Fill and Sign the Legal Opinion Letter Form

__________________________ __________________________ __________________________ Re: __________________________ Mortgage Loan by __________________________ to __________________________, a __________ limited liability partnership Gentlemen: We have served as your local counsel in the State of Missis sippi in connection with a mortgage loan being made by __________________________, a _________ corporation ("Lender"), to __________________________, a ____________ limited liability partnership ("Borrower"), in the principal amount of $__________________________ (the "Loan"). The terms of the Loan are generally as described in the letter of __________________________ of __________________________ to us dated __________________________, and more fully set forth in the Loan Documents hereafter referred to. As local counsel, we have reviewed the forms of the following drafts of loan documents each bearing draft date of __________________________("Loan Documents"): A. The form of Promissory Note (the "Note") in the principal amount of the Loan, and to be made by Borrower to the order of Lender. B. The form of Deed of Trust, Assignment of Rents and Leases, and Security Agreement (the "Deed of Trust") to be given by Borrower to Lender, creating a lien on and grant ing a security interest in the real and per sonal property described therein ("Property") as security for the Loan. C. The form of Financing Statement (UCC - 1) to be given by the Borrower to the Lender perfecting the security interests created under the Security Agreement and Deed of Trust. D. The form of Unconditional Guaranty ( A Guaranty @ ) to be given by __________________________ , __________________________ , __________________________ and __________________________ to and for the benefit of __________________________. The term "Property" shall also include the personal property described in the Security Agreement. Each of the drafts referred to above was submitted to us by Messrs. __________________________, your counsel ("Lender's Counsel") in connection with the Loan, and we have assumed for purposes of this opinion that the Loan Documents will be executed and delivered by the parties thereto in the form of such drafts delivered to us with the exception of the revisions suggested here in, and with the understanding that all blanks will be appropriately and accurately completed, and an appropriate Trustee will be named in the Deed of Trust. We have also reviewed such questions of law and other matters as we deemed appropriate to enable us to render this opinion. Unless otherwise indicated, all statutory references are to the Mississippi Code of 1972 , as amended. For purposes of this opinion, we have assumed, without any verification, that: (a) the Borrower has good and marketable title to all of the Property; (b) the Loan will be closed and the Loan Documents signed in the State of Mississippi; 8 payments on account of the Loan will be made to Lender in the State of _________; (d) Lender does not actively solicit business within the State of Mississippi and, apart from the making of loans secured by real property in the State of Mississippi, does not do business within the State of Mississippi; (e) Lender is a corporation organized under the laws of the State of ______________, is not qualified to do business in Mississippi, and it does not main tain an office within the State of Mississippi nor does it have any officers, employees or agents (including soliciting agents) residing in Mississippi, nor regularly operating in Mississippi; (f) Lender does not sell property in Mississippi on the installment method; (g) Lender is not a foreign insurance company subject to certification by Mississippi = s Commissioner of Insurance; and (h) the proceeds of the Loan will not be used for agricultural, livestock or single family residential purposes. Regarding Section 4.1 of the Deed of Trust [and paragraph 5 of the Promissory Note], due - on - sale clauses have generally been upheld in Mississippi. First National Bank of Vicksburg v. Caruthers , 443 So. 2d 861 (Miss. 1983); Unifirst Federal Savings & Loan Association v. Tower Loan , 524 So. 2d 290 (Miss. 1986). "Our law allows a first mortgage lender to prohibit sale or transfer of the collateral without consent." Tower Loan at p. 292. Section 17 would trigger the acceleration provisions of the Note and Deed of Trust. This section states in part, "Any transfer . . . by . . . deed of trust, further encumbrance or otherwise . . . ." In dictum , the Court in Unifirst v. Tower Loan at pg. 292 stated: "It makes sense that a first mortgage holder be pro hibited from acceleration or other objection upon the creation of a second mortgage, for nothing done thereby invades or prejudices any legitimate right or expectation of the first mortgage holder." It is unclear whether or not a Mississippi Court would enforce the acceleration of a debt due to the creation of a junior encumbrance on the property which is security for the loan. With regard to part of Section 9.8 of the Deed of Trust (waiving statutes of limitation) and part of Section 9.7 (attorney-in-fact provisions), please be advised that certain provisions of these paragraphs are overly broad and are unenforceable in part. We will be glad to give a detailed explana tion as to what aspects of these Sections are unenforce able and why if you so desire. There is no harm, however, in leaving these paragraphs as they are in the instrument. The same is true regarding the enforceability of Section 6.2 (Collection of Rents) regarding the attorney-in-fact provisions. With regard to Section 9.18 of the Deed of Trust, please be advised that the enforce - ability of this paragraph will be governed in part by '' 89 - 1 - 49, 89 - 5 - 19 and 15 - 1 - 21 of the Mississippi Code . Section 89-5-33 of the Mississippi Code provides, in part, as follows: A Every person who prepares a legal description of land or who prepares an instrument utilizing an existing description shall (except as herein provided) include an indexing instruction which shall state the section, township and range and one or more quarter sections or governmental lots or other applicable subdivisions of each section in which the land is located. The preparer, at his option, may elect to note the quarter-quarter section in which the land is located, but shall not be required to do so. We suggest that this indexing instruction be placed in the upper right hand corner of the first page of the Deed of Trust. The description in the Deed of Trust and the UCC-1 Financing Statement refers to A _______ County, Mississippi. @ There is no such county in Mississippi. We recommend that you use the standard UCC-1 which has been adopted by the Secretary of State of Mississippi. We have enclosed this form along with the instructions for completion. We suggest that one form be used for filing in the UCC Records of the Chancery Clerk where the collateral is located and one be filed in the land records as a fixture filing with the proper indexing instruction. Of course you will also need to file a UCC-1 with the Mississippi Secretary of State. With the exception of the foregoing, we are pleased to advise you that in our opinion: 1. Each of the Loan Documents is in a form reasonably customary in the State of Mississippi, is satis factory for use in the State of Mississippi to evi dence and secure the Loan, and, if duly authorized and validly executed and delivered on behalf of the parties named therein, and recorded or filed with governmental offices as necessary, will provide, in substance, the benefits and security described therein. 2. The provisions of the Loan Documents to the effect that the internal laws of the State of Mississippi will govern the construction and enforcement of the Deed of Trust will be enforceable in an action brought in the courts of the State of Mississippi (or in a Federal Court in the State of Mississippi) to interpret, construe or enforce any remedies under, the Loan Documents. 3. The making of the Loan to Borrower and the closing of the Loan in the State of Mississippi will not, in and of themselves and without more: (a) require Lender to qualify as a foreign corporation doing business within the State of Mississippi; nor (b) subject Lender to liability to make any filings with, or give any notices to, or obtain any con sents or approvals of, the State of Mississippi; no 8 c) subject Lender to liability to file any tax returns or pay any taxes imposed by the State of Mississippi. Please refer to '' 79 - 4 - 15.01, 81-5-41 and 27 - 7 - 23(d)(1) of the Mississippi Code regarding our basis for this part of our opinion. 4. The Loan, if made as described in the Loan Documents, would not be in violation of the applicable usury laws of the State of Mississippi, or other appli cable laws of the State of Mississippi regulating the charges that may be imposed upon a borrower for the loan or use of money. We express no opinion, as to: I i) The title of the Borrower to any of the Property, or the priority of the liens and/or security interests intended to be created by the Loan Documents; or ii) The legality or enforceability of the afore mentioned documents under federal law; or iii) The compliance by Borrower or Lender with any state or federal environmental laws in connec tion with this Loan; or iv) Any other matter not specifically included herein. Notwithstanding the foregoing and anything herein to the contrary, insofar as this opinion relates to the perfection of a security interest in the Property ("Collateral") which is subject to the Mississippi Uniform Commercial Code, this opinion is further qualified as follows: (a) in the case of property which becomes Collateral after the date hereof, the U.S. Bankruptcy Code may limit the extent to which property acquired by a debtor after the commencement of a proceeding may be subject to a security interest arising from a security agreement entered into by the debtor before the commence ment of such proceeding; (b) in the case of proceeds [as such term is defined in the Mississippi Uniform Commercial Code ("UCC")], continuation of per fection of the security interest therein may be limited to the degree set forth in Section 75 - 9 - 315 of the Mississippi Code ; 8 in the event that the Collateral consists of letters of credit, advices of credit, instruments, money, negotiable docu ments or chattel paper, a prior security interest therein may have been perfected by possession or control by either a creditor or a seller of goods; (d) a buyer in the ordinary course of business may take free of a security interest even though the security interest is per fected and the buyer knows of its existence; (e) a purchaser of chattel paper or an instrument who gives new value and takes possession in the ordinary course of his busi ness may have priority over a prior security interest perfected by filing if the purchaser acts without actual knowledge that the specific paper or instrument is subject to a security interest or if such instrument or paper is being claimed merely as proceeds of inventory even if the purchaser knows the specific paper or instru ment is subject to a prior security interest; (f) filing may not constitute notice to a holder in due course of a negotiable instrument, a holder to whom a negotiable document of title has been duly negotiated or a bona fide purchaser of a security; (g) to the extent that the Collateral consists of instru ments, documents, goods covered by documents or money, other than cash proceeds, the security interest may be subject to the provi sions of Section 75 - 9 - 312 of the Mississippi Code ; (h) a mechanic or materialman in the ordinary course of his business furnishing services or materials with respect to goods subject to a security interest has a statutory lien upon the goods in the possession of such person which may take priority over a prior perfected security interest; (I) purchase money security interests may take priority over existing security interests pursuant to Section 75 - 9 - 324 of the Mississippi Code ; (j) Insofar as the Property or Collateral consists of fixtures, the security interest will be subject to the priority provisions of ' 79 - 9 - 334 of the Mississippi Code ; and insofar as the Property Collateral consists of accessions, commingled or processed goods, the security interest may be subject to the pro visions of Sections 75 - 9 - 335 and -336 of the Mississippi Code ; (k) the filing of a financing statement may not be effective to perfect a security interest in property subject to a statute or treaty of the United States which specifies a place of filing different from that specified in the UCC; (l) the filing of a financing statement may not be effective to perfect a security interest in a deposit account or in any policy of insurance except with respect to proceeds; (m) the security interest of a collecting bank in an item and any accompanying documents or the proceeds of either may have priority over conflicting perfected security interests in the item, accompanying documents or proceeds; (n) insofar as future advances may be made, the priority of a lien on Collateral subject to the UCC with respect to such advances may be qualified by the provisions of Section 75 - 9 - 204 of the Mississippi Code ; and (o) a debtor's rights in the Collateral may be voluntarily or involuntarily transferred notwithstanding a provision in the security agreement prohibiting any such transfer or making the transfer a default. We are members of the Bar of the State of Mississippi only, and this opinion relates only to the laws of this State. We are not admitted to practice in any State other than this State and do not opine on the laws of any other jurisdiction. Insofar as this opinion relates to the enforceability of any instrument, it is subject to (I) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting the enforcement of creditors' and lessors' rights generally from time to time in effect; (ii) applicable laws which may affect the enforcement rights and remedies provided in the Loan Documents (which laws, as presently in effect, do not materially adversely affect the practical realization by the Beneficiary of its rights as set forth in said Loan Documents); (iii) principles of equity applicable to the enforcement of the remedy of specific performance and the granting of injunctive relief; (iv) limitations on repossession of property without judicial process requiring that such action be taken without a breach of the peace; and (v) the statutory right of redemption prior to foreclosure as set forth in Mississippi Code ' 89 - 1 - 59, as amended, and ' 75 - 9 - 623 of the Mississippi Uniform Commercial Code. This opinion is directed solely to the Lender and Lender's Counsel in connection with the transaction contemplated by the Loan Documents. This opinion is not to be used, circulated, quoted, relied upon or referred to in connection with any transaction other than the Loan or by any persons other than Lender and Lender's Counsel. This opinion is issued only with respect to the present status of the laws of the State of Mississippi, and we undertake no obligation or responsibility to update or supplement this opinion in response to subsequent changes in the law or future events affecting the transactions contemplated by the Loan Documents. WITNESS OUR SIGNATURE as of the __________________________ Very truly yours, __________________________ By: __________________________ ____________ Attachment