EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT
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This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of September 25, 1997, between ContiTrade Services L.L.C. as
seller (the "Seller") and GMAC Commercial Mortgage Securities, Inc. as
purchaser (the "Purchaser").
The Seller desires to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser desires to purchase, subject to the terms and
conditions set forth below, the multifamily and commercial mortgage loans (the
"Mortgage Loans") identified on the schedule annexed hereto as Exhibit A (the
"Mortgage Loan Schedule").
It is expected that the Mortgage Loans will be transferred, together
with other multifamily and commercial mortgage loans to a trust fund (the
"Trust Fund") to be formed by the Purchaser, beneficial ownership of which will
be evidenced by a series of mortgage pass-through certificates (the
"Certificates"). Certain classes of the Certificates will be rated by Standard
& Poor's Ratings Services, a Division of ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., Fitch
Investors Service, L.P. and/or ▇▇▇▇▇'▇ Investor's Services, Inc. (together, the
"Rating Agencies"). Certain classes of the Certificates (the "Registered
Certificates") will be registered under the Securities Act of 1933, as amended
(the "Securities Act"). The Trust Fund will be created and the Certificates
will be issued pursuant to a pooling and servicing agreement to be dated as of
September 1, 1997 (the "Pooling and Servicing Agreement"), among the Purchaser
as depositor, GMAC Commercial Mortgage Corporation as master servicer (in such
capacity, the "Master Servicer") and special servicer (in such capacity, the
"Special Servicer"), and LaSalle National Bank as trustee (in such capacity,
the "Trustee") and ABN AMRO Bank N.V. as fiscal agent. Capitalized terms not
otherwise defined herein have the meanings assigned to them in the Pooling and
Servicing Agreement.
The Purchaser intends to sell the Registered Certificates to Deutsche
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
Residential Funding Securities Corp. and Llama Company, L.P. (together, the
"Underwriters") pursuant to an underwriting agreement dated the date hereof
(the "Underwriting Agreement"). The Purchaser intends to sell the remaining
Certificates (the "Non-Registered Certificates") to Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Inc. and ▇▇▇▇▇▇ Brothers Inc. (the "Initial Purchasers"), pursuant to a
certificate purchase agreement dated the date hereof (the "Certificate Purchase
Agreement").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, assign, transfer and otherwise convey to
the Purchaser, and the Purchaser agrees to purchase, the Mortgage Loans. The
purchase and sale of the Mortgage
Loans shall take place on September 30, 1997 or such other date as shall be
mutually acceptable to the parties hereto (the "Closing Date"). As of the close
of business on September 1, 1997 (the "Cut-off Date"), the Mortgage Loans will
have an aggregate principal balance (the "Aggregate Cut-off Date Balance"),
after application of all payments of principal due thereon on or before such
date, whether or not received, of $1,696,984,278.05, subject to a variance of
plus or minus 5%. The purchase price for the Mortgage Loans shall be determined
and paid to the Seller in accordance with the terms of an allocation agreement
dated the date hereof (the "Allocation Agreement"), to which the Seller and
Purchaser, among others, are parties.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by the
Seller of the purchase price referred to in Section 1 hereof (exclusive of any
applicable holdback for transaction expenses in accordance with the Allocation
Agreement), the Seller does hereby sell, transfer, assign, set over and
otherwise convey to the Purchaser, without recourse, all the right, title and
interest of the Seller in and to the Mortgage Loans identified on the Mortgage
Loan Schedule as of such date, including all interest and principal received or
receivable by the Seller on or with respect to the Mortgage Loans after the
Cut-off Date, together with all of the Seller's right, title and interest in
and to the proceeds of any related title, hazard, or other insurance policies
and any escrow, reserve or other comparable accounts related to the Mortgage
Loans. The Purchaser shall be entitled to (and, to the extent received by or on
behalf of the Seller, the Seller shall deliver or cause to be delivered to or
at the direction of the Purchaser) all scheduled payments of principal and
interest due on the Mortgage Loans after the Cut-off Date, and all other
recoveries of principal and interest collected thereon after the Cut-off Date.
All scheduled payments of principal and interest due thereon on or before the
Cut-off Date and collected after the Cut-off Date shall belong to the Seller.
(b) In connection with the Seller's assignment pursuant to subsection
(a) above, the Seller hereby agrees that, at least five (5) Business Days
before the Closing Date, it shall have delivered to and deposited with the
Trustee, the Mortgage File (as described on Exhibit B hereto) for each Mortgage
Loan so assigned. It is further acknowledged and agreed by the Seller that the
Purchaser intends to cause the Trustee to perform a limited review of such
Mortgage Files to enable the Trustee to confirm to the Purchaser on or before
the Closing Date that the Mortgage Note referred to in clause (i) of Exhibit B
has been delivered by the Seller with respect to each such Mortgage File. In
the event Seller fails to so deliver each such Mortgage File to the Trustee,
the Purchaser and its successors and assigns shall be entitled to pursue any
rights or remedies in respect of such failure as may be available under
applicable law. If the Seller cannot deliver, or cause to be delivered, as to
any Mortgage Loan, the original or a copy of any of the documents and/or
instruments referred to in clauses (ii), (iv), (viii), (xi)(A) and (xii) of
Exhibit B, with evidence of recording thereon, solely because of a delay caused
by the public recording or filing office where such document or instrument has
been delivered for recordation or filing, or because such original recorded
document has been lost or returned from the recording or filing office and
subsequently lost, as the case may be, the delivery requirements of this
Section 2(b) shall be deemed to have been satisfied as to such missing item,
and such missing item shall be deemed to have been included in the related
Mortgage File, provided that a copy of such document or instrument (without
evidence of
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recording or filing thereon, but certified (which certificate may relate to
multiple documents and/or instruments) by the Seller to be a true and complete
copy of the original thereof submitted for recording or filing, as the case may
be) has been delivered to the Trustee, and either the original of such missing
document or instrument, or a copy thereof, with evidence of recording or
filing, as the case may be, thereon, is delivered to or at the direction of the
Purchaser (or any subsequent owner of the affected Mortgage Loan, including
without limitation the Trustee) within 180 days of the Closing Date (or within
such longer period after the Closing Date as the Purchaser (or such subsequent
owner) may consent to, which consent shall not be unreasonably withheld so long
as the Seller has provided the Purchaser (or such subsequent owner) with
evidence of such recording or filing, as the case may be, or has certified to
the Purchaser (or such subsequent owner) as to the occurrence of such recording
or filing, as the case may be, and is, as certified to the Purchaser (or such
subsequent owner) no less often than quarterly, in good faith attempting to
obtain from the appropriate county recorder's or filing office such original or
copy). If the Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original or a copy of the related lender's title insurance
policy referred to in clause (ix) of Exhibit B solely because such policy has
not yet been issued, the delivery requirements of this Section 2(b) shall be
deemed to be satisfied as to such missing item, and such missing item shall be
deemed to have been included in the related Mortgage File, provided that the
Seller has delivered to the Trustee a commitment for title insurance
"marked-up" at the closing of such Mortgage Loan, and the Seller shall deliver
to or at the direction of the Purchaser (or any subsequent owner of the
affected Mortgage Loan, including without limitation the Trustee), promptly
following the receipt thereof, the original related lender's title insurance
policy (or a copy thereof). In addition, notwithstanding anything to the
contrary contained herein, if there exists with respect to any group of related
cross-collateralized Mortgage Loans only one original of any document referred
to in Exhibit B covering all the Mortgage Loans in such group, then the
inclusion of the original of such document in the Mortgage File for any of the
Mortgage Loans in such group shall be deemed an inclusion of such original in
the Mortgage File for each such Mortgage Loan. On the Closing Date, upon
notification from the Seller that the purchase price referred to in Section 1
(exclusive of any applicable holdback for transaction expenses in accordance
with the Allocation Agreement) has been received by the Seller, the Trustee
shall be authorized to release to the Purchaser or its designee all of the
Mortgage Files in the Trustee's possession relating to the Mortgage Loans.
(c) As to each Mortgage Loan, the Seller shall be responsible for all
costs associated with the recording or filing, as the case may be, of each
assignment referred to in clauses (iii) and (v) of Exhibit B and each UCC-2 and
UCC-3, if any, referred to in clause (xi)(B) of Exhibit B; provided that the
Seller shall not be responsible for actually recording or filing any such
document or instrument. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Seller shall promptly prepare or cause the preparation of a substitute therefor
or cure or cause the curing of such defect, as the case may be, and shall
thereafter deliver the substitute or corrected document to or at the direction
of the Purchaser (or any subsequent owner of the affected Mortgage Loan,
including without limitation the Trustee) for recording or filing, as
appropriate, at the Seller's expense.
(d) All documents and records in the Seller's possession (or under its
control) relating to the Mortgage Loans that are not required to be a part of a
Mortgage File in accordance with
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Exhibit B (all such other documents and records, as to any Mortgage Loan, the
"Servicing File"), together with all escrow payments, reserve funds and other
comparable funds in the possession of the Seller (or under its control) with
respect to the Mortgage Loans, shall (unless they are held by a sub-servicer
that shall, as of the Closing Date, begin acting on behalf of the Master
Servicer pursuant to a written agreement between such parties) be delivered by
the Seller (or its agent) to the Purchaser (or its designee) no later than the
Closing Date. If a sub-servicer shall, as of the Closing Date, begin acting on
behalf of the Master Servicer with respect to any Mortgage Loan pursuant to a
written agreement between such parties, the Seller shall deliver a copy of the
related Servicing File to the Master Servicer.
(e) The Seller's records will reflect the transfer of the Mortgage
Loans to the Purchaser as a sale.
SECTION 3. Examination of Mortgage Loan Files and Due Diligence
Review.
The Seller shall reasonably cooperate with any examination of the
Mortgage Files and Servicing Files that may be undertaken by or on behalf of
the Purchaser. The fact that the Purchaser has conducted or has failed to
conduct any partial or complete examination of the Mortgage Files and/or
Servicing Files shall not affect the Purchaser's right to pursue any remedy
available in equity or at law for a breach of the Seller's representations,
warranties and covenants set forth in or contemplated by Section 4.
SECTION 4. Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby makes, as of the Closing Date (or as of such
other date specifically provided in the particular representation or warranty),
to and for the benefit of the Purchaser, and its successors and assigns
(including, without limitation, the Trustee and the holders of the
Certificates), each of the representations and warranties set forth in Exhibit
C, with such changes or modifications as may be permitted or required by the
Rating Agencies.
(b) In addition, the Seller, as of the date hereof, hereby represents
and warrants to, and covenants with, the Purchaser that:
(i) The Seller is a limited liability company, duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to ensure
the enforceability of each Mortgage Loan and to perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Seller,
and the performance and compliance with the terms of this Agreement by
the Seller, will not violate the Seller's organizational documents or
constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or result in the breach
of, any material agreement or other instrument to which it is a party
or which is applicable to it or any of its assets.
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(iii) The Seller has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law, and (C) public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement that purport to provide indemnification for securities laws
liabilities.
(v) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law,
any order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Seller's good faith and reasonable
judgment, is likely to affect materially and adversely either the
ability of the Seller to perform its obligations under this Agreement
or the financial condition of the Seller.
(vi) No litigation is pending with regard to which Seller has
received service of process or, to the best of the Seller's knowledge,
threatened against the Seller the outcome of which, in the Seller's
good faith and reasonable judgment, could reasonably be expected to
prohibit the Seller from entering into this Agreement or materially
and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(vii) The Seller has not dealt with any broker, investment
banker, agent or other person, other than the Purchaser, the
Underwriters, the Initial Purchasers, and their respective affiliates,
that may be entitled to any commission or compensation in connection
with the sale of the Mortgage Loans or the consummation of any of the
other transactions contemplated hereby.
(viii) Neither the Seller nor anyone acting on its behalf has (A)
offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any other similar
security to any person in any manner, (B) solicited any offer to buy
or to accept a pledge, disposition or other transfer of any
Certificate, any interest in any Certificate or any other similar
security from any person in any manner, (C) otherwise approached or
negotiated with respect to any Certificate, any interest in any
Certificate or any other similar security with any person in any
manner, (D) made any general solicitation by means of general
advertising or in any other manner with respect to any Certificate,
any interest in any Certificate or any similar security, or (E) taken
any other action, that (in the case of any of the acts described in
clauses (A) through (E) above) would constitute or result in a
violation of the Securities Act or any state securities law
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relating to or in connection with the issuance of the Certificates or
require registration or qualification pursuant to the Securities Act
or any state securities law of any Certificate not otherwise intended
to be a Registered Certificate. In addition, the Seller will not act,
nor has it authorized or will it authorize any person to act, in any
manner set forth in the foregoing sentence with respect to any of the
Certificates or interests therein. For purposes of this paragraph
4(b)(viii), the term "similar security" shall be deemed to include,
without limitation, any security evidencing or, upon issuance, that
would have evidenced an interest in the Mortgage Loans or any
substantial number thereof.
(ix) Insofar as it relates to the Mortgage Loans, the information
set forth on pages A-7 through A-12, inclusive, of Annex A to the
Prospectus Supplement (as defined in Section 9) (the "Loan Detail")
and, to the extent consistent therewith, the information set forth on
the diskette attached to the Prospectus Supplement and the
accompanying prospectus (the "Diskette"), is true and correct in all
material respects. Insofar as it relates to the Mortgage Loans and/or
the Seller and does not represent a restatement or aggregation of the
information on the Loan Detail, the information set forth in the
Prospectus Supplement and the Memorandum (also as defined in Section
9) under the headings "Summary of the Prospectus Supplement--The
Mortgage Asset Pool", "Risk Factors--The Mortgage Loans" and
"Description of the Mortgage Asset Pool", set forth on Annex A to the
Prospectus Supplement and (to the extent it contains information
consistent with that on such Annex A) set forth on the Diskette, does
not contain any untrue statement of a material fact or (in the case of
the Memorandum, when read together with the other information
specified therein as being available for review by investors) omit to
state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(x) No consent, approval, authorization or order of, registration
or filing with, or notice to, any governmental authority or court is
required, under federal or state law (including, with respect to any
bulk sale laws), for the execution, delivery and performance of or
compliance by the Seller with this Agreement, or the consummation by
the Seller of any transaction contemplated hereby, other than (1) the
filing or recording of financing statements, instruments of assignment
and other similar documents necessary in connection with Seller's sale
of the Mortgage Loans to the Purchaser, (2) such consents, approvals,
authorizations, qualifications, registrations, filings or notices as
have been obtained or made and (3) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice
would not have a material adverse effect on the performance by the
Seller under this Agreement.
(c) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties made pursuant to and set forth in subsection
(b) above which materially and adversely affects the interests of the Purchaser
or a breach of any of the representations and warranties made pursuant to
subsection (a) above and set forth in Exhibit C which materially and adversely
affects the value of any Mortgage Loan or the interests therein of the
Purchaser or its successors and assigns (including, without limitation the
Trustee and the
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holders of the Certificates), the party discovering such breach shall give
prompt written notice to the other party hereto.
SECTION 5. Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser, as of the date hereof, hereby represents and
warrants to, and covenants with, the Seller that:
(i) The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of State of Delaware.
(ii) The execution and delivery of this Agreement by the
Purchaser, and the performance and compliance with the terms of this
Agreement by the Purchaser, will not violate the Purchaser's
organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any
of its assets.
(iii) The Purchaser has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding
obligation of the Purchaser, enforceable against the Purchaser in
accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement
is considered in a proceeding in equity or at law.
(v) The Purchaser is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law,
any order or decree of any court or arbiter, or any order, regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Purchaser's good faith and
reasonable judgment, is likely to affect materially and adversely
either the ability of the Purchaser to perform its obligations under
this Agreement or the financial condition of the Purchaser.
(vi) No litigation is pending or, to the best of the Purchaser's
knowledge, threatened against the Purchaser which would prohibit the
Purchaser from entering into this Agreement or, in the Purchaser's
good faith and reasonable judgment, is likely to materially and
adversely affect either the ability of the Purchaser to perform its
obligations under this Agreement or the financial condition of the
Purchaser.
(vii) The Purchaser has not dealt with any broker, investment
banker, agent or other person, other than the Seller, the
Underwriters, the Initial Purchasers and their
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respective affiliates, that may be entitled to any commission or
compensation in connection with the sale of the Mortgage Loans or the
consummation of any of the transactions contemplated hereby.
(b) Upon discovery by any of the parties hereto of a breach of any of
the representations and warranties set forth above which materially and
adversely affects the interests of the Seller, the party discovering such
breach shall give prompt written notice to the other party hereto.
SECTION 6. Repurchases.
(a) Within 90 days of the earlier of discovery or receipt of notice by
the Seller, from either the Purchaser or any successor or assign thereof, of a
Defect (as defined in the Pooling and Servicing Agreement) in respect of the
Mortgage File for any Mortgage Loan or a breach of any representation or
warranty made pursuant to Section 4(a) and set forth in Exhibit C, which Defect
or breach, as the case may be, materially and adversely affects the value of
any Mortgage Loan or the interests therein of the Purchaser or its successors
and assigns (including, without limitation, the Trustee and the holders of the
Certificates), the Seller shall cure such Defect or breach, as the case may be,
in all material respects or repurchase the affected Mortgage Loan from the then
owner(s) thereof at the applicable Purchase Price (as defined in the Pooling
and Servicing Agreement) by payment of such Purchase Price by wire transfer of
immediately available funds to the account designated by such owner(s),
provided, however, that in lieu of effecting any such repurchase, the Seller
will be permitted to deliver a Qualifying Substitute Mortgage Loan and to pay a
cash amount equal to the applicable Substitution Shortfall Amount, subject to
the terms and conditions of the Pooling and Servicing Agreement.
If the Seller is notified of a defect in any Mortgage File that
corresponds to information set forth in the Mortgage Loan Schedule, the Seller
shall promptly correct such defect and provide a new, corrected Mortgage Loan
Schedule to the Purchaser, which corrected Mortgage Loan Schedule shall be
deemed to amend and replace the existing Mortgage Loan Schedule for all
purposes.
(b) Notwithstanding Section 6(a), within 60 days of the earlier of
discovery or receipt of notice by the Seller, from either the Purchaser or any
successor or assign thereof, that any Mortgage Loan does not constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, the
Seller shall repurchase such Mortgage Loan from the then owner(s) thereof at
the applicable Purchase Price by payment of such Purchase Price by wire
transfer of immediately available funds to the account designated by such
owner(s).
(c) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 6, the then owner(s) thereof shall
tender or cause to be tendered promptly to the Seller, upon delivery of a
receipt executed by the Seller, the related Mortgage File and Servicing File,
and each document that constitutes a part of the Mortgage File that was
endorsed or assigned to the Purchaser or the Trustee shall be endorsed or
assigned, as the case may be, to the Seller in the same manner. The form and
sufficiency of all such instruments and certificates shall be the
responsibility of the Seller.
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(d) Except as provided in Section 2(b), this Section 6 provides the
sole remedies available to the Purchaser, and its successors and assigns
(including, without limitation, the Trustee and the holders of the
Certificates) respecting any Defect in a Mortgage File or any breach of any
representation or warranty made pursuant to Section 4(a) and set forth in
Exhibit C, or in connection with the circumstances described in Section 6(b).
If the Seller defaults on its obligations to repurchase any Mortgage Loan in
accordance with Section 6(a) or 6(b) or disputes its obligation to repurchase
any Mortgage Loan in accordance with either such subsection, the Purchaser or
its successors and assigns may take such action as is appropriate to enforce
such payment or performance, including, without limitation, the institution and
prosecution of appropriate proceedings. The Seller shall reimburse the
Purchaser for all necessary and reasonable costs and expenses incurred in
connection with such enforcement.
SECTION 7. Closing.
The closing of the sale of the Mortgage Loans (the "Closing") shall be
held at the offices of ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ at 10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller
specified herein shall be true and correct as of the Closing Date, and
the Aggregate Cutoff Date Balance shall be within the range permitted
by Section 1 of this Agreement;
(ii) All documents specified in Section 8 (the "Closing
Documents"), in such forms as are agreed upon and acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as
required pursuant to the respective terms thereof;
(iii) The Seller shall have delivered and released to the
Trustee, the Purchaser or the Purchaser's designee, as the case may
be, all documents and funds required to be so delivered pursuant to
Section 2;
(iv) The result of any examination of the Mortgage Files and
Servicing Files performed by or on behalf of the Purchaser pursuant to
Section 3 shall be satisfactory to the Purchaser in its sole
determination;
(v) All other terms and conditions of this Agreement required to
be complied with on or before the Closing Date shall have been
complied with, and the Seller shall have the ability to comply with
all terms and conditions and perform all duties and obligations
required to be complied with or performed after the Closing Date;
(vi) The Seller shall have paid or agreed to pay all fees, costs
and expenses payable by it to the Purchaser pursuant to this
Agreement; and
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(vii) Neither the Underwriting Agreement nor the Certificate
Purchase Agreement shall have been terminated in accordance with its
terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 8. Closing Documents.
The Closing Documents shall consist of the following:
(a) This Agreement duly executed and delivered by the Purchaser and
the Seller;
(b) An Officer's Certificate substantially in the form of Exhibit D-1
hereto, executed by the Secretary or an assistant secretary of the Seller, and
dated the Closing Date, and upon which the Purchaser and each Underwriter may
rely, attaching thereto as exhibits the organizational documents of the Seller;
(c) A certificate of good standing regarding the Seller from the
Secretary of State for the State of Delaware, dated not earlier than 30 days
prior to the Closing Date;
(d) A certificate of the Seller substantially in the form of Exhibit
D-2 hereto, executed by an executive officer or authorized signatory of the
Seller and dated the Closing Date, and upon which the Purchaser and each
Underwriter may rely;
(e) Written opinions of counsel for the Seller, substantially in the
form of Exhibits D-3A and D-3B hereto and subject to such reasonable
assumptions and qualifications as may be requested by counsel for the Seller
and acceptable to counsel for the Purchaser, dated the Closing Date and
addressed to the Purchaser and each Underwriter;
(f) Any other opinions of counsel for the Seller reasonably requested
by the Rating Agencies in connection with the issuance of the Certificates,
each of which shall include the Purchaser and each Underwriter as an addressee;
and
(g) A guaranty agreement substantially in the form of Exhibit E hereto
(the "Guaranty Agreement") duly executed and delivered by ContiFinancial
Corporation (the "Guarantor") in favor of the Purchaser and the other
beneficiaries referred to therein; and
(h) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
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SECTION 9. Indemnification.
(a) The Seller agrees to indemnify and hold harmless the Purchaser,
its officers and directors, and each person, if any, who controls the Purchaser
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus
Supplement, the Memorandum, the Diskette or, insofar as they are required to be
filed as part of the Registration Statement pursuant to the No-Action Letters,
any Computational Materials or ABS Term Sheets with respect to the Registered
Certificates, or in any revision or amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission (in the case of
any such Computational Materials or ABS Term Sheets, when read in conjunction
with the Prospectus and, in the case of the Memorandum, when read together with
the other information specified therein as being available for review by
investors) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; but only if and to the extent that (i)
any such untrue statement or alleged untrue statement is with respect to
information regarding the Mortgage Loans contained in the Loan Detail or, to
the extent consistent therewith, the Diskette, or (ii) any such untrue
statement or alleged untrue statement or omission or alleged omission is with
respect to information regarding the Seller or the Mortgage Loans contained in
the Prospectus Supplement or the Memorandum under the headings "Summary of
Prospectus Supplement - The Mortgage Asset Pool", "Risk Factors - The Mortgage
Loans" and/or "Description of the Mortgage Asset Pool" or contained on Annex A
to the Prospectus Supplement (exclusive of the Loan Detail), and such
information does not represent a restatement or aggregation of information
contained in the Loan Detail; or (iii) such untrue statement, alleged untrue
statement, omission or alleged omission arises out of or is based upon a breach
of the representations and warranties of the Seller set forth in or made
pursuant to Section 4; provided, that the indemnification provided by this
Section 9 shall not apply to the extent that such untrue statement of a
material fact or omission of a material fact necessary to make the statements
made, in light of the circumstances in which they were made, not misleading,
was made as a result of an error in the manipulation of, or calculations based
upon, the Loan Detail. This indemnity agreement will be in addition to any
liability which the Seller may otherwise have.
For purposes of the foregoing, "Registration Statement" shall mean the
registration statement No. 33-94448 filed by the Purchaser on Form S-3,
including without limitation exhibits thereto and information incorporated
therein by reference; "Prospectus" shall mean the prospectus dated September
15, 1997, as supplemented by the prospectus supplement dated September 25, 1997
(the "Prospectus Supplement"), relating to the Registered Certificates;
"Memorandum" shall mean the private placement memorandum dated September 25,
1997, relating to the Non-Registered Certificates; "Computational Materials"
shall have the meaning assigned thereto in the no-action letter dated May 20,
1994 issued by the Division of Corporation Finance of the Securities and
Exchange Commission (the "Commission") to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
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Acceptance Corporation I, ▇▇▇▇▇▇, Peabody & Co. Incorporated, and ▇▇▇▇▇▇
Structured Asset Corporation and the no-action letter dated May 27, 1994 issued
by the Division of Corporation Finance of the Commission to the Public
Securities Association (together, the "▇▇▇▇▇▇ Letters"); and "ABS Term Sheets"
shall have the meaning assigned thereto in the no-action letter dated February
17, 1995 issued by the Division of Corporation Finance of the Commission to the
Public Securities Association (the "PSA Letter" and, together with the ▇▇▇▇▇▇
Letters, the "No-Action Letters").
(b) Promptly after receipt by any person entitled to indemnification
under this Section 9 (each, an "indemnified party") of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the Seller (the "indemnifying party") under this
Section 9, notify the indemnifying party in writing of the commencement
thereof; but the omission to notify the indemnifying party will not relieve it
from any liability that it may have to any indemnified party otherwise than
under this Section 9. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof, with counsel satisfactory to such
indemnified party; provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party or parties shall have reasonably concluded that there may be
legal defenses available to it or them and/or other indemnified parties that
are different from or additional to those available to the indemnifying party,
the indemnified party or parties shall have the right to select separate
counsel to assert such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of its
election to assume the defense of such action and approval by the indemnified
party of counsel, which approval will not be unreasonably withheld, the
indemnifying party will not be liable for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in connection with the assertion of legal defenses in accordance with the
proviso to the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Purchaser and the indemnifying party,
representing all the indemnified parties under Section 9(a) who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall only be in respect of
the counsel referred to in such clause (i) or (iii).
(c) If the indemnification provided for in this Section 9 is due in
accordance with its terms but is for any reason held by a court to be
unavailable to an indemnified party on grounds of policy or otherwise, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or
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omissions which resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of the
indemnified and indemnifying parties shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by such parties.
(d) The Purchaser and the Seller agree that it would not be just and
equitable if contribution pursuant to Section 9(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 9(c) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 9 shall be deemed to include, subject
to the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim, except where the indemnified party is
required to bear such expenses pursuant to this Section 9, which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnifying party will be ultimately
obligated to pay such expenses. If any expenses so paid by the indemnifying
party are subsequently determined to not be required to be borne by the
indemnifying party hereunder, the party that received such payment shall
promptly refund the amount so paid to the party which made such payment. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this
Section 9 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by any
indemnified party, and (iii) acceptance of and payment for any of the
Certificates.
SECTION 10. Costs.
Costs relating to the transactions contemplated hereby shall be borne
by the respective parties hereto in accordance with the Allocation Agreement.
SECTION 11. Notices.
All demands, notices and communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered to or
mailed, by registered mail, postage prepaid, by overnight mail or courier
service, or transmitted by facsimile and confirmed by a similar mailed writing,
if to the Purchaser, addressed to GMAC Commercial Mortgage Securities, Inc. at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Structured Finance Manager, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to the
General Counsel, GMAC Commercial Mortgage Corporation, or such other address or
facsimile number as may hereafter be furnished to the Seller in writing by the
Purchaser; and if to the Seller, addressed to ContiTrade Services L.L.C., at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Chief
Counsel, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, or to such other address or facsimile
number as the Seller may designate in writing to the Purchaser.
-13-
SECTION 12. Third Party Beneficiaries.
Each of the officers, directors and controlling persons referred to in
Section 9 hereof is an intended third party beneficiary of the covenants and
indemnities of the Seller set forth in Section 9 of this Agreement. It is
acknowledged and agreed that such covenants and indemnities may be enforced by
or on behalf of any such person or entity against the Seller to the same extent
as if it was a party hereto.
SECTION 13. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser or its designee.
SECTION 14. Severability of Provisions.
Any part, provision, representation, warranty or covenant of this
Agreement that is prohibited or which is held to be void or unenforceable shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
unenforceable or is held to be void or unenforceable in any particular
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by applicable law,
the parties hereto waive any provision of law which prohibits or renders void
or unenforceable any provision hereof.
SECTION 15. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
SECTION 16. GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS AND
RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN ACCORDANCE WITH THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES EXCEPT THAT THE PARTIES HERETO INTEND THAT THE
PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL
APPLY TO THIS AGREEMENT.
-14-
SECTION 17. Further Assurances.
The Seller and the Purchaser agree to execute and deliver such
instruments and take such further actions as the other party may, from time to
time, reasonably request in order to effectuate the purposes and to carry out
the terms of this Agreement.
SECTION 18. Successors and Assigns.
The rights and obligations of the Seller under this Agreement shall
not be assigned by the Seller without the prior written consent of the
Purchaser, except that any person into which the Seller may be merged or
consolidated, or any corporation or other entity resulting from any merger,
conversion or consolidation to which the Seller is a party, or any person
succeeding to all or substantially all of the business of the Seller, shall be
the successor to the Seller hereunder. The Purchaser has the right to assign
its interest under this Agreement, in whole or in part, as may be required to
effect the purposes of the Pooling and Servicing Agreement, and the assignee
shall, to the extent of such assignment, succeed to the rights and obligations
hereunder of the Purchaser. Subject to the foregoing, this Agreement shall bind
and inure to the benefit of and be enforceable by the Seller and the Purchaser,
and their permitted successors and assigns, and the indemnified parties
referred to in Section 9.
SECTION 19. Amendments.
No term or provision of this Agreement may be amended, waived,
modified or in any way altered, unless such amendment, waiver, modification or
alteration is in writing and signed by a duly authorized officer of the party
against whom such amendment, waiver, modification or alteration is sought to be
enforced. In addition, this Agreement may not be changed in any manner which
would have a material adverse effect on any third party beneficiary under
Section 12 hereof without the prior consent of that person.
-15-
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of
the date first above written.
CONTITRADE SERVICES L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
GMAC COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
EXHIBIT A
MORTGAGE LOAN SCHEDULE
The Mortgage Loan Schedule shall set forth, among other things, the
following information with respect to each Mortgage Loan:
(i) the loan number;
(ii) the street address (including city, state and zip code) of
the related Mortgaged Property;
(iii) the Mortgage Rate in effect as of the Cut-off Date and
whether such Mortgage Loan is an ARM Loan, a Fixed-Rate Loan;
(iv) the original principal balance;
(v) the Cut-off Date Balance;
(vi) the (A) remaining term to stated maturity, (B) with respect
to each ARD Loan, the Anticipated Repayment Date and (C)
Stated Maturity Date;
(vii) the Due Date;
(viii) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(ix) in the case of an ARM Loan, the (A) Index, (B) Gross Margin,
(C) first Mortgage Rate adjustment date following the Cut-off
Date and the frequency of Mortgage Rate adjustments, and (D)
maximum and minimum lifetime Mortgage Rate, if any;
(x) whether such Mortgage Loan is an ARD Loan or a Defeasance
Loan; and
(xi) the Master Servicing Fee Rate.
The Mortgage Loan Schedule shall also set forth the aggregate Cut-off Date
Balance for all of the Mortgage Loans. Such list may be in the form of more
than one list, collectively setting forth all of the information required.
[The Mortgage Loan Schedule consists of those Loans marked "▇▇▇▇▇" on
Schedule I to the Pooling and Services Agreement]
A-1
EXHIBIT B
THE MORTGAGE FILE
The "Mortgage File" for any Mortgage Loan shall, subject to Section
2(b), collectively consist of the following documents:
(i) the original Mortgage Note, endorsed by the most recent
endorsee prior to the Trustee or, if none, by the originator,
without recourse, either in blank or to the order of the
Trustee in the following form: "Pay to the order of LaSalle
National Bank, as trustee for the registered holders of GMAC
Commercial Mortgage Securities, Inc., Mortgage Pass-Through
Certificates, Series 1997-C1, without recourse";
(ii) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof
showing a complete chain of assignment from the originator of
the Mortgage Loan to the most recent assignee of record thereof
prior to the Trustee, if any, in each case with evidence of
recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable form,
executed by the most recent assignee of record thereof prior to
the Trustee or, if none, by the originator, either in blank or
in favor of the Trustee (in such capacity);
(iv) the original or a copy of the related (Assignment of Leases)
(if such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening
assignments thereof showing a complete chain of assignment from
the originator of the Mortgage Loan to the most recent assignee
of record thereof prior to the Trustee, if any, in each case
with evidence of recording thereon;
(v) an original assignment of any related (Assignment of Leases)
(if such item is a document separate from the Mortgage), in
recordable form, executed by the most recent assignee of record
thereof prior to the Trustee or, if none, by the originator,
either in blank or in favor of the Trustee (in such capacity),
which assignment may be included as part of the corresponding
assignment of Mortgage referred to in clause (iii) above;
(vi) an original or copy of any related security agreement (if such
item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening
assignments thereof showing a complete chain of assignment from
the originator of the Mortgage Loan to the most recent assignee
of record thereof prior to the Trustee, if any;
B-1
(vii) an original assignment of any related security agreement (if
such item is a document separate from the Mortgage) executed by
the most recent assignee of record thereof prior to the Trustee
or, if none, by the originator, either in blank or in favor of
the Trustee (in such capacity), which assignment may be
included as part of the corresponding assignment of Mortgage
referred to in clause (iii) above;
(viii) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of
recording thereon if appropriate, in those instances where the
terms or provisions of the Mortgage, Mortgage Note or any
related security document have been modified or the Mortgage
Loan has been assumed;
(ix) the original or a copy of the lender's title insurance policy
issued as of the date of the origination of the Mortgage Loan,
together with all endorsements or riders (or copies thereof)
that were issued with or subsequent to the issuance of such
policy, insuring the priority of the Mortgage as a first lien
on the Mortgaged Property;
(x) the original or a copy of any guaranty of the obligations of
the mortgagor under the Mortgage Loan together with (A) if
applicable, the original or copies of any intervening
assignments of such guaranty showing a complete chain of
assignment from the originator of the Mortgage Loan to the most
recent assignee thereof prior to the Trustee, if any, and (B)
an original assignment of such guaranty executed by the most
recent assignee thereof prior to the Trustee or, if none, by
the originator;
(xi) (A) file or certified copies of any UCC financing statements
and continuation statements which were filed in order to
perfect (and maintain the perfection of) any security interest
held by the originator of the Mortgage Loan (and each assignee
of record prior to the Trustee) in and to the personalty of the
mortgagor at the Mortgaged Property (in each case with evidence
of filing thereon) and which were in the possession of the
Seller (or its agent) at the time the Mortgage Files were
delivered to the Trustee and (B) if any such security interest
is perfected and the earlier UCC financing statements and
continuation statements were in the possession of the Seller, a
UCC financing statement executed by the most recent assignee of
record prior to the Trustee or, if none, by the originator,
evidencing the transfer of such security interest, either in
blank or in favor of the Trustee;
(xii) the original or a copy of the power of attorney (with evidence
of recording thereon, if appropriate) granted by the Mortgagor
if the Mortgage, Mortgage Note or other document or instrument
referred to above was signed on behalf of the Mortgagor; and
B-2
(xiii) if the Mortgagor has a leasehold interest in the related
Mortgaged Property, the original ground lease or a copy
thereof;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Purchaser or the Trustee, such term shall not be
deemed to include such documents and instruments required to be included
therein unless they are actually so received. The original assignments referred
to in clauses (iii), (v), (vii) and (x)(B), may be in the form of one or more
instruments in recordable form in any applicable filing offices.
B-3
EXHIBIT C
REPRESENTATIONS AND WARRANTIES OF THE SELLER
REGARDING THE INDIVIDUAL MORTGAGE LOANS
With respect to each Mortgage Loan, the Seller hereby represents and
warrants, as of the date hereinbelow specified or, if no such date is
specified, as of the Closing Date, that:
(i) Ownership of Mortgage Loans. Immediately prior to the transfer
thereof to the Purchaser, the Seller had good and marketable title to, and was
the sole owner and holder of, such Mortgage Loan, free and clear of any and all
liens, encumbrances and other interests on, in or to such Mortgage Loan (other
than, in certain cases, the right of a subservicer to directly service such
Mortgage Loan). Such transfer validly assigns ownership of such Mortgage Loan
to the Purchaser free and clear of any pledge, lien, encumbrance or security
interest.
(ii) Authority to Transfer Mortgage Loans. The Seller has full right
and authority to sell, assign and transfer such Mortgage Loan. No provision of
the Mortgage Note, Mortgage or other loan document relating to such Mortgage
Loan prohibits or restricts the Seller's right to assign or transfer such
Mortgage Loan.
(iii) Mortgage Loan Schedule. The information pertaining to such
Mortgage Loan set forth in the Mortgage Loan Schedule was true and correct in
all material respects as of the Cut-off Date.
(iv) Payment Record. Such Mortgage Loan was not as of the Cut-off
Date, and has not been during the twelve-month period prior thereto, 30 days or
more delinquent in respect of any debt service payment required thereunder,
without giving effect to any applicable grace period.
(v) Permitted Encumbrances. The related Mortgage constitutes a valid
first lien upon the related Mortgaged Property, including all buildings located
thereon and all fixtures attached thereto, such lien being subject only to (A)
the lien of current real property taxes and assessments not yet due and
payable, (B) covenants, conditions and restrictions, rights of way, easements
and other matters of public record, and (C) exceptions and exclusions
specifically referred to in the lender's title insurance policy issued or, as
evidenced by a "marked-up" commitment, to be issued in respect of such Mortgage
Loan (the exceptions set forth in the foregoing clauses (A), (B) and (C)
collectively, "Permitted Encumbrances"). The Permitted Encumbrances do not
materially interfere with the security intended to be provided by the related
Mortgage, the current use or operation of the related Mortgaged Property or the
current ability of the Mortgaged Property to generate net operating income
sufficient to service the Mortgage Loan. If the Mortgaged Property is operated
as a nursing facility, a hospitality property or a multifamily property, the
Mortgage, together with any separate security agreement, similar agreement and
UCC financing statement, if any, establishes and creates a first priority,
perfected security interest, to the extent such security interest can be
perfected by the recordation of a Mortgage or the filing of a UCC financing
statement, in all personal property owned by the
C-1
Mortgagor that is used in, and is reasonably necessary to, the operation of the
related Mortgaged Property.
(vi) Title Insurance. The lien of the related Mortgage is insured by
an ALTA lender's title insurance policy ("Title Policy"), or its equivalent as
adopted in the applicable jurisdiction, issued by a nationally recognized title
insurance company, insuring the originator of such Mortgage Loan, its
successors and assigns, as to the first priority lien of the Mortgage in the
original principal amount of the Mortgage Loan after all advances of principal,
subject only to Permitted Encumbrances (or, if a title insurance policy has not
yet been issued in respect of the Mortgage Loan, a policy meeting the foregoing
description is evidenced by a commitment for title insurance "marked-up" at the
closing of such loan). Each Title Policy (or, if it has yet to be issued, the
coverage to be provided thereby) is in full force and effect, all premiums
thereon have been paid and, to the Seller's knowledge, no material claims have
been made thereunder and no claims have been paid thereunder. The Seller has
not, by act or omission, done anything that would materially impair the
coverage under such Title Policy. Immediately following the transfer and
assignment of the related Mortgage Loan to the Trustee, such Title Policy (or,
if it has yet to be issued, the coverage to be provided thereby) will inure to
the benefit of the Trustee without the consent of or notice to the insurer. To
the Seller's actual knowledge, the insurer that issued such Title Policy is
qualified to do business in the state in which the related Mortgaged Property
is located,
(vii) No Waivers by Seller of Material Defaults. The Seller has not
waived any material default, breach, violation or event of acceleration
existing under the related Mortgage or Mortgage Note.
(viii) No Offsets, Defenses or Counterclaims. There is no valid
offset, defense or counterclaim to such Mortgage Loan.
(ix) Condition of Property; Condemnation. Except as set forth in any
engineering report prepared in connection with the origination of (or obtained
in connection with or otherwise following the Seller's acquisition of) such
Mortgage Loan, the related Mortgaged Property is, to the Seller's knowledge,
free and clear of any damage that would materially and adversely affect its
value as security for such Mortgage Loan. The Seller has no actual notice of
the commencement of a proceeding for the condemnation of all or any material
portion of the related Mortgaged Property.
(x) Compliance with Usury Laws. Such Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
(xi) Full Disbursement of Mortgage Loan Proceeds. The proceeds of such
Mortgage Loan have been fully disbursed and there is no requirement for future
advances thereunder.
(xii) Enforceability. The related Mortgage Note and Mortgage and all
other documents and instruments evidencing, guaranteeing, insuring or otherwise
securing such Mortgage Loan have been duly and properly executed by the parties
thereto, and each is the legal,
C-2
valid and binding obligation of the maker thereof (subject to any non-recourse
provisions contained in any of the foregoing agreements and any applicable
state anti-deficiency legislation), enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium or other laws relating to or affecting
the rights of creditors generally and by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
(xiii) Insurance. To the Seller's actual knowledge, all improvements
upon the related Mortgaged Property are insured against loss by hazards of
extended coverage in an amount (subject to a customary deductible) at least
equal to the lesser of the outstanding principal balance of such Mortgage Loan
and 100% of the full replacement cost of the improvements located on such
Mortgaged Property and the related hazard insurance policy contains appropriate
endorsements to avoid the application of co-insurance and does not permit
reduction in insurance proceeds for depreciation. If any portion of the related
Mortgaged Property was, at the time of the origination of such Mortgage Loan,
in an area identified in the Federal Register by the Flood Emergency Management
Agency as having special flood hazards, and flood insurance was available, a
flood insurance policy meeting any requirements of the then current guidelines
of the Federal Insurance Administration is in effect with a generally
acceptable insurance carrier, in an amount representing coverage not less than
the least of (1) the outstanding principal balance of such Mortgage Loan, (2)
the full insurable value of such Mortgaged Property, (3) the maximum amount of
insurance available under the National Flood Insurance Act of 1968, as amended,
and (4) 100% of the replacement cost of the improvements located on such
Mortgaged Property. In addition, the Mortgage requires the Mortgagor to
maintain in respect of the Mortgaged Property comprehensive general liability
insurance in amounts generally required by the Seller, and at least six months
rental or business interruption insurance, and all such insurance required by
the Mortgage to be maintained is in full force and effect. Each such insurance
policy requires prior notice to the holder of the Mortgage of termi nation or
cancellation, and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured.
(xiv) Environmental Condition. Subject to the exception set forth on
page C-10 hereof, the related Mortgaged Property was subject to one or more
environmental site assessments (or an update of a previously conducted
assessment), which was (were) performed on behalf of the Seller, or as to which
the related report was delivered to the Seller in connection with its
origination or acquisition of such Mortgage Loan; and the Seller, having made
no independent inquiry other than reviewing the resulting report(s) and/or
employing an environmental consultant to perform the assessment(s) referenced
herein, has no knowledge of any material and adverse environmental conditions
or circumstance affecting such Mortgaged Property that was not disclosed in the
related report(s). The Seller has not taken any action with respect to such
Mortgage Loan or the related Mortgaged Property that could subject the
Purchaser, or its successors and assigns in respect of the Mortgage Loan, to
any liability under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA") or any other applicable federal,
state or local environmental law, and the Seller has not received any actual
notice of a material violation of CERCLA or any applicable federal, state or
local environmental law with respect to the related Mortgaged Property that was
not disclosed in the related report. The related Mortgage or loan documents
C-3
in the related Mortgage File requires the Mortgagor to comply with all
applicable federal, state and local environmental laws and regulations.
(xv) No Cross-Collateralization with Other Mortgage Loans. Such
Mortgage Loan is not cross-collateralized with any mortgage loan that will not
be included in the Trust Fund.
(xvi) Waivers and Modifications. The terms of the related Mortgage and
the Mortgage Note have not been impaired, waived, altered or modified in any
material respect, except as specifically set forth in the related Mortgage
File.
(xvii) Taxes and Assessments. There are no delinquent taxes, ground
rents, assessments for improvements or other similar outstanding charges
affecting the related Mortgaged Property which are or may become a lien of
priority equal to or higher than the lien of the related Mortgage. For purposes
of this representation and warranty, real property taxes and assessments shall
not be considered unpaid until the date on which interest and/or penalties
would be payable thereon.
(xviii) Mortgagor's Interest in Mortgaged Property. Except in the case
of six Mortgage Loans as to which the interest of the related Mortgagor in the
related Mortgaged Property is in whole or in part a leasehold estate, the
interest of the related Mortgagor in the related Mortgaged Property consists of
a fee simple estate in real property.
(xix) Whole Loan. Each Mortgage Loan is a whole loan and not a
participation interest.
(xx) Valid Assignment. The assignment of the related Mortgage referred
to in clause (iii) of Exhibit B constitutes the legal, valid and binding
assignment of such Mortgage from the relevant assignor to the Trustee, and the
assignment of the related Assignment of Leases, if any, referred to in clause
(v) of Exhibit B constitutes the legal, valid and binding assignment thereof
from the relevant assignor to the Trustee.
(xxi) Escrows. All escrow deposits relating to such Mortgage Loan that
are, as of the Closing Date, required to be deposited with the mortgagee or its
agent have been so deposited.
(xxii) No Mechanics' or Materialmen's Liens. As of the date of
origination of such Mortgage Loan and, to the actual knowledge of the Seller,
as of the Closing Date, the related Mortgaged Property was and is free and
clear of any mechanics' and materialmen's liens or liens in the nature thereof
which create a lien prior to that created by the related Mortgage.
(xxiii) No Material Encroachments. To the Seller's knowledge (based on
surveys and/or title insurance obtained in connection with the origination of
such Mortgage Loan), as of the date of such origination, no improvement that
was included for the purpose of determining the appraised value of the related
Mortgaged Property at the time of origination of such Mortgage Loan lay outside
the boundaries and building restriction lines of such property to any
C-4
material extent (unless affirmatively covered by the title insurance referred
to in paragraph (vi) above), and no improvements on adjoining properties
encroached upon such Mortgaged Property to any material extent. To the Seller's
knowledge, based upon opinions of counsel and/or other due diligence
customarily performed by the Seller, the improvements located on or forming
part of such Mortgaged Property comply in all material respects with applicable
zoning laws and ordinances (except to the extent that they may constitute legal
non-conforming uses).
(xxiv) Originator Authorized. To the extent required under applicable
law as of the Closing Date, the originator of such Mortgage Loan was authorized
to do business in the jurisdiction in which the related Mortgaged Property is
located at all times when it held the Mortgage Loan to the extent necessary to
ensure the enforceability of such Mortgage Loan.
(xxv) No Material Default. (A) There exists, to the Seller's
knowledge, no material default, breach or event of acceleration under the
related Mortgage or Mortgage Note, and (B) the Seller has not received actual
notice of any event (other than payments due but not yet delinquent) that, with
the passage of time or with notice and the expiration of any grace or cure
period, would constitute such a material default, breach or event of
acceleration; provided, however, that this representation and warranty does not
cover any default, breach or event of acceleration that specifically pertains
to any matter otherwise covered or addressed by any other representation and
warranty made by the Seller herein.
(xxvi) Adjustable Mortgage Rate. If the Mortgage Loan has an
adjustable Mortgage Rate, all of the terms of the related Mortgage Note
pertaining to interest rate adjustments, payment adjustments and adjustments of
the principal balance are enforceable and such adjustments will not affect the
priority of the lien of the related Mortgage, and all such adjustments and all
calculations made before the Cut-off Date were made correctly and in full
compliance with the terms of the related Mortgage and Mortgage Note.
(xxvii) No Equity Participation or Contingent Interest. The Mortgage
Loan contains no equity participation by the lender, and does not provide for
any contingent or additional interest in the form of participation in the cash
flow of the related Mortgaged Property, or for negative amortization.
(xxviii) No Advances of Funds. No holder of the Mortgage Loan has, to
the Seller's knowledge, advanced funds or induced, solicited or knowingly
received any advance of funds from a party other than the owner of the related
Mortgaged Property, directly or indirectly, for the payment of any amount
required by the Mortgage Loan.
(xxix) Licenses, Permits, Etc. To the Seller's knowledge, based on due
diligence customarily performed in the origination of comparable mortgage loans
by the Seller, as of the date of origination of the Mortgage Loan, the related
Mortgagor or operator of the related Mortgaged Property was in possession of
all material licenses, permits and authorizations required by applicable laws
for the ownership and operation of the related Mortgaged Property as it was
then operated and if a related Mortgaged Property is improved by a skilled
nursing, congregate care or assisted living facility, the most recent
inspection or survey by governmental authorities having jurisdiction in
connection with such licenses, permits and authorizations did
C-5
not cite such Mortgaged Property for material violations (which shall include
only "Level A" (or equivalent) violations in the case of skilled nursing
facilities) that had not been cured or as to which a plan of correction had not
been submitted to and accepted by such governmental authorities.
(xxx) Servicing. The servicing and collection practices used with
respect to the Mortgage Loan have complied with applicable law in all material
respects and are consistent with the servicing standard set forth in Section
8.1 of the Pooling and Servicing Agreement.
(xxxi) Customary Remedies. The related Mortgage or Mortgage Note,
together with applicable state law, contains customary and enforceable
provisions (subject to the exceptions set forth in paragraph (xii)) such as to
render the rights and remedies of the holders thereof adequate for the
practical realization against the related Mortgaged Property of the principal
benefits of the security intended to be provided thereby.
(xxxii) Insurance and Condemnation Proceeds. The related Mortgage
provides that insurance proceeds and condemnation proceeds will be applied
either to restore or repair the Mortgaged Property, or to repay the principal
of the Mortgage Loan or otherwise at the option of the holder of the Mortgage.
(xxxiii) LTV. The gross proceeds of each Mortgage Loan to the related
Mortgagor at origination did not exceed the non-contingent principal amount of
the Mortgage Loan and either: (A) such Mortgage Loan is secured by an interest
in real property having a fair market value (1) at the date the Mortgage Loan
was originated at least equal to 80 percent of the original principal balance
of the Mortgage Loan or (2) at the Closing Date at least equal to 80 percent of
the principal balance of the Mortgage Loan on such date; provided that for
purposes hereof, the fair market value of the real property interest must first
be reduced by (X) the amount of any lien on the real property interest that is
senior to the Mortgage Loan and (Y) a proportionate amount of any lien that is
in parity with the Mortgage Loan (unless such other lien secures a Mortgage
Loan that is cross-collateralized with such Mortgage Loan, in which event the
computation described in clauses (1) and (2) of this paragraph (xxxiii) shall
be made on a pro rata basis in accordance with the fair market values of the
Mortgaged Properties securing such cross-collateralized Mortgage Loans; or (B)
substantially all the proceeds of such Mortgage Loan were used to acquire,
improve or protect the real property which served as the only security for such
Mortgage Loan (other than a recourse feature or other third party credit
enhancement within the meaning of Treasury Regulations Section
1.860G-2(a)(1)(ii)).
(xxxiv) LTV and Significant Modifications. If the Mortgage Loan was
"significantly modified" prior to the Closing Date so as to result in a taxable
exchange under Section 1001 of the Code, it either (A) was modified as a result
of the default or reasonably foreseeable default of such Mortgage Loan or (B)
satisfies the provisions of either clause (A)(1) of paragraph (xxxiii)
(substituting the date of the last such modification for the date the Mortgage
Loan was originated) or clause (A)(2) of paragraph (xxxiii), including the
proviso thereto.
(xxxv) [Intentionally Omitted.]
C-6
(xxxvi) Litigation. To the Seller's actual knowledge, there are no
pending actions, suits or proceedings by or before any court or governmental
authority against or affecting the related Mortgagor or the related Mortgaged
Property that, if determined adversely to such Mortgagor or Mortgaged Property,
would materially and adversely affect the value of the Mortgaged Property or
the ability of the Mortgagor to pay principal, interest or any other amounts
due under such Mortgage Loan.
(xxxvii) Leasehold Estate. Subject to the exceptions set forth on
pages C-11 and C-12 hereto, each Mortgaged Property consists of the related
Mortgagor's fee simple estate in real estate or, if the related Mortgage Loan
is secured in whole or in part by the interest of a Mortgagor as a lessee under
a ground lease of a Mortgaged Property (a "Ground Lease"), by the related
Mortgagor's interest in the Ground Lease but not by the related fee interest in
such Mortgaged Property (the "Fee Interest") or if the Mortgage Loan is secured
in whole or in part by a Ground Lease and a Fee Interest:
(a) To the actual knowledge of the Seller, such Ground Lease or a
memorandum thereof has been or will be duly recorded; such Ground
Lease (or the related estoppel letter or lender protection
agreement between the Seller and related lessor) permits the
interest of the lessee thereunder to be encumbered by the related
Mortgage; and there has been no material change in the payment
terms of such Ground Lease since the origination of the related
Mortgage Loan, with the exception of material changes reflected
in written instruments that are a part of the related Mortgage
File;
(b) The lessee's interest in such Ground Lease is not subject to any
liens or encumbrances superior to, or of equal priority with, the
related Mortgage, other than Permitted Encumbrances;
(c) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser and its successors and assigns upon notice to, but
without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further
assignable by the Purchaser and its successors and assigns upon
notice to, but without the need to obtain the consent of, such
lessor;
(d) Such Ground Lease is in full force and effect, and the Seller has
received no notice that an event of default has occurred
thereunder, and, to the Seller's actual knowledge, there exists
no condition that, but for the passage of time or the giving of
notice, or both, would result in an event of default under the
terms of such Ground Lease;
(e) Such Ground Lease, or an estoppel letter or other agreement,
requires the lessor under such Ground Lease to give notice of any
default by the lessee to the mortgagee, provided that the
mortgagee has provided the lessor
C-7
with notice of its lien in accordance with the provisions of such
Ground Lease, and such Ground Lease, or an estoppel letter or
other agreement, further provides that no notice of termination
given under such Ground Lease is effective against the mortgagee
unless a copy has been delivered to the mortgagee;
(f) A mortgagee is permitted a reasonable opportunity (including,
where necessary, sufficient time to gain possession of the
interest of the lessee under such Ground Lease) to cure any
default under such Ground Lease, which is curable after the
receipt of notice of any such default, before the lessor
thereunder may terminate such Ground Lease;
(g) Such Ground Lease has an original term (including any extension
options set forth therein) which extends not less than ten years
beyond the Stated Maturity Date of the related Mortgage Loan;
(h) Under the terms of such Ground Lease and the related Mortgage,
taken together, any related insurance proceeds other than in
respect of a total or substantially total loss, will be applied
either to the repair or restoration of all or part of the related
Mortgaged Property, with the mortgagee or a trustee appointed by
it having the right to hold and disburse such proceeds as the
repair or restoration progresses (except in such cases where a
provision entitling another party to hold and disburse such
proceeds would not be viewed as commercially unreasonable by a
prudent commercial mortgage lender), or to the payment of the
outstanding principal balance of the Mortgage Loan together with
any accrued interest thereon; and
(i) Such Ground Lease does not impose any restrictions on subletting
which would be viewed, as of the date of origination of the
related Mortgage Loan, as commercially unreasonable by the
Seller; and such Ground Lease contains a covenant that the lessor
thereunder is not permitted, in the absence of an uncured
default, to disturb the possession, interest or quiet enjoyment
of any subtenant of the lessee, or in any manner, which would
adversely affect the security provided by the related Mortgage.
(j) Such Ground Lease requires the lessor to enter into a new lease
in the event of a termination of the Ground Lease by reason of a
default by the Mortgagor under the Ground Lease, including,
rejection of the ground lease in a bankruptcy proceeding.
(xxxviii) Deed of Trust. If the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, is properly
designated and serving under such Mortgage.
(xxxix) Lien Releases. Except in cases where either (a) a release of a
portion of the Mortgaged Property was contemplated at origination of the
Mortgage Loan and such
C-8
portion was not considered material for purposes of underwriting the Mortgage
Loan or (b) release is conditioned upon the satisfaction of certain
underwriting and legal requirements and the payment of a release price, the
related Mortgage Note or Mortgage does not require the holder thereof to
release all or any portion of the Mortgaged Property from the lien of the
related Mortgage except upon payment in full of all amounts due under such
Mortgage Loan.
(xl) Junior Liens. The Mortgage Loan does not permit the related
Mortgaged Property to be encumbered by any lien junior to or of equal priority
with the lien of the related Mortgage without the prior written consent of the
holder thereof or the satisfaction of debt service coverage or similar
conditions specified therein.
(xli) Mortgagor Bankruptcy. To the Seller's knowledge, the Mortgagor
is not a debtor in any state or federal bankruptcy or insolvency proceeding.
(xlii) Due Organization of Mortgagors. As of the date of origination
of each Mortgage, each related Mortgagor which is not a natural person was duly
organized and validly existing under the laws of the state of its jurisdiction.
It is understood and agreed that the representations and warranties
set forth in this Exhibit C shall survive delivery of the respective Mortgage
Files to the Purchaser and/or the Trustee and shall inure to the benefit of the
Purchaser, and its successors and assigns (including without limitation the
Trustee and the holders of the Certificates), notwithstanding any restrictive
or qualified endorsement or assignment.
C-9
SCHEDULE OF EXCEPTION
TO REPRESENTATION (XIV)
(xiv) Environmental Condition. The related Mortgaged Property was subject to
one or more environmental site assessments (or an update of a previously
conducted assessment), which was (were) performed on behalf of the Seller, or
as to which the related report was delivered to the Seller in connection with
its origination or acquisition of such Mortgage Loan; and the Seller, having
made no independent inquiry other than reviewing the resulting report(s) and/or
employing an environmental consultant to perform the assessment(s) referenced
herein, has no knowledge of any material adverse environmental conditions or
circumstances affecting such Mortgaged Property that was not disclosed in the
related report(s). The Seller has not taken any action with respect to such
Mortgage Loan or the related Mortgaged Property that could subject the
Purchaser, or its successors and assigns in respect of the Mortgage Loan, to
any liability under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA") or any other applicable federal, state or
local environmental law, and the Seller has not received any actual notice of a
material violation of CERCLA or any applicable federal, state or local
environmental law with respect to the related Mortgaged Property that was not
disclosed in the related report. The related Mortgage or loan documents in the
related Mortgage file requires the Mortgagor to comply with all applicable
federal, state and local environmental laws and regulations.
Exception for the loans in the Small Loans Program, one of the following was
performed: (i) a complete Phase I environmental site assessment; (ii) a
modified site assessment; (iii) an environmental screening; (iv) a transaction
screening; (v) a database review; (iv) an update of a prior environmental
investigation.
C-10
SCHEDULE OF EXCEPTIONS
TO REPRESENTATION (XXXVII)
(xxxvii) Leasehold Estate. Each Mortgaged Property consists of the
related Mortgagor's fee simple estate in real estate or, if the related
Mortgage Loan is secured in whole or in part by the interest of a Mortgagor as
a lessee under a ground lease of a Mortgaged Property (a "Ground Lease"), by
the related Mortgagor's interest in the Ground Lease but not by the related fee
interest in such Mortgaged Property (the "Fee Interest") or if the Mortgage
Loan is secured in whole or in part by a Ground Lease and a Fee Interest:
(c) The Mortgagor's interest in such Ground Lease is assignable to
the Purchaser and its successors and assigns upon notice to, but
without the consent of, the lessor thereunder (or, if such
consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further
assignable by the Purchaser and its successors and assigns upon
notice to, but without the need to obtain the consent of, such
lessor;
1. C-2 Central Valley Lease is freely assignable to and by any
leasehold mortgagee. Any subsequent assignment requires the
consent of the lessor.
2. C-24 Sunset Mobile Home Park Lease is freely assignable to
and by any leasehold mortgagee. Any subsequent assignment
requires the consent of the lessor.
(i) Such Ground Lease does not impose any restrictions on subletting
which would be viewed, as of the date of origination of the
related Mortgage Loan, as commercially unreasonable by the
Seller; and such Ground Lease contains a covenant that the lessor
thereunder is not permitted in the absence of an uncured default,
to disturb the possession, interest or quiet enjoyment of any
subtenant of the lessee, or in any manner, which would adversely
affect the security provided by the related Mortgage.
1. C-2 Sunset Mobile Home Park Subletting not permitted without
the consent of the landlord. No express covenant as to quiet
enjoyment.
2. C-39 ▇▇▇▇▇ ▇▇▇▇▇ Station Plaza No express covenant as to
quiet enjoyment.
3. C-51 Glad Business No express covenant regarding quiet
enjoyment as to subtenants.
C-11
4. C-90 Store and Lock No express covenant as to quiet
enjoyment.
5. C-1 Central Valley No express covenant regarding quiet
enjoyment as to subtenants.
▇-▇▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
Certificate of Officer of ContiTrade Services L.L.C. ("▇▇▇▇▇")
I, _________________, a _________________ of ▇▇▇▇▇ (the "Seller"),
hereby certify as follows:
The Seller is a limited liability company duly organized and validly
existing under the laws of the State of Delaware.
Attached hereto as Exhibit I are true and correct copies of the
Certificate of Formation and Limited Liability Company Agreement of the Seller,
which Certificate of Formation and Limited Liability Company Agreement are on
the date hereof, and have been at all times in full force and effect.
To the best of my knowledge, no proceedings looking toward liquidation
or dissolution of the Seller are pending or contemplated.
Each person listed below is and has been the duly elected and
qualified officer or authorized signatory of the Seller and his genuine
signature is set forth opposite his name:
Name Office Signature
--------------------- ------------------------ ------------------------
--------------------- ------------------------ ------------------------
Each person listed above who signed, either manually or by facsimile
signature, the Mortgage Loan Purchase Agreement, dated as of September 25, 1997
(the "Purchase Agreement"), between the Seller and GMAC Commercial Mortgage
Securities, Inc. providing for the purchase by GMAC Commercial Mortgage
Securities, Inc. from the Seller of the Mortgage Loans, was, at the respective
times of such signing and delivery, duly authorized or appointed to execute
such documents in such capacity, and the signatures of such persons or
facsimiles thereof appearing on such documents are their genuine signatures.
Capitalized terms not otherwise defined herein have the meanings
assigned to them in the Purchase Agreement.
D-1-1
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of _______ __, 1996.
By:
-------------------------------
Name:
Title:
I, [name], [title], hereby certify that ________________ is a duly
elected or appointed, as the case may be, qualified and acting ______________
of the Seller and that the signatures appearing above is her genuine
signatures.
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of _______ __, 1997.
By:
-------------------------------
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CERTIFICATE OF THE SELLER
Certificate of ContiTrade Services L.L.C.
In connection with the execution and delivery by ContiTrade Services
L.L.C. (the "Seller") of, and the consummation of the transaction contemplated
by, that certain Mortgage Loan Purchase Agreement, dated as of September 25,
1997 (the "Purchase Agreement"), between GMAC Commercial Mortgage Securities,
Inc. and the Seller, the Seller hereby certifies that (i) the representations
and warranties of the Seller in the Purchase Agreement are true and correct in
all material respects at and as of the date hereof with the same effect as if
made on the date hereof, and (ii) the Seller has, in all material respects,
complied with all the agreements and satisfied all the conditions on its part
to be performed or satisfied at or prior to the date hereof. Capitalized terms
not otherwise defined herein have the meanings assigned to them in the Purchase
Agreement.
Certified this ___st day of _______, 1997.
CONTITRADE SERVICES L.L.C.
By:
-------------------------------
Name:
Title:
D-2-1
EXHIBIT D-3A
FORM OF OPINION I OF COUNSEL TO THE SELLER
September 30, 1997
[GMAC Commercial Mortgage Securities, Inc.]
[Underwriters]
[Rating Agencies]
[Trustee]
[Fiscal Agent]
Re: GMAC Commercial Mortgage Corporation,
Mortgage Pass-Through Certificates, Series 1997-C1
Ladies and Gentlemen:
I am Counsel to ContiTrade Services L.L.C. (the "Seller"). In that
capacity, I am familiar with the issuance of certain Mortgage Pass-Through
Certificates, Series 1997-C1 (the "Certificates"), evidencing undivided
interests in a trust fund (the "Trust Fund") consisting primarily of certain
mortgage loans (the "Mortgage Loans"), pursuant to a Pooling and Servicing
Agreement, dated as of September 1, 1997 (the "Pooling and Servicing
Agreement"), among GMAC Commercial Mortgage Securities, Inc. as depositor (the
"Depositor"), GMAC Commercial Mortgage Corporation ("GMACCM") as master
servicer and special servicer, LaSalle National Bank as trustee (the "Trustee")
and ABN AMRO Bank, N.V. as fiscal agent.
Certain of the Mortgage Loans were purchased by the Depositor from
ContiTrade Services L.L.C., pursuant to, and for the consideration described
in, the Mortgage Loan Purchase Agreement, dated as of September 25, 1997 (the
"▇▇▇▇▇ Mortgage Loan Purchase Agreement"), between ▇▇▇▇▇ and the Depositor.
Certain of the Mortgage Loans were purchased by the Depositor from the GMACCM,
pursuant to, and for the consideration described in, the Mortgage Loan Purchase
Agreement, dated as of September 25, 1997 (the "GMACCM Mortgage Loan Purchase
Agreement"), between the Depositor and GMACCM. Certain of the Mortgage Loans
were purchased by the Depositor from German American Capital Corporation
("GACC"), pursuant to, and for the consideration described in, the Mortgage
Loan Purchase Agreement, dated as of September 25, 1997 (the "GACC Mortgage
Loan Purchase Agreement"), between GACC and the Depositor. Certain of the
obligations of the Seller under the ▇▇▇▇▇ Mortgage Loan Purchase Agreement are
guaranteed by ContiFinancial Corporation (the "Guarantor") pursuant to the
Guaranty Agreement, dated September 25, 1997, in favor of the Depositor and
certain other parties
D-3A-1
(the "Guaranty Agreement"). The ▇▇▇▇▇ Mortgage Loan Purchase Agreement and the
Guaranty Agreement are referred to herein together as the "Agreements".
Capitalized terms not defined herein have the meanings set forth in the Pooling
and Servicing Agreement and the Agreements. This opinion is rendered pursuant
to Section 8(e) of the ▇▇▇▇▇ Mortgage Loan Purchase Agreement.
The Depositor has sold the Class X, Class A-1, Class A-2, Class A-3,
Class B, Class C, Class D, Class E and Class F Certificates (collectively, the
"Publicly Offered Certificates") to the underwriters pursuant to the
Underwriting Agreement, dated as of September 25, 1997 (the "Underwriting
Agreement"), among the Depositor, GMACCM, and the representatives named
therein, and sold the Class G, Class H, Class J, Class K, Class R-I, Class R-II
and Class R-III Certificates (collectively, the "Privately Offered
Certificates") to each of Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. and ▇▇▇▇▇▇ Brothers
Inc. as initial purchasers pursuant to the Certificate Purchase Agreement,
dated as of September 25, 1997 (the "Certificate Purchase Agreement"), among
the Depositor, GMACCM and the initial purchasers.
In connection with rendering this opinion letter, I have examined or
have caused persons under my supervision to examine the Agreements and such
other records and other documents as I have deemed necessary. I have further
assumed that there is not and will not be any other agreement that materially
supplements or otherwise modifies the agreements expressed in the Agreements.
As to matters of fact, I have examined and relied upon representations of
parties contained in the Agreements and, where I have deemed appropriate,
representations and certifications of officers of the Depositor, the Seller,
the Guarantor, the Trustee, other transaction participants or public officials.
I have assumed the authenticity of all documents submitted to me as originals,
the genuineness of all signatures other than officers of the Seller and the
Guarantor and the conformity to the originals of all documents submitted to me
as copies. I have assumed that all parties, except for the Seller and the
Guarantor, had the corporate power and authority to enter into and perform all
obligations thereunder. As to such parties, I also have assumed the due
authorization by all requisite corporate action, the due execution and delivery
and the enforceability of such documents. I have further assumed the conformity
of the Mortgage Loans and related documents to the requirements of the
Agreements.
In rendering this opinion letter, I do not express any opinion
concerning any law other than the law of the State of New York, the Limited
Liability Company Act of the State of Delaware and the federal law of the
United States, and I do not express any opinion concerning the application of
the "doing business" laws or the securities laws of any jurisdiction other than
the federal securities laws of the United States. To the extent that any of the
matters upon which I am opining herein are governed by laws ("Other Laws")
other than the laws identified in the preceding sentence, I have assumed with
your permission and without independent verification or investigation as to the
reasonableness of such assumption, that such Other Laws and judicial
interpretation thereof do not vary in any respect material to this opinion from
the corresponding laws of the State of New York and judicial interpretations
thereof. I do not express any opinion on any issue not expressly addressed
below.
Based upon the foregoing, I am of the opinion that:
D-3A-2
1. Each of the Seller and the Guarantor is duly incorporated and is
validly existing as a limited liability company and corporation,
respectively, in good standing under the laws of the State of
Delaware, and has the requisite power and authority, corporate or
other, to own its properties and conduct its business, as presently
conducted by it, and to enter into and perform its obligations under
the Agreements.
2. Each of the Agreements has been duly and validly authorized,
executed and delivered by each of the Seller and the Guarantor and,
upon due authorization, execution and delivery by the other parties
thereto, will constitute the valid, legal and binding agreements of
the Seller and the Guarantor, as applicable, enforceable against the
Seller and the Guarantor, as applicable, in accordance with their
terms, except as enforceability may be limited by (i) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization or
other similar laws affecting the rights of creditors, (ii) general
principles of equity, whether enforcement is sought in a proceeding
in equity or at law, and (iii) public policy considerations
underlying the securities laws, to the extent that such public
policy considerations limit the enforceability of the provisions of
the Agreements which purport to provide indemnification with respect
to securities law violations.
3. No consent, approval, authorization or order or federal court or
governmental agency or body is required for the consummation by the
Seller and the Guarantor of the transactions contemplated by the
terms of the Agreements, except for those consents, approvals,
authorizations or orders which previously have been obtained.
4. Neither the consummation of any of the transactions contemplated by,
nor the fulfillment by the Seller or the Guarantor of any other of
the terms of, the Agreements, will result in a material breach of
any term or provision of the charter or bylaws of the Seller or
Guarantor or any state or federal statute or regulation or conflict
with, result in a material breach, violation or acceleration of or
constitute a material default under the terms of any indenture or
other material agreement or instrument to which the Seller and
Guarantor, as applicable, is a party or by which it is bound or any
order or regulation of any state or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over
the Seller or Guarantor.
This opinion letter is rendered for the sole benefit of each
addressee hereof, and no other person or entity is entitled to rely hereon
without my prior written consent. Copies of this opinion letter may not be
furnished to any other person or entity, nor may any portion of this opinion
letter be quoted, circulated or referred to in any other document without my
prior written consent.
Very truly yours,
D-3A-3
EXHIBIT D-3B
FORM OF OPINION II OF COUNSEL TO THE SELLER
September 30, 1997
[GMAC Commercial Mortgage Corporation]
[GMAC Commercial Mortgage Securities, Inc.]
[Underwriters]
Re: GMAC Commercial Mortgage Corporation,
Mortgage Pass-Through Certificates, Series 1997-C1
Ladies and Gentlemen:
This opinion is being provided to you by the undersigned, as special
counsel to ContiTrade Services L.L.C. ("▇▇▇▇▇"), pursuant to Section 8(e) of
the Mortgage Loan Purchase Agreement, dated September 25, 1997 (the "▇▇▇▇▇
Mortgage Loan Purchase Agreement"), between GMAC Commercial Mortgage
Securities, Inc. (the "Purchaser") and ▇▇▇▇▇ as the Seller, (in such capacity
the "Seller"), relating to the sale by the Seller of certain mortgage loans
(the "Mortgage Loans"), and pursuant to Section 6.11 of the Underwriting
Agreement, dated as of September 25, 1997, between the Purchaser, Deutsche
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ Brothers Inc., relating to that certain Pooling and
Servicing Agreement, dated as of September 1, 1997, among GMAC Commercial
Mortgage Corporation ("GMACCM") as special servicer and master servicer (in
such respective capacities, the "Special Servicer" and the "Master Servicer"),
Purchaser, LaSalle National Bank, as trustee, and ABN AMRO Bank, N.V., as
fiscal agent, (the "Pooling and Servicing Agreement" and together with the
▇▇▇▇▇ Mortgage Loan Purchase Agreement, the "Agreements"). Capitalized terms
not otherwise defined herein have the meanings assigned to them in the
Agreements.
In rendering this opinion, we have examined and relied upon executed
copies of the Agreements and originals or copies, certified or otherwise
identified to our satisfaction, of such certificates and other documents as we
have deemed appropriate for the purposes of rendering this opinion. We have
examined and relied upon, among other things, the documents and opinions
delivered to you at the closing being held today relating to the Certificates,
as well as (a) the Prospectus and the Memorandum, (b) an executed copy of the
▇▇▇▇▇ Mortgage Loan Purchase Agreement, and (c) an executed copy of the Pooling
and Servicing Agreement.
D-3B-1
We are members of the bar of the State of New York and do not
purport to be experts on or to express any opinion herein concerning any laws
other than the laws of the State of New York and the federal laws of the United
States of America. We express no opinion herein as to the laws of any other
jurisdiction.
We have not ourselves checked the accuracy or completeness of, or
otherwise independently verified, the information furnished with respect to the
Prospectus or the Memorandum. In addition, as you are aware, we did not examine
or review the Mortgage Files. However, in the course of the preparation by the
Purchaser of the Prospectus and the Memorandum, we have participated in
conferences with certain officers of the Seller, the Purchaser, counsel to the
Purchaser and your representatives, during which the contents of the Prospectus
and the Memorandum and related matters were discussed. On the basis of the
discussions referred to above, although we are not passing upon, and do not
assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Prospectus and the Memorandum, and without
independent check or verification except as stated, no facts have come to our
attention that have caused us to believe that either the Prospectus or the
Memorandum (other than financial and statistical data included or not included
therein or incorporated by reference therein, as to which we express no
opinion), as of its issue date, contained any untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
Whenever our opinion with respect to the existence or absence of
facts is indicated to be based on our knowledge or awareness, we are referring
to the actual knowledge of the [Insert Name of Counsel to Seller] attorneys who
have represented you in connection with the transactions contemplated by the
Agreements. Except as expressly set forth herein, we have not undertaken any
independent investigation to determine the existence or absence of such facts
and no inference as to our knowledge concerning such facts should be drawn from
the fact that such representation has been undertaken by us.
This letter is limited to the specific issues addressed herein and
the opinion rendered above is limited in all respects to laws and facts
existing on the date hereof. By rendering this opinion, we do not undertake to
advise you with respect to any other matter or of any change in such laws or
facts or in the interpretations of such laws which may occur after the date
hereof.
We are furnishing this opinion to you solely for your benefit. This
opinion is not to be used, circulated, quoted or otherwise referred to for any
other purpose, except that the persons listed on Exhibit A hereto may rely upon
this opinion in connection with their rating of the Certificates to the same
extent as if this opinion had been addressed to them.
Very truly yours,
D-3B-2
EXHIBIT E
FORM OF GUARANTY AGREEMENT
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CONTIFINANCIAL CORPORATION
Guarantor
in favor of
GMAC COMMERCIAL MORTGAGE SECURITIES, INC.
AND CERTAIN OTHERS
-----------------------
GUARANTY AGREEMENT
Dated September 25, 1997
-----------------------
-------------------------------------------------------------------------------
E-1
Guaranty Agreement (this "Agreement"), dated September 25, 1997, from
ContiFinancial Corporation, a Delaware corporation (the "Guarantor") in favor
of GMAC Commercial Mortgage Securities, Inc. ("GMAC-CMS"), and all additional
persons and entities entitled to indemnification under Section 9 of the
Mortgage Loan Purchase Agreement, dated as of the date hereof (the "Purchase
Agreement"), between GMAC-CMS as purchaser and ContiTrade Services L.L.C. as
seller (such additional persons and entities, the "Other Beneficiaries").
GMAC-CMS requires, as an inducement and a condition precedent to its
entering into the Purchase Agreement with ContiTrade Services L.L.C. (the
"Seller") that the Guarantor guarantees certain of the obligations of the
Seller under the Purchase Agreement. The Guarantor desires that GMAC-CMS enter
into the Purchase Agreement and is willing to enter into this Agreement in
order to induce GMAC-CMS to do so. The Seller is an indirectly wholly-owned
subsidiary of the Guarantor. Capitalized terms used but not otherwise defined
herein shall have the respective meanings ascribed to such terms in the
Purchase Agreement.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Guarantor agrees
as follows:
ARTICLE I
GUARANTEED OBLIGATIONS
Section 1.1 Obligations Guaranteed. The Guarantor hereby guarantees to
GMAC-CMS and the Other Beneficiaries (a) the timely purchase or replacement of
any Mortgage Loans which the Seller is obligated to repurchase or replace
pursuant to Section 6 of the Purchase Agreement and fails to do so in
accordance therewith, (b) the due and punctual payment, observance and
performance of any and all of the obligations of the Seller, pursuant to
Section 9 of the Purchase Agreement, if the Seller fails to pay or perform as
required thereunder, and (c) the timely payment of costs, expenses (including,
without limitation, expenses of enforcement pursuant to Section 6(d) of the
Purchase Agreement), if the Seller fails to pay as required under the Purchase
Agreement (the "Obligations"), each Obligation as subject to any extensions or
waivers agreed to in writing by GMAC-CMS or, to the extent appropriate, any of
the Other Beneficiaries; provided that, notwithstanding anything herein to the
contrary, in no event shall the Guarantor guaranty or otherwise be responsible
for any Obligation to the extent (but only to the extent) that it has been
amended, rescinded, waived, modified or in any way altered, unless and until
such amendment, rescission, waiver or alteration has been consented to in
writing by the Guarantor after notice to the Guarantor by the Seller. It is
herein acknowledged that no Obligation under the Purchase Agreement may be
amended, rescinded, waived, modified or in any way altered except by writing
signed by GMAC-CMS and the Seller.
Section 1.2 Nature of the Guaranteed Obligations. (a) The Guarantor
further agrees that this Agreement constitutes an absolute, unconditional,
irrevocable, present and continuing guaranty of performance and payment and not
of collection. The Guarantor's obligations
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hereunder (the "Guaranty Obligations") are primary, direct, unconditional and
completely independent of the obligations of any other person or entity, and
are primary direct obligations of the Guarantor to GMAC-CMS and the Other
Beneficiaries.
(b) If any payment by the Seller to GMAC-CMS or any Other Beneficiary
with respect to any Obligation is rescinded or must be returned by GMAC-CMS or
such Other Beneficiary for any reason (including, without limitation, the entry
of any order under any present or future federal or state bankruptcy,
insolvency or similar laws) the obligations of the Guarantor hereunder shall be
reinstated with respect to such payment, subject to the proviso to Section 1.3.
(c) Neither GMAC-CMS nor the Other Beneficiaries shall have a duty to
advise the Guarantor of information known to it regarding any such conditions
or circumstances described in Section 1.2(b).
Section 1.3 Obligations of Guarantor Unconditional. The Guaranty
Obligations shall remain in full force and effect until both (a) satisfaction
or performance thereof in full, and (b) the obligations of the Seller under the
Purchase Agreement are paid, observed, performed and satisfied in full. The
Guarantor guarantees and agrees that the Obligations will be satisfied in
accordance with the terms thereof. The liability of the Guarantor under this
Agreement shall be absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of the Purchase
Agreement;
(b) the failure of GMAC-CMS or any Other Beneficiary (i) to assert any
claim or demand not expressly required under the terms of the Purchase
Agreement or to enforce any right or remedy against the Seller under the
Purchase Agreement, or (ii) to exercise any right or remedy against any
other guarantor of, or collateral securing, any of the Obligations;
(c) subject to the proviso to Section 1.1, any reduction, limitation,
impairment or termination of any of the obligations of the Seller under the
Purchase Agreement for any reason, including any claim of waiver, release,
surrender, alteration or compromise by reason of the invalidity,
illegality, non-genuineness, irregularity, compromise or unenforceability
of, or any other event or occurrence affecting, such obligations, except as
expressly set forth in the Purchase Agreement;
(d) subject to the proviso to Section 1.1, any amendment to,
rescission, waiver, or other modification of, or any consent to or
departure from, any of the terms of the Purchase Agreement; and
(e) any other circumstance which might otherwise constitute a defense
to or a discharge of the Seller of its obligations under the Purchase
Agreement based upon the bankruptcy or insolvency of the Seller;
E-3
provided that, notwithstanding anything to the contrary contained herein, the
Guarantor shall not be required to make a payment hereunder pursuant to the
Guaranty Obligations to the extent that there exists a valid defense, set-off,
discharge, right of release or equitable right of limitation on liability under
the Purchase Agreement to which the Seller is rightfully entitled and that does
not arise out of the bankruptcy or insolvency of the Seller.
Section 1.4 Certain Waivers of the Guarantor. The Guarantor hereby
waives:
(a) promptness, diligence, notice of acceptance and any other notice
with respect to any of the Obligations and this Agreement, except notices
to the Guarantor specifically provided in this Agreement, and (b) any
requirement that GMAC-CMS or any Other Beneficiary secure, perfect or
insure any security interest or exhaust any right or take any action
against the Guarantor, the Seller or any other person or entity (including,
without limitation, any other obligor or guarantor) or any collateral
securing the Obligations.
Section 1.5 Remedies and Waivers. No remedy herein conferred upon or
reserved to GMAC-CMS or any Other Beneficiary is intended to be exclusive of
any other available remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. No
waiver of any of the provisions of this Agreement (a) shall be valid unless
evidenced by a writing executed by each party to be bound thereby, (b) shall be
deemed to or shall constitute a waiver of any other provision of this Agreement
or any provisions of the Purchase Agreement (whether or not similar), or (c)
shall constitute a continuing waiver unless otherwise expressly provided. No
delay on the part of GMAC-CMS or any Other Beneficiary in exercising any right
or remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any power or right preclude other or further exercise
thereof or the exercise of any other right or remedy. No notice to or demand on
the Guarantor in any case shall entitle it to any other or further notice or
demand in the same or similar circumstances except to the extent expressly
required by the Purchase Agreement.
Section 1.6 No Set-off by Guarantor. No set-off, abatement,
recoupment, counterclaim, reduction or diminution of a Guaranty Obligation, or
any defense of any kind or nature which the Guarantor has or may have with
respect to a Guaranty Obligation (other than the complete fulfillment,
performance or satisfaction of such Guaranty Obligation) shall be available
hereunder to the Guarantor against GMAC-CMS or any Other Beneficiary; provided,
however, that the Guarantor shall be entitled to, except to the extent it
arises out of the bankruptcy or insolvency of the Seller, any right of set-off,
abatement, recoupment, counterclaim, reduction or diminution of any Obligation
or any equitable defense of any kind or nature which the Seller has or may have
with respect to any Obligation.
Section 1.7 Binding Nature of Certain Adjudications. The Guarantor
shall be conclusively bound by the final non-appealable adjudication in any
action or proceeding, legal or otherwise, involving any controversy arising
under, in connection with, or in any way relating
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to, any of the Obligations, and by a final judgment, award or decree entered
therein, provided, in any case, that the Guarantor shall have had the right, or
shall have been given the opportunity, to participate in such action or
proceeding and shall have been given written notice of such action or
proceeding in time to exercise such right or avail itself of such opportunity.
Section 1.8 Costs. The Guarantor agrees to indemnify GMAC-CMS and each
of the Other Beneficiaries for, and shall pay, all costs, expenses and fees,
including all reasonable attorneys' fees and expenses, which may be incurred by
GMAC-CMS and each of the Other Beneficiaries in enforcing or attempting to
enforce a valid claim under this Agreement following any default on the part of
the Guarantor hereunder, whether the same shall be enforced by suit or
otherwise.
Section 1.9 Interest. If the Guarantor shall fail to make any payment
due hereunder when due in immediately available funds, the Guarantor shall pay
interest on the amount of such payment from and including the date due to the
date of payment at an annual rate equal to two percentage points above the
"Federal funds effective rate" as published on Reuters Screen 118, as such
"Federal funds effective rate" may change from time to time.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
Section 2.1 Representations and Warranties of the Guarantor. The
Guarantor represents and warrants that:
(a) The Guarantor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The Guarantor has
the full power and authority, corporate or otherwise, to guaranty the
Obligations and has the power, authority, franchises and licenses (i) to own
its properties and assets and to carry on and conduct its business and (ii) to
execute, enter into and deliver this Agreement and to perform all of its
obligations hereunder. The execution, delivery and performance of this
Agreement by the Guarantor have been duly authorized by all necessary
corporate, shareholder or other action, and this Agreement has been duly and
validly executed and delivered by the Guarantor and is legal, valid and binding
on and enforceable against the Guarantor in accordance with its terms except as
such enforceability may be subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general principles of
equity. Any requisite consents of third parties to the execution and delivery
of this Agreement and the performance of the obligations or transactions
contemplated hereby have been obtained.
(b) Neither the execution or delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, nor the compliance with
or performance of the terms and conditions of this Agreement by the Guarantor
is prevented by, limited by, conflicts with or will result in a breach or
violation of or a default under the terms, conditions or provisions of (i) its
certificate of incorporation or by-laws, (ii) any material mortgage, security
agreement, indenture, loan agreement or other agreement or instrument to which
the Guarantor is a party or by which
E-5
it is bound or (iii) any provision of law, any order of any court or
administrative agency or any rule or regulation applicable to the Guarantor or
its business. As of the date hereof, the Guarantor is not in default under or
in violation of any of its material obligations under any material contract,
agreement or undertaking to which it is a party or by which it is bound.
(c) As of the date hereof, there is no action, proceeding or
investigation pending with regard to which the Guarantor has received service
of process or, to the Guarantor's knowledge, threatened against the Guarantor
before any court or administrative agency that, in the reasonable and good
faith judgment of the Guarantor, may (i) materially and adversely affect the
ability of the Guarantor to perform its obligations under this Agreement, (ii)
result in any material adverse change in the business, properties, assets or
financial condition of the Guarantor, or (iii) adversely affect the
enforceability of this Agreement.
(d) As of the date hereof, the Guarantor is the owner, directly or
indirectly, of 100% of the issued and outstanding membership interests of the
Seller.
ARTICLE III
MISCELLANEOUS
Section 3.1 Obligations Arise on Delivery of the Mortgage Loans. The
Guaranty Obligations hereunder shall arise absolutely and unconditionally
effective as of the Closing Date or, insofar as the Guaranty Obligations relate
to Section 9 of the Purchase Agreement, effective as of the date hereof.
Section 3.2 Survival. All warranties, representations, covenants and
obligations made by the Guarantor herein shall be deemed to have been relied
upon by GMAC-CMS and shall survive the delivery to GMAC-CMS of this Agreement
regardless of any investigation made by or on behalf of GMAC-CMS or any of the
Other Beneficiaries, until such time as the Obligations shall have been
discharged pursuant to the Purchase Agreement and the Guaranty Obligations
shall have been discharged pursuant to this Agreement.
Section 3.3 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the Guarantor, GMAC-CMS and the Other
Beneficiaries and upon the respective successors, assigns, estates, heirs,
executors and administrators of the Guarantor, GMAC-CMS and the Other
Beneficiaries; provided that neither GMAC-CMS nor any of the Other
Beneficiaries may assign its rights hereunder except to an affiliate of the
assignor or as contemplated by the following sentence; and provided, further,
that the Guarantor may not assign or delegate any of its obligations hereunder
without the prior written consent of GMAC CMS and the Other Beneficiaries, or
their respective successors and assigns, which consent shall not be
unreasonably withheld. If GMAC-CMS assigns any of its rights under the Purchase
Agreement in respect of the Obligations in accordance with the Purchase
Agreement, then GMAC-CMS may also assign to the same party its rights hereunder
in respect of the corresponding Guaranty Obligations. In addition, any entity
into which the Guarantor, GMAC-CMS or any Other Beneficiary may be merged or
consolidated, or any entity resulting from any
E-6
merger, conversion or consolidation to which the Guarantor, GMAC-CMS or any
Other Beneficiary is a party, or any person succeeding to all or substantially
all of the business of the Guarantor, GMAC-CMS or any Other Beneficiary, shall
be the successor hereunder to the Guarantor, GMAC-CMS or such Other
Beneficiary, as the case may be, hereunder.
Section 3.4 Notices. All notices, certificates, demands or other
communications hereunder shall be sufficiently given and shall be deemed given
when mailed by registered or certified mail, return receipt requested, postage
prepaid, addressed as follows: (a) if to the Guarantor, addressed to
ContiFinancial Corporation at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Chief Counsel, (b) if to GMAC-CMS, addressed to GMAC Commercial
Mortgage Securities, Inc. at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ 8015, Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, (with a copy to the
General Counsel at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
19044-8015).
The Guarantor and GMAC-CMS may, by notice given hereunder, designate
any further or different addresses to which subsequent notices, certificates,
demands or communications shall be sent.
Section 3.5 Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior and contemporaneous agreements,
understandings, negotiations and discussions, whether oral or written, of the
parties with respect to the subject matter hereof except as specifically set
forth or incorporated herein.
Section 3.6 Amendments, Changes and Modifications. This Agreement may
not be amended, changed, modified, altered, released or terminated without the
written consent of the Guarantor, GMAC-CMS and the Other Beneficiaries, or
their respective successors and assigns.
Section 3.7 Severability. The invalidity or unenforceability of any
one or more phrases, sentences, paragraphs or Sections in this Agreement shall
not affect the validity or enforceability of the remaining portions of this
Agreement or any part thereof.
Section 3.8 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE GUARANTOR HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES EXCEPT THAT THE PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
Section 3.9 Counterparts. This Agreement may be executed in several
counterparts, each of which counterparts shall be an original and all of which
together shall constitute but one and the same instrument.
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Section 3.10 Headings; Interpretation. Section and paragraph headings
are not to be considered part of this Agreement, are included solely for
convenience and are not intended to be full or accurate descriptions of the
contents thereof. Sections and paragraphs mentioned by number only are the
respective sections and paragraphs of this Agreement. The use of the terms
"herein", "hereunder", "hereof", and like terms shall be deemed to refer to
this entire Agreement and not merely to the particular provision in which the
term is contained, unless the context clearly indicates otherwise.
▇-▇
▇-▇
IN WITNESS WHEREOF, the Guarantor has caused this Agreement to be duly
executed and delivered,on the date first above written.
CONTIFINANCIAL CORPORATION
By:
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Name:
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Title:
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By:
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Name:
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Title:
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