000 100.000000
M-1F 9,056,166 99.984375
M-1A 4,266,666 100.000000
M-2F 8,268,833 99.953125
M-2A 3,333,333 100.000000
B-1F 1,575,000 100.000000
B-1A 2,533,333 100.000000
TOTAL:
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx
& Xxxxx Inc.
A-1 21,666,666 99.984375%
A-2 22,500,000 100.000000
A-3 34,166,666 99.968750
A-4 12,166,666 100.000000
A-5 11,833,333 99.968750
A-6 6,000,000 99.984375
A-7 10,833,333 99.937500
A-8 6,433,333 100.000000
A-9 11,333,333 99.953125
A-10 43,200,000 100.000000
M-1F 9,056,166 99.984375
M-1A 4,266,666 100.000000
M-2F 8,268,833 99.953125
M-2A 3,333,333 100.000000
B-1F 1,575,000 100.000000
B-1A 2,533,333 100.000000
TOTAL:
TOTAL:
*=Notional Principal Balance
**=Plus accured interest
EXHIBIT A
[Letterhead of the
CONTIFINANCIAL CORPORATION]
June 12, 1997
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
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 Xxxxxx Xxxxxxx & Co. Incorporated, as Representative of the Several
Underwriters, with its principal office at 0000 Xxxxxxxx, 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 June __,
1997, between Depositor and Xxxxxx Xxxxxxx & Co. 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: /s/ X. Xxxx Xxxx
--------------------------------
Name: X. Xxxx Xxxx
Title: Authorized Signatory
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
ACCEPTED
as of June 12, 1997
XXXXXX XXXXXXX & CO. INCORPORATED
as representative of the Several Underwriters
By: Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Principal
