EXHIBIT 10.5
[Similar agreement to be entered into between
registrant and Imperial Credit Industries, Inc.]
THIS INITIAL INVESTMENTS SALE AGREEMENT (this "Agreement"), dated as of
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[______], 1997, by and between Imperial Credit Commercial Mortgage Investment
Corp., a Maryland corporation (the "Purchaser") and Southern Pacific Bank, a
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California licensed industrial loan company (the "Seller"), recites and provides
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as follows:
RECITALS
WHEREAS, the Seller owns certain commercial mortgage-backed securities
identified on Schedule 1 hereto (the "Initial Investments");
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WHEREAS, the Seller desires to sell its right, title and interest in and to
the Initial Investments to the Purchaser pursuant to the terms hereof;
WHEREAS, capitalized terms used and not defined herein shall have the meanings
assigned to them in the Purchaser's Prospectus, dated October [__], 1997 (the
"Prospectus");
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AGREEMENT
NOW THEREFORE, in consideration of the premises and the mutual covenants,
representations and warranties herein made and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. SALE AND PURCHASE.
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(a) The Seller hereby sells, conveys, assigns and transfers, and the
Purchaser hereby purchases, all of the Seller's right, title and interest in and
to the Initial Investments, having an aggregate outstanding principal balance as
of the close of business on October [__], 1997 (the "Information Date") of
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$_____________ including the Seller's right to any and all payments to be
received on the Initial Investments beginning in [___________] 1997;
(b) The sale of the Initial Investments shall be effected by endorsement and
delivery of the Initial Investments.
SECTION 2. PURCHASE PRICE. On the Closing Date, as full consideration for
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the Seller's sale of the Initial Investments to the Purchaser, the Purchaser
will deliver to the Seller immediately available funds in the amount of
[________]% of the aggregate outstanding principal balance of the Initial
Investments as of [__________], 1997, plus accrued interest on such Initial
Investments at a rate equal to the weighted average interest rate of such
Initial Investments, through the Closing Date.
SECTION 3. TRANSFER OF THE INITIAL INVESTMENTS AND ENDORSEMENT OF THE INITIAL
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INVESTMENTS. Upon the closing of the sale of the Initial Investments to the
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Purchaser by the Seller, ownership thereof shall be vested in the Purchaser. As
soon as possible prior to the Closing Date of the sale of the Initial
Investments to the Purchaser, the Seller shall deliver to LaSalle National Bank,
as trustee (the "Underlying Trustee") of the underlying trusts pursuant to which
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the Initial Investments were issued (the "Underlying Trusts"), the Initial
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Investments together with bond powers executed in favor of "IMPERIAL CREDIT
COMMERCIAL MORTGAGE INVESTMENT CORP." and any transferor documents and opinions
of counsel required by the pooling and servicing agreements or other documents
(the "Underlying Agreements") under which the Initial Investments were issued.
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SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller hereby
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represents and warrants to the Purchaser, as of the date of this Agreement or as
of such other date as is specifically provided herein, as follows:
(a) the Seller acquired the Initial Investments in the ordinary course
of its business, in good faith, for value and without notice of any claim
against or claim to any of the Initial Investments on the part of any person;
(b) the Seller does not have any actual or constructive knowledge or
notice of any interest in the Initial Investments that upon sale to the
Purchaser and transfer in accordance herewith will be contrary to the interest
of the Purchaser;
(c) the Seller is duly organized and validly existing and in good
standing under the laws of the United States and has the full power, authority
and legal right to transfer and convey the Initial Investments to the
Purchaser and has the full power, authority (corporate and other) and legal
right to execute and deliver, engage in the transactions contemplated by, and
perform and observe the terms and conditions of, this Agreement;
(d) the execution and delivery by the Seller of this Agreement are
within the legal power of and have been duly authorized by all necessary
action on the part of the Seller; neither the execution and delivery of this
Agreement by the Seller, nor the consummation by the Seller of the
transactions contemplated hereby, nor compliance by the Seller with the
provisions hereof, will (i) conflict with or result in a breach of, or
constitute a default under, any of the provisions of the charter or bylaws of,
or any law, governmental rule or regulation, or any judgment, decree or order
binding on, the Seller or its properties, or any of the provisions of any
indenture, mortgage, deed of trust, contract or other instrument to which it
is a party or by which it is bound, or (ii) result in the creation or
imposition of any lien, charge or encumbrance upon any of its properties
pursuant to the terms of any such indenture, mortgage, deed of trust, contract
or other instrument;
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(e) this Agreement has been duly executed and delivered by the Seller
and constitutes a legal, valid and binding agreement of the Seller,
enforceable in accordance with its terms subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency or other
similar laws affecting creditors' rights generally from time to time in
effect, and to general principles of equity;
(f) no consent, approval, authorization or order of or registration or
filing with, or notice to, any governmental authority or court is required for
the execution, delivery and performance of or compliance by the Seller with
this Agreement or the consummation by the Seller of any other transaction
contemplated hereby;
(g) no certificate of an officer furnished pursuant hereto in writing to
the Purchaser or the Trustee by the Seller contains any untrue statement of a
material fact, or omits a material fact necessary to make the certificate not
misleading;
(h) the Seller has not dealt with any broker, investment banker, or
agent or other person that may be entitled to any commission or compensation
in connection with the sale of the Initial Investments to the Purchaser;
(i) there is no litigation pending or, to the Seller's knowledge,
threatened against the Seller, which would reasonably be expected to affect
adversely the transfer of the Initial Investments or the execution, delivery,
performance or enforceability of this Agreement;
(j) no default exists on the part of the Seller, and no event has
occurred which, with notice, lapse of time or both, would constitute a default
on the part of the Seller in the due performance and observance of any term,
covenant or condition of any agreement to which the Seller is a party or by
which it is bound, which default would have a have a materially adverse effect
on the Seller's performance of this Agreement;
(k) the transfer of the Initial Investments to the Purchaser will be
classified as a sale under generally accepted accounting principles on the
books and records of the Seller;
(l) immediately prior to the sale of the Initial Investments to the
Purchaser, the Seller will be the sole owner of, and will have good and
marketable title to, the Initial Investments, subject to no prior lien,
mortgage, security interest, pledge, charge or other encumbrance or any such
encumbrance will be discharged, and on the Closing Date, the Seller shall duly
and validly endorse the Initial Investments as described in Section 3 hereof
and deliver the Initial Investments as described in Section 3 hereof, together
with any other documents or certificates as may be required by this Agreement.
Following the sale of the Initial Investments to the Purchaser, the Purchaser
will own such Initial
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Investments free and clear of any prior lien, mortgage, security interest,
pledge, charge or other encumbrance;
(m) the transfer, assignment and conveyance of the Initial Investments
by the Seller pursuant to this Agreement is not subject to bulk transfer laws
or any similar statutory provisions in effect in any applicable jurisdiction;
(n) the information set forth in Schedule 1 hereto is true and correct
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in all material respects as of the Information Date;
(o) all conditions precedent and any restrictions upon the transfer of
the Initial Investments provided for in the Underlying Agreements have been
satisfied and the transfer of the Initial Investments to the Purchaser will be
complete upon the execution and delivery of this Agreement by the parties
hereto (provided that transfer of registered ownership will only be complete
after the Underlying Trustees have issued new certificates, representing the
Initial Investments, registered in the name of the Purchaser);
(p) the Seller intends to relinquish all ownership rights in the Initial
Investments sold pursuant to this Agreement; after the Closing Date, the
Seller will have no right to the Initial Investments, and the Seller will have
no right or obligation to repurchase or substitute any Initial Investments;
(q) the Seller's principal place of business and chief executive office
are located in Los Angeles, California; and
(r) the Seller is not a "benefit plan investor" described in or subject
to the Department of Labor Regulations set forth in 29 C.F.R. section 2510.3-
101.
SECTION 5. The Seller hereby covenants to the Purchaser as follows:
(a) the Seller shall reflect and treat its transfer of the Initial
Investments to the Purchaser as a sale of its entire interest therein under
generally accepted accounting principles; and
(b) the Seller will cooperate with the Purchaser and perform all acts
necessary to enable the Purchaser to cause the Initial Investments to be
registered in the name of the Purchaser.
SECTION 6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER. As
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of the date of this Agreement, the Purchaser represents and warrants to the
Seller as follows:
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(a) the Purchaser has been duly incorporated and is validly existing and
in good standing under the laws of the State of Maryland;
(b) the execution and delivery by the Purchaser of this Agreement are
within the legal power of the Purchaser and have been duly authorized by all
necessary action on the part of the Purchaser; neither the execution and
delivery of this Agreement by the Purchaser, nor the consummation by the
Purchaser of the transactions contemplated hereby, nor compliance by the
Purchaser with the provisions hereof, will (i) conflict with or result in a
breach of, or constitute a default under, any of the provisions of the
Purchaser's articles of incorporation or bylaws, or any law, governmental rule
or regulation, or any judgment, decree or order binding on, the Purchaser or
its properties, or any of the provisions of any indenture, mortgage, deed of
trust, contract or other instrument to which it is a party or by which it is
bound, or (ii) result in the creation or imposition of any lien, charge or
encumbrance upon any of its properties pursuant to the terms of any such
indenture, mortgage, deed of trust, contract or other instrument;
(c) this Agreement has been duly executed and delivered by the Purchaser
and constitutes a legal, valid and binding agreement of the Purchaser,
enforceable in accordance with its terms, subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency or other
similar laws affecting creditors' rights generally from time to time in
effect, and to general principles of equity; and
(d) no consent, approval, authorization or order of any court or
governmental agency or body or official is required for the consummation by
the Purchaser of the transactions contemplated hereby, except such as have
been obtained.
SECTION 7. FURTHER ASSURANCES. Upon request from time to time, the Seller
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shall execute and deliver all documents, make all truthful oaths, testify in any
proceedings and do all other acts that may be reasonably necessary or desirable,
in the reasonable opinion of the Purchaser, to carry out the terms of this
Agreement and to effect the sale of the Initial Investments to the Purchaser.
SECTION 8. CONDITIONS TO OBLIGATIONS OF THE PURCHASER. The obligation of the
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Purchaser hereunder to purchase the Initial Investments is subject to:
(a) the accuracy in all material respects of all of the representations
and warranties of the Seller under this Agreement and compliance in all
material respects by the Seller with all of its covenants and obligations
under this Agreement;
(b) except as otherwise provided herein, the Seller shall have delivered
to the Purchaser, in escrow, all documents required to be delivered hereunder
and shall have released its interest therein to the Purchaser or its designee;
and
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(c) the Seller shall have delivered to the Purchaser, letters from each
of the legal counsel that delivered opinions (the "Underlying Opinions") in
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connection with the issuance of the Initial Investments pursuant to the
Underlying Agreements, which letters permit reliance on the Underlying
Opinions by (i) the Purchaser and (ii) each of Friedman, Billings, Xxxxxx &
Co., Inc. and Xxxxxxxxx & Company, Inc., as representatives of the
underwriters of the Purchaser's shares of common stock, which are being sold
pursuant to the Prospectus.
SECTION 9. CONDITIONS TO OBLIGATIONS OF THE SELLER. The obligation of the
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Seller hereunder to sell the Initial Investments is subject to receipt of the
Purchase Price in immediately available funds.
SECTION 10. INDEMNIFICATION; ASSIGNMENT OF CLAIMS. In the event the Seller
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breaches its representations, warranties, covenants or obligations set forth
herein in any material respect, the Seller shall indemnify and hold harmless the
Purchaser from and against any loss, damages, penalties, fines, forfeiture,
legal fees and related costs, judgments, and other costs and expenses resulting
from any claim, demand, defense or assertion based on or grounded upon, or
resulting from, such breach. Promptly after receipt by the Purchaser of notice
of the commencement of any such action, the Purchaser will, if a claim in
respect thereof is to be made against the Seller under this Section, notify the
Seller in writing of the commencement thereof, but the omission so to notify the
Seller will not relieve the Seller from any liability hereunder unless such
omission materially prejudices the rights of the Seller. In case any such
action is brought against the Purchaser, and the Purchaser notifies the Seller
of the commencement thereof, the Seller will be entitled to participate therein,
and to assume the defense thereof, with counsel reasonably satisfactory to the
Purchaser, and after notice from the Seller to the Purchaser of its election so
to assume the defense thereof, the Seller will not be liable to the Purchaser
under this Section for any legal or other expenses subsequently incurred by the
Purchaser in connection with the defense thereof other than reasonable costs of
investigation.
SECTION 11. REPURCHASE OBLIGATION. It is understood and agreed that the
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representations and warranties set forth in Section 4 herein shall survive
delivery of the Initial Investments to the Purchaser, and shall inure to the
benefit of the Purchaser notwithstanding any restrictive or qualified
endorsement or assignment. Upon the discovery by a party hereto of a breach of
any of the foregoing representations and warranties that materially and
adversely affects the interests of the Purchaser, the party discovering such
breach shall give prompt written notice to the other parties thereto, whereupon
the Seller shall promptly take such action as is necessary to cure such breach.
Within 90 days of its discovery or its receipt of notice of any breach of the
representations and warranties contained in Section 4 above, the Seller shall
cause such breach to be cured in all material respects or, in the event the
Seller is unable to cure such breach, the Seller shall repurchase the affected
Initial Investment at its Purchase Price plus accrued interest through the date
of repurchase and reimburse the Purchaser for any out-of-pocket loss incurred by
the Purchaser as a result of such breach.
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The obligations of the Seller set forth in this Section 11 with respect to a
breach of a representation contained in Section 4 hereof shall constitute the
sole remedy respecting such breach available to the Purchaser.
SECTION 12. NOTICES. All demands, notices and communications hereunder shall
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be in writing and shall be deemed to have been duly given if personally
delivered to or mailed by registered mail, postage prepaid, or transmitted by
telex or telegraph and confirmed by a similar mailed writing, as follows:
(a) If to the Purchaser:
Imperial Credit Commercial Mortgage Investment Corp.
00000 Xxxxxxxx Xxxx., Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: _____________________
(b) If to the Seller:
Southern Pacific Bank
00000 Xxxxxxxx Xxxx. 0xx xxxxx
Xxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: _____________________
Any party may alter the address to which communications or copies are to be
sent by giving notice of such change of address in conformity with the
provisions of this Section for the giving of notice.
SECTION 13. SEVERABILITY OF PROVISIONS. Any part, provision, representation
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or warranty contained in this Agreement that is prohibited or that is held to be
void or unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining parts, provisions,
representations or warranties hereof. Any part, provision, representation or
warranty contained in this Agreement that is prohibited or unenforceable or is
held to be void or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining parts, provisions,
representations or warranties hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties
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hereto waive any provision of law which prohibits or renders void or
unenforceable any provision hereof.
SECTION 14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA,
NOTWITHSTANDING ANY CALIFORNIA OR OTHER CONFLICT OF LAWS PROVISIONS TO THE
CONTRARY.
SECTION 15. SURVIVAL. Each of the Seller and the Purchaser agrees that the
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representations, warranties and agreements made by it herein and in any
certificate or other instrument delivered pursuant hereto shall be deemed have
been relied upon by the Purchaser or the Seller, respectively, notwithstanding
any investigation heretofore or hereafter made by the other party or on the
other party's behalf, and that the representations, warranties and agreements
made by the Seller herein or in any such certificate or other instrument shall
survive the delivery of and payment for the Initial Investments.
SECTION 16. MISCELLANEOUS.
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(a) This Agreement may be executed in two or more counterparts, each of
which when so executed and delivered shall be an original, but all of which
together shall constitute one and the same instrument. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns.
(b) Any person into which the Seller may be merged or consolidated or
any person resulting from a merger or consolidation involving the Seller or
any person succeeding to the business of the Seller shall be considered the
successor of the Seller hereunder, without the further act or consent of
either party. This Agreement cannot be assigned, pledged or hypothecated by
any party without the written consent of each other party to this Agreement.
(c) This Agreement supersedes all prior agreements and understandings
relating to the subject matter hereof. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
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(d) The Purchaser shall immediately effect the redelivery of the Initial
Investments, and any security interest deemed to be created by this Section 16
shall be released if, on the Closing Date, each of the conditions set forth in
Section 8 hereof shall not have been satisfied or waived and the Purchaser
shall not have paid the Purchase Price.
(e) It is the express intent of the parties hereto that the conveyance
of the Initial Investments by the Seller to the Purchaser as contemplated by
this Agreement be construed as a sale of the Initial Investments by the Seller
to the Purchaser. Further, it is not the intention of the parties that such
conveyances be deemed a pledge of the Initial Investments by the Seller to the
Purchaser to secure a debt or other obligation of the Seller. However, in the
event that, notwithstanding the intent of the parties, the Initial Investments
are held to continue to be property of the Seller, then (i) this Agreement
shall also be a security agreement within the meaning of the Uniform
Commercial Code of the State of California and any other state as is
necessary; (ii) the Seller hereby grants to the Purchaser a security interest
in all of the Seller's right, title and interest in and to the Initial
Investments; (iii) the possession by the Purchaser or its agent of the Initial
Investments 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 California; and
(iv) notifications to, and acknowledgments, receipts or confirmations from,
persons holding such property shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Purchaser for the purpose of
perfecting such security interest under applicable law. Any assignment of the
interest of the Purchaser pursuant to any provision hereof shall also be
deemed to be an assignment of any security interest created hereby. 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 Initial Investments, such security
interest would be deemed to be a perfected security interest of first priority
under applicable law and will be maintained as such throughout the term of
this Agreement.
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IN WITNESS WHEREOF, Imperial Credit Commercial Mortgage Investment Corp. and
SPB have caused their names to be signed to this Initial Investment Sales
Agreement by their respective officers thereunto duly authorized as of the first
date above written.
IMPERIAL CREDIT COMMERCIAL MORTGAGE
INVESTMENT CORP.,
a Maryland corporation
By: ______________________________
Its:
SOUTHERN PACIFIC BANK,
a California industrial loan company
By: ______________________________
Its:
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LIST OF SCHEDULES AND EXHIBITS
SCHEDULE I: Initial Investments
SCHEDULE 1
Initial Investments
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Stated Amount
Series Class Face Amount (As of [ ])
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X.X. Xxxxxx Commercial Mortgage
Finance Corp., Commercial
Mortgage Pass-Through
Certificates, Series 1997-SPTL-C1
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Southern Pacific Thrift & Loan
Association, Commercial Mortgage
Pass-Through Certificates,
Series 1996-C1
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