Agreement to Purchase Note and Mortgage

Agreement to Purchase Note and Mortgage

Agreement made on the between

, a corporation organized and existing under the laws of the state of , with its principal office located at , referred to herein as Purchaser, and

, a corporation organized and existing under the laws of the state of , with its principal office located at , referred to herein as Seller.

Whereas, Seller is the owner and holder of a Promissory Note and Mortgage made by to , dated , said Mortgage having been recorded in the Office of the (e.g., County Recorder) of , , on , in Book , at Page , covering the premises described in Exhibit A attached to and made a part of this Agreement;

Whereas, said Note and Mortgage and all modifications, amendments, and supplements, if any, to either of the instruments, are respectively and collectively referred to in this Agreement as the Note and Mortgage and attachments of which are attached to this Agreement as Exhibit B and Exhibit C, respectively; and

Whereas, the Note and Mortgage were assigned to Seller by by Assignment dated ; and

Whereas, Seller desires to sell and assign and Purchaser desires to purchase the Note and Mortgage;

Now, therefore, for and in consideration of the mutual covenants contained in this agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Purchase and Closing

Seller agrees to sell and assign and Purchaser agrees to purchase the Note and Mortgage. The closing shall occur at on , at the office of , at , or at such other location as the parties may mutually agree (the Closing Date).

2. Purchase Price

The purchase price shall be $, payable as follows:

A. $ on the signing of this Agreement, by check, subject to collection, the receipt of which is acknowledged, to be held in escrow pursuant to Section 15 of this Agreement; and

B. $, constituting the balance of the purchase price, by good, certified check of Purchaser or official bank check payable to the order of Seller.

3. No Representations and Warranties

The Note and Mortgage are to be sold and assigned "as is" and without recourse, as the same may be construed or determined on the basis of Exhibit B and Exhibit C attached to this Agreement, without any limitation, any moratoriums of interest or deferment of any date for payment of principal or the maturity date of the Note, Mortgage, or otherwise. Other than representing that Seller is the present holder of the Note and Mortgage, it is agreed that there are no other representations or warranties, express or implied, relating to the Note or Mortgage or the sale and assignment of them, nor are there any inducements, express or implied, to Purchaser made to induce Purchaser to enter into this Agreement, or the closing of it, not set forth in this Agreement. There are no conditions for closing and payment under this Agreement except as specifically provided for in this Agreement. Purchaser waives any and all rights in and to any and all such claims whether by way of defense, set-off, counterclaim, or otherwise.

4. Broker’s Representations

Seller shall not be liable or bound by any verbal or written statements, representations, real estate or mortgage broker's "set ups" or information pertaining to the Note and Mortgage furnished by any real estate or mortgage broker, agent, employee, servant, or any other person unless the same are specifically set forth in this Agreement or in any supplemental written agreement between the parties.

5. No Broker

The parties represent to each other and agree that there is no broker who was instrumental in bringing about the sale contemplated in this Agreement. The Purchaser represents and warrants to Seller that no broker brought about the sale contemplated in this Agreement and if any claim is made for a broker's commission as a result of acts or actions of Purchaser with respect to this transaction, Purchaser shall hold Seller, its successors, and assigns harmless and shall indemnify Seller from and against any and all liabilities arising out of such claims, including, but not limited to, reasonable attorneys' fees. This Section shall survive the closing.

6. Default; Liquidated Damages

In the event of default by Purchaser in the performance of any of the terms of this Agreement and in the event of default by Purchaser under any supplemental Agreement which may constitute a default under this Agreement, then at Seller's option all monies previously paid on account of this Agreement shall be retained as liquidated damages under this Agreement and this Agreement shall become null and void and neither party shall have any further rights against the other.

7. Seller’s Failure to Perform

If for any reason, other than the matters excepted and set forth in this Agreement, Seller shall be unable to assign the Note and Mortgage in accordance with this Agreement, or if Seller cannot or does not comply with this Agreement for any reason, then the sole obligation of Seller shall be to refund the monies paid by Purchaser to Seller on account of this Agreement. Upon the payment of such refund, this Agreement shall terminate and neither party shall have a claim against the other. Purchaser, however, may nevertheless accept such assignment of the Note and Mortgage as Seller may be able to assign, without reduction of the purchase price for any credit or allowance against the same and without any other liability on the part of the Seller. The acceptance of such assignment by Purchaser shall be deemed to be full performance by and a discharge of every covenant and obligation to be performed on the part of Seller pursuant to the provisions of this Agreement except those, if any, which in this Agreement are specifically stated to survive the closing date.

8. Notice

Any notice or demand that under the provisions of this Agreement or otherwise must or may be given or made by any party to this Agreement shall be in writing and may be given or made by mailing the same by certified or registered mail, return receipt requested, addressed to the respective party at the address set forth at the top of this Agreement. Either party may designate by notice in writing a new or other address by which such notice or demand subsequently shall be given, made or mailed. Any notice given under this Agreement by mail shall be deemed delivered when deposited in a United States general or branch post office, enclosed in a registered or certified prepaid wrapper, addressed as provided in this Section.

9. Assignment

This Agreement may not be assigned by Purchaser in whole or in part without Seller's prior written consent in every instance.

10. Title Insurance

The Seller shall give and the Purchaser shall accept an assignment of the Note and Mortgage containing such signatures and as any title company that is a member of the designated by Seller will accept as sufficient to assign Seller's interest in the Note and Mortgage. Seller shall assign to Purchaser its title insurance policy with , bearing Policy Number , which insures the Mortgage.

11. Delivery of Documents

At the closing Seller shall deliver to Purchaser an assignment of the Note and Mortgage duly executed and acknowledged so as to assign the Note and Mortgage to the Purchaser, without recourse to Seller/assignor and in accordance with this Agreement, together with the original Note and Mortgage and a letter to the Note Payer instructing it to make future payments to the Purchaser.

12. Estoppel Letter

At the closing Seller shall also deliver an estoppel letter from the holder of the Mortgage dated , between , as Mortgagor, and , as Mortgagee, securing an indebtedness in the original principal amount of $ (the First Mortgage). The First Mortgage wraps around and is inclusive of a Mortgage dated , between , as Mortgagor, and , as Mortgagee, securing an indebtedness in the original principal amount of $, which has been reduced to $. The estoppel letter shall be deemed satisfactory if it includes the following information:

A. The date of original Note;

B. The interest rate of the first Mortgage;

C. The principal balance outstanding; and

D. The date that the next payment is due.

13. Fees, Taxes and Charges

Any recording fees, taxes, title charges, or other charges or impositions which may be imposed with respect to this transaction shall be paid by Purchaser; the purchase price set forth in this Agreement shall be net to Seller.

14. No Filing or Recording

Neither this Agreement nor any memorandum of it shall be filed or recorded by Purchaser in any public office in .

15. Escrow

The down payment of $ shall be held in escrow by (the Escrow Agent) in an interest-bearing account and shall be remitted with interest to the Seller upon the closing of title or if Purchaser defaults under this Agreement. The Escrow Agent shall remit the down payment with interest, if any, to the Purchaser if: (1) Seller defaults and Purchaser is not then in default; or (2) the Purchaser becomes otherwise entitled to the return of the same by the terms of this Agreement. It is agreed that the Escrow Agent's sole duties under this Agreement are as indicated in this Section and that the Escrow Agent in the performance of its duties under this Agreement shall incur no liability except for willful malfeasance and shall not be liable or responsible for anything done or omitted to be done in good faith as provided in this Agreement. If a dispute shall arise as to the disposition of all or any portion of the down payment held by the escrow agent, the Escrow Agent shall either: (a) deposit the same with a court of competent jurisdiction, pending the decision of any such court with respect to the disposition of the down payment; or (b) hold the same pending receipt of joint instructions from the Seller and the Purchaser and shall be entitled to rely upon such joint instructions with respect to the disposition of the down payment. The Seller and Purchaser promise and agree to indemnify and save the Escrow Agent harmless, except for its willful malfeasance, from any claims, liabilities, judgments, attorney's fees, and other expenses of every kind and nature, which may be incurred by the Escrow Agent by reason of its acceptance of, and its performance under, this Agreement.

16. Severability

The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision.

17. No Waiver

The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

18. Governing Law

This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of .

19. Attorney’s Fees

In the event that any lawsuit is filed in relation to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees.

20. Mandatory Arbitration

Any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect.

21. Entire Agreement

This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement.

22. Modification of Agreement

Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party.

23. Counterparts

This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument.

24. In this Agreement, any reference to a party includes that party's heirs, executors, administrators, successors and assigns, singular includes plural and masculine includes feminine.

(Attach Exhibits)

(Acknowledgment form may vary by state)