Exhibit 99.1B
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement (this "Agreement"), is dated and
effective as of March 20, 1997, between ContiTrade Services L.L.C. as seller
(the "Seller") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I 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 (the "Other 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 Duff &
▇▇▇▇▇▇ Credit Rating Co. and/or ▇▇▇▇▇'▇ Investors Service 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 March
1, 1997 (the "Pooling and Servicing Agreement"), among the Purchaser as
depositor, the GMAC Commercial Mortgage Corporation as master servicer (in such
capacity, the "Master Servicer") and as special servicer (in such capacity, the
"Special Servicer"), LaSalle National Bank as trustee (the "Trustee") and ABN
AMRO Bank N.V. as fiscal agent (the "Fiscal Agent"). Capitalized terms not
otherwise defined herein, including without limitation in the Exhibits hereto,
have the meanings assigned to them in the Pooling and Servicing Agreement.
The Purchaser intends to sell the Registered Certificates to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated (the "Underwriter") pursuant to an underwriting agreement
dated the date hereof (the "Underwriting Agreement"), among the Purchaser and
the Underwriter. The Purchaser intends to sell the remaining Certificates (the
"Non-Registered Certificates") to the Underwriter pursuant to a certificate
purchase agreement dated the date hereof (the "Certificate Purchase Agreement"),
between the Purchaser and the Underwriter.
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 March 26, 1997 or
such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). As of the close of business on
March 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 $220,440,403, subject to a variance of plus or minus 5.0%. The
purchase price (the "Aggregate Purchase Price") for the Mortgage Loans shall be
the dollar amount as set forth in that certain "Flow of Funds" dated as of March
20, 1997, which dollar amount was determined in conformity with the terms of
that certain Letter of Understanding dated February 6, 1997 (the "Letter of
Understanding"), among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., GMAC Commercial
Mortgage Corporation and ContiFinancial. The Aggregate Purchase Price shall be
paid to the Seller by wire transfer of immediately available funds.
SECTION 2. CONVEYANCE OF MORTGAGE LOANS.
(a) Effective as of the Closing Date, subject only to receipt by the Seller
of the Aggregate Purchase Price for the Mortgage Loans referred to in Section 1
hereof, 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 or any subsequent owner of the related Mortgage
Loans, including without limitation the Trustee) 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 shall on or before the Closing Date deliver to and deposit
with, or cause to be delivered to and deposited with, the Trustee (with a copy
to the Master Servicer) the Mortgage File (as described on Exhibit B hereto) for
each Mortgage Loan so assigned. If the Seller cannot so 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 (if appropriate) evidence of recording or filing,
as the case may be, 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, 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 the Seller has delivered to the Trustee on or before the Closing Date a
copy of such document or instrument (without evidence of recording or filing
thereon, but certified (which certificate
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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), 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 of such missing document or instrument (or a copy thereof) with (if
appropriate) evidence of recording or filing, as the case may be, thereon. If
the Seller cannot so 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 on or before the Closing Date 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.
(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 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 will, as of the Closing Date, act
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 will, as of the
Closing Date, act on behalf of the Master Servicer with respect to any
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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 and any other due diligence with respect to the
Mortgage Loans 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 or any other
due diligence with respect to the Mortgage Loans shall not affect the right of
the Purchaser or any of its successors and assigns (including without limitation
the Trustee) 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 date hereof and 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 and as of the Closing
Date, 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. The
Seller has the requisite power and authority and legal right to own the
Mortgage Loans and to transfer and convey the Mortgage Loans to the
Purchaser and has the requisite power and authority and legal right to
execute and deliver, engage in the transactions contemplated by, and
perform and observe the terms and conditions of, this Agreement.
(ii) This Agreement has been duly and validly authorized, executed and
delivered by the Seller, all requisite action by the Seller has been taken
in connection therewith, and (assuming the due authorization, execution and
delivery hereof by the Purchaser) this Agreement constitutes the valid,
legal and binding agreement of the Seller, enforceable against the Seller
in accordance with its terms, except as such enforcement may be
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limited by (A) laws relating to bankruptcy, insolvency, reorganization,
receivership or moratorium, (B) other laws relating to or affecting the
rights of creditors generally, (C) general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law)
or (D) 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
from liabilities under applicable securities laws.
(iii) 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, 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.
(iv) Neither the transfer of the Mortgage Loans to the Purchaser, nor
the execution, delivery or performance of this Agreement by the Seller,
conflicts or will conflict with, results or will result in a breach of, or
constitutes or will constitute a default under (A) any term or provision of
the Seller's organizational documents, (B) any term or provision of any
material agreement, contract, instrument or indenture, to which the Seller
is a party or which may be applicable to the Seller or any of its assets,
or (C) any law, rule, regulation, order, judgment, writ, injunction or
decree of any court or governmental authority having jurisdiction over the
Seller or its assets.
(v) Any financial statements delivered by the Seller to the Purchaser
fairly present the pertinent results of operations and changes in financial
position for each of the periods covered thereby and the financial position
at the end of each such period of the Seller (or, if applicable, of the
Seller, its parent and any other affiliates covered thereby on a
consolidated basis) and have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as set forth in the notes thereto.
(vi) There has been no change in the business, operations, financial
condition, properties or assets of the Seller since the date of the most
recent financial statements of the Seller (or, if applicable, of the
Seller, its parent and any other affiliates covered thereby on a
consolidated basis) delivered to the Purchaser that could have a material
and adverse effect on the ability of the Seller to perform its obligations
under this Agreement.
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(vii) Any financial statements delivered by the Guarantor (as defined
in Section 8) to the Purchaser fairly present the pertinent results of
operations and changes in financial position for each of the periods
covered thereby and the financial position at the end of each such period
of the Guarantor (or, if applicable, of the Guarantor, its parent and any
other affiliates covered thereby on a consolidated basis) and have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as set forth
in the notes thereto.
(viii) There has been no change in the business, operations, financial
condition, properties or assets of the Guarantor since the date of the most
recent financial statements of the Guarantor (or, if applicable, of the
Guarantor, its parent and any other affiliates covered thereby on a
consolidated basis) delivered to the Purchaser that could have a material
and adverse effect on the ability of the Guarantor to perform its
obligations under the Guaranty Agreement (as defined in Section 8).
(ix) There are no actions or proceedings against, or investigations
of, the Seller pending or, to the Seller's knowledge, threatened against
the Seller before any court, administrative agency or other tribunal, the
outcome of which could reasonably be expected to adversely affect the
transfer of the Mortgage Loans to the Purchaser or the execution or
delivery by, or enforceability against, the Seller of this Agreement or to
have an effect on the financial condition of the Seller that would
materially and adversely affect the ability of the Seller to perform its
obligations under this Agreement.
(x) No certificate, statement, report or other information furnished
in writing by the Seller to the Purchaser, any affiliate of the Purchaser
or a Rating Agency for use in connection with the purchase of the Mortgage
Loans and the transactions contemplated hereunder contains any untrue
statement of a material fact or omits to state a material fact necessary to
make the certificate, statement, report or other information not
misleading.
(xi) The Seller has not dealt with any broker, investment banker,
agent or other person, except for the Purchaser, the Underwriter or any of
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.
(xii) The transfer of the Mortgage Loans to the Purchaser on the
Closing Date will be treated by the Seller for financial accounting and
reporting purposes as a sale of assets.
(xiii) The transfer, assignment and conveyance of the Mortgage Loans
by the Seller pursuant to this Agreement are not subject to the bulk
transfer or any similar statutory provisions in effect in any relevant
jurisdiction, except such as may have been complied with.
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(xiv) Insofar as it relates to the Mortgage Loans, the related
Mortgaged Properties and/or the related Mortgagors, the information set
forth on the Master Tape (as defined in Section 9) is true and correct in
all material respects.
(xv) The Seller's Information (as defined in Section 9 below) does not
contain any untrue statement of material fact or omit to state a material
fact necessary to make the statements therein, in the light of
circumstances under which they were made, not misleading.
(xvi) The Seller does not believe, nor does it have any reason to
believe, that it cannot perform in all material respects each and every
covenant on its part in 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 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 and as of the Closing Date, 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 the State of Delaware.
(ii) The Purchaser has full power and authority to acquire the
Mortgage Loans, to execute and deliver this Agreement and to enter into and
consummate all transactions contemplated by this Agreement. The Purchaser
has duly authorized the execution, delivery and performance of this
Agreement and has duly executed and delivered this Agreement. This
Agreement, assuming due authorization, execution and delivery by the
Seller, constitutes the valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement
of creditors' rights generally and by general principles of equity,
regardless of whether such enforcement is considered in a proceeding in
equity or at law.
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(iii) 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, for the execution, delivery and
performance of or compliance by the Purchaser with this Agreement, or the
consummation by the Purchaser of any transaction contemplated hereby, which
has not been obtained or made by the Purchaser.
(iv) The execution, delivery and performance of this Agreement by the
Purchaser will not violate the Purchaser's articles of incorporation or
by-laws or constitute a default under, or result in a breach of, any
material agreement or instrument to which the Purchaser is a party or which
may be applicable to the Purchaser or its assets.
(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, rule,
writ, injunction, or any order or decree of any court, or any order or
regulation of any federal, state or municipal government agency having
jurisdiction over the Purchaser or its assets, which violation could
materially and adversely affect the condition (financial or otherwise) or
the operation of the Purchaser or its assets or could materially and
adversely affect its ability to perform its obligations and duties
hereunder.
(vi) There are no actions or proceedings against, or investigations
of, the Purchaser pending or, to the Purchaser's knowledge, threatened
against the Purchaser before any court, administrative agency or other
tribunal, the outcome of which could reasonably be expected to adversely
affect the transfer of the Mortgage Loans, the issuance of the
Certificates, or the execution, delivery or enforceability of this
Agreement or to have an effect on the financial condition of the Purchaser
that would materially and adversely affect the ability of the Purchaser to
perform its obligation under this Agreement.
(vii) The Purchaser has not dealt with any broker, investment banker,
agent or other person, except for the Seller, the Underwriter or any of
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) The Purchaser does not believe, nor does it have any reason to
believe, that it cannot perform in all material respects each and every
covenant on its part in this Agreement.
(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.
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SECTION 6. REMEDIES FOR BREACH OF REPRESENTATION
(a) The Seller acknowledges that the Purchaser will make for the benefit of
the holders of the Certificates, whether directly or by way of assignment of its
rights hereunder to the Trustee, the representations and warranties set forth on
Exhibit C hereto.
(b) If any document required to be delivered to the Trustee pursuant to
Section 2 is not delivered as and when required, contains information that does
not conform to the corresponding information in the Mortgage Loan Schedule, is
not properly executed or is defective on its face (any such omission,
nonconformity or other defect, a "Document Defect"), or if there is a breach of
any of the representations and warranties required to be made by the Seller
regarding the characteristics of the Mortgage Loans and/or the related Mortgaged
Properties as set forth in Exhibit C hereto, and in either case such Document
Defect or breach materially and adversely affects the interests of the holders
of the Certificates (a "Material Document Defect" and a "Material Breach",
respectively), the party discovering such Material Document Defect or Material
Breach shall (or is required by the terms of the Pooling and Servicing Agreement
to) promptly notify the other parties, and the Seller shall be required to cure
such Material Document Defect or Material Breach in all material respects within
the applicable Permitted Cure Period. If any such Material Document Defect or
Material Breach cannot be corrected or cured in all material respects within the
applicable Permitted Cure Period, the Seller shall, not later than the last day
of such Permitted Cure Period, (i) repurchase the affected Mortgage Loan from
the Purchaser or its assignee at the applicable Purchase Price (as defined in
the Pooling and Servicing Agreement), or (ii) if within the three-month period
commencing on the Closing Date (or within the two-year period commencing on the
Closing Date if the related Mortgage Loan is a "defective obligation" within the
meaning of Section 860(a)(4)(B) (ii) of the Internal Revenue Code of 1986 (the
"Code") and Treasury Regulation Section 1.860G-2(f), at its option, replace such
Mortgage Loan with a Qualifying Substitute Mortgage Loan (as defined in the
Pooling and Servicing Agreement) and pay any corresponding Substitution
Shortfall Amount (also as defined in the Pooling and Servicing Agreement). The
Seller agrees that any such repurchase or substitution shall be completed in
accordance with and subject to the terms and conditions of the Pooling and
Servicing Agreement.
For purposes of the foregoing, and subject to the following paragraph, the
"Permitted Cure Period" applicable to any Material Document Defect or Material
Breach in respect of any Mortgage Loan shall be the 90-day period immediately
following the earlier of the discovery by the Seller or receipt by the Seller of
notice of such Material Document Defect or Material Breach, as the case may be;
provided that if such Material Document Defect or Material Breach, as the case
may be, cannot be corrected or cured in all material respects within such 90-day
period, but it is reasonably likely that such Material Document Defect or
Material Breach, as the case may be, could be corrected or cured within 180 days
of the earlier of discovery by the Seller and receipt by the Seller of notice of
such Material Document Defect or Material Breach, as the case may be, and the
Seller is diligently attempting to effect
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such correction or cure, then the applicable Permitted Cure Period shall, with
the consent of the Purchaser or its assignee (which consent shall not be
unreasonably withheld), be extended for an additional 90 days.
Notwithstanding the preceding provisions of this Section 6(b), if any
Material Document Defect or Material Breach would cause any Mortgage Loan to be
other than a "qualified mortgage" within the meaning of Section 860G(a)(3) of
the Code, then any cure of such Material Document Defect or Material Breach, as
the case may be, as contemplated above must be completed within 90 days of the
Closing Date, and any repurchase or substitution of such Mortgage Loan as
contemplated above must occur within 90 days of the initial discovery of such
Material Document Defect or Material Breach, as the case may be, by any of the
Seller, the Purchaser, the Trustee, the Master Servicer, the Special Servicer or
the Fiscal Agent.
The obligations of the Seller set forth in this Section 6(b) to cure a
Material Document Defect or a Material Breach or repurchase or replace a
defective Mortgage Loan constitute the sole remedies of the Purchaser or its
assignees with respect to a Material Document Defect or Material Breach;
provided, that this limitation shall not in any way limit the Purchaser's rights
or remedies upon breach of any other representation, warranty or covenant by the
Seller set forth in this Agreement (other than those set forth in Exhibit C).
(c) The Pooling and Servicing Agreement shall provide that the Trustee (or
the Master Servicer or the Special Servicer on its behalf) shall give prompt
notice to the Seller of its discovery of any Material Document Defect or
Material Breach .
(d) If the Seller repurchases or replaces any Mortgage Loan pursuant to
this Section 6, the Purchaser or its assignee, following receipt by the Trustee
of the Purchase Price therefor (or, in the case of a substitution, following
receipt by the Trustee of the Mortgage File for the Qualifying Substitute
Mortgage Loan and any corresponding Substitution Shortfall Amount), promptly
shall deliver or cause to be delivered to the Seller all Mortgage Loan documents
with respect to the Mortgage Loan that is being repurchased or replaced, and
each document that constitutes a part of the Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed and assigned to the Seller in the same
manner.
SECTION 7. CLOSING.
The closing of the sale of the Mortgage Loans (the "Closing") shall be held
at the offices of Sidley & Austin, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at
10:00 a.m., New York City time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
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(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 of this Agreement (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
hereof;
(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 hereof 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
(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:
(i) This Agreement duly executed and delivered by the Purchaser and the
Seller;
(ii) 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
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dated the Closing Date, and upon which the Purchaser and the
Underwriter may rely, attaching thereto as exhibits the
organizational
documents of the Seller;
(iii) 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;
(iv) 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 the Underwriter may rely;
(v) A written opinion of counsel for the Seller, substantially in the
form of Exhibit D-3 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 the Underwriter;
(vi) Any other opinions of counsel for the Seller required by the Rating
Agencies in connection with the issuance of the Certificates, each
of which shall include the Purchaser and the Underwriter as an
addressee; and
(vii) A letter or letters from Deloitte & Touche, L.L.P., certified public
accountants, dated the dates of the Prospectus Supplement and the
Memorandum (each as defined in Section 9), to the effect that they
have performed certain specified procedures as a result of which
they have determined that certain information of an accounting,
financial or statistical nature set forth in the Prospectus
Supplement and the Memorandum under the captions "Summary-- The
Mortgage Pool," "Description of the Mortgage Pool" and "Risk
Factors-- The Mortgage Loans" agrees with the records of the Seller;
(viii) A guaranty agreement substantially in the form 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
(ix) Such further certificates, opinions and documents as the Purchaser
may reasonably request.
- 13 -
SECTION 9. INDEMNIFICATION.
(a) The Seller shall indemnify and hold harmless the Purchaser, its
respective 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 (including without limitation as a result of the
Purchaser's indemnification of the Underwriter), insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (i) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in (A) the Prospectus (including without limitation the diskette
delivered therewith), the Memorandum (including without limitation the diskette
delivered therewith), any Computational Materials or ABS Term Sheets with
respect to the Registered Certificates, or any revision or amendment of any of
the foregoing or supplement to any of the foregoing, (B) any items similar to
Computational Materials and ABS Term Sheets forwarded to prospective investors
in the Non-Registered Certificates, or (C) any other summaries, reports,
documents and written and electronic materials and all other information
furnished or made available by the Seller for review by prospective investors in
the Certificates, or (ii) arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; but only if and to the extent that any
such untrue statement or alleged untrue statement or omission or alleged
omission is with respect to, or results from an untrue statement or omission
with respect to, information regarding the Mortgage Loans, the related
Mortgagors, the related Mortgaged Properties or the Seller, that is contained in
the Master Tape or in any of the items described in clauses (i) (A), (i) (B)
and/or (i) (C) above (any and all such information, the "Seller's Information");
provided that the indemnification provided by this Section 9 shall not apply to
the extent that such untrue statement or omission was made solely as a result of
an error in the manipulation of, or in any calculations based upon, any true and
accurate loan-by-loan statistical information regarding the Mortgage Loans or
was made solely as a result of an error in aggregating any true and accurate
statistical information regarding the Mortgage Loans with any statistical
information regarding the Other Loans. It is hereby acknowledged and agreed that
the Seller's information includes, but is not limited to, all such information
set forth in Appendix I and Appendix II to the Prospectus Supplement and set
forth in the Prospectus Supplement and the Memorandum under the headings
"Summary -- The Mortgage Pool", "Risk Factors -- The Mortgage Loans" and
"Description of the Mortgage Pool" and, to the extent based upon the
characteristics of the Mortgage Loans, under the headings "Maturity
Considerations" and "Yield Considerations." This indemnity agreement will be in
addition to any liability which the Seller may otherwise have.
For purposes of the foregoing, "Prospectus" shall mean the prospectus dated
March 20, as supplemented by the prospectus supplement dated March 20, 1997 (the
- 14 -
"Prospectus Supplement"), relating to the Registered Certificates; "Memorandum"
shall mean the private placement memorandum dated March 20, 1997, relating to
the NonRegistered 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 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"); "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"); and "Master
Tape" shall mean the portion, regarding the Mortgage Loans, the related
Mortgagors and the related Mortgaged Properties, of the compilation of
information and data regarding the Mortgage Loans and the Other Loans covered by
the Agreed Upon Procedures Letters dated March 20, 1997 and rendered by Deloitte
& Touche, L.L.P. (a "hard copy" of which Master Tape was initialed on behalf of
the Seller and the Purchaser).
(b) In case any proceeding (including any governmental investigation) shall
be instituted involving any person that may seek indemnity pursuant to Section 9
(a) above, such person (the "indemnified party") shall notify the Seller as the
person against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party in such proceeding and shall pay the reasonable fees and
disbursements of such counsel related to such proceeding. The indemnifying party
may, at its option, at any time upon written notice to the indemnified party,
assume the defense of any proceeding and may designate counsel satisfactory to
the indemnified party in connection therewith provided that the counsel so
designated would have no actual or potential conflict of interest in connection
with such representation. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the reasonable fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them or
(iii) the indemnifying party shall have failed to designate within a reasonable
period of time counsel reasonably satisfactory to the indemnified party. It is
understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties. Unless it shall assume the
defense of any proceeding, the indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with such consent or if
there shall be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify
- 15 -
the indemnified party from and against any loss or liability by reason of such
settlement or judgment. If the indemnifying party assumes the defense of any
proceeding, it shall be entitled to settle such proceeding with the consent of
the indemnified party or, if such settlement provides for release of the
indemnified party in connection with all matters relating to the proceeding
which have been asserted against the indemnified party in such proceeding by the
other parties to such settlement, without the consent of the indemnified party.
(c) If the indemnification provided for in this Section 9 is unavailable or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages, liabilities or expenses (or actions in respect thereof)
referred to herein, 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, liabilities or
expenses (or actions in respect thereof) (i) in such proportion as is
appropriate to reflect the relative benefits received by the Seller on the one
hand and the Purchaser and the Underwriter on the other from the sale of the
Mortgage Loans and the offering of the Certificates (to the extent such are
backed by the Mortgage Loans) or (ii) if the allocation provided by clause (i)
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only such relative benefits referred to in clause (i) but also the
relative fault of the Seller on the one hand and the Purchaser and the
Underwriter on the other in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities or expenses (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits of the Purchaser and the Underwriter on the one hand and the
Seller on the other shall be deemed to be in such proportion as the (i) total
proceeds from the sale of the Mortgage Loans and the offering of the
Certificates (before deducting expenses) received by the Seller bear to (ii) the
total underwriting discounts and commissions received by the Underwriter from
time to time in negotiated sales of the Certificates (to the extent the
Certificates are backed by the Mortgage Loans). The relative fault of the Seller
on the one hand and of the Purchaser and the Underwriter on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Seller or by the
Purchaser or the Underwriter, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(d) The parties hereto agree that it would not be just and equitable if
contribution were determined by pro rata allocation or by any other method or
allocation that does not take account of the equitable considerations referred
to in subsection (c) above. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities or expenses (or actions
in respect thereof) referred to above shall be deemed to include any legal fees
and disbursements or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such claim, except where
the indemnified party is required to bear such expenses, which expenses the
indemnifying party shall pay as and when incurred, at the request of the
indemnified party, to the extent that the indemnified party will ultimately be
obligated to pay such expenses. In the event that any
- 16 -
expenses so paid by the indemnifying party are subsequently determined to not be
required to be borne by the indemnifying party hereunder, the party which
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. The remedies provided for in this Section 9 are not exclusive
and shall not limit any rights or remedies that may otherwise be available to
any indemnified party at law or in equity.
(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 the Purchaser, any
of its directors or officers, or any person controlling the Purchaser, and (iii)
acceptances of and payment for any of the Mortgage Loans.
SECTION 10. COSTS.
Costs relating to the transactions contemplated hereby shall be borne by
the parties hereto or their respective affiliates in accordance with the Letter
of Understanding.
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy
to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq., facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, 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. (212) 207- 2935 or to such other address or facsimile number as
the Seller may designate in writing to the Purchaser.
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 representations, warranties, 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.
- 17 -
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. THE PARTIES HERETO INTEND THAT THE
PROVISIONS OF SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY
TO THIS AGREEMENT.
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.
- 18 -
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. In
addition, any person into which the Purchaser may be merged or consolidated, or
any corporation or other entity resulting from any merger, conversion or
consolidation to which the Purchaser is a party, or any person succeeding to all
or substantially all of the business of the Purchaser, shall be the successor to
the Purchaser hereunder. 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.
SECTION 20. WAIVER OF TRIAL BY JURY.
THE PARTIES HERETO HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW,
THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN
CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[signatures on next page]
- 19 -
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their names to
be signed hereto by their respective duly authorized officers and/or
representatives as of the date first above written.
CONTITRADE SERVICES L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
Title: Authorized Signatory
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL I INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
- 20 -
EXHIBIT A
Mortgage Loan Schedule
ContiTrade Services L.L.C.
Original Cut-off Note Maturity
ID Street Address City State Zip Code Balance Balance Date Date
================================================================================================================================
1 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ $2,524,000 $2,518,939 12/30/96 1/1/07
2 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,121,000 2,116,747 12/30/96 1/1/07
3 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,035,000 2,030,920 12/30/96 1/1/07
4 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,442,000 2,437,104 12/30/96 1/1/07
5 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,531,000 3,523,920 12/30/96 1/1/07
6 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,923,000 3,915,134 12/30/96 1/1/07
7 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 556,000 554,903 12/30/96 1/1/07
8 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,901,000 1,897,251 12/30/96 1/1/07
12 Various Various Various Various 13,400,000 13,361,851 11/14/96 12/1/16
12A ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
12B ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
12C ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
164 ▇▇ ▇.▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,332,500 2,329,306 1/31/97 2/1/12
17 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,567,500 1,565,354 1/31/97 2/1/12
18 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,520,000 5,512,441 1/31/97 2/1/12
19 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,062,500 2,059,676 1/31/97 2/1/12
22 Various Various Various Various 10,630,000 10,599,737 11/14/96 12/1/16
22A ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
22B ▇▇▇ ▇▇.▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
23 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 10,000,000 9,979,950 12/31/96 1/1/07
32 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 8,250,000 8,225,570 9/16/96 10/1/01
49 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,800,000 6,800,000 2/17/97 3/1/07
50 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,800,000 6,767,936 8/29/96 9/1/06
52 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,450,000 6,439,151 12/26/96 1/1/12
54 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇. ▇▇ ▇▇▇▇▇ 6,350,000 6,331,767 9/16/96 10/1/03
55 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,350,000 1,346,159 9/24/96 10/1/03
56 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,100,000 2,094,026 9/24/96 10/1/03
57 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,750,000 1,745,021 9/24/96 10/1/03
58 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,000,000 998,306 11/22/96 12/01/03
60 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 6,000,000 5,980,490 10/2/96 11/1/06
▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 5,475,000 5,456,821 10/25/96 11/1/06
74 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,500,000 4,480,388 9/4/96 10/1/06
76 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 4,400,000 4,383,493 9/20/96 10/1/06
84 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,800,000 3,800,000 2/14/97 1/1/06
87 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 3,450,000 3,436,693 11/19/96 12/1/16
95 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 379,500 379,000 1/8/97 2/l/17
96 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 192,000 191,747 1/8/97 2/1/17
97 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 618,000 617,186 1/8/97 2/1/17
98 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 360,000 359,526 1/8/97 2/1/17
99 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 316,500 316,083 1/8/97 2/1/17
100 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 366,500 366,017 1/8/97 2/1/17
101 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 387,000 386,490 1/8/97 2/1/17
102 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 345,000 344,546 1/8/97 2/1/17
103 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,900,000 2,891,556 12/9/96 1/1/07
106 ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,800,000 2,784,540 10/8/96 11/1/16
108 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,700,000 2,690,358 10/28/96 11/1/14
109 ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ 2,525,000 2,518,604 11/5/96 12/1/06
112 ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,400,000 2,390,409 9/17/96 10/1/06
Next
Loan Rem. Loan Change Monthly Serv. Payment
Term Term Type Cap Floor Margin Index Date Rate P&l Fee Due Date
==============================================================================================================
120 118 Fixed 9.12500% 21,397.78 13.6 First day of month
120 118 Fixed 9.12500% 17,981.26 13.6 First day of month
120 118 Fixed 9.12500% 17,252.17 13.6 First day of month
120 118 Fixed 9.12500% 20,702.61 13.6 First day of month
120 118 Fixed 9.12500% 29,934.85 13.6 First day of month
120 118 Fixed 9.12500% 33,258.12 13.6 First day of month
120 118 Fixed 9.25000% 4,761.48 13.6 First day of month
120 118 Fixed 9.25000% 16,279.82 13.6 First day of month
240 237 Fixed 8.67000% 109,439.86 13.6 First day of month
180 179 Fixed 9.25000% 19,975.11 13.6 First day of month
180 179 Fixed 9.25000% 13,423.79 13.6 First day of month
180 179 Fixed 9.25000% 47,272.28 13.6 First day of month
180 179 Fixed 9.25000% 17,662.88 13.6 First day of month
240 237 Fixed 8.67000% 86,816.84 13.6 First day of month
120 118 Fixed 9.12500% 84,777.27 13.6 First day of month
60 55 Fixed 8.68000% 64,490.76 18.6 First day of month
120 120 Fixed 9.25000% 58,233.97 18.6 First day of month
120 114 Fixed 9.87500% 61,193.47 13.6 First day of month
180 178 Fixed 9.37500% 55,794.00 13.6 First day of month
84 79 Fixed 8.83000% 50,318.73 18.6 First day of month
84 79 Fixed 8.87500% 10,741.21 18.6 First day of month
84 79 Fixed 8.87500% 16,708.54 18.6 First day of month
84 79 Fixed 8.87500% 13,923.79 18.6 First day of month
84 81 Fixed 8.87500% 7,956.45 18.6 First day of month
120 116 Fixed 9.62500% 52,944.09 13.6 First day of month
120 116 Fixed 9.50000% 47,834.89 18.6 First day of month
120 115 Fixed 9.23000% 38,475.10 18.6 First day of month
120 115 Fixed 10.12500% 40,371.20 18.6 First day of month
106 106 Fixed 8.75000% 37,979.05 13.6 First day of month
240 237 Fixed 10.25000% 33,866.70 18.6 First day of month
240 239 Fixed 10.00000% 3,662.26 18.6 First day of month
240 239 Fixed l0.00000% 1,852.84 18.6 First day of month
240 239 Fixed 10.00000% 5,963.83 18.6 First day of month
240 239 Fixed l0.00000% 3,474.08 18.6 First day of month
240 239 Fixed l0.00000% 3,054.29 18.6 First day of month
240 239 Fixed l0.00000% 3,536.80 18.6 First day of month
240 239 Fixed l0.00000% 3,734.63 18.6 First day of month
240 239 Fixed 10.00000% 3,329.32 18.6 First day of month
120 118 Fixed 9.25000% 26,560.14 18.6 First day of month
240 236 Fixed 9.73000% 26,521.64 13.6 First day of month
216 212 Fixcd 9.06250% 22,773.97 18.6 First day of month
120 117 Fixed 9.37500% 21,841.84 18.6 First day of month
120 115 Fixed 9.75000% 21,387.30 18.6 First day of month
Page 1
EXHIBIT A
Mortgage Loan Schedule
ContiTrade Services L.L.C.
Original Cut-off Note Maturity
ID Street Address City State Zip Code Balance Balance Date Date
================================================================================================================================
115 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,350,000 2,340,450 10/1/96 10/1/03
116 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,350,000 2,340,333 11/19/96 12/1/16
117 ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,300,000 2,296,923 1/10/97 2/1/07
118 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,170,000 2,162,944 10/9/96 11/1/06
119 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,175,000 2,161,876 10/10/96 3/1/16
120 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 2,281,590 2,058,811 12/1/93 12/1/03
126 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,820,000 1,817,397 1/7/97 2/1/17
127 ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,800,000 1,797,262 1/17/97 2/1/12
128 ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,750,000 1,732,899 10/9/96 11/1/11
130 ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,710,000 1,707,183 12/18/96 1/1/04
132 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,600,000 1,593,552 9/18/96 10/1/03
133 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,530,000 1,527,317 12/5/96 1/1/04
135 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,500,000 1,495,123 10/30/96 11/1/06
136 ▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,700,000 1,476,371 9/1/93 9/1/03
139 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,400,000 1,394,241 11/21/96 12/1/16
142 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,300,000 1,297,813 12/23/96 1/1/04
145 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,225,000 1,222,940 12/4/96 1/1/07
149 ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 1,000,000 995,615 1/17/96 12/1/16
152 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 950,000 949,204 1/15/97 2/1/07
153 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 900,000 900,000 2/13/97 3/1/07
154 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 775,000 772,911 11/27/96 12/1/06
155 ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ 760,000 758,154 11/11/96 12/1/06
157 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 15,423,406 15,125,403 9/16/94 10/1/04
158 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 14,511,141 14,230,839 9/9/94 10/1/04
159 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ 7,450,000 7,359,724 7/20/95 8/1/02
Total $220,440,403
Next
Loan Rem. Loan Change Monthly Serv. Payment
Term Term Type Cap Floor Margin Index Date Rate P&l Fee Due Date
====================================================================================================================
84 79 Fixed 9.65000% 20,777.44 18.6 First day of month
240 237 Fixcd 9.75000% 22,290.15 18.6 First day of month
120 119 Fixed 9.62500% 20,295.23 13.6 First day of month
120 116 Fixed 9.62500% 19,148.11 18.6 First day of month
232 228 Fixed 9.62500% 20,687.00 18.6 First day of month
120 81 Fixed 9.00000% 17,277.46 18.6 Last day of month
240 239 Fixed 9.36000% 16,798.75 18.6 First day of month
180 179 Fixed 8.87500% 16,050.65 18.6 First day of month
180 176 Fixed 10.00000% 18,805.59 18.6 First day of month
84 82 Fixed 9.50000% 14,940.21 18.6 First day of month
84 79 Fixed 9.70000% 14,202.23 18.6 First day of month
84 82 Fixed 9.12500% 12,970.92 18.6 First day of month
120 116 Fixed 9.62500% 13,236.02 18.6 First day of month
120 78 Fixed 9.00000% 12,389.65 18.6 Last day of month
240 237 Fixed 9.75000% 13,279.24 18.6 First day of month
84 82 Fixed 9.37500% 11,245.30 18.6 First day of month
120 118 Fixed 9.37500% 10,596.54 18.6 First day of month
240 237 Fixed 9.25000% 9,158.67 18.6 First day of month
120 119 Fixed 9.37500% 8,217.72 18.6 First day of month
120 120 Fixed 8.87500% 7,475.88 18.6 First day of month
120 117 Fixed 9.00000% 6,503.77 18.6 First day of month
120 117 Fixed 9.62500% 6,706.25 18.6 First day of month
120 91 Adjustable 11.7500 6.0000 2.7500 LIBOR-6mo 4/1/97 8.53125% 118,932.94 13.6 First day of month
120 91 Adjustable 11.7500 6.0000 2.7500 LIBOR-6mo 4/1/97 8.53125% 111,898.29 13.6 First day of month
84 65 Adjustable 13.7500 8.5000 2.7500 LIBOR-6mo 7/1/97 8.50000% 57,292.86 13.6 First day of month
Page 2
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 date of the Mortgage Note;
(iv) the Mortgage Rate in effect as of the Cut-off Date and whether such
Mortgage Loan has an adjustable Mortgage Rate;
(v) the original principal balance;
(vi) the Cut-off Date Balance;
(vii) the (A) remaining term to stated maturity and (B) Stated Maturity
Date; and
(viii) the Due Date;
(ix) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date (exclusive of any component thereof that
is contingent on net cash flow from the related Mortgaged Property);
(x) if such Mortgage Loan has an adjustable Mortgage Rate, the (A)
Index, (B) Gross Margin, (C) first Mortgage Rate adjustment date
following the Cut-off Date and the frequency of Mortgage Rate
adjustments, (D) limitations, if any, on periodic adjustments to
Mortgage Rate, (E) maximum and minimum lifetime Mortgage Rate, if
any, (F) the first Monthly Payment adjustment date following the
Cut-off Date and the frequency of Monthly Payment adjustments; 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.
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 1997 - C1,
without recourse";
(ii) the original or a copy of the related Mortgage and, if applicable,
the originals or copies of any intervening assignments of such
Mortgage 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 related 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 of such
Assignment of Leases 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
B-1
or copies of any intervening assignments of such security agreement
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;
(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 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 an omnibus
assignment covering other documents relating to the Mortgage Loan
provided that such an omnibus assignment would be effective under
applicable law;
(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
in connection with 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 originals 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 (which assignment may be included as
part of an omnibus assignment covering other documents relating to
the Mortgage Loan provided that such an omnibus assignment would be
effective under applicable law);
(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
B-2
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
(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.
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) Lien Priority. 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, (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, and (D) other matters
to which like properties are commonly subject (the exceptions set forth in the
foregoing clauses (A), (B), (C) and (D) 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 and the
filing of a UCC financing
statement, in all personal property owned by the Mortgagor that is used in, and
is reasonably necessary to, the operation of the related Mortgaged Property.
There exists with respect to such Mortgaged Property an assignment of leases and
rents provision, whether as part of the related Mortgage or as a separate
document or instrument, which establishes and creates a first priority security
interest in and to leases and rents arising in respect of the related Mortgaged
Property, subject only to Permitted Encumbrances.
(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. No holder of the
related Mortgage has done, by act or omission, 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 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.
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(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, 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. 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 insurable 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 commercial mortgage lenders, 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 termination or
cancellation, and no such notice has been received, including any notice of
nonpayment of premiums, that has not been cured.
(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 and adverse environmental conditions or
circumstance affecting
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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 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,
water charges, sewer rents, assessments 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. 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 assignee, 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
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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 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 commercial mortgage lenders, 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. To the Seller's knowledge, there exists (A) no
material default, breach or event of acceleration under the related Mortgage or
Mortgage Note, and (B) no 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 therein.
(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 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
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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 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.
(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 those employed by prudent servicers of comparable
mortgage loans.
(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 (xxx) 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
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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) Nursing Home Regulation. If the Mortgaged Property is operated as a
nursing home, to the Seller's knowledge (a) the related Mortgagor is in
compliance in all material respects with all federal and state laws applicable
to the use and operation of the related Mortgaged Property and (b) to the extent
the Mortgaged Property participates in Medicare or Medicaid, the facility is in
compliance in all material respects with the requirements for participating in
such programs.
(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. 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"):
(i) 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;
(ii) 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;
(iii) 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,
C-7
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;
(iv) 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;
(v) 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 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;
(vi) 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;
(vii) 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;
(viii) 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 or taking, 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
(ix) 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
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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
(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 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. Except for those Mortgage Loans and the related
Mortgaged Properties referred to in the paragraph immediately following these
enumerated representations and warranties and for the two Mortgage Loans secured
by Mortgaged Properties referred to as U-Haul Storage (▇. ▇▇▇▇▇) (Mortgage Loan
No. 120) and U-Haul Storage (Pasadena) (Mortgage Loan No. 136), 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.
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 an/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. Notwithstanding anything to the contrary in
the foregoing, the fact that the Mortgagors under the Mortgage Loans secured by
properties referred to as Golden State -- Riverdale (Mortgage Loan No. 17),
Golden State -- Glenoaks Convalescent Hospital (Mortgage Loan No. 16), Golden
State -- Sylmar Health & Rehabilitation Center (Mortgage Loan No. 18), Golden
State -- Westlake Convalescent Hospital (Mortgage Loan No. 19), Westwood Hills
Health Care Center (Mortgage Loan No. 64) and Brentwood Place (Mortgage Loan No.
60) are permitted to engage, and do engage, in borrowings secured by their
accounts receivables shall not constitute a breach of any of the foregoing
representations and warranties.
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EXHIBIT D-1
FORM OF CERTIFICATE OF AN OFFICER OF
THE SELLER
CERTIFICATE OF OFFICER OF SELLER
I, _______________, a[n] [Assistant] [Secretary] of ContiFinancial
Corporation, Managing Member of ContiTrade Services L.L.C. (the "Seller"),
hereby certify as follows:
The Seller is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Delaware.
Attached hereto as Exhibit I are true, correct and complete 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 or appointed, as
the case may be, and qualified officer, representative or authorized signatory
of the Seller and his genuine signature is set forth opposite his name:
NAME OFFICE SIGNATURE
_________________ Authorized Signatory __________________
_________________ Authorized Signatory __________________
Each person listed above who signed, either manually or by facsimile
signature, the Purchase Agreement dated as of March __, 1997 (the "Purchase
Agreement"), between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc. and the Seller, and any other
document or certificate delivered by or on behalf of the Seller on or before the
date hereof in connection with the transactions contemplated by the Purchase
Agreement, 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.
D1-1
Capitalized terms not otherwise defined herein have the meanings assigned
to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
March , 1997.
By: ____________________________________________
Name:
Title:[Assistant] Secretary of ContiFinancial
Corporation Managing Member of ContiTrade
Services L.L.C.
I, ________________, an Authorized Signatory, hereby certify that
________________ is a duly elected or appointed, as the case may be, qualified
and acting [Assistant] Secretary of ContiFinancial Corporation, Managing Member
of the Seller, and that the signature appearing above is his/her genuine
signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
March __, 1997.
By: _____________________________
Name:
Title:
D1-2
EXHIBIT D-2
FORM OF CERTIFICATE OF THE SELLER
CERTIFICATE OF SELLER
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 March ___, 1997 (the
"Purchase Agreement"), between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I 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 ___ day of March 1997.
CONTITRADE SERVICES L.L.C.
By: _____________________________
Name:
Title: Authorized Signatory
D2-1
EXHIBIT D-3
FORM OF OPINION OF COUNSEL TO THE SELLER
March __ , 1997
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Mortgage Loan Purchase Agreement, dated as of March __, 1997,
between ContiTrade Services L.L.C. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital
I Inc.
Ladies and Gentlemen:
This opinion is being provided to you by the undersigned, as counsel of
ContiTrade Services L.L.C. (the "Seller"), pursuant to Section 8(e) of the
Mortgage Loan Purchase Agreement, dated as of March ___, 1997 (the "Purchase
Agreement"), between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc. (the "Purchaser") and the
Seller, relating to the sale by the Seller of certain mortgage loans (the
"Mortgage Loans"). Capitalized terms not otherwise defined herein have the
meanings set assigned to them in the Purchase Agreement
I (or attorneys under my supervision) have examined originals or copies,
certified or otherwise identified to my satisfaction, of such corporate records
of the Seller, certificates of public officials, officers of the Seller and
other persons and other documents, agreements and instruments and have made such
other investigations as I have deemed necessary or appropriate for purposes of
this opinion.
Based upon the foregoing, I am of the opinion that:
1. The Seller is duly organized, validly existing and in good standing as
a limited liability company under the laws of Delaware, with full
power and authority to execute and deliver, engage in the transactions
contemplated by, and perform and observe the terms and conditions of
the Purchase Agreement.
D3-1
2. The Purchase Agreement has been duly authorized, executed and
delivered by the Seller and, upon due authorization, execution and
delivery by the Purchaser, will constitute a valid, legal and binding
agreement of the Seller, enforceable against the Seller in accordance
with its terms, except as enforceability may be limited by (a)
bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws relating to or affecting the
enforcement of creditors rights generally, (b) general principles of
equity, whether enforcement is sought in a proceeding in equity or at
law, and (c) public policy considerations underlying the securities
laws, to the extent such public policy considerations limit the
enforceability of the provisions of such agreement that purport to
provide indemnification from securities law liabilities.
3. No consent, approval, authorization or order of any court,
governmental agency or body is required in connection with the
execution, delivery and performance by the Seller of the Purchase
Agreement, except for those consents, approvals, authorizations or
orders that previously have been obtained.
4. The transfer of the Mortgage Loans as provided in the Purchase
Agreement and the fulfillment of the terms of the Purchase Agreement
will not conflict with or result in a violation of the Certificate of
Formation or Limited Liability Company Agreement of the Seller, any
law, rule or regulation applicable to the Seller or its property, or
any agreement or instrument, order, writ, judgment or decree to which
the Seller is a party or is subject.
5. To the best of my knowledge, there are no actions or proceedings
against the Seller pending (with regard to which the Seller has
received service of process ) or overtly threatened in a writing
received by me, before any court, governmental agency or arbitrator
which affect the enforceability of the Purchase Agreement, or which
would draw into question the validity of the Purchase Agreement or any
action taken or to be taken in connection with the Seller's
obligations contemplated therein, or which would materially impair the
Seller's ability to perform under the terms of the Purchase Agreement.
6. Nothing has come to our attention that would lead us to believe that,
insofar as it relates to the characteristics of the Mortgage Loans,
the real properties that secure such or the related borrowers or
relates to the description of the Seller, the Prospectus (other than
any accounting, financial or statistical information included therein,
as to which no opinion is expressed), at the date of the Prospectus
Supplement or at the Closing Date, included or includes an untrue
statement of a material fact or omitted or omits to state
D3-2
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
The opinions expressed herein are limited to the laws of the State of New
York, the federal law of the United States and the Limited Liability Company Act
of the State of Delaware.
This opinion is given to you for your sole benefit, and no other person or
entity is entitled to rely hereon without our express written consent.
Very truly yours,
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EXHIBIT E
FORM OF GUARANTY AGREEMENT
================================================================================
CONTIFINANCIAL CORPORATION
Guarantor
in favor of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL I INC.
AND CERTAIN OTHERS
------------------------------
GUARANTY AGREEMENT
Dated as of March 20, 1997
------------------------------
================================================================================
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Guaranty Agreement (the "Agreement"), dated as of March 20, 1997, from
ContiFinancial Corporation (the "Guarantor") in favor of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital
I Inc. (the "Depositor") and all additional persons and entities (the "Other
Beneficiaries" and, collectively with the Depositor, the "Beneficiaries")
entitled to indemnification under Section 9 of the Mortgage Loan Purchase
Agreement dated as of even date herewith (the Purchase Agreement), between
ContiTrade Services L.L.C. (the "Seller") and the Depositor.
The Depositor requires, as an inducement and a condition precedent to its
entering into the Purchase Agreement with the Seller, that the Guarantor
guarantees certain obligations of the Seller under the Purchase Agreement. The
Guarantor desires that the Depositor enter into the Purchase Agreement and is
willing to enter into this Agreement in order to induce the Depositor to do so.
The Guarantor is a corporation affiliated with the Seller. 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 the
Depositor 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 (the
obligations specified in this clause (b) and the preceding clause (a), as such
may be amended or modified from time to time with the written consent of the
Guarantor, collectively, the "Seller Obligations"), and (c) the timely payment
of costs, expenses (including, without limitation, expenses of enforcement) and
liabilities resulting from the failure of the Seller to satisfy any Seller
Obligation in accordance with the Purchase Agreement; provided that,
notwithstanding anything herein to the contrary, in no event shall the Guarantor
guaranty or otherwise be responsible for any Seller Obligation to the extent
(but only to the extent) that such Seller Obligation has been amended,
rescinded, waived, modified or in any way altered without the written consent of
the Guarantor. It is herein acknowledged that no Seller Obligation may be
amended, rescinded, waived, modified or in any way altered except by writing
signed by the Depositor 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 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 the Depositor and the Other Beneficiaries.
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(b) If any payment by the Seller to any person or entity under any of the
Seller Obligations is rescinded or must be returned by such person or entity for
any reason (including, without limitation, the entry of an order under any
present or future federal or state bankruptcy, insolvency or similar law) the
Guaranty Obligations of the Guarantor hereunder shall be reinstated with respect
to such payment.
(c) None of the Beneficiaries shall have a duty to advise the Guarantor of
information known to it regarding such condition or any such circumstances.
(d) The Guaranty Obligations shall remain in full force and effect until
both (i) satisfaction or performance thereof in full and (ii) the obligations of
the Seller under the Purchase Agreement are paid, observed, performed and
satisfied in full. The Guarantor guarantees and agrees that the Seller
Obligations will be satisfied in accordance with the terms thereof, subject to
the proviso to Section 1.1. The liability of the Guarantor under this Agreement
shall be absolute, unconditional and irrevocable irrespective of:
(i) any lack of validity, legality or enforceability of the Purchase
Agreement.
(ii) the failure of any 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 Seller Obligations;
(iii) 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;
(iv) 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
(v) 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.
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 or 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.
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Section 1.3 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 Seller Obligations and this Agreement, except
notices to the Guarantor specifically provided in this Agreement, and
(b) any requirement that the Depositor 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 Seller Obligations.
Section 1.4 Remedies and Waivers. No remedy herein conferred upon or
reserved to any 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 shall: (a) be valid unless evidenced by a writing
executed by each party (whether the Guarantor or a Beneficiary) to be bound
thereby, (b) constitute or be deemed to constitute a waiver of any other
provision of this Agreement or any provisions of the Purchase Agreement (whether
or not similar), or (c) constitute or be deemed to constitute a continuing
waiver unless otherwise expressly provided. No delay on the part of any
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 1.5 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 the Depositor 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 Seller Obligation, or
any equitable defense of any kind or nature to which the Seller is entitled with
respect to any Seller Obligation.
Section 1.6 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 to, any of the Seller 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.
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Section 1.7 Costs. The Guarantor agrees to indemnify the Depositor 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
any Beneficiary 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 1.8 Interest. If the Guarantor shall fail to make in immediately
available funds any payment required to be made hereunder when due, 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 Seller
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 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
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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 the Depositor and shall survive the delivery to the Beneficiaries of
this Agreement, regardless of any investigations made by or on behalf of any
Beneficiary, until such time as the Seller 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, the Depositor and the Other
Beneficiaries and upon the respective successors, assigns, estates, heirs,
executors and administrators of the Guarantor, the Depositor and the Other
Beneficiaries; provided, however, that, except as contemplated by the next two
sentences, (a) the Guarantor may not assign or delegate any of its obligations
hereunder without the prior written consent of the Depositor and each Other
Beneficiary, or their respective successors and assigns, which consent shall not
be unreasonably withheld so long as (i) the then current net worth of the
assignee is no less than the then current net worth of the Guarantor and (ii)
the assignee makes the representations and warranties set forth in Sections
2.1(a), (b) and (c) (with such reasonable modifications as the circumstances
require, none of which modifications materially and adversely affect the
Beneficiaries), and (b) each Beneficiary shall be entitled to assign its
respective rights hereunder only to an affiliate. If the Depositor assigns to
any party any of its rights under the Purchase Agreement in respect of any
Seller Obligations in accordance with the Purchase Agreement, it 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 or any Beneficiary
may be merged or consolidated, or any entity resulting from any merger,
conversion or consolidation to which the Guarantor or any Beneficiary is a
party, or any person succeeding to all or substantially all of the business of
the Guarantor or any Beneficiary, shall be the successor hereunder to the
Guarantor or such Beneficiary, as the case may be.
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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:
ContiFinancial Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Counsel
(b) If to the Depositor:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
The Guarantor and the Depositor each 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. No term or provision of
this Agreement may be amended, waived, changed, modified, altered, released or
terminated in any manner unless such amendment, waiver, change, modification,
alteration release or termination is in writing and signed by the party (whether
the Guarantor or a Beneficiary) against whom such amendment, waiver, change,
modification, alteration, release or termination is sought to be enforced.
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 shall be governed in
accordance with the internal laws and decisions of the State of New York. The
Guarantor and the Beneficiaries intend that the provisions of Section 5-1401 of
the New York General Obligations Law shall apply to this Agreement.
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Section 3.9 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.
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IN WITNESS WHEREOF, the Guarantor has caused this Agreement to be duly
executed and delivered, all as of the date first above written.
CONTIFINANCIAL CORPORATION
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
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