Fill and Sign the Purchase Agreement Form and Variations

PURCHASE AGREEMENT FORM AND VARIATIONS TABLE OF CONTENTS PURCHASE AGREEMENT FOR MORTGAGE LOANS (SELLER'S FORM) PURCHASE AGREEMENT SELLER'S ALTERNATIVE PROVISIONS FOR PURCHASE AGREEMENT 1. Auctions PURCHASER'S ALTERNATIVE PROVISIONS FOR PURCHASE AGREEMENT 1. Refund Of Down Payment Due To Regulatory Requirements 2. Seller's Representations And Purchaser's Remedies 3. Disclosure Of All Material Facts 4. Broker PURCHASE AGREEMENT FOR MORTGAGE LOANS (SELLER'S FORM) 1 PURCHASE AGREEMENT THIS AGREEMENT, entered into this {{{97.1/DATE OF PURCHASE AGREEMENT}}}, between {{{97.4/SELLER}}}, {{{97.5/TYPE OF SELLER}}}, having an address at {{{97.6/ADDRESS OF SELLER}}} (the "Seller "), and {{{97.12/PURCHASER}}}, {{{97.13/TYPE OF PURCHASER}}}, having an address at {{{97.14/ADDRESS OF PURCHASER}}} (the "Purchaser "). WHEREAS, the Seller agrees to sell, and the Purchaser agrees to purchase all those loans set forth in Schedule A annexed to this Agreement (collectively called the "Loans "), for the Purchase Price provided in this Agreement. NOW THEREFORE, the Seller and the Purchaser agree as follows: Defined Terms . The following terms are hereby defined as follows: 1.1 "Adjustment Date " means the date established by the Seller prior to the Closing Date (defined below), which date shall be used to calculate the Purchase Price (defined below) and closing adjustments. The Adjustment Date for this sale may be any date in the sixty (60) day period which precedes the Closing. 1.2 "Agreement " means this Purchase Agreement (including all Schedules hereto). 1.3 "Assignment " means the document executed by an authorized representative of the Seller, by which the Seller sells, assigns and conveys to 1 See Chapter 21 of the main text of this book for more details regarding the sale of loans. This Chapter may discuss variations of the following form which are not included in such form and which are applicable to your particular transaction. The requirements of rating agencies for the representations and warranties by an originator/seller of mortgage loans (typically called the "depositor") in connection with a "pool" securitization are discussed in more detail in Standard & Poor's, Legal and Structured Finance Issues in Commercial Mortgage Securities at 66-71 (September 1995). The "Purchaser's Alternative Provisions for Purchase Agreement" below reflect such requirements of the rating agencies. the Purchaser all right, title, and interest of the Seller in the Loans (defined below), in the form of Schedule B annexed to this Agreement. 1.4 "Business Day " means any day, other than Saturday or Sunday, on which national banks are open for business to the public in {{{97.20/STATE OF SALE CLOSING}}}. 1.5 "Closing " means the simultaneous: 1) delivery by the Seller to the Purchaser of the Assignment and the other documents which the Seller is obligated (pursuant to this Agreement) to deliver to the Purchaser at the Closing, and 2) payment by the Purchaser to the Seller of the unpaid balance of the Purchase Price and the delivery by the Purchaser to the Seller of the documents required to be delivered to the Seller at the Closing. 1.6 "Closing Date " means a time and date selected by the Seller for the Closing, which date shall be within sixty (60) days after the date of this Agreement, provided that the Seller shall give the Purchaser at least ten (10) days prior notice of the Closing Date. 1.7 "Loan Document " means each note, deed of trust, mortgage, assignment of leases and rents, security agreement, UCC financing statement, guarantee, letter of credit, loan agreement, and other agreement or document, if any, evidencing or securing the payment of any Loan or the performance of any other obligation in favor of the holder of such note or other documents or otherwise relating to such Loan. 1.8 "Loan File " means all Loan Documents, and all other documents relating to any Loan, to the extent currently held by the Seller in its files, but this shall not include (and the Seller shall have no obligation to deliver to or disclose to the Purchaser) either: 1) any internal memoranda of the Seller or any of its agents (including, without limitation, any evaluation of any Loan by the Seller's officers), or 2) any privileged or confidential communications between the Seller and its attorneys, and any other privileged documents, or 3) any document of the Seller relating to the sale, pricing, or appraisal of the Loans. 1.9 "Loan Group " means each group of Loans which the Purchaser has agreed to purchase, and which are set forth on Schedule A to this Agreement. 1.10 "Multiholder Loan " means each Loan subject to a noteholder, participation or similar inter- creditor agreement under which the Seller or any of its predecessors in interest: 1) is or was the lead lender, or an agent, for the benefit of other holders of interests in such Loan, or 2) otherwise managed or administered the Loan or sold participations, or 3) is or was a participant or holder. 1.11 "Principal Balance " for each Loan (except those Loans with pre-computed interest or original issue discount), as of a specific date, means the unpaid principal balance (including such additional charges, if any, as those for credit life insurance, accident and health insurance and vendor's single interest insurance) of such Loan as of such date. Principal Balance (for each Loan with pre- computed interest or original issue discount) means, as of any specific date, the unpaid principal balance of such Loan (including such additional charges, if any, as those for credit life insurance, accident and health insurance and vendor's single interest insurance) plus all prepaid interest and original issue discount (whether earned or unearned, in each such case). The Principal Balance, as stated on the books and records of the Seller, shall be deemed to be the Principal Balance unless proven to the contrary by clear and convincing evidence. 1.12"Purchase Price " means ${{{97.3/PURCHASE PRICE}}}. 1.13 "Post-Closing Date " means the date, as determined by the Seller, within ninety (90) calendar days after the Closing Date, upon which final adjustments will be made to the Purchase Price pursuant to this Agreement. 1.14 "Third Party Borrower " means any borrower or obligor or guarantor or surety of any Loan in any Loan Group, or any other party liable for the performance of any obligation relating to any Loan. Agreements To Sell And Purchase . The Seller agrees to sell, assign, transfer, and convey to the Purchaser, and the Purchaser agrees to purchase, on the terms and conditions set forth in this Agreement, all the right, title, and interest of the Seller, as of the Closing Date, in and to each Loan. Purchase Price . The Purchaser shall pay to the Seller, at the Closing, the amount of the Purchase Price, less the down payment previously paid by the Purchaser to the Seller on account of the Loans (such down payment being called the "Down Payment "). All payments by the Purchaser to the Seller at the Closing shall be by cashier's check drawn on and by a bank which is reasonably acceptable to the Seller, or by unconditional wire transfer of immediately available federal funds (which are not subject to any chargeback or credit) to an account designated in writing by the Seller. A. Adjustments . All payments received by the Seller, on account of any Loan, from a Third Party Borrower before the Adjustment Date, shall belong to the Seller. All payments received by the Seller, on account of any Loan, from a Third Party Borrower, on or after the Adjustment Date, shall belong to the Purchaser. If a check received by the Seller, on account of a Loan, is dishonored after the Adjustment Date, then an adjustment to the Purchase Price, in the Seller's favor shall be made (and the Purchaser shall pay the amount of such adjustment to the Seller if such adjustment is made after the Closing) within ten (10) days of notice by the Seller to the Purchaser that such check has been dishonored. On the Post-Closing Date, the Purchase Price will be adjusted to reflect any changes in the Principal Balance because of miscalculations, misapplied payments, unapplied payments or other accounting errors which have been discovered from the Closing Date through the Post-Closing Date. This paragraph shall survive the Closing. Outside Closing Date And Location of Closing . The Closing Date shall occur no later than {{{97.2/OUTSIDE CLOSING DATE}}}, subject to the provisions of this Agreement. The Loan Files shall be delivered to the Purchaser at {{{97.21/PLACE OF CLOSING}}}, or such other place as may be practicable which is designated by the Seller, provided that not less than five (5) days notice of such other place is given to the Purchaser. Delivery of the Loan Files, and the other closing documents required to be delivered by the Seller pursuant to this Agreement, shall be made upon receipt by the Seller of the Purchase Price and the closing documents required to be delivered by the Purchaser. The Closing shall, at the Seller's option, be either by telephone, confirmed by letter or wire, or conducted in person at the place designated by the Seller as provided above in this paragraph. No Refund of Discount . The Purchaser is not entitled to any rebate or refund or adjustment from the Seller on account of any pre-computed or discounted Loan, or any Loan with original issue discount, regardless of when the maturity date for any such Loan occurs. Further, on any such Loan, the Seller will not refund any unearned discount or interest amount to the Purchaser. Liquidated Damages And Other Payments To Seller . If for any reason, without fault of the Seller, the Purchaser fails to consummate the purchase of the Loans pursuant to this Agreement, then the sum of the following amounts shall be stipulated as the Seller's liquidated damages: 1) the Down Payment and all other funds deposited with the Seller as may be required by the terms of this Agreement (including all documents which may be incorporated in this Agreement), and 2) all costs incurred by the Seller in subsequently selling the Loans, including but not limited to marketing costs, attorneys' fees and related costs. The Purchaser and the Seller agree that the failure or refusal of the Seller to alter or modify in any way the terms or conditions of this Agreement, or any other documents incorporated into this Agreement, shall not constitute fault on the part of the Seller. Nothing contained in this Agreement is intended to, nor shall it be construed to, limit in any way the right of the Seller to seek any other right, remedy, relief or damages provided by law or equity. Assignment . At Closing the Seller shall deliver to the Purchaser an Assignment executed by an authorized representative of the Seller, in the form attached hereto as Schedule B , selling, assigning and conveying to the Purchaser all right, title and interest of the Seller in each of the Loans, without recourse, representation or warranty except as expressly provided in this Agreement. Negotiation . The Seller agrees to endorse each of the notes evidencing the Loans on the Closing Date. The endorsement will be in the following form: Pay to the order of {{{97.12/PURCHASER}}} Without Recourse, Representation or Warranty {{{97.4/SELLER}}} Seller's Closing Deliveries . At the Closing, the Seller shall deliver to the Purchaser each original Loan Document in the Seller's possession with respect to the Loans, together with a copy of the contents of each Loan File relating to the Loans. Additional Transfer Documents . At the Closing the Seller shall execute and deliver to the Purchaser (without recourse to the Seller except as expressly provided in this Agreement) such additional instruments as may be required by applicable law to transfer to the Purchaser the right, title and interest of the Seller in the Loans and such of the Loan Documents related to such Loans as the Purchaser may reasonably request. The Seller may require the Purchaser to prepare and furnish such instruments in appropriate form and, in the case of Loan Documents representing liens on real estate, in a form suitable for filing. When requesting execution of instruments transferring the interest of the Seller in the Loan Documents, the Purchaser shall furnish the Seller with the Loan Group numbers, a copy of the Loan Documents to be transferred, and copies of each previous assignment of said Loan Document. The Purchaser shall be solely responsible for the contents and form of such instruments. The Purchaser hereby releases the Seller from all loss or damage incurred by the Purchaser due to the contents of such instrument. The Purchaser further agrees to indemnify and hold the Seller harmless against each cause of action by any person arising out of the contents and form of such instrument. The Purchaser shall record said instrument at its sole expense. If such instrument is unacceptable to the Seller for any reason, then it may return the same to the Purchaser with a statement of the reasons for such unacceptability. Purchaser's Covenants, Representations and Warranties . The Purchaser warrants and represents as follows: 12.1 No Violation By Purchaser of Collection Laws . The Purchaser will not violate any laws relating to unfair credit collection practices in connection with any Loan transferred to the Purchaser pursuant to this Agreement. The Purchaser hereby agrees to indemnify the Seller, and to hold the Seller harmless, from and against all claims, demands, losses, damages, penalties, fines, forfeitures, judgments, legal fees, and all other costs, fees, and expenses, heretofore or hereafter incurred by the Seller as a result of (1) a breach by the Purchaser of the warranty provided in this subparagraph, or (2) any claim, demand, or assertion that the Seller was in any way involved in, or had in any way authorized, any unlawful collection practices in connection with any of the Loans transferred to the Purchaser pursuant to this Agreement. The Purchaser agrees to notify the Seller within ten (10) business days of notice or knowledge of any such claim or demand. 12.2 No Action By Purchaser In Seller's Name . The Purchaser warrants, represents and agrees that the Purchaser will not, without the express prior written consent of the Seller, institute any legal action in the name of the Seller or continue to prosecute in the name of the Seller any pending legal action; nor shall the Purchaser, intentionally or unintentionally, through misrepresentation or nondisclosure, mislead or conceal the identity of the owner of the Loans purchased pursuant to this Agreement. The Purchaser acknowledges that there is no adequate remedy at law for violation of this subparagraph and consents to the entry of an order by a court of competent jurisdiction enjoining any violation or threatened violation of the provisions of this subparagraph. The Purchaser hereby agrees to indemnify the Seller, and to hold the Seller harmless, from and against any and all claims, demands, losses, damages, judgements, and legal expenses which have been, or may hereafter be, incurred by the Seller as a result of a breach by the Purchaser of the warranty provided in this subparagraph. 12.3 Contracts With Attorneys And Collection Agents . The Purchaser takes the Loans subject to all fee agreements with attorneys and collection agents. The Purchaser agrees to fulfill all obligations of the Seller under each such Agreement. The Purchaser hereby indemnifies and agrees to hold the Seller harmless from and against all claims, demands, losses, damages, penalties, forfeitures, or judgments made or rendered against the Seller, and all legal fees or other costs, fees or expenses incurred by the Seller arising out of or based upon such agreements. The Purchaser agrees to notify the Seller within ten (10) business days of notice or knowledge of each such claim or demand. 12.4 Government-Insured And Guaranteed Loans . If any Loans being transferred pursuant to this Agreement are insured or guaranteed by the United States Department of Housing and Urban Development ("HUD ") or any other department or agency of any governmental unit, federal, state or local (HUD and each such department or agency being called a "Public Body "), and such insurance or guaranty is not being specifically terminated by the Seller, the Purchaser represents that the Purchaser has been approved by such Public Body, and the Purchaser is deemed by such Public Body to be an approved lender or mortgagee, as appropriate, if such approval by such Public Body is required; or, if the Purchaser has not been so approved, the Purchaser recognized that any such insurance or guarantees may be terminated. The Purchaser further assumes full responsibility for determining whether or not such insurance or guarantees are in full force and effect on the date of this Agreement. With respect to those Loans whose insurance or guaranty is in full force and effect on the date of this Agreement, the Purchaser assumes full responsibility for doing all things necessary to continue such insurance or guarantees in full force and effect. The Purchaser agrees to assume all of the Seller's obligations under each such contract of insurance or guarantee. The Purchaser agrees to indemnify and hold the Seller harmless from and against all claims of breach under each such insurance or guarantee, to the extent such claims arise after the Closing. The Purchaser agrees to cooperate with the Seller where necessary to complete forms required by the insuring or guaranteeing Public Body to effect or complete the transfer to the Purchaser of each such insurance and guarantee. Any other provision of this Agreement to the contrary notwithstanding, the Purchaser agrees that no guarantee of any kind or type whatsoever, whether made by any Public Body or any other person or entity, is purchased, acquired, assumed, or in any other manner transferred or conveyed to the Purchaser pursuant to this Agreement. 12.5 No Reliance on Seller . The Purchaser agrees and represents that its purchase of the Loans subject to this Agreement is based upon the Purchaser's own independent evaluation of the Loans and the Purchaser's independent evaluation of the Loan Files. The Purchaser has made such independent investigation as the Purchaser deems to be warranted into the nature, validity, enforceability, collectibility, and value of the Loans, and all other facts the Purchaser deems material to the purchase of the Loans. The Purchaser is entering into this Agreement, solely on the basis of that investigation and the Purchaser's own judgment, and is not acting in reliance on any representation of, or information furnished by, the Seller. The Purchaser acknowledges that no employee or representative of the Seller has been authorized to make any statements or representations, other than those specifically contained in this Agreement. The Purchaser hereby waives any right or cause of action that the Purchaser might now or in the future have against the Seller as a result of the Purchaser's purchase of the Loans subject to this Agreement; provided, however, that this waiver does not include any rights of the Purchaser against the Seller as a result of the Seller's default under this Agreement. 12.6 Purchaser To Pay All Broker's Fees . If a broker was involved in this transaction, the Purchaser represents and acknowledges that: 1) such broker was and is the representative only of the Purchaser, not of the Seller; 2) the broker had no authority to make any statements on behalf of, or to act for, the Seller; 3) the Purchaser had the opportunity to review all loan documentation independently of the broker; 4) the Purchaser has no recourse against the Seller for any misstatements that may have been made by the broker; and 5) the Purchaser is solely responsible for all commissions and fees due to the broker arising out of this transaction. The Purchaser represents and warrants that no broker was involved with respect to this Agreement, or the sale of any of the Loans by the Seller to the Purchaser, unless the name of such broker is disclosed in Schedule A annexed to this Agreement. 12.7 Authority And Compliance With Organizational Requirements . Both the Purchaser, and the undersigned duly authorized representative of the Purchaser (acting individually), represents that: 1) the Purchaser is authorized to enter into this Agreement, and 2) all laws, rules, regulations, charter provisions and bylaws to which the Purchaser may be subject have been duly complied with, and 3) such representative is authorized to act upon behalf of and bind the Purchaser to the terms of this Agreement. The Purchaser, if a corporation, will at the Closing, supply the Seller with a certified copy of a resolution of its Board of Directors authorizing the Purchaser's entry into this Agreement through such representative, or such other proof of authority as may be acceptable to the Seller, together with such other documents as the Seller may reasonably require as evidence of the Purchaser's good standing. If the Purchaser is other than a corporation, then the Purchaser will, at the Closing, supply the Seller with such other evidence of the Purchaser's existence and authority as the Seller may reasonably require. 12.8 Purchaser's Information True And Complete . The Purchaser represents and warrants that all information provided to the Seller or its agents by or on behalf of the Purchaser, in connection with this Agreement and the transactions contemplated by this Agreement, is true and correct in all material respects, and does not fail to state any fact required to make such information not misleading. No Warranties or Representations By Seller . This sale is made without recourse or warranty, expressed or implied, except as provided in this Agreement. Further, the Seller has not, does not and will not make any representations or warranties with regard to compliance with any environmental protection, pollution or land use laws, rules, regulations, orders or requirements, including but not limited to those pertaining to the use, handling, generating, treating, storing or disposing of any hazardous waste, hazardous substances, petroleum product storage tanks or asbestos. The Purchaser acknowledges and agrees that the sale and assignment of the Loans is made without recourse or warranty, except as provided for in this Agreement. The Seller makes no warranties, covenants or representation of any sort or in any manner with regard to the Loans. Contracts With Attorneys Or Collection Agencies . If any of the Loans being sold pursuant to this Agreement are identified as being the subject of an agreement between the Seller and a collection agency or are subject to a fee arrangement with an attorney, the Purchaser agrees to purchase such Loans subject to the terms and conditions of each such agreement, and agrees to sign, if requested by the Seller, an identical agreement with the collection agency or attorney. In the event that the Purchaser enters into any agreement with a collection agency, or an attorney, with respect to any Loan which is subsequently repurchased by the Seller, or which is subject to refund, the Purchaser agrees to be responsible for all charges and fees pursuant to such contract. In no case will the Seller pay or be responsible for payment of collection agency fees or expenses, or any fees and expenses of any attorney. Retention And Availability Of Records . The Purchaser further agrees as follows: 15.1 The Purchaser agrees to abide by all applicable laws, rules and regulations regarding the handling and maintenance of all documents and records relating to the Loans purchased under this Agreement. All such documents and records shall be retained by the Purchaser for the length of time such documents and records are required to be retained pursuant to such laws, rules, and regulations. 15.2 After transfer of documents or files to the Purchaser pursuant to the terms of this Agreement, the Purchaser agrees that the Seller shall have the continuing right to use, inspect, and make extracts from or copies of any such documents or records, upon the Seller's reasonable notice to the Purchaser. 15.3 The Purchaser further agrees to allow the Seller the possession, custody and use of all original documents (to the extent delivered by the Seller or its agents to the Purchaser) for any lawful purpose and upon reasonable terms and conditions. 15.4 Before destruction or disposition of any documents or files transferred under this Agreement, the Purchaser agrees to give reasonable notice to the Seller of such destruction or disposition and to allow the Seller, at its own expense, to recover the same from the Purchaser. IRS Returns . The Purchaser agrees to submit all Internal Revenue Service forms and information returns for all Loans transferred to the Purchaser under this Agreement for the full year in which the Closing occurs, and each year thereafter. Party of Record; Seller's Legal Fees . With respect to each Loan sold pursuant to this Agreement which is the subject of any type of pending litigation, the Purchaser shall notify the Seller, at the address of the Seller specified in this Agreement, within fifteen (15) Business Days after the Closing, of the name of the attorney selected by the Purchaser to represent the Purchaser's interests in such litigation. The Purchaser shall, within fifteen (15) Business Days of the Closing, notify the clerk of the court, and all counsel of record, that ownership of the Loan was transferred from the Seller to the Purchaser. The Purchaser shall have its attorney file appropriate pleadings with the court (having jurisdiction over such litigation), within twenty (20) Business Days of Closing, substituting the Purchaser's attorney for the Seller's attorney, and also removing the Seller as a party to the litigation and substituting the Purchaser as the real party in interest. The Purchaser shall reimburse the Seller, on the Seller's demand, for all legal fees and expenses of the Seller reasonably incurred in such litigation subsequent to Closing. Any Loans giving rise to a judgment obtained by an attorney on a contingent fee or other basis are sold subject to any fees which may be claimed by any such attorney. Purchaser Shall Not Use Seller's Name . The Purchaser agrees that it will not use (or permit the use by its agents, successors or assigns, of) any name, trade name, or trademark, or combination of letters which is similar to the name, trade name, or trademark, of the Seller or its affiliates. The Purchaser will not represent or imply that it is affiliated with, authorized by, or in any way related to the Seller or any of its affiliates. The Purchaser and the Seller agree and stipulate that breach of the provisions of this section will result in actual and substantial damages to the Seller, in an amount that cannot be determined with precision. It is therefore agreed that, in the event of such breach, the Purchaser shall pay the greater of 1) $25,000, or 2) 1% of the Purchase Price, 2 to the Seller for each such breach, as liquidated damages, together with such fees and expenses as the Seller may incur in preventing further or continuing breach of said provision, and in recovering liquidated damages. Notwithstanding the provisions of this paragraph, the Seller may also pursue any equitable remedy it may have for the Purchaser's breach of this covenant. 2 This "greater of" amount may not be appropriate for all transactions. Post-Closing Proof Of Claim . In accordance with Bankruptcy Rule 3001(e) and all other applicable laws, the Purchaser agrees to take all actions necessary to file, within thirty (30) Business Days of Closing, (i) a proof of claim in each pending bankruptcy case involving any Loan purchased by the Purchaser for which the Seller has not already filed a proof of claim, and (ii) evidence of the terms of the purchase of each Loan under this Agreement with the appropriate bankruptcy court in each case in which the Seller has filed a proof of claim. The Purchaser shall prepare and provide to the Seller within thirty (30) Business Days of Closing, an Assignment of Proof of Claim in the form attached to this Agreement as Schedule D for each Loan purchased by the Purchaser which is involved in a bankruptcy proceeding as of the Closing. Nothing contained in this paragraph shall relieve the Purchaser of its obligations set forth in Section of this Agreement. Payment By Purchaser For Seller's Staff . In the event of any litigation with respect to any Loan purchased by the Purchaser, in which the Seller or its employees are requested or required by subpoena, court order or otherwise, to perform any act, including but not limited to testifying in litigation, preparing responses to subpoenas or other legal process or pleadings, or performing any review of public or private records such as tracing funds (whether said litigation is commenced by the Purchaser or any other party), then the Seller shall be reimbursed by the Purchaser for the time expended by each of the Seller's employees involved in the performance of said acts at the rate determined by the Seller, plus all associated travel, lodging and per diem costs. The Seller shall, in its sole and absolute discretion, determine and assign the personnel necessary to perform said acts. The Purchaser also agrees to reimburse the Seller for copies made in the course of performing said acts at the rate of $.25 cents per copy. Nothing in this paragraph shall require the Seller to provide the Purchaser with any information or service in this regard. Purchaser Responsible For Property Insurance . The Purchaser is responsible for having itself substituted as loss payee on all property, liability, and other insurance in which the Seller is currently listed a s a loss payee or mortgagee. The Seller may elect to cancel any of its insurance, at any time, without notice or liability to Purchaser. The Purchaser accepts the sole risk of any loss, after the date of this Agreement, to either a Third Party Borrower or to the Purchaser or to the value or collectibility of any Loan, or any collateral for any Loan, due to the Seller's cancellation of property, liability, or other insurance, or the Seller's failure to identify the Purchaser as loss payee. Purchaser Assumes All Escrow Obligations . The Purchaser hereby agrees to assume, undertake, and discharge all obligations of the Seller relating to: 1) each escrow, trust, or fiduciary relationship of the Seller relating to any Loan, 2) the maintenance of each such escrow, trust, and fiduciary relationship, and 3) all payments from escrow of monies paid by or on account of each Third Party Borrower. The Seller shall transfer to the Purchaser (or give the Purchaser a credit against the Purchase Price for), as of the Closing, that sum of money which is actually held by the Seller as of the Closing and which represents collected and undisbursed escrow, trust, or fiduciary payments with respect to the Loans (such sum of money being called the "Escrow Funds "). The Seller makes no warranty or representation, of any kind or nature, as to the sufficiency of the Escrow Funds to discharge any obligation related in any manner to any escrow, trust, or fiduciary obligation under the Loan Documents, as to the accuracy of the amount of the Escrow Funds, or as to the propriety of any previous disbursements or payments from any escrow, trust, or fiduciary account. Purchaser Shall Assume Seller's Obligations In Multiholder Loan . The Purchaser hereby agrees to assume the role of lead lender, agent, or trustee for each Loan in which a portion of or interest in the Loan was participated, sold, or transferred to one or more other entities and in which the Seller was the lead lender, agent, or trustee as of the Closing Date. The Purchaser agrees to discharge all of the Seller's obligations and duties as lead lender, agent, or trustee. The Purchaser hereby agrees to accept each such Loan subject to all rights of third parties in such participated Loan. The Purchaser hereby agrees to hold the Seller harmless for each loss incurred because of the Purchaser's actions or omissions as such lead lender, agent, or trustee, or because of Purchaser's noncompliance with this paragraph. Notice to Third Party Borrowers . The Purchaser or, at the Seller's option, the Seller, shall promptly after the Closing, but in no event later than thirty (30) days after the Closing, at the Purchaser's own cost and expense, give notice of the sale of the Loans to all Third Party Borrowers by certified mail, return receipt requested, at their current or last known address of record (such notice being called the "Transfer Notice "). A copy of each Transfer Notice shall be delivered, by the party giving such Transfer Notice, to all other parties to this Agreement, upon completion of the notification process, but, in no event later than forty-five (45) days after the Closing. In the event there is no known address for a Third Party Borrower, no personal notice to that Third Party Borrower shall be necessary. Upon subsequently locating such Third Party Borrower, the Purchaser shall send such notice to such Third Party Borrower, with a copy to the Seller. The Purchaser shall be liable to the Seller for any and all costs and expenses incurred by the Seller as a result of the Purchaser's failure to comply with the provisions of this paragraph. Nothing in this paragraph shall require the Seller to provide the Purchaser with any information or service. Notice To Seller Of Litigation . The Purchaser shall immediately notify the Seller of any claim, threatened claim, or any litigation against the Seller which may come to the Purchaser's attention. No Loan Modification Unless Seller Released . The Purchaser agrees that it will not renew, extend, amend, renegotiate, compromise, settle, or release any Loan or Loan Document, or any right of the Purchaser founded upon or growing out of this Agreement, except upon payment in full thereof, unless: 1) all Third Party Borrowers on said Loan or Loan Document shall first deliver to the Seller a release which releases and discharges the Seller Parties (defined below) from all claims, demands and causes of action which any such Third Party Borrower may have against any such Released Party arising from or growing out of any act or omission occurring prior to the date of such release, and 2) the Purchaser delivers to the Seller a release of all obligations of the Seller with respect to such Loan under this Agreement. Each such release is to be in the form of Schedule C to this Agreement. If the Purchaser fails to obtain such release, the Purchaser agrees to protect, save, and hold the Seller harmless from all expense or damage (including, without limitation, legal fees and expenses) the Seller suffers that could have been prevented had the Purchaser obtained such Release. 1. Notices . Any notice, request, or demand made under this Agreement (each such notice, request, or demand shall be called a "Notice ") shall be in writing and shall be either: 1) hand delivered, or 2) sent by Federal Express, or other reputable courier service, or 3) sent by postage pre-paid registered or certified mail, return receipt requested. Each Notice which is given by the Purchaser or the Seller (the party giving the Notice is called the "Sending Party ") to the other (such other party being called the "Receiving Party ") shall be deemed given: (a) when received by the Receiving Party at its address set forth below, if such Notice is hand delivered or is sent by Federal Express (or other reputable courier service) to such address, and (b) three (3) business days after being postmarked and addressed to such Receiving Party at its address set forth below if sent by registered or certified mail, return receipt requested: If to the Purchaser: {{{97.12/PURCHASER}}} {{{97.14/ADDRESS OF PURCHASER}}}Attention: {{{97.15/PURCHASER'S REPRESENTATIVE}}} With a copy to: {{{97.17/PURCHASER'S ATTORNEY}}} {{{97.18/LAW FIRM OF PURCHASER'S ATTORNEY}}} {{{97.19/ADDRESS OF PURCHASER'S ATTORNEY}}} If to the Seller: {{{97.4/SELLER}}} {{{97.6/ADDRESS OF SELLER}}}Attention: {{{97.7/SELLER'S REPRESENTATIVE}}} With a copy to: {{{97.9/SELLER'S ATTORNEY}}} {{{97.10/LAW FIRM OF SELLER'S ATTORNEY}}} {{{97.11/ADDRESS OF SELLER'S ATTORNEY}}} When the Sending Party gives a Notice to a Receiving Party, then such Sending Party will use reasonable efforts also to send a copy of such Notice to the address which immediately follows the address of the Receiving Party and is preceded by the legend "With a copy to." However, failure to deliver such copy or copies to any address which is immediately preceded by such legend shall have no consequence whatsoever to the effectiveness of any such Notice if it is nonetheless actually given as provided above to the Receiving Party. Each party may designate a change of address by Notice given, as provided in this Agreement, to the other party, at least fifteen (15) days prior to the date such change of address is to become effective. No Notice From Seller Unless Agreed in Agreement . The Purchaser shall not be entitled to any Notices of any nature whatsoever from the Seller except with respect to matters for which this Agreement specifically and expressly provides for the giving of Notice by the Seller to the Purchaser. The Purchaser hereby expressly waives, to the maximum extent permitted by law, the right to receive any Notice from the Seller with respect to any matter for which this Agreement does not specifically and expressly provide for the giving of Notice by the Seller to the Purchaser. No Verbal Modification . This Agreement may only be modified, amended or changed by an agreement in writing signed by the Purchaser and the Seller. The Purchaser acknowledges that this Agreement sets forth the entire agreement and understanding of the Purchaser and the Seller with respect to the sale of the Loans by the Seller to the Purchaser, and that no oral or other agreement, understanding, representation or warranty exists with respect to such sale other than the agreements, understandings, representations, and warranties set forth in this Agreement. Applicable Law . In all respects, including, without limitation, matters of construction, validity and performance, this Agreement and the obligations arising under this Agreement shall be governed by, and construed in accordance with, the laws of the State of {{{87/STATE WHOSE LAW GOVERNS}}} applicable to contracts made and performed in such State and any applicable laws of the United States of America. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be unenforceable or prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such unenforceability, prohibition or invalidity, without invalidating the remaining provisions of this Agreement. No Presumption Against Drafter . The Purchaser agrees that, when interpreting this Agreement or any other document delivered by the Purchaser to the Seller, there shall be no presumption against the Seller on account of the fact that the Seller is the party causing the drafting of this Agreement. Joint and Several . If the Purchaser consists of more than one person, the obligations and liabilities of each such person under this Agreement shall be joint and several. Headings Have No Legal Effect The headings and captions of this Agreement are for convenience of reference only, and have no legal effect, and are not to be construed as defining or limiting, in any way, the scope or intent of the provisions of this Agreement. Duplicate Counterparts . This Agreement may be executed in any number of duplicate counterparts. If there is more than one Purchaser, then each such counterpart need not be signed by each signatory. Each such duplicate counterpart which has been signed by at least one signatory, when combined with other counterparts which have been signed by the other signatories, shall be deemed an original. Reasonableness . If at any time the Purchaser believes that the Seller has not acted reasonably in granting or withholding any approval or consent under this Agreement, as to which approval or consent either the Seller has expressly agreed to act reasonably, or absent such agreement, a court of law having jurisdiction over the subject matter would require the Seller to act reasonably, then the Purchaser's sole remedy shall be to seek injunctive relief or specific performance and no action for monetary damages or punitive damages shall in any event or under any circumstance be maintained by the Purchaser against the Seller. Liability . In acting under this Agreement, neither the Seller nor any of its respective officers, directors, shareholders, members, managers, employees, or agents or contractors (collectively called the "Seller Parties "), shall be liable, in the case of any such Seller Party causing damage to the Purchaser, for any error of judgment of such party, or for any act done or step taken or omitted in good faith by such party, except that this sentence shall not protect any Seller Party with respect to any error, act, step or omission constituting the gross negligence or willful tortious misconduct of such Seller Party. The Seller shall have no liability or responsibility for taking any necessary steps to preserve rights against any third parties with respect to any Loan (or any part thereof or interest therein). If the Seller (or any Seller Party) shall fail to perform any of its respective obligations under this Agreement, then such party (the "Nonperforming Party ") shall not be in default under this Agreement unless and to the extent that the Nonperforming Party is in default pursuant to the express terms of this Agreement and only if the Purchaser shall give notice of such default to such Nonperforming Party, and the Nonperforming Party shall fail to cure such default within thirty (30) days (or if such default cannot reasonably be cured within such 30-day period, then the Nonperforming Party shall fail to commence curing such default within such 30-day period and cure such default within a reasonable period thereafter). In no event shall any Seller Party be liable for any direct, consequential, incidental, or punitive damages on account of any default under this Agreement or any violation of applicable law or procedures, provided, that if the Purchaser is entitled pursuant to this Agreement to receive the return of its Down Payment, then the Purchaser may commence an action against the Seller to recover such Down Payment and all accrued interest thereon. Construction . Unless the context otherwise requires, singular nouns and pronouns, when used in this Agreement, shall be deemed to include the plural and vice versa, and impersonal pronouns shall be deemed to include the personal pronoun of the appropriate gender. "Including " means "including, without limitation." No Assignment By Purchaser . This Agreement and the terms, covenants, conditions, provision, obligation, undertaking, rights and benefits of this Agreement, including the Attachments hereto, shall be binding upon, and shall inure to the benefit of, the undersigned parties and their respective heirs, executors, administrators, representatives, successors, and assigns. This Agreement shall not be assigned by the Purchaser without the Seller's prior written consent. Survival . Each and every covenant made by the Purchaser or the Seller in this Agreement shall survive the Closing and shall not merge into the closing documents, but instead shall be independently enforceable. NO TRIAL BY JURY . THE PURCHASER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, AND THE SELLER BY ITS EXECUTION OF THIS AGREEMENT IRREVOCABLY AND UNCONDITIONALLY WAIVES, ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT OR COUNTERCLAIM ARISING IN CONNECTION WITH, OUT OF OR OTHERWISE RELATING TO THIS AGREEMENT OR IN ANY WAY RELATED TO THIS TRANSACTION. Executed this {{{97.1/DATE OF PURCHASE AGREEMENT}}} The Purchaser: {{{97.12/PURCHASER}}} The Seller: {{{97.4/SELLER}}} Schedule A LOANS Description of Loans Bid Percentage (If Applicable) The Purchaser represents and warrants that no broker was involved with respect to this Agreement, or the sale of any of the Loans by the Seller to the Purchaser, unless the name of such broker is disclosed below: {{{97.22/BROKER}}} Schedule B Assignment Schedule C Release of Seller Parties Schedule D Assignment of Proof of Claim SELLER'S ALTERNATIVE PROVISIONS FOR PURCHASE AGREEMENT 3 Auctions . If the Seller intends to sell the Loans by auction, then the following changes should be made to the agreement. The Purchase Agreement form would then be contained in the "bid package" which is sent to all interested bidders, and when the successful bidder's bid is accepted, the successful bidder would be required to sign the Purchase Agreement. 1.1 The following should be added as a new subsection to Section of the Purchase Agreement (and the subsequent subsections should be renumbered): 1.4 "Auction Documents " means the Invitation to Bid and Instructions and Conditions of Bid including the Bid Form, the Purchaser Eligibility Certification, Confidentiality Agreement, Bidder's Checklist, Affidavit of Non-Collusion, the Agreement, and the Asset Spreadsheet. 1.2 The following should be added in lieu of Section of the Purchase Agreement: 1.12 "Purchase Price " means the aggregate unpaid principal amount, as set forth in Seller's books and records as of the Adjustment Date, of all Loans purchased by the Purchaser, multiplied by the percentage bid by the Purchaser (as set forth on the bid form submitted by the Purchaser to the Seller at the time of acceptance of the Purchaser's bid for the Loans, or in the absence of such bid form, as reasonably determined by the Seller) for such Loans (the "Bid Percentage "). 1.3 The following should be added as a new Section to the Purchase Agreement (and the existing Section ("No Trial By Jury") should be renumbered: 40. Incorporation of Auction Documents : The Instructions and Conditions of Bid shall be considered part of this Agreement as if fully set forth in this Agreement. 3 In addition, see the alternative provisions for the Lead Lender, in the case of a Participation Agreement, which are also included in this disk. PURCHASER'S ALTERNATIVE PROVISIONS FOR PURCHASE AGREEMENT 4 Refund Of Down Payment Due To Regulatory Requirements . Add the following at the end of Section ("Liquidated Damages And Other Payments To Seller"): The Purchaser shall not be liable for any of the foregoing damages specified in this paragraph if the Purchaser shall be forced to withdraw its bid after award as the result of a supervisory directive given by its regulatory agency, provided that the Seller shall be satisfied that such supervisory directive is legally effective. In such event, the Seller shall refund the Purchaser's entire Down Payment (together with all interest accrued thereon), to the extent previously received by the Seller. Seller's Representations And Purchaser's Remedies . 2.1 Add the following to Section ("Defined Terms") immediately before Section ("Third Party Borrower"), which should then be renumbered: 1.14 "Reacquisition Price " means the price payable by the Seller for each Loan reacquired from the Purchaser pursuant to the terms of this Agreement. The Reacquisition Price for a given Loan shall be the sum of the following amounts: (i) the Purchase Price of such Loan, (ii) plus or minus any adjustments (for such Loan) made on or before the Post-Closing Date, as appropriate, (iii) minus all collections received by the Purchaser with respect to such Loan since the Adjustment Date regardless of how applied to the Loan, and (iv) plus an amount equal to sums reasonably expended by the Purchaser that are directly related to documenting the unenforceability of a loan obligation, such as credit reports or court record." 4 See also the alternative provisions for a Participant, in the case of a Participation Agreement, which are included on this disk. The additional representations, warranties, and covenants of the Seller which are set forth below are consistent with the recommendations of the rating agencies for mortgage securitizations. See Standard & Poor's, Legal and Structured Finance Issues in Commercial Mortgage Securities at 66-71 (September 1995). 2.2 The following may be added at the end of Section ("No Warranties or Representations by Seller") of the Agreement. The following representations, warranties, and covenants assume that the Purchaser has substantial leverage (for example, in a mortgage securitization), and are not appropriate for all transactions. Depending on the nature of the transaction, the following representations, warranties and covenants may be have to be modified, or additional provisions may be required (such as in the case of the securitization of loans secured by ground leases or senior housing facilities5 ). Notwithstanding anything in this Agreement to the contrary, the Seller makes the following representations, warranties, and covenants: Seller's Title to Loans . The Seller has good title to, and is the owner and holder of, the Loans. B. No Approval Needed For Sale . No approval of any governmental agency or supervisory body is required in connection with the sale by the Seller of any of the Loans or the Loan Documents pursuant to this Agreement. There is no restriction in the Loan Documents upon the right or the ability of the Seller to assign, transfer, or convey the Loan Documents to any person or entity. C. Seller's Power and Authority . The Seller has full right, power and authority to sell, assign and transfer the Loans and the Loan Documents pursuant to this Agreement. D. Loans Sold Free Of Liens . Each Loan is being sold by the Seller, pursuant to this Agreement, free and clear of any and all liens, pledges, security interests and hypothecations and other encumbrances. E. Loans Validly Assigned . All Loan Documents will be assigned or transferred to the Purchaser as of the Closing. Each note evidencing all or any part of the Loans will be duly negotiated to the Purchaser at the Closing. 5 Standard & Poor's, Legal and Structured Finance Issues in Commercial Mortgage Securities at 70-71 (September 1995). F. Sale Covers All Rights To Loans . The interest in the Loans and the Loan Documents being sold by the Seller pursuant to this Agreement is not merely a participation interest but instead represents all legal, equitable, and beneficial interest in the Loans and the Loan Documents. G. No Contingent Interest or Equity . No Loan or Loan Document provides for: 1) any contingent interest which is payable by any Obligor (defined below), or 2) any equity participation or other beneficial or equitable or ownership interest in any Obligor. H. Payment History . The Seller has not received any payment on account of any of the Loans except as set forth in the payment histories which are included in the Loan Files. Loans Enforceable; No Defenses . The obligations of each borrower (and each guarantor and other obligor) under the Loan Documents (each such borrower, guarantor, and obligor being called collectively the "Obligors ") are valid, legal, and enforceable obligations (subject to bankruptcy, insolvency, and the rights of creditors generally, and subject to general principles of equity), without offset, defense or counterclaim. I. First Lien Against Collateral . Each lien or security interest which is created pursuant to the Loan Documents is a valid and enforceable first priority and perfected lien or security interest against the property which is subject to such lien or security interest (all such property being collectively called the "Collateral "), as disclosed in Schedule A to this Agreement, 6 subject only to title 6 The Purchaser will prefer to have Schedule A be detailed, listing, for each Loan, the unpaid principal balance, the amount of all accrued and unpaid interest and other charges, the identity and addresses of the borrower, exceptions which are expressly excepted in the title insurance policy or policies which have been issued to the Seller with respect to the Loans and which have been delivered to and approved by the Purchaser (such policies being called the "Title Policies ," and such exceptions being called the "Permitted Exceptions "). J. First Lien Against Rents . Each assignment of leases or rents which is included in the Loan Documents (each such assignment being called an "Assignment of Rents ") establishes an assignment of, or a valid first priority perfected lien and security interest against, the right to receive all rents, income, profits and proceeds from the interest of each owner of the Collateral (all such rents, income, profits and proceeds being called the "Rents "); and no other person owns any interest in the Rents unless such interest is subordinate to the Assignment of Rents. K. Collection of Rents . To the extent that the Collateral (or any part thereof) is subject to any lease, tenancy, or occupancy agreement (all such leases, tenancies, and occupancy agreements being collectively called the "Leases "), each borrower of each Loan which is secured by the Rents from any Leases is: 1) the owner of the property which is subject to such Leases, and 2) the holder of the landlord's interest in such Leases. The Holder or Holders (defined below) have the right, in the event of a Default: 1) to appoint a receiver to collect the Rents on behalf of such Holder or Holders, and 2) to enter into possession of the property which is subject to the Leases. L. Collateral Includes All Security . No Loan is secured by any security that is not part of the Collateral. each guarantor, and all other guarantors, and a specific description of the mortgaged property. M. Cross-Collateralization . Any Loan which is cross-collateralized is cross- collateralized only with other Loans. N. No Releases . The Loan Documents do not require all or any portion of the Collateral to be released, except upon payment in full of the Loans and only if the Holders have no further obligation under the Loan Documents. O. Deed of Trust . If any of the Collateral is subject to a deed of trust, then a trustee (duly qualified under applicable law to serve as a trustee under such deed of trust) has been properly appointed, and currently serves as such a trustee and is named as a trustee in such deed of trust (or a duly recorded amendment or assignment with respect thereto). No fee or expense is or will become payable to the trustee under any such deed of trust, unless and to the extent payable with respect to the sale or release of the Collateral (or any part thereof) after any Default or satisfaction of any Loan. P. Enforceability and Priority of Payment Adjustments . All of the provisions of the Loan Documents relating to interest rate adjustments, or changes in payments or the amount of the principal balance, are enforceable in accordance with their terms and will not impair the priority of any lien arising under the Loan Documents. Q. Remedies Enforceable . The Loan Documents contain remedies which permit the Purchaser (and its successors and assigns), as the Holder of the Loan Documents, and following a Default, to collect the Rents, sell the Collateral (pursuant to a judicial foreclosure, and, if recognized by the laws of the applicable jurisdiction, a nonjudicial foreclosure), and otherwise realize the benefits of the Collateral. R. Permitted Exceptions . The Permitted Exceptions listed in the Title Policies do not and will not materially and adversely affect either: 1) the ability of any Obligor under the Loan Documents to pay, on a timely basis in accordance with the Loan Documents, all amounts which are payable by such persons or entities under the Loan Documents, 2) the use of the Collateral for the use which is permitted under the Loan Documents and which is currently in effect, 3) the operation of the Collateral as currently beingoperated, or 4) the value of the Collateral. S. Encroachments . None of the improvements (to any real property which is part of the Collateral) (collectively the "Improvements ") violates any covenants and restrictions, or applicable zoning, building and other laws, applicable to such real property, exce