PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of __[Day,
Month, Year]__, is made between _____[Company Name]____ as agent for the lenders identified
in Exhibit “A” hereto ("Lender"), and _____________________________________and or its
assigns ("Buyer").
Recitals
Lender is the holder of that certain Note Secured By Deed Of Trust Installment Note
("Note"), is the beneficiary under that certain Short Form Deed Of Trust And Assignment Of
Rents ("Deed of Trust"), and is a party to those certain other loan and related documents
(collectively the "Other Documents") as more fully described in Exhibit “B” and executed by
International Executive Enterprise ("Borrower"). Pursuant to the Note, the Deed of Trust, and the
Other Documents a certain loan and extension of credit has been made by Lender to the Borrower
(the "Loan"). Collectively, the Note, the Deed of Trust, and the Other Documents are referred to
as the Loan Documents.
On the terms and conditions set forth below, the Buyer desires to acquire for its own
account from Lender, and Lender desires to transfer to the Buyer, by assignment in accordance
with the provisions of this Agreement, without recourse to Lender, Lender's interest in all of the
aggregate outstanding principal amount of the Loan and all fees, interest, indebtedness, and rights
under the related Loan Documents as provided below. The Buyer shall also assume as of the
Closing Date (as defined below) Lender's obligations under the Loan Documents. The parties
acknowledge that Lender intends to treat the assignment as a "sale" for the purposes of generally
accepted accounting principles or for bank regulatory financial reporting purposes.
Accordingly, for valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS; INTERPRETATION.
(a) Certain Defined Terms. As used in this Agreement, the following terms shall have
the following meanings:
"Assigned Amount" has the meaning set forth in Section 2(a).
"Assignment" means the assignment by Lender, without recourse, of the Assigned
Amount and assumption by Buyer effected as provided in this Agreement with
respect to Lender's obligations and rights under the Loan Documents sold to Buyer
hereunder.
"Banking Day" means a day (i) other than a Saturday or Sunday, and (ii) on which
commercial banks are open for business in __[City, State]__.
"Bankruptcy Code" means Title 11 of the United States Code, as amended and
recodified from time to time.
"Best efforts" means making reasonable requests and taking other reasonable and
customary actions in order to accomplish a lawful goal required or contemplated
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by the Transfer Documents and/or specifically requested by the party entitled to
require the performance of best efforts. Best efforts does not require the party
undertaking those efforts: (i) to incur any out of pocket expense, unless the Person
expecting the exercise of best efforts makes satisfactory arrangements for the
reimbursement of those expenses; (ii) to suffer exposure to any claim or additional
liability other than immaterial liabilities arising in the ordinary course of that
party's performance of its obligations under the Transfer Documents; (iii) to grant
or suffer any concession of any sort; or (iv) otherwise to suffer any significant
financial or economic detriment to any of its rights or interests in order to induce a
consent from a third party or otherwise accomplish the requested goal. For
purposes of this definition only, "out of pocket expenses" are expenses not
normally included in a party's general overhead.
"Borrower" has the meaning set forth in the Recitals.
"Closing" means the time on the Closing Date when the Assignment transaction is
consummated.
"Closing Date" means ___[Day, Month, Year]____.
"Collateral" means all property described in the Loan Documents and any other
property of any nature now existing or hereafter acquired which may at any time be
or become security for the payment and performance of the Assigned Amount and
other related obligations of the Borrower under the Credit Documents transferred to
the Buyer by Assignment hereunder. No reference in the Transfer Documents to
"Collateral" shall be deemed a waiver, release, subordination or other change in the
rights, titles, interests or priorities of any Person with respect to any Collateral.
"Loan Documents" has the meaning set forth in the Recitals.
"Credit Documents" means the Note and the Deed of Trust together with other
related documents, agreements and instruments now or hereafter executed in
connection therewith. No references to Credit Documents in the Transfer
Documents shall be deemed a waiver, release, subordination or other change in the
rights, titles, interests or priority of any Person with respect to any Credit
Document.
"Deed of Trust" has the meaning set forth in the Recitals.
“Deposit” shall mean deposit funds of which are non-refundable
"Dollars" and the sign "$" each means lawful money of the United States of
America.
"GAAP" means generally accepted accounting principles consistently applied.
"Loan" has the meaning set forth in the Recitals.
"Materials" has the meaning set forth in Section 13.
"Note" has the meaning set forth in the Recitals.
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"Person" means an individual, corporation, partnership, joint venture, trust,
unincorporated organization or any other entity of whatever nature.
"Representative" has the meaning set forth in Section 13.
"Securities Act" means the Securities Act of 1933, as amended.
"Transfer Notice" means the notice required to be given in respect of the
Assignment in the form of Exhibit “C”.
"Transfer Documents" means this Agreement, and any other documents executed
by Lender or Buyer in order to effectuate the Assignment. None of the Credit
Documents are Transfer Documents.
(b) Interpretation. In this Agreement, except to the extent the context otherwise
requires: (i) any reference in this Agreement to a Section, a Schedule or an Exhibit is a reference
to a section hereof, a schedule hereto or an exhibit hereto, respectively, and to a subsection hereto,
or a clause is, unless otherwise stated, a reference to a subsection or a clause of the Section or
subsection in which the reference appears; (ii) the words "hereof," "herein," "hereto," "hereunder"
and the like mean and refer to this Agreement as a whole and not merely to the specific Article,
Section, subsection, paragraph or clause in which the respective word appears; (iii) the meaning
of defined terms shall be equally applicable to both the singular and plural forms of the terms
defined; (iv) the term "including" is not used with limitation as to the referenced matters; and
(v) the captions and headings are for convenience of reference only and shall not affect the
construction of this Agreement.
SECTION 2. ASSIGNMENT AND ASSUMPTION.
Assignment and Assumption. Subject to and upon the terms and conditions stated in this
Agreement, Lender agrees to sell, assign and transfer to the Buyer, without recourse or retained
liability of any kind, and the Buyer agrees to purchase from Lender, on the Closing Date: (i) all
of Lender's right, title and interest in the outstanding principal amounts due with respect to the
Loan set forth in Schedule 1; and (ii) the amount of any unpaid interest accrued thereon (such
principal and interest so sold being called herein the "Assigned Amount"); together with (iii) all
of Lender's rights relating to the Loan; (iv) all Collateral for such Assigned Amount; and (iv) all
of Lender's duties, liabilities and obligations under the Credit Documents. The Buyer hereby
agrees, for its own account and risk, to accept each such Assignment and to assume, comply with
and perform as of and after the Closing Date all of Lender's duties, liabilities, obligations and
responsibilities of every type or nature whatsoever and howsoever arising under or as a result of
the Credit Documents subject to such Assignment (or otherwise with respect to the Loan or
Collateral subject to such Assignment). The Assignment by Lender, and each assumption by the
Buyer, is made without recourse to Lender.
SECTION 3. TERMINATION.
Anything contained herein to the contrary notwithstanding: (i) if Lender fails to satisfy the
conditions precedent set forth in Section 5(b) hereof, the Buyer may terminate this Agreement;
(ii) if the Buyer fails to satisfy the conditions precedent set forth in Section 5(a) hereof, Lender
may terminate this Agreement; (iii) the termination of this Agreement pursuant to clauses (i) or
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(ii) of this Section 3 shall not affect the liability of any party hereto for its breach of any of the
provisions hereof.
SECTION 4. PAYMENT.
The purchase price for the Assignment hereunder shall be
_____________________________ Dollars and zero cents ($000.000). Buyer must wire transfer
the entire purchase price to Seller on or before ______[Day, Month, Year]____, not later than
12:00 Noon (Pacific time).
SECTION 5. CONDITIONS PRECEDENT FOR TRANSFER AND ASSIGNMENT.
(a) Lender's Conditions. Lender's obligation to sell on the Closing Date the Assigned
Amount shall be conditioned upon the occurrence and satisfaction (or written waiver or
modification by Lender) of all of the following on or prior to the applicable Closing Date:
(i) Documents. This Agreement and all other Transfer Documents required to be
executed and delivered as of the Closing Date shall have been duly executed, delivered,
and (as to matters applicable to the Closing Date) performed by the Buyer;
(ii) Payment. Lender shall have received from the Buyer the payment due it under
Section 4; and
(iii) Representations and Warranties. The representations and warranties of the
Buyer in Section 6 hereof shall be true and correct on the Closing Date.
(iv) Loan Servicing. Lender will not be servicing the loan for the Buyer.
(b) Buyer's Conditions. Buyer's obligation to purchase on the Closing Date the
Assigned Amount shall be conditioned upon the occurrence and satisfaction (or written waiver or
modification by Buyer) of all of the following on or prior to the applicable Closing Date:
(i) Documents. This Agreement and all other Transfer Documents required to be
executed and delivered as of the Closing Date shall have been duly executed, delivered,
and (as to matters applicable to the Closing Date) performed by Lender;
(ii) Due Diligence. Buyer has completely satisfied its Due Diligence necessary to
proceed with the transfer;
(iii) Credit Documents. Lender shall have delivered to the Buyer the original Note,
with all necessary endorsements, without recourse or warranty to Lender, together with an
Assignment of the Deed of Trust properly executed and in recordable form;
(iv) Notice. Lender shall have prepared, for delivery to the Borrower and any
other party which is an appropriate recipient thereof, a Transfer Notice, in respect of the
Assignment, in the form of Exhibit C ("Transfer Notice"); and
(v) Title. Buyer shall have received a commitment from a title insurance
company to issue an endorsement to the original lender's title policy showing Buyer as the
insured.
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SECTION 6. REPRESENTATIONS AND WARRANTIES.
(a) Mutual Representations and Warranties Regarding This Agreement. Each of
Lender and the Buyer represents and warrants to the other that, as of the applicable Closing Date:
(i) it has all requisite power and authority to execute and deliver this Agreement
and the other Transfer Documents and to perform its respective obligations hereunder and
thereunder;
(ii) its execution and delivery of this Agreement and the other Transfer
Documents, and the performance of its respective obligations hereunder and thereunder,
have been authorized by all necessary corporate action and do not violate any laws or
orders by which it is bound; and
(iii) each of this Agreement and the other Transfer Documents constitutes its
legal, valid and binding obligation, enforceable against it in accordance with the terms
thereof, except as enforceability may be limited by applicable insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditor rights or remedies
generally.
(b) Representations and Warranties of the Buyer. The Buyer represents and warrants
to Lender that, as of the applicable Closing Date:
(i) the Buyer has conducted an independent investigation of the Borrowers (and
other Persons) with respect to the Loan and has reviewed the Credit Documents and is not
relying on Lender (except as to the accuracy of Lender's express representations herein to
the extent permitted herein). The Buyer acknowledges that it has either (at its option):
(A) received full disclosure of all documents and information pursuant to the
confidentiality agreements set forth in Section 12 hereof or (B) refused disclosure by
Lender, in its sole discretion. The Buyer is a sophisticated investor with other sources of
information, and the Buyer assures Lender that the Buyer does not need or want whatever
disclosures the Buyer has declined to receive in response to Lender's comprehensive
disclosure offer;
(ii) although the Loan and Credit Documents are not considered by the parties to
be securities within the meaning of any State or Federal securities laws, including the
Securities Act (and nothing herein shall be deemed to imply any contrary
characterization), the Loan and Credit Documents have not been registered as securities,
and no registration under the Securities Act or any other law or regulation is contemplated
by the parties. Without implying that the Assigned Amount or Credit Documents are
securities, since the Buyer acknowledges that the Assigned Amount or Credit Documents
are not securities, the Buyer (A) acknowledges that the Assigned Amount or Credit
Documents have not been, and will not be, registered under the Securities Act or
otherwise pursuant to any securities laws or regulations; and (B) represents and agrees that
the Buyer is and, as of the Closing Date will be, an "accredited investor" within the
meaning of Regulation D under the Securities Act, and will hold the Assigned Amount or
Credit Documents for its own account and not with a view to any distribution or other
disposition which would require registration under the Securities Act of 1933, as
amended; and
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(iii) the purchases effected hereunder are exclusively for its own account.
(c) Survival of Representations And Warranties. The foregoing representations and
warranties of Lender and Buyer shall survive the execution and delivery of this Agreement and
consummation of the transactions contemplated hereby. Except as expressed herein, there shall
be no other representations, warranties, agreements, or other obligations by Lender to the Buyer
or by the Buyer to Lender, whether express or implied besides those contained herein. Lender
understands that the Buyer's representations and warranties in this Agreement are exclusive, and
that the Buyer does not make any other representations or warranties, whether express or implied
in this integrated Agreement. The Buyer understands that Lender's representations and warranties
in this Agreement are exclusive, and that Lender does not make any other representations or
warranties, whether expressed or implied in this integrated Agreement.
SECTION 7. COVENANTS.
(a) Cooperation and Best Efforts. Each of Lender and the Buyer hereby agrees (i) to
use its respective best efforts and to cooperate with the other to obtain or effect, as applicable, any
other necessary or desirable consents, approvals, and notices, and (ii) to execute and deliver all
such further agreements, instruments, notices, certificates, documents and assurances and to
perform such acts, as shall be reasonably required to effectuate the purposes of this Agreement.
(b) Sale Treatment. The Buyer acknowledges that Lender requires that the
Assignment effected hereunder be a bona fide sale, without recourse to Lender in accordance with
GAAP requirements for "sale" treatment and otherwise in accordance with criteria established for
such characterization as sales by applicable accounting standards. Accordingly, the Buyer
covenants and agrees that it shall use its best efforts to: (i) provide any documents or information
reasonably requested by Lender; (ii) otherwise cooperate with Lender to the end that the
transaction contemplated hereunder shall qualify as such a bona fide sale without recourse or
retained liability of any kind with regard to the asset sold; and (iii) take no actions that shall
compromise or impair in any way Lender's characterization of the Assignment as a bona fide sale
without direct or indirect recourse.
(c) Payments Received by Lender. If any amount of principal, interest, or other
amount in respect of the Assigned Amount is received or recovered by Lender after the Closing
Date, Lender shall promptly make payment of such amount to the Buyer after receipt thereof,
together with interest on such amount for each day from (and including) the day such amount is
received or recovered by Lender until (but excluding) the day when Lender makes payment
thereof to the Buyer, at a rate per annum equal to the rate in the Note. However, Lender has no
obligation to transfer uncollected funds to the Buyer, apart from tender of any checks or items
duly endorsed by Lender. In addition, nothing herein shall require Lender to make any payment
on a day which is not a Banking Day or after the time on any Banking Day after which it is not
reasonably possible to wire transfer funds to the Buyer's bank in the ordinary course. Lender shall
cooperate with the Buyer to minimize any delay in payment of any amount payable to the Buyer
under this Agreement.
(d) Time is of the Essence. The Buyer and Lender acknowledge that time is of the
essence of this Agreement and the other Transfer Documents, including the closing of the
Assignment.
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(e) No Future Access to Files. Buyer shall not have any access to any of Lender's
files, regarding the Loan, the Collateral or the Credit Documents after the Closing Date.
SECTION 8. ACKNOWLEDGMENTS OF LENDER AND BUYER.
(a) Non-Reliance. The Buyer acknowledges and confirms to Lender that the Buyer
has itself been, and will continue to be, independently and without reliance on Lender, based on
such documents and information as it has deemed appropriate solely responsible for making its
own independent appraisal of and investigations into the Loan and the Credit Documents and its
own credit analysis and decision to enter into the Transfer Documents and to consummate the
Assignment to be entered into hereunder. The Buyer also acknowledges and agrees, except as set
forth in Section 6, that Lender has made no representation or warranty to the Buyer with respect
to, and the Buyer has not relied upon and will not hereafter rely upon Lender regarding (among
other things and without implying any other representations or warranties), and, apart from any
liability of Lender to the Buyer for any breach of any express provision of this Agreement or as
otherwise expressly provided herein or in any Transfer Document, Lender shall not directly or
indirectly have, suffer or incur any liability whatsoever to the Buyer or any of its Representatives
or any of its respective successors or assigns on account of, or as a consequence of: (i) the
execution, legality, validity, enforceability, genuineness, sufficiency or value of or the ability to
collect the Assigned Amount or the Credit Documents or the value, perfection, validity, or
enforceability of any Collateral, including (and without limiting the generality of the foregoing)
any inability or failure for any reason whatsoever, whether or not r