A Purchase Agreement is a legal document made by either 'buyer' to a seller, reporting that on a specific date, at a specific locality, and for a particular sum of money or other "value received", the seller sold to the purchaser a specific item of personal, or parcel of real, property of which he had lawful possession. It is a written instrument which evidences the transfer of title to personal property from the vendor, seller, to the vendee, buyer.
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 Master Purchase Agreement Rev4-2010 1 09/12/08 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. Master Purchase Agreement Rev4-2010 2 09/12/08 "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 Master Purchase Agreement Rev4-2010 3 09/12/08 (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. Master Purchase Agreement Rev4-2010 4 09/12/08 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 Master Purchase Agreement Rev4-2010 5 09/12/08 (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. Master Purchase Agreement Rev4-2010 6 09/12/08 (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
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