MORTGAGE LOAN PURCHASE AND SALE AGREEMENT
This Mortgage Loan Purchase and Sale Agreement, dated as of _________,
199__ (this "Agreement"), is between CRIIMI MAE CMBS Corp., a Delaware
corporation (the "Purchaser"), and ___________________, a[n] ___________________
corporation (the "Seller").
The Seller intends to sell, assign, transfer, set over and otherwise
convey to the Purchaser, and the Purchaser intends to purchase, subject to the
terms and conditions set forth below, certain mortgage loans (collectively, the
"Mortgage Loans") identified and more particularly described on Schedule I
attached hereto (the "Mortgage Loan Schedule"). Unless otherwise indicated on
the Mortgage Loan Schedule, the Mortgage Loans were originated by the Seller.
The parties acknowledge that the Purchaser proposes to [issue][cause
CRIIMI MAE Commercial Mortgage Trust [I], a ____________ business trust
established by the Purchaser (the "Issuer"), to issue] [Mortgage Pass-Through
Certificates] [Collateralized Mortgage Obligations], Series ___ (the
"Securities"), pursuant to a [Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement") to be dated as of __________, 19__ (the "Cut-off Date"),
among the Company, as depositor, ______________________, as master servicer (the
"Master Servicer"), ____________, as special servicer (the "Special Servicer")
and ____________, as trustee (in such capacity, the "Trustee") and REMIC
administrator (in such capacity, the "REMIC Administrator")] [Terms Indenture,
dated as of _________, 199_ (the "Terms Indenture"), between
___________________, as owner trustee (the "Owner Trustee"), on behalf of the
Issuer, and ____________________, as indenture trustee (the "Indenture Trustee")
on behalf of holders of the Securities (as defined below), which Terms Indenture
incorporates by reference the Company's Standard Indenture Provisions, dated as
of __________, 199_ (the "Standard Indenture Provisions"; and, the Terms
Indenture, as it incorporates the Standard Indenture Provisions, the
"Indenture")]. The Securities will [evidence undivided interests in a trust fund
(the "Trust Fund") to be established by the Company pursuant to the Pooling and
Servicing Agreement][constitute non-recourse obligations of the Company secured
by a pledge of a trust estate (the "Trust Estate") consisting of all rights,
money, instruments, securities and other property, including all proceeds
thereof, which are subject to, or intended to be subject to, the lien of the
Indenture for the benefit of holders of the Securities (the "Securityholders"),
including without limitation certain collateral (the "Collateral")].
[The Trust Fund] [The Collateral] will consist primarily of the Mortgage
Loans, which shall be [transferred by the Company to the Trust Fund pursuant to
the Pooling and Servicing Agreement] [transferred by the Company to the Owner
Trustee, on behalf of the Issuer, pursuant to a Deposit Trust Agreement, dated
as of _________, 199__ (the "Deposit Trust Agreement"), between the Company and
the Owner Trustee, and pledged by the Issuer, to the Indenture Trustee, on
behalf of the holders of the Securities, pursuant to the Indenture].
The Purchaser has entered into an Underwriting Agreement, dated the date
hereof (the "Underwriting Agreement"), with ___________________ (the
"Underwriter"), whereby the Purchaser will sell certain classes of the
Securities to the Underwriter.
1. Agreement to Purchase. The Seller agrees to sell, assign, transfer, set
over and otherwise convey, and the Purchaser agrees to purchase, the Mortgage
Loans. The purchase and sale of the Mortgage Loans shall take place on
______________ or such other date as shall be mutually acceptable to the parties
hereto (the "Closing Date"). The Mortgage Loans will have an aggregate Cut-off
Date Balance of approximately [$___________________] (the "Initial Pool
Balance"). The purchase price for the Mortgage Loans shall be equal to _____% of
the Initial Pool Balance, and shall be paid to the Seller on the Closing Date by
wire transfer in immediately available funds or by such other method as shall be
mutually acceptable to the parties hereto.
2. Conveyance of the Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 above, the Seller does hereby sell,
assign, transfer, set over and otherwise convey to the Purchaser all the
Seller's right, title and interest in and to the Mortgage Loans, including all
interest and principal received on or with respect to the Mortgage Loans after
the Closing Date (other than scheduled payments of interest and principal due on
or before 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. On the Closing Date, the Seller shall transfer or cause to be
transferred to the Master Servicer the funds in such escrow, reserve or other
comparable accounts related to the Mortgage Loans, together with an amount equal
to all collections on the Mortgage Loans received prior to the Closing Date that
represent scheduled payments of principal and interest due after the Cut-off
Date.
(b) In connection with such transfer and assignment, the Purchaser hereby
directs the Seller to, and the Seller hereby agrees to, deliver to, and deposit
with, the [Trustee][Indenture Trustee] (or a custodian appointed thereby (a
"Custodian")) the documents and/or instruments described on Exhibit A hereto
with respect to each Mortgage Loan (collectively as to each Mortgage Loan, the
"Mortgage File"). In addition, the Purchaser hereby directs the Seller to, and
the Seller hereby agrees to, deliver to, and deposit with, the Master Servicer
all other documents and records with respect to each Mortgage Loan (collectively
as to each Mortgage Loan, the "Servicing File"), together with any non-real
property in the possession of the Seller pledged to secure payment on any
Mortgage Loan ("Additional Collateral").
If the Seller cannot deliver on the Closing Date any original or certified
recorded document described on Exhibit A, the Seller shall use its best efforts,
promptly upon receipt thereof, to deliver such original or certified recorded
documents to the [Trustee][Indenture Trustee] or Custodian, as the case may be
(unless the Seller is delayed in making such delivery by reason of
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the fact that such documents shall not have been returned by the appropriate
recording office in which case it shall notify the [Trustee][Indenture Trustee]
and, if applicable, the Custodian in writing of such delay and shall deliver
such documents to the [Trustee][Indenture Trustee] or Custodian, as the case may
be, promptly upon the Seller's receipt thereof).
3. Representations and Warranties.
(a) The Seller hereby makes, as of the Closing Date, to and for the
benefit of the Purchaser, its affiliates and its successors and assigns
(including, without limitation, the [Trustee for the benefit of the
Securityholders][the Indenture Trustee for the benefit of the Securityholders
and the Owner Trustee for the benefit of the Holders of the Owner Trust
Certificates]), each of the representations and warranties set forth in Exhibit
B.
(b) The Seller hereby makes, as of the Closing Date (or as of such other
date specifically provided in the particular representation or warranty), to and
for the benefit of the Purchaser, its affiliates and its successors and assigns
(including, without limitation, the [Trustee for the benefit of the
Securityholders][the Indenture Trustee for the benefit of the Securityholders
and the Owner Trustee for the benefit of the Holders of the Owner Trust
Certificates]), each of the representations and warranties set forth in Exhibit
C.
(c) The Seller hereby represents and warrants, as of the Closing Date, to
and for the benefit of the Purchaser only, that the Seller has not dealt with
any broker, investment banker, agent or other person (other than the Purchaser)
who may be entitled to any commission or compensation in connection with the
sale to the Purchaser of the Mortgage Loans.
[(d) The Seller hereby agrees that it shall be deemed to make as of the
date of substitution with respect to any Replacement Loan (as defined in Section
4(a) hereof) that is substituted for a Defective Loan (as defined in Section
4(a) hereof) to and for the benefit of the Purchaser, its affiliates and its
successors and assigns (including, without limitation, the [Trustee for the
benefit of the Securityholders][the Indenture trustee for the benefit of the
Securityholders and the Owner Trustee for the benefit of the Holders of the
Owner Trust Certificates], each of the representations and warranties set forth
in Exhibit B and Exhibit C, with any conforming changes necessary due to the
fact that such replacement mortgage loan was not initially transferred
hereunder.]
4. Notice of Breach; Cure, Repurchase and Substitution.
(a) Within ninety (90) days of the earlier of discovery or receipt of
notice by the Seller that there has been a breach of any of the representations
and warranties set forth in Exhibits B and C and made by the Seller pursuant to
Sections 3(a),[and] 3(b) [and 3(d)], respectively, which breach materially and
adversely affects the value of any Mortgage Loan or the interests of the legal
and/or beneficial owner(s) thereof (any such breach, a "Material Breach"), the
Seller shall,
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subject to subsection (b) below, (i) cure such Material Breach in all material
respects or (ii) repurchase each affected Mortgage Loan (each, a "Defective
Loan") at [a price ("Purchase Price") equal to the sum of (i) the unpaid
principal balance of such Mortgage Loan, (ii) unpaid accrued interest on such
Mortgage Loan at the related Mortgage Rate from the date to which interest was
last paid to the Due Date in the Due Period in which the purchase is to occur,
and (iii) servicing expenses with respect to such Mortgage Loan that are
reimbursable to the Master Servicer and the Special Servicer under the Servicing
and Administration Agreement] [the related Purchase Price in accordance with the
directions of the owner(s) of such Defective Loan(s)]; provided that if (i) such
Material Breach does not relate to whether the Defective Loan is a "qualified
mortgage" within the meaning of Section 860G(a)(3) of the Code (a "Qualified
Mortgage"), (ii) such Material Breach is capable of being cured but not within
such 90-day period, (iii) the Seller has commenced and is diligently proceeding
with the cure of such Material Breach within such 90-day period, and (iv) the
Seller shall have delivered to the owner(s) of the Defective Loan a
certification executed on behalf of the Seller by an officer thereof setting
forth the reason that such Material Breach is not capable of being cured within
the initial 90-day period and what actions the Seller is pursuing in connection
with the cure thereof and stating that the Seller anticipates that such Material
Breach will be cured within an additional period not to exceed 90 more days,
then the Seller (except with respect to Third Party Mortgage Loans as provided
in Section 4(b)) shall have up to an additional 90 days to complete such cure
[and provided, further, that if the Seller's obligation to repurchase any
Defective Loan as a result of a Material Breach arises within the three-month
period commencing on the Closing Date (or within the two-year period commencing
on the Closing Date if the Defective Loan is a "defective obligation" within the
meaning of Section 860G(a)(4)(B)(ii) of the Code and Treasury Regulation Section
1.860G- 2(f)), the Seller may, at its option, in lieu of repurchasing such
Defective Loan (but, in any event, no later than such repurchase would have to
have been completed), (a) replace such Defective Loan with one or more
substitute mortgage loans (each, a "Replacement Loan") that individually and
collectively satisfy the requirements of the definition of "Qualifying
Substitute Mortgage Loan" set forth in the [Pooling and Servicing Agreement],
and (b) pay any corresponding Substitution Shortfall Amount, such substitution
and payment to be effected in accordance with the terms of the [Pooling and
Servicing Agreement] (or, if the Defective Loan is no longer subject thereto, in
accordance with the reasonable instructions of the owner(s) thereof). Any such
repurchase or replacement of a Defective Loan shall be on a whole loan,
servicing released basis.]
[Whenever one or more mortgage loans are substituted for a Defective Loan
as contemplated by this Section 4(a), the Seller (i) shall deliver the related
Mortgage File to the owner(s) of the Defective Loan, (ii) certify that such
substitute mortgage loan satisfies or such substitute mortgage loans satisfy, as
the case may be, all of the requirements of the definition of "Qualifying
Substitute Mortgage Loan" set forth in the [Pooling and Servicing Agreement] and
(iii) send such certification to such owner(s). No mortgage loan may be
substituted for a Defective Loan as contemplated by this Section 4(a) if the
Defective Loan to be replaced was itself a Replacement Loan. Monthly Payments
due with respect to each Replacement Loan (if any) after the related date of
substitution, and Monthly Payments due with respect to each Defective Loan
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(if any) after the Cut-off Date and on or prior to the related date of
repurchase or substitution, shall belong to the Purchaser and its successors and
assigns. Monthly Payments due with respect to each Replacement Loan (if any) on
or prior to the related date of substitution, and Monthly Payments due with
respect to each Defective Loan (if any) after the related date of repurchase or
substitution, shall belong to the Seller.]
If any Defective Loan is to be repurchased [or replaced] as contemplated
by this Section 4(a), the Seller shall amend the Mortgage Loan Schedule to
reflect the removal of the Defective Loan [and, if applicable, the substitution
of the related Replacement Loan(s)] and shall forward such amended schedule to
the owner(s) of such Defective Loan.
It is understood and agreed that the obligations of the Seller set forth
in this Section 4(a) to cure a Material Breach or repurchase [or replace] the
related Defective Loan(s), and the obligations of the Seller in respect of
indemnification and contribution set forth in Section 8, constitute the sole
remedies available to the Purchaser, the Securityholders, [the Trustee,] [the
Indenture Trustee, the Owner Trustee, the Holders of the Owner Trust
Certificates] or any of their assignees respecting a breach of the
representations and warranties set forth on Exhibits B and C and made by the
Seller pursuant to Sections 3(a), 3(b) and 3(d), respectively. It is also
understood that the Seller will be the sole warranting party in respect of the
Mortgage Loans, and none of the Depositor, the Master Servicer, the Special
Servicer or any of their affiliates will be obligated to repurchase any affected
Mortgage Loan in connection with a breach of the Seller's representations and
warranties if the Seller defaults on its obligation to do so.
(b) It shall be a condition to any repurchase of [or substitution for] a
Defective Loan by the Seller pursuant to Section 4(a) that the [Trustee][the
Indenture Trustee and the Owner Trustee] as assignee[s] of the Purchaser shall
have executed and delivered such instruments of transfer or assignment then
presented to it by the Seller, in each case without recourse, as shall be
necessary to vest in the Seller the legal and beneficial ownership of such
Defective Loan (including any property acquired in respect thereof or proceeds
of any insurance policy with respect thereto).
(c) The Seller hereby acknowledges and consents to the assignment by the
Purchaser to the [Trustee, as trustee under the Pooling and Servicing Agreement,
for the benefit of the Securityholders][Owner Trustee, on behalf of the Issuer,
and by the Issuer to the Indenture Trustee, for the benefit of the
Securityholders], of (i) the representations and warranties set forth in
Exhibits B and C and made by the Seller pursuant to Sections 3(a),[and] 3(b)
[and 3(d)], respectively, (ii) the obligation of the Seller to repurchase [or
replace] a Defective Loan in connection with a Material Breach pursuant to
Section 4(a) and (iii) the obligation of the Seller to deliver certain
documentation, funds and other assets relating to the Mortgage Loans pursuant to
Section 2. The [Trustee][Indenture Trustee] or its designee may enforce such
obligations as provided in Section 11(a) hereof or as assignee.
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5. Closing. The closing of the sale of the Mortgage Loans (the "Closing")
shall be held at the offices of [Sidley & Austin, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000] at [10:00 a.m., New York City time] (or at such other place and
time as may be determined by the Purchaser), on the Closing Date.
The Closing shall be subject to each of the following conditions:
(i) All of the representations and warranties of the Seller
made pursuant to Section 3 of this Agreement shall be true and
correct as of the Closing Date;
(ii) All documents specified in Section 6 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 Indenture Trustee] or a Custodian and to the Master
Servicer, respectively, all documents, funds and other assets
required to be delivered thereto pursuant to Section 2 of this
Agreement;
(iv) 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;
and
(v) The Seller shall have paid all fees and expenses payable
by it to the Purchaser or otherwise pursuant to this Agreement.
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.
6. Closing Documents. The Closing Documents shall consist of the
following:
(i) This Agreement duly executed by the Purchaser and the
Seller;
(ii) An Officer's Certificate substantially in the form of
Exhibit D-1 hereto, executed by an executive officer of the Seller,
in his or her individual capacity, and dated the Closing Date, and
upon which the Purchaser, the
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Underwriter, their affiliates, the [Trustee][Indenture Trustee, the
Owner Trustee, the General Administrator,] the Securityholders
(collectively, for purposes of this Section 6, the "Interested
Parties") may rely, attaching thereto as exhibits (A) the
resolutions of the board of directors of the Seller authorizing the
Seller's entering into the transactions contemplated by this
Agreement and (B) the certificate of incorporation and by-laws of
the Seller;
(iii) A certificate of good standing of the Seller issued by
the Secretary of State of the State of _______________ not earlier
than thirty (30) days prior to the Closing Date, and upon which the
Interested Parties may rely;
(iv) A Certificate of the Seller substantially in the form of
Exhibit D-2 hereto, executed by an executive officer of the Seller
and dated the Closing Date, and upon which the Interested Parties
may rely;
(v) A written opinion of _______________, counsel for the
Seller, substantially in the form of Exhibit D-3 hereto, with any
modifications required by any rating agency (each, a "Rating
Agency") identified in the Prospectus (as defined below), dated the
Closing Date and addressed to the Purchaser, the Underwriter, the
[Trustee][Indenture Trustee and the Owner Trustee] and, if requested
thereby, each Rating Agency, together with such other written
opinions as may be required by any Rating Agency; and
(vi) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
7. Costs. The Seller shall pay all expenses incidental to the performance
of its obligations under this Agreement, including without limitation, any
recording fees or fees for title policy endorsements and continuations and fees
and expenses of its counsel.
8. Indemnification.
(a) The Seller agrees to indemnify and hold harmless each of the
Purchaser, the Underwriter, their affiliates, their respective officers and
directors, and each person, if any, who controls the Purchaser or the
Underwriter, within the meaning of Section 15 of the Securities Act of 1933, as
amended (the "Securities Act"), or Section 20 of the Securities Exchange Act of
1934, as amended (the "Exchange Act") (collectively, for purposes of this
Section 8, the "Indemnified Parties"), against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of, relate to or are based in whole or in part upon any untrue statement or
alleged untrue statement of a material fact contained in
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the Basic Prospectus dated _________, as supplemented by the Prospectus
Supplement dated the date hereof, relating to the [Certificates] [Bonds] (such
Base Prospectus, as so supplemented, the "Prospectus"), or in any amendment
thereof or supplement thereto, or any omission or alleged omission to state
therein a material fact necessary to make the statements therein, in light of
the circumstances in which they are made, not misleading, but only if such
untrue statement, alleged untrue statement, omission or alleged omission was
made in reliance upon any information furnished to any Indemnified Party by or
on behalf of the Seller or approved by the Seller, or upon a defective document
delivered to the Purchaser by or on behalf of the Seller or upon any breach or
alleged breach of any of the representations, warranties, covenants or
agreements of the Seller as set forth in or made pursuant to this Agreement or
any exhibit hereto (collectively, the "Seller's Information"), it being
acknowledged that all statements set forth in the Prospectus under the caption
"Description of the Mortgage Pool" or elsewhere in the Prospectus with respect
to the subjects discussed under such caption have been made in reliance upon
information furnished by or on behalf of the Seller or approved by the Seller.
On or prior to the Closing Date, the Seller shall deliver to the Indemnified
Parties a letter or certificate signed by an authorized officer of the Seller
stating that the Seller has reviewed and approved such Seller's Information. The
Seller acknowledges that the Underwriter will enter into the Underwriting
Agreement in reliance upon this indemnity agreement of the Seller. This
indemnity agreement will be in addition to any liability which the Seller may
otherwise have.
(b) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to subsection (a) above, the Indemnified Party shall promptly
notify the Seller in writing and the Seller, upon request of the Indemnified
Party, shall retain counsel reasonably satisfactory to the Indemnified Party to
represent the Indemnified Party and any others the Seller may designate in such
proceeding and shall pay the reasonable fees and disbursements of such counsel
relating to such proceeding. In any such proceeding, any Indemnified Party shall
have the right to retain its own counsel, and the reasonable fees and expenses
of such counsel shall be at the expense of such Indemnified Party unless (i) the
Seller and such Indemnified Party shall have mutually agreed to the retention of
such counsel, (ii) the named parties to any such proceeding (including, without
limitation, any impleaded parties) include both the Seller and such Indemnified
Party, and representation of both such parties by the same counsel would be
inappropriate due to actual or potential differing interests between them, or
(iii) the Seller shall have failed within a reasonable period to retain counsel
reasonably satisfactory to the Indemnified Party in accordance with the
preceding sentence. It is understood that the Seller shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the legal fees and disbursements of more than one legal counsel for all the
Indemnified Parties. The Seller 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. Unless it shall
assume the defense of any proceeding, the Seller shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such
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consent or if there be a final judgment for the plaintiff, the Seller agrees to
indemnify the Indemnified Party from and against any loss or liability by reason
of such settlement or judgment. If the Seller assumes the defense of any
proceeding, it shall be entitled to settle such proceeding with the consent of
the Indemnified Party in connection with all claims which have been asserted
against the Indemnified Party in such proceeding by the other parties to such
settlement, and shall be entitled to settle such proceeding without the consent
of the Indemnified Party, provided that the Indemnified Party receives a full
and unconditional release of all claims asserted against it in such proceeding
by the other parties to such settlement.
(c) If the indemnification provided for in this Section 8 is unavailable
to an Indemnified Party under subsection (a) above or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then the Seller,
in lieu of indemnifying such Indemnified Party, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such losses, claims,
damages or liabilities, in such proportion as is appropriate to reflect the
relative fault of the Seller and the Indemnified Party in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Indemnified Party and the Seller shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by such parties.
(d) The parties hereto agree that it would not be just and equitable if
contribution pursuant to subsection (c) above were determined by pro rata
allocation or by any other method of allocation which 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 or liabilities referred to above shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any such
action or claim, except where the Indemnified Party is required to bear such
expenses pursuant to this Section 8, which expenses the Seller shall pay as and
when incurred, at the request of the Indemnified Party, and to the extent that
any expenses so paid by the Seller are subsequently determined to not be
required to be borne by the Seller hereunder, the Indemnified Party which
received such payment shall promptly refund the amount so paid to the Seller. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements contained in this Section 8
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any of the Indemnified Parties, and (iii) acceptance of and payment for the
Mortgage Loans.
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(f) The Seller shall (i) pay all out-of-pocket costs and expenses of the
Purchaser reasonably incurred in connection with the enforcement of any right or
remedies of the Purchaser or any of its assignees provided for by this
Agreement, including the performance of all of the Seller's obligations
hereunder, (ii) pay any and all present and future stamp and other similar taxes
with respect to the matters covered hereby and indemnify and hold harmless the
Purchaser from and against any and all liabilities with respect to or resulting
from any delay or omission in paying such taxes, and (iii) indemnify and hold
harmless the Purchaser and its officers, employees and agents from and against
any and all liabilities, obligations, losses, damages, penalties, judgments,
suits, costs, expenses, including, without limitation, attorneys' and
accountants' fees reasonably incurred, and disbursements of any kind whatsoever
that may be imposed on, incurred by or asserted against the Purchaser or any of
its officers, employees or agents:
(A) in defending or protecting the Purchaser's right, title and
interest in the Mortgage Loans, including, without limitation, the
security interests and liens granted hereunder in the event that the sale
hereunder is deemed to constitute a loan secured by all or part of the
Mortgage Loans, or in defending or protecting the priority of any thereof;
(B) in connection with the performance or non-performance of any
obligation of the Seller with respect to the Mortgage Loans;
(C) in the enforcement, or attempted enforcement, of this Agreement,
or in the collection or attempted collection of any obligation of the
Seller hereunder;
(D) in relation to any misstatement or alleged misstatement of a
material fact in any representation, warranty or other information
provided by the Seller to or for the benefit of the Purchaser in
connection with this Agreement or otherwise or the omission or alleged
omission to state therein a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading;
(E) as a result of any indemnity payable by the Purchaser or the
Trust Fund to the Master Servicer or Special Servicer arising out of,
related to or in connection with the origination of any Mortgage Loan; and
(F) in any other way relating to or arising out of this Agreement or
any of the transactions contemplated hereby.
9. Notices. All communications hereunder shall be in writing and effective
only upon receipt and, if sent to the Purchaser, will be sent by regular prepaid
U.S. Mail or prepaid reputable overnight courier or delivered by hand and
confirmed to it at __________________, or such other address as may be
designated by the Purchaser to the Seller in writing, or, if sent to the Seller,
will be sent by regular prepaid U.S. Mail or prepaid reliable overnight courier
or
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delivered by hand and confirmed to it at _______________________________, or
such other address as may be designated by the Seller to the Purchaser in
writing.
10. Miscellaneous. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated except by a writing signed by the
party against whom enforcement of such change, waiver, discharge or termination
is sought. This Agreement may not be changed in any manner which would have a
material adverse effect on the Securityholders without the prior written consent
of the [Trustee][Indenture Trustee]. This Agreement also may not be changed in
any manner which would have a material adverse effect on any other third party
beneficiary hereof without the prior written consent of that person. This
Agreement may be executed in any number of counterparts, each of which shall for
all purposes be deemed to be an original and all of which shall together
constitute but one and the same instrument. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns, and no other person will have any right or obligation
hereunder, other than as provided in Sections 3(a), 3(b), 3(d), 8 and 11 hereof.
11. Third Party Beneficiaries.
(a) The [Trustee on behalf of the Securityholders][Indenture Trustee on
behalf of the Securityholders and the Owner Trustee on behalf of the Holders of
the Owner Trust Certificates] [is an intended third party beneficiary] [are
intended third party beneficiaries] of the representations, warranties and
covenants made by the Seller in Sections 2, 3(a), 3(b), [3(d)], 4, 5, 6, 10, 12,
13, 14, 15, 16 and 19 of this Agreement. It is acknowledged that such
representations, warranties and covenants of the Seller may be enforced against
the Seller by the [Trustee][Indenture Trustee], on behalf of itself and the
Securityholders [and the Owner Trustee on behalf of the Holders of the Owner
Trust Certificates], to the same extent as if they were parties hereto.
(b) The Underwriter is an intended third party beneficiary of the
representations, warranties and covenants of the Seller set forth in Sections
3(a), 3(b), 4, 5, 6, 8, 10, 12, 13, 14, 15, 16 and 19 hereof. It is acknowledged
and agreed that such representations, warranties and covenants may be enforced
by or on behalf of the Underwriter against the Seller to the same extent as if
it was a party hereto.
(c) Each of the officers, directors, employees, agents, controlling
persons and affiliates referred to in any of Sections 3(a), 3(b), 3(d) and 8
hereof is an intended third party beneficiary of the representations,
warranties, covenants and indemnities of the Seller set forth in Sections 3(a),
3(b), 3(d), 4, 5, 6, 8, 10, 13, 14, 15 and 16 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 such person or entity was a party hereto.
-11-
12. Characterization. It is the express intent of the parties hereto that
the conveyance contemplated by this Agreement be, and be treated for all
purposes as, a sale by the Seller of all the Seller's right, title and interest
in and to the Mortgage Loans. It is, further, not the intention of the parties
that such conveyance be deemed a pledge of the Mortgage Loans by the Seller to
secure a debt or other obligation of the Seller. However, in the event that,
notwithstanding the intent of the parties, the Mortgage Loans are held to
continue to be property of the Seller then: (a) this Agreement shall also be
deemed to be a security agreement under applicable law; (b) the transfer of the
Mortgage Loans provided for herein shall be deemed to be a grant by the Seller
to the Purchaser of a first priority security interest in all of the Seller's
right, title and interest in and to the Mortgage Loans and all amounts payable
to the holder(s) of the Mortgage Loans in accordance with the terms thereof
(other than scheduled payments of interest and principal due on or before the
Cut-off Date) and all proceeds of the conversion, voluntary or involuntary, of
the foregoing into cash, instruments, securities or other property; (c) the
assignments by the Purchaser of its interests in the Mortgage Loans to the
[Trustee][Issuer and the pledge of such interests by the Issuer to the Indenture
Trustee] as contemplated by Section 4(d) hereof shall be deemed to be [an
assignment][assignments] of any security interest created hereunder; (d) the
possession by the Purchaser or any successor thereto of the related Mortgage
Notes and such other items of property as constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be "possession by the
secured party" for purposes of perfecting the security interest pursuant to
Section 9-305 of the Uniform Commercial Code of the State of ________ and the
Uniform Commercial Code of any other applicable jurisdiction; and (e)
notifications to, and acknowledgments, receipts or confirmations from, persons
or entities holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Purchaser or any successor thereto for
the purpose of perfecting such security interest under applicable law. The
Seller and the Purchaser shall, to the extent consistent with this Agreement,
take such actions as may be necessary to ensure that, if this Agreement were
deemed to create a security interest in the Mortgage Loans, such security
interest would be deemed to be a perfected security interest of first priority
under applica ble law and will be maintained as such throughout the term of this
Agreement and the [Pooling and Servicing Agreement][Indenture].
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 delivered 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 (and by the Purchaser to the [Trustee][Indenture Trustee]),
notwithstanding any restrictive or qualified endorsement or assignment in
respect of any Mortgage Loan.
14. Severability of Provisions. Any part, provision, representation,
warranty or covenant of this Agreement that is prohibited or is held to be void
or unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining
-12-
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited 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.
15. Governing Law; Consent to Jurisdiction. This Agreement will be
governed by and construed in accordance with the substantive laws of the [State
of New York], applicable to agreements made and to be performed entirely in said
state. The Seller hereby irrevocably (i) submits to the jurisdiction of any [New
York State] and federal courts sitting in [New York City] with respect to
matters arising out of or relating to this Agreement; (ii) agrees that all
claims with respect to such action or proceeding may be heard and determined in
such [New York State] or federal courts; (iii) waives, to the fullest possible
extent, the defense of an inconvenient forum; and (iv) agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
16. 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.
17. 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 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 contemplated by Section 4(d) or as may
otherwise be required to effect the purposes of the [Pooling and Servicing
Agreement][Indenture], and the assignee shall, to the extent of such assignment,
succeed to the rights and obligations hereunder of the Purchaser.
18. Information. The Seller shall provide the Purchaser with such
information about the Seller, the Mortgage Loans and the Seller's underwriting
and servicing procedures as is (i) customary in commercial mortgage loan
securitization transactions, (ii) required by a Rating Agency or a governmental
agency or body or (iii) reasonably requested by the Purchaser for use in a
public or private disclosure document, shall verify the accuracy thereof and
remain liable therefor.
[19. Cross-Collateralized Mortgage Loans. Notwithstanding anything herein
to the contrary, it is hereby acknowledged that certain groups of Mortgage Loans
identified on the Mortgage Loan Schedule as being cross-collateralized with each
other, are, in the case of each
-13-
such particular group of Mortgage Loans (each, a "Cross-Collateralized Group"),
evidenced by a single mortgage note and secured by mortgages, deeds of trust
and/or deeds to secure debt on all the Mortgaged Properties identified on the
Mortgage Loan Schedule as corresponding to such Cross-Collateralized Group. Each
such Mortgage Loan actually represents a portion of the entire indebtedness
evidenced by the related mortgage note that has been allocated to the Mortgaged
Property identified on the Mortgage Loan Schedule as corresponding to such
Mortgage Loan. Each of the Mortgage Loans constituting each such
Cross-Collateralized Group shall be deemed to be a separate Mortgage Loan that
is (a) evidenced by a mortgage note identical to the mortgage note that
evidences such Cross-Collateralized Group (but in a principal amount equal to
the principal balance of such Mortgage Loan) and (b) cross-defaulted and
cross-collateralized with each other Mortgage Loan in such Cross-Collateralized
Group. In addition, it is hereby acknowledged that certain other groups of
Mortgage Loans identified on the Mortgage Loan Schedule as being
cross-collateralized with each other, are, in the case of each such particular
group of Mortgage Loans (each, also a "Cross-Collateralized Group"), by their
terms, cross-defaulted and cross-collateralized. For purposes of reference, the
Mortgaged Property that relates or corresponds to any of the Mortgage Loans
referred to in this Section 19 shall be the property identified in the Mortgage
Loan schedule as corresponding thereto. The provisions of this Agreement,
including, without limitation, each of the representations and warranties set
forth in Exhibit C hereto and each of the capitalized terms used herein but
defined in the Pooling and Servicing Agreement, shall be interpreted in a manner
consistent with this Section 19; provided that, if there exists with respect to
any Cross-Collateralized Group only one original of any document referred to in
the definition of "Mortgage File" and covering all the Mortgage Loans in such
Cross-Collateralized Group, the inclusion of the original of such document in
the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.]
-14-
IN WITNESS WHEREOF, the Purchaser and the Seller have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
CRIIMI MAE CMBS Corp.
as Purchaser
By:
---------------------------------
Name:
Title:
[______________________________]
as Seller
By:
---------------------------------
Name:
Title:
Exhibit A
Certain Documents to be Delivered by the Seller with Respect to the Mortgage
Loans
The documents and instruments to be delivered to the Trustee (or a
Custodian on behalf of the Trustee) in respect of each Mortgage Loan pursuant to
Section 2(a) of this Agreement are, subject to Section 19, as follows:
(i) the original executed Mortgage Note, endorsed (without recourse) to
the order of __________________, as trustee for the registered holders of
[CRIIMI MAE CMBS Corp., Mortgage Pass-Through Certificates, Series
199__-__][CRIIMI MAE Commercial Mortgage Trust [I], Collateralized
Mortgage Obligations, Series 199__-__], without recourse;
(ii) an original or copy of the Mortgage and of any intervening
assignments thereof that precede the assignment referred to in clause (iv)
below, in each case (unless such document has not yet been returned from
the applicable recording office) with evidence of recording indicated
thereon;
(iii) an original or copy of any related Assignment of Leases (if such
item is a document separate from the Mortgage) and of any intervening
assignments thereof that precede the assignment referred to in clause (v)
below, in each case (unless such document has not yet been returned from
the applicable recording office) with evidence of recording indicated
thereon;
(iv) an original executed assignment of the Mortgage, in favor of
______________, as trustee for the registered holders of [CRIIMI MAE CMBS
Corp., Mortgage Pass-Through Certificates, Series 199__-__][CRIIMI MAE
Commercial Mortgage Trust [I], Collateralized Mortgage Obligations, Series
199__-__], in the recordable form;
(v) an original assignment of any related Assignment of Leases (if such
item is a document separate from the Mortgage), in favor of
________________, as trustee for the registered holders of [CRIIMI MAE
CMBS Corp., Mortgage Pass-Through Certificates, Series 199__-__][CRIIMI
MAE Commercial Mortgage Trust [I], Collateralized Mortgage Obligations,
Series 199__-__], in the recordable form;
(vi) originals or copies of any written assumption, modification and
substitution agreements in those instances where the terms or provisions
of the Mortgage or Mortgage Note have been modified or the Mortgage Loan
has been assumed;
(vii) the original or a copy of the policy or certificate of lender's
title insurance issued on the date of the origination of such Mortgage
Loan, or, if such policy has not been issued, a pro forma policy or an
irrevocable, binding commitment to issue such title insurance policy; and
(viii) filed copies of any prior UCC Financing Statements in favor of the
originator of such Mortgage Loan or in favor of any assignee prior to the
trustee referred to in clause (iv) above (but only to the extent the
Seller had possession of such UCC Financing Statements prior to the
Closing Date) and, if there is an effective UCC Financing Statement in
favor of the Seller on record with the applicable public office for UCC
Financing Statements, an original UCC-2 or UCC-3, as appropriate, in favor
of _________________, as trustee for the registered holders of [CRIIMI MAE
CMBS Corp., Mortgage Pass-Through Certificates, Series 199__-__][CRIIMI
MAE Commercial Mortgage Trust [I], Collateralized Mortgage Obligations
Series 199__-__, in form sufficient for recording in the applicable
jurisdiction(s).
Exhibit B
Representations and Warranties with respect to the Seller
The Seller hereby represents and warrants that, as of the Closing
Date:
(a) The Seller is a [corporation] duly organized, validly existing
and in good standing under the laws of ______________, and is possessed of
all licenses necessary to carry on its business and is qualified and in
good standing and in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to maintain the
enforceability of each Mortgage Loan as contemplated by the terms of this
Agreement and the [Pooling and Servicing Agreement][Indenture].
(b) The execution and delivery by the Seller of this Agreement, as
well as the execution (including, without limitation, by facsimile or
machine signature) of any and all documents contemplated by this
Agreement, including, without limitation, endorsements of Mortgage Notes,
and the performance and compliance by the Seller with the terms of this
Agreement will not (i) violate the Seller's organizational documents, (ii)
violate any law or regulation or any administrative decree or order to
which the Seller is subject or (iii) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any indenture, agreement or other
instrument to which the Seller is a party or by which it is bound or which
is applicable to it or any of its assets.
(c) The Seller has full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(d) The Seller has the full right, power and authority to sell,
assign, transfer, set over and convey the Mortgage Loans (and, in the
event that the related transaction is deemed to constitute a loan secured
by all or part of the Mortgage Loans, to pledge the Mortgage Loans) in
accordance with, and under the conditions set forth in, this Agreement.
(e) Assuming due authorization, execution and delivery hereof by the
Purchaser, this Agreement constitutes or will constitute a valid, legal
and binding obligation of the Seller, enforceable against the Seller in
accordance with the terms hereof, subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, (ii) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or
at law and (iii) public policy consideration underlying the securities
laws, to the extent that such public policy considerations limit the
enforceability of any provisions of this Agreement which purport to
provide indemnification from securities law liabilities.
(f) The Seller is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms hereof will not constitute a violation of, any law, any order or
decree of any court or arbiter, or any order, regulation or demand of any
federal, state or local governmental or regulatory authority, which
violation, in the Seller's good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of the Seller to
perform its obligations under this Agreement or the financial condition of
the Seller.
(g) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller which, if determined adversely to
the Seller, would prohibit the Seller from entering into this Agreement
or, in the Seller's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Seller to
perform its obligations hereunder or the financial condition of the
Seller.
(h) The transfer of the Mortgage Loans to the Purchaser as
contemplated herein is not subject to any bulk transfer or similar law in
effect in any applicable jurisdiction.
(i) The principal place of business and chief executive office of
the Seller is located in [________________, ___________]
(j) The Seller is a wholly-owned subsidiary of
[___________________].
Exhibit C
Representations and Warranties with respect to the Mortgage Loans
For purposes of this Exhibit C, the phrase "the Seller's knowledge" and
other words and phrases of like import shall mean the actual state of knowledge
of the Seller regarding the matters referred to, in each case without having
conducted any independent inquiry into such matters and without any obligation
to have done so (except as expressly set forth herein).
The Seller hereby represents and warrants that, as of the date
hereinbelow specified or, if no such date is specified, as of the Closing Date
and subject to Section 19 of this Agreement:
[Set forth representations and warranties with respect to the individual
Mortgage Loans.]
Exhibit D-1
Certificate of an Officer of the Seller
[______________________________]
[Mortgage Pass-Through Certificates][Collateralized Mortgage Bonds]
Series 199__-__
Certificate of Secretary
I, ____________________, a Secretary of _____________ (the "Seller")
hereby certify as follows:
1. The Seller is duly incorporated and in good standing as a
______________ under the laws of the State of _____________.
2. Attached hereto as Exhibit I are true and correct copies of the
[Articles of Incorporation and By-Laws] of the Seller, which [Articles of
Incorporation and By-Laws] are on the date hereof, and have been at all times,
in full force and effect.
3. To the best of my knowledge, no proceedings looking toward
liquidation or dissolution of the Seller are pending or contemplated.
4. Each person listed below is and has been the duly elected and
qualified officer or authorized signatory of [_____________] and his/her genuine
signature is set forth opposite his/her name:
Name Office Signature
---- ------ ---------
-------------------- ------------------ -----------------------------
-------------------- ------------------ -----------------------------
(i) Each person listed above who signed, either manually or by
facsimile signature, the Mortgage Loan Purchase and Sale Agreement, dated as of
_____________ (the "Agreement"), between CRIIMI MAE CMBS Corp. (the "Purchaser")
and the Seller, providing for, among other things, the purchase by the
Purchaser, and the sale by the Seller, of the Mortgage Loans, or any certificate
delivered pursuant thereto, was, at the time of such signing and delivery, duly
authorized or appointed to execute such document in such capacity, and the
signatures of such persons or facsimiles thereof appearing on such document are
their genuine signatures.
(ii) Attached hereto as Exhibit II is a true and correct copy of the
resolutions of the [Board of Directors] of the Seller adopted on ____________
authorizing the Agreement and the consummation of the transactions contemplated
thereby. Such resolutions have not been rescinded and, as of the date hereof,
remain in full force and effect.
Capitalized terms used but not defined herein have the respective
meanings given to them in the Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of _____________, 199__.
-------------------------------------
Name:
Title: Secretary
I, _______________, a ____________________ of [_____________] ,
hereby certify that __________________ is a duly elected or appointed, as the
case may be, qualified and acting Secretary of _____________ and that the
signature appearing above is such officer's genuine signature.
IN WITNESS WHEREOF, the undersigned has executed this certificate as
of _______________, 199__.
-------------------------------------
Name:
Title:
Exhibit D-2
Officers' Certificate of the Seller
[_______________________________]
[Mortgage Pass-Through Certificates][Collateralized Mortgage Bonds]
Series 199__-__
Certificate of Seller
In connection with the execution and delivery by ___________ ("the
Seller") of, and the consummation of the various transactions contemplated by,
that certain Mortgage Loan Purchase and Sale Agreement, dated as of ___________
(the "Agreement"), between CRIIMI MAE CMBS Corp., as purchaser, and the Seller,
the undersigned hereby certifies that (i) the representations and warranties of
the Seller set forth in the 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, (ii) the Seller has, in all material respects, complied with all
the agreements and satisfied all the conditions on its part required under the
Agreement to be performed or satisfied at or prior to the date hereof, and (iii)
the Seller has reviewed and approved the information set forth in the Prospectus
under the caption "Description of the Mortgage Pool" and elsewhere in the
Prospectus with respect to the subjects discussed under such caption, and such
information did not, as of the date of the Prospectus, and does not, as of the
date hereof, include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. Capitalized terms
used but not defined herein shall have the respective meanings assigned to them
in the Agreement.
Certified this ____ day of _____________.
[___________________]
By:
-------------------------------------
Name:
Title:
Exhibit D-3
Opinion of Counsel to the Seller
[Date]
[Purchaser]
[Underwriter]
[Trustee]
[Indenture Trustee]
[Owner Trustee]
[Rating Agencies]
Re: [______________________]
[Mortgage Pass-Through Certificates, Series 199__-__]
[Collateralized Mortgage Obligations, Series 199__-__]
Ladies and Gentlemen:
We have acted as counsel to _____________ (the "Seller") in
connection with the sale of certain mortgage loans (the "Mortgage Loans") by the
Seller to CRIIMI MAE CMBS Corp. (the "Purchaser"), pursuant to a Mortgage Loan
Purchase and Sale Agreement, dated as of ___________ (the "Agreement"), between
the Seller and the Purchaser. This opinion is being delivered to you pursuant to
the Agreement. Capitalized terms not defined herein have the meanings set forth
in the Agreement.
In rendering this opinion letter, we have examined the Agreement and
such other documents as we have deemed necessary. As to matters of fact, we have
examined and relied upon representations of the Seller contained in the
Agreement and, where we have deemed appropriate, representations or
certifications of parties to the Agreement or public officials. We have assumed
the authenticity of all documents submitted to us as originals, the genuineness
of all signatures, the legal capacity of natural persons and the conformity to
the originals of all documents submitted to us as copies. We have assumed that
all parties to the Agreement other than the Seller had the corporate power and
authority to enter into and perform all obligations thereunder. As to such
parties other than the Seller, we also have assumed the due authorization
by all requisite corporate action, the due execution and delivery and the
enforceability of such document. We have further assumed the conformity of the
Mortgage Loans and related documents to the requirements of the Agreement and
have assumed that the Seller is the owner of the Mortgage Loans.
Based upon and subject to the foregoing, it is our opinion that:
1. The Seller is a [corporation] duly organized and validly existing
and in good standing under the laws of _____________ and has the requisite
[corporate] power and authority to own its properties, to conduct its business
as presently conducted by it, to own and to transfer and convey to the Purchaser
the Mortgage Loans and to enter into and perform its obligations under the
Agreement.
2. The Agreement has been duly and validly authorized, executed and
delivered by the Seller and constitutes a valid, legal and binding agreement of
the Seller, enforceable against the Seller in accordance with its terms.
3. No consent, approval, authorization or order of any State of
___________, [State of _____________] or federal court or governmental agency or
body is required for the consummation by the Seller of the transactions
contemplated by the Agreement, except for those consents, approvals,
authorizations or orders that previously have been obtained.
4. Neither the transfer of the Mortgage Loans as provided in the
Agreement, nor the fulfillment of the terms of or the consummation of any other
of the transactions contemplated by the Agreement, will result in a breach of
any term or provision of the [certificate of incorporation or by-laws] of the
Seller or any State of _____________, [State of _____________] or federal
statute or regulation applicable to the Seller, or to our knowledge, will
conflict with, result in a breach, violation or acceleration of or constitute a
default under, the terms of any indenture or other agreement or instrument to
which the Seller is a party or by which it is bound, or any order of any State
of _____________, [State of _____________] or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over the Seller.
5. To our knowledge, there are no actions, proceedings, or
investigations pending or threatened against the Seller before any State of
_____________, [State of _____________] or federal court, administrative agency
or other tribunal (a) asserting the invalidity of the Agreement, (b) seeking to
prevent the consummation of any of the transactions contemplated in the
Agreement, or (c) that might materially and adversely affect the ability of the
Seller to perform its obligations under, or the validity or enforceability of,
the Agreement.
The opinion set forth above in paragraph 2 as to enforceability is
subject to and limited by the following:
(a) The effect of bankruptcy, insolvency, reorganization, moratorium
and other laws and court decisions of general application (including, without
limitation, laws relating to fraudulent conveyances, preferences and equitable
subordination) and other legal or equitable principles relating to, limiting or
affecting the enforcement of creditors' rights generally; and
(b) The discretion of any court of competent jurisdiction in
awarding equitable remedies, including, but not limited, to specific performance
or injunctive relief.
Where we have rendered our opinion concerning matters "known to us"
or this letter otherwise refers to our knowledge or our attention, such
reference shall mean only the knowledge of the attorneys in our firm primarily
responsible for our services relating to the Seller, and shall not refer to the
knowledge of any other person in any way associated with this firm. Furthermore,
such knowledge refers only to matters of which the attorneys named above are
consciously aware at the time of execution of this letter, and you are advised
that we have made no independent investigation or verification of such matters
and have not searched or reviewed the files and records of or relating to Seller
or such matters in our office, in the public records, in the possession of
Seller, or elsewhere.
In rendering this opinion letter, we do not express any opinion
concerning any law other than the law of the State of _____________, the
[corporate law] of the State of ___________ and the federal law of the United
States. In that regard, we note that the Agreement provides that it is to be
governed under the internal laws of the [State of New York]. Therefore, our
opinion in paragraph 2 above is rendered on the assumption that pertinent [New
York law] is identical to pertinent law of the State of __________, as to the
correctness of which assumption we render no opinion. Further, we express no
opinion as to the conflict of laws provisions of the [State of New York], the
State of _____________, or otherwise. We do not express any opinion concerning
the application of the "doing business" laws or the securities laws of any
jurisdiction.
Any and all opinions rendered by this firm in this opinion letter
are limited to the matters expressly set forth herein; and no opinion is implied
or to be inferred beyond the matters expressly so stated. This opinion is given
as of the date hereof, and we expressly decline any undertaking to revise or
update this opinion subsequent to the date hereof or to advise you of any matter
arising subsequent to the date hereof, which would cause us to modify the
opinion, in whole or in part.
This opinion letter is rendered for the sole benefit of each
addressee hereof, and no other person is entitled to rely hereon. Copies of this
letter may not be furnished to any other person, nor may any portion of this
letter be quoted, circulated or referred to in any other document.
Very truly yours,
Schedule I
Mortgage Loan Schedule
