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EXHIBIT 10.T.1
CERTIFICATE PURCHASE AGREEMENT
FINOVA COMMERCIAL MORTGAGE LOAN OWNER TRUST 1998-1
among
FINOVA COMMERCIAL MORTGAGE LOAN OWNER TRUST 1998-1,
as Trust,
FINOVA REALTY CAPITAL LOAN WAREHOUSE FUNDING, L.P.,
as Depositor
and
XXXXXX XXXXXXX SECURITIZATION FUNDING INC.
as Purchaser
dated as of September 29, 1998
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms.............................................................................. 1
Section 1.02. Other Definitional Provisions...................................................................... 2
ARTICLE II
COMMITMENT AND CLOSING
Section 2.01. Commitment......................................................................................... 3
Section 2.02. Closing............................................................................................ 3
ARTICLE III
TRANSFER DATES AND COLLATERAL VALUE EXCESS DATES
Section 3.01. Transfer Dates and Purchase Value Excess Dates..................................................... 4
ARTICLE IV
CONDITIONS PRECEDENT TO EFFECTIVENESS OF COMMITMENT
Section 4.01. Closing Subject to Conditions Precedent............................................................ 5
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE TRUST AND THE DEPOSITOR
Section 5.01. Trust.............................................................................................. 7
Section 5.02. Securities Act..................................................................................... 9
Section 5.03. No Fee............................................................................................ 10
Section 5.04. Information....................................................................................... 10
Section 5.05. The Purchased Certificates........................................................................ 10
Section 5.06. Use of Proceeds................................................................................... 10
Section 5.07. The Depositor..................................................................................... 10
Section 5.08. Taxes, etc........................................................................................ 10
Section 5.09. Financial Condition............................................................................... 11
ARTICLE VI
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER
Section 6.01. Organization...................................................................................... 11
Section 6.02. Authority, etc.................................................................................... 11
Section 6.03. Securities Act.................................................................................... 11
Section 6.04. Investment Company Act............................................................................ 12
Section 6.05. Conflicts With Law................................................................................ 12
Section 6.06. Conflicts With Agreements, etc.................................................................... 12
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ARTICLE VII
COVENANTS OF THE TRUST AND THE DEPOSITOR
Section 7.01. Information from the Trust........................................................................ 12
Section 7.02. Access to Information............................................................................. 12
Section 7.03. Ownership and Security Interests; Further Assurances.............................................. 13
Section 7.04. Covenants......................................................................................... 13
Section 7.05. Amendments........................................................................................ 13
Section 7.06. With Respect to the Exempt Status of the Purchased Certificates................................... 13
Section 7.07. Option to Acquire Future Class A Certificates..................................................... 14
ARTICLE VIII
ADDITIONAL COVENANTS
Section 8.01. Legal Conditions to Closing....................................................................... 14
Section 8.02. Expenses.......................................................................................... 14
Section 8.03. Mutual Obligations................................................................................ 15
Section 8.04. Restrictions on Transfer.......................................................................... 15
Section 8.05. Confidentiality................................................................................... 15
Section 8.06. Information Provided by the Purchaser............................................................. 15
Section 8.07. Opinions.......................................................................................... 15
Section 8.08. Agents............................................................................................ 15
ARTICLE IX
INDEMNIFICATION
Section 9.01. Indemnification of Purchaser...................................................................... 16
Section 9.02. Procedure and Defense............................................................................. 16
ARTICLE X
MISCELLANEOUS
Section 10.01. Amendments....................................................................................... 17
Section 10.02. Notices.......................................................................................... 17
Section 10.03. No Waiver; Remedies.............................................................................. 17
Section 10.04. Binding Effect; Assignability.................................................................... 17
Section 10.05. Provision of Documents and Information........................................................... 18
Section 10.06. Governing Law; Jurisdiction...................................................................... 18
Section 10.07. No Proceedings................................................................................... 19
Section 10.08. Execution in Counterparts........................................................................ 19
Section 10.09. No Recourse - Purchaser.......................................................................... 19
Section 10.10. Survival......................................................................................... 19
Section 10.11. Tax Characterization............................................................................. 19
Schedule I - Purchaser Account Information
Schedule II - Information for Notices
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CERTIFICATE PURCHASE AGREEMENT ("Certificate Purchase
Agreement") dated as of September 29, 1998, among FINOVA COMMERCIAL MORTGAGE
LOAN OWNER TRUST 0000-0 (xxx "Xxxxx"), XXXXXX REALTY CAPITAL WAREHOUSE FUNDING,
L.P. (the "Depositor"), and XXXXXX XXXXXXX SECURITIZATION FUNDING INC. ("MSSFI,"
and in its capacity as Purchaser hereunder, the "Purchaser").
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. Capitalized terms used
herein without definition shall have the meanings set forth in the Trust and
Servicing Agreement (as defined below). Additionally, the following terms shall
have the following meanings:
"Closing" shall have the meaning set forth in Section 2.02.
"Closing Date" shall have the meaning set forth in Section
2.02.
"Commitment" means the commitment of the Purchaser to purchase
Additional Class A Certificate Principal Balances pursuant to Section 2.01.
"Commitment Amount" means an amount equal to, at any date of
determination, $1,000,000,000.
"Confidential Information" means the Basic Documents, the
Purchased Certificates, all marketing information, financial information, terms
sheets and other information concerning the transactions contemplated thereby,
prepared by the Purchaser and its Affiliates.
"Default" shall have the meaning provided in Section 3.01.
"Exchange Act" shall mean the Securities Exchange Act of 1934.
"Governmental Actions" means any and all consents, approvals,
permits, orders, authorizations, waivers, exceptions, variances, exemptions or
licenses of, or registrations, declarations or filings with, any Governmental
Authority required under any Governmental Rules.
"Governmental Authority" means the United States of America,
any state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government and having jurisdiction over the applicable Person.
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"Governmental Rules" means any and all laws, statutes, codes,
rules, regulations, ordinances, orders, writs, decrees and injunctions, of any
Governmental Authority and any and all legally binding conditions, standards,
prohibitions, requirements and judgments of any Governmental Authority.
"Increase" means the increase of the Class A Certificate
Principal Balance through the purchase by the Purchaser of Additional Class A
Certificate Principal Balances sold pursuant to the terms hereof.
"Indemnified Party" means the Purchaser and any of its
officers, directors, employees, agents, representatives, assignees and
Affiliates and any Person who controls the Purchaser or its Affiliates within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act.
"Investment Company Act" shall have the meaning provided in
Section 5.01(i).
"Lien" means, with respect to any asset, (a) any mortgage,
lien, pledge, charge, security interest, hypothecation, option or encumbrance of
any kind in respect of such asset or (b) the interest of a vendor or lessor
under any conditional sale agreement, financing lease or other title retention
agreement relating to such asset.
"Loan Originator" means FINOVA Capital Corporation, a Delaware
corporation.
"Purchased Certificates" means the Class A Certificates issued
by the Trust pursuant to the Trust and Servicing Agreement.
"Purchaser" means the Purchaser and its permitted successors
and assigns.
"Transfer Obligor" means FINOVA Capital Corporation, a
Delaware corporation.
"Trust and Servicing Agreement" means the Trust and Servicing
Agreement dated as of September 1, 1998 among FINOVA Commercial Mortgage Loan
Owner Trust 1998-1, as Trust, FINOVA Capital Corporation, as Loan Originator,
FINOVA Capital Corporation as Transfer Obligor, FINOVA Capital Corporation as
Servicer and Wilmington Trust Company, as Owner Trustee, as the same may be
amended, modified or supplemented from time to time.
"Third Party Claim" has the meaning specified in Section 9.02
hereof.
SECTION 1.02. Other Definitional Provisions.
(a) All terms defined in this Certificate Purchase Agreement
shall have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined therein.
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(b) As used herein and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
Section 1.01, and accounting terms partially defined in Section 1.01 to the
extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles. To the extent that the definitions of
accounting terms herein are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained herein shall
control.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Certificate Purchase Agreement shall refer to
this Certificate Purchase Agreement as a whole and not to any particular
provision of this Certificate Purchase Agreement; and Section, subsection,
Schedule and Exhibit references contained in this Certificate Purchase Agreement
are references to Sections, subsections, and Exhibits in or to this Certificate
Purchase Agreement unless otherwise specified.
ARTICLE II
COMMITMENT AND CLOSING
SECTION 2.01. Commitment.
(a) On each Transfer Date and Purchase Value Excess Date
during the Revolving Period, to the extent that the Outstanding Class A
Certificate Principal Balance (after giving effect to the proposed Increase) is
less than the Commitment Amount, and subject to the terms and conditions hereof
and in accordance with the other Basic Documents, the Purchaser agrees to fund
such Increases in the Purchased Certificates pursuant to this Section 2.01(a)
subject to the terms and conditions and in reliance upon the covenants,
representations and warranties set forth herein and in the other Basic
Documents, provided that the Outstanding Class A Certificate Principal Balance
(after giving effect to the proposed Increase) of all Certificates for which
Increases were effected pursuant to this Section 2.01(a) is less than
$1,000,000,000.
(b) The Commitment Amount may be irrevocably reduced in whole
or in part by the Trust upon 5 Business Days prior written notice to the
Purchaser, with a copy to the Owner Trustee.
SECTION 2.02. Closing. The closing (the "Closing") of the
execution of the Basic Documents and Purchased Certificates shall take place at
10:00 a.m. at the offices of Cadwalader, Xxxxxxxxxx & Xxxx, 000 Xxxxxx Xxxx, Xxx
Xxxx, Xxx Xxxx 00000, on September 29, 1998, or if the conditions to closing set
forth in Article IV of this Certificate Purchase Agreement shall not have been
satisfied or waived by such date, as soon as practicable after such conditions
shall have been satisfied or waived, or at such other time, date and place as
the parties shall agree upon (the date of the Closing being referred to herein
as the "Closing Date").
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ARTICLE III
TRANSFER DATES AND COLLATERAL VALUE EXCESS DATES
SECTION 3.01. Transfer Dates and Purchase Value Excess Dates.
(a) Subject to the conditions and terms set forth herein and
in Section 3.06(a) of the Trust and Servicing Agreement with respect to each
Transfer Date and Section 3.06(b) of the Trust and Servicing Agreement with
respect to each Purchase Value Excess Date, the Trust may request, and the
Purchaser agrees to purchase Additional Class A Certificate Principal Balances
from the Trust from time to time in accordance with, and upon the satisfaction,
as of the applicable Transfer Date or Purchase Value Excess Date, as the case
may be, of each of the following additional conditions:
(i) With respect to each Transfer Date, each condition set
forth in Section 3.06(a) of the Trust and Servicing Agreement shall have been
satisfied and with respect to each Purchase Value Excess Date, each condition
set forth in Section 3.06(b) of the Trust and Servicing Agreement shall have
been satisfied;
(ii) Each of the representations and warranties of the
Trust, the Loan Originator, the Transfer Obligor, the Servicer and the Depositor
made in the Basic Documents shall be true and correct as of such date (except to
the extent they expressly relate to an earlier or later time);
(iii) The Trust, the Loan Originator, the Transfer
Obligor, the Servicer and the Depositor shall be in compliance with all of their
respective covenants contained in the Basic Documents and the Purchased
Certificates;
(iv) No Event of Default and no Default shall have
occurred or shall be occurring; and
(v) With respect to each Transfer Date, the Purchaser
shall have received evidence satisfactory to it of the completion of all
recordings, registrations, and filings as may be necessary or, in the reasonable
opinion of the Purchaser, desirable to perfect or evidence the assignments
required to be effected on such Transfer Date including, without limitation, the
assignment of the Loans and the proceeds thereof required to be assigned
pursuant to the related LPA Assignment and the T&SA Assignment.
(b) The Purchaser shall determine in its sole discretion
whether each of the above conditions have been met and its determination shall
be binding on the parties hereto.
(c) (i) The price paid by the Purchaser on each Transfer Date
for the related Additional Class A Certificate Principal Balance shall be equal
to 100% of such Additional Class A Certificate Principal Balance, and shall be
remitted not later than 4:00 p.m. New York City time on the Transfer Date by
wire transfer of immediately available funds to the Advance Account.
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(ii) The price paid by the Purchaser on each Purchase
Value Excess Date for the related Additional Class A Certificate Principal
Balance shall be equal to 100% of the amount of Additional Class A Certificate
Principal Balance requested by the Trust, which amount shall not exceed the
Purchase Value Excess as of such Purchase Value Excess Date, and shall be
remitted not later than 4:00 p.m. New York City time on the Purchase Value
Excess Date by wire transfer of immediately available funds to (A) the Transfer
Obligation Account, in an amount equal to the lesser of (1) the Additional Class
A Certificate Principal Balance and (2) the Transfer Obligation Target Amount
and (B) the Advance Account the excess (if any) of the Additional Class A
Certificate Principal Balance over the amount deposited in the Transfer
Obligation Account pursuant to clause (A) above.
(d) The Purchaser shall record on the schedule attached to the
Purchased Certificates, the date and amount of any Additional Class A
Certificate Principal Balance purchased by it; provided, that failure to make
such recordation on such schedule or any error in such schedule shall not
adversely affect the Purchaser's rights with respect to its Class A Certificate
Principal Balance and its right to receive interest payments in respect of the
Class A Certificate Principal Balance actually held. Absent manifest error, the
Class A Certificate Principal Balance of the Purchased Certificates as set forth
in the Purchaser's records shall be binding upon the parties hereto,
notwithstanding any notation or record made or kept by any other party hereto.
ARTICLE IV
CONDITIONS PRECEDENT TO
EFFECTIVENESS OF COMMITMENT
SECTION 4.01 Closing Subject to Conditions Precedent. The
effectiveness of the Commitment hereunder is subject to the satisfaction at the
time of the Closing of the following conditions (any or all of which may be
waived by the Purchaser in its sole discretion):
(a) Performance by the Trust, the Depositor, the Servicer, the
Transfer Obligor and the Loan Originator. All the terms, covenants, agreements
and conditions of the Basic Documents to be complied with and performed by the
Trust, the Depositor, the Servicer, the Transfer Obligor and the Loan Originator
on or before the Closing Date shall have been complied with and performed in all
material respects.
(b) Representations and Warranties. Each of the
representations and warranties of the Trust, the Depositor, the Servicer, the
Transfer Obligor and the Loan Originator made in the Basic Documents shall be
true and correct in all material respects as of the Closing Date (except to the
extent they expressly relate to an earlier or later time).
(c) Officer's Certificate. The Purchaser shall have received
in form and substance satisfactory to the Purchaser, an Officer's Certificate
from the Depositor, the Servicer, the Transfer Obligor and the Loan Originator
and a certificate of an Authorized
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Officer of the Trust, dated the Closing Date, certifying to the satisfaction of
the conditions set forth in the preceding paragraphs (a) and (b).
(d) Opinions of Counsel to the Trust, Loan Originator,
Transfer Obligor, Servicer and Depositor. Counsel to the Trust, Loan Originator,
Transfer Obligor, Servicer and Depositor shall have delivered to the Purchaser
favorable opinions, dated as of the Closing Date and satisfactory in form and
substance to the Purchaser and its counsel.
(e) Opinions of Counsel to the Owner Trustee. Delaware counsel
to the Owner Trustee of the Trust shall have delivered to the Purchaser
favorable opinions regarding the formation, existence and standing of the Trust
and of the Trust's execution, authorization and delivery of each of the Basic
Documents to which it is a party and such other matters as the Purchaser may
request, dated as of the Closing Date and satisfactory in form and substance to
the Purchaser and its counsel.
(f) Filings and Recordations. The Purchaser shall have
received evidence satisfactory to it of (i) the completion of all recordings,
registrations, and filings as may be necessary or, in the opinion of the
Purchaser, desirable to perfect or evidence the assignment by the Loan
Originator to the Depositor of the Loan Originator's ownership interest in the
Owner Trust Estate including, without limitation, the Loans and the proceeds
thereof, and (ii) the completion of all recordings, registrations and filings as
may be necessary or, in the opinion of the Purchaser, desirable to perfect or
evidence the assignment by the Depositor to the Trust of the Depositor's
ownership interest in the Owner Trust Estate including, without limitation, the
Loans and the proceeds thereof.
(g) Documents. The Purchaser shall have received a duly
executed counterpart of each of the Basic Documents, the Purchased Certificates
and each and every document or certification delivered by any party in
connection with any of the Basic Documents or the Purchased Certificates, and
each such document shall be in full force and effect.
(h) Actions or Proceedings. No action, suit, proceeding or
investigation by or before any Governmental Authority shall have been instituted
to restrain or prohibit the consummation of, or to invalidate, any of the
transactions contemplated by the Basic Documents, the Purchased Certificates and
the documents related thereto in any material respect.
(i) Approvals and Consents. All Governmental Actions of all
Governmental Authorities required with respect to the transactions contemplated
by the Basic Documents, the Purchased Certificates and the documents related
thereto shall have been obtained or made.
(j) Accounts. The Purchaser shall have received evidence
satisfactory to it that each Trust Account has each been established in
accordance with the terms of the Trust and Servicing Agreement.
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(k) Fees and Expenses. The fees and expenses payable pursuant
to Section 8.02(b) shall have been paid.
(l) Other Documents. The Trust, the Loan Originator, the
Transfer Obligor, the Servicer and the Depositor shall have furnished to the
Purchaser such other opinions, information, certificates and documents as the
Purchaser may request.
(m) Proceedings in Contemplation of Sale of Purchased
Certificates. All actions and proceedings undertaken by the Trust, the Loan
Originator, the Transfer Obligor, the Servicer and the Depositor in connection
with the issuance and sale of the Purchased Certificates as herein contemplated
shall be satisfactory in all respects to the Purchaser and its counsel.
If any condition specified in this Section 4.01 shall not have
been fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Purchaser by notice to the Transfer Obligor at any time at or
prior to the Closing Date, and the Purchaser shall incur no liability as a
result of such termination.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE TRUST AND THE DEPOSITOR
The Trust and the Depositor hereby jointly and severally make
the following representations and warranties to the Purchaser, as of the Closing
Date, and as of each Transfer Date and Purchase Value Excess Date, and the
Purchaser shall be deemed to have relied on such representations and warranties
in making (or committing to make) purchases of Additional Class A Certificate
Balances on each Transfer Date and Purchase Value Excess Date:
SECTION 5.01. Trust.
(a) The Trust has been duly organized and is validly existing
and in good standing as a business trust under the laws of the State of
Delaware, with requisite trust power and authority to own its properties and to
transact the business in which it is now engaged, and is duly qualified to do
business and is in good standing (or is exempt from such requirements) in each
State of the United States where the nature of its business requires it to be so
qualified and the failure to be so qualified and in good standing would have a
material adverse effect on the Trust or any adverse effect on the interests of
the Purchaser.
(b) The issuance, sale, assignment and conveyance of the
Purchased Certificates, the performance of the Trust's obligations under each
Basic Document to which it is a party and the consummation of the transactions
therein contemplated will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in the creation
or imposition of any Lien (other than any Lien created by the Basic Documents),
charge or encumbrance upon any of the property or assets of the Trust or any of
its Affiliates pursuant to the terms of, any indenture, mortgage, deed of trust,
loan agreement
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or other agreement or instrument to which it or any of its Affiliates is bound
or to which any of its property or assets is subject, nor will such action
result in any violation of the provisions of its organizational documents or any
Governmental Rule applicable to the Trust, in each case which could be expected
to have a material adverse effect on the transactions contemplated therein.
(c) No Governmental Action which has not been obtained is
required by or with respect to the Trust in connection with the execution and
delivery of the Purchased Certificates to the Purchaser. No Governmental Action
which has not been obtained is required by or with respect to the Trust in
connection with the execution and delivery of any of the Basic Documents to
which the Trust is a party or the consummation by the Trust of the transactions
contemplated thereby.
(d) The Trust possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
it, and has not received any notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect its condition, financial or
otherwise, or its earnings, business affairs or business prospects.
(e) Each of the Basic Documents to which the Trust is a party
has been duly authorized, executed and delivered by the Trust and is a valid and
legally binding obligation of the Trust, enforceable against the Trust in
accordance with its terms, subject to enforcement to bankruptcy, insolvency,
reorganization, moratorium and other similar laws of general applicability
relating to or affecting creditors' rights and to general principles of equity.
(f) The execution, delivery and performance by the Trust of
each of its obligations under each of the Basic Documents to which it is a party
will not result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any agreement or instrument to which the Trust is
a party or by which the Trust is bound or to which any of the its properties are
subject or of any statute, order or regulation applicable to the Trust of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over the Trust or any of its properties, in each case which could
be expected to have a material adverse effect on any of the transactions
contemplated therein.
(g) The Trust is not in violation of its organizational
documents or in default under any agreement, indenture or instrument the effect
of which violation or default would be material to the Trust or the transactions
contemplated by the Basic Documents. The Trust is not a party to, bound by or in
breach or violation of any indenture or other agreement or instrument, or
subject to or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Trust that materially and adversely affects, or may in the future
materially and adversely affect (i) the ability of the Trust to perform its
obligations under any of the Basic Documents to
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which it is a party or (ii) the business, operations, financial condition,
properties, assets or prospects of the Trust.
(h) There are no actions or proceedings against, or
investigations of, the Trust pending, or, to the knowledge of the Trust
threatened, before any Governmental Authority, court, arbitrator, administrative
agency or other tribunal (i) asserting the invalidity of any of the Basic
Documents, or (ii) seeking to prevent the issuance of the Purchased Certificates
or the consummation of any of the transactions contemplated by the Basic
Documents or the Purchased Certificates, or (iii) that, if adversely determined,
could materially and adversely affect the business, operations, financial
condition, properties, assets or prospects of the Trust or the validity or
enforceability of, or the performance by the Trust of its respective obligations
under, any of the Basic Documents to which it is a party or (iv) seeking to
affect adversely the income tax attributes of the Purchased Certificates.
(i) The Trust is not, and neither the issuance and sale of the
Purchased Certificates to the Purchaser nor the activities of the Trust pursuant
to the Basic Documents, shall render the Trust an "investment company" or under
the "control" of an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act").
(j) It is not necessary to qualify the Trust and Servicing
Agreement under the Trust Indenture Act of 1939, as amended.
(k) The Trust is solvent and has adequate capital for its
business and undertakings.
(l) The chief executive offices of the Trust are located at
FINOVA Commercial Mortgage Loan Owner Trust 1998-1, c/o Wilmington Trust
Company, as Owner Trustee, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administration, telecopy
number: (000) 000-0000, telephone number (000) 000-0000.
(m) There are no contracts, agreements or understandings
between the Trust and any Person granting such Person the right to require the
filing at any time of a registration statement under the Act with respect to the
Purchased Certificates.
SECTION 5.02. Securities Act. Assuming the accuracy of the
representations and warranties of and compliance with the covenants of the
Purchaser contained herein, the sale of the Purchased Certificates pursuant to
this Agreement and the sale of Additional Class A Certificate Principal Balances
are each exempt from the registration and prospectus delivery requirements of
the Act. In the case of the offer or sale of the Purchased Certificates, no form
of general solicitation or general advertising was used by the Trust, any
Affiliates of the Trust or any person acting on its or their behalf, including,
but not limited to, advertisements, articles, notices or other communications
published in any newspaper, magazine or similar medium or broadcast over
television or radio, or any seminar or meeting whose attendees have been invited
by any general solicitation or general advertising. Neither the Trust, any
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Affiliates of the Trust nor any Person acting on its or their behalf has offered
or sold, nor will the Trust or any Person acting on its behalf offer or sell
directly or indirectly, the Purchased Certificates or any other security in any
manner that, assuming the accuracy of the representations and warranties and the
performance of the covenants given by each Purchaser and compliance with the
applicable provisions of the Trust and Servicing Agreement with respect to each
transfer of the Purchased Certificates, would render the issuance and sale of
any of the Purchased Certificates as contemplated hereby a violation of Section
5 of the Act or the registration or qualification requirements of any state
securities laws, nor has any such Person authorized, nor will it authorize, any
Person to act in such manner.
SECTION 5.03. No Fee. Neither the Trust, the Depositor nor any
of their Affiliates has paid or agreed to pay to any Person any compensation for
soliciting another to purchase the Purchased Certificates.
SECTION 5.04. Information. The information provided pursuant
to Section 7.01(a) hereof will, at the date thereof, be true and correct in all
material respects.
SECTION 5.05. The Purchased Certificates. The Purchased
Certificates have been duly and validly authorized, and, when executed and
authenticated in accordance with the terms of the Trust and Servicing Agreement,
and delivered to and paid for in accordance with this Certificate Purchase
Agreement, will be duly and validly issued and outstanding and will be entitled
to the benefits of the Trust and Servicing Agreement.
SECTION 5.06. Use of Proceeds. No proceeds of a purchase
hereunder will be used (i) for a purpose that violates or would be inconsistent
with Regulations G, T, U or X promulgated by the Board of Governors of the
Federal Reserve System from time to time or (ii) to acquire any security in any
transaction in violation of Section 13 or 14 of the Securities Exchange Act of
1934, as amended.
SECTION 5.07. The Depositor. The Depositor hereby makes to the
Purchaser each of the representations, warranties and covenants set forth in
Section 4.01 of the Trust and Servicing Agreement as of the Closing Date, as of
each Transfer Date and as of each Purchase Value Excess Date (except to the
extent that any such representation, warranty or covenant is expressly made as
of another date).
SECTION 5.08. Taxes, etc. Any taxes, fees and other charges of
Governmental Authorities applicable to the Trust and the Depositor, except for
franchise or income taxes, in connection with the execution, delivery and
performance by the Trust and the Depositor of each Basic Document to which they
are parties, the issuance of the Purchased Certificates or otherwise applicable
to the Trust or the Depositor in connection with the Owner Trust Estate have
been paid or will be paid by the Trust or the Depositor, as applicable, at or
prior to the Closing Date, Transfer Date or Purchase Value Excess Date, as
applicable, to the extent then due.
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SECTION 5.09. Financial Condition. On the date hereof, on each
Transfer Date and on each Purchase Value Excess Date, neither the Trust nor the
Depositor is or will be insolvent or the subject of any voluntary or involuntary
bankruptcy proceeding.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO THE PURCHASER
The Purchaser hereby makes the following representations and
warranties, as to itself, to the Trust and the Depositor on which the same may
rely in entering into this Certificate Purchase Agreement.
SECTION 6.01. Organization. The Purchaser has been duly
organized and is validly existing and in good standing under the laws of the
jurisdiction of its organization with power and authority to own its properties
and to transact the business in which it is now engaged.
SECTION 6.02. Authority, etc. The Purchaser has all requisite
power and authority to enter into and perform its obligations under this
Certificate Purchase Agreement and to consummate the transactions herein
contemplated. The execution and delivery by the Purchaser of this Certificate
Purchase Agreement and the consummation by the Purchaser of the transactions
contemplated hereby have been duly and validly authorized by all necessary
organizational action on the part of the Purchaser. This Certificate Purchase
Agreement has been duly and validly executed and delivered by the Purchaser and
constitutes a legal, valid and binding obligation of the Purchaser, enforceable
against the Purchaser in accordance with its terms, subject as to enforcement to
bankruptcy, reorganization, insolvency, moratorium and other similar laws of
general applicability relating to or affecting creditors' rights and to general
principles of equity. Neither the execution and delivery by the Purchaser of
this Certificate Purchase Agreement nor the consummation by the Purchaser of any
of the transactions contemplated hereby, nor the fulfillment by the Purchaser of
the terms hereof, will conflict with, or violate, result in a breach of or
constitute a default under any term or provision of the Purchaser's
organizational documents or any Governmental Rule applicable to the Purchaser.
SECTION 6.03. Securities Act. The Purchaser will acquire the
Purchased Certificates pursuant to this Certificate Purchase Agreement without a
view to any public distribution thereof, and will not offer to sell or otherwise
dispose of the Purchased Certificates (or any interest therein) in violation of
any of the registration requirements of the Act or any applicable state or other
securities laws, or by means of any form of general solicitation or general
advertising (within the meaning of Regulation D under the Act) and will comply
with the requirements of the Trust and Servicing Agreement. The Purchaser
acknowledges that it has no right to require the Trust to register the Purchased
Certificates under the Act or any other securities law.
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SECTION 6.04. Investment Company Act. The Purchaser is not
required to register as an "investment company" nor is the Purchaser controlled
by an "investment company" within the meaning of the Investment Company Act.
SECTION 6.05. Conflicts With Law . The execution, delivery and
performance by the Purchaser of its obligations under this Certificate Purchase
Agreement will not result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any agreement or instrument to
which the Purchaser is a party or by which the Purchaser is bound or of any
statute, order or regulation applicable to the Purchaser of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Purchaser, in each case which could be expected to have a material
adverse effect on the transactions contemplated therein.
SECTION 6.06. Conflicts With Agreements, etc. The Purchaser is
not in violation of its organizational documents or in default under any
agreement, indenture or instrument the effect of which violation or default
would be materially adverse to the Purchaser in the performance of its
obligations or duties under any of the Basic Documents to which it is a party.
The Purchaser is not a party to, bound by or in breach or violation of any
indenture or other agreement or instrument, or subject to or in violation of any
statute, order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over the Purchaser that
materially and adversely affects, or may in the future materially and adversely
affect the ability of the Purchaser to perform its obligations under this
Certificate Purchase Agreement.
ARTICLE VII
COVENANTS OF THE TRUST AND THE DEPOSITOR
SECTION 7.01. Information from the Trust. So long as the
Purchased Certificates remain outstanding, the Trust and the Depositor shall
each furnish to the Purchaser:
(a) such information (including financial information),
documents, records or reports with respect to the Owner Trust Estate, the Loans,
the Trust, the Loan Originator, the Transfer Obligor the Servicer or the
Depositor as the Purchaser may from time to time request;
(b) as soon as possible and in any event within five Business
Days after the occurrence thereof, notice of each Event of Default under the
Trust and Servicing Agreement, and each Default; and
(c) promptly and in any event within 30 days after the
occurrence thereof, written notice of a change in address of the chief executive
office of the Trust or the Depositor.
SECTION 7.02. Access to Information. So long as the Purchased
Certificates remain outstanding, each of the Trust and the Depositor shall, at
any time and from time to
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time during regular business hours, or at such other times upon reasonable
notice to the Trust or the Depositor, as applicable, permit the Purchaser, or
its agents or representatives to:
(a) examine all books, records and documents (including
computer tapes and disks) in the possession or under the control of the Trust,
or the Depositor relating to the Loans as may be requested, and
(b) visit the offices and property of the Trust and the
Depositor for the purpose of examining such materials described in clause (a)
above.
Except as provided in Section 10.05, any information obtained
by the Purchaser pursuant to this Section 7.02 shall be held in confidence
unless and to the extent such information (i) has become available to the
public, (ii) is required or requested by any Governmental Authority or in any
court proceeding or (iii) is required by any Governmental Rule.
SECTION 7.03. Ownership and Security Interests; Further
Assurances. The Depositor will take all action necessary to maintain the Trust's
ownership interest in the Loans and the other items sold pursuant to Article III
of the Trust and Servicing Agreement.
The Trust and the Depositor agree to take any and all acts and
to execute any and all further instruments necessary or requested by the
Purchaser to more fully effect the purposes of this Certificate Purchase
Agreement.
SECTION 7.04. Covenants. The Trust and the Depositor shall
each duly observe and perform each of their respective covenants set forth in
each of the Basic Documents to which they are parties.
SECTION 7.05. Amendments. Neither the Trust or the Depositor
shall make, or permit any Person to make, any amendment, modification or change
to, or provide any waiver under any Basic Document to which the Trust or the
Depositor, as applicable, is a party without the prior written consent of the
Purchaser to the extent that such amendment, modification, change or waiver
would materially and adversely affect the interests, rights or powers of the
Purchaser under any of the Basic Documents.
SECTION 7.06. With Respect to the Exempt Status of the
Purchased Certificates.
(a) Neither the Trust or the Depositor, nor any of their
respective Affiliates, nor any Person acting on their behalf will, directly or
indirectly, make offers or sales of any security, or solicit offers to buy any
security, under circumstances that would require the registration of the
Purchased Certificates under the Securities Act.
(b) Neither the Trust or the Depositor, nor any of their
Affiliates, nor any Person acting on their behalf will engage in any form of
general solicitation or general
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advertising (within the meaning of Regulation D promulgated under the Securities
Act) in connection with any offer or sale of the Purchased Certificates.
(c) On or prior to any Transfer Date or Purchase Value Excess
Date, the Trust and the Depositor will furnish or cause to be furnished to the
Purchaser and any subsequent purchaser therefrom of Additional Class A
Certificate Principal Balance, if the Purchaser or such subsequent purchaser so
request, a letter from each Person furnishing a certificate or opinion on the
Closing Date as described in Section 4.01 hereof or on or before any such
Transfer Date or Purchase Value Excess Date in which such Person shall state
that such subsequent purchaser may rely upon such original certificate or
opinion as though delivered and addressed to such subsequent purchaser and made
on and as of the Closing Date or such Transfer Date or Purchase Value Excess
Date, as the case may be, except for such exceptions set forth in such letter as
are attributable to events occurring after the Closing Date or such Transfer
Date or Purchase Value Excess Date.
SECTION 7.07. Option to Acquire Future Class A Certificates.
In consideration of the Commitment hereunder and for other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, the
Depositor covenants and agrees to, at the request of the Purchaser, sell to the
Purchaser class A certificates issued by trusts to be formed by the Depositor on
terms and conditions identical to those set forth herein, provided, however that
this option shall not apply to trusts formed by Affiliates of Depositor.
ARTICLE VIII
ADDITIONAL COVENANTS
SECTION 8.01. Legal Conditions to Closing. The parties hereto
will take all reasonable action necessary to obtain (and will cooperate with one
another in obtaining) any consent, authorization, permit, license, franchise,
order or approval of, or any exemption by, any Governmental Authority or any
other Person, required to be obtained or made by it in connection with any of
the transactions contemplated by this Certificate Purchase Agreement.
SECTION 8.02. Expenses.
(a) The Trust and the Depositor jointly and severally covenant
that, whether or not the Closing takes place, except as otherwise expressly
provided herein, all costs and expenses incurred in connection with this
Certificate Purchase Agreement and the transactions contemplated hereby shall be
paid by the Trust or the Depositor.
(b) The Trust and the Depositor jointly and severally covenant
to pay as and when billed by the Purchaser all of the out-of-pocket costs and
expenses incurred in connection with the consummation and administration of the
transactions contemplated hereby and in the other Basic Documents including,
without limitation, (i) all reasonable fees, disbursements and expenses of
counsel to the Purchaser, (ii) all reasonable fees and expenses of the Owner
Trustee and their counsel and (iii) all reasonable fees and expenses of the
Custodian and its counsel.
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SECTION 8.03. Mutual Obligations. On and after the Closing,
each party hereto will do, execute and perform all such other acts, deeds and
documents as the other party may from time to time reasonably require in order
to carry out the intent of this Certificate Purchase Agreement.
SECTION 8.04. Restrictions on Transfer. The Purchaser agrees
that it will comply with the restrictions on transfer of the Purchased
Certificates set forth in the Trust and Servicing Agreement and resell the
Purchased Certificates only in compliance with such restrictions.
SECTION 8.05. Confidentiality. Each of the Trust and the
Depositor shall hold in confidence all Confidential Information and shall not,
at any time hereafter, use disclose or divulge any such information, knowledge
or data to any Person except:
(a) Information which at the time of disclosure is a part of the
public knowledge or literature and readily accessible;
(b) Information required to be disclosed by a Governmental
Authority or applicable law or regulation; or
(c) Disclosure to a Person that has entered into a
confidentiality agreement, acceptable to the Purchaser.
Any Confidential Information shall be held in confidence unless
and to the extent such information (i) has become available to the public, (ii)
is required or requested by any Governmental Authority or in any court
proceeding or (iii) is required by any Governmental Rule.
SECTION 8.06. Information Provided by the Purchaser. The
Purchaser hereby covenants to determine LIBOR in accordance with the definition
thereof in the Basic Documents and shall give notice to the Servicer of the
Interest Payment Amount on each Determination Date. The Purchaser shall cause
the Market Value Agent to give notice to the Servicer of any Hedge Funding
Requirement on or before the Determination Date related to any Distribution
Date. In addition, on each Determination Date, the Purchaser hereby covenants to
give notice to the Servicer of (i) the Trust/Depositor Indemnities, (ii) Due
Diligence Fees and (iii) the Purchase Value for each Loan for the related
Distribution Date.
SECTION 8.07. Opinions. When obtained by the Loan Originator, the
Loan Originator shall cause its counsel to deliver to the Purchaser, favorable
opinions, dated as of the date of such delivery the effect that the Trust will
not be treated as an association (or publicly traded partnership) taxable as a
corporation or as a taxable mortgage pool, for federal income tax purposes.
Section 8.08. Agents. The Initial Class A Certificateholder
agrees to cause its Affiliate, Xxxxxx Xxxxxxx and Co. Incorporated, to act as
Market Value Agent and Disposition Agent in accordance with the terms of the
Basic Documents.
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ARTICLE IX
INDEMNIFICATION
SECTION 9.01. Indemnification of Purchaser. Each of the Trust,
the Servicer and the Depositor hereby agree to, jointly and severally, indemnify
and hold harmless each Indemnified Party against any and all losses, claims,
reasonable damages, liabilities, expenses or judgments (including reasonable
accounting fees and legal fees and other expenses incurred in connection with
this Certificate Purchase Agreement or any other Basic Document and any action,
suit or proceeding or any claim asserted) (collectively, "Losses"), as incurred
(payable promptly upon written request), for or on account of or arising from or
in connection with any information prepared by and furnished or to be furnished
by any of the Trust, Loan Originator, Servicer or the Depositor pursuant to or
in connection with the transactions contemplated hereby including, without
limitation, such written information as may have been and may be furnished in
connection with any due diligence investigation with respect to the business,
operations, financial condition of the Trust, Loan Originator, the Servicer, the
Depositor or with respect to the Loans, to the extent such information contains
any untrue statement of material fact or omits to state a material fact
necessary to make the statements contained herein or therein not misleading;
provided, however, that the Trust, Loan Originator, Servicer or the Depositor
shall not be so required to indemnify an Indemnified Party or to otherwise be
liable to an Indemnified Party for any losses in respect of the performance of
the Loans, the creditworthiness of the Borrowers under the Loans, changes in the
market value of the Loans or other, similar investment risks associated with the
Loans or for any losses arising from a breach of any representation or warranty
set forth in Sections 4.02 or 4.04 of the Trust and Servicing Agreement hereof,
to the extent that a remedy for the breach of which is provided in Sections 3.05
or 4.05 of the Trust and Servicing Agreement. The indemnities contained in this
Section 9.01 will be in addition to any liability which the Trust, the Servicer
or the Depositor may otherwise have pursuant to this Certificate Purchase
Agreement and any other Basic Document.
SECTION 9.02. Procedure and Defense. In case any action or
proceeding (including any governmental or regulatory investigation or
proceeding) shall be instituted involving any Indemnified Party in respect of
which indemnity may be sought pursuant to Section 9.01, such Indemnified Party
shall promptly notify the Trust, the Servicer and the Depositor in writing and,
upon request of the Indemnified Party, the Trust, the Servicer and the Depositor
shall assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Party to represent such Indemnified Party and
any others the indemnifying party may designate and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding; provided that
no failure to give such notice or deliver such documents shall effect the rights
to indemnity hereunder. The Indemnified Party will have the right to employ its
own counsel in any such action in addition to the counsel of the Servicer, but
the fees and expenses of such counsel will be at the expense of such Indemnified
Party, unless (i) the employment of counsel by the Indemnified Party at its
expense has been reasonably authorized in writing by the Depositor, Trust or
Servicer, (ii) the Depositor, Trust or Servicer has not in fact employed counsel
to assume the defense of such
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action within a reasonable time after receiving notice of the commencement of
the action, or (iii) the named parties to any such action or proceeding
(including any impleaded parties) including the Depositor, Trust or Servicer and
one or more Indemnified Parties, and the Indemnified Parties shall have been
advised by counsel that there may be one or more legal defenses available to
them which are different from or additional to those available to the Depositor,
Trust or Servicer. Expenses of counsel to any Indemnified Party shall be
reimbursed by the Trust, the Servicer and the Depositor as they are incurred.
The Trust, the Servicer and the Depositor shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the Indemnified Party from and against any loss or
liability by reason of such settlement or judgment. Neither the Trust, the
Servicer nor the Depositor will, without the prior written consent of the
Indemnified Party, effect any settlement of any pending or threatened proceeding
in respect of which any Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless
such settlement includes an unconditional release of such Indemnified Party from
all liability on claims that are the subject matter of such proceeding.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments. No amendment or waiver of any
provision of this Certificate Purchase Agreement shall in any event be effective
unless the same shall be in writing and signed by all of the parties hereto, and
then such amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 10.02. Notices. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in writing
(including telecopies) and mailed, telecopied or delivered (with a copy
delivered by overnight courier), as to each party hereto, at its address as set
forth in Schedule II hereto or at such other address as shall be designated by
such party in a written notice to the other parties hereto. All such notices and
communications shall be deemed effective upon receipt thereof, and in the case
of telecopies, when receipt is confirmed by telephone.
SECTION 10.03. No Waiver; Remedies. No failure on the part of
any party hereto to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 10.04. Binding Effect; Assignability.
(a) This Certificate Purchase Agreement shall be binding upon
and inure to the benefit of the Trust, the Depositor and the Purchaser and their
respective permitted successors and assigns (including any subsequent holders of
the Purchased Certificates);
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provided, however, neither the Trust or the Depositor shall have any right to
assign their respective rights hereunder or interest herein (by operation of law
or otherwise) without the prior written consent of the Purchaser.
(b) The Purchaser may, in the ordinary course of its business
and in accordance with applicable law, including applicable securities laws, at
any time sell to one or more Persons (each, a "Participant"), participating
interests in all or a portion of its rights and obligations under this
Certificate Purchase Agreement. Notwithstanding any such sale by the Purchaser
of participating interests to a Participant, the Purchaser's rights and
obligations under this Certificate Purchase Agreement shall remain unchanged,
the Purchaser shall remain solely responsible for the performance thereof, and
the Trust and the Depositor shall continue to deal solely and directly with the
Purchaser and shall have no obligations to deal with any Participant in
connection with the Purchaser's rights and obligations under this Certificate
Purchase Agreement. Each of the Trust and the Depositor also agrees that each
Participant shall be entitled to the benefits of Article IX hereof; provided,
however, that all amounts payable by the Trust or the Depositor to the
Participant shall be limited to the amounts which would have been payable
directly to the Purchaser with respect to such participating interest had the
Purchaser, rather than the participant, held such participating interest.
(c) This Certificate Purchase Agreement shall create and
constitute the continuing obligation of the parties hereto in accordance with
its terms, and shall remain in full force and effect until such time as all
amounts payable with respect to the Purchased Certificates shall have been paid
in full.
SECTION 10.05. Provision of Documents and Information. Each of
the Trust and the Depositor acknowledges and agrees that the Purchaser is
permitted to provide to any subsequent Purchaser, permitted assignees and
Participants, opinions, certificates, documents and other information relating
to the Trust, the Depositor and the Loans delivered to the Purchaser pursuant to
this Certificate Purchase Agreement.
SECTION 10.06. GOVERNING LAW; JURISDICTION. THIS CERTIFICATE
PURCHASE AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS. EACH OF THE PARTIES TO THIS CERTIFICATE PURCHASE AGREEMENT HEREBY
AGREES TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND ANY APPELLATE COURT HAVING JURISDICTION TO REVIEW THE
JUDGMENTS THEREOF. EACH OF THE PARTIES HEREBY WAIVES ANY OBJECTION BASED ON
FORUM NON CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED
HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF
SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
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SECTION 10.07. No Proceedings. Until the date that is one year
and one day after the last day on which any amount is outstanding under this
Certificate Purchase Agreement, the Depositor and the Purchaser hereby covenant
and agree that they will not institute against the Trust, or join in any
institution against the Trust of, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any United
States federal or state bankruptcy or similar law.
SECTION 10.08. Execution in Counterparts. This Certificate
Purchase Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same agreement.
SECTION 10.09. No Recourse - Purchaser.
(a) The obligations of the Purchaser under this Certificate
Purchase Agreement, or any other agreement, instrument, document or certificate
executed and delivered by or issued by the Purchaser or any officer thereof are
solely the partnership or corporate obligations of the Purchaser, as the case
may be. No recourse shall be had for payment of any fee or other obligation or
claim arising out of or relating to this Certificate Purchase Agreement or any
other agreement, instrument, document or certificate executed and delivered or
issued by the Purchaser or any officer thereof in connection therewith, against
any stockholder, limited partner, employee, officer, director or incorporator of
the Purchaser.
(b) The Purchaser by accepting the Certificate acknowledges
that such Certificate represents an obligation of the Trust and does not
represent an interest in or an obligation of the Loan Originator, the Servicer,
the Transfer Obligor, the Depositor, the Administrator, the Owner Trustee or any
Affiliate thereof and no recourse may be had against such parties or their
assets, except as may be expressly set forth or contemplated in this Agreement,
the Certificate or the Basic Documents.
SECTION 10.10. Survival. All representations, warranties,
covenants, guaranties and indemnifications contained in this Certificate
Purchase Agreement and in any document, certificate or statement delivered
pursuant hereto or in connection herewith shall survive the sale, transfer or
repayment of the Purchased Certificates.
SECTION 10.11. Tax Characterization. Each party to this
Certificate Purchase Agreement (a) acknowledges and agrees that it is the intent
of the parties to this Certificate Purchase Agreement that for all purposes,
including federal, state and local income, single business and franchise tax
purposes, the trust created under the Trust and Servicing Agreement will not be
characterized as an association (or publicly traded partnership) taxable as a
corporation, (b) agrees to treat the Purchased Certificates for federal, state
and local income and franchise tax purposes as partnership interests and (c)
agrees that the provisions of all Basic Documents shall be construed to further
these intentions of the parties.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Certificate
Purchase Agreement to be executed by their respective officers hereunto duly
authorized, as of the date first above written.
FINOVA COMMERCIAL MORTGAGE LOAN
OWNER TRUST 1998-1,
as Trust
By: Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee
By: /s/Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXX XXXXXXX SECURITIZATION
FUNDING INC.,
as Purchaser
By: /s/J. Xxxxxxx Xxx Xxxx
---------------------------------------
Name: Xxxxxxx Xxx Xxxx
Title:
FINOVA REALTY CAPITAL WAREHOUSE
FUNDING, L.P.,
as Depositor
By: FINOVA Warehouse Funding
Inc., as General Partner
By: /s/Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President - Assistant Treasurer
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ACCEPTED AND AGREED
WILMINGTON TRUST COMPANY, as Owner Trustee
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Name:
Title:
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SCHEDULE I
[PURCHASER ACCOUNT INFORMATION]
Citibank: ABA Routing number: 000000000.
For the Account of MSSFI: Account number: 00000000.
I-1
26
SCHEDULE II
[INFORMATION FOR NOTICES]
1. if to the Trust:
FINOVA Commercial Mortgage Loan Owner Trust 1998-1
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
Telephone:(000) 000-0000
2. if to the Loan Originator:
FINOVA Capital Corporation
0000 X. Xxxxxxx Xxx.
Xxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxx
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
3. if to the Depositor:
FINOVA Realty Capital Warehouse Funding, L.P.
c/o FINOVA Realty Capital Funding Inc.,
0000 X. Xxxxxxx Xxx.
Xxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxx
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
II-1
27
4. if to the Purchaser:
Xxxxxx Xxxxxxx Securitization Funding Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: J. Xxxxxxx Xxx Xxxx
Telecopy:(000) 000-0000
Telephone:(000) 000-0000
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